State v. Kamae, 5559
| Decision Date | 22 March 1976 |
| Docket Number | No. 5559,5559 |
| Citation | 548 P.2d 632,56 Haw. 628 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Samuel KAMAE, III, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The hearing on an extended term sentence provided for in § 664 of the Hawaii Penal Code is a separate criminal proceeding apart from the trial of the underlying substantive offense.
2. In a hearing for the imposition of an extended term sentence, all relevant issues should be established by the state beyond a reasonable doubt.
3. Although appellant was convicted of robbery in the first degree and assault in the first degree and could have been sentenced to the ordinary terms, before the court could render extended term sentences, it was necessary for the court to find beyond a reasonable doubt after a hearing that appellant was a multiple offender whose criminality was so extensive that an extended term of imprisonment is warranted.
4. The ordinary rules of evidence should apply to a hearing on extended term sentence; it was error to admit into evidence a presentence report, which was substantially incompetent hearsay, over the objection of appellant.
5. The record was deficient in that it did not show that appellant was represented by counsel during any of the alleged prior offenses of which he was convicted or that he intelligently and voluntarily waived his constitutional right to counsel.
Mark M. Nomura, Deputy Public Defender, Honolulu (Donald K. Tsukiyama, Public Defender, Honolulu, of counsel), for defendant-appellant.
Adrienne Sepaniak, Deputy Pros. Atty., Honolulu , for plaintiff-appellee.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
These two criminal cases, identified in the records of the court below as Cr. No. 45581, and Cr. No. 45583, have been consolidated for the purpose of appeal and are before us for the second time. In the first appeal we allowed Samuel Kamae, III, defendant-appellant (hereinafter appellant), to appeal each of these cases in forma pauperis on their merits. State v. Kamae, 56 Haw. 32, 526 P.2d 1200 (1974). We are now concerned with whether the court below accorded to the appellant due process during the proceedings when he was imposed extended term sentences.
In Cr. No. 45581, the record shows that the appellant was charged in a three-count indictment with the offense of robbery in the first degree in violation of section 708-840(1)(b)(ii) of the Hawaii Revised Statutes, the offense of kindnapping in violation of section 707-720(1)(c) of the Hawaii Revised Statutes, and the offense of sexual abuse in the first degree in violation of section 707-736(1)(a) of the Hawaii Revised Statutes. In Cr. No. 45583, the record shows that the appellant was charged in the indictment with the offense of attempted murder in violation of sections 705-500, and 707-701 of the Hawaii Revised Statutes. Although the indictments do make reference to sections of the Hawaii Revised Statutes (HRS) there are no sections so designated in the HRS or its supplements covering robbery in the first degree, kidnapping, sexual abuse in the first degree or attempted murder. The indictments must therefore refer to the Hawaii Penal Code, hereinafter referred to as code, which was enacted by Act 9, S.L.H.1972, and became effective as of January 1, 1973, more than two months before the alleged offenses occurred. This code has not yet been printed in the supplements to HRS (see Vol. 7 HRS, Supp.1975, p. 393) so all references to the code will be to section 1, Act 9, S.L.H.1972, and to the sections contained therein.
On May 11, 1973, appellant was arraigned and pleas of not guilty were entered to all of these charges.
On August 2, 1973, appellant appeared in the court below and requested that he may be allowed to withdraw his pleas of not guilty entered as to count one, robbery in the first degree, in Cr. No. 45581, and entered as to the charge of attempted murder in Cr. No. 45583. After the court granted appellant's request he entered a plea of guilty to the charge of robbery in the first degree in Cr. No. 45581; and he also entered a plea of guilty to a charge of assault in the first degree in Cr. No. 45583, the state having agreed that appellant could plead guilty to this lesser included offense to the charge contained therein of attempted murder.
In the same proceedings mentioned above, counsel for appellant informed the court that the other two counts contained in the indictment in Cr. No. 45581 were to be dismissed by the state, along with another peinding criminal action against appellant, Cr. No. 45582, larceny in the first degree. The prosecutor indicated that he had so agreed.
Before the proceedings concluded, appellant attempted to have the court sentence him immediately based upon the two convictions, and stated that he would waive a presentence diagnosis and report by the probation office. The court, however, refused to sentence the appellant to the ordinary maximum terms of imprisonment and revealed that it should consider the imposition of extended terms of imprisonment. Appellant then requested that a presentence diagnosis and report be furnished.
A hearing was held on September 19, 1973, on the imposition of the extended term sentences under the relevant sections of the code. 1 In that hearing the sole and only evidence presented by the state to prove the existence of the ground justifying imposition of extended term sentences was the presentence diagnosis and report prepared by the probation office for Cr. No. 45581. Such a report was received in evidence, notwithstanding the objection by appellant. That report showed appellant's alleged adult criminal record on pages 6, 7 and 8. It also indicated that appellant had been referred to the juvenile court about twenty times since he was nine years of age and that, as a juvenile, he was incarcerated at the Hawaii Youth Correctional Facility.
On this record the court made a finding required by § 662(4) of the code that appellant is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted. After making that finding, the court below sentenced the appellant to life imprisonment based upon his robbery first degree conviction and to 20 years imprisonment based upon his assault in the first degree conviction, both sentences to be served concurrently.
Our code provides that robbery in the first degree is a class A felony 2 and that assault in the first degree is a class B felony. 3 The code further provides in § 660 as follows:
'Sec. 660-Sentence of imprisonment for felony; ordinary terms.
A person who has been convicted of a felony may be sentenced to an indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
(1) For a class A felony-20 years;
(2) For a class B felony-10 years; and
(3) For a class C felony-5 years.
The minimum length of imprisonment shall be determined by the board of paroles and pardons in accordance with section 669.'
Under the provisions of the code 4 a person who has been convicted of a class A felony may be sentenced to an extended term of imprisonment for life, and a person who has been convicted of a class B felony may be sentenced to an extended term of imprisonment for 20 years. We quote the precise language of § 662 of the code under which the appellant was found to be a multiple offender:
'Sec. 662-Criteria for sentence of extended term of imprisonment for felony.
The court may sentence a person who has been convicted of a felony to an extended term of imprisonment if it finds one or more of the grounds specified in this section. The finding of the court shall be incorporated in the record.
(1) Persistent offender. The defendant is a persistent offender whose commitment for an extended term is necessary for protection of the public. The court shall not make such a finding unless the defendant is 22 years of age or older and has previously been convicted of two felonies committed at different times when he was 18 years of age or older.
(2) Professional criminal. The defendant is a professional criminal whose commitment for an extended term is necessary for protection of the public. The court shall not make such a finding unless the defendant is 22 years of age or older and:
(a) The circumstances of the crime show that the defendant has knowingly devoted himself to criminal activity as a major source of livelihood; or
(b) The defendant has substantial income or resources not explained to be derived from a source other than criminal activity.
(3) Dangerous person. The defendant is a dangerous person whose commitment for an extended term is necessary for protection of the public. The court shall not make such a finding unless the defendant has been subjected to a psychiatric examination resulting in the conclusion that his criminal conduct has been characterized by compulsive, aggressive behavior with heedless indifference to consequences, and that such condition makes him a serious danger to others.
(4) Multiple offender. The defendant is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted. The court shall not make such a finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or
(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed 40 years if the extended term imposed is for a class A felony.'
Initially, the hearing in the court below on the extended terms was predicated on subsection (1) of § 662 of the code. The state attempted to show that appellant was a...
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