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The Honolulu Advertiser

Posted on: Friday, December 17, 2004

Judge's life prison term decision ruled invalid

By Ken Kobayashi
Advertiser Courts Writer

A federal judge has overturned a life prison term for a Hawai'i man convicted of a 1998 standoff with police, saying he was improperly sentenced to a life term. The ruling could place other state sentences, most notably the one handed to Shane Mark for killing a police officer, in jeopardy, lawyers said.

Wayman Kaua

Susan Oki Mollway

U.S. District Judge Susan Oki Mollway ruled last week that Wayman Kaua should receive a 20-year term after he was convicted of attempted manslaughter following the standoff, in which he fired more than 17 shots and left thousands of Pearl City residents stranded for about 22 hours.

No one was killed, but Kaua shot at officers before being shot by a police sharpshooter.

Mollway said the life term violated Kaua's federal constitutional rights because a state judge, not the jury, enhanced his sentence, from a maximum of 20 years he was facing for the conviction on attempted manslaughter and related counts, to life in prison.

If upheld on appeal, the decision could call into question other enhanced sentences, including the life term without parole for Mark, who was convicted of killing Officer Glen Gaspar at a Kapolei ice-cream shop.

City prosecutors could not be reached for comment on whether they will appeal Mollway's decision to the 9th U.S. Circuit Court of Appeals, but the decision was hailed by defense attorneys.

"The sour-grapes practice of losing at trial and then seeking enhanced sentences before a judge is no longer an option for prosecutions in this state," said Todd Eddins, a Honolulu criminal defense lawyer who represented Kaua as a public defender. "If they want to seek enhanced sentencing, they must demonstrate the appropriateness to a jury."

Mollway's decision won't apply retroactively to all people who received an extended term based on a judge's findings.

State Public Defender Jack Tonaki said that enhanced or extended sentences rarely are granted, but that Mark's sentence appears to fall under Mollway's decision.

Mollway's ruling follows U.S. Supreme Court mandates in 2000 and this year that juries, not judges, must determine factors that would increase sentences.

It was initially thought the U.S. Supreme Court rulings would not have much effect in Hawai'i's courts because juries can give harsher sentences based on circumstances like whether a firearm was used or whether a crime was so egregious that it required a sentence of life without parole.

In addition, the Hawai'i Supreme Court affirmed Kaua's life term based on then-Circuit Judge Wendell Huddy's finding that the sentence was necessary to protect the public. The Hawai'i court ruled that the U.S. Supreme Court mandates did not apply.

In her 29-page decision issued Dec. 9, Mollway disagreed.

Kaua, 36, was charged with first-degree attempted murder. Prosecutors said he tried to kill three police officers with shots fired from a semiautomatic assault rifle during the standoff Oct. 28-29, 1998.

The standoff ended when Kaua was shot below the ear by a police sharpshooter, leaving him blind in one eye.

Kaua's defense was that he never intended to kill the officers, who were not shot. Nor was anyone else shot.

The jury rejected the attempted-murder verdict and convicted Kaua on lesser offenses of attempted manslaughter and other charges that ordinarily carry a maximum 20-year term.

But at sentencing, Honolulu Prosecutor Peter Carlisle asked that Kaua's sentence be extended to the life term because he committed multiple offenses and the sentence would be "necessary for the protection of the public."

Huddy granted the extended term. He said Kaua abused drugs and could not control his behavior when under the influence of drugs or under extreme stress. The state high court twice affirmed the sentence, the latest ruling coming in 2003.

"The Hawai'i Supreme Court's conclusion that Kaua's extended sentence did not violate (the 2000 U.S. Supreme Court decision, Apprendi v. New Jersey) was contrary to, and involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court," Mollway wrote.

In the Apprendi decision, the U.S. Supreme Court struck down a New Jersey law that allowed a judge to enhance a sentence if the crime was committed to intimidate people based on their race, color, gender, handicap, religion, sexual orientation or ethnicity.

The court reasoned that a sentence must be based on findings by a jury and the law took away that assessment from the jury and gave it to a judge, violating a defendant's Sixth Amendment right to a trial by jury.

The latest ruling, Blakely v. Washington, affirmed that decision in June.

Federal Public Defender Peter Wolff Jr., who represents Kaua, said Mollway's ruling would apply to cases in which the appeal of the sentence was still pending when the Apprendi decision was issued in 2000. In addition, the defendants must raise the issue in federal court within a year of completion of the appeal, he said.

The Shane Mark case is one of those cases. He went on trial on a charge of first-degree murder, accused of shooting Officer Gaspar three times on March 4, 2003. First-degree murder carries a mandatory life term without parole.

But the jury found him guilty of a lesser offense of second-degree murder, apparently believing he did not know that the plainclothes Gaspar was a policeman. Second-degree murder carries a life term with parole.

At the sentencing, Circuit Judge Karen Ahn found that Mark would pose a danger and gave him the enhanced sentence of life without parole.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.