*1 fry outside McDonald’s restaurant but further consistent with the fore- [a] premises going analysis. inside the and sus Wal-Mart injuries. tained The restaurant located [wa]s
inside the Wal-Mart.” 93 Hawai'i at plaintiff released Mc settlement, pursuant pro
Donald’s but against
ceeded to trial Id. After Wal-Mart. jury apportioned liability 95% to
“[t]he plaintiff
Wal-Mart
and 5% to” the
damages,
“a
awarded
Wal-Mart moved for
Mart Id. On certiorari REIS, Reis, aka Susan Suzanne ICA, ultimately upheld we the trial court’s Defendant-Appellee. special omission of McDonald’s from the ver dict form had inasmuch as Wal-Mart not Hawai'i, Plaintiff-Appellant, McDonald’s, against cross-claimed but we agreed joint McDonald’s was tortfea- sor, having on no other basis than its been Reis, Reis, aka Susan Suzanne named as a defendant. See id. at Defendant-Appellee. 412-13. Nos. Summary
d. Supreme Court of Hawai'i. adjudication An actual of fault is not a prerequisite party’s qualification to a as a Aug. purposes Taylor “tortfeasor” rule.
Having proceed adjudica- not elected DaimlerChrysler’s fault,
tion of Zane bore consequences recovering any settle- amount, “meager,”
ment from Da- however
imlerChrysler. Moreover, a UIM insurer’s settlement, more,
consent to absent does not Taylor “gap.”
constitute a waiver of the
Still, appeal genu- the record on reflects a respect
ine issue of material fact with Liberty communicated to
whether Mutual DaimlerChrys-
Zane that it did not consider $200,000.00 exceeding
ler’s self-insurance Taylor “gap.” estop-
be a Inasmuch as the ripe summary judg-
pel question
ment, remand to the circuit court. On we
remand, wish, parties may, they if file summary judgment on
new motions for what- supportable grounds they choose to as-
ever
sert.
IV. CONCLUSION opinion in Zane I
We vacate the ICA’s judgments and the circuit
and the of the ICA
court and remand to the circuit court for *2 Thomas, Deputy Prosecuting
Loren J. At- briefs, torney, on plaintiff-appellant, State of Hawaii. Niwa,
Stephen Deputy Defender, T. Public briefs, defendant-appellee, on the Susan Reis.
MOON, C.J., LEVINSON, NAKAYAMA, DUFFY, JJ.; ACOBA, J., and Dissenting.
Opinion by LEVINSON, of the Court J. plaintiff-appellant State of Hawaii [hereinafter, prosecution”] “the appeals from January judgment of conviction probation of the circuit court of the first circuit, presid- Honorable Steven S. Aim ing, convicting the defendant-appellee Susan (Cr.) pro- Reis Criminal No. 04-1-0028 of moting dangerous drug degree the third (Count I), in violation of Hawaii Revised (HRS) § (Supp.2002), Statutes un- (Count II), drug paraphernalia lawful use of conviction, 329-43.5(a) she light undisputed prior § of HRS in violation and, therefore, should repeat § offender of HRS 712-1200 was prostitution, violation HRS (Count pursuant III), convicting her have been sentenced (Supp.1998) (Supp.1999).2 drug of- 706-606.5 04-1-0675 of the same in Cr. No. incident, separate upon a
fenses based *3 in section For the reasons discussed infra alia, her, five-year peri- to a sentencing inter III, in that the circuit court erred we hold § to HRS 706- probation, pursuant od of drug sentencing a first-time offender Reis as (Supp.2004).1 622.5 repeat offender. We therefore rather than a 11, January 2005 sentence and prosecution asserts that the vacate appeal, On repeat resentencing as a offend- illegal remand for imposed an sentence circuit court as, er, § pursuant to HRS 706-606.5. probation, inasmuch sentencing Reis to 2002, pro- complete abuse treatment July legislature a substance enacted 1. Effective person gram § that the predecessor to HRS 706-622.5 if the court determines statute 161, § (Supp.2004) later codified at abuse treatment in Act can benefit from substance and, provided (Supp.2002), person notwithstanding § which would be HRS 706-622.5 part: repeat under in relevant a to offender 706-606.5, person § should not [HRS ] drug Sentencing first-time offenders.... for public. (1) protect ... Notwithstanding any penalty to or sentenc- incarcerated in order (con- §§ pt. 11 and 33 at ing provision ch. IV Haw. Sess. L. Act [HRS under See 2004 227; 706-622.5(1) (2) drugs cerning (Supp. § to and intoxicat- and offenses related HRS 2004) ing compounds)], person for the (emphases a convicted of Act Section 29 any [HRS under ch. first time for offense version found at HRS from the codified absent ..., including involving possession 706-622.5, pt. not IV] § follows: "This Act does reads as matured, manufacture as defined to distribute or penal- rights and duties that not affect 1997)], any (Supp. § dan- incurred, ] [ 712-1240 [HRS proceedings that that were and ties non-violent, drug gerous ... as deter- who is begun, before its effective date.” See reviewing the: mined the court after 44, § at 227. Haw. Sess. L. Act defendant; (a) history of the Criminal (b) of the offense for Factual circumstances part: provided § in relevant 2. HRS 706-606.5 sentenced; being and the defendant is (1) § Notwithstanding 706-669 [HRS ] (c) relevant Other information deemed 1996) hearing (providing parole [(Supp. for court; therefor) any procedure other law to ] and [para- in accordance with shall be sentenced contrary, any person ... [HRS convicted of (2); person graph] provided does not that the prior convic- § ... and who has a 712-1243 ] any felony violent for five have a conviction for felony any of the class C tion for immediately prece[]ding years the date [including HRS above enumerated offenses for which the defen- of the offense commission 708-836, relating § to unauthorized control being dant is sentenced. vehicle,] propelled ... shall be sentenced [a] (1) (2) [paragraph] person eligible under A period imprison- mandatory minimum undergo probation be sentenced shall during possibility parole such ment without drug program.... complete a treatment period as follows: §§ 12 at L. Act 3 and 2002 Haw. Sess. (a) felony prior 1, 2004, One conviction: legislature Effective 575. § read: HRS 706-622.5 to amended (iv) is for a conviction Where the instant Sentencing offenders.... for first-time felony above— 706-620(3) enumerated class C offense (1) § Notwithstanding ] [HRS months; offenders) ], eight year, one repeat (disallowing probation for [ any person time convicted first (3)[ (2) (concerning Except [paragraph] pt. involving as in IV] [HRS under ch. including offense adults) ], person ..., young shall special terms for possession not to distribute mandatory minimum to a § not be sentenced ] [HRS manufacture defined un- period imprisonment under this section eligible any dangerous drug to be of sentenced (2) felony was committed the instant offense [paragraph] if less probation under following person criteria: meets the (a) person The court has determined (e) felony years con- five after reviewing person's Within is nonviolent prior felony conviction where the viction history, circumstances the factual felony enumerated being a class C offense person was for for which the of the offense sentenced, above[.] informa- other relevant 8, 2006, May amended Effective tion[.] respects immaterial to the § HRS 706-606.5 Haw. Sess. L. Act present See 2006 [paragraph] matter. person eligible under A §§ 234-37. undergo 1 and 7 at probation be sentenced tence, I. five-year BACKGROUND Reis to a term of probation. 5, 2004, January charged by On Reis was
complaint in Cr. No. 04-1-0028 with Counts 25, 2005, January prosecution On filed I, II, and III in connection events that with sentence, a motion for reconsideration of on or occurred about December February the circuit conducted a April 04-1-0675, hearing
On
in Cr. No.
on the
motion. The
charged by complaint
Reis was
argued
new
the circuit court
erred
sen
§
(Supp.2002)
violations
HRS
tencing
probation
§
Reis
under
706-
HRS
I)
(Count
329-43.5(a) (1993)
and HRS
(Supp.2004), originally
622.5
enacted as Act
II)
(Count
in connection with events that
supra
noting
see
note
that Act
did
April
occurred on or about
go
July 1,
into effect until
while
*4
upon
Reis’s convictions were based
incidents
22, 2004,
pro-
On June
in a consolidated
that occurred on December
2003 and
ceeding,
pled guilty
Reis
to all counts. On
April
complaints
and
that were filed
9, 2004,
July
prosecution
filed a motion
January
April 7, 2004, respec
on
2004 and
sentencing
repeat
as a
offender. The
that,
tively.
prosecution
pursu
The
argued
prosecution’s motion
on
pri-
was based
Reis’s
Smith,
precedent
ant
in
to our
State v.
