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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-13-0002894
                                                                24-NOV-2015
                                                                08:09 AM
             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

           STATE OF HAWAII, Respondent/Plaintiff-Appellee,

                                      vs.

          JAYSON AULD, Petitioner/Defendant-Appellant.
________________________________________________________________

                              SCWC-13-0002894

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-13-0002894; CR. NO. 12-1-0690(3))

                             NOVEMBER 24, 2015

    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                  OPINION OF THE COURT BY McKENNA, J.

I.    Introduction

       The primary1 questions presented in this case are whether

the State, in seeking to sentence a defendant to a mandatory


1
      Also raised on certiorari were questions as to whether the ICA gravely
erred when it (1) determined that a “highly prejudicial hearsay statement was
admissible against” the petitioner at trial, and (2) when it “allow[ed]
prosecutors to use the opening statement to argue that essential elements of
the offense [would] be met[.]” With respect to (1), based on the ICA’s
ruling that even if the statement was hearsay, Auld’s counsel did not object,
and there may have been a reason for the lack of objection, we do not further
address the issue at this time. With respect to (2),seeing no error in the
ICA’s disposition of the issue, we do not further address it.
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minimum sentence as a repeat offender under Hawaii Revised

Statutes (“HRS”) § 706-606.5 (2014)2, (1) must include the



2
      That statute provides, in full, the following:
      Sentencing of repeat offenders. (1) Notwithstanding section 706-669 and
any other law to the contrary, any person convicted of murder in the second
degree, any class A felony, any class B felony, or any of the following class
C felonies: section 134-7 relating to persons prohibited from owning,
possessing, or controlling firearms or ammunition; section 134-8 relating to
ownership, etc., of certain prohibited weapons; section 134-17 only as it
relates to providing false information or evidence to obtain a permit under
section 134-9; section 188-23 relating to possession or use of explosives,
electrofishing devices, and poisonous substances in state waters; section
386-98(d)(1) relating to fraud violations and penalties; section 431:2-
403(b)(2) relating to insurance fraud; section 707-703 relating to negligent
homicide in the second degree; section 707-711 relating to assault in the
second degree; section 707-713 relating to reckless endangering in the first
degree; section 707-716 relating to terroristic threatening in the first
degree; section 707-721 relating to unlawful imprisonment in the first
degree; section 707-732 relating to sexual assault in the third degree;
section 707-752 relating to promoting child abuse in the third degree;
section 707-757 relating to electronic enticement of a child in the second
degree; section 707-766 relating to extortion in the second degree; section
708-811 relating to burglary in the second degree; section 708-821 relating
to criminal property damage in the second degree; section 708-831 relating to
theft in the second degree; section 708-835.5 relating to theft of livestock;
section 708-836 relating to unauthorized control of propelled vehicle;
section 708-839.55 relating to unauthorized possession of confidential
personal information; section 708-839.8 relating to identity theft in the
third degree; section 708-852 relating to forgery in the second degree;
section 708-854 relating to criminal possession of a forgery device; section
708-875 relating to trademark counterfeiting; section 710-1071 relating to
intimidating a witness; section 711-1103 relating to riot; section 712-1221
relating to promoting gambling in the first degree; section 712-1224 relating
to possession of gambling records in the first degree; section 712-1243
relating to promoting a dangerous drug in the third degree; section 712-1247
relating to promoting a detrimental drug in the first degree; section 846E-9
relating to failure to comply with covered offender registration
requirements, or who is convicted of attempting to commit murder in the
second degree, any class A felony, any class B felony, or any of the class C
felony offenses enumerated above and who has a prior conviction or prior
convictions for the following felonies, including an attempt to commit the
same: murder, murder in the first or second degree, a class A felony, a class
B felony, any of the class C felony offenses enumerated above, or any felony
conviction of another jurisdiction, shall be sentenced to a mandatory minimum
period of imprisonment without possibility of parole during such period as
follows:
            (a) One prior felony conviction:
                  (i) Where the instant conviction is for murder in the
                  second degree or attempted murder in the second degree--ten
                  years;
                                                              (continued. . .)

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(. . . continued)
                  (ii) Where the instant conviction is for a class A felony--
                  six years, eight months;
                  (iii) Where the instant conviction is for a class B felony-
                  -three years, four months; and
                  (iv) Where the instant conviction is for a class C felony
                  offense enumerated above--one year, eight months;
            (b) Two prior felony convictions:
                  (i) Where the instant conviction is for murder in the
                  second degree or attempted murder in the second degree--
                  twenty years;
                  (ii) Where the instant conviction is for a class A felony--
                  thirteen years, four months;
                  (iii) Where the instant conviction is for a class B felony-
                  -six years, eight months; and
                  (iv) Where the instant conviction is for a class C felony
                  offense enumerated above--three years, four months;
            (c) Three or more prior felony convictions:
                  (i) Where the instant conviction is for murder in the
                  second degree or attempted murder in the second degree--
                  thirty years;
                  (ii) Where the instant conviction is for a class A felony--
                  twenty years;
                  (iii) Where the instant conviction is for a class B felony-
                  -ten years; and
                  (iv) Where the instant conviction is for a class C felony
                  offense enumerated above--five years.
      (2) Except as in subsection (3), a person shall not be sentenced to a
      mandatory minimum period of imprisonment under this section unless the
      instant felony offense was committed during such period as follows:
            (a) Within twenty years after a prior felony conviction where the
            prior felony conviction was for murder in the first degree or
            attempted murder in the first degree;
            (b) Within twenty years after a prior felony conviction where the
            prior felony conviction was for murder in the second degree or
            attempted murder in the second degree;
            (c) Within twenty years after a prior felony conviction where the
            prior felony conviction was for a class A felony;
            (d) Within ten years after a prior felony conviction where the
            prior felony conviction was for a class B felony;
            (e) Within five years after a prior felony conviction where the
            prior felony conviction was for a class C felony offense
            enumerated above;
            (f) Within the maximum term of imprisonment possible after a
            prior felony conviction of another jurisdiction.
      (3) If a person was sentenced for a prior felony conviction to a
      special term under section 706-667, then the person shall not be
      sentenced to a mandatory minimum period of imprisonment under this
      section unless the instant felony offense was committed during such
      period as follows:
            (a) Within eight years after a prior felony conviction where the
            prior felony conviction was for a class A felony;
            (b) Within five years after the prior felony conviction where the
            prior felony conviction was for a class B felony;
                                                              (continued. . .)

