State v. Heggland

• Decision Date: 08 August 2008
• Docket Number: No. 27755.,27755.
• Citation: 193 P.3d 341,118 Hawai'i 425
• Parties: STATE of Hawai`i, Respondent/Plaintiff-Appellant v. Gregory HEGGLAND, Petitioner/Defendant-Appellee.
• Court: Hawaii Supreme Court

193 P.3d 341

118 Hawai'i 425

STATE of Hawai`i, Respondent/Plaintiff-Appellant v. Gregory HEGGLAND, Petitioner/Defendant-Appellee.

No. 27755.

Supreme Court of Hawai`i.

August 8, 2008.

Reconsideration Denied October 10, 2008.

Taryn R. Tomasa, Deputy Public Defender, for petitioner/defendant-appellee.

Anson K. Lee, (Dakota K. Frenz with him on the opening brief), Deputy Prosecuting Attorneys, County of Hawai`i, for respondent/plaintiff-appellant.

LEVINSON, NAKAYAMA, and DUFFY, JJ.; MOON, C.J., concurring in the result only; and ACOBA, J., concurring separately.

Opinion of the Court by DUFFY, J.

Petitioner/Defendant Gregory Heggland seeks review of the November 27, 2007 judgment of the Intermediate Court of Appeals (ICA), which vacated the sentence portion of the Circuit Court of the Third Circuit's January 17, 2006 judgment,¹ and remanded the case to the circuit court to resentence Heggland. We accepted Heggland's application for a writ of certiorari and now vacate the judgment of the ICA and remand the case to the circuit court for resentencing.

I. BACKGROUND

A. Factual and Procedural Overview

On May 13, 2004, Heggland was indicted for two counts of drug-related crimes allegedly committed on August 28, 2003: Promoting a Dangerous Drug in the Third Degree, in violation of HRS § 712-1243(1) (Supp. 2003) [hereinafter PDD] and Prohibited Acts Related to Drug Paraphrenalia, in violation of HRS § 329-43.5(a) (Supp.2003). Heggland pled guilty to both counts.

The prosecution moved to sentence Heggland to a mandatory minimum term of imprisonment of one year and eight months pursuant to HRS § 706-606.5,² on the ground that Heggland was a repeat offender based on a prior offense in Colorado. The circuit court denied the motion, concluding that the prosecution had failed to adduce sufficient evidence of Heggland's Colorado conviction and of the fact that he was represented by counsel or waived his right to representation by counsel at the time of his prior conviction.

B. Motion to Impose Mandatory Term of Imprisonment

1. Arguments and Stipulations in the Sentencing Motion

On October 31, 2005, the state filed a "Motion to Impose Mandatory Term of Imprisonment, Pursuant to [HRS § 706-606.5], as Amended," requesting that Heggland be subject to a mandatory minimum term of imprisonment of one year and eight months, as required by HRS § 706-606.5(1)(a)(iv) for applicable PDD charges. The prosecution contended that the proviso in HRS § 706-606.5(2)(f), which only allows mandatory minimum sentencing for offenses committed "within the maximum term of imprisonment possible after a prior felony conviction of another jurisdiction," did not preclude imposition of a mandatory minimum sentence in this case, based on the following two grounds (nos. 3 and 4 of 7 asserted grounds):

3. At the time the Defendant committed the offenses in the instant case, he had prior felony conviction in Colorado (Department of Corrections No. 110596) for Conspiracy to Commit Aggravated Robbery;

4. The maximum term of imprisonment for this prior felony conviction in Colorado was November 21, 2004.

A sentencing hearing was held on November 2, 2005, but was continued until December 7, 2005 at the request of defense counsel.³ On December 5, 2005, the prosecution filed a sentencing memorandum containing six stipulations made by Heggland in the November hearing. The following stipulations are relevant to this appeal:

3. At the time the Defendant committed the offenses in the instant case, he had prior [sic] felony conviction in Colorado (Department of Corrections No. 110596) for Conspiracy to Commit Aggravated Robbery;

....

5. At the time of the present offense he was on parole for a prior felony conviction in Colorado for Conspiracy to Commit Aggravated Robbery until November 21, 2004.

6. Up until November 21, 2004, his parole could have been revoked.

In addition to reducing these stipulations to writing, the prosecution: (1) asked the court to take judicial notice of (a) the date on which the PDD offense occurred (August 28, 2003), and (b) the fact that the Colorado offense for which Heggland had been convicted was a class 4 felony with a maximum sentence of six years with a mandatory minimum period of parole of three years, under Colorado Statute section 18-1.3-401(1)(a)(V); and (2) notified the court that it intended to call Heggland's parole officer Reggie Une to testify to (a) the date of conviction for Heggland's Colorado crime and (b) the fact that Heggland "could have been retaken and sent back to prison until November 21, 2004," which it called the "`control and discharge' date" for the conviction.

