State v. Walker

• Decision Date: 04 November 2004
• Docket Number: No. 26299.,26299.
• Parties: STATE of Hawai`i, Plaintiff-Appellant, v. Maurice W. WALKER, also known as Ahyani Joga, Defendant-Appellee.
• Court: Hawaii Supreme Court

100 P.3d 595

106 Haw. 1

STATE of Hawai`i, Plaintiff-Appellant, v. Maurice W. WALKER, also known as Ahyani Joga, Defendant-Appellee.

No. 26299.

Supreme Court of Hawai`i.

November 4, 2004.

Daniel H. Shimizu, deputy prosecuting attorney, on the briefs, for plaintiff-appellant State of Hawai`i. Phyllis J. Hironaka, deputy public defender, on the briefs, for defendant-appellee Maurice W. Walker, also known as Ahyani Joga.

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

Opinion of the Court by LEVINSON, J.

The plaintiff-appellant State of Hawai`i [hereinafter, "the prosecution"] appeals from the judgment, guilty conviction, probation sentence, and mittimus of the first circuit court, the Honorable Karl K. Sakamoto presiding, filed on December 2, 2003, convicting the defendant-appellee Maurice W. Walker of and sentencing him for the following offenses: (1) promoting a dangerous drug in the third degree, in violation of Hawaii Revised Statutes (HRS) § 712-1243 (1993 & Supp.2003)¹ (Count I); (2) unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993)² (Count II); and (3) terroristic threatening in the second degree, in violation of HRS § 707-717(1) (1993)³ (Count III). The prosecution contends that the circuit court erred (1) in denying the prosecution's motion to sentence Walker to a mandatory minimum term of imprisonment as a repeat offender, in accordance with HRS § 706-606.5 (1993 & Supp.2003),⁴ and (2) in sentencing Walker to an illegal sentence of probation, pursuant to HRS § 706-622.5 (Supp.2003).⁵ In the points of error set forth in its opening brief, the prosecution challenges the circuit court's December 5, 2003 findings of fact (FOFs), conclusions of law (COLs), and order denying its motion for sentencing of repeat offender, specifically FOF No. 4 and COL Nos. 1, 5, 7, and 9 through 20.

Walker counters (1) that the circuit court "properly applied the rules of statutory construction in denying the [prosecution's] motion for sentencing of repeat offender and sentencing Walker to probation, including mandatory drug treatment, under HRS § 706-622.5" and (2) that Act 44, part II, §§ 9 and 11, see supra note 5, "lend[ ] support for [his] argument that the [circuit] court's application of HRS § 706-622.5 was correct, and hence the COLs and [o]rder were likewise proper."

The prosecution replies (1) that "the plain and unambiguous language of [HRS § 706-606.5] required the circuit court to sentence [Walker] as a repeat offender" and (2) that "Act 44 ... does not support [Walker's] argument that the [circuit] court properly sentenced [him] to probation."

On the record before us, we reiterate our holding in State v. Smith, 103 Hawai`i 228, 81 P.3d 408 (2003). We further hold that Act 44 does not alter the holding in Smith and, therefore, pursuant to Act 44, part II, §§ 29 and 33, see supra note 5, HRS § 706-606.5 trumps HRS § 706-622.5 with respect to all cases involving "rights and duties that matured, penalties that were incurred, and proceedings that were begun, before [the] effective date [of Act 44]," i.e., July 1, 2004. Accordingly, we (1) vacate the circuit court's December 2, 2003 judgment, guilty conviction, probation sentence, and mittimus and (2) remand this matter to the circuit court for resentencing pursuant to this opinion.

I. BACKGROUND

On May 5, 2003, the prosecution charged Walker by complaint with the following offenses: (1) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243, see supra note 1 (Count I); (2) unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a), see supra note 2 (Count II); and (3) terroristic threatening in the second degree, in violation of HRS § 707-717(1), see supra note 3 (Count III). On September 3, 2003, Walker entered a no contest plea with respect to the foregoing charges. On October 15, 2003, the prosecution filed a motion for sentencing of repeat offender, pursuant to HRS § 706-606.5, see supra note 4.⁶ In its motion, the prosecution argued that Walker should be sentenced to a mandatory minimum prison term of one year and eight months, without the possibility of parole. The prosecution explained the motion as follows:

a. On or about December 2, 2003, [Walker] will be convicted of the offenses of Promoting a Dangerous Drug in the Third Degree, Unlawful Use of Drug Paraphernalia, and Terroristic Threatening in the Second Degree in Criminal No. 03-1-0962.

b. On or about December 19, 2000, [Walker] was convicted of the offense of Theft in the Second Degree, pursuant to [HRS] Section 708-831[,] ... under Criminal No. 97-2896. If on that date, [Walker] had been sentenced to the maximum term of imprisonment allowed by law for the said offense, the period of such maximum term of imprisonment would not have expired on the date of the offense in the instant case, Criminal No. 03-1-0962. At all relevant times during proceedings, [Walker] was represented by counsel, to wit: [a] Deputy Public Defender....

