2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
706. Disposition of Convicted Defendants
706-668.5 Multiple sentence of imprisonment.

Law Journals and Reviews

The abandonment of Punishment. 16 HBJ 63.

§706-668.5 Multiple sentence of imprisonment. (1) If multiple terms of imprisonment are imposed on a defendant, whether at the same time or at different times, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively.

(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth in section 706-606. [L 1986, c 314, §45; am L 2008, c 193, §1]

COMMENTARY ON §706-668.5

Act 193, Session Laws 2008, amended this section to promote consistency in sentencing law by requiring that multiple terms of imprisonment, whether imposed at the same time or at different times, run concurrently unless the court orders or the statute mandates that the terms run consecutively. Testimony indicated that there had been some misunderstanding and misinterpretation of the sentencing law involving multiple terms of imprisonment. Act 193 clarified the law. Conference Committee Report No. 81-08, House Standing Committee Report No. 688-08, Senate Standing Committee Report No. 3337.

Law Journals and Reviews

State v. Kumukau: A Case for the Application of Eighth Amendment Proportionality Analysis. 13 UH L. Rev. 577.

Case Notes

Statute (pre-2008) discussed, where defendants' motion for partial summary judgment was granted as to counts alleging violations of the state constitution and negligence, but was otherwise denied, in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention". 678 F. Supp. 2d 1061.

Sentencing court's imposition of consecutive prison terms pursuant to this section constituted an abuse of discretion, where court's sole purpose in imposing consecutive terms was to maximize the supervisory power of the Hawai`i paroling authority over defendant in an attempt to facilitate the collection of court-ordered restitution. 78 H. 127, 890 P.2d 1167.

Sentencing court did not abuse its discretion in resentencing appellant to consecutive terms of imprisonment. 79 H. 281, 901 P.2d 481.

Extraordinarily sadistic and cruel manner in which defendant committed offenses and defendant's past behavioral history required retributive, incapacitative and deterrent penal objectives of consecutive terms of imprisonment achieved under this section. 83 H. 335, 926 P.2d 1258.

Trial court plainly erred in sentencing defendant to consecutive terms of imprisonment based on the unsubstantiated allegation that defendant had transferred a semi-automatic firearm to a drug dealer. 106 H. 441, 106 P.3d 364.

Where defendant was convicted by the jury of five first-degree thefts, each of which defendant was sentenced to ten years' incarceration, and pursuant to §706-660 and this section, five ten-year terms running consecutively was the statutory maximum, defendant's sentence did not deprive defendant of defendant's right to a jury trial as interpreted by the U.S. Supreme Court in Apprendi and Blakely. 111 H. 267, 141 P.3d 440.

Imposing a prison sentence consecutively to "any sentence" pursuant to §706-606.5(5), including the lesser of such sentences, is a novel, but accurate view of the statute; thus, henceforth, the circuit court must state on the record its reasons for imposing a consecutive as opposed to a concurrent sentence under §706-606.5 or this section. 122 H. 495, 229 P.3d 313.

Trial court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment under this section where, taking into consideration all of the factors set forth in §706-606, the court pointed to the high level of cruelty, violence, and viciousness involved in the commission of the offenses, that most of the offenses took place in front of defendant's two-year-old son, defendant's lack of remorse, the clear and present danger defendant posed to complainant and the community, and the poor prospects for defendant's rehabilitation. 106 H. 365 (App.), 105 P.3d 242.

Discussed: 81 H. 421 (App.), 918 P.2d 228.