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defendant’s predicate prior convictions in a charging

instrument; and (2) must prove these prior convictions to a




(. . . continued)
            (c) Within four years after the prior felony conviction where the
            prior felony conviction was for a class C felony offense
            enumerated above.
      (4) Notwithstanding any other law to the contrary, any person convicted
      of any of the following misdemeanor offenses:
            (a) Section 707-712 relating to assault in the third degree;
            (b) Section 707-717 relating to terroristic threatening in the
            second degree;
            (c) Section 707-733 relating to sexual assault in the fourth
            degree;
            (d) Section 708-822 relating to criminal property damage in the
            third degree;
            (e) Section 708-832 relating to theft in the third degree; and
            (f) Section 708-833.5(2) relating to misdemeanor shoplifting,
            and who has been convicted of any of the offenses enumerated
            above on at least three prior and separate occasions within three
            years of the date of the commission of the present offense, shall
            be sentenced to no less than nine months of imprisonment.
            Whenever a court sentences a defendant under this subsection for
            an offense under section 707-733, the court shall order the
            defendant to participate in a sex offender assessment and, if
            recommended based on the assessment, participate in the sex
            offender treatment program established by chapter 353E.
      (5) The sentencing court may impose the above sentences consecutive to
      any sentence imposed on the defendant for a prior conviction, but such
      sentence shall be imposed concurrent to the sentence imposed for the
      instant conviction. The court may impose a lesser mandatory minimum
      period of imprisonment without possibility of parole than that mandated
      by this section where the court finds that strong mitigating
      circumstances warrant such action. Strong mitigating circumstances
      shall include, but shall not be limited to the provisions of section
      706-621. The court shall provide a written opinion stating its reasons
      for imposing the lesser sentence.
      (6) A person who is imprisoned in a correctional institution pursuant
      to subsection (1) shall not be paroled prior to the expiration of the
      mandatory minimum term of imprisonment imposed pursuant to subsection
      (1).
      (7) For purposes of this section:
            (a) Convictions under two or more counts of an indictment or
            complaint shall be considered a single conviction without regard
            to when the convictions occur;
            (b) A prior conviction in this or another jurisdiction shall be
            deemed a felony conviction if it was punishable by a sentence of
            death or of imprisonment in excess of one year; and
            (c) A conviction occurs on the date judgment is entered.



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jury, beyond a reasonable doubt.         We answer both questions in

the affirmative.

      This appeal surfaces in the wake of the sea change in state

sentencing procedure brought on by the United States Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

In that case, the Court held, “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”          530 U.S. at 489.

We adopted this holding in State v. Maugaotega, 115 Hawaii 432,

447, 168 P.3d 562, 577 (2007), with respect to our state’s

extended sentencing procedures, which were subsequently codified

at HRS §§ 706-661, -662, and -664 (2014).

      Recently, the United States Supreme Court extended the

Apprendi rule to mandatory minimum sentencing.           See Alleyne v.

United States, 133 S.Ct. 2151 (2013).         Alleyne held

           Any fact that, by law, increases the penalty for a crime is
           an “element” that must be submitted to the jury and found
           beyond a reasonable doubt. See [Apprendi, 523 U.S. at 483,
           n.10, 490] Mandatory minimum sentences increase the
           penalty for a crime. It follows, then, that any fact that
           increases the mandatory minimum is an “element” that must
           be submitted to the jury.

133 S.Ct. at 2155.     Our appellate case law currently holds that

the Apprendi rule does not apply to mandatory minimum

sentencing.   See State v. Gonsalves, 108 Hawaii 289, 297, 119

P.3d 597, 605 (2005) (“Apprendi does not apply to mandatory


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minimums[.]”); State v. Loher, 118 Hawaii 522, 534 n.8, 193 P.3d

438, 450 n.8 (App. 2008) (“Apprendi only applies to penalties

that increase the maximum statutory incarceration period, not

set a mandatory minimum like HRS § 706-606.5.”).             This holding

has now been implicitly called into question by Alleyne.

      We acknowledge that Alleyne did not involve mandatory

minimum sentencing based on prior convictions, as Auld’s case

does.   We also acknowledge that the Apprendi rule contains an

exception for the “fact of prior conviction” to its requirement

that a jury find, beyond a reasonable doubt, those facts

enhancing a defendant’s sentence.          It was not until this case,

however, that we have had the opportunity to directly address

whether Apprendi’s “fact of prior conviction” exception has a

place within our repeat offender mandatory minimum sentencing

scheme.     We hold that it does not.

      This is because repeat offender sentencing under HRS

§ 706-606.5 requires more than just a finding of the “fact” of

prior conviction.       In order to sentence a defendant as a repeat

offender, the State must prove (1) that the defendant has a

prior conviction (or convictions); (2) that a prior conviction

is specifically enumerated under HRS § 706-606.5(1) or (4); (3)

that a prior conviction occurred within the time frame set forth

under HRS § 706-606.5(2), (3), or (4); and (4) that the

defendant was represented by counsel, or had waived such

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representation, at the time of the prior conviction.                See State

v. Caldeira, 61 Haw. 285, 290, 602 P.2d 930, 933 (1979) (per

curiam); State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929

(1979) (per curiam).         Therefore, as a matter of state law, the

Apprendi “fact of prior conviction” exception does not apply to

prior convictions forming the basis of repeat offender

sentencing pursuant to HRS § 706-606.5.             As a result, a

defendant is entitled to have a jury find, beyond a reasonable

doubt, those facts necessary to show that he or she is subject

to repeat offender sentencing under HRS § 706-606.5.

