should mean if it's a close case a state court decision stands if there's a split of authority the state's court decision should stand if minds can differ if it's flat wrong it fall if it's flat wrong it's got to be an unreasonable application it can be merely eroni us it can be wrong but it can't be an unreasonable application which means that there can be no basis in reason for the application that the state court ma and that's how i read the anti terrorism when i think of death penalties and i first read this case i thought maybe you slipped in under the wire because it's possible to see this as once the priors are established then the only question becomes what do you do once the priors are established that extends the period during which a person can be incarcerated but i read your own state's law and they said they tell me that's not the way it works that both of the elements have to be established in order to get this extension that that's the case then the the state court decisions evolve beginning with you'll xmen you'll realize that that interpretation is not correct because it's from the very beginning said that it's a two step process the first step has to be proven beyond a reasonable doubt th second burst of being one meaning basically these are two time offenders right got to felony offenses which is within the decision made by the jury ok ok the second step is for the protection of the public which from the very get go when it was in interpreted by the hawaii state supreme court they said that goes to the question of discretion and that if you take a look at fuels minute the very early parts of it you'll realize that that's exactly what it does from the very beginning the why supreme court has interpreted the necessity of that finding to mean exclusively this you're going to exercise your discretion and we want to be able to review with all that determination for the reason for the protection the public is the why supreme court will have a record with factual findings and conclusions that it can review under an abuse of discretion standard so if you take a look at that you'll realize that that's not what and within that range the added range the judge exercises for him that's correct so what i do is i read a sensually the extended term sentencing statute along with our ordinary stanched sentencing statute as the sentencing statutes so the range once you're being sentenced for two or more felonies you're not even prior felonies they could be done contemporaneously once you're being basically put for two or more felonies and the indictment and the jury verdict returns that then you are basically subject to not only ordinary sentencing which will be class a or murder sentencing you are also put on notice that you are going to be looking at the potential an extended term which but when  the extended term got charged for lack of a better term the answer is is that for the underlying purposes for those parts that are what our supreme court calls intrinsic that gets done in the charging document say if it's an ordinary sentencing do we put that down if it's a robbery everybody knows that that's a class a because of the sentencing statutes that we have it actually gets you know that it's going to be filed and pursued by the prosecution after we file a motion for an extended term that's after the jury has returned its verdict and we know that all the predicate basis that have to be proven beyond a reasonable doubt have been proven beyond a reasonable doubt so let's say we charge but a rough things that seems to me that that maybe the cases in this complicated and sometimes twenty years without the possibility of suspension of sentence for probation or he was charged with a couple of class a felony correct and so he would know that well that's the that's the twenty year term correct then a princely comes along and says other than the you can't go beyond this statute of twenty years without presenting something to the jury because you have to read it along with the rest of the sentencing statutes and the why sentencing statutes include in that sense things provisions sentence of enhancement for an extended term of imprisonment therefore you read the class a and you have two classes as you suggested if you get convicted by one and only one by the jury and then you only have the class a without the enhancement decided by the jury if you decide both or if you plead to both you know that now an enhanced sentence will have to be applied and because we put those in the church because that's essentially in the indictment the two contemporaneous convictions if there is a change of plea the defendant will have to be informed not only could you get the twenty years but you could also get the enhanced provision as well so the defendant will know and will always have been on notice as long as there are two felonies that he will be subject to that first prong of sentencing he has to look at the defendant's past what he's done what his character was and what is bad acts were including convictions all of those things that we do not normally give to a jury that's where he has to look at at the current case he has to look at the facts and circumstances of it what did he do who did he do it to how did he do it those things and then he must also make a decision he or she must make a decision as to what goes on in the future in other words is this somebody who we think is going to be the question that i sort of got pounding around in my head is when you're talking about the a pretty private conviction are you really talking just about convictions because they also use the word recidivism throughout some of the their united states supreme court decisions  recidivism identical to a prior conviction or does it include all of those things that we allow a judge to determine in terms of their discretion do we allow them to use the guy's character his past history if you take a look at the sentencing o kalak specifically at those portions that exist i believe on pages seventeen and eighteen seventeen something like that you're going to take a look at all of the things that were talked about in terms of this guy's past history none of those things let me suggest to you could adequately be explained in any charging document many of those things the prosecutor will as a pragmatic matter not know at the time that he's charging the case if you require that to be something that is elemental and has to be charged in the charging document the prosecutor before he could in good faith pursue an indictment for a multiple offender would have to have known all of those factors beforehand and that makes it pragmatically almost impossible to do  law is that they will limit that to those facts which they consider to be intrinsic to the crime so almost everything that you've got that we've got in your recent decisions from the supreme court including the hate crime statute that are pretty was the basis of that would be decided by the why's a cream court as being intrinsic because it was part of an intent that occurred during the commission of the crime and this becomes once again i think the reason that we have problems with the apprentice decision is largely because the sentence in fact it's one thing i know