State v. Kaua, 25147.

Citation102 Haw. 1,72 P.3d 473
Decision Date08 July 2003
Docket NumberNo. 25147.,25147.
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Wayman KAUA, Defendant-Appellee.
CourtSupreme Court of Hawai'i

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, for the defendant-appellant Wayman Kaua.

Loren J. Thomas, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, JJ., and Intermediate Court of Appeals Judge LIM, Assigned by Reason of Vacancy.

Opinion of the court by LEVINSON, J.

The defendant-appellant Wayman Kaua appeals from the findings of fact (FOFs), conclusions of law (COLs), and order of the first circuit court, the Honorable Gail C. Nakatani presiding, filed on May 6, 2002, denying Kaua's motion for correction of illegal sentence. On appeal, Kaua's sole point of error is that the circuit court erred in denying his motion for correction of illegal sentence, based on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

As we discuss more fully infra in Section III, we believe that Kaua's argument is without merit. Accordingly, we affirm the circuit court's FOFs, COLs, and order denying Kaua's motion for correction of illegal sentence, filed on May 6, 2002.

I. BACKGROUND

The present matter arose out of an incident that occurred on October 29, 1999, involving a hostage stand-off between Kaua and several Honolulu Police Department (HPD) officers during the execution of a warrant for Kaua's arrest. On March 3, 1999, an O'ahu Grand Jury indicted Kaua, charging him with the following offenses: (1) attempted murder in the first degree, in violation of Hawai`i Revised Statutes (HRS) §§ 705-500 (1993) and 707-701(1)(a) (1993) (Count I); (2) attempted murder in the first degree, in violation of HRS §§ 705-500 and 707-701(1)(b) (1993) (Counts II-IV); (3) kidnapping, in violation of HRS § 707-720(1)(b) (1993) (Count V); (4) kidnapping, in violation of HRS § 707-720(1)(e) (1993) (Count VI); (5) kidnapping, in violation of HRS § 707-720(1)(f) (1993) (Count VII); (6) terroristic threatening in the first degree, in violation of HRS § 707-716(1)(d) (1993) (Count VIII); (7) possession of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (Supp. 1999) (Count IX); (8) reckless endangering in the first degree, in violation of HRS § 707-713 (1993) (Counts X-XII); and (9) carrying or use of firearm in the commission of a separate felony, in violation of HRS § 134-6(a) and (e) (Supp.1999) (Count XIII).

Kaua's jury trial commenced on November 4, 1999 before the Honorable Wendell K. Huddy. On November 22, 1999, the jury acquitted Kaua of the offense of attempted murder in the first degree (Count I). The jury, however, returned the following guilty verdicts as to: (1) the lesser included offense of attempted assault in the first degree (Count II); (2) the lesser included offense of reckless endangering in the first degree (Count III); (3) the lesser included offense of attempted manslaughter based upon extreme mental or emotional disturbance (EMED) (Count IV); (4) kidnapping (Count V); (5) the lesser included offense of unlawful imprisonment in the second degree (Count VI); (6) kidnapping (Count VII); (7) terroristic threatening in the first degree (Count VIII); (8) possession of any firearm or ammunition by a person convicted of certain crimes (Count IX); (9) reckless endangering in the first degree (Counts X-XII); and (10) carrying or use of a firearm in the commission of a separate felony (Count XIII).

With respect to Counts V-VII, the jury found that Kaua voluntarily released the hostage taken during the subject incident in a safe place prior to trial, thereby reducing the offense of kidnapping from a class A felony to a class B felony, pursuant to HRS § 707-720(3) (1993). With respect to Counts V-VIII and X-XII, the jury found that Kaua possessed and used or threatened to use a semiautomatic firearm during the commission of the offense of kidnapping. Finally, the circuit court merged Counts V and VII (kidnapping) and Count VI (unlawful imprisonment in the second degree) with Count XIII (carrying or use of a firearm in the commission of a separate felony).