01-1-1533,
in
or conviction
in Cr. No.
(2003),
P.3d 408
State v.
and
vehicle,
unauthorized control
propelled
of a
in
Walker,
The court conducted the Supreme Court also In pointed out in Avilla that when there is right. agree All I with [Reis]. [In] meaning, of or indis- arrest, doubt or doubleness plea, ... the convic Walker tinctness, uncertainty tion, expression or of an sentencing, place all before Act took statute, daté, ambiguity that an ex- 2004. And Act used D44’s say not affect in the Court should 44 does the Act ists. And such [“]does mature[d], legislature for rights penalties and duties that look at the intent of the before, incurred, the intent guidance. And as I said were clear, give the Court more begun the effective and that’s date.[”] sentencing. discretion arrested, Here, pled, she Reis was plea approximately and I think the prosecu- denied the The circuit court then date.[4] Act 44 But the week before the extension, to an on tion’s motion. Pursuant after that. And there was well 11, 2005, timely filed March legislature in question is no their word appeal in both Cr. No. 04-1-0028 notices of group non-violent intended a broader of 04-1-0675, docketed and Cr. No. which were eligible for consider drug offenders will be 27171 and Supreme Court Nos. undergo probation ation for order to order consoli- respectively. Our June 2005 And that the drug treatment. appeals under No. dated the two present more discretion wants sentencing. I believe that Ms. Court OF REVIEW II. STANDARDS criterion], that both into that Reis fits Sentencing A. society her will be better off with she “ and the getting dual-diagnosis care court to authority ‘The of a trial up care that are set for her treatment severity penal of select and determine repeat sentencing her as a rather than normally on review the ty is undisturbed prison. offender and her to apparent an abuse of discretion absence of statutory applicable or constitutional from unless I think case different [this is] ” State have not been observed.’ timing.... Penal- commands Walker because of 17, 22, 25 P.3d 797 Aplaca, date v. 96 Hawai'i after the effective ties were incurred 22, 2004, guilty June nine noting in both matters on entered her counts days It bears that Reis 44 pleas and 04-1-0675 took effect. in both Cr. Nos. 04-1-0028 before the guilty adjudged all her and the circuit court (2001) Jenkins, (quoting construe it in a manner consistent with State Hawai'i (2000)). 87, 100, purpose. 997 P.2d doubt, When there is doubleness of (COLs) B. Law Conclusions meaning, Of or indistinctiveness or uncer- “ statute, tainty expression of an used in binding upon ‘A COL is not ambiguity an exists.... appellate freely an and is reviewa ” ble for statute, its correctness.’ AIG Hawai'i ambiguous In an construing Caraang, 74 Ins. Co. v. Estate Haw. meaning ambiguous “[t]he words (1993) 620, 628, (quot context, 851 P.2d may by examining sought be ing Amfac, Waikiki Inc. v. Beachcomber words, ambiguous phras- with which the 85, 119, Co., Inv. 839 P.2d es, may compared, and sentences (1992)). ordinarily This court reviews meaning.” order to their true ascertain right/wrong (1993) under 1-15(1) COLs standard. Moreover, ]. HRS [ Holt, 224, 232, re Estate Haw. courts resort extrinsic aids “ (1993). Thus, 857 P.2d ‘[a] determining legislative intent. One ave- supported by COL that the trial legislative history nue is the use of as an [findings of fact] court’s reflects interpretive tool. 873 P.2d
State will not be overturned.’ Estate raang, 74 ing Amfac, *6 erroneous case.” an omitted). conclusions are and law is reviewed under the v. (quoting Amfac, circumstances presents Furutani, 51, 29) (internal quotation [59] Haw. standard at Inc., 629, (1994). mixed dependent upon 29). the correct 76 74 Haw. at because the of Hawai'i “However, Inc., questions ” each individual 851 P.2d at rule of law 172, [180], 326 119, the facts Haw. at a COL clearly court’s marks (quot fact 839 Ca to the use of preting give result, 77, (2001). ous Nevertheless, divia, [ Gray Hawai'i 85 P.3d statutory effect to the 95 see State v. Koch, 1, 7-8, [v. Admin. Hawai'i ] ambiguous [138,] (footnote omitted). 178, language; legislative absent (quoting State v. 184 plain meaning 465, 472, Haugen, (2004), Dir. statute. State v. Val 931 P.2d we history absurd or 24 we are bound to 104 Hawai'i P.3d when inter Kaua, unambigu Court], [580,] 661, (2003)). unjust resort 668 71, III. DISCUSSION Ponce, 445, Allstate Ins. Co. v. 105 Hawai'i (2004) (some 453, 96, 99 P.3d 104 internal A. The Parties’Arguments omitted) (bracketed citations material al- 1. Reis that contends circuit court tered). correctly interpreted allegedly am- Interpretation C. Statutes Of U, biguous language Act section 29 11, January interpretation of a statute exclude the 2005 sen- question tencing hearing, thereby correctly ap- de law reviewable novo. State v. Arceo, 1, 10, 843, UU, plying prospectively section 11 84 Hawai'i 928 P.2d 852 (1996). to her case.
Furthermore, statutory our construction is prosecution disagree Reis and the by guided rules: established regarding meaning following of the un statute, construing phrases
When our foremost derscored Act 44’s within obligation give rights is to ascertain and effect clause: “This Act does affect penalties legislature, matured, intention of which duties that were in curred, begun, primarily is to be obtained from the that were date,” language supra contained the statute before its see itself. effective note statutory And language meaning we must read in Reis “in maintains “proceedings” context of the entire statute and curred” and cannot be divined
85
327,
274,
(2002),
certainty
plain language
from the
of the
Hawai'i
60 P.3d
with
295, 302,
Vallesteros,
cited
savings clause5
the eases
v.
84 Hawai'i
State
prosecution,
interpret
Rodgers,
which
the same
P.2d
and State
merely
language
legislation,
(1986).
in other
illus-
438, 443,
718 P.2d
Haw.
statutory
var-
interpretations
trate how
have
argu
light of the
In
dissent’s insistence
ied, thereby bolstering
argument
her
44, section 11
ing
of Act
language
of Act 44’s
clause is inher-
(see,
retroactively7
e.g.,
be
should
Walker;
ently ambiguous.
(Citing
n.32, 165
98, 113
P.3d
dissenting opinion
&
Feliciano,
269, 274,
103 Hawai'i
n.32),
important
1014 &
em
(2003); Avilla,
750 P.2d
Haw.
character
phasize that Reis herself does not
Kai,
80;
44 P.3d
State v.
Hawai'i
argument
implicating
her
retroactive
Werner,
ize
State v.
(App.2002);
only that
application. Reis contends
(App.2000);
State v.
Johnson,
are am
“proceedings”
and “incurred”
terms
(App.1999).)
argues justifies
she
a review
biguous, which
underlying Act 44.
legislative history
that,
argues
forego-
Reis
inasmuch as
history,
legislative
argues, supports
she
ambiguous,
ing terms are
the circuit
“proceedings”
a construction
term
correctly
into the
his-
delved
Act’s
sentencing
of the term
hearing
include
tory
support
the circuit court’s COL
sentence,
imposition
“incurred” to mean
refer,
“proceedings” can
iso-
the word
ap
prospective
both of which would allow a
lation,
af-
hearing
to a
conducted
supra
see
note
plication of
section
date, thereby
effective
authoriz-
ter Act 44’s
grounding the relevant
to her case
court’s
of Act
the circuit
chronologically
Act 44’s
events
§ 706-
ll’s
amendments
to HRS
not, by contrast, characterize
622.5,
date. She does
authorize
supra note
so as to
see
conclusion,
amendments
Act 44’s
probation.6
sentencing Reis to
as retroactive—which
her case
ambiguity
she
should
asserts
e
favor,
sentencing pro
requir viewing the
keeping
the would
her
construed
Shimabukuro,
prose-
part
unitary
lenity, citing
ceeding as
rule of
State v.
