US v. Fautanu, 90-00791 ACK.

Decision Date01 August 1990
Docket NumberNo. 90-00791 ACK.,90-00791 ACK.
Citation751 F. Supp. 1420
PartiesUNITED STATES of America, Plaintiff, v. Tuala FAUTANU, Defendant.
CourtU.S. District Court — District of Hawaii

Daniel A. Bent, Craig R. Bauerly, Asst. U.S. Atty., U.S. Attys. Office, Honolulu, Hawaii, for plaintiff.

Wayne Tashima, Honolulu, Hawaii, for defendant.

ORDER REMANDING CASE TO MAGISTRATE FOR CORRECTION OF PARTIALLY DEFECTIVE SENTENCE

KAY, District Judge.

I. BACKGROUND

On November 28, 1989, Defendant Fautanu was cited as the registered owner of a motor vehicle being driven without no-fault insurance coverage in violation of Hawaii Revised Statutes (HRS) § 431:10C-104. At the time, the motor vehicle was being driven on the Aliamanu Military Reservation. Because the violation occurred on a federal military reservation, HRS § 431:10C-104 qualifies in the instant case as a federal offense pursuant to 18 U.S.C. § 13, the Assimilative Crimes Act.

On May 22, 1990, Defendant entered a plea of guilty to the citation before Magistrate Tokairin. The government introduced at trial a certified copy of Defendant's court abstract showing that Defendant had been convicted of the same offense on February 1, 1988, August 22, 1988, and October 3, 1989. Magistrate Tokairin subsequently sentenced Defendant to pay a fine to the United States in the sum of $1,000.00 and to be committed to the custody of the Attorney General of the United States or his authorized representative for imprisonment for a term of ten days. Defendant requested that the Magistrate suspend the sentence of imprisonment or, in the alternative, to allow Defendant to serve the ten days imprisonment on weekends. Both requests were denied. Defendant then filed a notice of appeal with this Court.

II. JURISDICTION

Because Defendant committed the offense of driving without no-fault insurance on a military reservation, this Court has jurisdiction over this matter pursuant to 18 U.S.C. § 13, the Assimilative Crimes Act.

III. STANDARD OF REVIEW

United States v. Little, 638 F.Supp. 337, 338 (D.Mont.1986) provides the relevant standard for the instant appeal:

A post-conviction review of the magistrate's judgment is governed by the same standards as an appeal from a judgment of a district court to the court of appeals. On appeal from the magistrate's judgment, the defendant is not entitled to a trial de novo in the district court. 18 U.S.C. § 3402; Rule 7(e), Rules of Procedure for the Trial of Misdemeanors Before United States Magistrates. Thus, the challenged judgment is reversible only if it is clearly erroneous or contrary to law. See, e.g., United States v. Ramirez, 555 F.Supp. 736, 738-39 (E.D.Cal.1983); United States v. Li, 510 F.Supp. 276, 277 (D.Haw.1981); United States v. Brown, 431 F.Supp. 56, 58 (D.Minn.1976), aff'd, 552 F.2d 817, cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); United States v. Channel, 423 F.Supp. 1017, 1018 (D.Md. 1976).
IV. DISCUSSION
A. Whether the Magistrate correctly applied HRS § 431:10C-117(a)(3)(A) in the instant case

Defendant pled guilty before the Magistrate to a violation of HRS § 431:10C-104. Subsection (c) of that statute provides: "Any person who violates the provisions of this section shall be subject to the provisions of section 431:10C-117(a)." § 431:10C-117(a) provides in pertinent part:

(2) Notwithstanding any provision of the Hawaii Penal Code, each violation shall be deemed a separate offense and shall be subject to a fine of not less than $100 nor more than $5,000 which shall not be suspended; provided that if the person is convicted of not having had a no-fault policy in effect at the time the citation was issued, the fine shall be $1,000 for the first offense and a minimum of $3,000 for each subsequent offense. In addition to the fine in this paragraph, if any person operates a motor vehicle without a valid no-fault policy in effect insuring the driver or registered owner, or both, either the driver's license of the driver and of the registered owner shall be suspended for six months or they shall be required to maintain proof of financial responsibility pursuant to sections 287-21(2), (3), or (4) and keep a nonrefundable no-fault insurance policy in force for six months; provided that if the violation is a subsequent offense of driving without a valid no-fault policy, the driver's licenses of the driver and the registered owner shall be suspended for one year; ...
(3) In the case of multiple violations, the court shall in addition to any other penalty impose the following penalties:
(A) Imprisonment of not more than thirty days;
(B) Suspension or revocation of the motor vehicle registration plates of the vehicle involved;
(C) Impoundment, or impoundment and sale, of the motor vehicle for the costs of storage and other charges incident to seizure of the vehicle, or any other cost involved pursuant to section 431:10C-301; or
(D) Any combination of such penalties. (emphasis added)

