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State v. Hauge11/18/2003
ision in Apprendi v. New Jersey, 530 U.S. 466 (2000).Hauge contends that, under Apprendi, the finding that an extended term of imprisonment is "necessary for the protection of the public" is "separate and apart from [the court's] findings as to the predicate facts" and, therefore, "should have been submitted to a jury and proven beyond a reasonable doubt."
This court's recent decision in State v. Kaua, 102 Hawaii 1, 72 P.3d 473 (2003), is dispositive of Hauge's point of error. In Kaua, this court addressed the constitutionality of HRS § 706-662 in light of Apprendi. Kaua reaffirmed the "intrinsic-extrinsic" analysis first articulated by this court in State v. Schroeder, 76 Hawaii 517, 880 P.2d 192 (1994), and reaffirmed in State v. Tafoya, 91 Hawaii 261, 982 P.2d 890 (1999), and rejected the defendant's argument that Apprendi mandated that a "multiple offender" determination, for purposes of HRS § 706-662(4)(a), must be made by the trier of fact, holding (1) that HRS § 706-662 passed constitutional muster under the Hawaii and United States Constitutions and (2) that " he facts foundational to . . . extended terms of imprisonment . . . , pursuant to HRS § 706-662(4)(a), fell outside the Apprendi rule, and, thus, the ultimate finding that [a defendant] was a 'multiple offender' whose extensive criminal actions warranted extended prison terms was properly within the province of the sentencing court." Kaua, 102 Hawaii at 13, 72 P.3d at 485. In so holding, this court noted the fundamental distinction between the nature of the predicate facts described in HRS §§ 706-662(1), (3), and (4), . . . on the one hand, and those described in HRS §§ 706-662(5) and (6), . . . on the other. Specifically, the facts at issue in rendering an extended term sentencing determination under HRS §§ 706-662(1), (3), and (4) implicate considerations completely "extrinsic" to the elements of the offense with which the defendant was charged and of which he was convicted; accordingly, they should be found by the sentencing judge in accordance with [Statev.]Huelsman[, 60 Haw. 71, 588 P.2d 394 (1979),] and its progeny. The facts at issue for purposes of HRS §§ 706-662(5) and (6), however, are, by their very nature, "intrinsic" to the offense with which the defendant was charged and of which he has been convicted; accordingly, they must be found beyond a reasonable doubt by the trier of fact in order to afford the defendant his constitutional rights to procedural due process and a trial by jury. Tafoya, 91 Hawaii at 271- 72, 982 P.2d at 900-01; Schroeder, 76 Hawaii at 528, 880 P.2d at 203.
Id. at 12-13, 72 P.3d at 484-85 (emphases added).
In light of this court's decision in Kaua, Hauge's argument that HRS §§ 706-662(1) is unconstitutional is without merit.
V. CONCLUSION
Based on the foregoing analysis, we affirm the circuit court's judgment of conviction and sentence.
I join in Parts IV.A and IV.D of the majority opinion. I concur in the result reached in this case but do not subscribe to the opinion's reasoning in the balance of the opinion. (J. Acoba)
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