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Hawaii Supreme Court Finally Complies with SCOTUS’ Apprendi Decision, Vacates Enhanced Sentence Based on Fact Determined by Judge, Not Jury

by Christopher Zoukis

The Supreme Court of Hawaii, in ruling that a criminal defendant’s enhanced sentence violated the U.S. Constitution, has come on board with the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The opinion by Hawaii’s high court put an end to the Court’s almost two decades of interpretive contortions, in which it tried mightily to avoid Apprendi.

Robert Flubacher was convicted of numerous counts of robbery, assault, and theft in the early 2000s. During the course of his criminal case, the State filed a motion for an extended term of imprisonment pursuant to Hawaii statute. The trial court granted the State’s motion and enhanced Flubacher’s sentences significantly, imposing multiple life sentences with the possibility of parole.

In 2014, Flubacher filed a motion for post-conviction relief (“PCR”) in which he alleged that his enhanced sentence violated Apprendi. He noted that his sentence was extended under Hawaii law “for the protection of the public” – a fact determined by the judge, not a jury. The trial court denied Flubacher’s PCR petition, and the Intermediate Court of Appeals affirmed.

The Hawaii Supreme Court reversed. It determined that Flubacher’s enhanced sentence was unconstitutional under Apprendi.

In Apprendi, the U.S. Supreme Court held that “[o]ther 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.” For many years, the Hawaii Supreme Court upheld the State’s extended term sentencing scheme in the face of Apprendi by concluding that Hawaii’s scheme “only required the judge to determine ‘extrinsic’ facts, rather than facts that were ‘intrinsic’ to the offense.”

Here, the Court finally acknowledged that this distinction, used to permit enhanced sentences based on facts not found by a jury, is artificial and besides the point made by Apprendi. The question, as stated in Apprendi and now better understood by the Hawaii Supreme Court, is “one not of form, but of effect – does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” It does, and the application of the extended term sentencing scheme to Flubacher violates the principles of Apprendi.

“Here, a judge, and not a jury, made the required finding that Flubacher’s extended term sentence was necessary for the protection of the public,” wrote the Court. “That ‘required finding expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict.’”

“Therefore,” continued the Court, “Flubacher’s extended term sentences were imposed in an illegal manner because they violate Apprendi.

Accordingly, the Court reversed the PCR court and remanded for resentencing. See: Flubacher v. State, 414 P.3d 161 (Haw. 2018). 

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Related legal case

Flubacher v. State



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