STATE v. GUTUTALA (2008)

SUMMARY DISPOSITION ORDER

Petitioner Arthur Samoa Gututala seeks review of the Intermediate Court of Appeals' (ICA) August 3, 2007 judgment, which affirmed the circuit court of the first circuit's December 14, 2005 Judgments of Conviction and Sentence in Cr. No. 05–1–1378 and in Cr. No. 05–1–1921.¹ We accepted Gututala's application for a writ of certiorari and now vacate the judgment of the ICA and remand to the circuit court for resentencing.

On July 6, 2005, Gututala was charged with Promoting a Dangerous Drug in the Third Degree (PDD), in violation of HRS § 712–1243, and Unlawful Use of Drug Paraphernalia (UUP), in violation of HRS § 329–43.5(a). Gututala pled no contest to both counts. Subsequently, on September 15, 2005, Gututala was charged with Unauthorized Control of a Propelled Vehicle (UCPV), in violation of HRS § 708–836, and Driving Without License (DWL) in violation of HRS § 708–836. He pled guilty to both counts.²

The prosecution moved to sentence Gututala to extended terms of imprisonment as a “persistent offender,” under HRS §§ 706–661 & 706–662(1) (Supp.2004). The circuit court granted the motion based on its finding that such terms were necessary for the protection of the public, and sentenced Gututala to extended-term sentences of ten years for each felony conviction: ten-years imprisonment for PDD, ten-years imprisonment for UUP, and ten-years imprisonment for UCPV. In addition to the extended-term sentences for the three felony convictions, Gututala was sentenced to thirty-days imprisonment for DWL. The sentences were to run concurrently.

The ICA affirmed Gututala's conviction and sentence. Gututala maintains, inter alia,³ that the ICA gravely erred in concluding that the imposition of an extended term of imprisonment based on non-jury findings of fact did not violate his rights under the fifth, sixth, and fourteenth amendments to the United States Constitution, as explicated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. As this court made clear in State v. Maugaotega, 115 Hawai‘i 432, 168 P.3d 562 (2007), Gututala's extended-term sentences were indeed inconsistent with his right to a jury trial under the sixth amendment to the United States Constitution.

Therefore,

The ICA's August 3, 2007 judgment is vacated, and the case is remanded to the circuit court (1) to vacate Gututala's extended term sentences and (2) for resentencing in accordance with this order and applicable law. See Act 1 (Oct. 31, 2007) (to be codified at HRS §§ 706–661 to –664);  ⁴ State v. Jess, No. 28483, Slip Op. (Haw. March 31, 2008) (determining that resentencing under Act 1 is not unconstitutional and also permitting a circuit court to resentence a criminal defendant under a judicially reformed version of the prior statute governing extended term sentencing).⁵

I respectfully disagree with the disposition herein for the reasons expressed in the dissenting opinion in State v. Jess, No. 28483 (Mar. 31, 2008). Accordingly, I would dispose of this case on the alternative grounds following.

First, the December 14, 2005 extended term sentence imposed on Petitioner/Defendant–Appellant Arthur Samoa Gututala (Petitioner) was plainly unconstitutional. See State v. Rivera, 106 Hawai‘i 146, 166, 102 P.3d 1044, 1064 (2004) (Acoba, J., dissenting, joined by Duffy, J.) (arguing that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Hawaii's extended sentencing statute violated the right to a jury trial on “any fact that increases the penalty for a crime beyond the prescribed statutory maximum” protected by the Sixth Amendment to the United States Constitution (citation, internal quotation marks, and footnote omitted)). Subsequently, upon remand by the United States Supreme Court in light of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), this court declared Hawaii's extended sentencing statute “unconstitutional on its face[,]” State v. Maugaotega, 115 Hawai‘i 432, 446–47, 168 P.3d 562, 576–77 (2007) [hereinafter, Maugaotega II ] (footnote omitted), and remanded the case for non-extended term sentencing, id. at 434, 168 P.3d at 564. Petitioner's appeal was apparently pending at the time.  ¹ Because Petitioner's appeal was pending during the pendency of the Maugaotega II appeal, his case should be remanded for non-extended term sentencing, as was Maugaotega's case, under the doctrine of stare decisis. See Jess, No. 28483, slip op. at 11 (Acoba, J., dissenting) (stating that “the same holding in Maugaotega II must, in principle, apply to Jess”).

