Williamson v. Hawai'i Paroling Authority

183 1, рolice v. to on 1997 as a evidence to convict Defendant. See State made October 161, Jones, 80, 351, point appeal, Hawai'i n. 29 P.3d of error on I believe that the 96 184 30, (2001) majority’s opinion on (determining n. that was reliance there Kekona, 403, in v. 77 Hawai'i 886 P.2d independent legally sufficient evidence to es- State (1994), misplaced gratuitous. is both guilt, tablish so as not to bar retrial based on jeopardy principles). majority recognizes, As the “this double We conclude case Kekona,” that, “view[ing light in most not arise in the same as evidence] context ..., 179, majority prosecution opinion 35 P.3d at 206 & n. favorable the evi- 14, in support prima inasmuch as the material issue Kekona dence sufficient facie deny- might fairly that a reasonable mind was whether the circuit court erred case so beyond ing suppress “motion on guilt doubt.” his confession conclude reasonable Vliet, grounds that v. because there was no State session, tape recording Detective Passos testified no record ex- 1-4, voluntary found Exhibits Exhibit and De- isted to indicate a statement or he 77 Hawai'i at 886 P.2d at 742 waiver[.]” identification card in bedroom 1. fendant’s added). Thus, question occupied (emphasis testified that Defendant he bed- appeal was whether Kekona’s confession rooms and that he was found Furthermore, suppressed 1. police in bedroom should have been and not wheth- Officer charges against that him Haina testified he found Defendant er the should have been dismissed, hardly surprise light 1. bedrоom suppression—rather fact that than dismiss- evidence, light In of the aforementioned remedy al—is the unlawful extraction sufficient evidence existed to enable a rea- police of an inadmissible statement. fairly beyond sonable mind to conclude only appealed Crail has the denial of his possessed reasonable doubt that Defendant alleged preindictment motion dismiss for dangerous drug methamphetamine and such, analysis, delay, and the Kekona unlawfully drug paraphernalia. The in- used inapposite to this case. criminating items were found the bedroom Nevertheless, occupied majority having admitted he invoked Defendant Kekona, Therefore, my I wish adherence to Stacy. was sufficient evi- to reaffirm there my opinion expressed concurring support convictions. the views dence Kekona, 77 Hawai'i at in that decision. See P.2d at 747-54. XI. reasons, foregoing vacate the

For the we judgment of con-

court's November

victions and sentence remand case disposition opinion. with this consistent 35 P.3d 210 LEVINSON, Concurring Opinion by J. WILLIAMSON, Respondent- Gregory K. majority’s analy- generally concur in I Petitioner-Appellant, (1) particular, agree: I sis. denying circuit court did not err Crail’s AUTHORITY, him; HAWAI'I PAROLING charges against to dismiss the motion Petitioner-Respondent-Appellee. Jury 18 and 20 Instruction Nos. erroneously improper comment on contained No. 22882. evidence; for a that Crail’s motion filed; Supreme Hawai'i. acquittal untimely Court of judgment of was sup- that Crail’s convictions were Nov. ported substantiаl evidence. light of the fact Crail circuit court’s denial of his raised the suppress the statement that he

motion Itomura, Attorney Deputy M. Gener-

Lisa al, petitioner-respondent-appellee on the writ. Chinn, Deputy Y.H. Public De-

Theodore fender, for amicus curiae the Office Public Defender. NAKAYAMA,

Opinion J. of the Court Petitioner-respondent-appellee Hawaii (HPA) Paroling Authority applies to this court for a writ of certiorari to review Appeals opinion of the Intermediate Court (ICA) Paroling v. Hawai‘i Williamson (Ct. 156, Authority, Hawai’i P.3d 1055 [hereinafter, App.2000) opinion”],1 the “ICA’s vacating judgment dismiss the circuit court’s ing Hawaii Rules of Penal Procedure (HRPP) petition respondent-peti Rule tioner-appellant Gregory In its Williamson. certiorari, argues HPA application for that a that the ICA erred when held statutory right a minimum prisoner has a than term of is shorter possible We hold sentence. n Chapter Chapter 706 nor neither (HRS) prohibit Hawaii Revised Statutes setting prisoner’s minimum HPA from period equal or maxi at a to his her Therefore, mum sentence. we reverse opinion. ICA’s

I. BACKGROUND procedural background Factual and A. count of was convicted of one Williamson degree, in violation of assault the second (1993), and one count degree, in violation of burglary in the second January On was to two con- Williamson sentenced years’ imprisonment. of five current terms § 706-669 hearing pursuant to HRS After opinion opinion on as amended. 1. The ICA amended its November opinion refer to 2000. All references lo the ICA's (1993 opinion Supp.1998), the HPA set William B. ICA’s & years. at five son’s terms appeal, arguеd that cir- Williamson On ordering that his HRPP cuit court erred filed an November Williamson On petition processed as a civil com- Rule 40 be post-conviction petition HRPP Rule HPA’s plaint granting motion argued petition, his Williamson relief. argued that petition. dismiss Williamson eligi- “right the HPA violated his to be illegal custody or alleged had restraint he parole” ble for under on his minimum term based setting his minimum term same light eligible for in violation of his to be his time as maximum sentence. 706-669(1) (1993) parole under HRS February on circuit ruled HPA violated his because the petition not “raise that Williamson’s did is- “light parole,” the court illegality judgment as described in sues petition. should not have dismissed 40(a)(1) illegality HRPP Rule of restraint opinion published issued a The ICA custody HRPP described Rule Relying on Turner v. November 40(a)(2)”2 pe- ordered Williamson’s Paroling Authority, 93 Hawai'i Hawai'i to the court tition be loi-warded clerk (App.2000)(holding that an HRPP processed complaint pursuant as a civil appropriate petition means to chal is the 40(c)(3).3 HRPP Rule parole), lenge denying an HPA decision petition “[an HRPP] held that Rule ICA with a summons on The was served appropriate an inmate to chal means for February required 1999 that it to answer imprisonment lenge the minimum term of set thirty petition days. within Instead of by the HPA.” answer, February filing an on petition, HPA filed a motion to dismiss the the circuit court The ICA further held that it arguing that was immune to Williamson’s the HPA’s motion to dis- granting erred 4, 1999,Williamson filed a claims. On March every who is not sen- miss because inmate dismiss, to strike HPA’s motion to pos- motion to without the tenced life “insuf- arguing sibility statutory right that the HPA’s motion raised a to have parole has “immaterial, period at a ficient defenses” and contained his or her minimum term set less his The than or her sentence. impertinent, scandalous matter.” The and/or that; motion ICA stated circuit court Williamson’s to denied granted the HPA’s motion dis- strike a shall [HRS ] states July A in a “judgment parole serving on 1999. civil his miss after become in the HPA’s favor on imprisonment. [HRS ease” was entered minimum term “person timely ap- a sen- September Williamson states ] 1999. impris- an indeterminate term of pealed. tenced to custody, ground making 40(a) (iii)any pertinent part: other 2. HRPP Rule slates judgment, illegal. though not the proceeding post-conviction established encompass all law this rule shall statutory procedures common 40(c)(3) purpose, HRPP 3. Rule states: for the in- same nobis; pro- cluding corpus and coram habeas petition alleges post-conviction ille- neither If a foregoing vided that shall not be construed post-convic- gality illegality judgment nor availability in the limit the of remedies trial alleg- “custody” but tion or "restraint” instead appeal. proceeding on Said court or direct rights a a action on civil es cause of based judgments applicable of conviction shall action, separate cause statute or other custody judgments of convic- and to based pleading as a civil com- court treat shall tion, as follows: plaint governed by this rule. petition reliеf of the nature where a seeks custody. Any person From seek simultaneously provided this rule and procedure forth relief under the this pleads separate a civil claim or claims under custody upon judgment based rule conviction, action, rights separate cause or other statute following grounds: on the served; shall be ordered (i) claim or claims fully latter that was sentence disposition (ii) under probation transferred parole was unlawful- revoked; ly the civil rules. omnent receive an initial the case to the circuit court with instructions heating at one month the ex- grant least before petition Williamson’s HRPP Rule 40 piration imprison- of the minimum term of and to the HPA direct to reduce Williamson’s 353—62(a)(2) [HRS ] ment.” directs the minimum such that there would be HPA consider for all committed period reasonable of time his mini between persons, except penalty where cases mum and maximum Id. at terms. of life without P.3d imposed.... finally, been And [HRS] timely application HPA filed a provides committed writ certiorari on 2000.4 In December person except im- those sentenced to life application, argued its the HPA based prisonment without “shall be legislative history on the of HRS parole.” Code, and the Hawaii Penal ICA erred opinion ICA’s 34 P.3d at 1058-59. entitled, holding prisoners as a “[tjogether The ICA stated these statu- matter, per se to minimum terms that are tory provisions eveiy in- make clear that shorter than them maximum sentences. to an mate sentenced indeterminate sentenсe parole hearing.” is entitled to Id. at II. DISCUSSION P.3d 1058. The further that: ICA held By setting the same term of A. Standard review imprisonment as the maximum term of Whether the HPA has the imprisonment, the HPA has denied Wil- to set a impris minimum term of meaningful parole hearing liamson a be- period equal onment at a to his or her maxi expire. fore Un- sentences mum question sentence is a in 706-670(1), der HRS would Williamson terpretation. still be to a entitled at least interpretation “[T]he of a statute ... one month his minimum before question is a of law de reviewable novo.” expires, but he placed could not be on Arceo, 1,] 10, ... [State v.] 84 Hawai'i parole unless the HPA mini- reduced his [843,] 928 (quot [ P.2d 852 ... ] imprisonment. mum terms of Section ing Camara, 324, 329, v. State 81 Hawai'i 706-669(5) (Supp.1999) states (citations 1225, 916 P.2d 1230 in may HPA its discretion reduce the mini- omitted)). Toyomura, See also State v. imprisonment. mum term of Section 706- 8, 18, 893, 80 Hawai'i 904 P.2d 903 669(5) contemplate minimum (1995); 1, 3, Higa, State v. 79 Hawai'i being terms the same as maximum terms 928, 930, (1995); 897 P.2d ... State v. HPA because the would then have no dis- Nakata, 360, 365, 76 ‍‌‌‌‌​‌‌​‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌‌​​‍Hawai'i 878 P.2d cretion but to reduce a minimum term 699, (1994).... 704, ... imprisonment to allow an inmate to have meaningful parole hearing. Gray v. Administrative Director Court, 138, 144, 580, 160, 931 P.2d Id. at 34 P.3d (emphasis at 1059 in (1997) (some 586 original). Finally, brackets the ICA held added some “[a] Soto, original). in period of ‘reasonable time should also State v. 84 intervene 229, 236, 66, Hawai'i between such minimum 933 P.2d and maximum sen- 73 ” 160, Furthermore, (quot- Id. at 34 our tences.’ P.3d 1059 construction is Lake, 764, ing Territory guided by v. 26 Haw. 771-72 established i-ules: (1923)). statute, construing When our foremost principles, on obligation

