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State v. Nakata8/2/1994
he affirmative.
B. The Second Reserved Question
If the amendments to the sentencing provisions of HRS [§ ] 291-4 provided in Act 128, Session Laws of Hawaii, Regular Session of 1993, effective May 21, 1993, do eliminate the right to jury trial, whether the deprivation of such a right may be applied retrospectively to alleged offenses occurring prior to the enactment of the Act.
HRS § 1-3 (1985) provides that "no law has any retrospective operation, unless otherwise expressed or obviously intended. " (Emphasis added.) As noted previously, section 5 of Act 128 provides that it takes effect upon approval, "provided that [the reduced penalties] shall be retroactive for all pending first-offense cases for ." 1993 Haw. Sess. Laws at 181. Therefore, for purposes of HRS § 1-3, HRS § 291-4, as amended by Act 128, clearly applies retroactively to pending cases.
Appellants, however, challenge the constitutionality of the retroactive application of HRS § 291-4, as amended. Appellants argue that to retroactively apply Act 128 would deprive them of a vested fundamental right to a jury trial in violation of the ex post facto clause of the United States Constitution and violates due process. The prosecution, on the other hand, argues that because Act 128 transforms a first-offense DUI under HRS § 291-4 into a constitutionally petty offense, the appellants' argument against retroactive application is frivolous. The prosecution essentially argues that no right has been taken away; rather, the crime is different because the penalties under the amended § 291-4 are lesser, and therefore, the corresponding right is different.
The burden is on the appellants to show that Act 128 is a plain, clear, manifest, and unmistakable violation of the ex post facto clause of the United States Constitution and due process. We therefore address each alleged violation in turn to determine whether appellants have met their burden.
1. The Ex Post Facto Clause
The ex post facto clause of the United States Constitution provides that "no state shall . . . pass any . . . ex post facto law." U.S. Const. art. I, § 10, cl. 1. The clause prohibits states from enacting retrospective penal legislation.
In Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990), the United States Supreme Court was presented with the question "whether the application of a Texas statute, which was passed after respondent's crime and which allowed the reformation of an improper jury verdict in respondent's case, violated the Ex Post Facto Clause of Art. I, § 10." Id. at 39. In summarizing the meaning of the ex post facto clause, the Court stated:
"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute [(1)] which punishes as a crime an act previously committed, which was innocent when done[, (2)] which makes more burdensome the punishment for a crime, after its commission, or [(3)] which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."
Id. at 42 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925)). "The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Id. (emphasis added); see also State v. Von Geldern,
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