State v. Putnam

• Decision Date: 14 July 2000
• Docket Number: No. 23017.,23017.
• Citation: 93 Haw. 362,3 P.3d 1239
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Reyna PUTNAM, Defendant-Appellant.
• Court: Hawaii Supreme Court

3 P.3d 1239

93 Haw. 362

STATE of Hawai`i, Plaintiff-Appellee, v. Reyna PUTNAM, Defendant-Appellant.

No. 23017.

Supreme Court of Hawai`i.

July 14, 2000.

Joy A. Hutson, on the briefs, Hilo, for defendant-appellant.

Tharrington T. Trusdell, Deputy Prosecuting Attorney, County of Hawai`i, on the briefs, for plaintiff-appellee.

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

Opinion of the Court by ACOBA, J.

We hold that Hawai`i Revised Statutes (HRS) § 706-625(5) (Supp.1999), which permits a trial court on revocation of probation to impose any sentence that might have originally been imposed at the time of conviction, does not apply to the sentencing procedure attendant to revocation of a deferred acceptance of guilty plea (DAGP), the same being already specifically governed by HRS § 853-3 (1993). Thus, we disagree with the argument of Defendant-Appellant Reyna Putnam (Defendant) to the contrary and affirm the ruling of the circuit court of the third circuit (the court) that Defendant, who was age-eligible for sentencing under the young adult defendant statute, HRS § 706-667 (Supp. 1999), at the time her DAGP was granted, but age-ineligible at the time it was revoked, could not thereafter be sentenced as a young adult defendant. We reach the same result in this case on the independent ground that specialized treatment under HRS § 706-667 is afforded only to those who are less than the prescribed twenty-two years of age at the time of sentencing. Accordingly, Defendant was subject to ordinary sentencing provisions under HRS chapter 706.

In answer to Defendant's alternative point, we discern no abuse of discretion in the court's imposition of a maximum indeterminate prison term of ten years as statutorily authorized on her conviction of a class B felony.

I.

In an April 16, 1998 indictment, Defendant was charged in Count I with committing the offense of Commercial Promotion of Marijuana in the First Degree, HRS §§ 712-1249.4(1)(d) (1993) and/or 701-211(2)(c) (1993) and 702-222(1) (1993), and in Count II with committing the offense of Prohibited Acts Related to Drug Paraphernalia, HRS §§ 329-43.5(a) (1993) and/or 702-221(2)(c) and 702-222(1). Under Count I, Defendant was alleged to have "knowingly cultivated on land owned by another person, including land owned by the government or other legal entity, twenty-five or more marijuana plants without having express permission from the owner of the land to cultivate the marijuana and without having a legal or an equitable ownership interest in the land and without having the legal right to occupy the land[.]" Under Count II, Defendant was alleged to have "used, or possessed with intent to use, drug paraphernalia ... to introduce into [her] body a controlled substance[.]"

On July 14, 1998, Defendant pled guilty to the reduced charge of Commercial Promotion of Marijuana in the Second Degree, pursuant to a plea bargain. Under the plea bargain terms, Plaintiff-Appellee State of Hawai`i (the prosecution) agreed "[t]o dismiss Count II and to reduce Count I from Commercial Promotion [First Degree] to [Second Degree]... [and] not [to] seek a sentence of more than Probation with a condition of jail for 30 days straight and the remainder of any jail, [sic] suspended and standard terms and conditions." Defendant also agreed to "serve the 30 days with no MAP."¹ There is no reference in the plea bargain to the young adult defendant statute, HRS § 706-667.

At the sentencing hearing on October 22, 1998, the court "set aside the earlier acceptance of guilty plea[,]" allowed Defendant to enter a DAGP, "place[d] [Defendant] under the supervision of the Adult Probation Division for five years," and ordered that "general terms and conditions ... apply to [Defendant]... [as] required by law."

On October 22, 1998, an order granting the DAGP motion was entered. Under the order, Defendant was subjected to the following pertinent "terms and conditions":

2. You must report as directed by your probation officer.

....

7. If your whereabouts become unknown to your probation officer because of your failure to keep him [or her] informed, the court may order your arrest. Any failure by you to comply with any of the terms and conditions will mean that the court can accept your guilty plea and sentence you in this case.

Defendant was also required to comply with the following relevant "special conditions":

(2) You shall pay a Criminal Injuries Compensation Fee in the amount of $200 to be paid in full one year from your sentencing date.

(3) You shall not possess, use, or consume any alcohol, unprescribed or illegal drugs nor possess any drug-related paraphernalia.

