State v. Kumukau, 13465

• Decision Date: 23 February 1990
• Docket Number: No. 13465,13465
• Citation: 787 P.2d 682,71 Haw. 218
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Melvin KUMUKAU, aka Melvin Joseph Kumukau and Melvin Joseph Kumuhau, Defendant-Appellant, and Elmer Kumukau and Walter K.K. Pang, Defendants.
• Court: Hawaii Supreme Court

Page 682

787 P.2d 682

71 Haw. 218

STATE of Hawaii, Plaintiff-Appellee, v. Melvin KUMUKAU, aka Melvin Joseph Kumukau and Melvin Joseph

Kumuhau, Defendant-Appellant,

and

Elmer Kumukau and Walter K.K. Pang, Defendants.

No. 13465.

Supreme Court of Hawai'i.

Feb. 23, 1990.

Syllabus by the Court

1. The court's primary duty is to ascertain and implement the intention of the legislature. In ascertaining intent, the language of the provision must be read in the context of the entire statute and construed in a manner consistent with its purposes.

2. Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another.

3. The legislature prescribes penalties for criminal offenses and its inclination has been to vest in the courts wide latitude in the selection of penalties from those prescribed and in determination of their severity.

4. In determining the particular sentence to be imposed, the court must consider a variety of factors, as set forth in HRS § 706-660 (Supp.1989), in exercising its discretion in fitting the punishment to the crime as well as the needs of the individual defendant and the community.

5. HRS § 706-660.1(a) authorizes the imposition of consecutive mandatory minimum terms of imprisonment.

6. The question of what constitutes an adequate penalty necessary for the prevention of crime is addressed to the sound judgment of the legislature and the courts will not interfere with its exercise, unless the punishment prescribed appears clearly and manifestly to be cruel and unusual.

7. Where the sentence prescribed by statute is cruel and unusual within the meaning of the Eighth Amendment to the U.S. Constitution, the statute itself is unconstitutional and any sentence imposed thereunder must be set aside.

8. The standard by which punishment is to be judged under the cruel and unusual punishment provisions of both the United States and Hawaii constitutions is whether in light of developing concepts of decency and fairness, the prescribed punishment is so disproportionate to the conduct proscribed and is of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community.

9. Parole is a matter of legislative grace, and the denial of it to certain offenders is within legislative discretion.

10. HRS § 706-660.1 which permits consecutive mandatory minimum terms of imprisonment is not unconstitutional on its face.

11. Notwithstanding the facial validity of a statute, in a few extreme cases, sentences have been held to be unconstitutionally cruel and unusual as applied to the particular circumstances and to the particular defendant.

12. While a sentence may be authorized by a constitutionally valid statute, its imposition may be reviewed for plain and manifest abuse of discretion.

13. The determination of the existence of clear abuse in sentencing is a matter which is not free from difficulty and each case in which abuse is claimed must be adjudged according to its own peculiar circumstances. Generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

Judd Scott, Deputy Public Defender, for defendant-appellant.

Caroline M. Mee, Deputy Pros. Atty., for plaintiff-appellee.

Before PADGETT, Acting C.J., HAYASHI, WAKATSUKI, JJ., and Retired Justice NAKAMURA, Assigned by reason of a Vacancy and Intermediate Court of Appeals Chief Judge BURNS, in place of LUM, C.J., Recused.

WAKATSUKI, Justice.

A.

Defendant-Appellant Melvin Kumukau and two others, armed with guns, robbed seven people participating in a dice game. Kumukau also seized a vehicle from one of the robbery victims, and while driving away from the scene of the robbery, Kumukau shot at a plainclothes police officer.

As a result Kumukau was convicted of seven counts of first degree robbery, seven counts of kidnapping, and one count each of first degree burglary, second degree attempted murder, possession of a prohibited firearm, unauthorized control of a propelled vehicle, and first degree reckless endangering.

The court, by applying Hawaii Revised Statutes (HRS) sections 706-661 and 706-662 sentenced Kumukau to eight consecutive life terms plus 200 years. Further, in applying HRS § 706-660.1(a), the court, mandated Kumukau to serve 136 years imprisonment before being eligible for parole. ¹

B.

We first note that Kumukau does not challenge the application of HRS §§ 706-661 and 706-662 as applied to him. The sentencing court found, inter alia, that Kumukau was a multiple offender, had a history of criminality, and posed a danger to the public. Applying § 706-661 and § 706-662 to these findings allowed the trial court to impose a maximum sentence of imprisonment of eight life terms plus 200 years. Neither does Kumukau contend that HRS § 706-660.1(a) does not apply to him. Section 706-661.1(a) allows a court to impose mandatory minimum terms of imprisonment when certain felonies have been committed with the use of a firearm.

Kumukau objects, however, to the manner in which § 706-660.1(a) was applied; namely, that the trial court imposed a mandatory minimum term for each of the counts for which he was convicted, and mandated that these terms be served consecutively. He contends that the imposition of consecutive mandatory minimum terms of imprisonment is 1) not authorized by statute, or 2) cruel and unusual punishment in contravention of the federal and our state constitutions, or 3) an abuse of discretion.

C.

HRS § 706-660.1(a) (Supp.1989) provides:

Sentence of imprisonment for use of a firearm in a felony. (a) A person convicted of a felony, where the person had a firearm in his possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offenses be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(1) For murder and attempted murder in the second degree--up to 15 years;

(2) For a class A felony--up to 10 years; and

(3) For a class B felony--up to 5 years; and

(4) For a class C felony--up to 3 years.

The sentence of imprisonment for a felony involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining minimum term of imprisonment prescribed under section 706-669, provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon the expiration of the term of mandatory imprisonment fixed under (a)(1), (2), (3), or (4), herein.

The imposition of consecutive mandatory minimum terms of imprisonment is neither explicitly permitted nor prohibited by the language of HRS § 706-660.1(a). Neither does the legislative history of this statute provide us with clear guidance.

Kumukau argues that the legislature did not intend that consecutive mandatory minimum terms of imprisonment be imposed. He argues that by permitting imposition of consecutive mandatory minimums, a trial court is able, in effect, to sentence a defendant to life imprisonment without the possibility of parole, as it did in this case. Kumukau points out that the legislature expressly delineated those offenses for which sentences of life without parole were warranted. Kumukau further argues that the statute which authorizes a sentence of life without parole includes a provision requiring the paroling authority to apply to the governor for commutation of the sentence to life with the possibility of parole after twenty years have been served. No comparable ameliorating provision exists when a person is sentenced to consecutive mandatory minimum terms which, in effect, become life terms without parole. Kumukau argues that such result is absurd and unjust, and obviously not intended by the legislature. We disagree.

"[T]his court's primary duty is to ascertain and implement the intention of the legislature. In ascertaining intent, the language of the provision must be read in the context of the entire statute and construed in a manner consistent with its purposes." State v. Saufua, 67 Haw. 616, 618, 699 P.2d 988, 990 (1985) (citations omitted). "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another." HRS § 1-16 (1985); see also State v. Aguinaldo, 70 Haw. ----, 782 P.2d 1225, 1227 (1989).

While HRS § 706-660.1(a) is silent as to the issue before us, HRS § 706-668.5 (Supp.1989) clearly permits the imposition of consecutive terms of imprisonment. That section reads:

Multiple sentence of imprisonment. (1) If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms run concurrently.

(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth in section 706-606.

Nothing in the language or legislative history of HRS 706-668.5 convinces this court that the legislature intended that § 706-660.1 be an exception from the application of §...