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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. 

Electronically Filed

Supreme Court

SCWC-13-0002894

24-NOV-2015

08:09 AM
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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 selfimage, 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 factfinding, 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