Kaua v. Frank

Decision Date09 December 2004
Docket NumberCiv. No. 03-00432 SOM/BMK.
Citation350 F.Supp.2d 848
CourtU.S. District Court — District of Hawaii
PartiesWayman KAUA, Petitioner, v. Clayton FRANK, Warden, Halawa Correctional Center, Respondent.

Peter Wolff, Jr., Federal Defender, Office of the Federal Public Defender, Honolulu, HI, Attorney for Petitioner.

Loren J. Thomas, Office of the Prosecuting Attorney, Honolulu, HI, Attorneys for Respondent.

ORDER GRANTING PETITIONER'S 28 U.S.C. § 2254 PETITION TO VACATE EXTENDED SENTENCE

MOLLWAY, District Judge.

I. INTRODUCTION.

Petitioner Wayman Kaua challenges an extended sentence imposed on him by a state judge pursuant to the state law in effect at the time he was sentenced. Following the imposition of his sentence, but before his judgment of conviction and sentence became final, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). After the Hawaii Supreme Court affirmed his judgment of conviction and sentence, Kaua moved to correct his sentence based on Apprendi. That motion was denied by the state trial court, and that denial was affirmed by the Hawaii Supreme Court.

This § 2254 petition presents the question of whether Kaua's extended sentence of incarceration violates Apprendi. This court concludes that Kaua's extended sentence clearly violates Apprendi, and that the extended sentence was based on an unreasonable application of Apprendi. This court therefore grants Kaua's § 2254 petition.

II. BACKGROUND.

The facts of this case are undisputed and have been set forth in Hawaii v. Kaua, 102 Hawai`i 1, 72 P.3d 473 (2003). On March 3, 1999, Kaua was indicted in a state court in connection with a hostage stand-off that had occurred when Honolulu Police Department officers attempted to execute a warrant for his arrest on October 29, 1999. Charges arising out of that hostage stand-off included: (1) attempted murder in the first degree, in violation of Haw.Rev.Stat. §§ 705-500 and 707-701(1)(a) (1993) (Count I); (2) attempted murder in the first degree, in violation of Haw.Rev.Stat. §§ 705-500 and 707-701(1)(b) (1993) (Counts II-IV); (3) kidnapping, in violation of Haw.Rev.Stat. § 707-720(1)(b) (1993) (Count V); (4) kidnapping, in violation of Haw.Rev.Stat. § 707-720(1)(e) (1993) (Count VI); (5) kidnapping, in violation of Haw.Rev.Stat. § 707-720(1)(f) (1993) (Count VII); (6) terroristic threatening in the first degree, in violation of Haw.Rev.Stat. § 707-716(1)(d) (1993) (Count VIII); (7) possession of any firearm or ammunition by a person convicted of certain crimes, in violation of Haw.Rev.Stat. §§ 134-7(b) and (h) (Supp.1999) (Count IX); (8) reckless endangering in the first degree, in violation of Haw.Rev.Stat. § 707-713 (1993) (Counts X-XII); and (9) carrying or use of a firearm in the commission of a separate felony, in violation of Haw.Rev.Stat. §§ 134-6(a) and (e) (Supp.1999) (Count XIII). See Kaua, 102 Hawai'i at 2-3, 72 P.3d at 474-75.

After a trial, the state court jury returned a verdict on November 22, 1999, acquitting Kaua of the charge of attempted murder in the first degree (Count I), but finding him guilty of:

(1) the lesser included offense of attempted assault in the first degree (Count II); (2) the lesser included offense of reckless endangering in the first degree (Count III); (3) the lesser included offense of attempted manslaughter based upon extreme mental or emotional disturbance (EMED) (Count IV); (4) kidnapping (Count V); (5) the lesser included offense of unlawful imprisonment in the second degree (Count VI); (6) kidnapping (Count VII); (7) terroristic threatening in the first degree (Count VIII); (8) possession of any firearm or ammunition by a person convicted of certain crimes (Count IX); (9) reckless endangering in the first degree (Counts X-XII); and (10) carrying or use of a firearm in the commission of a separate felony (Count XIII).

Kaua, 102 Hawai`i at 3, 72 P.3d at 475.

It is undisputed that the attempted manslaughter and one of the firearm-related offenses were class A felonies. Under Haw.Rev.Stat. § 706-659, a person who has been convicted of a class A felony "shall be sentenced to an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation."

It is also undisputed that the first-degree assault and another one of the firearm-related offenses were class B felonies. The first-degree terroristic threatening and the four counts of reckless endangering offenses were class C felonies. Under Haw.Rev.Stat. § 706-660, those class B and C felony convictions subjected Kaua to indeterminate terms of imprisonment of ten and five years, respectively.

Rather than seeking a sentence in accordance with sections 706-659 and 706-660, the prosecution filed a motion for extended terms of imprisonment pursuant to Haw.Rev.Stat. § 706-662(4) (Supp.1999). At that time, section 706-662(4) provided:

A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:

. . . . .

(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:

(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or

(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively, would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.

Kaua, 102 Hawai`i at 4 n. 1, 72 P.3d at 476 n. 1 (quoting Haw.Rev.Stat. § 706-662(4) (Supp.1999)).