4. Based on the above, [Walker] is eligible for sentencing as a repeat offender to a mandatory minimum term of one (1) year and eight (8) months imprisonment in Count I.

On December 2, 2003, the circuit court conducted a hearing on the prosecution's motion for sentencing of repeat offender. After hearing arguments from both parties on the respective applicability of HRS § 706-606.5 and HRS § 706-622.5, see supra note 5, the circuit court ruled as follows:

THE COURT: The Court looks at the conflict between Act 161[and] the repeat offender [sentencing statute], and finds that the language in Act 161 states that notwithstanding any penalty, which would include also the repeat offender statute, if at best it would be ambiguous, notwithstanding any penalty or sentencing provision under part 4 of [HRS] chapter 712.

Looking at the intent of the Legislature, the Court finds that the intent was to have first time drug offenders treated so that it ends the cycle of criminality that is rampant and which supports their drug habit. And [Walker] appears to satisfy the pre-conditions. He's a first time drug offender. He does not have a violent history of criminality, and does not have a violent felony within the five years previous, and is not a distributor of drugs in this case. And he satisfies the clear, black and white pre-conditions which mandate probation.

....

The Court will sentence [Walker] to five years probation, with ... special conditions....

On the same date, the circuit court entered its judgment, guilty conviction, and probation sentence, reflecting the circuit court's oral ruling, as well as the mittimus.

On December 5, 2003, the circuit court entered its FOFs, COLs, and order denying the prosecution's motion for sentencing of repeat offender, which recited in relevant part:

FINDINGS OF FACT

....

4. Defendant is a first-time, nonviolent, drug offender, with no convictions for a violent felony within the previous five years.

CONCLUSIONS OF LAW

1. Act 161, which relates to sentencing for drugs and intoxicating compound offenses, is broad and its enactment amended Chapters 321[ ] and 706[ ] and Sections 353-66[,] 706-625,[ ], 712-1241,[] 712-1242,[ ] and 712-1243[ ] of the [HRS]. It is a unique sentencing statute in that it appears to be the exclusive means of sentencing for those found eligible under [its provisions]. In this regard, Act 161 contains comprehensive sentencing guidelines and considerations for persons eligible under [its provisions]. The Act addresses situations involving persons who have prior records; are on probation; are on parole; or seeking expungement of their criminal records.

....

5. Section 1 of Act 161 ... states:

Persons charged with repeat offenses, who actively abuse or are addicted to a controlled substance or alcohol and who are not undergoing appropriate treatment and monitoring, pose a proportionately greater risk of criminal recidivism.

It is clear from that language that the Legislature intended to also provide rehabilitative treatment service to persons who were at greatest risk of criminal recidivism and most in need of drug treatment services, those persons charged with repeat offenses.

....

7. There is a plainly irreconcilable conflict between a specific statute, Act 161, and a general statute, the Repeat Offender Statute, [HRS] § 706-606.5. To the extent that Act 161 is in irreconcilable conflict with the Repeat Offender Statute, Act 161 will be favored. See [ ] State v. Batson, 99 Hawai`i 118, 53 P.3d 257 (2002)[.]

....

9. The language in Act 161 is plain and unambiguous. It reads:

(1) Notwithstanding any penalty or sentencing provision under part IV of chapter 712, a person convicted for the first time for any offense under part IV of chapter 712 involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or involving possession or use of drug paraphernalia under section 329-43.5, who is nonviolent, as determined by the court after reviewing the:

(a) Criminal history of the defendant;

(b) Factual circumstances of the offense for which the defendant is being sentenced; and

(c) Other information deemed relevant by the court;

shall be sentenced in accordance with subsection (2); provided that the person does not have a conviction for any violent felony for five years immediately preceding the date of the commission of the offense for which the defendant is being sentenced.

(2) A person eligible under subsection (1) shall be sentenced to probation to undergo and complete a drug treatment program.

[HRS] § 706-622.5 (Supp.2002).

10. Contrary to the position of the [prosecution], the Court reads the language "Notwithstanding any penalty" under subsection (1) of Act 161 to include any penalty relating to sentencing under the [HRS], including the Repeat Offender Statute, [HR

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