State v. Casugay-Badiang ( 2013 )

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Electronically Filed
Supreme Court
SCWC-11-0000802
28-JUN-2013
10:13 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
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________________________________________________________________
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
RUBIN IKOA CASUGAY-BADIANG, Petitioner/Defendant-Appellee.
________________________________________________________________
SCWC-11-0000802
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000802; CR. NO. 11-1-0523)
June 28, 2013
ACOBA, MCKENNA, AND POLLACK, JJ.,
WITH RECKTENWALD, C.J., DISSENTING SEPARATELY,
WITH WHOM NAKAYAMA, J., JOINS
AMENDED OPINION OF THE COURT BY MCKENNA, J.
I. Introduction
The sole issue before this court is whether a sentencing
court has the discretion to sentence a defendant convicted of
violating Hawai‘i Revised Statutes (“HRS”) § 712-1240.8 (1993 &
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Supp. 2006) (Methamphetamine Trafficking in the Second Degree)1
under HRS § 706-667 (1993 & Supp. 2006) (the “Young Adult
Defendants” statute).2 Specifically, the issue is whether the
1
That statute currently states, as it did at the time of the alleged
offense, the following:
(1) A person commits the offense of methamphetamine
trafficking in the second degree if the person knowingly
distributes methamphetamine in any amount.
(2) Methamphetamine trafficking in the second degree is a
class B felony for which the defendant shall be sentenced as
provided in subsection (3).
(3) Notwithstanding sections 706-620, 706-640, 706-641, 706-
660, 706-669, and any other law to the contrary, a person
convicted of methamphetamine trafficking in the second
degree shall be sentenced to an indeterminate term of
imprisonment of ten years with a mandatory minimum term of
imprisonment of not less than one year and not greater than
four years and a fine not to exceed $10,000,000; provided
that:
(a) If the person has one prior conviction for
methamphetamine trafficking pursuant to this section or
section 712-1240.7, the mandatory minimum term of
imprisonment shall be not less than three years, four months
and not greater than six years, eight months;
(b) If the person has two prior convictions for
methamphetamine trafficking pursuant to this section or
section 712-1240.7, the mandatory minimum term of
imprisonment shall be not less than six years, eight months
and not greater than ten years; or
(c) If the person has three or more prior convictions for
methamphetamine trafficking pursuant to this section or section
712-1240.7, the mandatory minimum term of imprisonment shall be
ten years.
2
That statute currently states, as it did at the time of the alleged
offense, the following:
(1) Defined. A young adult defendant is a person convicted
of a crime who, at the time of the offense, is less than
twenty-two years of age and who has not been previously
convicted of a felony as an adult or adjudicated as a
juvenile for an offense that would have constituted a felony
had the young adult defendant been an adult.
(2) Specialized correctional treatment. A young adult
defendant who is sentenced to a term of imprisonment
exceeding thirty days may be committed by the court to the
custody of the department of public safety and shall
receive, as far as practicable, such special and
individualized correctional and rehabilitative treatment as
may be appropriate to the young adult defendant’s needs.
(3) Special term. A young adult defendant convicted of a
felony, in lieu of any other sentence of imprisonment
authorized by this chapter, may be sentenced to a special
2
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phrase “Notwithstanding sections 706-620, 706-640, 706-641, 706-
660, 706-669, and any other law to the contrary,” found in the
sentencing provision of HRS § 712-1240.8, overrides sentencing
under HRS § 706-667 as “contrary.” We hold that it does not.
Therefore, we reverse the ICA’s Judgment on Appeal, and affirm
the circuit court’s Judgment of Conviction and Sentence and Order
Denying Motion to Correct Illegal Sentence.
