State v. Jess

• Decision Date: 31 March 2008
• Docket Number: No. 28483.,28483.
• Citation: 184 P.3d 133,117 Hawai'i 381
• Parties: STATE of Hawai'i, Plaintiff-Appellant, v. Brian JESS, Defendant-Appellee.
• Court: Hawaii Supreme Court

184 P.3d 133

117 Hawai'i 381

STATE of Hawai'i, Plaintiff-Appellant, v.Brian JESS, Defendant-Appellee.

No. 28483.

Supreme Court of Hawai'i.

March 31, 2008.

As Corrected April 4, 2008.

Reconsideration Denied April 18, 2008.

Mark J. Bennett, Attorney General, (Dorothy Sellers, Solicitor General, Girard D. Lau, First Deputy Solicitor, General, and Kimberly, Tsumoto Guidry, Deputy, Solicitor General, on the briefs), for amicus curiae State of Hawai`i.

David Glenn Bettencourt, Honolulu, for the defendant-appellee, Brian Jess.

Daniel H. Shimizu, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellant State of Hawai`i.

Tracy Murakami, Deputy Prosecuting Attorney, on the briefs, for amicus curiae Prosecuting Attorney, County of Kaua`i.

Richard K. Minatoya, Deputy Prosecuting Attorney, for amicus curiae Benjamin Acob, Attorney, County of Maui.

MOON, C.J., LEVINSON, and DUFFY, JJ., NAKAYAMA, J., Concurring and DissentingSeparately, and ACOBA, J., Dissenting Separately.

Opinion of the Court by LEVINSON, J.

On October 6, 2004, the defendant-appelleeBrian Jess filed a 28 U.S.C. § 2254(1996)¹petition for a writ of habeas corpus in the United States District Court for the District of Hawai`i.In his petition, Jess alleged that the extended term sentence that the circuit court of the first circuit, the Honorable Victoria S. Marks presiding, imposed upon him on May 7, 2001,² pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661(Supp.1999),³ 706-662(1), 706-662(4)(a)(Supp.1996),⁴ and 706-664 (1993)⁵ was, in light of Apprendi v New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), and its progeny, in violation of his right to a jury trial as provided by the sixth amendment to the United States Constitution.SeeJess v. Peyton,No. Civ. 04-00601JMS/BMK, 2006 WL 1041737, at *1-*2(D. Haw.April 18, 2006)(Jess II).On April 18, 2006, the United States District Court granted Jess's petition, concluding that the finding made by the circuit court, i.e., that an extended term was necessary for the protection of the public [hereinafter, "the necessity finding"], violated his sixth amendment right to a trial by jury as articulated in Apprendi.Id. at *4.The district court ordered the circuit court to resentence Jess in a manner consistent with that conclusion.Id. at *6.The reserved question before this court stems, ultimately, from that order, and reads as follows:

May the trial court, as part of a sentencing proceeding brought pursuant to Section 706-662(1) & (4), H.R.S., empanel a jury to make a factual finding to determine whether the prosecution has proven beyond a reasonable doubt that the defendant's commitment for an extended term of incarceration is necessary for the protection of the public?

The issue raised by the reserved question was addressed in part in our recent decision in State v. Maugaotega,115 Hawai`i 432, 168 P.3d 562(2007), [hereinafter, "Maugaotega II"].Based upon Maugaotega II and the analysis infra,we answer the reserved question as follows:

Although the two-count complaint filed by the prosecution on March 2, 2000 against the defendant-appelleeBrian Jess did not charge the "aggravated crimes" described in HRS § 706-662, seeCunningham v. California,549 U.S. 270, 127 S.Ct. 856, 864(2007), the circuit court nevertheless has authority to impose extended terms of imprisonment upon Jess pursuant to the provisions of HRS § 706-662, because our decision to require the allegation of aggravating extrinsic facts in a charging instrument applies prospectively only.Furthermore, insofar as the circuit court possesses the inherent judicial authority "to provide process where none exists,"State v. Moriwake,65 Haw. 47, 55, 647 P.2d 705, 711-12(1982), and the legislature, by amending Hawaii's extended term sentencing laws to include jury fact-finding, has clearly expressed its approval of a jury system for making the required findings in order to bring the extended sentencing procedures into compliance with Cunningham,⁶the circuit court would act within its discretion if, pursuant to HRS §§ 706-662(1) and 706-662(4)(Supp. 1996), it empaneled a jury to make a factual finding as to whether the prosecution has proved beyond a reasonable doubt that a defendant's commitment for an extended term or terms of imprisonment is necessary for the protection of the public.Finally, in light of the plain language of Act 1, seesupra notes 3-6, and the remedial nature of its amendments, the circuit court can also empanel a jury to make the same factual finding with respect to a defendant pursuant to HRS §§ 706-662, as amended by Act 1.

