State v. Levi, 24469.

• Decision Date: 26 August 2003
• Docket Number: No. 24469.,24469.
• Citation: 102 Haw. 282,75 P.3d 1173
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Melvin D. LEVI, Defendant-Appellant.
• Court: Hawaii Supreme Court

75 P.3d 1173

102 Haw. 282

STATE of Hawai`i, Plaintiff-Appellee, v. Melvin D. LEVI, Defendant-Appellant.

No. 24469.

Supreme Court of Hawai`i.

August 26, 2003.

Melvin D. Levi, defendant-appellant, on the briefs, pro se. Daniel H. Shimizu, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

We hold that: (1) the January 1, 1987 repeal of language in Hawai`i Revised Statutes (HRS) § 706-606(b) (Supp.1982) authorizing a court to impose a sentence of life imprisonment with the possibility of parole for murder in cases other than described in HRS § 706-606(a) (Supp.1982) did not invalidate any such sentence imposed prior to the repeal date; (2) with the January 1, 1987 repeal of the language in HRS 707-701 (Supp.1973), murder is no longer classified as a class A felony; (3) the appointment of counsel in a motion pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 35¹ hinges on a demonstration of "substantial issues"; and (4) a valid claim of judicial bias and prejudice requires more than a recitation of an adverse ruling by the lower court. The foregoing propositions support the July 30, 2001 order by the circuit court of the first circuit (the court)² denying the HRPP Rule 35 motion brought by Defendant-Appellant Melvin D. Levi (Defendant) to reduce his sentence of life imprisonment with the possibility of parole to twenty years' imprisonment.

I.

The facts and procedural history involving Defendant's prior conviction are undisputed. On October 29, 1981, Defendant was charged with murder in the first degree, HRS §§ 748-1 (1968) and 748-4 (1968),³ for the killing of Gordon G. Scott on or between January 1, 1969 and April 17, 1969. The Hawai`i Penal Code (HPC) took effect on January 1, 1973, see 1972 Haw. Sess. L. Act 9, § 1, at 32, and HRS § 706-606(b) (Supp. 1973) established life imprisonment or twenty years as the sentence for murder in cases other than those described in HRS 706-606(a) (Supp.1973).⁴ The twenty-year sentencing option in HRS § 706-606(b) was repealed on April 22, 1981.⁵

Defendant was found guilty of murder on September 24, 1982. On December 16, 1982, Defendant filed a motion pursuant to HRS 701-101 (1972) of the HPC,⁶ requesting that he be sentenced under HRS § 706-606(b) (Supp.1982) of the Code. See supra note 4. On December 20, 1982, at a hearing on said motion, counsel for Defendant argued that Defendant "ought to be allowed the advantage of the new [HPC's] more enlightened sentencing provisions [for offenses committed before the HPC's effective date] in light of a legislative determination that they are preferable to the old." Counsel requested that Defendant "be given life with possibility of parole," as provided for under HRS § 706-606(b). The court denied Defendant's motion, maintaining that it was "necessary for deterrent reasons, as well as in keeping with legislative intent, that [Defendant] be sentenced under the old law [ (HRS § 748-4) ] to life imprisonment not subject to parole[.]" The court entered its judgment and sentence that day.

On December 23, 1982, Defendant appealed to this court. On August 3, 1984, this court reversed Defendant's conviction and remanded for a new trial. See State v. Levi, 67 Haw. 247, 251, 686 P.2d 9, 11 (1984)

. On December 26, 1984, a jury again found Defendant guilty of murder in the first degree. On February 15, 1985, Defendant was sentenced to "[l]ife imprisonment at hard labor without the possibility of parole,"⁷ apparently in accordance with HRS § 748-4. See supra note 3. On February 28, 1985, Defendant again appealed to this court.

On December 20, 1985, this court affirmed Defendant's conviction but remanded for resentencing. The memorandum opinion stated that the parties had "agree[d] that the trial court was in error in concluding that it lacked judicial discretion to sentence appellant under the new [HPC]" and that "the case must be remanded for sentencing." On April 14, 1986, the court resentenced Defendant "to the custody of the Director of the Department of Social Services and Housing, OAHU COMMUNITY CORRECTIONAL CENTER, for imprisonment for a period of Life, subject to possibility of parole." This presumably was done pursuant to HRS § 706-606(b) (Supp.1982). See supra note 5. On January 1, 1987, subsequent to Defendant's resentencing, the text of HRS § 706-606 was repealed in its entirety and replaced with new language relating to factors to be considered in imposing a sentence. See 1986 Haw. Sess. L. Act 314, § 15, at 599-600.