701-101(1) (1993),
unambiguous
facto,
another
quotes HRS
render
otherwise
5.Reis
ambiguous.
spontaneously
*7
by Act
term
provides that "amendments made
1986,
do
of Hawaii
to this Code
Session Laws
reports to
6. Reis cites to
committee
apply
the effec-
not
to offenses committed before
underlying Act 44's
that the intent
demonstrate
314,
Hawaii
of Act
Laws of
tive date
Session
§
was “to clear
to HRS 706-622.5
amendments
savings
unambiguous
example
as an
of an
1986”
regarding repeat offenders and
up the confusion
clearly
offenses committed
clauses
excludes
treatment,
eligibility
drug
and
the criteria for
for
argues
prior
that the
to an effective date. She
by
in sentenc-
permit more discretion
the court
44,
29,
legislature,
use
in Act
"chose to
section
ing”
thereby
of non-
to
the number
and
increase
ambiguous
proceedings that were
terms of
the
drug
eligible
probation un-
for
violent
offenders
”
begun’
'penalties
and
were incurred’
(Quoting
§
2004 Haw. Sess.
HRS 706-622.5.
der
argues
phrases are
conclude
the two
that to
44,
212-13.)
argues
§
that the
Act
9 at
Reis
L.
statutory
ambiguous would violate rules of
not
savings
interpretation
the
court's
circuit
added.)
(Emphasis
interpretation.
comports with that intent.
clause
too,
dissent,
ambigui-
The
asserts that to avoid
44,
argues
29 does
that Act
section
7. The dissent
ty
required
use
was somehow
the
application of the amelio-
prevent retroactive
not
savings
phrase
"offense committed”
the
See, e.g.,
dis-
rative amendments Reis's case.
and,
so,
failing
ambigui-
by
created
98,
999,
do
senting opinion
P.3d at
Dissenting opinion
ty.
therefore,
at 104
noting,
that in
It is worth
1014-15.
court,
infra,
in State
463,
n.7. As discussed
this
Brantley,
P.3d 1252
v.
99 Hawai'i
State
187, 191,
Berg,
65 P.3d
savings
den
(2002),
v. Van
analyzing an identical
134,
12,
implicitly
clause,
that the
§
concluded
Act
compare 1999
L.
Haw. Sess.
44,
language
"proceedings”
plain
of the term
Haw.
L. Act
29 at
with 2004
Sess.
at 12
227,
clearly
savings
language
standard
betokened—so
that the same
the dissent asserted
legislature's express
represented
initiation
direction
to warrant further comment—the
"the
not
Contrary
impli-
retro-
prosecution.
amendment
not to be
of a criminal
L,
483,
(Acoba,
logic,
actively.”
the ab-
56 P.3d
of Reis's and
dissent's
cation
not,
dissenting).
ipso
unambiguous
does
of one
term
sence
rejected
charging
argument
ration initiated
instruments
have
sen-
January
18, 2004—and,
tencing hearing
qualify
can
April
dated
as a severable
therefore,
“proceeding”
purposes
escaping
for
challenge
does not
court’s con
alia,
(Citing,
effect of a
Walker,
10, 100
clause.
inter
clusion
106 Hawai'i at
Feliciano, 103
Hawai'i
that Act 44 does not
retroac
1188;
Berg,
v. Van den
Hawai'i
State
tively.
(2003)).
pros-
Nevertheless,
extent that Reis’s ar-
challenges the
ecution also
circuit court’s re-
guments could
implicitly
be construed as
Avilla, insisting
proceed-
liance on
that bail
arguing
application,8
for retroactive
and in
ings
distinct
in nature and character
thorough analysis,9
the interests of
we’ ad-
proceedings,
from criminal
distinguishing the
dress, infra,
arguments
the dissent’s
favor
ambiguity
discerned
this court in Avilla in
of retroactive
of Act
section 11 the
“proceeding”
plain
term
from the
lan-
case.
Reis’s
guage of Act
29. (Citing
section
State v.
Miller,
n
prosecution argues
2. The
that Act
(1995) (for
proposition
during ap-
unambiguously
section 29
peal,
jurisdiction
the circuit
loses
over
refers
of-
that were
committed
crimi-
jurisdic-
proceeding
the criminal
but retains
fenses
nal
bail).)
that were initiated
tion over
prior to Act
date.
iffs effective
that,
prosecution
contends
insofar
prosecution
plain
contends that
Reis
drug-
committed two distinct
language of the
clause bars Reis
apart,
related
several months
offenses
from access to Act 44’s amendments because
her conviction
the latter
offense
penalty
upon
“a
is ‘incurred’
commission of
precludes the circuit court
sen-
offense,”
penalty
whereas the
tencing
drug
her as a first-time
offend-
imposed by
itself “is
the court at sentenc
er.
ing,”
penalties
and that Reis “incurred” the
Finally,
argues that
April 2004,
issue
December 2003 and
circuit
by failing
court erred
to note that
(Emphasis
44’s effective date.
separate
because Reis was convicted of two
McGranahan,
in original.)
(Citing State v.
possession
offenses of
occur
cocaine—one
(Iowa 1973);
State,
Bilbrey
at 1008-10 & n.24. The dissent
this court held that
contends
the amelio-
§
is the ameliorative nature of an
rative
to HRS
amendments
III.B.3.b,
Berg
Gary Karagi-
12. We noted in
13. As
in section
Van den
discussed
infra
anes,
defendants,
charged
applies
one of the
was
44’s
clause
to all of Act
in
prior
tried
to the effective date of the
cluding many
to the
amendments
state’s
amendments,
after,
but
sentenced
concluded
punishments
laws that increase
and create new
"proceedings”
begun prior
that his
had
provisions
crimes and
Because those
liabilities.
date, preventing application
ameliorative,
of the 1993
position begs
are not
the dissent's
134-6(a)
version of HRS
to his case.
default,
question
plain language
whether
analysis
Hawai'i at
at 138. Our
interpretation
Berg
"proceedings” in
Van den
applied
Karagianes
as it
applies
ambiguity
them whether
continues
moreover,
import,
Berg
particular
Van den
is of
exist, despite
lack
ameliorative
only opinion
represents
because it
this court's
provision
provisions.
at issue
those
Our anal
aware,
Avilla,
which we are
aside
construct, wit, (1)
ysis
results
a cleaner
infra,
in which
discussed
"proceedings”
term
the standard
legislation gov
similar
prosecutions,
clause means criminal
see Van den
138,
erning
prior
a criminal
initiated
Berg,
b. The
P.3d at 1021-23
specific savings
People
inclusion
v.
body
clause within the
(1990);
435 Mich.
91
body
amending legislation,
being applied
the
of the
amendments from
within
ameliorative
retroactively
application
legislative
if
would con
intent that the
such
clear evidence of
is
divined
specific legislative
intent
form
that ma
rights
act “not affect
and duties
legislative
incurred,
from the statute itself or from
tured,
pro
and
penalties that were
history surrounding
specific
the
statute
begun,
its effec
ceedings that were
Koch,
question.21 See
date,” i.e.,
retroactively,
tive
that it not
Geldern,
76;
Haw. at
Von
64
any justification
further anal
eliminating
322; Schultz,
213-14,
460
638
ysis.
attempts to avoid the dis
The dissent
511-12; Cummings,
N.W.2d at
386 N.W.2d
that, in the instant
tinction when it asserts
“that,
(concluding
at 472
unless otherwise
Geldem,
in Von
was the case
“[a]s
ameliorating
by
Legislature,
indicated
an
Avilla,
Koch,
simply no
here there is
a
amendment to criminal statute is reflective
legislature de
express indication that
Legislature’s
of the
determination that
prohibit retrospective effect to the
sired to
penalty
punishment
appropriate
lesser
is the
dissenting opinion at
provisions,”
remedial
offense”)
added); Oliver,
(emphasis
for the
omitted),
from a criminal
initiated
to
IV. CONCLUSION
Therefore,
date.
we hold that
term
“proceedings,”
employed
in Act
section
light
foregoing,
In
we vacate the
29, unambiguously means the
of a
initiation
January
judgment
and sentence of
against
prosecution
criminal
a defendant
court, sentencing
proba-
the circuit
to
Reis
through
charging
instrument and subsumes
tion,
resentencing
and remand for
as a re-
hearings
scope
procedur-
within its
and other
offender,
peat
pursuant
§HRS
to
706-606.5
al events that arise as a direct result of the
(Supp.1999).32
initial charging instrument.