          Further, our case law interpreting article I, sections 5

and 10 of the Hawaii Constitution3 requires “a charging

instrument, be it an indictment, complaint, or information,

[to] include all ‘allegations, which if proved, would result in

the application of a statute enhancing the penalty of the crime

committed.’”        State v. Jess, 117 Hawaii 381, 398, 184 P.3d 133,

150 (2008) (citations omitted).            Five years after we issued

3
      Article I, section 5 of the Hawaii Constitution provides, “No person
shall be deprived of life, liberty or property without due process of law,
nor be denied the equal protection of the laws, nor be denied the enjoyment
of the person’s civil rights or be discriminated against in the exercise
thereof because of race, religion, sex or ancestry.”
      Article I, section 10 of the Hawaii Constitution provides, in relevant
part, the following:
            No person shall be held to answer for a capital or
            otherwise infamous crime, unless on a presentment or
            indictment of a grand jury or upon a finding of probable
            cause after a preliminary hearing held as provided by law
            or upon information in writing signed by a legal
            prosecuting officer under conditions and in accordance with
            procedures that the legislature may provide. . . .


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Jess, the United States Supreme Court in Alleyne clearly held

that “[m]andatory minimum sentences increase the penalty for a

crime.”       133 S.Ct. at 2155.      In the wake of Alleyne, then, we

are compelled to hold that repeat offender sentencing under HRS

§ 706-606.5 “enhanc[es] the penalty of the crime committed.”

Consequently, under article I, sections 5 and 10 of the Hawaii

Constitution, a defendant’s predicate prior conviction(s) must

be alleged in the charging instrument.

          We are aware that our holdings today announce new rules for

repeat offender charging and sentencing in Hawaii pursuant to

HRS § 706-606.5.         Consequently, our new holdings take effect

prospectively only.          The ICA’s judgment on appeal, which

affirmed the Circuit Court of the Second Circuit’s4 (“circuit

court”) judgment of conviction and sentence, is therefore

affirmed.

II.       Trial Court Proceedings

          Petitioner/Defendant-Appellant Jayson Auld was charged by

indictment with committing Robbery in the Second Degree.                 It is

undisputed that Auld’s indictment did not allege that he had any

prior convictions.          A jury found Auld guilty as charged.         That

jury was not asked to find, and did not find, beyond a

reasonable doubt, that Auld had any prior convictions.                After


4
          The Honorable Joseph E. Cardoza presided.


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Auld was convicted, the State filed its Motion for Imposition of

Mandatory Minimum Period of Imprisonment.          The State requested

that Auld be sentenced, as a repeat offender, to a mandatory

minimum period of imprisonment of “SIX (6) YEARS, and, EIGHT (8)

MONTHS without the possibility of parole,” pursuant to HRS

§ 706-606.5(1)(b)(iii).      The State averred that Auld had been

convicted in 2011 of one count of Unauthorized Control of a

Propelled Vehicle and one count of Promoting a Dangerous Drug in

the Third Degree.     The State attached as an exhibit to its

motion a copy of Auld’s judgment of conviction and probation

sentence reflecting both prior convictions.

      Auld’s Opposition to the State’s motion did not argue that

his prior convictions were required to be found by a jury beyond

a reasonable doubt (or charged in the indictment); instead, he

argued that strong mitigating circumstances warranted a lesser

mandatory minimum period of imprisonment.

      At the sentencing hearing, the State called Auld’s

probation officer.     The State introduced into evidence the

“self-authenticating sealed and certified judgment for Jayson

Auld” for his prior convictions.         Auld’s counsel did not object,

and the circuit court received the document into evidence.

Auld’s probation officer testified as to what the underlying

offenses were, and Auld’s counsel did not cross-examine him.

The circuit court also took judicial notice of the records on

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file for both of Auld’s prior cases, and asked the State and

Auld if they objected; neither did.            The circuit court also

noted that it was the court that presided over those prior

cases.

       The circuit court granted the State’s Motion for Imposition

of Mandatory Minimum Period of Imprisonment, sentencing Auld to

ten years of incarceration, with credit for time served, subject

to the mandatory minimum of six years and eight months as a

repeat offender.        Auld timely appealed.

III.    ICA Appeal

       A.     Opening Brief

       Relevant to the issues presented on certiorari, Auld argued

for the first time on appeal that the circuit court “violated

[his] Sixth Amendment and Due Process Rights when it granted the

prosecution’s post-verdict motion for the mandatory minimum term

of imprisonment.”         Auld cited Alleyne as authority for his

argument that a jury should have considered the facts alleged in

the prosecution’s motion for imposition of a mandatory minimum

sentence; he cited Jess as authority for his argument that those

facts should have also been alleged in the indictment.                He asked

the ICA to remand his case for resentencing consistent with the

jury’s verdict, i.e., without the mandatory minimum sentence.




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      B.     Answering Brief

      The State distinguished Alleyne, factually and legally,

from the instant case.         The State correctly pointed out that

Alleyne involved 18 U.S.C. § 924(c)(1)(A), which requires a

mandatory minimum sentence of imprisonment of five years for a

person who “uses or carries” a firearm in relation to a crime of

violence, seven years if the firearm is “brandished,” and ten

years if the firearm is “discharged.”            133 S.Ct. at 2155-56.

Although the jury found that Alleyne had “used or carried,” but

not “brandished” a firearm, the district court found that

Alleyne brandished a firearm and sentenced him to a mandatory

minimum of seven years imprisonment.            133 S.Ct. at 2156.      The

United States Supreme Court held that the district court’s

judicial fact-finding of “brandishing” violated Alleyne’s Sixth

Amendment right to have a jury find, beyond a reasonable doubt,

those facts aggravating the punishment for a crime.               133 S.Ct.

at 2161-62.      The State also noted that the Alleyne court stated

that its holding “d[id] not mean that any fact that influences

judicial discretion must be found by a jury.”              133 S.Ct. at

2163.   In the instant appeal, the State appeared to argue that

Auld’s prior convictions did not need to be found by a jury

beyond a reasonable doubt in order for the circuit court to have

sentenced him to a mandatory minimum sentence as a repeat

offender.

