State v. Bernades

• Decision Date: 16 July 1990
• Docket Number: No. 14098,14098
• Citation: 71 Haw. 485,795 P.2d 842
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Todd Jason BERNADES, Defendant-Appellant, and Ione K.K. Young and Abraham Bernades, Defendants.
• Court: Hawaii Supreme Court

Page 842

795 P.2d 842

71 Haw. 485

STATE of Hawaii, Plaintiff-Appellee, v. Todd Jason BERNADES, Defendant-Appellant and Ione K.K. Young and Abraham Bernades, Defendants.

No. 14098.

Supreme Court of Hawai'i.

July 16, 1990.

Syllabus by the Court

1. Mandatory indeterminate prison sentences for Class A felonies do not violate due process rights under either the Hawaii or United States Constitutions.

2. The legislative grant of probation is a privilege and cannot be demanded as a right.

3. The Hawaii Paroling Authority sets the minimum term of imprisonment based on characteristics of the offender and on the nature of the offense thus protecting individuals sentenced to mandatory indeterminate prison terms against the arbitrary actions of government as required under the Hawaii Constitution.

4. The legislature's prescription of mandatory indeterminate sentences for Class A felonies does not violate the doctrine of separation of powers.

Philip D. Bogetto, Honolulu, for defendant-appellant.

Alexa D.M. Fujise, Deputy Pros. Atty., Dept. of the Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

LUM, Chief Justice.

I.

Appellant Todd Jason Bernades appeals his two concurrent mandatory indeterminate twenty year sentences which he received after being convicted by a jury of two counts of Promoting a Dangerous Drug in the First Degree in violation of Hawaii Revised States (HRS) § 712-1241(1)(b)(ii)(A), a Class A felony. Following his conviction, Appellant was sentenced to the challenged mandatory twenty year indeterminate sentence as required by HRS § 706-659 which does not allow probation or suspension of sentence for Class A felonies. ¹

Appellant argues that because the sentencing statute takes all sentencing discretion away from the trial court, he has been denied his due process right to individualized sentencing. He also claims that the legislature, in enacting the sentencing statute, has unlawfully encroached upon the sentencing function of the judiciary in violation of the separation of powers doctrine.

We disagree and affirm.

II.

Appellant first argues that because his sentence was determined in advance by the legislature without regard to his individual circumstances, he was denied his due process right to individualized sentencing based on his personal culpability and individual characteristics. He argues that the Hawaii Constitution affords him this right even if the United States Constitution does not.

Individualized sentencing based on the court's view of the seriousness of the crime or of the characteristics of the offender has been customary in the United States for many years. A. Dershowitz, Background Paper, FAIR AND CERTAIN PUNISHMENT, at 88-91 (1976). However, there is no federal constitutional right to individualized sentencing in noncapital cases. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978). Nor do federal courts have an inherent right to suspend sentence or grant probation. Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916).

However, in Hawaii due process protection under our state constitution is not necessarily limited to that provided by the fourteenth amendment of the United States Constitution. State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971).

The Hawaii Supreme Court can find independent constitutional consideration of our rights under the Hawaii Constitution and is guided by the principle that "[t]he touchstone of due process is protection of the individual against arbitrary action of government." State v. Huelsman, 60 Haw. 71, 88, 588 P.2d 394, 405 (1978) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)).

Appellant relies on Huelsman, supra, for the proposition that there is a Hawaii due process right to individualized sentencing by the trial court. However, reliance on Huelsman, which deals with extended term sentences, is inapposite.

Where the sentencing process involves an inquiry into the defendant's character in order to arrive at a sentence which gives appropriate recognition to his potential for rehabilitation and his threat to society, the statement of these criteria provides a sufficient safeguard against arbitrary or capricious action by the sentencing judge. A sentence imposed in the absence of such minimum safeguards against arbitrary and capricious selection of sentences would, in our opinion, deprive the defendant of the due process guaranteed by the state constitution. (Emphasis added).

Huelsman, 60 Haw. at 89, 588 P.2d at 405.

Huelsman held that unguided discretion on the part of the sentencing judge is inappropriate and violates a defendant's due process rights.

Hawaii utilizes mandatory indeterminate sentencing with a maximum term of twenty years for Class A felons. Appellant's individual characteristics and culpability will be considered by the parole board. The Hawaii Paroling Authority determines the minimum term of imprisonment under procedures set out in HRS § 706-669 which focus on the individual characteristics of the offender. Eligibility for parole is determined under procedures set out in HRS § 706-670. There is no allegation by Appellant that parole determination will be made under circumstances of unfettered discretion such as those condemned by this court in Huelsman.

Generally, the power to fix criminal sentences is within the ambit of the legislative branch and in noncapital cases, the established practice of individualized sentencing rests not on constitutional commands, but on public policy enacted into statutes. Lockett v. Ohio, 438 U.S. at 604-05, 98 S.Ct. at 2965, 57 L.Ed.2d at 990. Although individualized and often indeterminate sentencing was introduced in America 120 years ago and has been a dominant characteristics of the American criminal justice system for well over 70 years, it was not always thus. A. Dershowitz, Background Paper, FAIR AND CERTAIN PUNISHMENT, at 95 (1976). In America's earlier days, the legislature prescribed determinate sentences for specific crimes, the judiciary presided over trials and imposed sentence, and the correctional officials implemented the sentence. Id. at 86. There were a number of means to ameliorate the harsh effects of such a scheme including judicial reprieve, "laying the case on file," suspension of sentence, security for good behavior, and, finally, probation. S. Rubin, The Law of Criminal Correction, at 188-89, 205-08 (2d ed. 1973).

Appellant implicitly argues that his due process right to individualized sentencing has been violated because probation is no longer available to those convicted of Class A felonies regardless of the personal attributes of the offender. However, historically probation has been a matter of grace or privilege and not a matter of right. State v. Palama, 62 Haw. 159, 164, 612 P.2d 1168, 1171 (1980); Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266, 268 (1932). The legislative grant of probation is a privilege and cannot be demanded as a right. State v. Correll, 626 S.W.2d 699, 701 (Tenn.1982). "The power to grant probation is statutorily conferred; therefore, statutory preclusion cannot infringe on judicial authority to exercise discretion in the matter." State v. Holmes, 276 N.W.2d 823, 830 (Iowa 1979). Since there is no constitutional right to receive probation, a due process claim based on the refusal of the legislature to permit probation is baseless. Id. at 830.

In Hawaii the possibility of probation for Class A felonies was eliminated by the legislature in 1980.

Your committee feels that the seriousness of class A felonies which all involve violence, physical harm, or the threat thereof, merits mandatory imprisonment....