ACOBA,
Dissenting Opinion by
J.
Hence,
Reis
charged
because
Janu
ary
April
prior
Act
and
to
44’s
respectfully
I
dissent.
July 1, 2004,
effective date of
the circuit
view,
applying
my
court erred in
Act
44’s ameliorative
In
in this case incor-
her
by failing
rectly applies
amendments to
sentence
to
“proceedings”
the terms
and
statutory
“penalty
generic
observe the
command of
incurred” in
Aplaca,
Hawai'i at
Section 29 of Act
Furthermore,
44],
at 797.
in keeping with this Sess. L. Act 44 [hereinafter
§
Smith,
holdings
29],
court’s
preclude
Section
ap-
[hereinafter
Walker,
81 P.3d at
plication
[hereinafter,
106 Hawai'i at
of Section
11 of Act
100 P.3d at
and insofar as Reis
Defendant-Appellee
Section
11]
Susan
(Reis).
qualified
repeat
conceded that
light
she
as a
of Reis
of its ameliorative and
§
light
purpose
fender under HRS
of a
allowing
706-606.5
remedial
drug
first-time
prior
conviction
of a
probation,
unauthorized control
offenders to be
sentenced
Sec-
vehicle,
propelled
(1)
the circuit
court could not
tion 11 should be
to Reis because
probation pursuant
sentence
plain
Reis to
HRS
reading
under a
of Section
Reis’s
(Supp.2002),
706-622.5
drug
sentencing
place
the firsfrtime
“proceeding” took
after the
offender statute
effect at
the time
date of Act
alternatively,
effective
insepara
prosecution;
conclusion
part
the sentence is not
of a
stage
progression
subsequent,
proceeding.").
unitary
ble
of a
criminal
severable
is one shared
preceding
United States
dissent
authority
asserts that the
States,
Supreme
"inapposite”
Bradley
Court.
United
because the
clause at
Bradley
interpreted
issue in
U.S.
93 S.Ct.
Mañero
the term
IV.
erroneously
prosecution,
majority
of a
equates
“proceeding”
the term
Despite
foregoing,
main-
the term
with
“ ‘proceedings,’
ap-
prosecution.”
majority opinion
that the term
“criminal
tains
as it
29,
97-98,
Manifestly,
pears
unambiguously
in Act
998-99.
Section
plain meaning
“pro-
prosecu-
refers to the initiation of a criminal
this conflicts with the
trekin,
following mandatory
special
terms and
(2002).)).
conditions.
added.)
(Emphasis
Likewise, Tactay,
charged
majority's
defendant was
2. This section
conten-
addresses
occurring
"proceedings'...
unambiguously
June
re-
on June
2004 for offenses
tion that
July
proceedings!!,]”
prior
effective date
fers to the
of criminal
to the
initiation
majority opinion
respect
sentencing,
and as
the Hon-
of Act 44. With
clear,
plain
under
lan-
the defendant
this
guage
makes
orable Michael A. Town sentenced
"proceedings”
pursuant
can
44:
to Act
begun
sentencing proceedings
clearly
proceeding
refer to
And me this is
under
[Avilla],
the statute.
effective date of
think
intent of "incur.”
I don't
they
precise
were that
and it's clear to me that
cases,
discretion,
Plaintiff-Ap-
give
In its
related
statement of
be it
intent was to
(the
pellant
prosecution)
indi-
“imposed,”
State
I
hate some-
“incurred."
would
Cruz,
cates that No.
State
and No.
I don’t
one’s
to turn without—and
future
Tactay,
are cases that relate to the
not
direction in
think—I think there is
clear
sentencing pursuant to Act
amelio-
they
issue of
44’s
and until
44 to do otherwise
unless
so
provisions.
otherwise,
In
cases the circuit
rative
these
appellate
court.
tell me
held,
Aim,
Judge
courts
did
ameliora-
my
under HRS
favorite
And I think
sentencing hearings
provisions applied in
statute,
tive
or case
in the absence
clear statute
occurring after
date of Act 44.
the effective
[cjourt
law
should look at other states.
Notwithstanding
good
[the
what—the
work
Cruz,
pursuant Act
the defendant was
did,
prosecution]
I think
there’s discretion
committing
years probation for
sentenced
five
“imposed.”
is versus
on what “incurred"
being charged
with
offenses on June
added.)
(Emphases
respectively,
June
to the
2004 and
although
"[t]he
maintains that
Act 44.
re-
2004 effective date of
With
arguments
encompasses
present opinion
Virginia
spect
sentencing,
Lea
the Honorable
...[,]
Tactay]
parties
[Cruz
orally
made
Crandall
ruled:
of the merits of those
arguments
[w]e leave a discussion
adopts
set forth
[T]he
Majority opinion at 86
January
cases for
n.9,
time.”
another
the defense in its memorandum filed
Although
n.9.
the merits of
ceedings,”
Thus,
supra,
as
majority’s
premise—
discussed
in-
the
underlying
“
step
part
namely
cludes an
act or
that
‘proceedings’
“[a]n
is
of a
that
... means crimi-
aetion[,]”
larger
Dictionary
prosecutions,” majority opinion
97-98,
Black’s Law
at
nal
at
(de-
998-99,
prosecution,
Indeed,
such as a
id.
faulty.4
at 1258
165 P.3d at
is
that a
fining “prosecution”
proceed-
sentencing proceeding
as
criminal
occurring after the en-
“[a]
tried”,).
ing in
an
person
accused
is
44
actment of Act
must be viewed as inclu-
majority attempts
4.
Bradley, namely,
repeal
parole
to bolster its conclusion
whether the
of the
inapposite authority
ineligibility
the
provision requiring
United States
that certain nar
n.31,
Supreme
opinion
majority
Court.
mandatory
See
at 98
cotics
be sentenced
offenders
mini
"[tjhe
(stating
165
at
prison
repealer
P.3d
999 n.31
that
by
conclu-
mum
terms survived the
the
sentencing
inseparable stage
Comprehensive Drug
sion that
is an
Abuse and Prevention Con
progression
unitary
prosecution
the
of a
trol Act of 1970 so that a narcotics offender who
by
Supreme
is one shared
the United States
had served
than
more
one-third of a sentence
(citations omitted)). Despite
majori-
imposed
Court”
the
the
before
effective date of the new
ty’s protestation,
Supreme
legislation
ineligible
the fact
the
that
U.S.
parole
remained
for
consid
interpreted
general
Court
the
parole
federal statute’s reference
the
eration under
Court
statute. The
"prosecution”
"proceedings”
“[eligibility
parole
rather than
is
held that
under [the
enough
plain
infirmity
general
parole
establish the
statute]
of the
is ... determined at the
and,
majority’s
sentencing
contention.
time
teaching
of
under the
of
Moreover,
States,
Bradley, part
'prosecution'
Bradley
by
is
saved
[the
v. United
410 U.S.
specific
(1973),
savings
Comprehensive
clause
93 S.Ct.
Reading
savings
clause at
this
legislature
V.
court found “no clue on how the
‘proceedings’
intended
to be read.” Id. at
P.2d at 80. Avilla noted that the
A.
legislative
reports related
relevant
committee
Second,
alternative,
assuming,
prompted
the amendment of the statute “was
arguendo,
generic
in a
the term
by a concern for those criminal defendants
savings
ambiguous,
clause is
viewed
eventually
appeals are
merito-
whose
deemed
Avilla,
this court
indicated in
Section 11
concern,
rious.”
