State v. Reis, 27171.
| Decision Date | 21 August 2007 |
| Docket Number | No. 27172.,No. 27171.,27171.,27172. |
| Parties | STATE of Hawai`i, Plaintiff-Appellant, v. Susan REIS, aka Suzanne Reis, Defendant-Appellee. State of Hawai`i, Plaintiff-Appellant, v. Susan Reis, aka Suzanne Reis, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Loren J. Thomas, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellant, State of Hawai`i.
Stephen T. Niwa, Deputy Public Defender, on the briefs, for defendant-appellee, Susan Reis.
The plaintiff-appellant State of Hawai`i [hereinafter, "the prosecution"] appeals from the January 11, 2005 judgment of conviction and probation of the circuit court of the first circuit, the Honorable Steven S. Alm presiding, convicting the defendant-appellee Susan Reis in Criminal (Cr.) No. 04-1-0028 of promoting a dangerous drug in the third degree (Count I), in violation of Hawai`i Revised Statutes (HRS) § 712-1243 (Supp.2002), unlawful use of drug paraphernalia (Count II) in violation of HRS § 329-43.5(a) (1993), and prostitution, in violation of HRS § 712-1200 (Supp.1998) (Count III), and convicting her in Cr. No. 04-1-0675 of the same drug offenses based upon a separate incident, and sentencing her, inter alia, to a five-year period of probation, pursuant to HRS § 706-622.5 (Supp.2004).1
On appeal, the prosecution asserts that the circuit court imposed an illegal sentence in sentencing Reis to probation, inasmuch as, in light of an undisputed prior conviction, she was a repeat offender and, therefore, should have been sentenced pursuant to HRS § 706-606.5 (Supp.1999).2
For the reasons discussed infra in section III, we hold that the circuit court erred in sentencing Reis as a first-time drug offender rather than a repeat offender. We therefore vacate the January 11, 2005 sentence and remand for resentencing as a repeat offender, pursuant to HRS § 706-606.5.
On January 5, 2004, Reis was charged by complaint in Cr. No. 04-1-0028 with Counts I, II, and III in connection with events that occurred on or about December 23, 2003.
On April 13, 2004, in Cr. No. 04-1-0675, Reis was charged by complaint with new violations of HRS § 712-1243 (Supp.2002) (Count I) and HRS § 329-43.5(a) (1993) (Count II) in connection with events that occurred on or about April 1, 2004.
On June 22, 2004, in a consolidated proceeding, Reis pled guilty to all counts. On July 9, 2004, the prosecution filed a motion for sentencing as a repeat offender. The prosecution's motion was based on Reis's prior conviction in 2001, in Cr. No. 01-1-1533, of unauthorized control of a propelled vehicle, in violation of HRS § 708-836. Reis did not contest the fact of the prior conviction.
On January 10, 2005, the circuit court conducted a hearing. Reis stipulated to her eligibility for sentencing as a repeat offender. The prosecution opposed probation, requesting the court to impose concurrent indeterminate five-year terms of imprisonment in all three cases.3
After reviewing Reis's efforts at rehabilitation since her arrest, the circuit court ultimately reasoned that
the legislature has given the Court the discretion and the opportunity when we think it's appropriate not to be giving repeat offender and not to be giving prison time . . . . [T]alk is . . . very cheap, but you have done what you said you were going to do. Since you folks brought this up in the summer, you've gone through one place at [the] Queen's [Medical Center] and then you've transferred to Diamond Head [a drug rehabilitation program] . . . . [Y]ou've done well in there. I'm going to give you a chance to continue on this road. So I'm going to deny the motion for repeat offender. I will place you on probation for five years. The jail is credit for time served. I don't think that's appropriate right now.
On January 11, 2005, the circuit court entered its judgment of conviction and sentence, sentencing Reis to a five-year term of probation.