II. Background
Petitioner/Defendant-Appellee Rubin Ikoa Casugay-Badiang
(“Casugay-Badiang”) pled guilty to two counts of Methamphetamine
Trafficking in the Second Degree, in violation of HRS § 712-
1240.8. At Casugay-Badiang’s sentencing hearing, both the
prosecution and defense requested a minimum sentence of one year
in prison, presumably under HRS § 712-1240.8(3), because Casugay-
Badiang had no prior criminal record.
indeterminate term of imprisonment if the court is of the
opinion that such special term is adequate for the young
adult defendant’s correction and rehabilitation and will not
jeopardize the protection of the public. When ordering a
special indeterminate term of imprisonment, the court shall
impose the maximum length of imprisonment, which shall be
eight years for a class A felony, five years for a class B
felony, and four years for a class C felony. The minimum
length of imprisonment shall be set by the Hawaii paroling
authority in accordance with section 706-669. During this
special indeterminate term, the young adult shall be
incarcerated separately from career criminals, when
practicable.
This section shall not apply to the offenses of murder or attempted murder.
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The circuit court,3 on the other hand, sua sponte raised the
issue of whether it possessed the discretion to sentence Casugay-
Badiang under HRS § 706-667. The circuit court reasoned that it
did retain such discretion because HRS § 712-1240.8(3) expressly
excluded sentencing under HRS §§ 706-620, -640, -641, -660, and -
669, but HRS § 706-667 was not among that list. The circuit
court recognized that HRS § 712-1240.8(3) included an additional
phrase “and any other law to the contrary,” following the five
enumerated statutes. To the circuit court, however, the fact
that HRS § 706-667 was not among the enumerated statutes “still
ke[pt HRS §] 706-667 in play.” The circuit court then sentenced
Casugay-Badiang to a “concurrent term of imprisonment of five (5)
years in Counts I and II, as a young adult defendant (pursuant to
§706-667, H.R.S.), with a mandatory minimum of one (1) year.”
The State then filed its Motion to Correct Illegal Sentence,
in which it argued that the circuit court’s decision to sentence
Casugay-Badiang under HRS § 706-667 “runs contrary to the law
imposing sentence upon offenders under HRS § 712-1240.8.” At a
hearing on the motion, the State rested on its briefing, but
defense counsel argued that (1) if the legislature intended for
HRS § 712-1240.8(3) to override HRS § 706-667, then it would have
included HRS § 706-667 among the five enumerated statutes in HRS
3
The Honorable Glenn J. Kim presided.
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§ 712-1240.8(3); and (2) if the legislature intended HRS § 706-
667 not to apply to methamphetamine trafficking, then it would
have amended that statute to include that offense along with
murder and attempted murder in HRS § 706-667(3).
The circuit court added that it believed that it could still
sentence Casugay-Badiang under HRS § 706-667 because that statute
“mitigated,” but was not “contrary” to, the sentencing scheme set
forth in HRS § 712-1240.8(3). The circuit court issued an Order
Denying Motion to Correct Illegal Sentence. The State timely
appealed the circuit court’s Judgment of Conviction and Sentence
and its Order Denying Motion to Correct Illegal Sentence.
Before the ICA, the State argued the following:
The circuit court abused its discretion in sentencing
[Casugay-Badiang] to five years imprisonment under HRS §
706-667 as a young adult defendant, where HRS § 712-
1240.8(3) provides: Notwithstanding sections 706-620, 706-
640, 706-641, 706-660, 706-669, and any other law to the
contrary, a person convicted of methamphetamine trafficking
in the second degree shall be sentenced to an indeterminate
term of imprisonment of ten years with a mandatory minimum
term of imprisonment of not less than one year and not
greater than four years and a fine not to exceed
$10,000,000[.]
(Emphasis in original). The State essentially argued that the
plain language of HRS § 712-1240.8(3) mandated sentencing under
that statute. In support of its interpretation, the State
pointed out that the phrase “notwithstanding any other law to the
contrary” in a sentencing provision has previously been construed
by this court, in State v. Dannenberg, 74 Haw. 75, 837 P.2d 7765
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(1992), as limiting the discretion of the trial court to take
into account any other statutory sentencing scheme. The State
further argued that HRS § 706-667 is “contrary” to HRS § 712-
1240.8(3), because a five-year indeterminate term under HRS §
706-667 is “completely different” from a ten-year indeterminate
term under HRS § 712-1240.8(3).
