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State v. Nakata8/2/1994
64 Haw. 210, 212, 638 P.2d 319, 321 (1981) ("no new punitive measure may be applied to a crime already consummated. . . . Such legislation would be ex post facto law").
Act 128 passes this constitutional test. The Act reduces, not increases, possible punishment. It reduces the maximum sentence from thirty to five days and eliminates a provision for an ignition interlock system. In Von Geldern, this court held that an amendment to a sentencing statute (HRS § 707-606.5), which allowed a Judge to consider mitigating circumstances and possibly reduce a mandatory minimum sentence, applied retrospectively because the provisions were ameliorative and remedial. Id. at 216, 638 P.2d at 324. The Von Geldern court remanded for resentencing, ruling that because the ameliorative provisions were not "detrimental nor materially disadvantageous," the law was not ex post facto. Id. at 213, 638 P.2d at 322. Thus, retroactive application of HRS § 291-4, as amended by Act 128, is clearly not prohibited.
Appellants, however, relying on Thompson v. Utah, 170 U.S. 343, 18 S. Ct. 620, 42 L. Ed. 1061, (1898), argue that "the prohibition against ex post facto legislation should bar the divestiture of the right to trial by jury." The United States Supreme Court, in Thompson, held that a Utah law, reducing a criminal jury size from twelve to eight, deprived a defendant of "a substantial right involved in his liberty," thus violating the ex post facto clause. Collins, 497 U.S. at 47 (quoting Thompson, 170 U.S. at 352). Thompson and other Supreme Court cases have held that procedural changes could constitute ex post facto violations if they "affect matters of substance," deprive defendants of "substantial protections with which the existing law surrounds the person accused of crime," or arbitrarily infringed upon "substantial personal rights." Collins, 497 U.S. at 45 (citations omitted). The Supreme Court, in Collins, acknowledged that "this language . . . has imported confusion into the interpretation of the Ex Post Facto Clause." Id. at 45. The Court, therefore, specifically overruled Thompson, commenting as follows:
The right to jury trial provided by the Sixth Amendment is obviously a "substantial" one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause. To the extent that Thompson v. Utah rested on the Ex Post Facto Clause and not the Sixth Amendment, we overrule it.
Id. at 51-52 (footnote omitted) (emphasis added).
Here, the retroactive application of Act 128, in the context of an ex post facto analysis, affects only the procedural determination of whether appellants will be tried by a Judge or jury; their right to a fair and impartial trial has not been compromised or divested in any way. We fail to see any substantial prejudice which would result to appellants from the retrospective application of a non-jury trial.
Thus, we conclude that retrospectively applying Act 128 does not violate the ex post facto clause of the United States Constitution.
2. Due Process
Appellants next argue that depriving them of a vested substantive and fundamental right violates due process. Under the rubric of "due process," appellants blend the arguments that changes to substantive rights may not be applied retroactively and retroactive application is fundamentally unfair.
a. Retroactive Application of Changes to Substantive Rights
Appellants cite cases from other jurisdictions holding that the right to a jury trial is a s
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