State v. Sequeira

• Decision Date: 16 February 2000
• Docket Number: No. 22097.
• Citation: State v. Sequeira, 995 P.2d 335, 93 Haw. 34 (Haw. App. 2000)
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Michael J. SEQUEIRA, also known as Mike J. Sequeira, Defendant-Appellant, and Jennie Juan, also known as Jenny Juan, Defendant.
• Court: Hawaii Court of Appeals

995 P.2d 335

93 Haw. 34

STATE of Hawai`i, Plaintiff-Appellee, v. Michael J. SEQUEIRA, also known as Mike J. Sequeira, Defendant-Appellant, and Jennie Juan, also known as Jenny Juan, Defendant.

No. 22097.

Intermediate Court of Appeals of Hawai`i.

February 16, 2000.

Rose Anne Fletcher, Deputy Public Defender, on the briefs, for defendant-appellant.

Alexa D.M. Fujise, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by WATANABE, J.

In this appeal, we have been asked to determine whether Defendant-Appellant Michael J. Sequeira, also known as Mike J. Sequeira (Defendant), was illegally ordered, as part of his sentence for various drug and drug paraphernalia charges, to pay restitution to the Honolulu Police Department (HPD) for the amount of "drug buy" money its undercover police officers expended to purchase drugs from Defendant in order to obtain evidence of his criminal activity.

We conclude that Defendant was improperly sentenced to pay restitution to HPD. Accordingly, we vacate that part of the October 30, 1998 Judgment that sentenced Defendant to pay such restitution.

BACKGROUND

On October 21, 1997, Defendant was indicted on numerous drug and drug paraphernalia charges¹ after being caught in a police undercover drug buy. Defendant pleaded no contest to the foregoing charges on August 27, 1998 and was subsequently sentenced to serve twenty years' imprisonment, with a mandatory minimum of five years' imprisonment, for each of Counts 1 through 5; five years' imprisonment, with a mandatory minimum of three years and four months' imprisonment, for Count 7; and five years' imprisonment for Count 8. All terms of imprisonment were ordered to run concurrently with each other and with any other sentences Defendant was already serving. Defendant was also ordered to pay HPD restitution in the amount of $1,775.00 for the unrecovered drug "buy money,"² and "to pay a $1,500.00 [d]rug [d]emand [r]eduction [a]ssessment" fee, the latter fee "to be paid after restitution is paid."

On November 30, 1998, Defendant filed a Motion for Reconsideration of Sentence, requesting that the Circuit Court of the First Circuit (the circuit court) rescind "the order for restitution and the drug demand reduction assessment fee," based on his inability to pay the specified amounts. On the same day, Defendant also filed a Notice of Appeal from the October 30, 1998 Judgment.

Following a January 8, 1999 hearing, the circuit court orally declined to reconsider its sentence that Defendant pay restitution to HPD. The circuit court did clarify, however, that Defendant was required to pay ten percent of his yearly earnings in prison and $10.00 a month when he is released on parole "towards restitution first, then for the drug demand reduction assessment." An Amended Judgment was thereafter filed on January 15, 1999.

DISCUSSION

A. General Principles

It is well-settled that the power to prescribe penalties that may be imposed for the commission of a crime rests with the legislature. State v. Nunes, 72 Haw. 521, 524, 824 P.2d 837, 839 (1992). Accordingly, a court may only pronounce a sentence "which the law hath annexed to the crime[,]" Territory v. Armstrong, 22 Haw. 526, 535 (1915), and "a sentence which does not conform to statutory sentencing provisions, either in the character or the extent of the punishment imposed, is void." 21A Am.Jur.2d Criminal Law § 825, at 88 (1998).

The determination of whether Defendant was properly sentenced to pay restitution to HPD as reimbursement for HPD's "buy money" expenses thus necessarily depends on whether the circuit court was authorized by statute to impose such a sentence. This determination involves the interpretation of governing sentencing statutes, a question of law which is reviewed on appeal de novo. State v. Ramela, 77 Hawai`i 394, 395, 885 P.2d 1135, 1136 (1994) (citations omitted).

In interpreting statutes, we are guided by several basic principles:

First, the fundamental starting point ... is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation 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. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. And fifth,

in construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining the legislative intent. One avenue is the use of legislative history as an interpretive tool.