I.BACKGROUND

A.Initial Proceedings In The Circuit Court And This Court

On March 2, 2000, the plaintiff-appellantState of Hawai`i[hereinafter, "the prosecution"] charged Jess by complaint with robbery in the first degree, in violation of HRS § 708-840(1)(b)(ii)(Supp.1998)(Count I), and unauthorized control of a propelled vehicle, in violation of HRS § 708-836 (Supp.1999)[hereinafter, "UCPV"](Count II), both charges arising out of an incident wherein Jess robbed a taxi driver at knifepoint and took the vehicle.The complaint specifically alleged:

COUNT I: On or about the 23rd day of February, 2000, in the City and County of Honolulu, State of Hawai[`]i, BRIAN JESS, while in the course of committing a theft and while armed with a dangerous instrument, to wit, a knife, did threaten the imminent use of force against Canh Tran, a person who was present with intent to compel acquiescence to the taking of or escaping with the property, thereby committing the offense of Robbery in the First Degree, in violation of Section 708-840(1)(b)(ii) of the Hawai[`]i Revised Statutes.

COUNT II: On or about the 24th day of February, 2000, in the City and County of Honolulu, State of Hawai[']i, BRIAN JESS, did intentionally or knowingly exert unauthorized control over a propelled vehicle, by operating the vehicle without the consent of Canh Tran, owner of said vehicle, thereby committing the offense of Unauthorized Control of Propelled Vehicle, in violation of Section 708-836 of the Hawai[']i Revised Statutes.

On December 4, 2000, a jury found Jess guilty of both counts.On January 10, 2001, the prosecution filed motions (1) to sentence Jess as a repeat offender, pursuant to HRS § 706-606.5 (Supp.1999), to a mandatory minimum sentence of six years and eight months imprisonment, (2) for an extended term of imprisonment of life with the possibility of parole as to Count I, pursuant to HRS §§ 706-661, 706-662(1), and 706-662(4)(a)(Supp.1996), and (3) for the sentences on the two counts to be served consecutively pursuant to HRS § 706-668.5(1993).On May 7, 2001, the circuit court, the Honorable Victoria S. Marks presiding, entered a judgment of conviction and sentenced Jess to an extended term of life imprisonment with a mandatory minimum term of one year and eight months as to Count I and an extended term of ten years with a mandatory minimum term of one year and eight months as to Count II, the two sentences to run concurrently.⁷

On July 9, 2001, Jess filed a motion for reconsideration of sentence, which the circuit court denied on July 31, 2001.Jess had previously filed a notice of appeal to this court on June 6, 2001, and, on September 26, 2003, this court filed a summary disposition order affirming the circuit court's judgment and sentence, concluding, inter alia, that Jess's extended term sentences were not unconstitutional under Apprendi(citingState v. Kaua,102 Hawai`i 1, 12-13, 72 P.3d 473, 484-85(2003)).SeeState v. Jess,No. 24339, 102 Hawai`i 527, 78 P.3d 340, 2003 WL 22221386(Haw.Sept.26, 2003)(Jess I).

B.Habeas Corpus Proceedings In Federal Court

On October 6, 2004, Jess filed the petition for a writ of habeas corpus in the United States District Court, seeking to vacate the extended term sentences.Jess II,2006 WL 1041737, at *2.In granting the petition, the United States District Court concluded that it was bound by the holding of the United States Court of Appeals for the Ninth Circuit in Kaua v. Frank,436 F.3d 1057(9th Cir.2006), that Hawaii's extended term sentencing scheme violated Apprendi and that, in the instant matter, the violation did not constitute harmless error.Jess II,2006 WL 1041737, at *1.

C.Proceedings On Remand From Federal Court

On July 31, 2006, the prosecution filed its second motion in the first circuit court to resentence Jess to an extended term of imprisonment on Count I in a manner consistent with the order of the United States District Court by empaneling a jury to make the necessity findings required by HRS §§ 706-662(1) and 706-662(4)(a).In the declaration of counsel submitted in support of the motion for an extended term of imprisonment, after reciting Jess's prior convictions, counsel averred:

30.[Jess] is a "persistent offender" and a "multiple offender" whose commitment for an extended term is necessary for the protection of the public because of the following facts:

a. [Jess] was on probation in [another criminal matter] when he committed the instant offenses.

b. [Jess] has an extensive criminal history.

c. [Jess]'s criminality has continued despite his prior contacts with the criminal justice system.

d. [Jess] has failed to benefit from the criminal justice system.

e. [Jess] has demonstrated a total disregard for the rights of others and a poor attitude toward the law.

f. [Jess] 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 the law.

g. Due to the quantity and seriousness of [Jess]'s past convictions and the seriousness of the instant offenses, [Jess] poses a serious threat to the community and his long term incarceration is necessary for the protection of the public.

On October 5, 2006, Jess filed an amended motion to preclude empaneling a jury, arguing, inter...