No. 28483 (March 31, 2008)
OPINION OF THE COURT BY LEVINSON, J.
On October 6, 2004, the defendant-appellee Brian Jess filed a 28 U.S.C. § 2254 (1996) petition for a writ of habeas corpus in the United States District Court for the District of Hawai'i. In his petition, Jess alleged that the extended term sentence that the circuit court of the first circuit, the Honorable Victoria S. Marks presiding, imposed upon him on May 7, 2001, pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661 (Supp. 1999), 706-662(1), 706-662(4)(a) (Supp. 1996), and 706-664 (1993) was, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, in violation of his right to a jury trial as provided by the sixth amendment to the United States Constitution. See Jess v. Peyton, No. Civ. 04-00601 JMS/BMK, 2007 WL 1041737, at *1-*2 (D. Haw. April 18, 2006) (Jess II). On April 18, 2006, the United States District Court granted Jess' petition, concluding that the finding made by the circuit court, i.e., that an extended term was necessary for the protection of the public [hereinafter, "the necessity finding"], violated his sixth amendment right to a trial by jury as articulated in Apprendi. Id. at *4. The district court ordered the circuit court to resentence Jess in a manner consistent with that conclusion. Id. at *6. The reserved question before this court stems, ultimately, from that order, and reads as follows:
May the trial court, as part of a sentencing proceeding brought pursuant to Section 706-662(1) & (4), H.R.S., empanel a jury to make a factual finding to determine whether the prosecution has proven beyond a reasonable doubt that the defendant's commitment for an extended term of incarceration is necessary for the protection of the public?
The issue raised by the reserved question was addressed in part in our recent decision in State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), [hereinafter "Maugaotega II"]. Based upon Magaotega II and the analysis infra, we answer the reserved question as follows:
Although the two-count complaint filed by the prosecution on March 2, 2000 against the defendant-appellee Brian Jess did not charge the "aggravated crimes" described in HRS § 706-662, see Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 864 (2007), the circuit court nevertheless has authority to impose extended terms of imprisonment upon Jess pursuant to the provisions of HRS § 706-662, because our decision to require the allegation of aggravating extrinsic facts in a charging instrument applies prospectively only. Furthermore, insofar as the circuit court possesses the inherent judicial authority "to provide process where none exists," State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 711012 (1982), and the legislature, by amending Hawaii's extended term sentencing laws to include jury fact-finding, has clearly expressed its approval of a jury system for making the required findings in order to bring the extended sentencing procedures into compliance with Cunningham, the circuit court would act within its discretion if, pursuant to HRS §§ 706-662(1) and 706-662(4) (Supp. 1996), it empaneled a jury to make a factual finding as to whether the prosecution has proved beyond a reasonable doubt that a defendant's commitment for an extended term or terms of imprisonment is necessary for the protection of the public. Finally, in light of the plain language of Act 1, see supra notes 306, and the remedial nature of its amendments, the circuit court can also empanel a jury to make the same factual finding with respect to a defendant pursuant to HRS §§ 706-662, as amended by Act. 1.
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