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          Citing State v. Drozdowski, 9 Haw. App. 583, 585, 854 P.2d

238, 240 (1993), the State also argued that “ordinary sentencing

procedures apply to the mandatory minimum sentencing hearing.”

Under State v. Mara, 102 Hawaii 346, 368, 76 P.3d 589, 611 (App.

2003), the State argued, such “ordinary sentencing procedures”

include the “abuse of discretion” standard as the standard for

appellate review of the trial court’s imposition of a mandatory

minimum sentence.

          C.     Reply Brief

          Auld contended that the State appeared to be “relying on

the so-called prior-convictions exception to Apprendi,”5 which he

argued “no longer holds sway in light of Alleyne and our own

supreme court’s precedent.”              Auld traced the prior conviction

exception to Almendarez-Torres v. United States, 523 U.S. 224

(1998), which he claimed “underwent great scrutiny in Apprendi,”

with the United States Supreme Court noting that the case was

“arguabl[y] . . . incorrectly decided.”                530 U.S. at 489.         He

then cited Justice Thomas’s concurrence in DesCamps v. United

States, 133 S.Ct. 2276 (2013), as evidence that the prior

conviction exception is inconsistent with the Sixth Amendment.

Justice Thomas stated, “Under the logic of Apprendi, a court may

5
      The Apprendi holding sets forth the prior conviction exception as
follows: “Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 489
(emphasis added).


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not find facts about a prior conviction when such findings

increase the statutory maximum.           This is so whether a court is

determining a prior conviction was entered, or attempting to

discern what facts were necessary to a prior conviction.”                   133

S.Ct. at 2294 (Thomas, J., concurring).

      Auld also asserted that this court has “never carved out an

exception for facts relating to prior convictions” in requiring

that “a charging instrument, be it an indictment, complaint, or

information, . . . include all allegations, which if proved,

would result in the application of a statute enhancing the

penalty of the crime committed.”             Jess, 117 Hawaii at 398, 184

P.3d at 150 (citations and quotation marks omitted).               In other

words, Auld argued that a defendant’s prior convictions must be

alleged in a charging instrument in order for him to be

sentenced to a mandatory minimum term of imprisonment as a

repeat offender.

      D.     The ICA’s SDO

      The ICA affirmed Auld’s judgment of conviction and sentence

in a summary disposition order (SDO).             State v. Auld, CAAP-13-

0002894 (App. Jan, 27, 2015) (SDO) at 2.             The ICA found “without

merit” Auld’s sentencing arguments, relying on the prior

conviction exception.         Auld, SDO at 3-4.      The ICA noted that the

prior conviction exception remained undisturbed in Alleyne and

was “expressly recognized” by this court in Maugaotega, 115

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Hawaii at 446-47 & n.15, 168 P.3d at 576-77 & n.15 (“The United

States Supreme Court has always exempted prior convictions from

the Apprendi rule[.] . . . .       The Court bases the exception on

the fact that prior convictions have themselves been subject to

the sixth amendment right to a jury trial and the accompanying

requirement of proof beyond a reasonable doubt.”).            Id.

      As to Auld’s contention that due process required that his

prior convictions be alleged in the indictment, the ICA noted

that this court in Jess, 117 Hawaii at 397-98, 184 P.3d at 149-

50, “cited favorably to the federal standard that prior

convictions are an exception to the mandate to include sentence

enhancements in the charging instrument.”          Auld, SDO at 4.       The

ICA also concluded that State v. Freitas, 61 Haw. 262, 277, 602

P.2d 914, 925 (1979), requires only that a defendant sentenced

under HRS § 706-606.5 be given “reasonable notice and afforded

the opportunity to be heard,” and that due process “does not

require that notice be given prior to the trial of the

underlying offense. . . .”       Auld, SDO at 4.     In the instant

case, the ICA reasoned that Auld had an opportunity to oppose

the State’s motion for imposition of a mandatory minimum

sentence, was represented by counsel at the hearing on that

motion, and did not object to the circuit court’s receiving his

sealed and certified judgment of conviction into evidence and

taking judicial notice of the record in both prior convictions.

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Id.   Therefore, the ICA concluded, Auld’s due process rights

were not violated.      Id.

IV.    Standard of Review

      This court reviews questions of constitutional law under

the right/wrong standard of review.          See State v. Toyomura, 80

Hawaii 8, 15, 904 P.2d 893, 900 (1995).

V.    Discussion

      On certiorari, Auld raises the following question:

            Did the Intermediate Court of Appeals gravely err in
            concluding that an exception to Apprendi v. New Jersey
            allows sentencing courts to impose mandatory minimum terms
            of imprisonment based on facts that were never established
            with proof beyond a reasonable doubt, found by a jury, and
            adequately pleaded in the indictment?

[App. at PDF p. 2]      On certiorari, Auld criticizes the ICA’s

reliance on Apprendi’s prior conviction exception.             Auld again

traces the prior conviction exception to Almendarez-Torres, 523

U.S. 224, and argues that the exception has “fallen out of favor

in federal courts and its continued viability there is

uncertain.”    To demonstrate the decline of the Almendarez-Torres

holding, Auld first points to the dissent in that case, which

stated that “there is no rational basis for making recidivism an

exception” to the requirement that sentencing facts be proven to

a jury beyond a reasonable doubt.          523 U.S. at 258 (Scalia, J.,

dissenting).     He again points to the Apprendi opinion itself,

which declined to revisit the Almendarez-Torres prior conviction

exception, but nevertheless noted, “[I]t is arguable that

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Almendarez-Torres was incorrectly decided, and that a logical

application of our reasoning today should apply if the

recidivist issue were contested, [but] Apprendi does not contest

the decision’s validity and we need not revisit it[.]”              530 U.S.

at 489.     Auld again cites to Justice Thomas’s concurrence in

DesCamps, 133 S.Ct. 2276 (Thomas, J., concurring), as well as

Shepard v. United States, 544 U.S. 13, 27-28 (Thomas, J.,

concurring) (“Almendarez-Torres . . . has been eroded by the

Court’s subsequent Sixth Amendment jurisprudence, and a majority

of the Court now recognizes that Almendarez-Torres was wrongly

decided. . . .      Innumerable criminal defendants have been

unconstitutionally sentenced under the flawed rule of

Almendarez-Torres[.]”) (citation omitted); and United States v.

