State v. Rivera

• Decision Date: 22 December 2004
• Docket Number: No. 26199.,26199.
• Citation: 102 P.3d 1044,106 Haw. 146
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Larry RIVERA, Defendant-Appellant.
• Court: Hawaii Supreme Court

102 P.3d 1044

106 Haw. 146

STATE of Hawai'i, Plaintiff-Appellee, v.Larry RIVERA, Defendant-Appellant.

No. 26199.

Supreme Court of Hawai'i.

December 22, 2004.

James S. Tabe, deputy public defender, on the briefs, for the defendant-appellantLarry Rivera.

James M. Anderson, deputy prosecuting attorney, on the briefs, for the plaintiff-appelleeState of Hawai'i.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.; and ACOBA, J., dissenting with whom DUFFY, J. joins.

Opinion of the Court by LEVINSON, J.

The defendant-appellantLarry Rivera appeals from the judgment of the circuit court of the first circuit, the Honorable Derrick H.M. Chan presiding, filed on October 8, 2003, convicting him of and sentencing him for the following offenses: (1) promoting a dangerous drug in the third degree, in violation of Hawai'i Revised Statute (HRS) § 712-1243(1993& Supp.2003);¹(2) unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a)(1993);² and (3) promoting a detrimental drug in the third degree, in violation of HRS § 712-1249(1993).³On appeal, Rivera contends that the circuit court erred as follows: (1) in granting the motions of the State of Hawai'i[hereinafter, "the prosecution"] for (a) an extended term of imprisonment as a "persistent offender," pursuant to HRS § 706-662(1)(1993& Supp.2003),⁴ and (b) extended terms of imprisonment as a "multiple offender," pursuant to HRS § 706-662(4)(a)(1993& Supp.2003), seesupra note 4, inasmuch as the jury did not decide that such extended terms of imprisonment were necessary for the protection of the public, and, therefore, the extended term sentences imposed by the circuit court ran afoul of 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), compelling this court to "strike down Hawaii's extended term sentencing scheme and to overrule State v. Kaua,102 Hawai'i 1, 72 P.3d 473(2003)[,] and State v. Hauge,103 Hawai'i 38, 79 P.3d 131(2003)";⁵ and (2) in sentencing him to a mandatory minimum term of imprisonment of three years and four months for his conviction of unlawful use of drug paraphernalia, pursuant to HRS § 329-43.5(a), inasmuch as unlawful use of drug paraphernalia is not one of the enumerated class C felonies in HRS § 706-606.5(1993& Supp.2003).⁶

The prosecution counters, inter alia, that (1) Rivera was properly sentenced to extended terms of imprisonment because (a) HRS §§ 706-662(1) and (4) pass constitutional muster under Apprendi and Kaua, and (b)the United States Supreme Court's decision in Blakely v. Washington,___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004), does not alter this court's holding in Kaua, and (2) the record demonstrates that Rivera was properly sentenced as a repeat offender.

Rivera responds that "pursuant to the United States Supreme Court's recent decision in Blakely v. Washington, the Hawai'i extended term sentencing scheme, which allows a judge to find enhancement facts, denied [him] of his right to a jury trial."

We note that this court's analysis and decision in Kaua dispose of Rivera's first point of error on appeal.Accordingly, we would not address Rivera's argument that Kaua is unconstitutional in another published opinion were it not for Blakely, which was handed down on June 24, 2004 and cited by the prosecution in its answering brief and which affirms Apprendi and focuses on the defects of determinate sentencing guidelines.Thus, the present matter addresses the question whether Blakely calls the continuing viability of our analysis in Kaua into question.⁷

We hold that Hawai'i's extended term sentencing scheme is not incompatible with Blakely v. Washington, inasmuch as (1)Blakely addresses only statutory "determinate" sentencing "guideline" schemes, and (2)this court's "intrinsic-extrinsic" analysis culminating in Kaua is compatible with both Blakely and Apprendi.Additionally, we hold that the circuit court properly sentenced Rivera as a repeat offender.

I.BACKGROUND

On September 27, 2002, the prosecution charged Rivera by complaint with the following offenses: (1) promoting a dangerous drug (Count I), in violation of HRS § 712-1243, seesupra note 1;(2) unlawful use of drug paraphernalia (Count II), in violation of HRS § 329-43.5(a), seesupra note 2; and (3) promoting a detrimental drug in the third degree (Count III), in violation of HRS § 712-1249, seesupra note 3.The following facts were adduced at Rivera's jury trial, which commenced on July 10, 2003 and ended on July 11, 2003.