Based these the ICA vacated is to give ascertain and effect judgment the circuit court’s legislature, remanded the intention of the which (OPD) authority The Office of the Public Defender filed as to whether the HPA has the to set (ABAC) an amended curiae brief amicus on argued in terms this manner. Id. It January 2001. OPD admitted that there no that the ICA was in its correct resolution of this provision express statutory prohibiting HPA ambiguity, legislative upon history based setting from minimum terms that are the as same regarding the relevant statutes and the case law prisoners' maximum sentences. at 2. ABAC sentencing. indeterminate at 2-3. Id. argued ambiguity OPD that there is an 204-05, Valentine, Hawai'i primarily obtained v. is to be State (quoting P.2d State language in the statute contained itself. Kotis, 984 P.2d Hawai'i statutory language in And we must read (some omitted) (1999)) (some citations altera context of statute the entire original). tions it in a construe manner consistent with purpose. its plain language B. Neither nor history legislative Chapters of HRS doubt, When there is doubleness of prohibits 353 and 706 the HPA from meaning, or indistinctiveness or uncer- minimum term of statute, expression tainty of an used in a period equal at a ambiguity an exists.... her maximum sentence. statute, construing ambiguous an outset, At we note meaning ambiguous “[t]he words legislature HPA “cen created the to be the context, may sought by examining be paroling authority tral for the State.” words, phras- which the ambiguous 353-62(1) (1993). Pursuant to 706- es, may compared, and sentences determining charged with the HPA is meaning.” to ascertain them true order prison the minimum (1993) Moreover, [ ]. being еligible par er must serve before may courts resort to extrinsic aids upon which de guidelines ole.5 The these determining legislative intent. One ave- made are established terminations are history legislative is the use of nue 706-669(8) (1993). legisla HPA. HRS interpretive tool. provide expressly ture did not a means Gray, 84 Hawai'i at 931 P.2d legisla appeal HPA decisions.6 The Toyomura, ... Hawai'i (quoting at] 18- apparently grant ture intended ) (brackets ... [at] establishing broad discretion (footnote ellipsis points original) Commentary As terms. noted omitted). This court also consider the HPA has the “exclusive law, spirit “[t]he reason and the the minimum time to determine which cause induced the en which must served before the meaning.” Further, act it its true discover parole.” will be there is 1-15(2) (1993). “Laws in pari history legislative no of HRS evidence materia, matter, (1993 Supp.2000) the same that indicates & be construed with refe2’enee to legislature prohibit shall each that the intended to the other. What is clear in one statute be HPA from minimum maxi explain period equal in aid what is at a to his called doubt term or her § mum read the stat- ful in another.” sentence.7 We relevant (8) authority guidelines provides pertinent part: for 5. in The shall HRS 706-669 establish sen- the determination of minimum uniform (1) person When a been sentenced to an tences lake into account both which shall impris- or an term of indeterminate onment, extended degree prison- nature and of offense of shall, authority paroling the Hawaii history and er and criminal practicаble no later than soon as but six guidelines public rec- character. The shall be custody after commitment to the of the months prison- and made to the ords shall be available department [public safety] of director of attorney prosecuting other er and to the hearing, the basis of the hold on agencies. government interested fixing make an order term of (Brackets original.) in imprisonment to be before the served eligible parole. become shall for Turner, are 6. sub- under decisions (2) holding hearing, authority Before die ject judicial review. discussion limited See complete report regarding obtain a shall section II.C. entering infra prisoner’s life before institution report prisoner's progress in and a full 1972, adopted when report complete was in ion. The be the instituí shall 7. Code, purpose Penal personality enacted Hawaii evaluation for the deter- Code mining prisoner's degree propensity was from the Penal which derived Model to- 9, (MFC). L. 1 at 82- activity. Haw. Sess. Act criminal See 1972 ward 1, 83; Rep. No. in 1972 Senate Conf. Comm. (1) principles in paroling utes this ease with these Serve as the central author- State; ity mind. for the selecting parole, In for individuals 353-62, held ICA when committed, per- all 706-669, consider 353-64, and 706-770 are read in for sons, except in penalty cases where the they pari statutory right create a materia imprisonment pa- of life not every prisoner, who is not to life sentenced regardless imposed, has been rоle of the possibility pa- without the committed; nature offense role, periodic considered for parole hearings. disagree We with this read- which Determine the time at Chapters ing of 353 and 706. The relevant granted any individ- limiting sections can be without reconciled ual as that time at which maximum ben- the HPA’s manner. this efits of the correctional institutions to the individual have reached and been Chapter

1. HRS community of risk to element is min- imal[.] §HRS 353-62 describes the responsibilities and HPA. duties It added.)8 (Emphases no There is reference states, part: in relevant to the establishment minimum terms in (a) Thus, any addition to responsibility other this section. of hearings the conduct l,aiv prescribed duty the Hawaii the establishment of minimum terms and