On June 20, 2001, Defendant filed a motion for correction of illegal sentence pursuant to HRPP Rule 35. Defendant claimed that the offense of murder for which he was convicted and sentenced was defined by HRS § 707-701 (Supp.1986)⁸ as a class A felony, with sentencing guidelines to be applied as stated in the newly revised HRS § 706-606 (Supp. 1987). Defendant then cited HRS § 706-660 (Supp.1973),⁹ which provided for a twenty-year prison term for conviction of a class A felony. Hence, Defendant maintained that his life sentence for murder was illegal and must be reduced to twenty years. On July 30, 2001, the court entered an order denying Defendant's motion without a hearing. The court noted, inter alia, that in 1981 the state legislature amended HRS § 706-606 "by eliminating the sentencing option of twenty years as a possible sentence for a conviction of the offense of murder, resulting in life imprisonment with possibility of parole as the only sentence for a conviction of the offense of murder at the time Defendant's sentence was imposed." As a result, the court concluded that Defendant's allegation of an illegal sentence was "incorrect."

II.

On appeal, Defendant appears to allege four points: (1) Defendant's original sentence is illegal under current Hawai`i law; (2) the court abused its discretion in not affording counsel for Defendant's motion; (3) the court exhibited bias and prejudice against Defendant; and (4) the court disregarded laws and legislative acts in its decision.

This court "may freely review conclusions of law and the applicable standard of review is the right/wrong test. A conclusion of law that is supported by the trial court's findings of fact and that reflects an application of the correct rule of law will not be overturned." Dan v. State, 76 Hawai`i 423, 428, 879 P.2d 528, 533 (1994) (citations and internal quotation marks omitted). As to statutory interpretation, it is "a question of law reviewable de novo." State v. Arceo, 84 Hawai`i 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara, 81 Hawai`i 324, 329, 916 P.2d 1225, 1230 (1996) (citation omitted)). In interpreting a statute,

[a court's] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And where the language of the statute is plain and unambiguous, [a court's] only duty is to give effect to [the statute's] plain and obvious meaning.

State v. Wells, 78 Hawai`i 373, 376, 894 P.2d 70, 73 (1995) (citations, brackets, and internal quotation marks omitted).

Defendant appears to make the same argument with respect to issues (1) and (4). This and issues (2) and (3) are considered in turn.

III.

As to issues (1) and (4), Defendant contends that his April 14, 1986 sentence is now incorrect because (1) Act 314, Session Laws of Hawai`i 1986 (Act 314) permits him to "collaterally attack his sentence now in this day and age,"¹⁰ (2) his present sentence which was imposed pursuant to HRS § 706-606 (Supp.1986) is illegal because that version of the statute was repealed by Act 314,¹¹ and (3) "the only recourse" is to sentence Defendant to a twenty-year term as set forth in HRS § 706-659 (Supp.2002),¹² because this statute establishes the current sentence for a class A felony.¹³

A.

Act 314 took effect on January 1, 1987. Its purpose was "to update the Hawai`i penal code[.]" Hse. Stand. Comm. Rep. No. 487, in 1985 House Journal, at 1215. The Act contained "comprehensive amendments that would refine the [HPC] rather than propose widesweeping reform." Hse. Conf. Comm. Rep. No. 51-86, in 1986 House Journal, at 937. Act 314 amended HRS § 701-101 to read as follows:

Applicability to offenses committed before the effective date of amendments. (1) Except as provided in subsection (2), amendments made by Act 314, Session Laws of Hawai`i 1986, to this Code do not apply to offenses committed before the effective date of Act 314.... Prosecutions for offenses committed before the effective date of Act 314[] are governed by the prior law, which is continued in effect for that purpose, as if amendments made by Act 314 ... to this Code were not in force. For purposes of this section, an offense is committed before the effective date of Act 314 ... if any of the elements of the offense occurred before that date.

(2) In any case pending on or commenced after the effective date of amendments made by Act 314, Session Laws of Hawai`i 1986, to this Code, involving an offense committed before that date upon the request of the defendant, and subject to the approval of the court, the provisions of chapter 706 amended by Act 314 ... may be applied in particular cases.

HRS § 701-101 (Supp.1987) (emphases added). Defendant committed the offense in 1969, before the effective date of Act 314. Thus, under HRS § 701-101(1), Act 314 is inapplicable to Defendant's case "[e]xcept as provided in [HRS § 701-101](2)." HRS § 701-101(2) in turn allows the sentencing provisions of HRS chapter 706 as amended, to be applied (1) as to any case concerning any offense committed before January 1, 1987, (2) if the case is pending on (3) or commenced after January 1, 1987(4) upon the request of the defendant and (5) subject to the discretion and approval of the court.

As mentioned, Defendant's offense took place in...