Id. Based on that
apply
should
defendants sentenced
that it could not “conclude the
stated
the effective date of Act 44.5 As the court
legislature
deny every
meant
convicted
declared,
directly
point
Avilla is
because
prosecution began
criminal whose
before the
statute,
it addressed an ameliorative
amendment
became effective
[of
statute]
1987 Haw. Sess. L. Act 139
[hereinafter
pend-
opportunity
to seek release on bail
139],
that contained an identical
Further,
ing
acceptance
appeal.” Id.
“[a]n
Avilla,
clause. The
clause in
like the
position
of the State’s
be inconsistent
would
case,
one in the
that it
“not
instant
stated
did
legislative purpose
prevent
with
matured, penal-
rights
affect
and duties that
defendant,
injustice
particularly
of a criminal
incurred,
proceedings that
ties that were
pose
danger
no
one whose release would
begun, before its
date.” 69
were
effective
others, being imprisoned
pend-
while there is
Haw. at
Avilla
indicted
to the
he had not
majority approach in this
be released on bail because
shown
the Act. Like the
"
ambiguous. Majority opinion
ings'
"unambiguously
the initiation of
clause” is
betoken
id.;
at 991.
prosecutionsf,]”
that is
criminal
conclusion
foreign
to the
absent in Avilla and
directly
intent behind section
in Avilla
contradicts
6. This conclusion
"proceedings”
majority’s
refers
assertion that
majority’s argument
part responds
prosecution”
5. This
of a criminal
be-
to “the initiation
opinion
pro-
"unambiguousf.]" Majority
not indicate that the term
cause it is
that Avilla does
ceedings
cannot refute that
be re
ambiguous,
ambiguity
such an
must
Eschewing
precedential weight of Avil-
defendant,
it was in
in favor of the
solved
legislation was con
la in which remedial
under
must otherwise be resolved
Avilla or
heavily
strued,
majority instead relies
lenity.
majority’s decision to
the rule of
which,
upon
Berg,18
as the
Van den
ameliorative
af
application of
statutes
sever
notes,
the 1990
question
“raised the
whether
obviously
begun,
con
prosecution
has
ter
134-6(a), involving
or 1993 version of HRS
the remedial
Avilla inasmuch as
tradicts
the defendants’
applied
a firearm
use of
though
his
Majority
to Avilla even
statute was
case.”
Berg,
Hawai'i at 190-
(citing Van den
began prior to
effective date.
Indeed,
Accordingly,
majority applied
inconsistently
the reason-
employs
that,
Brantley, concluding
ing
like
approach
When examin-
it criticizes.
of Jumila
same
foreign jurisdictions,
the ma-
Brantley,
the cases from
also no "clear
there was
conversely
statutory
jority
exception
"ameliorative
states
to create an
intent
*27
retroactively
[may
applied
be] ...
being
amendments
against
of more
prohibition”
"convicted
if
would,
specific legis-
such
in-
offenses is
than one offense if one of those
confonn
or
intent divined
the statute
lative
at
itself
from
Id. at
65 P.3d
cluded within another.”
history surrounding
specific
statute
majority
reasoning the
In addition to this
139.
Majority opinion
question.”
at
in
"[ajdditionally ...
stated that
of this court also
added). Thus,
P.3d at 991-92
expressly
that
stated
clause]
[the
legisla-
majority
of
would allow
consultation
rights
were not to ‘affect
to the act
amendments
ap-
history
jurisdictions
other
tive
in cases from
matured, penalties
in-
that were
and duties that
amendments,
it
plying
but deems
ameliorative
begun prior
proceedings
that were
curred and
”
improper to do so here.
239, §
(quoting
2 at
Id.
effective date.'
its
419).
Berg argued that
in Van den
18. The defendants
Thus,
although
Berg majority,
dis-
the Van den
decisis,
of
State
based on the doctrine
stare
agreeing
case would
that the overruled Jumila
(1998),.
Jumila,
P.2d 1201
outcome,
reasoning
of
dictate the
apply
should be
and their convictions
should
Brantley
defendants’
to reverse the
Jumila and
P.3d at 137.
101 Hawai'i at
reversed.
majority
Accordingly, the
of
Id.
convictions.
explained
majority
that Jumila's
The
of this court
responded
plainly
the defendants'
this court
holding, having
v. Brant
been overruled
arguments
based
dictated the result
that Jumila
(2002), was
ley,
56 P.3d
decisis,
reasoning of
determined that the
on stare
191, 65 P.3d at
inapplicable. 101 Hawai'i at
"good
Brantley
law” and then
was
Jumila and
majority
Although
Berg
con
Den
138.
Van
“additionally ...
defen-
[the
mentioned that
defen
at issue in the
cluded that the statutes
'begun'
respective proceedings were
be-
dants’]
on 1990 amendments
cases were based
dants’
(em-
statute].”
Id.
effective date
[the
fore
rather than the 1993 amend
the relevant statute
phasis
Brantley, "the
in Jumila and
ments addressed
event,
Berg,
any
does not
Van den
In
because
Brantley
legal analysis in both
and Jumila
core
statute,
majority
as
involve an ameliorative
good
applicable
the discus
law and
[was] still
inapplicable
acknowledges,
here.
it is
[the]
sion in
case.”
137-38).19
Although
P.3d at
majority
the stat
this dissent
mischaracterizes
clause,
“fail[ing]
unambigu-
at issue had a similar
it
ute
articulate how an
provis
merely
ambiguous
did not
involve
ameliorative
ous term can be rendered
majority disregards21
statutory provision
this
ions.20
dis- because the
is amelio-
merely
positive
Majority opinion
distinction and is
left
rative.”
dissent,
“nothing
Berg
repeatedly
that
in
noting
the Van den
noted
in
As
this
analysis
in
plainly
conflicts with our conclusion
term
in-
its face can
‘proceedings’ unambiguously
sentencing proceeding occurring
com
ease
clude
unitary
Alternatively,
mence with the initiation of a
crimi
date of Act
the effective
Majority opinion
however,
prosecution[.]”22
nal
the word proceedings is viewed
if
P.3d at 989.
ambiguous—the majority acknowledging
The truth of the matter is
question
term,
interpretations
of a “uni
the existence
at least two
ma-
prosecution”
n.16,
tary
posed
jority opinion
never
given
meaning
comports
with the
People
Behlog,
74 N.Y.2d
544
purpose
Proposition
which is aimed at
of
N.Y.S.2d
543 N.E.2d
n. 1
70
diverting nonviolent
incar
defendants from
added).
(emphasis
York
ceration
New
courts
programs”
into substance
abuse
“[w]hen,
have
also said that
to sentenc-
and was “intended to
a far-ranging
have
ing,
Legislature
application
judgment
makes a
nonviolent
offenders.”
568-69, 113
crime a defendant has committed war-
Cal.Rptr.2d
Id. at
(emphasis
added).
“
punishment,
rants a
such,
lesser
the defendant
As
that court concluded that
punished in
be
with
accordance
meaning
‘convicted’ within
new
Prop
[of
they represent
standards because
adjudication
guilt
society’s
osition meant]
judg
up-to-date
most
evaluation
Reading
ment
nature
thereon.”
the term lib
Walker,
People
his
81
erally,
N.Y.2d
it concluded that
“DeLong
because
offense.”
603 N.Y.S.2d
N.E.2d
guilty
yet
but
not
had
been
found
added). Thus,
(emphasis
courts, in
these
line
when the
effect,
sentenced
initiative took
principle
with our
requiring
own
liberal con-
yet
had not
been
[she]
convicted as of that
statutes,
struction
of ameliorative
eligible
date and
sentencing pursu
[was]
have applied ameliorative amendments
Proposition
ant
36.”26 Id. at
become effective after a defendant has com-
added).