paroling authority, paroling authority the actual of minimum establishment terms prescribed shall: responsibilities and duties Journal, legislative history dalory 734. The at that renders the presented the issue ineligible address this case. See sentencing Where the 1, Journal, Rep. Conf. Comm. No. in 1972 Senate imposes a sentence of life 2, 734; Rep. at Conf. Comm. No. in 1972 Senate possibility without HPA does Journal, 742-43; Rep. at Sen. Stand. Comm. not have discretion to take action with re- 599, 1074; Journal, No. in 1971 Senate Hse. gal'd prisoner’s parole to the status. Rep. Stand. Comm. No. 1971 House Similarly, reject argument we also of ami- Journal, subsequent at 785. Neither do the Lake, Territory cus curiae OPD that 26 Haw. amendments to HRS 706-669 address this is- (1923), presented addressed “the issue exact 92, § sue. 49; 1976 Haw. Act Sess. L. 8 at 148- in the case[.J” instant ABACаt 5. Lake and the 526-27; Haw. Sess. L. Act pre-date other cases cited OPD the Hawaii § 1 1996 Haw. Sess. L. Act at Act sentencing Penal Code and were decided under at 445-46. markedly schemes were different opinion Commentary The ICA’s states that the presently those force. to HRS 706-669 indicates that the section "contemplates having op- sentenced felons adopting provisions 8. The bill these was intro- portunity paroled, except to be for felons sen- duced in 1975 and enacted in 1976. See 1975 possibility tenced to life without the 23; Senate Journal at 1976 Haw. Sess. L. Act opinion murder.” ICA's 34 P.3d at 1057 purpose 3 at 146. of the bill was "to 2; n. see also Dissent at 227- 35 P.3d at pardons paroles board reconstitute the Therefore, view, every prisoner, under this effectively efficiently order to more achieve imprisonment who is not sentenced to life with- inseparable purposes parole, the dual and of the possibility parole, eligible parole. out the of for is protection society of on the one hand and the agree commentary We do not that the to section rehabilitation of the offender the other.” supports proposition. 706-669 this 32-76, Rep. Conf. in Comm. No. 1976 Senate Commentary At time the the 706-669 was Journal, nothing legisla- at There in 882. is the drafted, 706-606(a) §HRS enumerated the cir- that, history indicating adopting tive in these giving cumstances rise to offense the of murder provisions, the intended to confer the degree, subject in the which first is to a mandato- right periodic parole hearings upon prison- to all ry imprisonment of life without the imprisonment possibility parole. ers not sentenced to life comparable of without in statute icl.; possibility parole. the Sen. Stand. the current version of the HRS is section 707- 314, Journal, 701(1). Compare 706-606(a) Rep. Comm. 959-60; § No. in 1975 Senate (Supp. HRS 695, 1972) 707—701(10(b) (e) Rep. § Stand. through HRS Pise. Comm. No. in Journal, (1993). However, prisoner where the been House 1280. Neither is this degree, subsequent convicted of murder in first issue in the the sen- addressed amendments 338, tencing imposes a sentence of life without to the statute. See 1987 Haw. L. Act Sess. 1108; 141, possibility parole. § distinguishable § This is 5 at 1988 Haw. Act Sess. L. 33 at from which the HPA cases establishes a man- 226-27. ineligible parole law in addition to those set out in are for from HRS different They governed by persons § not 353-62. class of who were sentenced to life § general imprisonment possibility pa- terms of HRS 353-62. without HRS Thus, governing requiring the sole statute role. HRS while terms, of minimum parole” prison- establishment the HPA to for all “consider prohibit setting prison- HPA imprisonment not a not ers sentenced to life with- period equal possibility er’s minimum term at a to his or prohibit out the does not maximum rendering prisoner “ineligi- her sentence. HPA from a parole by setting for ble” his or her minimum Further, allowing HPA a to set period equal term at a to maxi- his her prisoner’s period equal minimum term at a to mum sentence. his or maximum her sentence is consistent 353-62(a)(2) with the terms of opinion The ICA’s also relies (1993). (a)(2) provides Subsection (1993), states, perti which parole” persons, HPA shall fоr “consider all ..., part: “Any person nent committed ex except those sentenced to life cept penalty where im cases life possibility parole. without the The estab prisonment subject parole not to has been part lishment of a minimum term is of the imposed, subject to man and, parole process in establishing mini part[.]”9 ner and form as set forth in this mum, variety HPA a looks at of factors added.) (Emphasis supra, As discussed including prisoner’s characteristics and impris establishment of a minimum underlying the nature of the offense. See part parole process. onment 485, Bernades, 490, 71 Haw. 795 P.2d Therefore, State who, appro after the 842, (1990); priate hearing, has his or her minimum term Thus, prison even where the HPA renders period equal set at a to maximum her effectively ineligible by setting er “subject parole.” sentence has been from, period equal his minimum term at a to his prohibit does not has been peri minimum term at a parole.” equal “considered od to his or her maximum sentence. (a)(3) Further, arguendo Subsection refers to the assuming deter mination of time is to be when 353-62 and 353-64 were irreconcil (Em granted “any eligible regard individual.” with HRS 706-669 with to this able added.) issue, phasis Because the statute refers we would still hold that the HPA cur individuals, rently legis we believe has the period equal contemplated lature that some individuals term at a to his or her “ineligible” parole by be rendered maximum sentence. It is a well established prior given principle virtue “consideratiоn” construction Further, (a)(3) general specific subsection utilizes dif and a statute them. where statute (a)(2), conflict, specific language ferent than subsection which statute will be favored. See, Kotis, persons, except “all e.g., refers to committed State v. 91 Hawai'i penalty (quoting cases where the life 984 P.2d State v. Val lesteros, subject imposed[.]” has been denied, implies persons Hawai'i This the class of who reconsideration being eligi- The "shall be the manner least one half ol his sentence before 9. language Rep. forth” ble Stand. Comm. form as set was enacted for 297, See Hse. Journal, 1917. L. Act 1 at in 1917 Howev- See 1917 Haw. Sess. No. House er, parole may granted legislative history 145. The Act stated that does not address the 637-38; upon completion prisoner’s presented of a minimum in this id. at issue case. See sentence, commutation, "intent, 243, Rep. less and that the Sen. Stand. Comm. No. in 1917 Sen- Journal, plan, purpose parole subsequent at 726. Neither do the and commutation” ate sentences, applied to all minimum or maximum. amendments address this issue. See 1931 Haw. Id., 126, 116; history legislative § § 2 at L. 1 at 1955 Haw. Sess. L. 145. indicates Sess. Act 239, 220-21; § rejected provision L. a that Act 1 at 1988 Haw. Sess. Act 147, serve, 247; 101, § required § L. 1 would have a felon to in the 1 at 1993 Haw. Sess. Act 146, 201, § a at at Act 1 at 307. absence of 192 (1997) (citations By foregoing,

936 P.2d 191 and internal virtue of the served. the ICA omitted)). prisoner §§ that a to a quotation signals HRS held is entitled “reason- period of mini- general provisions defining able time” between his hеr 353-64 are mum responsibilities of term and sentence. ICA’s 160, opinion HPA, at 34 P.3d at 1059. The specific § a dissent whereas HRS 706-669 is argues that “the HPA has no provision regarding the establishment deny hearings.” additional at such Dissent imprisonment. minimum terms of Even as- 201, legislative 35 P.3d at 228. suming arguendo that HRS 353-62 and (1993 history § Supp. of HRS & require give prison- 353-64 do the HPA to all 2000)11 issue, and, as to this is silent our ers not to life with- sentenced view, this section does not accord such a possibility parole parole hearing, out the right. these sections would conflict with HRS require- § imposes which no such interpret § We decline to 706- 706-669(4) (1993) fact, § ment. terms, 670 such that its which define the may, states that the HPA “in its discretion in process an initial hearing for and sub time, any particular impose case and at sequent hearings, “eligible parole” render special prisoner condition that the will not be persons imprison all not sentenced to life and until considered unless possibility ment without the Un exempla- has a record of continuous proposed by der the formulation ‍‌‌‌‌​‌‌​‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌‌​​‍the ICA and Thus, ry prisoner upon behavior.” whom dissent, obligated HPA would imposed may such a'condition has been never set each minimum term such that parole hearing. an receive initial The ICA’s he she would receive at least two interpretation possi- no leaves room this hearings. significant This is restriction Further, bility.10 prohibition upon the HPA’s otherwise broad discretion periods equal appli- minimum terms at to the legis to establish minimum terms. Had the cable maximum sentences inconsistent restriction, impose lature intended to such a legislature’s apparent with the intent presumably expressly it would have done so. grant wide discretion establish- Further, acknowledges the dissent ing minimum terms. compel § “HRS does not 202, parole.” grant

HPA to Dissent Chapter Thus, P.3d at 229. where the HPA deter mines at the minimum term that a opinion dissenting opin- The ICA’s and the not warrant case does rely requirement ion also on the in HRS grant subsequent parole would be forced to 706-670(1) (Supp.2000) person § that a sen- hearings deny parole each time. tenced to an indeterminate term receive parole hearing initial give § one month be- least We decline to expiration fore the of his or her minimum interpretation such a strained is con granted trary if legislature’s apparent is not at that intent time, person hearings upon additional receive confer wide discretion HPA. In less, stead, interpret § at twelve-month intervals or until we HRS 706-670 to have a granted application or the maximum limited is consistent with the dissenting opinion argues "spe- § 10. The that this 11. HRS 706-670 was also enacted in 1972 adoption with the of the Hawai'i only Penal Code. See cial condition" is the circumstance under 9, § 1972 Haw. L. Act Sess. 1 at 83-84. Howev prisoner may parole hearings. which a be denied er, legislative history does not address the provision. The dissent reads too much into this present reports issue in the cited case. See committee 706-669(4) merely allows the HPA to supra subsequent note 5. Neither do the given determine that a will not be amendments to this section address this issue. parole hearing, even if he or she served 92, 148-49; See 1976 Haw. L. Act Sess. 8 at term, he unless or she exhibits "con- 34-35; 1983 Haw. Sess. L. Act 1 at exemplary Nothing tinuous behavior.” in the 579-80; Haw. L. Act 3 at Sess. 706-669(4) imposes terms of HRS limitations 614; Haw. L. Act 47 at Haw. Sess. determining HPA’s discretion mini- 527; § 2 Sess. L. Act Act 1993 Haw. Sess. L. mum terms. 307-38; 2 at 2 at Act 4, § L. Act Haw. Sess. at 445-46. legislative for intent the HPA. Section 706- to allow the HPA to set minimum ed terms apply equal prisoners’ not HPA where the has ren- that are maximum sen- prisoner for ineligible e.g. contemplated by dered the also tence because this was noted, prisoner’s HPA supra, where the has set mini- As the the MPC. the Hawai'i Penal period at a equal mum term the maximum was the Code modeled after MPC. that, imposed or where HPA has the the the HPA admits under the MPC scheme, prisoner that he shall separate