The ICA agreed with the State. It vacated the circuit
court’s Judgment of Conviction and Sentence and remanded this
case for re-sentencing under HRS § 712-1240.8. See State v.
Casugay-Badiang, 128 Hawai‘i 370, 374, 289 P.3d 1006, 1010
(2012). It held:
HRS § 712-1240.8 clearly precludes the applicability of
sentencing as a young adult defendant under HRS §706-667 for
cases involving methamphetamine trafficking in the second
degree because HRS § 706-667 is contrary to HRS § 712-
1240.8. The legislature intended to divest the circuit
court of its discretion to sentence Casugay-Badiang under
any sentencing statute other than HRS § 712-1240.8(3).
128 Hawai‘i at 373, 289 P.3d at 1009. The ICA concluded that the
circuit court “erred in disregarding the plain language of HRS §
712-1240.8. . . .” 128 Hawai‘i at 374, 289 P.3d at 1010.
III. Discussion
On certiorari, Casugay-Badiang argues that the “ICA’s
Opinion simply concludes that ‘HRS § 706-667 is contrary to HRS §
712-1240.8’ without undertaking a thorough analysis of the
construction of both statutes.” We now take a closer look at
both statutes.
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A. HRS § 712-1240.8
HRS § 712-1240.8 provides:
Methamphetamine trafficking in the second degree. (1) A
person commits the offense of methamphetamine trafficking in
the second degree if the person knowingly distributes
methamphetamine in any amount.
(2) Methamphetamine trafficking in the second degree is
a class B felony for which the defendant shall be sentenced
as provided in subsection (3).
(3) Notwithstanding sections 706-620, 706-640, 706-641,
706-660, 706-669, and any other law to the contrary, a
person convicted of methamphetamine trafficking in the
second degree shall be sentenced to an indeterminate term of
imprisonment of ten years with a mandatory minimum term of
imprisonment of not less than one year and not greater than
four years and a fine not to exceed $10,000,000; provided
that:
(a) If the person has one prior conviction for
methamphetamine trafficking pursuant to this section or
section 712-1240.7, the mandatory minimum term of
imprisonment shall be not less than three years, four months
and not greater than six years, eight months;
(b) If the person has two prior convictions for
methamphetamine trafficking pursuant to this section or
section 712-1240.7, the mandatory minimum term of
imprisonment shall be not less than six years, eight months
and not greater than ten years; or
(c) If the person has three or more prior convictions for
methamphetamine trafficking pursuant to this section or
section 712-1240.7, the mandatory minimum term of
imprisonment shall be ten years.
At issue in this case is whether the circuit court had the
discretion to sentence Casugay-Badiang to a special five-year
indeterminate term of imprisonment under HRS § 706-667 in the
face of the following language from HRS § 712-1240.8(3):
Notwithstanding sections 706-620, 706-640, 706-641, 706-660,
706-669, and any other law to the contrary, a person
convicted of methamphetamine trafficking in the second
degree shall be sentenced to an indeterminate term of
imprisonment of ten years with a mandatory minimum term of
imprisonment of not less than one year and not greater than
four years and a fine not to exceed $10,000,000[.]
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This court’s foremost obligation in construing a statute is
“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.” State v. Valdivia, 95 Hawai‘i
465, 472, 24 P.3d 661, 668 (2001)(citation omitted). “Where the
statutory language is unambiguous, the court’s sole duty is to
give effect to its plain and obvious meaning.” State v.
Sakamoto, 101 Hawai‘i 409, 412, 70 P.3d 635, 638 (2003)(citations
omitted).
1. A Plain Language Reading of HRS § 712-1240.8(3)
in Favor of the State
This court previously interpreted the statutory phrase
“notwithstanding any other law to the contrary” as removing a
circuit court’s discretion to sentence under any other law. An
early case interpreting the phrase “any other law to the
contrary” was State v. Rice, 66 Haw. 101, 657 P.2d 1026 (1983).
