State v. Smith

• Citation: 81 P.3d 408,103 Haw. 228
• Decision Date: 26 December 2003
• Docket Number: No. 25726.,25726.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Faye A. SMITH, Defendant-Appellant.
• Court: Hawaii Supreme Court

81 P.3d 408

103 Haw. 228

STATE of Hawai`i, Plaintiff-Appellee, v. Faye A. SMITH, Defendant-Appellant.

No. 25726.

Supreme Court of Hawai`i.

December 26, 2003.

James M. Anderson, deputy prosecuting attorney, on the briefs, for plaintiff-appellee.

Thomas M. Otake, deputy public defender, on the briefs, for defendant-appellant.

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

Opinion of the Court by LEVINSON, J.

The defendant-appellant Faye A. Smith appeals from the judgment of the first circuit court, the Honorable Marie N. Milks presiding, filed on February 25, 2003, convicting her of and sentencing her for the offenses of promoting a dangerous drug in the third degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1243 (1993 & Supp.2002)¹ (Count I), and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993)² (Count II). Smith's sole contention on appeal is that the circuit court erred in sentencing her pursuant to HRS § 706-606.5 (1993 & Supp.2002)³ and that the circuit court should have sentenced her in accordance with HRS § 706-622.5 (Supp.2002).⁴

For the reasons discussed infra in section III, we affirm the circuit court's judgment of conviction and sentence.

I. BACKGROUND

On December 5, 2002, the State of Hawai`i [hereinafter, "the prosecution"] charged Smith by complaint with the following offenses: (1) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (Count I), see supra note 1; and (2) unlawful use of drug paraphernalia, in violation of HRS § 329-43.5 (Count II), see supra note 2. On December 19, 2002, Smith entered knowing, intelligent, and voluntary guilty pleas with respect to both counts of her indictment. At the hearing during which Smith entered her guilty pleas, the circuit court engaged Smith in the following colloquy:

[THE COURT:] The other thing that's probably of more importance to you is what is indicated on the right-hand side under mandatory minimum term of imprisonment. And you see where it says Count 1, subject to 1 year, 8 months as a repeat offender under 706-606.5 of the Hawai[`]i Revised Statutes, and also subject to 30 days to 2 and a half years under 712-1243, subpart 3, of the Hawai[']i Revised Statutes. So let me cover those for you.

Because you have a prior record, the state can say that you are a repeat offender, and under the repeat offender law, there is a minimum of time that a court imposes. The parole board can be equal to the judge or higher. The 1 year, 8 months is subject to an argument for reduction. So if you get a prison sentence, [the Deputy Public Defender (DPD) ] can say less than 1 year, 8 months. Under the second part that says 30 days to 2 and a half years, that is the mandatory minimum period for methamphetamine, and, again, [the DPD] can argue for the lowest amount, but it cannot be less than 30 days.

Another option that [the DPD] may argue for you, and that's not absolutely clear, is that under the new law, Act 161, he may try to argue for probation, but based on our discussion, we cannot give you a clearance. So I want to be real straight forward. If it applies, then you're entitled to probation. If it doesn't apply, then the Court has a repeat offender law to deal with. Was that made clear to you in your discussions?

[Smith:] Yes.

On January 17, 2003, the prosecution filed a motion for repeat offender sentencing, pursuant to HRS § 706-606.5. In its motion, the prosecution argued that Smith should be sentenced to a mandatory minimum term of imprisonment for one year and eight months with respect to Count I, promoting a dangerous drug in the third degree. The prosecution asserted that Smith was eligible for repeat offender sentencing because, inter alia, on or about January 12, 1998, Smith was convicted of three counts of the offense of forgery in the second degree, in violation of HRS § 708-852, a class C felony, and one count of theft in the second degree, in violation of HRS § 708-831(1)(b), also a class C felony.⁵

On February 25, 2003, the circuit court conducted a hearing on the prosecution's motion for repeat offender sentencing. After hearing arguments from both parties, the circuit court stated:

THE COURT: This Court has not had any fixed view on whether or not the repeat offender statute has properly been trumped by Act 161, and the Court is not satisfied with the judiciary attorney's research on the matter.

What the Court is going to do is ask [the DPD] to research it and to submit it as part of your motion to reconsider the Court's ruling today. But based on the entire reading of both [Cr. No.] 96-2460, all of the minute order entries indicating that Ms. Smith, as the State has pointed out, has admitted to substantial ice use over a substantial period of time and has been in several drug treatment programs, has either absconded or failed to comply.