condition not be considered for a would serve a exemplary expiration until the exhibits after the of the or not Chap- behavior he she has done so. maximum that the sentence and distinguishable 706 scheme is it ter because duty We are of our mindful requires discharge upon an unconditional give parts to all effect of a statute whenever completion prisoner’s of a maximum sen- See, Doe, 246, possible. e.g., In re Hawai'i 6.10(1) Compare § tence. Penal Code Model (“[c]ourts 684, 978 P.2d 706-670(5) (1962)12 (1993).13 tvith HRS give statute, parts bound to effect to all of a parole eligibility Because MPC scheme is clause, sentence, no and that or word shall be Chapter different from that of HRS void, superfluous, insignifi construed as or interpretation MPC is not instructive legitimately cant if construction can §HRS 706-669. give preserve found which will to and force (quoting all words of the statute” State v. upon Based our review of the rele Kaakimaka, 289-90, 84 Hawai'i 933 P.2d statutes, plain vant we hold them lan (1997) (some 617, 626-27, omitted))). citations guage prohibit does not the HPA from es interpretation Our of HRS 706-670 does tablishing minimum term at a afoul of principle. interpre run this Our equal period to his or her maximum sentence preserves tation the broad nothing legislative history super HPA but does not render the statute supports such a restriction.14 void, fluous, insignificant; the statute still applies prisoners to all whose minimum Policy support considerations do not C. HPA,

terms, as determined render judicial adoption of this limitation on eligible parole. for them authority. the HPA’s “provides periodic pris still for review guidance plain Absent from the stat eligible case” oner’s where he she or, utory language, language if ambigu parole. Commentary to HRS 706-670. ous, legislative history, from the we look to application a writ of policy its certio- the relevant considerations behind Eleneki, rari, argues adopting HPA 92 Hawai'i them. State v. Cf. 565-66, 1191, 1194-95 must have intend- 993 P.2d 6.10(1) (App.1999). primarily 12. MPC states: The dissent relies upon dictionary of "minimum” and definitions Release All on Parole. An First Offenders "maximum" to conclude that a minimum term sentenced indefinite term of offender to an equivalent cannot be to maximum term. The year imprisonment in excess of one under Sec- supported distinction drawn by the dissent is not 6.05, 6.06, 6.07, or 7.06 shall be tion 6.09 plain language of the relevant statutes or conditionally parole at or released before legislature's dissent acknowl intent. term, expiration of such of the maximum " edges ’fine-tuning’ is a of a sentenc accordance Article 305. ing (quoting at 20 decision.” Dissent N.P. Co Parole, hen, 1:19, upon 13. "Release ex- states: The Law Probation (1999)). piration Considering of maximum term. If fixes factors that the date, establishing no earlier release release shall a minimum term considers mandatory expiration pris- sentencing become at the which cannot be considered court, imprisonment." certainly maximum term oner’s conceivable there be circumstances under which the HPA deter reasonably possible 14. Because it is reconcile mines that a should not be case, applicable plain being That there is no sound statutes based lan statutes, prohibit rely categorically guage of the HPA we decline to on ex reason to setting aids, Voellmy period equal at a such as dictionaries. See minimum term to the trinsic Broderick, maximum sentence. 194 scope review is limited. The ICA that the the of such legislature has stated