In the context of whether the prostitution statute allowed for
deferred acceptance of guilty pleas, this court concisely held,
“[W]e think that § 853-1, HRS, is ‘any other law to the contrary’
and that the court below therefore correctly construed § 712-
1200(4) as taking away its power to grant deferred acceptance of
guilty pleas in prostitution cases.” 66 Haw. at 102, 657 P.2d at
1026.
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In Dannenberg, this court once again held that the trial
court abused its discretion in granting a defendant’s motion for
a DANC plea to a charge of prostitution under HRS § 712-1200,
which, at that time, provided in relevant part:
Notwithstanding any other law to the contrary, a person
convicted of committing the offense of prostitution shall be
sentenced as follows: [for the first offense, a fine or
community service and/or a prison term of not more than 30
days; for a subsequent offense, a fine and a prison term of
30 days, without possibility of suspension of sentence or
probation.]
74 Haw. at 77, 79-80, 837 P.2d at 777, 778. The Dannenberg court
reaffirmed Rice and clarified its reasoning in that case as
follows:
As Defendant points out, HRS § 712-1200 is ambiguous as to
whether the ‘notwithstanding any other law to the contrary’
refers to HRS ch. 853 (1985 & Supp. 1991) which is the
statutory authority for permitting discretionary deferred
acceptance of guilty pleas and deferred acceptance of nolo
contendere pleas. Defendant’s argument that the sentencing
provisions of HRS § 712-1200 only apply where defendant is
actually ‘convicted’ and that a DANC is not a conviction is
well-taken. However, to permit a trial court to defer the
entry of a plea in order to avoid a conviction permits the
court to avoid the sentencing scheme created by the
legislature specifically for prostitution cases and is
therefore repugnant to the legislative intent in enacting
the prostitution law.
74 Haw. at 80, 837 P.2d at 778-79. This court then turned to the
legislative history of the prostitution statute, which revealed
that “[t]he intent was clearly to limit the discretion of the
trial court in sentencing prostitution offenses and to provide a
mandatory sentencing structure unlike that for other petty
misdemeanors.” 74 Haw. at 81, 837 P.2d at 779. Thus, this court
held that DANC’s were not available for prostitution charges,
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“[s]ince it is clear that the language of the statute anticipates
mandatory sentencing for prostitution offenders, and the
legislative history reveals an intent to remove judicial
discretion from sentencing[.]” 74 Haw. at 83, 837 P.2d at 779-
80.4 Thus, under Dannenberg, HRS § 712-1240.8(3)’s
“notwithstanding any other law to the contrary” phrase indicates
that the circuit court lacked the discretion to sentence Casugay-
Badiang under any other sentencing scheme not found in HRS § 712-
1240.8(3), which would include HRS § 706-667.
Numerous cases since Dannenberg interpreted the phrase
“notwithstanding any other law to the contrary.” In State v.
Smith, 103 Hawai‘i 228, 234, 81 P.3d 408, 414 (2003), we
synthesized these cases and held that the interpretation of the
phrase “notwithstanding any other law to the contrary” has been,
since Rice, a plain-language interpretation divesting the
sentencing court of discretion to sentence under any other
scheme:
[T]his court has repeatedly employed a plain-language
analysis in interpreting statutes that contain the phrase,
‘notwithstanding any other law to the contrary. . . .’ See
State v. Hamili, 87 Hawai‘i 102, 105, 952 P.2d 390, 393
(1998)(reaffirming this court’s holding in State v. Rice,
infra); State v. Dannenberg, 74 Haw. 75, 80, 837 P.2d 776,
778 (1992)(reaffirming this court’s holding in Rice, infra);
State v. Mun Chung Tom, 69 Haw. 602, 604, 752 P.2d 597, 598
(1988)(analogizing the language of the driving under the
influence (DUI) statute to the wording of the prostitution
4
Dannenberg was later superseded by statute. The prostitution statute
was later amended to expressly allow for probation, and, therefore, DANC
pleas. See State v. Klie, 116 Hawai‘i 519, 523, 174 P.3d 358, 362 (2007).
