Background
Jason Perry was convicted in 2003 of two murders committed days apart and sentenced to consecutive life sentences without possibility of parole (LWOP). After 19 years, Perry filed a Hawai’i Rules of Penal Procedure Rule 40 petition. The circuit court initially granted relief on one ground—ineffective assistance of appellate counsel—which allowed Perry to seek certiorari from the Hawaii Supreme Court. The Supreme Court in State v. Perry, 153 Hawai’i 185, 528 P.3d 524 (2023), affirmed both the convictions and sentences. Perry then filed an amended petition in circuit court, this time challenging the constitutionality of Hawaii Revised Statutes § 706-657, which permits enhanced sentencing (including LWOP) for defendants convicted of multiple murders. The circuit court denied the amended petition without a hearing, treating all remaining grounds as patently frivolous or previously ruled upon.
The statute at issue defines “previously convicted” to include “a sentence imposed at the same time or a sentence previously imposed which has not been set aside, reversed, or vacated.” The legislature had clarified in 1996 that this language was intended to permit courts to sentence defendants to LWOP “when the defendant commits two or more murders,” regardless of whether the convictions were simultaneous or sequential.
The Court’s Holding
The Intermediate Court of Appeals affirmed the denial of Perry’s petition. Addressing Perry’s jury trial claim: the court held that the Hawaii Supreme Court had already resolved this issue in its certiorari decision, holding that simultaneous convictions of two murders require no additional jury findings to trigger enhanced sentencing under HRS § 706-657. The jury found Perry guilty of murder beyond a reasonable doubt on both counts; no further factual findings were needed for the court to determine Perry “was previously convicted” within the statute’s meaning.
On Perry’s due process arguments: the court rejected both prongs. First, Perry retained the right to appeal both convictions, and the Supreme Court did affirm them. Had either conviction been vacated on appeal, Perry could have been resentenced without the enhancement. Second, Perry had fair notice: his indictment explicitly stated he was subject to HRS § 706-657 sentencing if convicted on both counts. Regarding the “fair notice” concern that a grand jury cannot find probable cause for a “previous” conviction before a defendant is convicted of the charged offense, the court found this satisfied here because both murder counts appeared in a single indictment with notice of the sentencing enhancement.
On the cruel and unusual punishment claim: applying the three-factor test from State v. Solomon, 107 Hawai’i 117, 111 P.3d 12 (2005), the court found consecutive LWOP constitutional. First, the nature of the offense and offender warranted strict penalty: the trial court had found Perry’s conduct involved torture, was “cruel and reprehensible,” and posed danger to society. Second, consecutive LWOP is not disproportionate compared to sentences for first-degree murder (also LWOP) or multiple murders. Third, other jurisdictions routinely impose consecutive LWOP for multiple murders. Finally, the court rejected Perry’s argument that only one conviction could be enhanced under the statute, reaffirming the plain language interpretation upheld by the Supreme Court.
Key Takeaways
- Hawaii law permits consecutive LWOP sentences when a defendant is convicted of two or more murders, including when those convictions are simultaneous rather than sequential.
- Simultaneous convictions qualify as “previous convictions” under HRS § 706-657 for sentencing enhancement without requiring the jury to make any additional factual findings beyond guilt on the underlying charges.
- The statute does not violate jury trial protections established in Apprendi v. New Jersey because no facts beyond the convictions themselves need to be found to impose the enhancement.
- Due process and fair notice requirements are satisfied when the indictment informs a defendant that conviction on multiple murder counts will trigger enhanced sentencing.
- Consecutive LWOP sentences do not constitute cruel and unusual punishment under Hawaii law when imposed for multiple-murder convictions.
Why It Matters
This decision represents the final chapter in Perry’s nearly decade-long effort to overturn sentences imposed in 2003. The ruling crystallizes Hawaii law on a critical question: whether a legislature may treat simultaneous convictions as “previous convictions” for sentencing enhancement without violating a defendant’s constitutional rights to jury trial, due process, and protection against cruel punishment. By affirming that simultaneous convictions can trigger LWOP enhancement, the court validated the legislature’s 1996 clarification that HRS § 706-657 was designed to permit courts to impose LWOP when a defendant commits multiple murders, without regard to the temporal relationship between the offenses.
The decision also reaffirms that the prior conviction exception to Apprendi’s jury trial requirement does not depend on temporal sequence or temporal “prior” status—only on legal conviction. This is significant for defendants facing multiple convictions in a single trial or sentencing proceeding, as it means courts need not have juries determine facts about prior sentences, even simultaneous ones, to impose enhanced penalties. The cumulative effect is to uphold a sentencing regime that subjects multiple-murder defendants to life imprisonment without parole for each count imposed consecutively, a penalty that other jurisdictions have similarly adopted.