The jurisdictions recog- have purposes parole” noted that other inseparable ol' “dual and preserve parole the board’s protection society on the one nized the need “the are denying parole: granting on or and the rehabilitation the offender hand Rep. No. other.”15 Conf. Comm. the sub Declaring that “a district court cannot Journal, HPA is at 882. The in 1976 Senate parole questions of judgment its stitute authority to de charged with the “exclusive board[,]” [United that of the must be minimum time which termine the MacDonald, v. ex rel. States O’Connor eligible for prisoner will be served before the (N.D.Ill.1978) ], F.Supp. the Unit Commentary § 706-669. parole.” to HRS court limited its revietu ed district States presents question instant case a “lt]he to situations where decision of necessary to the HPA’s it is restrict whether agency is an arbi administrative state authority by setting pris it from prohibiting fair, trary made 'without one token it is periods equal minimum terms at oners’ reason; solid, and substantial cause maximum sentences. their necessarily because mistak but it is not só matter, 'wrong." (citing even Id. Grossmann policy a we believe that en or As (Tex.Civ. Barney, unnecessary HPA’s authori 359 S.W.2d to restrict the re- ty App.1962). 706-669 affords The district court indicated this manner. HRS alia, following procedural prisoners, tvould be exercised “to determine inter vieiv 1) protections: notice of the hear board] reasonable [the whether followed criteria, ing opportunity to be heard on consis appropriate and the rational and 2) 706-669(3) (1993); issue; op and that applicable with the statutes tent any persons portunity arbitrary capri “to consult is not its decision ”; reasonably desires impermissible consid nor based on cious 3) 706-669(3)(a) (1993); representation by, Arnold, (citing Id. Zannino v. erations.” of, hearing, (3d Cir.1976)). assistance counsel and the 531 F.2d if or she appointment of counsel he and the Likewise, in Reider v. Commonwealth of one; § 706- cannot afford to retain and Pa Pennsylvania, Bd. Probation 4) (c) (1993); 669(3)(b), recording of verbatim role, 514 A.2d 100 Pa.Cmwlth. preservation of such (1986), Pennsylvania Appeals Court of 5) 706-669(6) (1993); recording; board held that decision availability guidelines for the of the HPA’s judi denying parole to limited was of minimum sen uniform determination Noting that deni cial review. Id. at 972. 706-669(8). Further, tences; “wholly a matter of the als discretion, HPA, may subsequently in its re diseretion[,]” at 970 [parole board’s] id. minimum term. HRS duce Pennsylvania (citing 61 Consolidated Stat 706-669(5) (Supp.2000). procedural 331.21), appellate court ex utes prison adequate safeguard protections are for a plained “impossible that it would be HPA does not rights and ensure ers’ parole denial properly court to evaluate” a arbitrarily sentences. many variables considered because of the facts, board, Turner, per addition, such as “record the ICA held review, experience of judicial and the may sonal observations seek ‘pre to a maker which leads petition, the decision through a HRPP Rule what is best for judgment’ as to deny parole. dictive HPA’s decision HPA, certainly possible argues its sound dissenting opinion func- that these 15. The proposition discretion, provide support particular for the tions determine that a case period equiva- minimum term cannot be set at a protection not warrant because disagree. term. We There lent to the maximum are establishing society outweighs potential rehabilitative many the HPA must consider factors that Categorically prohibiting benefits term, prisoner's includ- periods minimum terms HPA from offense, degree ing the nature and empha- improperly equal terms to the maximum history, character. and his or her her criminal protection. expense sizes rehabilitation at factors, 706-669(8). it is Given these See HRS pursuant a to 706- community.” the Id. conducts both the inmate and and, upon guide- 669 based its established at 971. lines, prisoner’s minimum determines that Turner, 1 777- 93 Hawai'i at P.3d at equal or her maximum term shall be to his omitted) added) (some (emphases 78 citations term, HPA abuse its the does not discretion (some original). on sim alterations Based prisoner’s pro- not and does violate the due principles, ilar held that Hawaii the ICA rights. cess denying parole “a courts review decision “ situations where the board Finally, ‘[p]arole we note that is a matter all, any to discretion at or failed exercise grace, legislative and the denial of it to ‘arbitrarily capriciously and its dis abused legislative certain offenders within discre is ” give process so as to to cretion’ rise due Kumukau, Haw. v. 71 tion.’ State any violation or has violated consti otheiwise (quoting 787 P.2d 687 v. State rights prisoner.” 1 tutional Id. at the Freitas, Haw. P.2d P.3d (1979)). such, legislature’s As with the it was earlier, deny parole As the to allow HPA to to stated determina discretion prisoners setting part minimum term certain their minimum tion оf Therefore, process. periods equal to their maximum the same terms Therefore, that, judicial assume if the apply should to review of sentences. we standards denying parole an had to limit HPA’s legislature both an HPA decision and intended so, doing it establishing prohibiting it from HPA decision minimum term. discretion cases, judicial express appro have restriction. In both intervention is would enacted limitation has failed will not read this into priate where the HPA to exercise We all, authority arbitrarily and If any discretion at acted statutes. the HPA’s establish man give pro minimum terms is to be limited this capriciously so as to rise a due violation, ner, legislature, pris it is incumbent not cess otheiwise violated courts, Wyo. rights.16 being appellate to do so. Stat. constitutional That oner’s Cf. (Michie 1999) case, (stating protections pris Ann. 7-13-201 there are sufficient ninety term not rights of mini shall exceed oners’ the establishment sentence);17 terms; unnecessary judi percent 42 Pa. of the maximum mum create 9756(b) (1998) (stating that the cially an additional on the HPA’s Cons.Stat. restriction authority by prohibiting setting pris it from minimum term shall not exceed one-half sentence); periods equal to maximum Nev.Rev.Stat. minimum terms at oners’ 193.130(1) (2000) (stating mini HPA maximum Where the them sentences. State, 1986) (Wyo. only Duffy present v. 730 P.2d 16. We note the case addresses (1977)) Wyo. whether HPA has the authori- (quoting issue Ann. 7-13-201 Stat. ty period added), superceded by to set a minimum term at a (emphasis statute as stated equal State, 1999). to his or her maximum sentence. William- (Wyo. Ryan argue son does not term, his Supreme Duffy, Wyoming Court stated: any exercise failed to |T]here requires nothing which in the statute all, resulting arbitrarily capriciously acted period fixed between the minimum of time violation, process a due or otherwise violated maximum, court would be inter- and this rights. constitutional legislative fering important if with an function period. We such it undertook establish prior 17. A version of this statute stated: obvi- that the overlooked the doubt peni- When a convict is sentenced the state might judge impose possibility [a that a ous life, tentiary, an offense otherwise than maximum in which minimum and sentence crime, imposing shall day]. by one differ imprisonment, fix a but not definite term Wyoming legislature year Duffy, A after Id. establish a maximum and minimum term pres- responded changed the statute into its which shall be held in said said convict form, can be which that the minimum ent states long- prison. The shall not be maximum term ninety percent of the than maximum. Wyo. no more longest fixed law for the er than (citing Ryan, Sess. 988 P.2d at 64 punishment convicted, of which he was of the offense Laws, 157). Similarly, we decline to read a Ch. not he and the minimum term shall set mini- limitation on the HPA’s for the less than the shortest term law fixed rely upon into the mum terms statutes punishment he was of the offense which necessary. if legislature to the statutes amend convicted. is,” forty percent Aice, mum question term shall exceed “The said “whether sentence).18 Duffy, you the maximum But many can make words so mean differ- cf. court, (“[j]ust Michigan, 730 P.2d at 760 one things.” ent has, statutory authority, without created the is,” question Humрty “The Dumpty, said range imposed to be between the minimum “which is to be master—that’s all.” (quoting People terms” v. Duf Carroll, L. Alice’s Adventures in Wonder fy, Mich.App. 67 240 N.W.2d 773 Through Looking land and Glass 169-71 provides (“any sentence which for a (1981) (emphasis original). In construing exceeding minimum two-thirds maxi statutes, liberty we are not at to resort to an mum improper failing comply is as with plain “Aliee-in-Wonderland” lexicon. The act”))). the indeterminate sentence meaning of terms in a statute are curbs on any may felt we need have to render statutes foregoing, on the Based we hold that palatable more to our own sense of what is statutory right have a appropriate. In much way, same have or her minimum period his term set at a text of a statute limits on establishes shorter than the maximum sentence.19 by public discretion exercised officials in provisions. them execution of its Were we to III. CONCLUSION make words mean what we choose to make mean, them give rather than them them true Therefore, we opinion. reverse ICA’s would, meaning, Humpty we Dumpty, like We also September vacate the circuit court's 1 “Jabberwocky.” devolve into judgment 1999 and remand case to process the circuit with plain instructions to language The of Hawai'i Revised (HRS) petition (1993), Williamson’s as an HRPP §§ Rule 40 Statutes -669 (1993 petition. (1993 Supp.2000), & Supp.2000), -670 & (1993), (1998) prohibits and -64 Peti- tioner/Respondent Appellee C.J., Paroling Hawai'i MOON, NAKAYAMA, RAMIL, (the HPA) Authority prison- JJ., ACOBA, Dissenting Opinion J., er’s minimum term of LEVINSON, at a J., joins. with whom period equal to his or her maximum court- ACOBA, J., Dissenting Opinion of impоsed language sentence. The of those LEVINSON, joins. whom J. prison statutes indicates that a minimum word,” Humpty Dumpty “When I used term is not to be set at same tone, term, said in rather a scornful “it although prisoner means may just I if, what choose it to ultimately mean—neither serve the maximum term in the more nor less.” parole hearings contemplated series of by ed.1990). 18. These stales differ from Hawaii subject that the Williamson’s sentence was court, board, not the establishes the mini- upon completion termination the HPA of his complet- mum Once sentences. Although minimum term. the HPA have set term, any ed his or her minimum less deductions equal period at a to his maxi- commutations, board considers mum it has the reduce his parole. Wyo. him or her for Stat. Ann. 7- Allowing authority minimum term. the HPA the 13-402(a) (1999); 331.21(a) 61 Pa. Cons.Stat. to set a minimum term that is the same as a (1999); 193.130(1) (2000). Nev.Rev.Stat. Re- prisoner’s maximum sentence does not render difference, gardless of this these statutes illus- the sentence a determinate sentence. that, principle trate the if the to deter- limited, mine minimum be sentences is to Jabberwocky is one of Lewis Carroll’s best proper place to do so is a statute. frequently poems. known most discussed words, poem is full of itself nonsensical but reject argument 19. We also of amicus curiae way cajoles Carroll them weaves in a policy OPD that the behind indeterminate sen- story reader to tencing holding. coax out of what would supports ordi- An ICA’s indeter- narily Kelly, nonsense. See R. Lewis minate Canoll "[a] sentence (rev. ed.1990). law, “Jabberwocky" period for the maximum has come to defined “meaningless speech agen- writing.” to cy defined as a termination or other board Collegiate Dictionary time after service of the Merriam Webster’s (6th (10th ed.1993). period....” Dictionary Black's Law “ordinary meaning of 706-670, mayWe confirm the is denied each time. aids, view, my pertinent parts of HRS to “extrinsic resort terms” -670, 353-62, -64, -669, read case law. dictionaries” and to our such as together, while there is no Chen, establish (citing Id. State right parole, a minimum term must be set denied, (App.), cert. P.2d every person premise that indetermi- on the (1994)). The mean Hawai'i 889 P.2d 66 sentenced, Respondent/Petition- nately like “minimum,” “shall,” ing of the words (Wil- Gregory K. er-Appellant Williamson germane to this case. “maximum” are liamson), periodically to be considered “shall,” used ‍‌‌‌‌​‌‌​‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌‌​​‍statutes “[a]s word .... mandatory” and imperative or generally ordinary usage ‘must’ word in means “[t]he I. concept discre with a and is inconsistent (6th statutes, interpreting Dictionary fundamental

“In tion.” Black’s Law added). ed.1990) Thus, language of starting point is the the statute word (emphasis itself, statutory language is and where the statutory provisions pertinent in “shall” duty unambiguous, our sole is to plain and [statutory] provi mandatory “signals ... a plain meaning.” give to its and obvious effect Hamili, 102, 107, Hawai'i v. 87 sion.” State 60, 64, Kalama, Hawai'i 8 P.3d v. 94 State 390, (citing Toyo v. Stale 952 P.2d 395 (internal 1224, quotation marks 1228 893, 8, 21, mura, 906 904 P.2d 80 Hawai'i omitted). Indeed, are in- and citations we omitted)). explanation (parenthetical words of a law “[t]he structed statute 258, 266-67, Villeza, 85 Hawai'i v. State Cf. in generally to understood their most be (1997); 522, v. Corne 942 P.2d State signification, without at- known and usual 476, 493, 1021, lio, 935 P.2d 1038 Hawai'i 84 strictly to tending so much the literal (1997); Gray Dir. v. Administrative of words as to grammatical construction 17, 138, Court, & n. 931 Hawai'i 84 popular meaning.” or general or use them (1997). 580, 17 591-93 & n. P.2d (1993). § 1-14 “[t]he as “minimum” is defined The word case, parties contend “[n]one this admissible[,] or quantity assignable, least lan [it can]not [be] diseern[ed] opposed to given and is possible in case [a] 706-660, -669, -670, 353- guage [§ of HRS Dictionary at 995 Law Black’s maximum.” as, 62, ambiguous inasmuch on its -64] added). as “Maximum” is defined (emphasis face, doubt, of mean is no doubleness there amount, quality, greatest highest- or “[t]he uncertainty or ing, or indistinctiveness degree.” Id. at 979. value or Kalama, 64, 94 Hawai'i at 8 expression.” (internal quotation at 1228 marks P.3d that “[l]aws Additionally, we are directed omitted). Thus, statutes must these citation materia, same pari or legis by “giv[ing] to the interpreted effect matter, to construed with reference shall be intent, primarily which is obtained lature’s (1993). also § 1-16 each other.” v. language statute[.]” Dines from the 343, 347-48, Delima, 893 78 Hawai'i v. State 325, 332, Co., P.2d 78 Hawai'i 893 Ins. Pacific (1995); 194, Farm Zator v. State P.2d 198 (internal marks, brackets, 176, quotation 597, 594, Co., 69 Haw. Auto. Ins. Mut. omitted), reconsideration de and citation Thus, (1988). §§ 706- P.2d nied, 896 P.2d 930 78 Hawai'i -669, -670, are to be and -64 Hence, principles of statuto general “[u]nder of these A construction in concert. read construction, give them ordi courts words ry would in isolation parts of them statutes something statute nary meaning unless failure to import. The them true not reflect interpretation.” Voell requires a different is as pari materia statutes construe related 125, 129, Broderick, 91 Hawai'i my v. duty our departure from unwarranted a 999, 1003(App.1999) (quoting P.2d Saranillio manipu as is the faithfully construe statutes Silva, 78 Hawai'i face of its statutory language denied, lation reconsideration (1995)). ordinary meaning. plain and P.2d Gray,