Torres-Alvarado, 416 F.3d 808, 810 (8th Cir. 2005) (“[I]t is

unclear whether Almendarez-Torres and its felony exception will

remain good law[.]”) (citation omitted).

      Auld argues that this court should grant greater

protections to criminal defendants under Article I, Section 14

of the Hawaii Constitution, which provides, in relevant part,

“In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial by an impartial jury . . . [and] be

informed of the nature and cause of the accusation. . . .”                 He

contends that a prior conviction “must be treated like any other

fact –- the prosecution must establish it beyond a reasonable

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doubt before a jury and include it in the indictment before a

sentencing court can use it to impose a mandatory minimum term

of imprisonment.”      Auld cites Jess, 117 Hawaii 381, 184 P.3d

133, for the proposition that prior convictions must be pleaded

in the indictment before they can form the basis of a mandatory

minimum sentence.      He cites Alleyne and the Hawaii Constitution

for the proposition that a predicate prior conviction is a fact

that must be submitted to a jury and proven beyond a reasonable

doubt.

      Auld’s arguments are persuasive, primarily because of the

change to our case law that Alleyne now compels.            To provide the

backdrop for the new rules we announce today, we take a closer

look at that case.      In Alleyne, the sentencing statute at issue

was 18 U.S.C. § 924(c)(1)(A), which states the following:

            Except to the extent that a greater minimum sentence is
            otherwise provided by this subsection or by any other
            provision of law, any person who, during and in relation to
            any crime of violence or drug trafficking crime (including
            a crime of violence or drug trafficking crime that provides
            for an enhanced punishment if committed by the use of a
            deadly or dangerous weapon or device) for which the person
            may be prosecuted in a court of the United States, uses or
            carries a firearm, or who, in furtherance of any such
            crime, possesses a firearm, shall, in addition to the
            punishment provided for such crime of violence or drug
            trafficking crime--
            (i) be sentenced to a term of imprisonment of not less than
            5 years;
            (ii) if the firearm is brandished, be sentenced to a term
            of imprisonment of not less than 7 years; and
            (iii) if the firearm is discharged, be sentenced to a term
            of imprisonment of not less than 10 years.

(Emphases added).      The jury who convicted Alleyne found only

that he “used or carried” a firearm, and did not find that he

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“brandished” a firearm, beyond a reasonable doubt; therefore,

based on these jury-found facts, Alleyne was subject to only the

five-year mandatory minimum term.         133 S.Ct. at 2156.     The

district court judge, on the other hand, found that Alleyne

brandished the firearm by a preponderance of the evidence and

sentenced him to the seven-year mandatory minimum term.             Id.   In

holding that the district court violated Alleyne’s Sixth

Amendment right, the United States Supreme Court extended the

Apprendi rule to mandatory minimum term sentencing as follows:

           Any fact that, by law, increases the penalty for a crime is
           an “element” that must be submitted to the jury and found
           beyond a reasonable doubt. See [Apprendi, 530 U.S. at 483,
           n.10, 490] Mandatory minimum sentences increase the
           penalty for a crime. It follows, then, that any fact that
           increases the mandatory minimum is an “element” that must
           be submitted to the jury.

133 S.Ct. at 2155.     In other words, “Apprendi’s definition of

‘elements’ necessarily includes not only facts that increase the

ceiling [i.e., the statutory maximum sentence a defendant can

receive], but also those that increase the floor [i.e., the

mandatory minimum sentence a defendant can receive].”            133 S.Ct.

at 2158.

      Alleyne’s holding extending the Apprendi rule to mandatory

minimum sentences calls into question two of our appellate

decisions, Loher, 118 Hawaii 522, 193 P.3d 438, and Gonsalves,

108 Hawaii 289, 119 P.3d 597.       In Loher, the ICA observed in a




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footnote that a Rule 40 petitioner’s repeat offender mandatory

minimum sentence did not violate the rule in Apprendi:

          Loher was also sentenced to a mandatory minimum of thirteen
          years and four months, pursuant to HRS § 706-606.5, as a
          repeat offender. Apprendi and its progeny are not
          applicable to HRS § 706-606.5 because only facts other than
          a finding of prior convictions must be found by a jury.
          Only a finding of prior convictions is required to apply
          HRS § 706-606.5. In addition, Apprendi only applies to
          penalties that increase the maximum statutory incarceration
          period, not set a mandatory minimum like HRS § 706-606.5.

118 Hawaii at 534 n.8, 193 P.3d at 450 n.8 (citations omitted).

This observation is consistent with this court’s earlier holding

in Gonsalves, 108 Hawaii at 297, 119 P.3d at 605, that “Apprendi

does not apply to mandatory minimums[.]”         The Gonsalves court

drew upon Harris v. United States, 536 U.S. 545 (2002), for its

holding, which it summarized as follows:

          Gonsalves’s argument that somehow the jury’s verdict did
          not authorize sentencing him to a mandatory minimum term as
          a repeat offender is unfounded. Apprendi pronounced a rule
          regarding the judge-imposed penalties that increase
          statutory maximum sentences, not mandatory minimum
          sentences, because the judicial factfinding “that gives
          rise to a mandatory minimum sentence . . . does not expose
          a defendant to a punishment greater than otherwise legally
          prescribed.”

