87 Hawai'i 1, State v. Jumila

• Decision Date: 03 February 1998
• Docket Number: No. 19898,19898
• Citation: 950 P.2d 1201,87 Hawaii 1
• Parties: 87 Hawai'i 1 STATE of Hawai'i, Plaintiff-Appellee, v. Clemente B. JUMILA, Jr., aka "Junior," Defendant-Appellant
• Court: Hawaii Supreme Court

Page 1201

950 P.2d 1201

87 Hawai'i 1

STATE of Hawai'i, Plaintiff-Appellee, v. Clemente B. JUMILA, Jr., aka "Junior," Defendant-Appellant

No. 19898.

Supreme Court of Hawai'i.

Feb. 3, 1998.

James Biven, on the briefs, Kailua Kona, for defendant-appellant.

Melvin H. Fujino, Deputy Prosecuting Attorney (Harold Schwartz, Law Clerk, assisting), on the briefs, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

Defendant-appellant Clemente B. Jumila, Jr., appeals the Third Circuit Court's denial of his motion to reduce sentence and correct illegal sentence pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35. For the reasons set forth below, we vacate the circuit court's denial of Jumila's HRPP Rule 35 motion and reverse Jumila's conviction and sentence on the Hawai'i Revised Statutes (HRS) § 134-6(a) charge.

I. BACKGROUND

In December 1995, Jumila pleaded no contest to charges of murder in the second degree, in violation of HRS § 707-701.5(1) (1993), ¹ and carrying or use of a firearm in the commission of a separate felony, to wit, murder in the second degree, in violation of HRS § 134-6(a) (Supp.1996). ² The circuit court accepted the no contest pleas and found Jumila guilty of both offenses. Then, at his sentencing hearing, Jumila argued that, if a mandatory minimum term were to be imposed on the second degree murder charge pursuant to HRS § 706-660.1(1)(a) (1993) ³ for the use of a firearm while engaged in the commission of the murder, then HRS § 701-109(1)(a) and (4)(a) (1993) would prohibit the imposition of separate sentences for each offense. Over his objection, the circuit court sentenced Jumila to (1) life imprisonment with the possibility of parole on the second degree murder charge, and (2) an indeterminate term of imprisonment of twenty years on the HRS § 134-6(a) charge. In addition, the circuit court imposed a mandatory minimum term of imprisonment of fifteen years on the second degree murder charge pursuant to HRS § 706-660.1(1)(a). The sentences were to run concurrently.

Jumila thereafter filed a motion, pursuant to HRPP Rule 35, to reduce sentence and correct illegal sentence, which the circuit court denied on May 6, 1996. This timely appeal followed.

II. DISCUSSION

A. Analysis

On appeal, Jumila argues that, because he was sentenced to a mandatory minimum term of fifteen years in connection with the second degree murder charge, the charge of carrying or use of a firearm in the commission of a separate felony was an included offense, as defined in HRS § 701-109(4)(a), of murder in the second degree. Thus, Jumila contends that, pursuant to HRS § 701-109(1)(a), which provides that a "defendant may not ... be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in subsection (4) of this section[,]" he should not have received both the twenty year sentence on the HRS § 134-6(a) charge and the life sentence with the fifteen year mandatory minimum term on the second degree murder charge. Accordingly, Jumila urges us to hold that the circuit court erred in denying his motion to reduce sentence and correct illegal sentence.

According to HRS § 701-109(4)(a), one offense is included within another when "it is established by proof of the same or less than all the facts required to establish the commission of the [other] offense...." The use of a firearm is a fact that needs to be proven to establish the HRS § 134-6(a) offense; however, the use of a firearm does not need to be proven in order to establish the offense of second degree murder. That Jumila's sentence for second degree murder was enhanced, pursuant to HRS § 706-660.1(1)(a), because of the use of a firearm does not alter that fact. Accordingly, we hold that the offense of use of a firearm in the commission of second degree murder in violation of HRS § 134-6(a) is not an included offense ⁴ of second degree murder in violation of HRS § 707-701.5(1).

Jumila's HRS § 701-109 argument is not, however, without merit. "[B]ecause HRS § 134-6(a) requires the actual commission of an underlying felony," the prosecution "is required to prove all of the conduct, attendant circumstances, and results of conduct that comprise the underlying crime" in order to convict a defendant of violating HRS § 134-6(a). State v. Israel, 78 Hawai'i 66, 74-75, 890 P.2d 303, 311-12 (1995). Therefore, by virtue of the statutory definition of HRS § 134-6(a), the felony underlying an HRS § 134-6(a) charge will always be "established by proof of the same or less than all the facts required to establish the commission of the" HRS § 134-6(a) offense. Consequently, the felony underlying an HRS § 134-6(a) offense is, as a matter of law, an included offense of the HRS § 134-6(a) offense.

