State v. Huelsman

• Citation: 60 Haw. 308,588 P.2d 394
• Decision Date: 13 December 1978
• Docket Number: No. 6219,6219
• Parties: , 60 Haw. 71 STATE of Hawaii, Plaintiff-Appellee, v. Russell A. HUELSMAN, also known as Russell Apo Huelsman, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 394

588 P.2d 394

60 Haw. 308, 60 Haw. 71

STATE of Hawaii, Plaintiff-Appellee, v. Russell A. HUELSMAN, also known as Russell Apo Huelsman,

Defendant-Appellant.

No. 6219.

Supreme Court of Hawai'i.

Dec. 13, 1978.

Rehearing Denied Jan. 5, 1979.

Syllabus by the Court

1. Hearing on extended term sentence is a two-step proceeding, in each step of which different procedural standards apply; determination of defendant's status as a member of the class of offenders subject to extended term sentencing is a separate criminal proceeding in which defendant is entitled to full panoply of relevant due process protections; determination that an extended term sentence should be imposed is subject to procedural standards applicable to ordinary sentencing. HRS §§ 706-662, 664.

2. Statute authorizing imposition of extended term sentences is subject to the standards of specificity applicable to ordinary sentencing criteria rather than those applicable to the definition of criminal offenses.

3. Statute which authorizes sentencing judge to select sentence which imposes appropriate punishment without safeguard against arbitrary and capricious action deprives defendant of due process in violation of Hawaii Constitution.

4. Statute which authorized imposition of extended term sentence when warranted by extent of defendant's criminality would give sentencing judge unguided discretion to select the sentence which provides the most appropriate punishment and would deprive the defendant of due process in violation of Hawaii Constitution.

5. Statute which authorizes sentencing judge to impose extended term sentence when necessary for protection of the public provides adequate safeguard against arbitrary and capricious action.

6. Statute which purports to authorize imposition of extended term sentence when warranted by extent of defendant's criminality will be construed as authorizing such sentence when necessary for protection of the public. HRS § 706-662(4).

7. When appeal is from extended term sentence, sentencing court shall enter into the record its reasons for imposing the sentence and all findings of fact necessary to its decision to impose the sentence, and record shall include the presentence report and all evidence considered by the sentencing court.

Edward R. Lebb, Honolulu (Ing, Lebb & Yano, Honolulu, of counsel), for defendant-appellant.

Charles Viviano, Sp. Deputy Pros. Atty., Honolulu (Roy K. S. Chang, Deputy Pros. Atty., Honolulu, on the brief), City and County of Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

This case is before us for the second time, on appeal from judgments and extended term sentences entered in four separate criminal cases, identified in the records of the First Circuit Court as Cr. Nos. 46516, 46518, 46527 and 46762. Appellant pleaded guilty to certain of the charges in each of these cases, in accordance with a plea bargain which resulted in dismissal of other pending charges. Upon his guilty plea, appellant was adjudged guilty of robbery in the second degree, a class B felony, in Cr. No. 46516 and Cr. No. 45618; of kidnapping, a class B felony, in Cr. No. 46762; and of kidnapping a class A felony, and assault in the first degree, a class B felony, in Cr. No. 46527. ¹ Appellant was sentenced to the extended term of imprisonment provided by HRS § 706-661 for each of these offenses; I. e., life for the class A felony and 20 years for each of the class B felonies, the sentences to run concurrently.

In the first appeal, State v. Huelsman, 56 Haw. 640, 548 P.2d 639 (1976), the sentences were vacated and the cases were remanded for further proceedings not inconsistent with our holdings in State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976). Upon remand, a consolidated hearing was held in these four cases pursuant to HRS § 706-664 and the same extended terms of imprisonment were again imposed. On this appeal, appellant asserts that HRS § 706-662(4), pursuant to which the extended term sentences were imposed, is unconstitutionally vague and uncertain on its face, that the hearing was not conducted in accordance with the standards prescribed in Kamae and that the imposition of extended term sentences was an abuse of discretion on the part of the trial court. We conclude that § 706-662(4), by its terms, purports to confer upon the sentencing court authority to engage in arbitrary and discriminatory selection of sentences in violation of the due process guarantee of the Hawaii Constitution. We therefore find it necessary to limit the discretion so conferred to cases in which the sentencing court determines that the commitment of the defendant for an extended term is necessary for protection of the public. Although § 706-662(4), as so construed, meets the standards of specificity applicable to a sentencing statute, we find it necessary to again vacate the sentences and to remand the case for resentencing in the light of this opinion.

