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November 29, 2015

Hawaii Supreme Court refuses to exempt recidivist enhancement from Apprendi mandates

A helpful reader alerted me to a notable ruling last week by the Hawaii Supreme Court rejecting broad application of Apprendi's prior conviction exception. Hawaii v. Auld, No. SCWC-13-0002894 (Haw. Nov. 24, 2015) (available here), which discusses Alleyne and Almendarez-Torres at length, is a must-read for all hard-core Apprendi fans. It concludes this way:

We hold that, under article I, sections 5 and 10 of the Hawai'i Constitution, the State must allege the predicate prior conviction(s) in a charging instrument in order to sentence the defendant to a mandatory minimum sentence as a repeat offender under HRS § 706-606.5.  We further hold that, as a matter of state law, Apprendi’s “fact of prior conviction” exception does not apply to repeat offender sentencing under HRS § 706-606.5, and that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under that statute.  As these new rules result from the express overruling of prior appellate precedent holding that the Apprendi rule did not apply to mandatory minimum sentencing and that notice of repeat offender sentencing did not need to be given in a charging instrument, they are given prospective effect only.

November 29, 2015 at 08:27 PM | Permalink


Doug, I believe the Auld opinion is fundamentally flawed and reads things into Alleyene that are not there. Alleyene did not overrule Almendarez-Torres.

The basic flaw, in my opinion, is that the opinion treats a prior conviction as an element of a substantive crime. One hundred years of supreme court jurisprudence confirm that prior convictions can increase punishment, not increase the level of a crime.


Posted by: bruce cunningham | Nov 30, 2015 9:28:26 AM

Can they bifurcate the trial? If not, this rule is going to go a long way towards encouraging bench trials.

Posted by: Erik M | Nov 30, 2015 10:33:31 AM

Erik, that is one of the conceptual problems with considering prior convictions to be an element of crime that has to be included in the indictment.

A jury would surely be prejudiced against the def if they heard he was a felon.

But I think the basic issue is that a prior conviction is a judgment of a court and therefore presumed to be valid, and not subject to collateral attack. If there is a collateral attack, then the burden of proof is on the def to show the judgment is invalid, which is another illustration of its use as an element of crime is improper.

With all due respect to Justice Thomas, who was the swing vote in Apprendi, he has it wrong on this issue.


Posted by: bruce cunningham | Nov 30, 2015 11:49:09 AM

Bifurcated trials are administered in Texas. The prior conviction(s) sentencing enhancement paragraph in the indictment is not read to the jury until the punishment phase.

Posted by: Mark M. | Dec 3, 2015 9:28:04 AM

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