Gonsalves, 108 Hawaii at 296, 119 P.3d at 604 (citing Harris,

536 U.S. at 565).    Harris, however, was overruled by Alleyne.

Alleyne, 133 S.Ct. at 2155.      In fact, the United States Supreme

Court specifically accepted certiorari in Alleyne to consider

overruling Harris.    Id.   In overruling Harris, the United States

Supreme Court explained, “Harris drew a distinction between

facts that increase the statutory maximum and facts that


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increase only the mandatory minimum.         We conclude that this

distinction is inconsistent with our decision in Apprendi . . .

and with the original meaning of the Sixth Amendment.”            Id.

Thus, this court’s statement in Gonsalves, as well as the ICA’s

footnote in Loher, that Apprendi does not apply in mandatory

minimum term sentencing is no longer true.

      Our analysis does not end here, however, as repeat offender

sentencing under HRS § 706-606.5 is based solely on a

defendant’s prior conviction(s), and the Apprendi rule excepts

the “fact of prior conviction” from the requirement that a jury

find, beyond a reasonable doubt, those facts increasing the

penalty for a crime.     Apprendi, 530 U.S. at 489.        We have

favorably cited to Apprendi’s general rule and its prior

conviction exception in the context of extended term sentencing

under HRS §§ 706-661, -662, and -664.         See Maugaotega, 115 Haw.

at 446 n.15, 168 P.3d at 576 n.15 (citations omitted):

           The United States Supreme Court has always exempted prior
           convictions from the Apprendi rule: “[T]he Federal
           Constitution’s jury-trial guarantee proscribes a sentencing
           scheme that allows a judge to impose a sentence above the
           statutory maximum based upon a fact, other than a prior
           conviction, not found by a jury or admitted by the
           defendant.” The Court bases the exception on the fact that
           prior convictions have themselves been subject to the sixth
           amendment right to a jury trial and the accompanying
           requirement of proof beyond a reasonable doubt.

(Emphasis in original; citations omitted).          See also Jess, 117

Hawaii at 394, 184 P.3d at 146 (“[E]xcept for prior convictions,

multiple convictions, and admissions, ‘any fact, however

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labeled, that serves as a basis for an extended term sentence

must be proved beyond a reasonable doubt to the trier of

fact.’”) (citing Maugaotega, 115 Hawaii at 447 & n.15, 184 P.3d

at 577 & n.15) (emphasis in original); State v. Keohokapu, 127

Hawaii 91, 108, 276 P.3d 660, 677 (2012) (citing Maugaotega, 115

Hawaii at 442, 168 P.3d at 572; and Jess, 117 Hawaii at 394, 184

P.3d at 146).

      It was not until this case, however, that we scrutinized

Apprendi’s “fact of prior conviction” exception.           This may be

because Maugaotega, Jess, and Keohokapu all involved extended

term sentencing under HRS §§ 706-661, -662, and -664.            Under HRS

§ 706-662, a defendant convicted of a felony may be subject to

an extended term of imprisonment if a jury finds, beyond a

reasonable doubt, the primary fact that an extended term of

imprisonment is “necessary for the protection of the public” and

that the convicted defendant satisfies one or more of the

following criteria, most of which involve factual findings other

than prior convictions:

           (1) The defendant is a persistent offender in that the
           defendant has previously been convicted of two or more
           felonies committed at different times when the defendant
           was eighteen years of age or older;
           (2) The defendant is a professional criminal in that:
                 (a) The circumstances of the crime show that the
                 defendant has knowingly engaged in criminal activity
                 as a major source of livelihood; or
                 (b) The defendant has substantial income or resources
                 not explained to be derived from a source other than
                 criminal activity;
           (3) The defendant is a dangerous person in that the
           defendant has been subjected to a psychiatric or

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          psychological evaluation that documents a significant
          history of dangerousness to others resulting in criminally
          violent conduct, and this history makes the defendant a
          serious danger to others. Nothing in this section precludes
          the introduction of victim-related data to establish
          dangerousness in accord with the Hawaii rules of evidence;
          (4) The defendant is a multiple offender in that:
                (a) The defendant is being sentenced for two or more
                felonies or is already under sentence of imprisonment
                for any felony; or
                (b) The maximum terms of imprisonment authorized for
                each of the defendant's crimes, if made to run
                consecutively, would equal or exceed in length the
                maximum of the extended term imposed or would equal
                or exceed forty years if the extended term imposed is
                for a class A felony;
          (5) The defendant is an offender against the elderly,
          handicapped, or a minor eight years of age or younger in
          that:
                (a) The defendant attempts or commits any of the
                following crimes: murder, manslaughter, a sexual
                offense that constitutes a felony under chapter 707,
                robbery, felonious assault, burglary, or kidnapping;
                and
                (b) The defendant, in the course of committing or
                attempting to commit the crime, inflicts serious or
                substantial bodily injury upon a person who has the
                status of being:
                (i) Sixty years of age or older;
                (ii) Blind, a paraplegic, or a quadriplegic; or
                (iii) Eight years of age or younger; and
                the person's status is known or reasonably should be
                known to the defendant; or
          (6) The defendant is a hate crime offender in that:
                (a) The defendant is convicted of a crime under
                chapter 707, 708, or 711; and
                (b) The defendant intentionally selected a victim or,
                in the case of a property crime, the property that
                was the object of a crime, because of hostility
                toward the actual or perceived race, religion,
                disability, ethnicity, national origin, gender
                identity or expression, or sexual orientation of any
                person. For purposes of this subsection, "gender
                identity or expression" includes a person's actual or
                perceived gender, as well as a person's gender
                identity, gender-related self-image, gender-related
                appearance, or gender-related expression, regardless
                of whether that gender identity, gender-related self-
                image, gender-related appearance, or gender-related
                expression is different from that traditionally
                associated with the person's sex at birth.

Amidst this comprehensive list of other facts to be found by a

jury, perhaps adopting the “fact of prior conviction” exception


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in the extended term context was just a natural consequence of

adopting Apprendi’s general rule.         See Maugaotega, 115 Hawaii at

446 n.15, 168 P.3d at 576 n.15 (positing that the prior

conviction exception would apply to multiple concurrent

convictions under HRS § 706-662(4), while acknowledging that

“the [Hawaii Supreme] Court has never directly addressed the

issue” of the application of Apprendi’s prior conviction

exception.)