II. 84 Hawai'i at 931 P.2d at 591 (brackets omitted). Accordingly, in unam say To that the HPA has discretion is wide terms, biguous §HRS 706-660 dictates that dispositive. rationally discretion The impose length “the court shall maximum granted the HPA set minimum sentences imprisonment” while “the minimum disregard authority is not blanche carte imprisonment length determined express directives of law. added.) (Emphases [the HPA].” HPA’s discretion set minimum sentences only common sense and rational conclusion to limitless; is not it is the to estab- delegated be drawn the function to the sentences, lish such but accordance with court, HPA, opposed given to that legal prescribed by framework the stat- designates the former the maximum maximum utes. The distinction between a not, and the and if latter does length imprisonment and a so, by setting HPA in effect does mini parole purposes mum the same as the maximum initially made 706-660. effectively violates the mandate of HRS provides part relevant as fol- duty § 706-660 and abdicates its thereunder. lows: Thus, determine Sentence for class B the minimum overlap sentence cannot felonies; ordinary per- A C terms. authority expressly exclusive vested in the son B who has been convicted of a class determine the sentence. felony may class C to an sentenced express statutory The command in HRS imprisonment .... indeterminate of 706-660, reserving authority to the deter sentence, ordering When such a the court the maximum mine the court and length impose shall im- only vesting determination the mini prisonment which shall be as follows: mum sentence in HPA is consistent with (1) felony—10 class B years; For a explains why no there is lan guage authorizing the HPA set the mini (2) felony—5 years. For a class C length at mum term the same as the maxi length The minimum term, legislative history mum and no to that parol- shall be determined the Hatvai'i expressio effect. The maxim of unius est authority ing in accordance roith section applies. exclusio alterius See Black’s Law 706 669. Dictionary at (defining “expressio 581 unius added.) (Emphases That the term “shall” is est exclusio alterius” as certain ... “[w]hen ordinary mandatory used its sense em- law, things specified are an intention phasized by juxtaposition its with the term operation all may exclude others from its “may”: inferred”); Ap In re Water Use Permit plications, 9 P.3d past, In the this court has subscribed to (2000) (stating legislature that “where the proposition “wher'e the verbs particular language includes one section of ‘may’ ‘shall’ and in the used same but statute omits it in another statute, section of especially they where are used in Act, generally presumed the same juxtaposition, legis close we infer that intentionally pur acts meaning lature realized the difference posely disparate in the inclusion exclusiоn” and intended the verbs should used (brackets quotation and internal marks omit cany meanings.” with ordinary them them ted)). 706-660, Fasi, As Appeal stated HRS the HPA In re Tax Haw. (1981) (citations must set the minimum words, omitted). than, is, other surprisingly, Not term less “as we have there opposed to” proximity the maximum sentence fore construed the “close of the ‘may’ contrasting Dictionary verbs the court. Black’s Law and ‘shall’ re quire materia, mandatory Construing pari effect for the term the statutes in ” (em ‘shall.’ Id. P.2d at sentence is to be set accordance added). phasis with HRS 706-669. a, prisoner record

hi. and until exemplary behavior. continuous A. (5) sixty days prose- to the After notice authority cuting attorney, the in its discre- 706-669 establishes the interrela- tion reduce the term fixed tionship a minimum sentence order between pursuant its order to subsection parole: determining minimum Procedure for authority guide- shall establish imprisonment. per- term of When a lines determination of uniform son has been sentenced to an indetermi- minimum sentences which shall take into imprison- or an nate extended term of degree account the nature and both ment, paroling the Hawai'i prisoner and the offense of shall, practicable but no as soon as later history criminal and character. than six months after commitment to the guidelines public shall be records and shall custody department of the director of the and to be made available safety public hearing, hold a and on the attorney prosecuting and оther inter- fixing make an order basis of government agencies. ested the minimv.m term to be omitted.) (Emphases added brackets seined shall become before Again, juxtaposition “may” of “shall” give legislature intended to indicates the holding hearing, au- Before mandatory preced- effect to those directives thority complete report obtain a re- Gray, Hawai'i ed the word “shall.” entering garding the life before 931 P.2d at 591. report a full the institution and unambiguous § 706-669 is clear and prisoner’s progress in the institution. The on its face. Inasmuch as HRS report complete personality eval- shall be HPA “shall hold a hear mandates purpose determining uation dispense ing,” HPA has no degree propensity toward hearing. “on with the The HPA is directed activity. criminal hearing basis of make an order [to] (3) prisoner given The shall be reason- imprisonment[.]” fixing minimum term hearing under subsection able notice procedural protections in Id. The (1) by permitted to be heard and shah be 706-669(3)(a),(c),(6), (8), pertain and which authority on issue of the minimum term,” hearing to fix a "minimum to the prisoner served before the be- term be authority 706- the HPA’s under HRS addition, eligible parole. for comes 669(5) do not to reduce the “minimum term” shall: prisoner may im any way suggest in that the HPA (a) any permitted Be to consult with term, but, face, are pose a maximum on their prisoner reasonably persons the de- HPA fixes premised on the mandate sires, including prisoner’s own term,” maxi opposed a “minimum to the as counsel, legal preparing in for the sentence, plain proposition supported mum a healing; Accordingly, a by the other related statutes. (b) permitted presented Be imprisonment minimum must be de term healing; at the assisted counsel a light in of the command to hold termined (e) represent appointed to Have counsel hearing purpose. for minimum The prison- if and assist the that is fixed is “to be served before requests and cannot afford to er so eligible parole.” for prisoner shall become counsel; ... added). retain (emphasis §HRS im- a

