State v. Freitas

Decision Date09 November 1979
Docket Number6987,Nos. 6986,7005,s. 6986
Citation602 P.2d 914,61 Haw. 262
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Joseph FREITAS, Jr., also known as Joseph Junior Freitas, Joseph Giggs Freitas, John Mori Freitas and John Lawrence Freitas, Defendant-Appellant (two cases). STATE of Hawaii, Plaintiff-Appellee, v. Kenneth L. KARREN, Defendant-Appellant.
CourtHawaii Supreme Court

Syllabus by the Court

1. What constitutes an adequate penalty necessary for the prevention of crime is a legislative judgment with which the courts will not interfere unless the punishment prescribed appears clearly and manifestly to be cruel and unusual.

2. Where the sentence prescribed by statute is cruel and unusual, the statute itself is unconstitutional and any sentence imposed thereunder must be set aside.

3. The standard by which punishment is judged is whether, in the light of developing concepts of decency and fairness, the prescribed punishment or sentence is so disproportionate to the conduct proscribed and is of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community.

4. So long as the penalty prescribed is reasonably proportionate to the particular crime and not so severe as to shock the conscience, its constitutionality will be upheld.

5. The key factors in determining whether a prescribed penalty constitutes cruel and unusual punishment are the nature of the offense and the danger the offender poses to society.

6. The mere omission of some crimes from the operation of Act 181 is not a showing that the penalty prescribed is so disproportionate to the conduct charged as to render it cruel and unusual, in the light of legislative concern with repeat offenders and the frequency of repetition among those convicted of burglary.

7. Parole is a matter of legislative grace, and the denial of it to certain offenders is within legislative discretion.

8. Although the ideal manner in which to ensure society's protection is through the rehabilitation and restoration to society of the offender, deterrence through threat of punishment and isolation of the offender while he is a threat to society continues to be a legitimate end of the criminal process.

9. Although the Equal Protection Clause mandates that all persons similarly situated shall be treated alike, both in privileges conferred and in the liabilities imposed, it does not require that state legislation operate upon or apply equally to every citizen of a state.

10. So long as a rational relationship exists between the ground of distinction and the objective sought to be achieved, or if any state of facts can reasonably be conceived to sustain it, legislative classification which differentiates between classes of people will be upheld as reasonable and non-arbitrary.

11. The Equal Protection Clause does not abrogate the state's powers to make classifications in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and is therefore purely arbitrary and capricious.

12. As a statute is presumed to be constitutional, the party challenging its constitutionality on equal protection grounds bears the heavy burden of showing that the statute is arbitrary and capricious.

13. Whether a given classification is reasonable or not must be determined from the facts of the particular case.

14. A statute does not violate the Equal Protection Clause merely because it could have included other persons, objects, or conduct within its reach.

15. The legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.

16. Establishing criminal sanctions is properly within the legislative sphere, and establishing a mandatory minimum term of imprisonment for certain crimes is one of the valid options open to the legislature.

17. The use of prior convictions to increase punishment for the underlying offense does not violate the constitutional prohibition against ex post facto laws as it does not create an additional penalty for the prior crime, but provides a stiffened penalty for the latest offense.

18. As Act 181 is a mandatory sentencing statute admitting of no discretion on the part of the trial court, and ordinary sentencing procedures will apply.

19. Before sentence may be imposed under Act 181, the defendant must be given reasonable notice of the intended application of the act; he must be given the opportunity to be heard; the fact of his prior conviction must be established by satisfactory evidence; and he must have been represented by counsel, or have knowingly and intelligently waived representation, at the time of the prior conviction.

20. Proof of prior conviction may consist of any evidence, including fingerprint records made in connection with arrest, conviction, or imprisonment, that reasonably satisfies the sentencing court that the defendant was convicted.

21. For a prior conviction to provide the foundation for sentencing under the mandatory minimum sentencing provisions of Act 181, the defendant must have been represented by counsel, or have knowingly and intelligently waived representation.

Alvin Sasaki, Deputy Public Defender, Honolulu, for defendant-appellant.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., MARUMOTO, Retired Justice, and LUM, Circuit Judge, assigned by reason of vacancies.

MENOR, Justice.

S.C.No. 6986, State of Hawaii v. Joseph Freitas, Jr., and S.C.No. 7005, State of Hawaii v. Kenneth L. Karren, have been consolidated for purposes of appeal.

On January 10, 1978, defendant Freitas, in Cr. No. 50480, Circuit Court of the First Circuit, was found guilty by a jury of the offense of burglary in the first degree, HRS § 708-810(1)(c). On January 29, 1978, in Cr. No. 50479, Circuit Court of the First Circuit, he entered a plea of guilty to the charge of burglary in the second degree, HRS § 708-811. At the time of sentencing, on March 29, 1978, the trial court inquired as to whether defendant Freitas should be sentenced under 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.)

Defense counsel objected on the grounds (1) that the defendant had not been given notice of the intended application of Act 181, and (2) that an evidentiary hearing was required to prove his prior conviction. The trial court thereupon continued the sentencing hearing over defense counsel's objections to April 12, 1978. Following the conclusion of the rescheduled hearing, the trial court specifically found that defendant Freitas had been convicted of burglary in the first degree on May 28, 1975, and that he had been represented by counsel at the time of his prior conviction. The trial court then sentenced defendnat Freitas in Cr. No. 50480 (burglary in the first degree) to ten years imprisonment without possibility of parole for a period of five years pursuant to Act 181, and to a concurrent term of five years in Cr. No. 50479 (burglary in the second degree). Defendant Freitas appeals from the judgment and sentence of the circuit court.

On March 7, 1978, defendant Karren, in Cr. No. 50301, Circuit Court of the First Circuit, entered a plea of guilty to burglary in the first degree, HRS § 708-810(1)(c). At his sentencing hearing on April 19, 1978, the State moved for the invocation of the provisions of Act 181 and sought a continuance of the proceedings in order that witnesses from the island of Hawaii could appear. The matter was continued over the objection of defense counsel until April 26, 1978. At that hearing the trial court specifically found that defendant Karren had been convicted of burglary in the first degree on December 11, 1973, and that he had been represented by counsel at the time of his prior conviction. The court thereupon sentenced the defendant to ten years imprisonment without possibility of parole for a period of five years. The defendant appeals.

The defendants have raised the following questions on appeal:

1. Are the due process safeguards of State v. Kamae, 56 Haw. 628, 528 P.2d 1200 (1976), applicable to sentencing proceedings under Act 181? If such safeguards are applicable, were the proceedings in these cases adequate?

2. Does the term "prior conviction" in Act 181 include convictions which occurred before the effective date of Act 181?

3. Is Act 181 unconstitutional in that it violates the prohibition against cruel and unusual punishment?

4. Is Act 181 unconstitutional in that it violates defendants' rights to equal protection?

5. Does Act 181 deny defendants due process by limiting the discretion of the trial court in sentencing?

6....

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