State v. Cutsinger
| Citation | 185 P.3d 816,118 Haw. 68 |
| Decision Date | 30 January 2008 |
| Docket Number | No. 28203.,28203. |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Walter Lee CUTSINGER, Defendant-Appellant. |
| Court | Court of Appeals of Hawai'i |
Glenn D. Choy, for Defendant-Appellant.
Mark J. Bennett, Attorney General, State of Hawaii, (Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu on the answering brief), for Plaintiff-Appellee.
Kimberly Tsumoto Guidry, Deputy Solicitor General, Girard D. Lau, First Deputy Solicitor General, on motion to vacate sentence and remand for resentencing, for plaintiff-appellee.
Deborah L. Kim, Deputy Public Defender, for the amicus curiae.
The parties agree that pursuant to State v. Maugaotega, 115 Hawai`i 432, 168 P.3d 562 (2007) (hereinafter, "Maugaotega II"), the extended term sentence imposed on Defendant-Appellant Walter Lee Cutsinger (Cutsinger) must be vacated and the case remanded for resentencing. After the decision in Maugaotega II, the Hawai`i Legislature enacted Act 1 of the 2007 Second Special Session (hereinafter, "Act 1"), 2007 Haw. Sess. L., Second Special Session ___, ___, which took effect on October 31, 2007. The question presented by this appeal is whether Act 1 may be applied retroactively to Cutsinger's resentencing. For the reasons detailed below, we hold that: 1) the retroactive application of Act 1 to Cutsinger's resentencing does not violate the Ex Post Facto Clause; and 2) the failure to allege in Cutsinger's complaint the facts necessary to establish his eligibility for an extended term sentence as a persistent offender does not prevent the imposition of an extended term on remand. Accordingly, we remand the case for resentencing in accordance with Act 1.
On July 12, 2005, Cutsinger was charged by complaint with second degree burglary, in violation of Hawaii Revised Statutes (HRS) § 708-811 (1993)1 (Count 1), and with possession of burglar's tools, in violation of HRS § 708-812(1)(a) (1993)2 (Count 2). The complaint alleged that Cutsinger committed the charged offenses on or about June 30, 2005. On January 26, 2006, Cutsinger pleaded guilty as charged to both counts. Cutsinger signed a guilty plea form which informed him that with respect to Count 1, he was subject to a "Maximum Imprisonment" of five years and an "Extended Term of Imprisonment" of ten years. The form included the following acknowledgment by Cutsinger:
I understand that the court may impose any of the following penalties for the offense(s) to which I now plead: the maximum term of imprisonment, any extended term of imprisonment, and any mandatory minimum term of imprisonment specified [in the guilty plea form]....
(Emphasis added.) Through language in the guilty plea form, Cutsinger further acknowledged that he was signing the form "after I have gone over all of it with my lawyer" and that "the Judge questioned me personally in open court to make sure that I knew what I was doing in pleading guilty ... and understood this form before I signed it."
On May 4, 2006, prior to sentencing, Plaintiff-Appellee State of Hawai`i (the State) filed a motion for an extended term of imprisonment, pursuant to HRS §§ 706-661 and 706-662(1) (Supp.2003),3 seeking a ten-year term of imprisonment for the second-degree-burglary count. Attached to the motion was a declaration of a Deputy Prosecuting Attorney (DPA) which alleged that Cutsinger qualified as a "persistent offender" because Cutsinger had been convicted of numerous prior felony offenses committed after he turned eighteen. The DPA's declaration identified the following prior felony convictions, which were entered against Cutsinger on September 1, 2004, in six separate Hawai`i criminal cases (hereinafter, the "six prior cases"):
a. In Cr. No. 03-1-1158, Cutsinger was convicted of Burglary in the Second Degree and Promoting Dangerous Drugs in the Third Degree.
b. In Cr. No. 03-1-1306, Cutsinger was convicted of Burglary in the Second Degree.
c. In Cr. No. 03-1-2452, Cutsinger was convicted of Attempted Burglary in the Second Degree.
d. In Cr. No. 04-1-0045, Cutsinger was convicted of Burglary in the Second Degree.
e. In Cr. No. 04-1-0056, Cutsinger was convicted of three counts of Burglary in the Second Degree.
f. In Cr. No. 04-1-0910, Cutsinger was convicted of six counts of Burglary in the Second Degree.