On September 19, 2002, at approximately 8:55 a.m., Recardo Basuil, a security guard posted at the Island Colony Hotel (the Hotel), responded to a report from the Hotel's front desk that there was someone sleeping on the twenty-sixth floor.Basuil proceeded to the twenty-sixth floor where he found Rivera sleeping in the hallway.Basuil approached Rivera and, within two feet of him, observed a small plastic bag and an "ice pipe" on the floor two inches from Rivera.Upon recognizing the two items as drug paraphernalia, Basuil directed the Hotel's front desk to notify the Honolulu Police Department(HPD).HPD Officers Choy, Nakasone, and Ho'okano thereafter arrived at the Hotel.Officer Choy approached Rivera, who was still sleeping in the hallway, and observed a glass pipe with a bulbous end and a clear plastic "baggy" with a marijuana leaf design printed on it on the floor beside him.Officer Choy took photographs of Rivera and the glass pipe and plastic baggy where they lay.Based on his training and experience, Officer Choy identified the glass pipe as being of the type used to heat crystal methamphetamine and inhale its vapors.Officer Choy also observed that the bulbous portion of the pipe contained a black and white residue, which he judged to be crystal methamphetamine after it has been heated.

Officer Ho'okano placed Rivera under arrest for the promotion of dangerous drugs in the third degree, and Officer Choy proceeded to conduct a search incident to Rivera's arrest.Officer Choy recovered a small plastic bag containing a leafy vegetable matter and a second small plastic bag containing a crystal-like substance from Rivera's front pocket.HPD criminalist Stacy Riede testified that, through testing, she determined that the leafy vegetable matter was marijuana and that the crystal-like substance was crystal methamphetamine.

On July 11, 2003, the jury returned a verdict of guilty as charged on all three counts.

On August 6, 2003, the prosecution filed the following motions: (1) a motion for extended terms of imprisonment as a multiple offender, pursuant to HRS § 706-662(4)(a), seesupra note 4;(2) a motion for extended term of imprisonment as a persistent offender, pursuant to HRS § 706-662(1), seesupra note 4; and (3) a motion for sentencing as a repeat offender, pursuant to HRS § 706-606.5, seesupra note 6.

The circuit court conducted a sentencing hearing on October 8, 2003, during which it considered the prosecution's two motions for extended terms of imprisonment and the motion for sentencing as a repeat offender.Rivera opposed the prosecution's motions, but expressly stated that he understood that "the repeat offender statute applies here and that this [c]ourt has an obligation to impose a mandatory minimum[.]"The circuit court granted all three of the prosecution's motions and orally sentenced Rivera as follows:

THE COURT: ...[A]lthough you come today and say that you [are] making good efforts, and I do commend you for that, I believe, in this particular instance, the [prosecution's] motion for extended term is warranted.So, therefore, the [prosecution's] motions for extended term[s][are] granted.I will not order the terms to be consecutive, but I think there has to be a point in your life for you to take a step forward [rather] than just applying to programs after your trial, and you take a step further.The extensive criminal history, I think it has to be checked and double checked, not by the system, but by yourself to make sure you try, and this is really what you want to do.

So, in Count 1, I'll sentence you to 10 years; in Count 2, 10 years; in Count 3, 30 days.In Counts 1 and 2, mandatory minimum sentence of three years and four months.

On October 13, 2003, the circuit court filed a written order granting the prosecution's motion for sentencing as a repeat offender, which stated the following:

[T]he [c]ourt having found that [Rivera] is a repeat offender, pursuant to Section 706-606.5 of the Hawai[']i Revised Statutes[(HRS)], based on [Rivera's prior] conviction for the offense of Promoting a Dangerous Drug in the Second Degree, pursuant to Section 712-1242 of the [HRS], under Criminal No. 95-2564, and [Rivera's prior] conviction for the offense of Promoting a Dangerous Drug in the Second Degree, pursuant to Section 712-1242 of the [HRS], under Criminal No. 96-1456, and being fully advised in the premises and having orally granted said Motion for Sentencing of Repeat Offender,

IT IS HEREBY ORDERED that the aforesaid motion be[,] and the same is [,] hereby granted, and [Rivera] is sentenced to a mandatory minimum term of imprisonment of three (3) years and four (4) months without the possibility of parole.

On November 3, 2003, the circuit court filed its written findings of fact (FOFs), conclusions of law (COLs), and order granting the prosecution's motion for extended term of imprisonment as a persistent offender, wherein the circuit court entered the following relevant FOFs, COLS, and order:

1.The [c]ourt finds that Defendant Rivera is a "persistent offender" within the meaning of Section 706-662(1) of the [HRS] because of the following facts:

a. Defendant Rivera was born on March 8, 1952 and was eighteen (18) years of age or older at the time of the commission of the offenses listed below.

b. On January 20, 1977, in Cr.No. 49175, Defendant Rivera was convicted of the offense of Rape in the Second

...