State v. PutnamState v. Putnam
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Wе hold that Hawaii Revised Statutes (HRS) § 706-625(5) (Supp.1999), which permits a trial court on revocation of probation to impose any sentence that might have originally been imposed at the time of conviction, does not apply to the sentencing procedure attendant to revocation of a deferred acceptance of guilty plea (DAGP), the same being already specifically governed by
In answer to Defendant’s alternative point, we discern no abuse of discretion in the court’s imposition of a maximum indeterminate prison term of ten years as statutorily authorized on her conviction of a class B felony.
I.
In an April 16, 1998 indictment, Defendant was charged in Count I with committing the offense of Cоmmercial Promotion of Marijuana in the First Degree,
On July 14, 1998, Defendant pled guilty to the reduced charge of Commercial Promotion of Marijuana in the Second Degree, pursuant to a plea bargain. Under the plea bargain terms, Plaintiff-Appellee State of Hawai‘i (the prosecution) agreed “[t]o dismiss Count II and to reduce Count I from Commercial Promotion [First Degree] to [Second Degree] ... [and] not [to] seek a sentence of more than Probation with a condition of jail for 30 days straight and the remainder of any jail, [sic] suspended and standard terms and conditions.” Defendant also agreed to “serve the 30 days with no MAP.”
1
There is no reference in the plea bargain to the young adult defendant statute,
At the sentencing hearing on Octоber 22, 1998, the court “set aside the earlier acceptance of guilty plea[,]” allowed Defendant to enter a DAGP, “place[d] [Defendant] under the supervision of the Adult Probation Division for five years,” and ordered that “general terms and conditions ... apply to [Defendant] ... [as] required by law.”
On October 22,1998, an order granting the DAGP motion was entered. Under the order, Defendant was subjected to the following pertinent “terms and conditions”:
2. You must report as directed by your probation officer.
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7. If your whereabouts become unknown to your probation officer because of your failure to keep him [or her] informed, the court may order your arrest. Any failure by you to comply with any of the terms and conditions will mean that the court can accept your guilty plea and sentence you in this case.
Defendant was also required to comply with the following relevant “special conditions”:
(2) You shall pay a Criminal Injuries Compensation Fee in the amount of $200 to be paid in full one year from your sentencing date.
(3) You shall not possess, use, or consume any alcohol, unprescribed or illegal drugs nor possess any drug-related paraphernalia.
(4) You shall submit to random drug testing within two hours of the request by the Adult Probation Division. Failure to provide a sample shall be considered a positive test and a violation of your supervision.
On November 9,1998, the prosecution filed a motion for nolle prosequi with prejudice of Count II, pursuant to the plea bаrgain, which was approved by the court.
On July 2, 1999, the prosecution filed a motion to set aside the DAGP on the grounds that Defendant had violated imposed terms and conditions in (1) failing to report to her probation officer on March 25, April 16, May 28, June 7, and June 17, 1999; (2) failing to respond to letters instructing her to report on the above dates; (3) neglecting “to pay her Criminal Injuries Compensation Fee”; (4) testing positive for “cannabinoid 50” 2 on May 13, 1999; and (5) failing to obtain a substance abuse assessment as directed by the probation division.
On October 18, 1999, the prosecution filed a notice of additional grounds to its motion, contending that Defendant also (1) failed to report to her probation officer on September 24 and October 12, 1999 and (2) tested positive for marijuana use on September 23, 1999.
On October 21, 1999, the court granted the prosecution’s motion and accepted Defendant’s guilty plea. At this hearing, the prosecution recommended that the court sentence Defendant to “probationf,] up to one year jail[,] with reasonable terms and conditions of probation.” However, the court declined to do so on the basis that it did not find probation was warranted:
I frankly do not find her to be probationa-ble. She—its one thing if she conducted herself in a way that would lead me to conclude she can follow instructions; recognize the seriousness of the offense; she had some reason, substantiаl grounds to justify her conduct, particularly the marijuana use—and this is a marijuana crime— and it’s not just use or promotion.
Additionally, the court declined to acquiesce in Defendant’s request for a prison term of five years under the young adult defendant statute. Instead, the court sentenced Defendant, under ordinary sentencing provisions, to ten years’ imprisonment:
[DEFENSE COUNSEL]: Your Honor, ... I would like this court to ... consider [HRS §] 706-667, which is applicable [to] young adult defendants. One of the reasons why we entered into this plea agreement early in this case or earlier was because we want to make sure that at least statutorily [HRS §] 706-667 is applicable and that is the young adult defendant statute for Class B felonies.
