State v. Hackett

• Decision Date: 24 November 1989
• Docket Number: No. 13620,13620
• Citation: 783 P.2d 1232,7 Haw.App. 526
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Stephen James HACKETT, a/k/a Mark La Savio, Jeffery Allan Hackett, and Lisa Estrada, Defendants-Appellees, and Leonard Wayne Ulibarri, also known as Leonard Martin, Thomas Garces, Anthony Dale Barnes, and Ray Adam Batungbacal, Defendants
• Court: Hawaii Court of Appeals

Page 1232

783 P.2d 1232

7 Haw.App. 526

STATE of Hawaii, Plaintiff-Appellant, v. Stephen James HACKETT, a/k/a Mark La Savio, Jeffery Allan Hackett, and Lisa Estrada, Defendants-Appellees, and Leonard Wayne Ulibarri, also known as Leonard Martin, Thomas Garces Anthony Dale Barnes, and Ray Adam Batungbacal, Defendants.

No. 13620.

Intermediate Court of Appeals of Hawai'i

Nov. 24, 1989.

Syllabus by the Court

Under Hawaii Revised Statutes § 701-109(1)(b) (1985), those who conspire to commit more than two criminal acts and commit two of the criminal acts may be convicted of three crimes (committing the two criminal acts and conspiring to commit the other criminal act(s)). As long as the conspiracy count of which they are convicted involves overt acts in furtherance of one or more crimes other than the two committed criminal acts, its inclusion of the two committed criminal acts as some, but not all, of the conspiracy's overt acts neither invalidates nor precludes convictions of three crimes.

Gary A. Modafferi, Deputy Prosecuting Attorney, City & County of Honolulu (Wallace W. Weatherwax on the opening brief) Honolulu, for plaintiff-appellant.

Gary Y. Murai and William A. Harrison, Honolulu, for defendant-appellee, Stephen James Hackett.

Chester M. Kanai, Honolulu, for defendant-appellee, Lisa Estrada.

Martin A. Steinberg, Waipahu, for defendant-appellee, Jeffery Allan Hackett.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

The State of Hawaii (State) appeals the circuit court's January 17, 1989 order dismissing Counts II and III of the May 17, 1988 indictment (Indictment) against defendants Stephen James Hackett (Stephen), Jeffery Allan Hackett (Jeffery), and Lisa Estrada (Lisa) (collectively Defendants). ¹ We vacate the January 17, 1989 order and remand for the adjudication of Counts II and III.

The State contends that the lower court reversibly erred when it dismissed Counts II and III prior to their adjudication at trial. We agree. The issue is whether the January 5, 1989 judgment, entered pursuant to Defendants' nolo contendere (no contest) pleas, convicting Defendants of Count I (conspiracy to commit Counts II, III, and other crimes) bars the subsequent entry of judgments convicting Defendants of Counts II and III. Pursuant to Hawaii Revised Statutes (HRS) § 701-109(1)(b) (1985), our answer is no.

FACTS

On May 17, 1988 Defendants and others were indicted on the following three counts:

Count I: Criminal Conspiracy to Promote a Dangerous Drug in the First Degree, HRS §§ 705-520 (1985) ² and 712-1241(1)(b)(ii)(A) (1985).

Count II: Attempted Promotion of a Dangerous Drug in the First Degree, HRS §§ 705-500 (1985) and 712-1241(1)(b)(ii)(A).

Count III: Promoting a Dangerous Drug in the First Degree, HRS § 712-1241(1)(b)(ii)(A).

The act alleged in Count II was an attempt by Stephen and Jeffery to distribute cocaine on or about February 22, 1988 through February 27, 1988. The act alleged in Count III was the distribution of cocaine by Stephen, Jeffery, and Lisa on April 8, 1988. The thirty-four overt acts alleged in Count I include eleven acts by Jeffery and Stephen during the period of time covered by Count II and two acts by Stephen, Jeffery, and Lisa on the day covered On October 17, 1988 Defendants pled no contest to Count I, and the lower court accepted Defendants' pleas. The State did not object to the court's acceptance of their no contest pleas to Count I prior to the adjudication of Counts II and III. The State merely persuaded the court to advise Defendants that thereafter the court would not allow them to withdraw their no contest pleas to Count I, and that Counts II and III survived the court's acceptance of their no contest pleas to Count I.

by Count III. When the acts alleged in Counts II and III are omitted from the overt acts alleged in Count I, the latter continues to state the essential elements of the conspiracy offense alleged. When the overt acts alleged in Count I are omitted from Counts II and III, the latter two counts fail to state the essential elements of the criminal offenses alleged.

On October 18, 1988 Defendants moved under Hawaii Rules of Penal Procedure Rule 12 to dismiss Counts II and III of the Indictment on the basis of HRS §§ 701-109(1)(b) and 705-531 (1985). ³ On January 5, 1989 the lower court entered the judgments convicting each Defendant of Count I and sentencing each of them to ten years incarceration. On January 17, 1989 the lower court entered the order dismissing Counts II and III of the Indictment against Defendants. On February 1, 1989 the State filed a notice of appeal from the January 17, 1989 order pursuant to HRS § 641-13(1) (Supp.1988).

DISCUSSION

HRS § 701-109(1)(b) is dispositive in this case. It provides as follows:

Method of prosecution when conduct establishes an element of more than one offense. (1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:

* * * * * *

(b) One offense consists only of a conspiracy or solicitation to commit the other[.]

The plain language of HRS § 701-109(1)(b) prohibits convicting a person of two offenses when one offense consists "only" of a conspiracy to commit the other. In other words, it prohibits convicting a defendant of committing criminal act A and of conspiring to commit only criminal act A. See State v. Reyes, 5 Haw.App. 651, 706 P.2d 1326 (1985).

This case presents the question whether HRS § 701-109(1)(b) prohibits convicting a person of conspiring to commit more than two criminal acts and of committing two of the criminal acts planned pursuant to the conspiracy. Construing the plain language of HRS § 701-109(1)(b), our answer is no.

Under HRS § 701-109(1)(b), those who conspire to commit more than two criminal acts and commit two of the criminal acts may be convicted of three crimes (committing the two criminal acts and conspiring to commit the other criminal act(s)). As long as the conspiracy count of which they are convicted involves overt acts in furtherance of one or more crimes other than the two committed, its inclusion of the two committed as some, but not all, of the conspiracy's overt acts neither invalidates nor precludes conviction of three crimes.

In this case, Count I alleged a conspiracy to commit Counts II and III plus other crimes. Since the judgment convicting Defendants of Count I was based on the lower court's acceptance of their no contest pleas, and Count I alleged a conspiracy to commit crimes in addition to the crimes alleged in The Model Penal Code (MPC), which is the source of HRS § 701-109(1)(b), supports our reading of the plain language of HRS § 701-109(1)(b). The commentary to MPC § 1.07 states, in relevant part, as follows:

Counts II and III, HRS § 701-109(1)(b) did not prohibit convictions on Counts I, II and III. ⁴

Conspiracy to commit an offense, like attempt, may consist merely of preparation to commit that offense. Since, except for capital offenses and felonies of the first degree, the conspiracy is punishable in the same degree as the completed offense under the Code, a conviction of either adequately deals with such conduct. That is not true, however, where the conspiracy had as its objective engaging in a continuing course of criminal conduct. This involves a distinct danger in addition to that involved in the actual commission of any specific offense. Therefore, the limitation of the Code is confined to the situation where the completed offense was the sole...