Cal.Rptr.2d
(emphases
convicted,
mitted the
offense
been
Likewise, the
Appeals
New York Court of
have
not characterized such
explained that where a
yet
defendant has not
retroactive.
sentenced,
been
not
case does
involve
“retroactivity” in the classic sense.
VIII.
appeal only
This
involves
A.
prosecutions
the new law to
sen
tence,
Third,
court,
cases or cases on direct
in interpreting the sav-
final
Thus,
review.
it
ings
could,
does not involve
did,
“retroac
Section 29
and,
such,
wrong
maintaining
Rptr.2d
inteipreted
"should be
DeLong
distinguishable
instant case.
give
application[.]
so as to
the initiative a broad
DeLong
maintains the conclusion in
Cal.Rptr.2d
(emphasis
id. at
ed).
add
'convicted,'
"hinged
term
on the
which the court
ambiguous, leading
concluded was
the court to
here,
Similarly
where the ameliorative amend-
interpret
comported
the term so that it best
interpreted liberally,
ments are
to be
also
where
underlying purpose
of the amendment.” Ma
steering
there is
eligible
also
intent aimed at
n.28,
jority opinion at 95
996 n.28
treatment,
probation
defendants into
(citing DeLong
Cal.App.4th
subject
385).
above,
where there is also a term
to more
Cal.Rptr.2d
As related
interpretation,
majority opinion
than one
see
"[ejxcept
clause at issue stated that
as otherwise
n.16,
provided,
logic
Ill ie., eluded, instead, only way properly penalty, the “[t]he determine that sen- tence, apply problem the date of to the here in- was incurred after statute can applica- through the act and therefore Section 11 “penalty was its in- volved” would interpreting ble to Reis.27 In ameliorative provision. at 336. curred” Id. amendments, phrase “penalties that the savings Tapp decided that the clause did pen- incurred” has been determined to mean not bar the of the ameliorative alties that a faces he has defendant “[ijnasmuch sentencing statute because as no Consequently, been convicted of a crime. penalty is incurred until is defendant involved,
where ameliorative
convicted,
judgment
entered and sentence
“penalty
some courts have found that no
is
imposed,
pro-
that statute does not
affect
until
incurred”
the defendant
is sentenced.
priety
the ame-
[retroactive
example,
Tapp,
For
in State v.
26 Utah 2d
with the law
statute]
liorative
in accordance
112 reducing
that where an
pen-
Cal.Rptr.
enactment
the
Cal.2d
51
113
fendant[,]”
insists, majority
majority
(legislative
as the
112 P.3d
87, 165
may
opinion
ex
the retroactive
give
intent to
retroactive effect
be
statute,
express legisla
if
press
implied), require
application
of such
remedial
court,
retroactivity.32
majori
legal
tive statement of
discretion of the
within
only
ty
nothing
dispute
foregoing,
jurisdiction.33
in
does
authorized
case law this
Avilla,
above,
stating that “none of
distinctions that
example,
the[se]
For
as noted
this
end,
why
urges,
explain
may
the dissent
that an ameliorative statute
court held
equated
the term ‘incurred’ should be
begun
applied
prosecutions
be
that were
7mposed[.]’” Majority
at 93
with
act. 69 Haw.
date
n.25,
However,
IX.
preceding
date of the amend
the effective
A.
ment,
spe
of a
notwithstanding the absence
cific, expressed legislative
In Von
though
necessary to
intent.
Even
not
validate
Geldem,
charge
beyond
a criminal case
sentencing proceeding
where
Reis’s
dangerous drug,
this
may
promotion
if
of a
grounds,
aforesaid
be observed that
was
penal
distinguished
application of
“the initi
proceeding
the term
is viewed as
ty-increasing
from ameliorative
prosecution against
a de
statutes
ation of
criminal
exculpate
prior
date of the ameliorative
and not
him
to the effective
sentence
statute).
repeal
statute!.]”
reason of the
Petrucelli,
added.)
(Emphasis
v.
See also State
(1991) (holding
A.2d
156 Vt.
important
maintains that "it is
lengthened
the statute
that an amendment
emphasize that Reis herself does not charac-
to six
limitations for sexual assault from three
argument
implicating
her
retroactive
terize
years
effective before the statute of
and became
only
ap-
application” and that it
discusses such
against
was
had run
the defendant
limitations
plication
of "the dissent’s insistence on
because
retroactively applicable
defendants do
because
arguing
of Act
right
acquire
to the statute of limitations
not
opin-
retroactively.” Majority
applied
should be
committed);
time an offense is
effect at the
Inconsistently,
P.3d at 986.
how-
ion at
ever,
Moore,
(1951)
192 Or.
acknowledges
"although
(involving
repeal
of the Habitual Offender
employ
the term 'retroactive'
Reis does
replacement
a new code which
Statute and
arguments
seek to
[because]
she does
her
required
filed
that an “information should be
events that oc-
Act 44’s amendments to
years
defendant's]
last con-
[the
within two
date,
can
prior
Act's effective
we
curred
required
was not
under the old
viction” which
ap-
implicit argument
retroactive
construe an
law).
Majority opinion
plication."
at 86
n.8
category
inapplicable
in-
cases
32. The final
Further,
predominantly on Avil
as Reis relies
jurisdictions that allow retroactive
volves those
which,
discussed,
la,
for the
allows
a case
application
amendments
of ameliorative
application
an ameliorative amend
retroactive
legislature explicitly requires it. See
where the
ment,
entirely
retroactivity is
the discussion of
Johnson,
402 A.2d
State v.
285 Md.
germane.
Heapy,
See State
(stating
general
"a
statute
(explaining that
imposed
preserves penalties
under
law ex-
"part
parcel”
of the issue
where case law is
cept
subsequent repealing
act manifests
where
raised,
germane).
case law is
discussion
such
contrary”);
intention to the
import
(Me.1970) (inter-
prosecution, recognizing
Finally,
Alley,
A.2d
State v.
cases, argues
provision
precluding
of our ameliorative
preting applicable
clause as
given
retrospective
our
against
effect to be
where
ameliorative amendment
tried,
law. See
note 34.
and sentenced
case
convicted
defendant
infra
ascertained,
regard
penalty-in
may
longer
five intent
be
it is no
amendments. With
amendments,
Also,
creasing
although
it said that “no new determinative.”
it dis
punitive
“nothing
measure
'to a crime
cerned that
there was
the lan
consummated,
already
indicate,
where its
guage
way
one
or the
*33
other,
would work to the detriment or material
provisions may
that its ameliorative
disadvantage
wrongdoer.
legis
of the
Such
applied retrospectively,”35
this court nev
post
lation would be ex
law as to the
application
ertheless concluded that “such
facto
Geldern,
offender.”
Von
Haw.
they may
where
still be
was obvious
added).
(emphasis
ly the
legislature.”
intent
Id. at 213-
added).
(emphases
P.2d at 322
However,
statute, in
the ameliorative
case,
L.
Sess. Act 284 [hereinafter
Haw.
legislature,
It
“[t]he
was concluded that
we
284],
Act
on
had become effective
June
think,
pattern
a
has thus established
of con-
1980,34
applicable
held
to a
was
defen-
evidencing
duct
an inclination to
allow
his notice
appeal
dant who had filed
trial court in the
of its sound
exercise
discre-
31, 1979,
August
after the effective date of
circumstances,
apply,
tion to
in individualized
Act
Act
284. Id. This court said
284 “added
enlightened sentencing provisions’
the ‘more
mandatory
a subsection to the
minimum sen-
Code,
the crime
even where
was com-
provide
...
tence statute
mitted before
date.” Id.
214-
its effective
discretionary authority
court
im-
with
Consequently, although
H5 then, sentence, discretionary authority im- 9 at 212-13. Reis’s should [to plement enlightened sentencing pro- more be affirmed. a] here, applies despite fact
vision”
begun
had
before the effective
X.
date of Act 44. 64
Haw.
validly distinguish
fails to
had not
322. Reis
been sentenced before the
It maintains that
Koch and Von Geldem.