After a hearing, the sentencing judge granted the prosecution's motion for an extended sentence. Kaua, 102 Hawai`i at 4, 72 P.3d at 476. In 1993, Kaua had been sentenced to a ten-year term of imprisonment for the offenses of possession of a firearm and possession of ammunition by a person convicted of certain crimes. Id. at 4 n. 3, 72 P.3d at 476 n. 3. The court therefore found that Kaua qualified for an extended sentence as a multiple offender. Id. at 5, 72 P.3d at 477.

The sentencing judge then turned to what it viewed as "discretionary matters," including whether an extended term of imprisonment was necessary for the protection of the public. Kaua, 102 Hawai`i at 4-5, 72 P.3d at 476-77. Based on matters discussed at the February 1, 2000, hearing, the sentencing judge stated:

Defendant's history suggests the following; from an early age, alcoholism, substance abuse. And the substance abuse is of great concern, because as a youth, it went from marijuana to cocaine, opiates, and then crystal methamphetamine. The use sometimes was sporadic. But when [Kaua] abused the drugs, it was very severe. And undoubtedly, in the days or weeks surrounding these offenses and perhaps shortly before these offenses, [Kaua] was abusing drugs in the court's judgment.

Now, his history also suggests assaultive behavior, threatening behavior. We have abuse of household member, terroristic threatening, other incidents which have been reported or mentioned by the prosecution. Basically, it's the court's conclusion that while under the influence or while under extreme stress, [Kaua] is unable to control his behavior. And that impairment has brought about assaultive behavior as well as threatening behavior.

Of more concern is ... his access to firearms. Before these incidents, [Kaua] did have a firearm conviction. And reportedly on other occasions, he resorted to use of firearms, although in one incident, I understand that it's been disputed. And, of course, in the incidents before the court, [Kaua] used an assault rifle.

. . . . .

.... Certainly[,] he had the assistance of his spouse in identifying who these people were outside and [in] what capacity they were out there. It's not only the police officer who could have been shot, but it could have been other people. And I understand that there were children in the vicinity. He may not have intended to hit any children. But in the manner that the rifle was being fired, there's also a strong ... possibility that minors could have been hurt as well as other innocent bystanders.

Basically, [Kaua], I believe when I look at the factors and consider his character, his history, his attitude, and the need for a structured environment, I believe that it's necessary for the protection of the public to impose the extended terms....

Kaua, 102 Hawai`i at 5, 72 P.3d at 477.

The court then sentenced Kaua as follows:

(1) for the lesser included offense of attempted assault in the first degree (Count II), an extended indeterminate maximum twenty-year prison term, subject to mandatory minimum terms of three years and four months as a repeat offender and ten years for the use of a semiautomatic firearm; (2) for the offense of reckless endangering in the first degree (Counts III, X, XI, and XII), extended indeterminate maximum ten-year prison terms as to each of Counts III, X, XI, and XII, subject to mandatory minimum terms of one year and eight months as a repeat offender and five years for the use of a semiautomatic firearm; (3) for the lesser included offense of attempted manslaughter based upon EMED (Count IV), an extended indeterminate maximum term of life imprisonment with the possibility of parole, subject to mandatory minimum terms of six years and eights months as a repeat offender and fifteen years for the use of a semiautomatic firearm; (4) for the offense of terroristic threatening in the first degree (Count VIII), an extended indeterminate maximum ten-year prison term, subject to mandatory minimum terms of one year and eight months as a repeat offender and five years for the use of a semiautomatic firearm; (5) for the offense of possession of any...

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12 cases
  • State v. White
    • United States
    • Hawaii Supreme Court
    • March 10, 2006
    ...The majority notes that both the United States District Court for the District of Hawai`i (the district court) in Kaua v. Frank, 350 F.Supp.2d 848 (D.Haw.2004), and the United States Ninth Circuit Court of Appeals in Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006), have ruled that State v. Kau......
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    • March 21, 2018
    ...was not invalidated by the rule announced in Apprendi. State v. Kaua, 102 Hawai'i 1, 72 P.3d 473 (2003).Our initial application of Apprendi in Kaua was rejected by both the United States District Court for the District of Hawai'i and the Court of Appeals for the Ninth Circuit. See Kaua v. F......
  • State v. Jess
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    • Hawaii Supreme Court
    • March 31, 2008
    ...preceding Jess held that Hawaii's extended term sentencing statutes were unconstitutional under Apprendi. Kaua v. Frank, 350 F.Supp.2d 848, 856 (D.Haw.2004) [hereinafter Kaua I], agreed that the imposition of an extended sentence under HRS § 706-662 "was contrary to clearly established fede......
  • State v. Maugaotega
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    • Hawaii Supreme Court
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    ...with the Ninth Circuit Court of Appeals decision in Kaua v. Frank, 436 F.3d 1057 (9th Cir.2006), affirming Kaua v. Frank, 350 F.Supp.2d 848 (2004) [hereinafter Kaua I], because the Sixth Amendment requires a jury to make a finding that would "expose the defendant to a greater punishment tha......
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