Parole is “conditional release parolee may, prisonment which entitles a to serve in its discretion The time, term outside any particular [or her] case and at the remainder institution, if -prison- [or she] of an he impose special condition that the the confines satisfactorily complies with all terms will not be considered unless er for provided conditions exemplary By expressly order.” provid- behavior.” (Turner Auth., Paroling v. Hawai‘i Haw ing an exception for to “consider[ation] for (App.2000) ai'i parole,” recipro- subsection confirms the 1116) (quoting Dictionary Black’s Law cal proposition every and converse other (citations omitted)) added). (emphasis Pa prisoner (except, obviously, prisoners those role, definition, then, is served before statutorily non-parola- whose sentences are prisoner’s maximum 2) sentence ends. ble, eligible see parole. note for infra (1), import of pari The subsection read in Plainly, eligibility for must be deter- (4), materia subsection is that granted. mined before mini- obligated “special impose condition” sentence, turn, mum is to be served “be- suspending parole, before consideration of eligible fore” the shall become 706-660, -669, prescribed -670, §§ in HRS parole. Because the minimum sentence -64, and, absence such a precede must consideration for condition, prisoner must “be considered for only can because be served before the 706-669(4). parole.” §HRS runs, maximum sentence the minimum sen- tence fixed the HPA cannot be coincident statutory language, Consistent with the sentence; with that of it must commentary on HRS 706-669 confirms necessarily end the maximum term before (HPC) that the Hawaii Penal Code “does not sentencing court is recognize a sentence HPA, however, served. The set the mini- parole except to ... [the murder mum at the maximum sentence term. No 706-606(a) ] offenses referenced patent more violation command added.) Hence, (Emphasis except [.] ”2 “Minimum,” imagined. can quite obvious- degree, ease murder the first see ly, opposed “is to maximum.” Law Black’s -64, infra, §§ also 353-62 and or an Dictionary at 996. imposed special condition under HRS 706- 669(4), eveiy prisoner is to be considered for B. Setting a at a is, purpose for that as the words “shall be- IV. parole” come in subsection indicate, stage process the first of a intended of a which prisoner parole to afford a place practicable consideration. takes “as soon as but no infra, 706-670, 353-62, and HRS later than six months after commitment to exception and -64. The to such custody consider- department the director of the 706-669(4) when, above, § ation occurs public safety” as HRS re- discussed HRS lates, 706-669(1) (brackets omitted), § exercises its discretion to tois be fol “impose special prisoner by condition that the parole lowed an initial heating, which parole will not be considered for unless and occurs “at least month expira one before the prisoner until the has a record of tion of imprisonment.” continuous the minimum term of 706-656(1) § 707-701(2) 2. HRS 706-606 has since been § renumbered. pro- HRS commentary The references an earlier version of vides as follows: which, 706-606(a) § initially prior HRS degree. Murder in the first amendment, provided the 1986 as follows: (2) degree felony Murder in Lhefirst is a Sentence for of murder. offense The court which the defendant shall be im- sentenced to person shall sentence a ed of murder to an indeterminate who has been convict- prisonment provided as in section 706-656. im- term of 706-656(1) provides §HRS as follows: cases, prisonment. In such the court shall imprisonment ‍‌‌‌‌​‌‌​‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌‌​​‍Terms of for first and second impose imprisonment the maximum degree attempted murder and first and second as follows: (a) (1) degree murder. Persons convicted of first imprisonment possibility Life without degree degree attempted murder or first mur- parole [types in the murder of: of murder imprisonment der shall be sentencеd to life listed] possibility parole.... without statutory language The difference does not § (Supp.1972). comparable HRS The analysis. affect the 707-701(2) (1993) presently sections are HRS 706-670(1).3 § provisions HRS parole grant HRS váis or less” in the event is not 706-670(1), § periodic Hence, which direct review of parole hearing. ed in the initial parole, verify status for that a deny HPA has no such addition minimum sentence is to be at established less hearings. al If plain language than the maximum term. enough, any statute were doubt of Wil right periodic dispelled liamson’s review is 706-670(1) § provides per HRS that “[a] by commentary § on HRS son to an sentenced indeterminate term of which through “[s]ubsections parole hearing, the it shall state its after (3) protections given prisoners by subsections writing. A reasons verbatim steno- § and of HRS 706-670: graphic pa- or mechanical record the of plan participation. Prisoner's and preserved Each role shall be made and prisoner given shall be reasonable notice the in transcribed or untranscribed of form. discretion, prisoner's parole hearing prepare authority, and shall in its order plan, parole setting rehearing the manner the a reconsideration or the case forth of life of prisoner parole any provide intends to lead released on time reasonable if parole .... The institutional rehearing shall render notice the reconsideration or staff of prosecuting prisoner preparation attorney. pаrole reasonable aid to the in the to the is If plan prisoner’s securing authority, granted the and in the the of infonna- authority. In addi- length tion submission to the the shall set initial minimum for of tion, prisoner the parole shall: term. (a)Be added.) permitted any persons (Emphases to consult with prisoner reasonably whose assistance the desires, including prisoner's supra own le- notes 3 and 4. 5.See procedure parole for determination.... the HPA to set the minimum sen- authorize ... procedure provides periodic for re tence at the same as that set Consequently, mini- case.” court. view the equal mum maximum term to the HPA law. violated the V. emphasized § It is to be 706- HRS VI. 670(1) compel grant does not the HPA to 353-62(a)(2) § HRS reiterates directs, parole. unconditionally itWhat how- parole HPA “shall” “consider for all commit ever, imposed an the absence of condition persons” except ted those committed for life 706-669(4), periodic §

under HRS review parole: without indeterminately an sentenced authority; paroling responsi- eligibility parole through parole Hawaii for an initial (a) duties; hearing following setting of a minimum bilities and .... In addition to and, necessary, parole responsibility duty prescribed if additional other or hearings. hearings paroling authority, Because additional must law for the Hawaii paroling authority parole granted “until shall: be instituted period imprisonment expires,” maximum 706-670(1), § prisoner guaran- not HRS selecting parole, individuals for ultimately HPA

teed neеd not parole consider all committed for grant parole. persons, except in cases where the penalty imprisonment not Nevertheless, evident, §§ HRS of life parole imposed, -669(1) been mandate that a minimum term regardless the nature than maximum less term be fixed of- committed [.] periodic by way HPA to enable review fense parole hearing hearings initial and additional added.) 353-62(a)(3) (Emphases § HRS prisoner obtaining until is successful in ap HPA states shall determine the parole period imprison or the maximum propriate grant parole any “eligi time to 706-670(1). expires. ment As individual.” A ble sentence life without Judge Foley, opinion who authored the for an is not indeterminate sentence and (the ICA), Appeals the Intermediate Court scope come within the of HRS intimates, setting term at the indeterminately 353-62. sen deny would tenced like Williamson falls within consideration envisioned under the category persons.” “all committed Paroling statutes. See Williamson v. Hawai‘i 353-62(a)(2). 353-62(a), con th., 97 Hawai’i 34 P.3d Au procedures sistent with the established (Ct.App.2000) opin [hereinafter ICA’s -670, requires HPA 706-669 and ion]. prisoners parole “regard all consider less of the commit nature the offense legislative That denial of is “within 353-62(a)(2). ted[.]” HRS Under discretion,” majority opinion at 353-62, then, persons, all committed re (internal quotation marks and citation gardless they of the offense for which omitted), disputed, legis is not but where the committed, must be considered for directed, expressly except lature has in thе recounted, that, exceptions selecting “[i]n two But the manner in which consideration parole[, eligibility place shall] individuals con is to take deter- persons,” all unguided sider committed HRS mined is not left to the discretion of 353-62(a)(2) 353-62(a)(2), procedure forth board. HRS (3) rendering parole to be followed in such to consider relate the board’s ation, statutory in those commands are entitled sentences and therefore must be read enforcement, recognition legisla to and as a and not in iso- concert related statutes elucidated, parole previously proce- tive mandate that denies would be. lation. As regard, legislature per- “considering] In that nowhere does the dure for all committed known as the provisions professional board to be of HRS time governed sons” is Paroling Authority, hi order more 706-669, Hawaii § “Procedure determin- entitled for (em- effectively efficiently and to achieve imprisonment,” ing inseparable added), purposes of phasis eligibility for release dual and and the one hand protection society § on the parole by provisions 706- on of HRS 670, entitled, procedures; the rehabilitation part, “Parole and offender added). parole,” (emphasis Ac- release on the other. concepts pa- for cordingly, “consider 314, in 1975 Rep. Sen. Comm. No. Conf. parole for forth in “eligible” role” and as set Journal, respect, the at 959. In that Senate 353-62(a) only § HRS can effectuated be parоle supports conclusion function of within structure set forth HRS to is not be that a minimum sentence term §§ and -670. 706-669 maximum term. set at the same as the “[a-Jny again § confirms 353-64 justification parole is primary for “The person any confined in state cor- committed By permitting rehabilitation. fosters facility any sentence rectional execution of structured, supervised, to gradual return imposed except person, the committed freedom, parole bridges the difficult total imprison- penalty of life cases where ex-prisoner.” to transition subject imposed, parole ment to not been Cohen, and Pa- N.P. The Law Probation subject parole to manner and form be role, 1:15, at 1-23 Parole also part[.]” (Emphases as set in this add- forth prison tool “en- management as a serve ed.) above, § 353-62 rules, Like HRS discussed obey prison to for couraging prisoners prisoners mandates that .all likely grant parole parole board less except imprison- for those sentenced to life poor with a institutional record.” prisoners possibility parole ment without the “shall hand, 1:18, Id., “a at 1-26. On the other added.) parole[.]” (Emphasis away from the no-parole takes sentence §§ and -64 the man- reinforce prisoner any to be- motivation or incentive every prisoner date must be considered gain thereby prisoner’ and a ‘model come gov- parole is Consideration for Id. good a reward behavior.” as procedures forth in HRS erned “fine-tuning” of a permits at 1-27. Parole -669, previ- §§ -670 discussed Id., 1:19, at 1-28. sentencing decision. ously. policy A HPA which circumvents “the proposition here is that illegal. Nothing grants such mandate is than the sen- should be more accurate board ignore authority or the HPA determining tencing whether deterrence, this mandate. rehabilitation, special needs time incapacitation have met been VII. Id. the sentence.” after language (1) plain rule of “[T]he in HRS exemplified are functions These preclude an ] does examina -669, delegate to the which §§ 706-660 construction! language tion of than of the sources other power a minimum to set board itself[,] language ap when statute even prisoner, see evaluating the after sentence “ad peal's upon perfunctory (2) 706-669(1), review” to 706-669(2), clear in HRS policy which equately underlying discern is to a minimum sentence charges that which promulgate!.]” (3) seeks parole eligibility, served before Co., 81 Bragg Farm Mut. Auto. Ins. 706-669(4), v. eligibility State suspends which P.2d order, Hawai‘i in HRS appropriate parole upon an (internal marks, brackets, and el quotation 706-670(1), initial which orders omitted) Tawata, (citing lipsis points Sato hearing to be held the end (1995)). P.2d hearings and additional HPA, legislature stat establishing in HRS necessary, and thereafter -64, ed that that all which confirm of mur- prisoners than convicted other those this bill purpose [t]he reconstitute pa- “subject to” degree in the first as a full- der paroles pardons board established, procedures pe- points (Ellipsis role. Under the intent existed.” and citations omitted.)). riodic review is essential to the Obviously, consideration if a is not parole. Obviously, setting susceptible parole expiration .a minimum to at the of the periodic term, may term which such review parole renders be denied. The meaningless subject pro- setting would be to a due of the minimum term effectuates the challenge. penal cess See discussion proposition to code’s adherence infra. periodic parole, through review for an parole hearing” “initial