      Because a mandatory minimum sentence as a repeat offender

under HRS § 706-606.5 is warranted solely on the basis of prior

convictions, however, whether the Apprendi “fact of prior

conviction” exception truly fits within our state’s statutory

sentencing scheme comes into sharper focus in this appeal.               We

hold that repeat offender sentencing under HRS § 706-606.5

involves more than a simple finding of the “fact” of prior

conviction, thereby removing it from Apprendi’s “fact of prior

conviction” exception.      First, it must be proven that a prior

conviction belongs to the defendant.         Second, the prior

conviction must be enumerated under HRS § 706-606.5(1) or (4).

Third, the prior conviction must have occurred within the time

frame set forth under HRS §§ 706-606.5(2), (3), or (4).             Lastly,

Hawaii case law requires proof that a defendant subject to

mandatory minimum sentencing as a repeat offender was


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represented by counsel, or had waived such representation, at

the time of the prior conviction.          See Caldeira, 61 Haw. at 290,

602 P.2d at 933; Afong, 61 Haw. at 282, 602 P.2d at 929.

Therefore, as a matter of state law, the Apprendi “fact of prior

conviction” exception does not apply to prior convictions

forming the basis of repeat offender sentencing pursuant to HRS

§ 706-606.5.6

       Loher and Gonsalves are hereby overruled to the extent each

held that the Apprendi rule applies only to extended term

sentencing under HRS §§ 706-661, -662, and -664, and not to

repeat offender mandatory minimum term sentencing under HRS

§ 706-606.5.     Loher, 118 Hawaii at 534 n.8, 193 P.3d at 450 n.8

(citations omitted); Gonsalves, 108 Hawaii at 297, 119 P.3d at

605.   Loher is further overruled to the extent it held that

Apprendi’s prior conviction exception would obviate any need for

a defendant’s predicate prior convictions to be found by a jury.

Loher, 118 Hawaii at 534 n.8, 193 P.3d at 450 n.8 (citations

omitted).    As a result, a defendant is entitled to have a jury

find beyond a reasonable doubt that his or her prior convictions




6
      Consequently, although we agree with Auld (and with amicus curiae the
Office of the Public Defender) that the United States Supreme Court will
eventually overturn Almendarez-Torres and sweep away the prior conviction
exception, we reach our holding today based on “adequate and independent
state grounds.” See Michigan v. Long, 463 U.S. 1032, 1041-42 (1983).



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trigger the imposition of a mandatory minimum sentence as a

repeat offender under HRS § 706-606.5.

      With these protections in place, repeat offender sentencing

under HRS § 706-606.5, like extended term sentencing under HRS

§§ 706-661, -662 and -664, cannot be considered an “ordinary

sentencing” situation.      Consequently, to the extent it held

otherwise, Drozdowski, 9 Haw. App. at 585, 854 P.2d at 240, is

hereby overruled.     Further, whether a defendant was sentenced as

a repeat offender consistent with the protections afforded him

under the Hawaii Constitution shall be reviewed under the

right/wrong standard.      Lastly, we note that our holding affects

HRS § 706-666 (2014), titled, “Definition of proof of

conviction.”    That statute provides

                 (1) An adjudication by a court of competent
           jurisdiction that the defendant committed a crime
           constitutes a conviction for purposes of sections 706-
           606.5, 706-662, and 706-665, although sentence or the
           execution thereof was suspended, provided that the
           defendant was not pardoned on the ground of innocence.
                 (2) Prior conviction may be proved by any evidence,
           including fingerprints records made in connection with
           arrest, conviction, or imprisonment, that reasonably
           satisfies the court that the defendant was convicted.

(Emphasis added).     With regard to repeat offender sentencing

under HRS § 706-606.5, proof of prior conviction must be found

by a jury beyond a reasonable doubt, not by the court under a

“reasonabl[e] satisf[action]” standard.

      On the issue of whether the prosecution must allege in the

charging instrument that the defendant has prior convictions for


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purposes of repeat offender sentencing, our case law

interpreting article I, sections 5 and 10 of the Hawaii

Constitution requires “a charging instrument, be it an

indictment, complaint, or information, [to] include all

‘allegations, which if proved, would result in the application

of a statute enhancing the penalty of the crime committed.’”

Jess, 117 Hawaii at 398, 184 P.3d at 150 (citations omitted).

Alleyne clearly held that “[m]andatory minimum sentences

increase the penalty for a crime.”          133 S.Ct. at 2155.    In the

wake of Alleyne, then, we are compelled to hold that repeat

offender sentencing under HRS § 706-606.5 “enhanc[es] the

penalty of the crime committed.”          Therefore, under article I,

sections 5 and 10 of the Hawaii Constitution, the predicate

prior conviction(s) must be alleged in the charging instrument

in order for the defendant to ultimately be sentenced as a

repeat offender.

      Our case law on HRS § 706-606.5 has consistently emphasized

that due process requires the State to give a defendant

reasonable notice and an opportunity to be heard on the issue of

mandatory minimum sentencing as a repeat offender.            State v.