The prosecution also argued that HRS § 706-606.5 applies to Heggland, because his prior conviction fell within the proviso of HRS § 706-606.5(2)(f). Specifically, the prosecution stated that

The Defendant is subject to a mandatory minimum term of imprisonment of one year and eight months for [PPD] because under HRS Section 706-606.5(2)(f), it was committed on August 28, 2003, "within the maximum term of imprisonment possible" after his prior felony conviction from Colorado (before November 21, 2004). Even if the Court, uses the maximum term of imprisonment (six years from Defendant's sentence on November 14, 1997 = November 13, 2003) and ignores the mandatory period of parole Defendant still committed the crimes in this case, Defendant committed this crime on August 28, 2003 (before November 13, 2003).

2. Evidence of Prior Conviction

In its per curiam opinion, ICA stated the following with respect to the evidence of Heggland's prior Colorado conviction:

The State offered two exhibits into evidence. Exhibit 1, which was received into evidence without objection, appears to be a printout, downloaded from the Internet, of various Colorado laws related to sentencing in criminal cases. Exhibit 2 consists of two documents,⁵ the first appearing to be a summary of information about a case against Heggland in Colorado and the second, a certified copy of an instrument entitled "Information" that was filed against Heggland in Colorado. Heggland's counsel and the circuit court had questions about Exhibit 2:

THE COURT:—this looks like a Colorado rap sheet.

[DEFENSE COUNSEL]: It appears to be the minutes, uh, and I'm not sure that is considered a judgment.

THE COURT: I don't know what it is. All I know the end certifies to be a true and correct copy by the clerk of the District Court or County Court.

[DEPUTY PROSECUTOR]: Your Honor, if I may. My understanding of this is that this is a copy or a certified copy of, uh, for want of a better word, uh, the abstract showing the arrest and the conviction in Colorado.

THE COURT: Okay, [Defense Counsel]?

[DEFENSE COUNSEL]: Your Honor, the—I think the case law says they have to show a valid prior conviction.

THE COURT: But isn't that what you stipulated to?

[DEFENSE COUNSEL]: That he was—uh, that he has a prior conviction for conspiracy to commit aggravated robbery, yes.

THE COURT: I don't see in the stipulation anywhere with respect to when he was convicted.

[DEPUTY PROSECUTOR]: Well, the document would bear that out, Judge.

THE COURT: Well, if I admit it.

[DEPUTY PROSECUTOR]: Yes. Your Honor, if necessary, I can put Mr. [Reginald] Une [(Une or Mr. Une)] on for proof of that fact.

THE COURT: What is he going to testify to?

[DEPUTY PROSECUTOR]: He would testify that based on his review of the case file that—

THE COURT:—I would expect that some kind of a certified court document from Colorado with respect to evidence of conviction if the dates are in question.

[DEPUTY PROSECUTOR]: Well, yes, Your Honor, that's what Exhibit Number 2 is, but I think the Court is saying what if I don't accept it.

THE COURT: I mean if these are minutes, I don't know if we can use minutes even in our court of our own convictions to prove convictions.

[DEPUTY PROSECUTOR]: I would submit, Your Honor, that this is an abstract that has been certified as being a correct copy of the original on file.

THE COURT: Abstract of court records?

[DEPUTY PROSECUTOR]: Yes. I will represent to the Court that we got this from the court in Colorado.

THE COURT: So you think if you had to prove a conviction in our courts for repeat offender purposes, you could use something like CJIS [(Criminal Justice Information System)] even if it were certified?

[DEPUTY PROSECUTOR]: Not so much CJIS, Your Honor, but as far as I understand, any kind of official court record kept in the ordinary course of business.

THE COURT: Why don't you call Mr. Une. Is he here?

Une, Heggland's former parole officer, then testified. He stated that he supervised Heggland's parole for the Colorado conviction through an interstate compact. He assumed case supervision over Heggland in November 2001 and was informed then that the maximum supervision term for Heggland's parole ended on November 21, 2004, which was Heggland's "controlling discharge date." Une testified that if Heggland's parole were revoked prior to the controlling discharge date, he "could have been sent back" to prison. Une said that, based on his review of the documentation in the interstate compact packet that the State of Colorado sent, Heggland was convicted on November 14, 1997. Une also stated that no copy or certified copy of the judgment in Heggland's Colorado case was included in the documentation sent by Colorado.

⁵ The heading at the top of the first page of the first document of Exhibit 2 reads, "Integrated Colorado Online Network (ICON)[,]" and the last page includes a certification by a deputy clerk of the District/County Court of El Paso County, Colorado that the document is a true and correct copy of the original in the custody of the clerk of the court. The first document appears to be a summary of information about a case captioned, "The People of Colorado vs EGGLAND [sic], GREGORY[,]" and includes many esoteric abbreviations. The document suggests, however, that Defend...