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statute, infra, and noting that “the language of the DUI
statute [(i.e., a person convicted ‘shall be sentenced as
follows without possibility of probation’)] is sufficiently
clear in mandating the sentence to be imposed”); State v.
Rice, 66 Haw. 101, 657 P.2d 1026 (1983) (holding that, where
the prostitution statute provides “notwithstanding any other
law to the contrary, a person convicted of committing the
offense of prostitution shall be sentenced as follows[,]”
the phrase “‘any other law to the contrary’ . . . takes away
[the trial court’s] power to grant deferred acceptance of
guilty pleas in prostitution cases”).
See also State v. Kamanao, 118 Hawai‘i 210, 218, 188 P.3d 724,
732 (2008)(“The express language of HRS § 706-606.5,
‘[n]othwithstanding . . . any other law to the contrary . . . [,]
‘clearly limits the applicability of HRS § 706-668 in cases
involving the ‘[s]entencing of repeat offenders.’ HRS § 706-668
is precisely the type of ‘law to the contrary’ described in HRS §
706-606.5.”)
Moreover, within the phrase “notwithstanding any other law
to the contrary,” a plain language, dictionary definition of
“contrary” is “being opposite to or in conflict with each
other[.]” Merriam Webster’s Collegiate Dictionary 765 (10th Ed.
1989)(cited in State v. Schnabel, 127 Hawai‘i 432, 448, 279 P.3d
1237, 1253 (2012)). “‘[T]wo statutes conflict’ where ‘[i]t is
not possible to give effect to both[.]” Id. (citing State v.
Richie, 88 Hawai‘i 19, 35, 960 P.2d 1227, 1243 (1998)). In
Casugay-Badiang’s case, HRS § 706-667 is seemingly contrary to
HRS § 712-1240.8(3) because “[i]t is not possible to give effect
to both” an indeterminate five-year term of imprisonment under
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the former statute and an indeterminate ten-year term of
imprisonment under the latter. Under Richie, then, and in
contrast to the circuit court’s reasoning, a sentence under HRS §
706-667 is not just “mitigating” in relation to HRS § 712-
1240.8(3); it is contrary to HRS § 712-1240.8(3). Thus, under
Richie, HRS § 706-667 would appear to be included in HRS § 712-
1240.8(3)’s phrase “notwithstanding . . . any other law to the
contrary[.]”
2. A Plain Language Reading of HRS § 712-1240.8(3)
in Favor of Casugay-Badiang
On the other hand, HRS § 706-667 is not included among the
five enumerated statutes in HRS § 712-1240.8(3)’s
“notwithstanding” clause, evidencing no express legislative
intent to exclude it as a sentencing alternative. This court
previously decided a case in which HRS § 706-667 was considered
to be a “sentencing alternative” in the face of a sentencing
statute that excluded “any other law to the contrary.” In State
v. Lau, 73 Haw. 259, 831 P.2d 523 (1992), a case decided four
months before Dannenberg, the defendant (“Lau”) was sentenced to
an indeterminate twenty-year term of imprisonment following a
class A felony drug conviction for cocaine trafficking. 73 Haw.
at 260-61, 831 P.2d at 524.
On appeal, he argued that “the sentencing court committed
reversible error by not stating its reasons for imposing a twenty
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year sentence . . . [and that] it is unknown if the court
considered the alternative eight year sentence under the young
adult defendants statute for which he was qualified.” 73 Haw. at
260-61, 831 P.2d at 523-24. This court held:
Our review of the record reveals that the sentencing court
had the benefit of a pre-sentence report, the arguments of
counsel, which included references to both the ordinary
twenty year term and the special indeterminate term of eight
years, and appellant’s personal statement. Thus, we can
reasonably infer that the court did consider the sentencing
alternatives, and we therefore affirm.