The Court agrees with the State that this is not what the Legislature contemplated when it enacts Act 161. We don't know what the Legislature contemplated about anything it did about Act 161, both for the defendant and for the State.

But until and unless it's resolved, this Court is not satisfied with placing Ms. Smith on probation, because I cannot reconsider and then impose a prison term.

If the Court had placed Ms. Smith on probation, it would have given her a one-year jail term anyway as part of her probation condition, so she is not being prejudiced by the Court's ruling, and I will entertain any motion to reconsider, setting forth research that will persuade me that Act 161 trumps the repeat offender provision.

Until the Court sees it, the State's motion for repeat offender sentencing is granted on the arguments proposed by [the Deputy Prosecuting Attorney (DPA) ].

In Count [I], promoting a dangerous drug in the third degree, the judgment and sentence of this Court is that Ms. Smith be committed to the Department of Public Safety for a term of imprisonment of five years, concurrent to the five-year term in Count [II], unlawful use of drug paraphernalia.

With respect to the mandatory minimum, which the statute provides as one year, eight months, the Court will reduce it consistent with what would have been a probation term of one year, and the Court finds that one of the strong mitigating factors is, in fact, her history of substance abuse.

The Court also notes that Ms. Smith has cooperated fully by entering a plea, and the Court grants her the mitigating factor for that....

And if I'm satisfied that [the DPD] has given me compelling reasons why I should read Act 161 to trump in this case, I will grant the motion.... But I want to have the research first, because I cannot put [Smith] on probation and thereafter change it to prison, and I don't want to have the matter unresolved by continuing sentencing to entertain the matter....

As instructed by the circuit court, Smith filed her "motion for reconsideration of sentence" pursuant to Hawai`i Rules of Penal Procedure (HRPP) Rule 35 (2003) ("Correction or reduction of sentence") on March 18, 2003. Smith contended that the circuit court should have sentenced her to a five-year term of probation pursuant to HRS § 706-622.5, see supra note 4, arguing that, as evidenced by the statute's plain language and the legislative history, HRS § 706-622.5 overrides the repeat offender statute, as set forth in HRS § 706-606.5. Smith further asserted that any ambiguity with respect to the application of HRS §§ 706-622.5 and 606.5 should be resolved in favor of lenity, such that the circuit court should sentence Smith to probation rather than incarceration. The prosecution argued in its memorandum in opposition to Smith's motion that, contrary to Smith's contentions, the plain language and legislative history of HRS § 706-622.5 "unequivocally evince that [HRS] Section 706-622.5... was never intended to supercede the provisions of [HRS] Section 706-606.5..., the repeat offender statute."

At the March 25, 2003 hearing of Smith's "motion for reconsideration of sentence," the circuit court stated as follows:

... The real issue is whether or not Act 161 on its face trumps the repeat offender provision, and that is where this Court had some misgivings.

Having considered all of the arguments in writing and setting aside sympathy, setting aside character, setting aside Ms. Smith's personal situation, the Court agrees with the State's position that when the legislature provided for treatment for first-time drug offenders, they did not mean to preclude the application of repeat offender sentencing. And it's clear from their language, and the Court does not find the ambiguity that the defense counsel argued should be in defendant's favor, it is clear that the legislature did not preclude repeat offender sentencing or they would have clearly stated that in the passage of Act 161. When people are repeat offenders, the legislature did not intend that they should not suffer the consequence of repeat behavior.

With respect to Act 161, the only provision that Act 161 wanted to ensure was that with first-time offenders, especially first-time drug offenders, the treatment be part of the package and that is with respect to sentencing by eliminating the mandatory prison term.

The legislature also clearly set forth treatment even for drug offenders who were sentenced to prison. So it was clear that they did not suggest that probation and treatment was the only way to address the drug problem.

Having the opportunity to review, the Court grants, the language provided under Act 161 is providing for repeat offender sentencing, notwithstanding the treatment for drug offenders and, on that basis, having provided that view to Act 161, the Court denies the defendant's motion for reconsideration of sentence.

Although the circuit court denied Smith's "motion for reconsideration of sentence," it reduced Smith's mandatory minimum sentence from one year to six months based on "certain factors ... [and] extenuating...