She was conviсted at a time when— when she was less than 22 years of age[; she] has not been previously convicted of a felony as an adult. [HRS §] 706-667 is thus applicable, which sets maximum terms for Class B felonies to five years for a young adult defendant in this particular case.
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THE COURT:—the law says that the young adult statute, [HRS § 706 -]667, is afforded to persons who at the time of sentencing are less than 22 years of age. There’s a presumption I guess or assumption that people at that age level might be afforded different kinds of correctional treatment.
Now, [Defendant] as she stands here today is not less than 22 years of age. I understand that at the time of the sentencing she was, but I think the interpretation of the law needs to be ... read pretty specifically and she’s not—shе doesn’t fall by age into this category anymore.
[DEFENSE COUNSEL]: Your Honor,
... our interpretation of it is that it’s at the time of the original sentencing. It is, of course, within this [cjourt’s discretion as to whether or not ... to apply [HRS §] 706-667. ...
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THE COURT: When it says may, it just means that you can—that a person is not necessarily entitled by right to get this. In other words, someone ivho is 19, 20 years old doesn’t necessarily automatically get this treatment so I interpret it that way. So I will make a finding that at the age of 22, this statute will no longer apply. [Defendant] will not qualify for the young adult treatment[.]
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The [c]ourt ... [will] sentence [Defendant] to ten years in prison for the B felony offense of Commercial Promotion of Marijuana in the Second Degree. [Defendant will be] given credit for time served.
(Emphases added.)
On November 1, 1999, Defendant filed a motion for reconsideration, contending that the court’s imposition of a ten-year prison term was “especially harsh.” In her supporting memorandum, Defendant argued that under
On November 30, 1999, Defendant filed a withdrawal of her motion, stating therein that the withdrawal was based upon “an on-the-record stipulationt 3 ] that Defendant may refile her Motion to Reconsider within 90 days after the return on Appeal.” 4
II.
On appeal, Defendant first asserts that
A.
Revocation, modification of probation conditions. (1) The court, on application of ... the prosecuting attorney, ... after a hearing, may revoke probation, reduce or enlarge the conditions of a sentence of probation^]
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(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order[.]
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(5) When the court revokes probation, it may impose on the defendаnt any sentence that might have been imposed originally for the crime of which the defendant was convicted.
(Emphasis added.)
“‘[T]he interpretation of a statute[, such as
In that regard,
“our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.”
Gray v. Administrative Dir. of the Court, 84 Hawai‘i 138, 148, 931 P.2d 580, 590 (1997) (quoting State v. Toyomura, 80 Hawai‘i 8, 18-19, 904 P.2d 893, 903-04 (1995) (citations omitted)).
The language of
B.
In addition to examining the language in a statute, “ ‘the courts[, when interpreting statutes,] may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.’ ” Gray, 84 Hawai‘i at 148, 931 P.2d at 590 (quoting Toyomúra, 80 Hawai‘i at 18-19, 904 P.2d at 903-04).
We note that there is no legislative history supporting an extension of the “original sentence” provisions of
C.
1.
Were it argued that
2.
3.
On the other hand, probation is a disposition that follows only after a conviction. The provisions relating to probation,
For these further reasons, we conclude that
D.
Finally, we point out that revocation of a DAGP is specifically and expressly governed by
III.
A.
In our view, the foregoing result is also independently compelled by the public policy expressed in
(1) Defined. A young adult defendant is a person convicted of a crime who, at the time of sentencing, is less than twenty-two years of age and who has not been previously convicted of a felony as an adult or adjudicated as a juvenile for an offense that would have constituted a felony had the young adult defendant been an adult.
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(3) Special term. A young adult defendant convicted of a felony may, in lieu of any other sentence of imprisonment authorized by this chapter, be sentenced to a special indeterminate term of imprisonment if the court is of the opinion that suсh special term is adequate for the young adult defendant’s correction and rehabilitation and will not jeopardize the protection of the public. When ordering a special indeterminate term of imprisonment, the court shall impose the maximum length of imprisonment which shall be eight years for a class A felony, five years for a class B felony, and four years for a class C felony.
(Emphasis added.)
The legislative history of
While the Model Penal Code acknowledged that “the incidence of criminality and of re
cidivism
B.
The same approach was adopted by the legislature in establishing, through
In light of this legislative history, we view the textual emphasis in
C.
We regard the provisions of
IV.
At the time Defendant tendered her guilty plea on July 14, 1998, she was of
However, Defendant opted for a DAGP and a deferral period of five years with all the conditions attendant to that procedure. When Defendant’s DAGP was revoked, she was subject to all sentencing dispositions available at the time her plea was accepted.
V.