Second, the so called “judicial reform[ation]” of the statute declared unconstitutional by Maugaotega II through resort to Act 1 was inappropriately applied in Jess because (a) “the Reserved Question [in Jess ] ask[ed] only whether[,] under the particular statute involved in the Reserved Question, HRS § 706–662 (1993 & Supp.1996) [could] be constitutionally applied to resentence Jess,” Jess, No. 28483, slip op. at 18 (Acoba, J., dissenting), (b) “reform[ation]” conflicts with the majority holding in Maugaotega II, which had already declared that “HRS § 706–662, in all of its manifestations ․ is unconstitutional on its face[,] ” 115 Hawai‘i at 446–47, 168 P.3d at 576–77 (emphasis added), (c) Maugaotega II erroneously rejected the rationale in State v. Janto, 92 Hawai‘i 19, 986 P.2d 306 (1999), State v. Young, 93 Hawai‘i 224, 999 P.2d 230 (2000), and State v. Peralto, 95 Hawai‘i 1, 18 P.3d 203 (2001), “inasmuch as in those cases ‘this court concluded that in order to apply HRS § 706–657 constitutionally, a jury, instead of the court as the statute dictated, had to make the necessary findings for enhanced sentencing and so ordered [,]’ ” Jess, No. 28483, slip op. at 7 (Acoba, J., dissenting) (quoting Maugaotega II, 115 Hawai‘i at 456, 168 P.3d at 586) (Acoba, J., dissenting, joined by Duffy, J.) (emphasis added)), and did not hold the statute unconstitutional on its face as in Maugaotega II, and (d) as in the instant case, “Act 1 ․ was not in effect at any time relevant to Jess' [or Petitioner's] case[,]” id. at 18 n. 13, 168 P.3d 562.

Third, if this case is subjected to extended term sentencing on remand, the majority's determination of the constitutionality of Act 1, see 2007 Haw. Sess. L. (Second Special Session) Act 1 at –––, was incorrect inasmuch as Act 1 was not applied, raised, or briefed in Jess and, similarly, has yet to be applied, raised, or briefed in Petitioner's case and, consequently, was not in controversy in Jess, nor is in controversy in the instant case. Jess, No. 28483, slip op. at 19 (Acoba, J., dissenting) (arguing that the issues related to the application of Act 1 were not ripe for decision in Jess' case).

Fourth, any new rule requiring extended term factors to be alleged in the charging document should be applied to all similarly situated defendants, see id. at 40 (Acoba, J., dissenting) (arguing that “the fairer approach” is to apply new constitutional rules of criminal procedure retroactively “to those defendants who are similarly situated” (quoting State v. Garcia, 96 Hawai‘i 200, 214, 29 P.3d 919, 933 (2001) (internal citation marks omitted)), such as Petitioner. Based on the twin principles that (1) preclude us from “simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new rules, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule[,]” Garcia, 96 Hawai‘i at 213, 29 P.3d at 932 (internal quotation marks, citation, and brackets omitted), and (2) require us to “treat[ ] similarly situated defendants the same[,]” id. (quoting State v. Kekona, 77 Hawai‘i 403, 411 n. 3, 886 P.2d 740, 748 n. 3 (1994) (citing Powell v. Nevada, 511 U.S. 79, 84, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994)); see also Griffith v. Kentucky, 479 U.S. 314, 322–28, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the rule should apply not only prospectively, but also to Petitioner, inasmuch as his appeal was pending during the pendency of Jess' appeal.

FOOTNOTES

1.  The Honorable Dexter Del Rosario presided.

2.  PDD, UUP, and UCPV are each class C felonies carrying a maximum term of imprisonment of five years. HRS § 706–660 (1993). For DWL, Gututala faced a maximum sentence of thirty-days imprisonment. HRS § 706–663 (1993).

3.  Gututala raised two other claims in his Application for Writ of Certiorari: (1) that the circuit court relied on inadequate evidence (a presentence report) to prove that he was a “persistent offender,” and (2) that the circuit court wrongly refused to entertain his motion to reconsider his sentence. Because we vacate the ICA's judgment upholding Gututala's sentence, and remand for resentencing, we need not address these arguments.

4.  Act 1 was passed in a special session after this court's decision in Maugaotega. See H.B. 2, 24th Leg., Second Spec. Sess. (2007), available at http://capitol.hawaii.gov/splsession2007b/bills/HB2_.htm (enacted as Act 1 on October 21, 2007). Section 5 of the Act provides that “[a] defendant whose extended term of imprisonment is set aside or invalidated shall be resentenced pursuant to this Act upon request of the prosecutor.” See id.

5.  Although Gututala, at this juncture, has not alleged any defect in his indictment, we note that the new rule announced in Jess, requiring the allegation of aggravating extrinsic facts in a charging instrument, does not apply to Gututala because of its prospective character.

1.  On November 1, 2007, Petitioner filed a timely writ of certiorari requesting review of the Intermediate Court of Appeals' July 13, 2007 summary disposition order.