73 Haw. at 260, 831 P.2d at 524.
This was so, even though at the time Lau was decided, HRS §
706-659 (1985) provided, “Notwithstanding . . . any other law to
the contrary, a person who has been convicted of a class A felony
shall be sentenced to an indeterminate term of imprisonment of
twenty years without possibility of suspension of sentence or
probation.” (emphasis added). This court stated that the
sentencing court could sentence Lau under HRS § 706-667, without
discussing HRS § 706-659’s express “notwithstanding any other law
to the contrary” language, which is similar to HRS § 712-
1240.8(3)’s “notwithstanding” language. 73 Haw. at 260, 831 P.2d
at 524. In fact, we stated, “Once the court determines that
imprisonment is necessary, the court ‘is free . . . to choose’
between the ordinary term or the special indeterminate sentence
under the young adult defendants statute.” 73 Haw. at 263, 831
P.2d at 525 (citing HRS § 706-667 commentary). Therefore, Lau is
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in tension with Dannenberg, as well as Rice, which existed at the
time Lau was decided.
The legislature amended HRS § 706-659 twice since Lau was
decided, with neither amendment expressly eliminating HRS § 706-
667 as a sentencing alternative, where applicable.5 See 1994
Haw. Sess. Laws Act 229, § 3 at 558; 2012 Haw. Sess. Laws Act
292, § 4 at 993. Lau’s interpretation of HRS § 706-659 to allow
for sentencing under HRS § 706-667 appears to have been untouched
by the legislature, which is “‘presumed [to] know the law when
enacting statutes, ‘including this court’s interpretations of
statutory language.” State v. Reis, 115 Hawai‘i 79, 97, 165 P.3d
980, 998 (2007); Terr. v. Ota, 36 Haw. 80, 98-99 (1942)(“While .
. . legislative inaction does not amount to legislative
construction, it does indicate a lack of active disagreement with
[judicial interpretation]. . . [L]egislative inaction tends to
indicate agreement.”)
In addition, even if HRS § 706-667 is “contrary” to HRS §
712-1240.8(3)’s sentencing scheme, the following rules of
statutory interpretation would favor Casugay-Badiang’s position:
5
Also of note, the legislature included the “notwithstanding” clause when
it enacted HRS § 706-659 in 1980. 1980 Haw. Sess. Laws Act 293, § 1 at 562-
63. HRS § 706-667 existed at that time, having been enacted in 1972. See
1972 Haw. Sess. Laws Act 9, § 1 at 81-82. HRS § 706-667 was not included
among the other statutes in the “notwithstanding clause” of HRS § 706-659.
1980 Haw. Sess. Laws Act 293, § 1 at 562-63. Also in 1980, the legislature
amended HRS § 706-667 but did not reference or exclude HRS § 706-659 from HRS
§ 706-667. 1980 Haw. Sess. Laws Act 295, §§ 2, 3 at 563. Therefore, young
adult defendant sentencing appears to be generally available for class A
felony convictions, and has been since the time HRS § 706-659 was enacted.
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First, legislative enactments are presumptively valid and
“should be interpreted [in such a manner as] to give them
effect.” Second, “laws in pari materia, or upon the same
subject matter, shall be construed with reference to each
other. What is clear in one statute may be called in aid to
explain what is doubtful in another.” Third, “where there
is a ‘plainly irreconcilable’ conflict between a general and
a specific statute concerning the same subject matter, the
specific will be favored. However, where the statutes
simply overlap in their application, effect will be given to
both if possible, as repeal by implication is disfavored.”
Richardson v. City & County of Honolulu, 76 Haw. 46, 54-55, 868
P.2d 1193, 1201-02 (1994)(citations omitted).
This court has already considered HRS § 706-667 to be a
specific statute, “involv[ing] specialized treatment for a
limited group of defendants,” as compared to other statutes that
refer to “any sentence.” State v. Putnam, 93 Hawai‘i 362, 371, 3
P.3d 1239, 1248 (2000). Thus, in comparing statutes concerning
the subject matter of sentencing, Putnam observed that “HRS §
706-667 is to be favored and would control,” were the defendant
in that case age-eligible for young adult defendant sentencing,
which she was not. Id.