I

The extended terms were imposed in these cases upon the ground specified in HRS § 706-662(4), ² which requires a finding that "the defendant is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted", and further provides by subparagraphs (a) and (b) that such a finding shall not be made by the court unless the defendant is being sentenced for two or more felonies or is already under sentence or imprisonment for felony, and unless the maximum terms of imprisonment authorized for each of the defendant's crimes if made to run consecutively would equal or exceed the maximum of the extended term imposed or would equal or exceed forty years if the extended term imposed is for a class A felony. There is no dispute that the subsidiary conditions of HRS §§ 706-662(4)(a) and (b) are satisfied by the record. However, the evidence offered by the prosecution to show that appellant's "criminality was so extensive that a sentence of imprisonment for an extended term is warranted" consisted solely of the testimony of six investigating police officers, only one of whom had observed any conduct of appellant. In Cr. No. 46762, the sole testimony offered with respect to the kidnapping was to the effect that a police officer found appellant in a car with the victim of the kidnapping in a position that suggested that appellant was engaged in sexual intercourse, and that the victim called for help when the officer was observed. In Cr. No. 46527, an officer testified that the victim had black eyes and bruises on her face when interviewed and that her male companion had been robbed of his wallet. In Cr. No. 46518, another officer testified that he interviewed the two robbery victims and later signed a complaint alleging that a knife was used in the robbery.

In announcing his findings at the conclusion of the hearing, the sentencing judge stated that he was aware only of the facts which came to him in court hearings and in the presentence report. The other hearings to which the court apparently referred were a hearing in which appellant changed his plea, a hearing on a motion for withdrawal of plea and the first extended term hearing. At the last-mentioned hearing, prior to the first appeal of these cases, the sentencing judge outlined his understanding from the presentence report (not included in the record before us) with respect to the incidents out of which the four cases arose, describing in considerable detail the conduct of appellant on each occasion. At the second extended term hearing, with which we are now concerned, the judge did not provide any statement of the facts upon which he relied, and provided only a conclusory finding, in each case, that "the evidence shows beyond a reasonable doubt that the defendant is a multiple offender whose criminality is so extensive that a sentence of imprisonment for an extended term is warranted as required under Section 662(4) of the Hawaii Penal Code."

II

The Hawaii Penal Code, which became effective January 1, 1973, attempted to ameliorate former discrepancies in sentences by providing only one possible maximum length of imprisonment for each class of felony, except for those involving special problems calling for extended terms of incarceration. HRS § 706-660 mandates the imposition of indeterminate maximum terms of imprisonment with the minimum length of each term to be determined by the board of paroles and pardons. For a class A felony the minimum term is 20 years; for a class B felony, 10 years; and for a class C felony, 5 years. By HRS § 706-661 it is provided that, in cases designated in HRS § 706-662, a person convicted of a felony may be sentenced to an extended indeterminate term of imprisonment, which for a class A felony shall be life; for a class B felony, 20 years; and for a class C felony, 10 years. HRS § 706-662, at all times relevant to this case, specified four classes of offenders who were subject to extended terms of imprisonment. A fifth class was added by the 1978 legislature to deal with offenders against the elderly or handicapped.

Each of the subsections of § 706-662 requires the trial court to engage in a two-step process to impose a sentence for an extended term. The first step involves a finding by the court that the defendant is within the class of offenders to which the particular subsection applies. Thus subsection (1) requires a finding that the defendant is a persistent offender, which finding shall not be made unless the defendant is at least 22 years of age and has previously been convicted of two felonies committed at different times when he was at least 18 years of age. Subsection (2) requires a finding that the defendant is a professional criminal, which finding shall not be made unless the defendant is at least 22 years of age and certain facts are shown by the circumstances of the crime or otherwise appear. Subsection (3) requires a finding...