This analysis is analogous to that set forth in State v. Vinge, 81 Hawai'i 309, 318-19, 916 P.2d 1210, 1219-20 (1996), wherein we concluded that the offenses of "theft and attempted theft, regardless of degree, are included offenses of first degree robbery." 81 Hawai'i at 319, 916 P.2d at 1220. In Vinge, we noted that, because robbery in the first degree is defined by HRS § 708-840 (1993) as the commission of certain acts "in the course of committing theft,"

in order for the prosecution to prove that a defendant committed robbery in the first degree, the prosecution must also prove--as an element of first degree robbery--all the elements of theft or attempted theft. Therefore, because (1) theft is an element of first degree robbery, (2) a defendant cannot commit first degree robbery without committing theft or attempted theft, and (3) attempted theft is an included offense of theft, see HRS § 701-109(4)(b), we hold that theft and attempted theft, regardless of degree, are included offenses of first degree robbery.

Id.

Because the felony underlying an HRS § 134-6(a) offense is an included offense of the HRS § 134-6(a) offense, pursuant to HRS § 701-109(1)(a), Jumila should not have been convicted of both the HRS § 134-6(a) offense and the underlying second degree murder offense. ⁵ If he should not have been convicted of both offenses, then, of course, he should not have received separate sentences for each offense. Consequently, the circuit court erred in denying Jumila's motion to reduce sentence and correct illegal sentence.

In order to remedy the HRS § 701-109 violation, the conviction and sentence for one of the two offenses must be reversed. When a defendant is convicted of an offense and a "lesser" included offense, see State v. Malufau, 80 Hawai'i 126, 138, 906 P.2d 612, 624 (1995) (order on motion for reconsideration) (an included offense is "lesser" when "it is an offense of a class and grade lower than the greater offense"), we simply reverse the conviction and sentence for the "lesser" included offense. See Vinge, 81 Hawai'i at 324, 916 P.2d at 1223; see also State v. Reyes, 5 Haw.App. 651, 659, 706 P.2d 1326, 1331, reconsideration denied, 5 Haw.App. 683, 753 P.2d 253 (1985). This solution is fair to the defendant because it remedies the HRS § 701-109 violation, and it is fair to the prosecution and the public because it sustains the conviction of the offense of the highest class and grade of which the defendant was convicted. ⁶

In the instant case, however, the included offense is murder in the second degree, an offense of a higher class and grade than HRS § 134-6(a), a class A felony. HRS § 134-6(e). Under these circumstances, where (1) the second degree murder conviction was otherwise valid and (2) the HRS § 701-109 violation can be remedied by reversing the HRS § 134-6(a) conviction and sentence, we believe that it would be manifestly unfair to the prosecution and to the public to reverse the second degree murder conviction simply because it was the included offense. Accordingly, in order to remedy the HRS § 701-109 violation, we reverse Jumila's conviction and sentence on the HRS § 134-6(a) charge. ⁷ Cf. State v. Liuafi, 1 Haw.App. 625, 644, 623 P.2d 1271, 1283 (1981) (where defendant's convictions of both attempted murder and failure to render assistance violated HRS § 701-109(1)(c) because inconsistent findings of fact were required to establish the commission of the offenses, the proper disposition was to vacate the conviction for failure to render assistance).

B. Response to Dissent

The dissent essentially argues that the legislature intended that an individual could be convicted of both an HRS § 134-6(a) offense and the underlying felony offense and that the legislature thereby created an exception to the statutory prohibition set forth in HRS § 701-109 against convictions for both an offense and an offense included therein. See dissenting opinion at 7-9, 950 P.2d at 1207-1209. ⁸ We agree that the legislature could, if it desired, create an exception to the statutory prohibition set forth in HRS § 701-109 against convictions for both an offense and an offense included therein. In our view, however, there is not sufficient basis in the language or legislative history of HRS § 134-6(a) to conclude that the legislature so desired.

We have found no indications in the language of HRS § 134-6(a) or the legislative history preceding its original enactment in 1990 to suggests that the legislature intended that an individual could be convicted of both an HRS § 134-6(a) offense and its underlying felony or that the legislature otherwise intended to create an exception to HRS § 701-109. Moreover, we note that the dissent's interpretation of the legislative intent is based virtually entirely on an isolated sentence that was mere dictum in a single committee report regarding a 1993 amendment to HRS § 134-6(a). See dissenting opinion at 7, 950 P.2d at 1207 (citing Sen. Stand. Comm. Rep. No. 1217, in 1993 Senate Journal, at 1210). ⁹ In light of the attenuated legislative history in this regard, we must abide by the plain language of HRS §§ 134-6(a) and 701-109, which, as...