44, and, consequently,
effective date of Act
con-
cases]
“neither
statutes
those
[in
holding
falls well within the
in Von Geldem
clauses,
specific savings
tained
a crucial fact
judgment
extended Act 284 after
underlying
the ultimate conclusion in
during
sentence had been entered and
both cases that the ameliorative amendments
pendency
appeal.
*34
Majority
could
to the defendants.”
(emphasis
XI. edge support of these cases oppo would majority— site view taken majority further maintains that Von that based on the statements in the cases as inapplicable Geldem Koch are because quoted supra, apply this court will ameliora legislature “the knows the enacting law when retroactively tive amendments even in the therefore, aware, statutes” and “in See, express legislative absence intent. enacting ... ... analyt Act 44 of the crucial of Geldern, e.g., Von 638 P.2d at savings ical role the a absence of clause (concluding “legislature that where the Geldem; played yet in Koch and Von mandatory amended the sentencing provi legislature nevertheless chose to include a repeat sions for purpose offenders for the savings Majority clause” in Act 44. of opinion (citation omitted). remedying inflexibility,” 165 P.3d at the retroactive But, new, “application because of the more “doubt” that must accom flexible law pany assertion, in keeping legislative such an would be see Substantive with this ob Law, “[ajbsent § infra, jective”). Criminal 2.5 an indi presumption Thus the legislature cation that the legislature intends statute is aware of this rulings court’s islation, legislatures began state in legislature the last centu compre- “[t]he notes that finds that ry general adopt savings applicable legislation statutes safety hensive needed is to ensure the amendments, repeals, to all and reenact Hawaii residents due to the thereafter ments use of and addic- " crimina! and civil liabilities in order crystal methamphetamine (especially tion to in legislative presumption to shift "the from one of 'ice’)[.]” § the form known as Act 44 1 at 204. specified abatement unless otherwise to one of contrary legisla non-abatement in the absence of further that "we maintains added) (citation (emphasis tive direction” ted)); omit clause, i.e., specific savings confronted with a Geldern, see Von also 64 Haw. at savings specifically purposefully clause in- (deciding P.2d at 322 whether an ameliorative particular piece legislation[,]” cluded in a ma- applied retroactively, explaining amendment n.19, jority opinion at 90 any retrospective operation, law "[n]o has and as such Section 11 should not be retroactive- expressed obviously unless otherwise or intend However, ly applied. position this is incorrect ed[,]” 1-3), (quoting citing §HRS to Ha inasmuch it as was the same lan- clause, (other general savings § waii’s HRS 1-11 guage applica- that was viewed noas obstacle to omitted)). such, 1-11, along § citation As HRS Further, "specific” savings tion Avilla. applicable § with HRS is whenever a statute employs generic clause at issue here the same repealed amended is to determine which law language every attached to criminal statute dur- applies particular to a defendant. legislative the 2004 session and thus it is legislation predominant- argue 38. Act 44 "specifically incorrect deals that it was ly penalties. purposefully” new and enhanced apply Section 1 included to to Section 11.
H7 repetitive supports Similarly, than from the rather detracts retro a broad given active ll.40 a nar- Section such statutes should reading row in the context of an ameliorative
XII.
statute.
majority’s
assertion
“the
inclusion
provision
At
here is
issue
the same
29)
(Section
specific savings
of a
clause [
]
legislature
pass
attempted
first
operate[s]
legisla-
as clear evidence of the
negated by
but that was
in State
question
ture’s intention that
act
Smith,
Criminal
2.5.
XIV.
XIII.
A.
majority’s
The
contention
this dissent
pres
would allow
of Act 44 to “be
other
maintains that a “default
susceptible
challenge
umption[44]
against
as unconstitutional
retroactive
post
ex
jurispru
measures” must also fall
remains alive and
well both
our
facto
wayside.42
Majority opinion
jurisdictions
foreign
dence and in the
Act,
previously,
at 998. The
sub
Majority opinion
noted
the dissent
cites.”
stantially
penalties
except
addresses
related to
Operation policy” public § Vehicle of a Under Influence of an in HRS Intoxicant”). Consequently, appears 29 Section anything "specific” to be but as it inasmuch "presumption” to a reference is anti- employs language every the same in used crimi- 1-3, express provisions § thetical to the of HRS legislative year, merely statute nal of that and 1-11, 44, §HRS and Section 29 of Act none of "general” savings provisions reflected the legal which refer to this term art. §§ HRS 1-3 and 1-11. by majority, Taniguchi cases cited v. Ass’n part majorily’s responds argument 42. This to die Manor, 37, Apt. King Owners 114 Hawai'i of 48, portions "suscep- 44 that of Act will be rendered 1138, (2007) (a involving 1149 case challenge post tible as unconstitutional ex fac- apartment application of statute to an associa Majority opinion to measures.” P.3d 165 bylaws provi tion’s did address ameliorative at 998. Ellett, all); sions at 432, Kramer v. (in against 121 412 P.3d a suit a See, I, 7, 13, driver, e.g., pt county involving §§ injured 14 and an insurance 205-12, 216-19, (creating enhancing retroactively 219-21 apply commissioner could not a penalties "[mjanufacturing opera such a controlled medical rehabilitative limit unless "such 712-A; present,” § substance with a child HRS tion was intended” and without discussion of "[ujnlawful statutes); methamphetamine trafficking,” HRS the retroactive of criminal 712-B; Venture, "promoting Gap 325, 333, § a controlled substance v. Puna Geothermal 106 Hawaii minor,” 712-C; (2004) (in through "[p]ro- § a HRS 920 a case moting dangerous drug degree involving against a ... attorney in the first sanctions under rules, degree degree,” any sepa [and] second ... third HRS court this court did not discuss 712-1241; adding chapter "Drug provisions); a new rate treatment of ameliorative Rob
H9
pro-
specifically provided for a
purported-
savings clause
cites to cases
also
only.46
cited
among
spective application
Other eases
exhibiting
“general
trend
ly
a
application must be
... not nationally
apply
amend-
held that the retroactive
states
they
in our
retroactively, even when
are ame-
expressed
opposed
case law
ments
jurisdiction.47 Yet other cases did not afford
liorative."
Majority opinion at
specific statutes
original).
effect because of
(emphasis
P.3d at 996-97
How-
retroactive
Indeed,
ever,
provisions.48
in one
by
or constitutional
all of the cases cited
by
majority,
grounds.
ease cited
the statute was
distinguishable
are
on various
majority,
at all.49
cited
not deemed “ameliorative”
some of the cases
State,
omitted));
(1925) (in
Bailey,
P.2d
a
marks
Pollard v.
inson v.
(Okla.Crim.App.1974) (adopting
involving
the view
of land
401-02
case
a contract for the sale
although
prior felony
private person
Territory
convic-
and the
the defendant's
between a
subsequently
by legislature Hawai'i no mention of ameliorative
tion was
classified
Court,
misdemeanor,
made);
v.Super.
Evangelatos
44 Cal.3d
ameliora-
a
the court noted that
629, 642,
retroactively
Cal.Rptr.
apply
P.2d 585
tive statutes never
but
(1988) (in
high
negligence
[legislature may
a
case between
“the
make retroactive
statute
injured
attempting
while
lessening
offense,
punishment
school student who was
of an
and classification
retailer of the
to make fireworks at home and the
be
mufst]
but the intent to do so
affirma-
components,
no ameliorative statute
tively expressed
fireworks
mentioned).
add-
in said statute”
Kane,
ed));
Wash.App.
P.3d
v.
State
741, 744, (2000) (stating that ameliorative statute
given
but "if the
be
retroactive
Floyd, Cal.Rptr.3d
tencing
the time
statute
effect
XV.
or
commission
conviction
crime.”
Ellsworth,
(Ind.
