New law to set Hawaii killer's prison term
By Jim Dooley
Advertiser Staff Writer
By Jim Dooley
Convicted murderer John K. Lorenzo Jr. will be the central figure in two test cases of a new state law that allows longer prison sentences for certain convicted felons.
This morning, the jury that convicted Lorenzo last month of murdering off-duty state Deputy Sheriff Daniel Browne-Sanchez will re-convene to decide whether Lorenzo should receive an "extended sentence" of life without the possibility of parole.
The normal sentence for a conviction of second-degree murder is life with the possibility of parole.
It's the first time a Hawai'i jury rather than a judge will decide whether an "extended sentence" is warranted by the circumstances of the case or the felon's previous record.
Recent decisions by the U.S. and Hawai'i supreme courts have held that defendants have the right to ask that juries decide the issue of extended sentences.
After the Hawai'i Supreme Court's ruling Oct. 1, the Legislature met last month and passed a new law clarifying when and how an extended sentence can be imposed.
Lorenzo will be the first defendant to be sentenced under those new procedures.
After returning the guilty verdict in November, the Lorenzo jury was instructed by Circuit Judge Karl Sakamoto to return to court today for an additional hearing.
For more than a month, the jurors have been unable to discuss the case with others and have been under orders to avoid reading, watching or seeing news accounts of the case.
After the conviction, Deputy Prosecutor Scott Bell filed paperwork notifying the court and defense attorney Walter Rodby of the intent to use Lorenzo's past convictions, as well as an attempted escape from prison in May, as evidence that Lorenzo is a "persistent, multiple offender" and "to demonstrate why an extended term of incarceration is necessary for the protection of the public."
One of Lorenzo's convictions, for drug offenses, occurred last year, but he was not sentenced in that case until March of this year after Sakamoto allowed the defendant time to complete a drug rehabilitation program.
While supposedly attending the drug program, Lorenzo on Feb. 10 attempted the gunpoint robbery of a nightclub just down the street from the rehab center, shooting Browne-Sanchez to death during the course of that botched robbery. Browne-Sanchez was off-duty at the time, working as a bartender's assistant at the nightclub.
The following month, Sakamoto found Lorenzo to be a persistent criminal offender and, at the request of the prosecutor's office, imposed extended prison terms of 20 and 10 years for the drug offenses Lorenzo admitted committing. The judge also ordered that the two prison terms be served back-to-back, for a total of 30 years behind bars.
Defense lawyer Rodby objected to the imposition of the extended terms, unsuccessfully arguing that the U.S. Supreme Court had found similar sentences to be improper elsewhere in the country and pointing out that the Hawai'i Supreme Court was considering a ruling of its own on the issue.
Rodby then filed an appeal of the sentence, which is now pending before the state Intermediate Court of Appeals.
The state Attorney General's Office, in an effort to settle issues raised by passage of the new law, signed by Gov. Linda Lingle Oct. 31, assumed responsibility for arguing the Lorenzo appeal and one other case, filed on behalf of a defendant named Walter Cutsinger.
"There are a couple of cases where the only issue on appeal is the extended sentence," Attorney General Mark Bennett said last week.
In both the Lorenzo and Cutsinger cases, Bennett's office has filed paperwork agreeing that the sentences were unlawful but arguing that the new state law can be applied for new extended sentences of both defendants.
The issue to be determined in both appeals is whether the new law can be applied "ex post facto," or after the fact, to cases where sentencing has already occurred.
Bennett's office says it can, that the Legislature and the administration crafted the law in such a way that it merely lays out a new procedure in sentencing and does not expose a defendant to additional punishment.
The new law, called Act 1, "in no way disadvantages Lorenzo or increases his potential punishment, but instead effects a purely procedural change in Hawai'i's sentencing law," the state said.
Under the new law, a defendant like Lorenzo who has been sentenced and who questioned the legality of the sentence at trial or on appeal can now ask that a jury decide the issue of extended sentencing. In the Lorenzo drug case, a new jury would have to be empaneled to hear sentencing arguments from the prosecution and defense. In the murder case, it's the same jury that delivered the guilty verdict.
State and city prosecutors said they did not know how many defendants who have already received extended terms of imprisonment can now ask to be resentenced.
Criminal defense lawyer Earle Partington believes there are "dozens and dozens " of cases that qualify and he also believes that the new Act 1 law is plainly unconstitutional.
Bennett's office said in the Lorenzo appellate case that the court needs to make a ruling quickly.
"The state urges this court to make an express finding that Act 1 is constitutional," the appeal said.
"This is a case where appellate precedent is absolutely critical to provide guidance to the sentencing courts," the appeal continued.
"Without such guidance, sentencing courts would be left to determine the constitutionality of Act 1 on a judge-by-judge basis," Bennett's appeal said.
Reach Jim Dooley at firstname.lastname@example.org.