State v. Afong, s. 6600

• Decision Date: 09 November 1979
• Docket Number: Nos. 6600,6644 and 6653,s. 6600
• Citation: 602 P.2d 927,61 Haw. 281
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. David Charles AFONG, Defendant-Appellant, and Riki Shimada, Defendant. STATE of Hawaii, Plaintiff-Appellee, v. Carlton K. KAULUPALI, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Edward Roa TALARO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 927

602 P.2d 927

61 Haw. 281

STATE of Hawaii, Plaintiff-Appellee, v. David Charles AFONG, Defendant-Appellant, and Riki Shimada, Defendant.

STATE of Hawaii, Plaintiff-Appellee, v. Carlton K. KAULUPALI, Defendant-Appellant.

STATE of Hawaii, Plaintiff-Appellee, v. Edward Roa TALARO, Defendant-Appellant.

Nos. 6600, 6644 and 6653.

Supreme Court of Hawai'i.

Nov. 9, 1979.

Syllabus by the Court

Unless conceded by the defendant, the State in mandatory minimum sentencing proceedings under Act 181, is required to show both the fact of defendant's prior insanity and of his representation by, or his knowing waiver of, counsel at the time of the prior conviction.

Raymond Gurcynski, Deputy Public Defender, Honolulu, for defendant-appellant, Afong.

Francis Yamashita, Deputy Prosecuting Atty., Honolulu, for plaintiff-appellee.

Steve Miyasaka, Deputy Public Defender, Honolulu, for Kaulupali.

Pamela Berman, Deputy Public Defender, Honolulu, for Talaro.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYSHI, Retired Justices, assigned by reason of vacancies.

PER CURIAM.

S.C. No. 6600, State of Hawaii v. David Charles Afong ; No. 6644, State of Hawaii v. Carlton K. Kaulupali ; and No. 6653, State of Hawaii v. Edward Roa Talaro, have been consolidated for the purposes of appeal. Each Appellant was convicted of one or more counts of burglary in the first degree, under HRS § 708-810(1)(c). They were each sentenced to mandatory minimum prison terms pursuant to the provisions of Act 181, S.L.H. 1976 (now HRS § 706-606.5), which provides:

"Sentencing of repeat offenders. Notwithstanding section 706-669 and any other law to the contrary, any person convicted under sections 707-701 relating to murder, 707-710 relating to assault in the first degree, 707-720 relating to kidnapping, 707-730 relating to rape in the first degree, 707-733 relating to sodomy in the first degree, 708-810 relating to burglary in the first degree, 708-840 relating to robbery in the first degree, 712-1241 relating to the promoting of a dangerous drug in the first degree, 712-1242 relating to the promoting of a dangerous drug in the second degree, or 712-1244 relating to the promoting of a harmful drug in the first degree, who has a prior conviction for the same offense in this or another jurisdiction, shall be sentenced for each conviction after the first conviction to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:

(1) Second conviction for the same offense 5 years;

(2) Third conviction for same offense 10 years.

The sentencing court may impose the above sentences consecutive to any other sentence then or previously imposed on the defendant. " (Emphasis added) With respect to defendants Kaulupali and Talaro, we find that State v. Freitas and Karren, Haw., 602 P.2d 914, decided this day, is dispositive of the issues they have raised in their appeal. Accordingly, the judgments and sentences in their respective cases are affirmed.

As to defendant Afong, however, the judgment and sentence of the trial court is reversed and the matter is remanded for resentencing in accordance with our opinion in State v. Freitas and Karren, supra. Unless conceded by the defendant, the state is required to show, by evidence satisfactory to the court, See Id., the fact of the defendant's prior conviction, as well as the fact of his representation by counsel, or the waiver thereof, at the time of his prior conviction. Id.; cf. Burgett v. Texas,389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); State v. Kamae, 56 Haw. 628, 548 P.2d 622 (1976). In this case, one James Campaniano, a supervising clerk of the circuit court of the first circuit, was called by the State to testify and through him a copy of the indictment in the prior case was introduced into evidence. Also admitted into evidence was a certified copy of the judgment of conviction in Cr. No. 47257. Thereafter, one Filiberto Hernandez, a probation officer assigned to the circuit court of the first circuit, testified and identified defendant Afong as the defendant who had been placed under his probationary supervision pursuant to the judgment in Cr. No. 47257. Under these circumstances, the fact of prior conviction was sufficiently proved. Proof of legal representation, however, was less than...