(4) You shall submit to random drug testing within two hours of the request by the Adult Probation Division. Failure to provide a sample shall be considered a positive test and a violation of your supervision.

On November 9, 1998, the prosecution filed a motion for nolle prosequi with prejudice of Count II, pursuant to the plea bargain, which was approved by the court.

On July 2, 1999, the prosecution filed a motion to set aside the DAGP on the grounds that Defendant had violated imposed terms and conditions in (1) failing to report to her probation officer on March 25, April 16, May 28, June 7, and June 17, 1999; (2) failing to respond to letters instructing her to report on the above dates; (3) neglecting "to pay her Criminal Injuries Compensation Fee"; (4) testing positive for "cannabinoid 50"² on May 13, 1999; and (5) failing to obtain a substance abuse assessment as directed by the probation division.

On October 18, 1999, the prosecution filed a notice of additional grounds to its motion, contending that Defendant also (1) failed to report to her probation officer on September 24 and October 12, 1999 and (2) tested positive for marijuana use on September 23, 1999.

On October 21, 1999, the court granted the prosecution's motion and accepted Defendant's guilty plea. At this hearing, the prosecution recommended that the court sentence Defendant to "probation[,] up to one year jail[,] with reasonable terms and conditions of probation." However, the court declined to do so on the basis that it did not find probation was warranted:

I frankly do not find her to be probationable. She — its one thing if she conducted herself in a way that would lead me to conclude she can follow instructions; recognize the seriousness of the offense; she had some reason, substantial grounds to justify her conduct, particularly the marijuana use — and this is a marijuana crime — and it's not just use or promotion.

Additionally, the court declined to acquiesce in Defendant's request for a prison term of five years under the young adult defendant statute. Instead, the court sentenced Defendant, under ordinary sentencing provisions, to ten years' imprisonment:

[DEFENSE COUNSEL]: Your Honor,... I would like this court to ... consider [HRS §] 706-667, which is applicable [to] young adult defendants. One of the reasons why we entered into this plea agreement early in this case or earlier was because we want to make sure that at least statutorily [HRS §] 706-667 is applicable and that is the young adult defendant statute for Class B felonies.

She was convicted at a time when — when she was less than 22 years of age[; she] has not been previously convicted of a felony as an adult. [HRS §] 706-667 is thus applicable, which sets maximum terms for Class B felonies to five years for a young adult defendant in this particular case.

....

THE COURT: — the law says that the young adult statute, [HRS § 706-]667, is afforded to persons who at the time of sentencing are less than 22 years of age. There's a presumption I guess or assumption that people at that age level might be afforded different kinds of correctional treatment.

Now, [Defendant] as she stands here today is not less than 22 years of age. I understand that at the time of the sentencing she was, but I think the interpretation of the law needs to be ... read pretty specifically and she's not — she doesn't fall by age into this category anymore.

[DEFENSE COUNSEL]: Your Honor,... our interpretation of it is that it's at the time of the original sentencing. It is, of course, within this [c]ourt's discretion as to whether or not ... to apply [HRS §] 706-667....

....

THE COURT: When it says may, it just means that you can — that a person is not necessarily entitled by right to get this. In other words, someone who is 19, 20 years old doesn't necessarily automatically get this treatment so I interpret it that way. So I will make a finding that at the age of 22, this statute will no longer apply. [Defendant] will not qualify for the young adult treatment[.]

....

The [c]ourt ... [will] sentence [Defendant] to ten years in prison for the B felony offense of Commercial Promotion of Marijuana in the Second Degree. [Defendant will be] given credit for time served.

(Emphases added.)

On November 1, 1999, Defendant filed a motion for reconsideration, contending that the court's imposition of a ten-year prison term was "especially harsh." In her supporting memorandum, Defendant argued that under HRS § 706-625(5), upon revocation of probation, the court "may impose on the defendant any sentence that might have been imposed originally" and, thus, because she was twenty-one years old at the time of her original "sentence," she qualified for sentencing as a young adult defendant.

On November 30, 1999, Defendant filed a withdrawal of her motion, stating therein that the withdrawal was based upon "an on-the-record stipulation³ that Defendant may refile her Motion to Reconsider within 90 days after the return on Appeal."⁴ On December 10, 1999, Defendant appealed "from the Order of Resentencing [pursuant to a] Revocation of Deferred Acceptance of No Contest⁵ Plea filed herein October 21, 1999." She contends that "the court erred by finding the [y]oung [a]dult [d]efendant's [s]tatute [i]napplicable and by [r]...