Defendant asserts that the Magistrate mistakenly applied § 431:10C-117(a)(3)(A) in sentencing him to ten days imprisonment. Defendant contends that this subsection of the statute is vague and ambiguous because it fails to clearly delineate between a defendant being sentenced for more than one violation during a single proceeding, and a defendant being sentenced as a repeat offender. Defendant argues that § 431:10C-117(a)(3)(A) only applies to a defendant being sentenced for more than one violation at the same time, and not to repeat offenders. Defendant further argues that § 431:10C-117(a)(3)(A) is a penal statute and that the Magistrate was therefore compelled to strictly construe the statute in Defendant's favor.

Defendant cites the Hawaii Supreme Court's decision in State v. Kanoa, 67 Haw. 476, 691 P.2d 1169 (1984) in support of his argument. In Kanoa, the defendant was convicted of attempted rape in the first degree. Id. at 476, 691 P.2d 1169. The State argued that because the defendant had a previous conviction for carrying a firearm without a permit, he should be sentenced to a mandatory minimum sentence pursuant to the State's repeat offender statute, HRS § 706-606.5. Id. However, the offense of attempted rape was not one of the enumerated offenses included in HRS § 706-606.5 for which a minimum sentence for a repeat offender was mandated. Id. at 477, 691 P.2d 1169. The trial court stated that it was thus constrained to strictly construe the statute in favor of the defendant and refused to apply HRS § 706-606.5 in determining his sentence. Id. The State appealed. Id.

The Hawaii Supreme Court stated that although "the trial court was correct in recognizing that penal statutes are construed strictly, this rule may not be applied to defeat the legislative intent." Id. The Court then found that there was nothing in the legislative history of the statute which indicated that the legislature had intended to include the offense of attempted rape. Id. at 478-79, 691 P.2d 1169. The Court thus concluded that the trial court had correctly refused to apply the statute in its determination of the defendant's sentence. Id. at 479, 691 P.2d 1169.

Defendant contends that the Kanoa holding applies to the instant case since nothing in the legislative history of § 431:10C-117(a)(3)(A) supports the interpretation that the statute is applicable to repeat offenders. Defendant's contention is mistaken. Subsection (a)(3) of HRS § 431:10C-117 was added by amendment during the legislative session of 1980 (House Bill No. 1986-80). At the time, § 431:10C-117 was designated as HRS § 294-39. The report of the Senate Committee on Consumer Protection and Commerce on House Bill No. 1986-80 included the following comments:

Section 294-39(a) has been further amended to impose additional mandatory penalties for multiple offenders, although the Courts may use discretion in imposing additional penalties for first-time offenders.

Sen.Stand.Comm.Rep. No. 983-80, in 1980 Senate Journal, at 1503.

Moreover, in its Statement on House Bill No. 1986-80, the House Committee on Consumer Protection and Commerce asserted that "this amendment also provides mandatory imposition of additional penalties in the case of multiple offender.... Conversely, the Courts may use its sic discretion for first-time offenders as far as these additional penalties; but the fine must be levied upon all offenders." Statement on House Bill No. 1986-80 to the Tenth State Legislature Second Session, February 11, 1980 at 3. These comments, from both the State House and Senate committees responsible for the amendment, are strong indications that the legislature intended § 431:10C-117(a)(3) on mandatory penalties for multiple violations to apply in the case of repeat offenders. Indeed, the manner in which both comments expressly contrast "multiple offenders" with "first-time offenders" demonstrates that the amendment and its new mandatory penalties were devised especially to deal with repeat offenders, rather than the presumably rare instance where a defendant would be convicted and sentenced at one proceeding for more than one violation of § 431:10C-104.

In State v. Paaluhi, 70 Haw. 237, 768 P.2d 235 (1989), however, the Hawaii Supreme Court held that the "multiple violations" language of § 431:10C-117(a)(3) did in fact apply in a situation where the defendant was convicted at one proceeding for three separate violations. In Paaluhi, the defendant pled guilty to three no-fault insurance violation counts, but the trial court did not apply the minimum penalties mandated by the statute for multiple violations. Id. at 239, 768 P.2d 235. The trial court ruled that the multiple violations minimums did not apply because the defendant was being sentenced for the three violations at one proceeding. Id. The trial court relied on prior cases in which defendants convicted of several offenses at a single proceeding were sentenced as first rather than as repeat offenders because they had not been actually convicted before....

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