On January 25, 2005, the prosecution filed a motion for reconsideration of sentence, and the circuit court conducted a February 22, 2005 hearing on the motion. The prosecution argued that the circuit court erred in sentencing Reis to probation under HRS § 706-622.5 (Supp.2004), originally enacted as Act 44, see supra note 1, noting that Act 44 did not go into effect until July 1, 2004, while Reis's convictions were based upon incidents that occurred on December 23, 2003 and April 1, 2004 and complaints that were filed on January 5, 2004 and April 7, 2004, respectively. The prosecution argued that, pursuant to our precedent in State v. Smith, 103 Hawai`i 228, 81 P.3d 408 (2003), and State v. Walker, 106 Hawai`i 1, 100 P.3d 595 (2004), Reis's repeat offender status under HRS § 706-606.5, see supra note 2 — based upon Cr. No. 01-1-1533 — trumped the provisions of HRS § 706-622.5, see supra note 1, "`with respect to all cases involving rights and duties that mature[d], penalties that were incurred, [and] proceedings that were begun, before the effective date of Act 44'" and contended that, insofar as both prosecutions in the present matter were begun before July 1, 2004, Reis should have been sentenced to a period of imprisonment as a repeat offender.
Reis argued that because she was sentenced after July 1, 2004, the provisions of Act 44 applied to her cases because the language of Act 44, section 29 refers to "proceedings that were begun" before the effective date of the act, and Reis's sentencing hearing (in her view a "proceeding" within the meaning of Act 44, section 29), wholly separate and apart from her plea and conviction dates, was commenced after July 1, 2004. She distinguished the prospective application of Act 44 to her case from the retroactive application at issue in Walker, noting that
in Walker, the defendant . . . was sentenced . . . in December 2003. So his actual sentencing was prior to the July 1, 2004 [effective date] of Act 44.
In the present case, . . . Reis was sentenced . . . after the July 1st, 2004 [effective date] of Act 44. And we would argue that the language in there saying proceedings begun before July 1st, 2004, are not applicable. In our particular case, the actual proceeding is the sentencing itself.
Id. Reis then argued that
[i]t's clear from the language in . . . Act 44 that [the legislature is] intending to give the courts more or greater discretion in terms of sentencing to allow for probation even for those persons who are eligible for repeat offender. And that is exactly what occurred in this case. She was sentenced after the effective date of the statute.
. . . So, for all those reasons, we believe that's exactly what Act 44 intended in this case, and we do not believe for that reason that Walker is dispositive.
The court conducted the following analysis:
All right. I agree with [Reis]. [In] Walker . . . the arrest, the plea, the conviction, sentencing, all took place before Act D44's effective date, July 1, 2004. And Act 44 does say the Act . . . ["]does not affect rights and duties that mature[d], penalties that were incurred, and proceedings that were begun before the effective date.["]
Here, . . . Reis was arrested, she pled, and I think the plea was approximately a week before the Act 44 date.[4] But the sentencing was well after that. And there is no question the legislature in their word intended a broader group of non-violent drug offenders will be eligible for consideration for probation in order to undergo drug treatment. And that the legislature wants to present more discretion by the Court in sentencing. I believe that Ms. Reis fits into that criteri[on], and that both she and society will be better off with her getting dual-diagnosis care and the drug treatment care that are set up for her rather than sentencing her as a repeat offender and sentencing her to prison.
. . . I think [this case is] different from Walker because of the timing. . . . Penalties were incurred after the effective date of Act 44. And proceedings that were begun, the Court is of the belief that when . . . proceedings [are] being discussed, it is referring to the sentencing proceedings.
. . . [I]n State v. Avilla, 69 Haw. 509, [750 P.2d 78 (1988),] there's a similar . . . clause describing that. ["]This Act does not affect the rights and duties that mature[d,] penalties incurred[,] and proceedings that were begun before its effective date.["] And the prosecution in Avilla argued that proceedings that were begun should refer to the initiation of the prosecution. The Supreme Court disagreed. They said that proceedings can also refer to bail proceedings, and in Avilla, this was a post-conviction bail proceeding. So it occurred after the conviction, and that, I think, certainly comports with our situation in this case.
In addition, the Supreme Court also pointed out in Avilla that when there is a doubt or doubleness of meaning, or indistinctness, or uncertainty of an expression used in the statute, that an ambiguity exists. And in such case, the Court should look at the intent of the legislature for guidance. And as I said before, the intent is clear, and that's to give the Court more discretion in sentencing.
The circuit court then denied the prosecution's motion. Pursuant to an extension, on March 11, 2005, the prosecution timely filed notices of appeal in both Cr. No. 04-1-0028 and Cr. No. 04-1-0675, which were docketed as Supreme Court Nos. 27171 and 27172, respectively. Our June 2, 2005 order consolidated the two appeals under No. 27171.
"`The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed.'" State v. Aplaca, 96 Hawai`i 17, 22, 25 P.3d 792, 797 (2001) (quoting State v. Jenkins, 93...
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