Assuming, arguendo, legislature’s immediately, at in all cases where apply least give retroactive to Act tent to pronounced and yet had not been sentences legislative inferred implied, Oliver, courts have (citing finally adjudicated.” Id. at 68 retroactively apply stat intent remedial 202) 367, 134 (emphasis 151 N.Y.S.2d N.E.2d Oliver, People 1 N.Y.2d utes. ded).54 ad a simi N.Y.S.2d 134 N.E.2d Similarly, in the instant whether lar- clause52 was involved. Oliver Koch, implied[,]” “express or viewed mitigation legislative “[a] determined legisla Hawai'i at penalty particular represents for a crime retroactively is apply Act 44 ture’s intent to penalty legislative judgment that the lesser Schultz, because, it “vest[ed] manifest is sufficient to or the different treatment in the trial courts to determine discretion legitimate ends of the criminal law” meet the barring "very legislative provide intent ... real and clear relevant clauses 52. The very body part repeal or thereof shall not within the of a statute retroactive "[t]he done, impair any Majority opinion act offense committed affect or Act 44.” punishment penalty, or incurred appli- forfeiture courts allowed retroactive 992. That those effect,” appeal the time such takes legislature was "silent” as to its cation where the pending at the commenced all only this court further indicates that intent repealed "may prosecuted be time a statute is retroactively because should Section they might manner as to final effect same express. legislature made its intent had Oliver, repealed.” if were not so such Here, up” legislature to "clear wished (ellipses in N.E.2d at 201 151 N.Y.S.2d already existing who law to ensure that those original). needing obtained treatment were identified II, § pt 9 at that treatment. See conclude court then went on to 53. The Oliver "[fjewer approxi- (stating than half” of the issue, general savings despite clause at fifty mately [who] hundred offenders "two form of ameliorative statute takes the “where an eligible diversion to treatment identified as crime, punishment particular for a a reduction of actually began and as such "the treatment” may penalty lesser be law is settled that the strongly urges trans- legislature courts to consider in all cases decided meted out ferring severely [statute], addicted underlying the most though the date erven offenders with criminal histories date." addicted been committed act have offenders (citations jurisdiction a condition court as N.Y.S.2d 134 N.E.2d " added)). omitted) (emphasis being probation sentenced such, the view that evinced As histories” cur- with criminal those "offenders "Schultz, Cum- maintains that rently system should sentenced within upon si- mings, all relied and Oliver thus, who presumably, not those probation, solely prospective application ... regarding lence *40 drug-related offenses after committed application was conclude retroactive in order to implicitly whereas here there is a endorsed” mandatory departure epidemic. from mini an ice That in Act 44 legisla- whether warranted[,]” merely clarify mum terms ture intended what it had [was] legislature already N.W.2d at attempted because has to do via Act 161 is fur- penalty” may the “former expect determined be too ther evidence that it did not “lighter punish preclude harsh some and the new amendment to first-time offenders Cummings, ... appropriate,” receiving ment was 386 from the treatment deemed neces- 472; sary. N.W.2d at and because sentence yet pronounced finally
had not
been
Finally,
arguendo
assuming
the relevance
.
adjudicated, Holiday,
Instead,
before,
generic
ing process.”
Majority opinion
noted
sav-
ings clause in Act 44—the same one
nothing
included P.3d at 994. There is
or
“unfair”
all of
in
legisla-
“arbitrary”
the criminal acts
the 2004
applying
about
Section 11 in this
session,
plainly
prevent
nothing
arbitrary
tive
intended to
as there was
unfair or
post
prevent
applying
ex
violations—not to
about
ameliorative
facto
Geldem,
exercising
courts from
discretion Avilla and Von
or in the numerous
legislature
necessary
supra,
deemed
to interdict
state
decisions cited
where the
majority
proposition
clearly pro-
contends
cases this dis-
that "the
had
jurisdictions
sent cites from other
contain "infir-
vided that [the
amendment]
new
shall not affect
committed,”
legisla-
mities” to the
any
extent that Oliver “the
majority opinion
offense
91at
clearly provided
repeal
ture
any
n.22,
(internal
had
that ‘[t]he
quotation
n.22
statute ... shall not
omitted).
affect
offense
ellipses
marks and
repeal
committed ...
the time
such
”
ways,”
cannot "have it
both
n.22,
Majority
takes effect[.]’
randomly
general savings
decide when a
Oliver,
(citing
the matter.” Smith, (citing supra) distinguishable from the
Walker is further noted, case, the court because
instant
Walker, conviction, arrest, plea, “the
sentencing, place Act 44’s all took before Majority opinion
effective date[.]” 22, 2005, here, February insisting keeping motion that "in with this court’s lion’s held on argument. prosecution reiterated the same holdings [court] ... and in Smith Walker sum, prosecution’s position probation.” Majority before could not Reis to sentence solely “the was that because dates of opinion at at 999. 165 P.3d charged and the the cases were offenses dates of 1st, July the effective date of were before that, light our states ”[i]n 44[,]” repeat Reis be sentenced as a should disposition, prosecution's we need not reach the pursuant § Howev offender er, to HRS 706-606.5. argument, asserting separate nature of court, prosecution the new to this raises drug-related prevented the offense[s] Reis’s two drug argument that Reis is not first-time of sentencing probation as circuit her to court from meaning §HRS fender within the 706-622.5. offender, drug pursuant to HRS a first-time rule, Consequently, general party if a does ”[a]s a (Supp.2004)." Majority § 706-622.5 trial, argument argument will raise an not regard, n.32. on P.3d at 999 In that appeal; on to have been waived this be deemed court, prosecution appeal to contends applies in criminal and civil cases.” rule both applied retrospectively, that “even if Act Moses, 449, 456, 77 P.3d v. State eligible under HRS [Reis] for (2003) Ildefonso, (citing v. State because she not a first-time [§ ] 706-622.5 573, 584, ("Our (1992) Haw. being drug sen- inasmuch as "she was offender” [the defendant] review of the record reveals dates tenced for committed on different offenses trial, argument at and thus it is did not raise this charged separate and However, criminal cases.” in two waived.”); v. Ho deemed to have been argument prosecution raises this 147, 150, 785 P.2d glund, 71 Haw. appeal. prosecution first time on As properly ("Generally, raise the failure court, accurately opening to this in its brief states precludes party from at the trial level an issue court, the in its to reconsider before the motions Apart raising appeal.”); that issue on Ass’n of "argued Co., sentence of court’s Resort Owners Elua Wailea ment Ltd., of Wailea although illegal Act 44 probation because eligi- are allows 'a class of defendants who ("Legal select in the trial court not raised issues sen- repeat appeal.”)). to be ordinarily ble offender are deemed waived met,' specific probation argument prosecution’s tenced to if criteria Inasmuch present purposes the dates offender for Reis is not a first-time offenses legal theor[y] charged "new were HRS 706-622.5 is a the dates the cases trial[,]” id., 1st, 2004, (Em- prevailed why [it] 44." should have date Act added.) v. Cunta hearing prosecu- be deemed waived. See State phasis should At the on the
Gail Janis Kel Diane
let; Stevenson; Stock; Nancy Mona Sue
Teruya Raymond Uyeno, for Them similarly other
selves and all situated
Employees, Plaintiffs-Appellants, AWANA; Decosta;
Bob Harold Mark
Recktenwald; Thomason; Katherine Watanabe; Miyake;
Kathleen Willard *44 Lewis; Machida;
Joan Gerald John
Radcliffe; Dayton Nakaneiua;
Hawai'i, Defendants-Appellees,
John Does Defendants.
No. 27184.
Supreme Court of Hawai'i.
Aug.
pay,
agreeing
113 n.
HRS 803-37” but
with the defendant
(2004) (recognizing
prosecution
properly
n.
that "the
preserve
[did]
record
that "the
failed to
exigent
not indicate that the
raised the issue
the issue whether there were
circum
and,
and, therefore,
of abandonment
fore,
circuit court”
there
stances
waived
has
the issue”
point
(citing
appeal”
Rodrigues,
"waived this
as a matter for