The DPA's declaration also alleged that Cutsinger's commitment for an extended term of imprisonment "is necessary for the protection of the public" because:
a. [Cutsinger] was on probation in [the six prior cases] when he committed the [second degree burglary in this case].
b. [Cutsinger] has an extensive criminal history.
c. [Cutsinger's] criminality has continued despite his prior contacts with the criminal justice system.
d. [Cutsinger] has failed to benefit from the criminal justice system.
e. [Cutsinger] has demonstrated a total disregard for the rights of others and a poor attitude toward the law.
f. [Cutsinger] has demonstrated a pattern of criminality which indicates that he is likely to be a recidivist in that he cannot conform his behavior to the requirements of law.
g. Due to the quantity and seriousness of [Cutsinger's] past convictions and the seriousness of the instant offense, [Cutsinger] poses a serious threat to the community and his long term incarceration is necessary for the protection of the public.
At sentencing, Cutsinger stipulated to the admission of certified copies of court documents establishing his felony convictions in the six prior cases. The DPA argued for an extended term of imprisonment on the second-degree-burglary count and for the extended term to be imposed consecutively to the sentences in the six prior cases. The DPA noted that Cutsinger's criminal history spanned twenty years and that he had a total of thirty-five felony convictions, of which at least thirty were for the offense of second degree burglary. The DPA asserted that in light of Cutsinger's criminal history, "he's not going to change," and would resume committing crimes as soon as he is released from prison. In opposition, the defense argued that Cutsinger's criminal history was attributable to his drug and mental health problems, that he was making progress in dealing with those issues, and that there was no record of violence associated with Cutsinger's burglaries or other criminal activities.
The Circuit Court of the First Circuit (circuit court) granted the State's motion for an extended term of imprisonment.4 It sentenced Cutsinger to a ten-year extended term of imprisonment on the second-degree-burglary count and to a one-year term of imprisonment on the possession-of-burglar's-tools count.5 The court ran the terms of imprisonment for these two counts concurrent with each other, but consecutive to Cutsinger's sentences in the six prior cases.6
Cutsinger filed a motion to reduce sentence, arguing that the circuit court had erred in sentencing him to an extended term of imprisonment because
the jury did not decide that such extended term of imprisonment was necessary for the protection of the public, and, therefore, the extended terms sentence imposed by the Court ran afoul of the Sixth Amendment to the United States Constitution as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)[;] Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)[;] and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
He also argued that imposing the extended term consecutively to the sentences in the six prior cases violated the Sixth Amendment. Cutsinger requested that the ten-year extended term of imprisonment be reduced to a five-year non-extended term and be imposed concurrently with the sentences in the six prior cases.
The circuit court granted Cutsinger's motion to reduce sentence in part by ordering that the sentences in this case run concurrently with the sentences in the six prior cases. The court denied the motion in part by declining to reduce the ten-year extended term of imprisonment imposed on the second-degree-burglary count. On September 7, 2006, the circuit court entered an Amended Judgment which incorporated its rulings on Cutsinger's motion to reduce sentence.
Cutsinger filed a notice of appeal from the Amended Judgment and the circuit court's "Order Granting in Part and Denying in Part [Cutsinger's] Motion to Reduce Sentence," which was entered on September 27, 2006. In his opening brief, Cutsinger argued that the sentencing court violated his right to trial by jury when it sentenced him to an extended term of imprisonment pursuant to HRS §§ 706-661 and 706-662. Cutsinger cited the recently decided case of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), as the principal authority supporting his appeal. He further noted that in light of Cunningham, the United States Supreme Court, on a petition for writ of certiorari, had vacated the judgment of the Hawai`i Supreme Court in State v. Maugaotega, 107 Hawai`i 399, 114 P.3d 905 (2005) (hereinafter, "Maugaotega I"), in which the Hawai`i Supreme Court had affirmed Maugaotega's extended term sentence, and remanded the case for further consideration. Cutsinger argued that his extended term sentence "runs afoul of [Cunningham] to the same extent as Maugaotega's [extended term sentence]."
After briefing in this case was completed, the Hawaii Supreme Court decided Maugaotega II, 115 Hawai`i 432, 168 P.3d 562, on October 1, 2007. Maugaotega II was decided after the United States Supreme Court vacated the Hawai`i Supreme Court's judgment in Maugaotega I, 107 Hawai`i 399, 114 P.3d 905, and remanded the case for further consideration in light of Cunningham. Maugaotega v. Hawai`i, 549 U.S. ___, ...
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