Peterson v. Hawaii Elec. Light Co., 85 Hawai`i 322, 327-28, 944 P.2d 1265, 1270-71 (1997) (citations, brackets, and quotation marks omitted).

We examine the applicable Hawai`i statutes governing restitution in light of the foregoing principles.

B. The Applicable Statutes

At the time Defendant was indicted, HRS § 706-600 (1993) specifically provided that "[n]o sentence shall be imposed otherwise than in accordance with" chapter 706 of the Hawai`i Penal Code, which is entitled, "Disposition of Convicted Defendants." The statutory provision that set forth the dispositions that a sentencing court was authorized to impose on a convicted defendant was HRS § 706-605 (1993 & Supp.1995), which provided, in relevant part, as follows:

Authorized disposition of convicted defendants. (1) Except as provided in parts II and IV of this chapter³ and subsection (2) of this section and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:

....

(d) To make restitution in an amount the defendant can afford to pay; provided that the court may order any restitution to be paid to the criminal injuries compensation commission in the event that the victim has been given an award for compensation under chapter 351 and, if the court orders, in addition to restitution, payment of fine in accordance with paragraph (b), the payment of restitution shall have priority over the payment of the fine[.]

....

(2) The court shall not sentence a defendant to probation and imprisonment except as authorized by part II of this chapter.

(Footnote added.)

By the time Defendant was sentenced on October 30, 1998, however, HRS § 706-605 had been amended by 1998 Haw. Sess. L. Acts 206, 240, and 269, at 717, 825, and 911, respectively.⁴

Act 206, which took effect on July 1, 1998, amended HRS § 706-605 to "require the imposition of a fee against convicted criminals... to fund disbursements made by the criminal injuries compensation commission." Supplemental Commentary on HRS § 706-605; 1998 Haw. Sess. L. Act 206, § 7 at 720. According to section 1 of Act 206:

The purpose of this Act is to establish a system of compensation fees for the criminal injuries compensation commission that will eventually eliminate the need for appropriations from the state general fund. This Act provides for the transition from general fund to special fund. The compensation fees will be used by the commission for crime victim compensation payments and for operating costs, and by other governmental agencies that are involved in the collection of compensation fees. Of the fifty states with a compensation program, thirty-four are able to maintain self-sufficiency through funding from compensation fees, fines, penalties, civil recoveries, and restitution. They are not dependent on state appropriations to fund their compensation and operating costs.

Through the imposition of compensation fees, a criminal offender repays not only society, but also persons injured by the offender's act. Society thus benefits not once, but twice. This system will be supported by convicted defendants, and taxpayers would be relieved of this burden.

Section 5 of Act 206 specifically provided that "[t]his Act shall apply to any case in which a sentence is imposed after the effective date of this Act." 1998 Haw. Sess. L. Act 206, §§ 5 and 7 at 720. Act 206's amendments were thus clearly applicable to Defendant.

Act 240, which also became effective on July 1, 1998, did not contain an applicability provision similar to Act 206. However, the stated purpose of Act 240 was merely "to change the name of the criminal injuries compensation commission to the crime victim compensation commission and to make a corresponding name change to the criminal injuries compensation fund." 1998 Haw. Sess. L. Act 240, § 1 at 825. The amendments effectuated by Act 240 were thus purely technical and did not affect a criminal defendant's substantive rights.

Act 269 amended HRS § 706-605 by adding references to two new statutory sections, HRS § 706-646 (Supp.1998),⁵ and HRS § 706-647 (Supp.1998),⁶ also added by Act 269. However, although Act 269 became effective upon its approval on July 20, 1998, section 7 of Act 269 explicitly provided that "[t]his Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." 1998 Haw. Sess. L. Act 269, §§ 7 and 9 at 914. Thus, the statutory amendments effectuated by Act 269 were not applicable to Defendant in this case.

To summarize, at the time Defendant was sentenced, the applicable statute governing the circuit court's authority to impose a restitution order on Defendant was HRS § 706-605 (1993 & Supp.1995), as amended by 1998 Haw. Sess. L. Acts 206 and 240 (hereafter, "Applicable Statute"), which, as so amended, provided, in relevant part, as follows:

Authorized disposition

...