Schroeder, 76 Hawaii 517, 880 P.2d 192 (1994) (citing Freitas,

61 Haw. at 277, 602 P.2d at 915; State v. Caldeira, 61 Haw. 285,

289, 602 P.2d 930, 933 (1979); and State v. Melear, 63 Haw. 488,


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499, 630 P.2d 619, 627-28 (1981)).       Freitas, however, held

“While due process does not require that notice be given prior

to the trial of the underlying offense, it does require that a

defendant to be sentenced under Act 181 [codifying the repeat

offender statute] be given reasonable notice and afforded the

opportunity to be heard.”     61 Haw. at 277, 602 P.2d at 925)

(citations omitted).    See also Caldeira, 61 Haw. at 289-90, 602

P.2d at 933 (following Freitas and holding the notice

requirements were satisfied when each defendant was apprised of

the State’s intent to seek repeat offender sentencing days

before the sentencing hearing); Melear, 63 Haw. at 499, 630 P.2d

at 628 (following Freitas and holding that the notice

requirement was satisfied when defendant received the State’s

motion for repeat offender sentencing a month and a half before

the first sentencing hearing); Schroeder, 76 Hawaii at 531, 880

P.2d at 206 (following Freitas and noting that the defendant

received notice before sentencing of only the State’s intent to

seek a single mandatory minimum term).        Under Jess, as clarified

by Alleyne, we now hold that the State provides “reasonable

notice” to a defendant it seeks to sentence as a repeat offender

when it alleges the defendant’s predicate prior convictions in a

charging instrument.    To the extent the aforementioned cases

hold that due process requires only that notice be given prior

to sentencing, they are hereby overruled.

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      We are cognizant of the fact that we announce new rules in

this case.   As such, we consider whether these new rules will be

given

           (1) purely prospective effect, which means that the rule is
           applied neither to the parties in the law-making decision
           nor to those others against or by whom it might be applied
           to conduct or events occurring before that decision; (2)
           limited or “pipeline” retroactive effect, under which the
           rule applies to the parties in the decision and all cases
           that are on direct review or not yet final as of the date
           of the decision; or (3) full retroactive effect, under
           which the rule applies both to the parties before the court
           and to all others by and against whom claims may be
           pressed.

Jess, 117 Hawaii at 401, 184 P.3d at 153 (internal citations and

quotation marks omitted).      The “paradigm case” warranting a

prospective-only application of a new rule arises “when a court

expressly overrules a precedent upon which the contest would

otherwise be decided differently and by which the parties may

previously have regulated their conduct.”          117 Hawaii at 400,

184 P.3d at 152 (citing James B. Beam Distilling Co. v. Georgia,

501 U.S. 529, 534 (1991)).

      In this case, Alleyne has compelled changes to our

appellate precedent regarding whether the Apprendi rule applies

to repeat offender mandatory minimum charging and sentencing

under HRS § 706-606.5.      Absent Alleyne, Auld’s sentence would

have been affirmed under Loher, 118 Hawaii 522, 193 P.3d 438,

and Gonsalves, 108 Hawaii 289, 119 P.3d 597, as the Apprendi

rule had no application to repeat offender mandatory minimum


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sentencing under HRS § 706-606.5, and, even if it did, the prior

conviction exception would have applied.          In other words, we

expressly overrule precedent upon which the “contest would

otherwise be decided differently,” which counsels in favor of a

prospective-only application.       Jess, 117 Hawaii at 400, 184 P.3d

at 152 (citation omitted).

      In the wake of Alleyne, Loher and Gonsalves are now

overruled to the extent each held that the Apprendi rule did not

apply to mandatory minimum sentencing of repeat offenders under

HRS § 706-606.5.    As the first consequence of that overruling,

we have had occasion to further scrutinize whether Apprendi’s

“fact of prior conviction” exception applies to mandatory

minimum sentencing of repeat offenders under HRS § 706-606.5,

and we hold that, as a matter of state law, it does not.             The

second consequence of overruling Loher and Gonsalves by

extending the Apprendi rule to repeat offender sentencing is

that we also hold that Jess’s rule requiring a charging

instrument to include “all ‘allegations, which if proved, would

result in the application of a statute enhancing the penalty of

the crime committed,’” now requires the State to allege the

prior convictions it seeks to use as a basis for sentencing a

defendant as a repeat offender, because “[m]andatory minimum

sentences increase the penalty for a crime.”          Jess, 117 Hawaii

at 398, 184 P.3d at 150; Alleyne, 133 S.Ct. at 2155.            In so

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doing, we overrule Freitas (and those cases drawing on Freitas’s

holding), which concluded that due process in repeat offender

sentencing “does not require that notice be given prior to the

trial of the underlying offense[.]”        Thus, prior to this case,

the “parties may previously have regulated their conduct”

consistently with the rules set forth in Freitas, Loher and

Gonsalves that did not require a charging instrument to allege

predicate prior convictions, or a jury to find, beyond a

reasonable doubt, that a defendant’s prior convictions subject

him or her to a mandatory minimum sentence as a repeat offender

under HRS § 706-606.5.      This further counsels in favor of a

prospective-only application.       Jess, 117 Hawaii at 400, 184 P.3d

at 152 (citation omitted).

      As to how repeat offender sentencing procedures would look

in the future, this court has suggested that information

pertaining to sentencing may be introduced after the guilt phase

of the trial has concluded.       See Maugaotega, 117 Hawaii at 412,

184 P.3d at 164 (citing State v. Janto, 92 Hawaii 19, 34-35, 986

P.2d 306, 321-22 (1999).      This is apparently the procedure

described in Keohokapu, where the jury heard testimony

concerning the offenses leading to defendant’s prior convictions

during the extended term sentencing phase of the trial.             127

Hawaii at 96-101, 276 P.3d at 665-70.        As with other


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constitutional rights, the defendant would also have the option

of waiving a jury trial for repeat offender sentencing fact-

finding, similar to the waiver option for extended term

sentencing fact-finding.      See HRS § 706-664(1) (“[T]he defendant

shall have the right to hear and controvert the evidence against

the defendant and to offer evidence upon the issue [of extended

term sentencing] before a jury; provided that the defendant may

waive the right to a jury determination under this subsection,

in which case the determination shall be made by a court.”).             We

do not foresee future changes to repeat offender sentencing

procedures to be markedly different from extended term

sentencing procedures.

VI.   Conclusion

      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

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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.   Therefore, the ICA’s judgment on appeal, which

affirmed the circuit court’s judgment of conviction and

sentence, is affirmed.

Benjamin Lowenthal                /s/ Mark E. Recktenwald
for petitioner
                                  /s/ Paula A. Nakayama
Artemio C. Baxa
for respondent                    /s/ Sabrina S. McKenna

                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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