Although neither party argues that revocation under the DAGP procedure should be treated as analogous to revocation of probation, we are aware that in
State v. Kaufman,
92 Hawai‘i 322, 991 P.2d 832 (2000), this court held that
In Kaufman, the defendant, who pled guilty to twenty-six counts of first degree theft, moved for a DAGP. Kaufman, 92 Hawai‘i at 323, 991 P.2d at 833. In 1984, the circuit court entered an order granting the motion, imposed special conditions, and deferred acceptance of the defendant’s guilty plea for five years until 1989. Id.
In 1989, the deferral period was extended another five years to 1994, modifying the DAGP. Id. In 1994, the prosecution filed a motion to set aside the modified DAG plea based on violations of DAGP conditions. Id. at 324, 991 P.2d at 834. The defendant stipulated to the violations and the circuit court granted the prosecution’s motion and accepted the defendant’s guilty plea. Id.
On appeal, the defendant argued
inter alia
that “the circuit court lacked jurisdiction to set аside the modified DAG[P] because no tolling provision was applicable to toll his period of deferral, which expired before the [prosecution] filed its motion to set aside the modified DAG[P].”
Id.
at 327, 991 P.2d at 837. This court held that because a “DAG plea deferral period is closely analogous to probation,” the probation tolling provisions in
VI.
The instant case is distinguishable from
Kaufman
for several reasons. First, the
Kaufman
application of the probation tolling provision under
VII.
A.
Defendant’s second argument on appeal is that the court abused its discretion in sentencing Defendant to ten years in prison. It is well established that “a sentencing judge generally has broad discretion in imposing a sentence.” Keawe v. State, 79 Hawai‘i 281, 284, 901 P.2d 481, 484 (1995); State v. Gaylord, 78 Hawai‘i 127, 143-44, 890 P.2d 1167, 1183-84 (1995); State v. Akana, 10 Haw.App. 381, 384, 876 P.2d 1331, 1333 (1994) (citing State v. Valera, 74 Haw. 424, 435, 848 P.2d 376, 381, reconsideration denied, 74 Haw. 650, 853 P.2d 542 (1993)).
“The applicable standard of review in sentencing matters is whether the court committed a plain and manifest abuse of discretion in its decision.” State v. Guillermo, 91 Hawai‘i 307, 313, 983 P.2d 819, 825 (1999); Keawe, 79 Hawai‘i at 284, 901 P.2d at 484; State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 17 (1979). “Generally, to constitute an abuse [of discretion,] it must appear that the [trial] court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.” State v. Klinge, 92 Hawai‘i 577, 584, 994 P.2d 509, 516 (2000) (citations omitted); see also State v. Sacoco, 45 Haw. 288, 292, 367 P.2d 11, 13 (1961). “[F]actors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant’s contentions.” Akana, 10 Haw.App. at 385, 876 P.2d at 1333; see also State v. Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975).
B.
In the present case, the court’s sentence was neither “arbitrary or capricious” nor a plain and manifest abuse of its sentencing discretion. First, Defendant voluntarily entered her guilty plea in writing to the charge and did not contest it. See Akana, 10 Haw. App. at 385, 876 P.2d at 1334. In her guilty plea, Defendant acknowledged that her attorney had informed her of the possible maximum indeterminate sentence of ten years for the offense charged.
Further, the court, on the record, considered the parties’ arguments for other sentencing alternatives before imposing sentence.
See id.
at 384, 876 P.2d at 1333;
Fry,
61 Haw. at 231, 602 P.2d at 17. It discussed the prosecution’s recommendation of probation, but decided that Defendant was not probationable.
See supra
page 365, 3 P.3d
VIII.
For the foregoing reasons, we affirm the court’s October 21, 1999 Order of Re-sentencing.
Notes
. The record does not indicate what “MAP” means.
. “Cannabinoid 50” is not defined in the record.
. Defendant’s motion to withdraw states that her motion for reconsidеration came before the court for a hearing on November 23, 1999.
. Hawai‘i Rules of Penal Procedure (HRPP) Rule 35 (1980) allows a court to reduce a sentence within ninety days of a judgment on appeal affirming the judgment. HRPP Rule 35 states in relevant part:
RULE 35. CORRECTION OR REDUCTION OF SENTENCE
The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 90 days after the sentence is imposed, or within 90 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 90 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding a judgment of conviction.
