In 2003, Robert Flubacher pleaded guilty to multiple offenses, including charges he assaulted three people in a Waikele home with a knife and hammer.

A state judge decided the 35-year-old man was a public danger and handed him an extended prison sentence.

Now the Hawaii Supreme Court has ruled that Flubacher’s sentencing was unconstitutional. The state’s high court cited a U.S. Supreme Court decision that found that under the Sixth Amendment, a jury — not a judge — must decide whether the facts of a case make an offender eligible for an extended sentence.

For Flubacher, it means a chance for resentencing. On two counts of first-degree armed robbery, a judge had escalated the terms of his imprisonment from a pair of 20-year sentences to life with the possibility of parole. The length of his sentences on three other counts were increased by 20 years cumulative.

The March 21 decision is expected to have broader implications. An untold number of criminal offenders were given lengthened sentences in Hawaii during a seven-year period when the court’s sentencing structure was out of compliance.

Deedy Trial Hawaii Supreme Court Otake addresses justices. 2 feb 2016

The Hawaii Supreme Court recently ruled that a jury, not a judge, must decide whether an offender receives an extended sentence. The decision could lead to the resentencing of several offenders in the state.

Cory Lum/Civil Beat

On Oahu, there are at least three cases similar to Flubacher’s that could now be subject to resentencing, according to the Honolulu Department of the Prosecuting Attorney.

Attorney David Bettencourt, who is representing an offender who received an extended sentence for his second-degree murder convictions, estimates 13 offenders have unsuccessfully challenged their extended sentences received during the period when the state was out of compliance.

Federal Ruling Wasn’t Followed

Federal protocol for extended sentencing by a jury dates back to a 2000 U.S. Supreme Court opinion on a New Jersey case in which a man fired gunshots into the home of a black family living in a mostly white neighborhood. The shooter, Charles Apprendi, pleaded guilty to possession of a firearm for an unlawful purpose.

The judge determined the shooting was a hate crime. As such, he increased Apprendi’s sentence beyond the statutory maximum term as dictated by the scope of the jury’s verdict.

The U.S. Supreme Court granted Apprendi’s appeal of the sentencing procedure, concluding that a criminal defendant is entitled to “a jury determination that (he) is guilty of every element of the crime with which he is charged.”

The court reasoned that the effect of Apprendi’s extended sentencing “unquestionably … turn(ed) a second-degree offense into a first-degree offense,” and that the doubling of Apprendi’s sentence from 10 years to 20 years was “unquestionably of constitutional significance” both in terms of years of imprisonment and the “more severe stigma attached.”

The decision presented the lower court with this litmus test: “Does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”

Although the decision went into effect in 2000, the Hawaii court did not immediately update its sentencing structure to comply with Apprendi vs. New Jersey.

The move to compliance came in 2007 when the U.S. Supreme Court shot down a Hawaii Supreme Court ruling that upheld a string of extended sentences for a man convicted in the shooting of a Punchbowl resident.

That decision vacated the extended sentence of life in prison without parole given to Miti Maugaotega Jr. for a second-degree attempted murder conviction. It did not, however, affect the 10 consecutive life sentences Maugaotega was serving for other violent crimes.

Although the Hawaii court did eventually adopt the new sentencing guidelines, it has historically denied petitions from criminal offenders who had already been improperly sentenced by the old guidelines between 2000 and 2007.

‘Judges Using Word Games’

Flubacher on three occasions filed a petition for post-conviction relief alleging that his sentence was illegal. The court found them all meritless, arguing Apprendi could not be retroactively applied.

Flubacher’s sentencing occurred in 2003 — well after the Apprendi opinion. But the court claimed that the “legal landscape” only became clear after two later cases in 2004 and 2005 established the state’s previous sentencing strategy as invalid.

The state now concedes that any extended-term sentence imposed after June 26, 2000, is subject to Apprendi, according to the Hawaii Supreme Court decision.

On Oahu, there are at least three cases similar to Flubacher’s that could now be subject to resentencing, according to the Honolulu prosecutor’s office.

One of them pertains to the man who strangled, decapitated and dismembered a Waikiki prostitute in 2002.

Donald B. Marks is challenging his second-degree murder sentence of life without parole because it was a judge who deemed him a danger to society, according to court documents.

Bettencourt, who is Marks’ attorney, said the decision should have been made by a jury and proved beyond a reasonable doubt.

“I’ve been practicing law here for 45 years,” Bettencourt said. “I’ve never seen this kind of bullshit of judges using word games to try to get around a federal law. And the problem is these guys don’t get that much sympathy because these are the worst of the worst offenders.”

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