A sentence of life in prison without the possibility of parole must be set aside for the man convicted of the 2003 shooting murder of police officer Glen Gaspar at the Kapolei Shopping Center.

A city deputy prosecutor confirmed yesterday that prosecutors concede that the sentence cannot be supported because a judge, not a jury, determined that Shane Mark was so dangerous that he warranted the state's harshest sentence.

City Deputy Prosecutor Donn Fudo said changes in the law since Mark's sentencing require a jury to make that determination.

He said his office plans to ask for a jury to be impaneled to decide whether Mark is dangerous enough to justify a prison term without parole.

Fudo disclosed his office's position during arguments before the Hawaii Intermediate Court of Appeals, which is considering Mark's appeal of his convictions and sentences. In the gallery at the hearing at the University of Hawaii William S. Richardson's law school was Renee Gaspar, Gaspar's wife, and other supporters.

She said from what she understands, if the convictions are upheld, Mark still could get sentenced to prison terms in a way that would make it difficult for him to get paroled. But she said she was disappointed the life-without-parole sentence would be lifted, at least for now.

“;I don't think he should ever be able to come out,”; she said.

The death of her husband, she said, is “;like a lifelong sentence for us.”;

Gaspar was among a half-dozen plainclothes officers who went to the shopping center on March 4, 2003, to arrest Mark in connection with charges that he shot at two men, hitting one in the leg, at a Moanalua parking lot about a month earlier.

Mark, 32, was charged with first-degree murder for Gaspar's death, but the jury found that the prosecution did not prove that Mark knew Gaspar was a police officer and convicted him of second-degree murder, which carries a life term with parole.

Circuit Judge Karen Ahn found that Mark was dangerous enough to warrant an “;extended term”; for the second-degree murder and related convictions.

Fudo said all the extended term sentences cannot be supported unless a jury decides Gaspar is dangerous.

The U.S. Supreme Court had ruled earlier that juries should make those determinations, but Fudo said for him, a decision by the Hawaii Supreme Court last year made clear that the juries here must also make those determinations.

Following that decision, the state Legislature passed a law allowing that prosecutors to have juries decide dangerousness and related issues for cases back to 2000 that had judges making findings to support extended term sentences.

Since then, no jury has found a defendant dangerous enough to warrant an extended term.

At the end of the hearing yesterday, Chief Judge Mark Recktenwald said he and two fellow judges would issue a ruling later on Mark's appeal of the convictions.

EXTENDED TERMS

Juries, not judges, must now decide whether certain convicted defendants are so dangerous that they warrant an “;extended”; sentence that increases the maximum sentence for their crimes. For example, second-degree murder carries a life term with parole, but can be extended to life without parole. City Prosecutor Peter Carlisle has estimated about 30 prisoners on Oahu can seek resentencing with juries. Here are other notable cases under the new requirements:

» The first jury convened under the new requirement ended up deadlocked on whether Patrick Lorenzo was dangerous enough to receive a life term without parole for shooting off-duty Deputy Sheriff Daniel Browne-Sanchez at a Kapiolani Boulevard bar last year. Lorenzo received a life term with parole, but also an additional 130 years in prison for related crimes.

  » Miti Maugaotega was given a life term without parole in his sentence for attempted murder for shooting a man during a Punchbowl home invasion robbery during a 2003 crime spree. But at the resentencing last month, Carlisle, after consulting with the victims, withdrew the request for an extended sentence rather than go through drawn-out proceedings that would require a new jury. Maugaotega was sentenced to life with parole, but must also serve additional, consecutive terms totaling 60 years, for his crimes.

  » City prosecutors wanted a life term without parole for Kirk Lankford, convicted this year of murdering Masumi Watanabe, a Japanese visitor who disappeared in 2007. But Carlisle withdrew the request after consulting with the prosecution's psychological expert. Carlisle determined he would not be able to prove Lankford would qualify for the harsher sentence. Lankford was sentenced to life with parole.