State v. Savitz
Decision Date | 29 January 2002 |
Docket Number | No. 23153.,23153. |
Citation | 39 P.3d 567,97 Haw. 440 |
Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Richard SAVITZ, Defendant-Appellant, and Karen Savitz, Defendant. |
Court | Hawaii Supreme Court |
Matthew A. Horn, on the briefs, Honolulu, for defendant-appellant.
Alexa D.M. Fujise, Deputy Prosecuting Attorney, (Scott Miyasato, Law Clerk, with her on the brief), on the briefs, for plaintiff-appellee.
Defendant-appellant Richard Savitz appeals the sentencing court's denial of his request for probation with respect to his conviction of promoting a dangerous drug in the first degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1241(1)(a)(i) (Supp.1999). On appeal, Savitz contends that because drug use is not a prerequisite for probation under HRS § 706-659 (Supp.1999), the sentencing court abused its discretion when it denied his request for probation based solely on the fact that he was not a drug user. We hold that HRS § 706-659 does not require "drug use" as a prerequisite to eligibility for probation. In this case, however, because the sentencing court did not predicate its decision exclusively on the fact that Savitz is a drug seller, rather than a drug user, and in light of the absence of strong mitigating circumstances favoring probation, the sentencing court did not abuse its discretion. Accordingly, we affirm the court's sentence.
On August 16, 1999, Savitz pled guilty to charges of possession of ammunition by a person convicted of certain crimes (Count I), in violation of HRS § 134-7(b) & (h) (1993), promoting a dangerous drug in the first degree (Count II), in violation of HRS § 712-1241(1)(a)(i), and unlawful use of drug paraphernalia (Count IV), in violation of HRS § 329-43.5(a) (1993).
At Savitz's sentencing hearing on January 18, 2000, the prosecution argued that the court should impose a twenty-year sentence, given that Savitz would not benefit from probation:
We're asking for 20 years ... in Count II . . . . [I]t seems the only appropriate sentence—given he hasn't benefitted [sic] and continues to commit crime and then sort of gloss over it, sugarcoat it, if you will, and then justify it through his children does not lead the State to believe that he's going to do well if given a chance on probation.
Savitz's counsel responded that, given his old age and poor health, probation would be more appropriate:
Basically, the bottom line, Your Honor, is that we ask for you to give Mr. Savitz a chance on probation for the reason that he is an older person. He recognizes that he's done wrong. He's made a mistake. He's facing a 20-year term of imprisonment at a minimum if he was to violate probation, which for him at his age and health conditions, would be a life sentence. And so there's a[n] extremely powerful motivating factor to do well. He has the support of his children and some other people in the community who he's helped, although that doesn't justify anything he may have done wrong and the laws he may have broken. He only, I think, offered that as an explanation, not an excuse, for why he's here before the court. He's helped many people over the years, and now there are people that want to help him. We'd ask, Your Honor, that you give him a chance on probation.
Savitz, himself, added,
The court then sentenced Savitz to concurrent, indeterminate terms of incarceration: Count I for five years; Count II for twenty years; and Count IV for five years. In reaching its decision, the sentencing court considered several factors, including: (1) the availability of probation; (2) the amount of cocaine and its likely use in this case; and (3) sentences given in related cases:
"[T]he interpretation of a statute is a question of law reviewable de novo." State v. Wang, 91 Hawai`i 140, 141, 981 P.2d 230, 231, reconsideration denied, 90 Hawai`i 441, 978 P.2d 879 (1999) ( ).
Keawe v. State, 79 Hawai`i 281, 284, 901 P.2d 481, 484 (1995) (citations omitted). Factors that indicate a "plain and manifest abuse of discretion" are "arbitrary or capricious actions by the judge and a rigid refusal to consider the defendant's contentions." State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 17 (1979). In general, "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." Keawe, 79 Hawai`i at 284, 901 P.2d at 484 (quoting State v. Gaylord, 78 Hawai`i 127, 144, 890 P.2d 1167, 1184 (1995) (quotation omitted)) (internal quotation marks omitted).
Savitz's claim that the sentencing court abused its discretion in denying his request for probation is predicated on two arguments: (1) drug use is not a precondition to qualifying for probation under HRS § 706-659; and (2) the sentencing court, in this case, excluded him from consideration for probation solely because he admitted he was not a drug user.
HRS § 706-659 prescribes in relevant part:
Notwithstanding part II; sections 706-605, 706-606, 706-606.5, 706-660.1, 706-661, and 706-662; and any other law to the contrary, a person who has been convicted of a class A felony, except class A felonies defined in chapter 712, part IV, shall be sentenced to an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation.... A person who has been convicted of a class A felony defined in chapter 712, part IV,1 may be sentenced to an indeterminate term of imprisonment, except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders.
(Emphases added.) This court has well-established rules regarding statutory construction:
To continue reading
Request your trial-
State v. Phillips
...100 Hawai'i 195, 203, 58 P.3d 1242, 1250 (2002) ).A judge has broad discretion in matters related to sentencing. State v. Savitz, 97 Hawai'i 440, 443, 39 P.3d 567, 570 (2002). Thus, we will not disturb a sentencing court's decisions regarding restitution absent an abuse of discretion. Id.; ......
-
Sierra Club v. Hawaii Tourism Authority
..."[W]e must, in construing a statute, give effect to the plain and obvious meaning of its language." State v. Savitz, 97 Hawai`i 440, 446, 39 P.3d 567, 573 (2002) (Acoba, J., dissenting) (citing Fragiao v. State, 95 Hawai`i 9, 18, 18 P.3d 871, 880 (2001) (quoting State v. Kalama, 94 Hawai`i ......
-
Child Support Enforcement Agency v. Doe
...must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose. 97 Hawai`i 440, 443, 39 P.3d 567, 570 (2002). HRS § 584-15 is one of a series of sections (§ 584-6 through § 584-20) that provide procedures to be followed in an action......
-
In re Gas Co.
...legislature acts intentionally and purposely in the disparate inclusion or exclusion" of terms in its statutes. State v. Savitz, 97 Hawai‘i 440, 447, 39 P.3d 567, 574 (2002) (holding that the legislature could have drafted a statute to include a limitation on the court's discretion, and not......