On January 12, 2000, the prosecution filed a motion for extended terms of imprisonment, pursuant to HRS § 706-662(4)(a) (Supp.1999),1 on the basis that Kaua was a "multiple offender" and that his criminality was so extensive that extended terms of imprisonment were necessary for the protection of the public.2 On February 1, 2000, the circuit court conducted a hearing on the prosecution's motion for extended terms of imprisonment, at which Kaua stipulated to, and the circuit court took judicial notice of, (1) his prior conviction in Cr. No. 90-19963 and (2) the offenses in Counts II-XIII of which he was convicted in the present matter. At the hearing, the prosecuting attorney (PA) argued that Kaua's extensive criminal history, which extended from his childhood to adulthood, violent characteristics, life-threatening use of firearms, and history of substance abuse warranted extended terms of imprisonment with respect to Counts II-IV and VIII-XIII. Moreover, the PA emphasized that, to date, probation, parole, and rehabilitative treatment facilities had proven unsuccessful in deterring Kaua's criminal behavior and, therefore, urged the circuit court, within its discretion, to sentence Kaua to a term of life imprisonment with the possibility of parole. Defense counsel responded that no victim of Kaua's past crimes had sustained any physical injury from his criminal acts and that, although "his history and circumstances are not consistent with being a law-abiding citizen," Kaua's criminal record did not reflect "the multiplicity and the length" typical of convicted felons who had been sentenced to extended terms of imprisonment. Consequently, defense counsel requested that the circuit court sentence Kaua to a twenty-year indeterminate maximum term of imprisonment, subject to a fifteen-year mandatory minimum term. The PA retorted that the evidence adduced at Kaua's jury trial — namely, the fact that he took a woman hostage and fired several gunshots at HPD officers in an effort to avert the officers' attempt to execute a warrant for his arrest — substantially belied defense counsel's suggestion that "[Kaua] did not ever hurt anyone." Finally, the PA posited that imposing a twenty-year term of imprisonment in the present matter would, in effect, be sentencing Kaua as a "first-time offender."

[PA]: If a person walked into a convenience store, pointed a semiautomatic gun at that person and said[,]["]I want your money,["] and walks out of there, that person would get a 20-year term, 15 years without possibility of parole, not somebody who has distinguished themselves with three felony convictions, including two hostage-takings, [which is] probably a first in the state of Hawai`i.

In light of the foregoing arguments, the circuit court granted the prosecution's motion for extended terms of imprisonment, remarking as follows:

On the Motion for Sentencing to Extended Terms of Imprisonment, as far as the first prong is concerned, that is, whether or not [Kaua] qualifies, again, [Kaua] has conceded. He is a multiple offender, and he was represented by legal counsel. All of those facts have been proven by the prosecution beyond a reasonable doubt.

On the discretionary matters, first, on the motion for Extended Term of Imprisonment, discretionary is [whether] such term [is] necessary for the protection of the public.

....
Defendant's history suggests the following; from an early age, alcoholism, substance abuse. And the substance abuse is of great concern, because as a youth, it went from marijuana to cocaine, opiates, and then crystal methamphetamine. The use sometimes was sporadic. But when [Kaua] abused the drugs, it was very severe. And undoubtedly, in the days or weeks surrounding these offenses and perhaps shortly before these offenses, [Kaua] was abusing drugs in the court's judgment.
Now, his history also suggests assaultive behavior, threatening behavior. We have abuse of household member, terroristic threatening, other incidents which have been reported or mentioned by the prosecution. Basically, it's the court's conclusion that while under the influence or while under extreme stress, [Kaua] is unable to control his behavior. And that impairment has brought about assaultive behavior as well as threatening behavior.

Of more concern is ... his access to firearms. Before these incidents, [Kaua] did have a firearm conviction. And reportedly on other occasions, he resorted to use of firearms, although in one incident, I understand that it's been disputed. And, of course, in the incidents before the court, [Kaua] used an assault rifle.

....
Now, as I recited this history, I can only reach a conclusion that in balancing all of these factors and in rendering this sentence, I'm considering the interest of the community, and I'm also considering the interest of the individual. For [Kaua], I do want to give him some hope. For his family, I want to give them some hope. For the community, I also want to give some protection, because basically it does come down to the individual.
And I don't agree with the defense that it was only [Kaua] who was hurt in this incident.[4] He used a rifle at a long range, and I do not believe that [Kaua] was experienced with use of that assault rifle. Shooting at a long range with people in the vicinity, without any kind of experience—and certainly he didn't show any kind of experience; otherwise, he would have hit that police officer who was hiding behind his vehicle—other people could have been hurt by wild shots. And these were shots in the direction of a police officer, and I ... think that [Kaua] knew that it was a police officer who was there. Certainly[,] he had the
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