VIII. and “additional hear- 706-670(1), ings,” HRS best serves the Therefore, every prisoner, except sub- one public prisoner. interests of the and the See ject to a excluding parole, Commentary on 706-670. HRS §§ is see HRS -64, thus, and, must be Thus, considered periodic view that review is “a (in special of a restriction,” the absence condition significant majority opinion at 706-669(4)) to according under HRS 35 P.3d at the HPA’s discre - procedures §§ forth in set light tion looms no more than irrelevant in 669, and -670. The framework of HPC the fact that the statutes discussed above premise operates from the is a circumscribe HPA’s exercise of discre component post-conviction impris- critical penal adoption periodic tion. The code’s onment, HPA and the has no that, public policy review embodies an procedures by setting alter those a minimum sentence, i.e., a indeterminate sentence that length at as term the same the mаximum “subject to termination Thus, expressly term. framework set ... peri board after service of the minimum od”, forth 706-669 and -670 in- Dictionary Black’s Law at the eval (i.e., contemplate that HPA deed must point uation for at one time—the “shall”), in express the absence of condi- start of simply the defendant’s sentence—is pursuant tion entered to HRS insufficient to assess whether a defendant sentence, or a life set an initial hear- should serve maximum term allowed un ing hearings, and additional see 706- der the law.

670(1), because, required as as the commen- tary on contemplates, there IX. periodic review of the case. brief, opening In his Williamson made two provisions implement These the well-estab- First, arguments. he contended purposes lished Part VII. The circuit treating petition court erred in as periodic abrogation of such review under a complaint petition a civil as a not under equals approach “minimum maximum” elimi- (HRPP) Hawaii Rules Penal Procedure altogether sought nates the balance to be Second, 40. argued Rule Williamson pro- struck between “the 706-669(1), virtue “[t]he HPA can- society on tection the one hand and the legally set minimum term rehabilitation offender the other.” given by the same as the maximum term Rep. Conf. Sen. Comm. No. in 1975 court.” Journal, at 959. Senate

By expressly setting what argument, forth As to Williamson’s first the ICA do, i.e., by setting the minimum petition held that Rule appropri- “[a] is an opposed to the maximum challenge HRS ate means for an inmate preсludes the HPA from term of imprisonment. maximum term opinion HPA.” ICA’s P.3d Cf. Rodgers, challenge State Haw. It is evident Williamson’s (1986) (“[W]here fixing imprison- statute ref- of his minimum term of subject given provi- erence one contains ment the same as his maximum sion, provision of such from a custody omission relief ... “seek[s] based concerning upon judgment similar statute a related ... on ... conviction[ ] significant legislative ground that a making custody, though show different therefore, 40(f), and, not have should illegal.” HRPP Rule Rule judgment, not Rather, 40(a)(2).6 circuit court. a denial of con- been dismissed “[BJecause provi- express prop- action of the HPA violated physical custody, such is a tinues denial and, corpus the law. a writ of habeas sions of er therefore, may an inmate denied “[Cjourts denying may a decision examine through of a to relief the mechanism entitled parole board parole in situations where the Turner, petition.” 93 Hawai'i HRPP Rule 40 arbitrarily capriciously abused has ... HPA, indeed, 307, 1 P.3d at 777. The give to a due its so as rise discretion it impliedly point this because concedes Turner, process violation[.]” disposition challenge of it. not the ICA’s (internal quotation marks 1 P.3d at 778 omitted) argument, (citing ex rel. O’Con respect to his second it is United States

With MacDonald, F.Supp. that Williamson was convicted of to be noted nor v. Commonwealth, (N.D.Ill.1978); degree, 707-711 ‍‌‌‌‌​‌‌​‌‌‌‌​‌‌‌​​​​​​​‌​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌‌​​‍Reider v. assault the second HRS Parole, (1993), degree, burglary Pennsylvania in the second Bd. Probation & (1993), A.2d 969-70 and sentenced 100 Pa.Cmwlth. (1986)). provided by § 706- HPA this case circuit court as The action 660(2) “аrbitrar[y] capricious[ (apparent- patent ] to maximum indeterminate was concurrent) years impris- giv[ing] rise to a ly of five ... discretion abuse[ of] terms (internal previously quota process count. As men- violation.” Id. onment on each due omitted). tioned, minimum also sentence tion marks and citations set Lake, Haw. Territory as the maximum sentence at the same term minimum imposed by (holding by setting circuit court. The HPA did sentence enter, 706-669(4), pursuant same as the not to HRS con- court failed “to exercise the special condition that Williamson fix a minimum sen and to [it] sidered for vested tence”). First, erroneously court dis- because the petition without a pro Williamson’s se

missed X. hearing, it cannot be discerned whether hearing pursu- HPA conducted Williamson’s affirm foregoing, I would Based on the any complied with ant to (1) a HRPP Rule 40 holdings that ICA’s “guidelines for the uniform determination for an in- appropriate means petition is an sentences,” required by minimum prison challenge the mate to 706-669(8), his minimum sen- when set HPA was not by the HPA and set A court’s maximum sentence. tence at the minimum term to Williamson’s authorized pursuant failure to conduct the imprison- as his maximum term the same apply guidelines or to circuit order of the I would vacate the ment. for uniform determination constitute a basis instruc- dismissing the Petition may a due sentences constitute of minimum vacating an order to the court to issue tions process violation. imposed “minimum” so called HPA to com- directing the Second, statutory by the HPA and framework re- under procedures applicable supra, ply maxi- with the parole as discussed garding circuit court to Williamson’s case. imposed mum sentence HPA as the cannot be set circumstances, In view of such

sentence. “patently frivo- petition was not

Williamson’s support either or “without trace

lous” evidenee[,]” HRPP from other the record or served; (i) fully 40(a)(2) was that sentence Rule states as follows: 6. HRPP unlawfully (ii) probation was Custody. Any person seek relief From revoked; or procedure rule set forth this under custody, (iii) making ground other custody judgment from conviction, based illegal. though judgment, following grounds: not the notes imprisonment parole shall receive an initial ” (3)[5] largely self-explanatory hearing at least month expira one before the procedure provides peri “[t]he [therein] tion of imprisonment the minimum term of (Em odic review case.” by paroling authority determined the Hawaii added.) phases provisions Such pursuant 706-669,” are consis to section and that “addi fixing tent with the of a hearings tional lesser term than the shall be held twelve-month contrary maximum allowed. A parole intervals or until construction granted less or the period provisions would render the imprisonment expires.” 706- 706-670(1) Thus, added).4 meaningless. (emphases to conclude that 706-670(1) periodic view of fact that mandate of review is satisfied di under prisoner rects an indeterminate term because is available for (i.e., persons “shall an parole hearing “eligible parole” receive initial -for those expiration least one month before the of the whose minimum sentences have not been set term,” added), term) (emphases reasoning. the maximum is circular deny prisoner HPA has no Eligibility discretion to an as envisioned under the parole healing.” Gray, “initial procedures Id. See in HRS 706-669 and -670 is to Hawai'i at 931 P.2d at 591. In through periodic the same hearings. determined 706-670(1) vein, compels commentary “additional As the on HRS healings pertinent part, [to] be held at twelve month “adopt[s] inter- states the statute counsel, provides pertinent part gal 3. HRS preparing hearing for a authority; as follows: before the (b) permitted represented Be to be and as- procedure;. hearing. Parole .. Parole A hearing; sisted counsel at the person sentenced indeterminate term of (c) appointed represent Have counsel shall receive an initial assist the if the so re- expira- at least one month before the quests and cannot afford to retain coun- tion of the minimum term of sel; and paroling authority determined pursuant the Hawaii (d) prisoner’s rights Be informed of the to section If 706-669. is not set forth this subsection. time, granted at that hearings additional decision; Authority’s initial minimum be held at twelve-month intervals or less until authority term of shall ren- granted period or the maximum regarding prisoner's der its decision imprisonment expires.... release on within reasonable added.) (Emphases parole hearing. grant time after the A acceptance shall not be significance parole hearings 4. The attributed to prisoner. denies If process is underscored the numerous due

Case Details

Case Name: Williamson v. Hawai'i Paroling Authority

Court Name: Hawaii Supreme Court

Date Published: Nov 29, 2001

Citation: 35 P.3d 210

Docket Number: 22882

Court Abbreviation: Haw.