because we actually have a sentencing factor it's detailed the sentencing factor that our supreme court has decided because it's intrinsic to the crime it has to go into the indictment so the label sentencing factor doesn't really solve the problem it would be nice if i could say that but it doesn't because we have something that calls a cruel and hany of pain is crime our supreme court has said in one of its decisions that that has to be put in the indictment and it has to go to the jury so they've been dealing with these problems really for now for almost a third of a century and as a result of it they look at it and it's not like they don't listen to federal law for example if you take a look at the four year they very specifically looked at it and they sat there and said ok wait a minute we've now got all mendez torres and jones to contend with and we're going to look at that and we're going to look at our seminal case you'll see as to whether or not we've done something right and they said you know what we've done something wrong we were allowing the judge they had was looking face sickly where do the things come from that they come from arising out of the state basically the crime itself or are they more historic facts you see that's the analysis that they've been going through this your argument that you're making your  i'm not sure because i haven't i can't have it match my arguments of that word for word so my stuff comes when i'm standing here talking to you because according to the knight circuit law we're stuck with him with a rationale given to him by the hawaii supreme court i would can't find any other reasons why it might be over i would suggest to you that the rationale that i'm giving to you is wholly consistent with the decisions of the y supreme court in state versus cal completely useless like determining whether or not something is in compliance with the print before not in compliance with the present because the teaching of apprentice is simply this it is the effect of the fact when found traditional element analysis but the apprentice question this something different which is what is the effect of the fact when found and if the effect of the fact when found is to increase the maximum penalty then it is an element and although it's true that friendly law to recognize the fact they were dead serious about their analysis and so the question to be asked in this case is could the extended term sentence have been imposed on mr kala without the second step finding that is to say without the planning that is necessary for the protection of the public and the shortage that question is no and there's nothing other than that being a finding of fact and i think the prosecutor's argument in effect is listed here because it is true that in part what the sentencing judge has to do is make a prospective to make this inquiry twenty years from now when how will it be due to get out if he listens to the ordinary term that the law provides is it necessary for the protection the public that he be still subject to a longer sentence namely a life sentence mean that the extended term census authorized by white law for classic felonies and that the trial judges answer that question was yes but he couldn't answer that question yes without making fact findings and so you have the development of quite a law which predates a frenzy and then you have the development of high law which post it's a frenzy and the problem is they haven't changed their analysis even though the legal landscape has changed once the fryers are a stamp does that increase the error in their brains and that's what learned counsel is telling you that's not what the whole a supreme court is telling you the why supreme court has analyzed this case as falling within conviction were rife with respect to the possibility of nothing in to finding that the senator has necessary for the protection of the public and as i think your honor judge struck pointed out in reviewing this matter on hay vs the key is what  what is the effect of the fact when found and it doesn't matter that the effect of the fact when found doesn't matter whether then that increases the judge's discretion to give a longer sentence if it is mandatory that the judge give a longer sentence when the fact is found the question is could the judge have given the extended sentence or the longer sentence without finding the facts and if he asked that question is yes you can get the longest sentence without the finding of fact that it's not a sixth amendment element with the media frenzy but if the question is no you could not get a longer sentence without the finding of fact then it is a six and then that element under oppression and respond to the brown case it's simply this it's now clear based on the second circuit decision that in new york you are subject to the extended term without any secondary step to fact find the maximum that's right the maxim with increased once you're convicted of the two felonies and nothing else is necessary for the trial court then to exercise discretion this is what that provision necessary for the protection of the public in a hawaii statute means to the why state state supreme court which is the ultimate arbiter of what the meanings of our statutes are and they say in order to engage in meaningful review of the sentencing court's decision without involving ourselves unduly in the exercise of the court's discretion we require the sentencing court to state  records of its reasons for determining the commitment of the defendant for an extended term is necessary for the protection of public and enter into the record all findings of fact which we are which are necessary this issue they ask for those findings those  those facts simply for the purposes of appellate review that's what they say it's there for all they say all finally they say in order to engage in a meaningful review of a court's decision without they're getting ourselves into the middle of their discretionary abilities the purpose that the sooner have the lines they're telling you no actually that was by decision that's what they did in heels when they said that there have to be findings of fact and the reason that they asked for that was  specifically so that they could get review maybe that's i think it may have been i don't know i think it was rules meant they have to get the right there's a decision it basically the findings of fact a requirement by the why state supreme court that's not written in the statute there as they said that they wanted that so that we can review your discretion how do you deal with the the rain alex in the ring analogy what i take a look at this running is that's one of the death penalty cases and if you take a look at that you will see very quickly that ultimately that type of thing that both sides of a friend of both the dissent and the majority talked about there being sort of a different set of rules for death penalty cases that is different that is different is sort of what they're saying on both sides of the fence on that however i mon opinion that if it was something that our supreme court looked at and said hey this is intrinsic to the case then ultimately it would have been decided that it would have had to apply to the jury