(Emphases added.) See State v. Williams, 70 Haw. 566, 569, 777 P.2d 1192, 1194 (1989) (recognizing that “[a] trial court has the discretion to, within the time limits set forth by HRPP Rule 35, reduce a sentence”) (citation omitted); State v. Rodrigues, 68 Haw. 124, 134 n. 7, 706 P.2d 1293, 1300 n. 7 (1985) (noting that, following the supreme court‘s affirmance of the trial court’s judgment sentencing the defendant to ten years’ imprisonment, the trial court is permitted, under HRPP Rule 35, to exercise its discretionary power to reduce the sentence if such action would be warranted); State v. LeVasseur, 1 Haw. App. 19, 30, 613 P.2d 1328, 1335 (1980), cert. denied, 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479 (1980) (stating that, “under Rule 35, HRPP, it is open to the court below to reduce the sentence within ninety (90) days of the receipt of our mandate [affirming the judgment] if it sees fit”).
. In her notice of appeal, Defendant states that she is appealing “from the Order of Resentenc-ing [pursuant to a] Revoсation of Deferred Acceptance of No Contest Plea filed ... on October 21, 1999. (Emphasis added.) The titles of the opening and answering briefs state that this is an “APPEAL FROM THE ORDER OF RESEN-TENCING, REVOCATION OF DEFERRED ACCEPTANCE OF NO CONTEST PLEA FILED ON OCTOBER 21, 1999.” (Emphasis added.)
However, as reflected elsewhere in the record, Defendant requested deferral of a guilty plea, not of a no contest plea. In Defendant’s July 14, 1998 “Guilty Plea Form,” she entered a plea of guilty. In an October 22, 1998 order, the court granted Defendant’s motion for a DAGP. At the hearing to set aside the plea on October 21, 1999, the court “grant[ed] the motion to set aside the [DAGP] and accepted] the guilty plea of [Defendant] originally offered to the charge of commercial promotion of marijuana in the second degree.” Although thе court‘s October 21, 1999 order refers to a no contest plea, the text of the order states “that the Motion to Set Aside [DAGP] be granted[.]” The October 21, 1999 order of the court is inconsistent with the plea entered by Defendant and accepted by the court; the court is instructed to correct the pleadings nunc pro tunc.
.
. The express exception to this statement is found in
. Model Penal Code, Tentative Draft No. 7 § 6.05 (1957), relating to young adult offenders, states in relevant part as follows:
(1) Specialized correctional treatment. A young adult offender is a person convicted of a crime who, at the time of sentencing, is sixteen but less than twenty-two years of age. A young adult offender who is sentenced to a term of imprisonment which may exceed thirty days [alternatives: (1) ninety days; (2) one year] shall be committed to the custody of the Division of Young Adult Correction of the Department of Correction, and shall receive, as far as practicable, such speсial and individualized correctional and rehabilitative treatment as may be appropriate to his [or her] needs.
(2) Special term. A young adult offender convicted of a felony may, in lieu of any other sentence of imprisonment authorized by this Article, be sentenced to a special term of imprisonment without a minimum and with a maximum of four years, regardless of the degree of the felony involved, if the Court is of the opinion that such special term is adequate for his [or her] correction and rehabilitation and will not jeopardize the protection of the public.
(Some emphasis added; some brackets in original and some brackets added.)
. In interpreting statutes that appear to relatе to the same subject matter, this court has adopted three rules of statutory construction:
First, legislative enactments are presumptively valid and should be interpreted in such a manner as to give them effect. Second, laws in pan materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another. Third, where there is a plainly irreconcilable conflict between a general and a specific statute con-ceming the same subject matter, the specific will be favored. However, where the statutes simply overlap in their application, effeсt will be given to both if possible, as repeal by implication is disfavored.
Richardson v. City and County of Honolulu, 76 Hawaii 46, 54-55, 868 P.2d 1193, 1201-02, reconsideration denied, 76 Hawaii 247, 871 P.2d 795 (1994), judgment affd, 124 F.3d 1150 (9th Cir.1997) (internal quotation marks, brackets, and citations omitted) (emphasis added).
. Even if a defendant qualifies for young adult defendant treatment,
Subsection 3 merely authorizes the employment of a special, more limited term of imprisonment if the court is of the opinion that such special term is adequate for ... the defendant’s correction and rehabilitation and will not jeopardize thе protection of the public. Assuming the court is satisfied that this condition can be met, there seems no reason for not allowing the court, if it chooses, to protect the young offender from the longer maxima provided for felonies.
Commentary on
. We are aware that the parties, with the approval of the court, stipulated to defer Defendant’s motion for reconsideration of sentence until after this appeal had been decided.
See supra
note 4. At any reconsideration hearing, Defendant‘s lack of prior felony convictions as a juvenile and as an adult is obviously a factor to be evaluated by the court.
See Martin,
56 Haw. at 294, 535 P.2d at 128. Similarly, in the event reconsideration is denied, the parole board must also consider Defendant‘s prior felony-free record.
See