B. HRS § 706-667
We now turn to an examination of HRS § 706-667, which
provides:
Young adult defendants. (1) Defined. A young adult
defendant is a person convicted of a crime who, at the time
of the offense, is less than twenty-two years of age and who
has not been previously convicted of a felony as an adult or
adjudicated as a juvenile for an offense that would have
constituted a felony had the young adult defendant been an
adult.
(2) Specialized correctional treatment. A young adult
defendant who is sentenced to a term of imprisonment
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exceeding thirty days may be committed by the court to the
custody of the department of public safety and shall
receive, as far as practicable, such special and
individualized correctional and rehabilitative treatment as
may be appropriate to the young adult defendant's needs.
(3) Special term. A young adult defendant convicted of a
felony, in lieu of any other sentence of imprisonment
authorized by this chapter, may be sentenced to a special
indeterminate term of imprisonment if the court is of the
opinion that such special term is adequate for the young
adult defendant’s correction and rehabilitation and will not
jeopardize the protection of the public. When ordering a
special indeterminate term of imprisonment, the court shall
impose the maximum length of imprisonment, which shall be
eight years for a class A felony, five years for a class B
felony, and four years for a class C felony. The minimum
length of imprisonment shall be set by the Hawaii paroling
authority in accordance with section 706-669. During this
special indeterminate term, the young adult shall be
incarcerated separately from career criminals, when
practicable.
This section shall not apply to the offenses of murder
or attempted murder.
1. A Plain Language Reading of HRS § 706-667 in
Favor of the State
In the face of HRS § 712-1240.8(3)’s “notwithstanding . . .
any other law to the contrary” language, the permissive “may be
sentenced” in HRS § 706-667 seemingly lacks the force necessary
to demonstrate that sentencing under HRS § 706-667 overrides
sentencing under HRS § 712-1240.8(3). When HRS §§ 706-667 and
712-1240.8(3) are read together, the “notwithstanding . . . any
other law to the contrary” language indicates that a special
five-year indeterminate term of imprisonment under HRS § 706-667
is contrary to a ten-year indeterminate term of imprisonment
under HRS § 712-1240.8(3).
As the United States Supreme Court has observed, “[I]n
construing statutes, the use of such a ‘notwithstanding’ clause
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clearly signals the drafter’s intention that the provisions of
the ‘notwithstanding’ section override conflicting provisions of
any other section. Likewise, the Courts of Appeals generally
have ‘interpreted similar “notwithstanding” language . . . to
supersede all other laws, stating that “[a] clearer statement is
difficult to imagine.”’” Cisneros v. Alpine Ridge Group, 508
U.S. 10, 18, (1993)(citations omitted).
2. A Plain Language Reading of HRS § 706-667 in
Favor of Casugay-Badiang
On the other hand, the plain language of HRS § 706-667 also
states, “A young adult defendant convicted of a felony, in lieu
of any other sentence of imprisonment authorized by this chapter,
may be sentenced to a special indeterminate term of
imprisonment.” All sentences for all offenses are governed by
“this chapter,” meaning Chapter 706.6 See HRS § 706-600
(1993)(“No sentence shall be imposed otherwise than in accordance
with this chapter.”); HRS § 706-660 cmt. (1993)(“This section
establishes that dispositions for all offenses – whether defined
within or outside the Penal Code – are to be imposed in
accordance with this chapter and . . . ‘the only dispositions
authorized are those permitted by the Code.’”).
In addition, facially, the only limit on the application of
6
We therefore reject the State’s argument that HRS § 706-667 does not
apply to HRS § 712-1240.8 simply because HRS § 712-1240.8 is not found within
Chapter 706.
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HRS § 706-667 as a sentencing option appears in subsection (3):
“This section shall not apply to the offenses of murder and
attempted murder.” Methamphetamine Trafficking in the Second
Degree is not included among these offenses.
This court previously construed the limitation found in
subsection (3) in favor of young adult defendants. In State v.
Pacariem, 67 Haw. 46, 47, 677 P.2d 463, 464 (1984), we faced the
issue of whether young adult defendant sentencing was available
following a conviction for attempted murder. At the time, HRS §
706-667 expressly stated that murder was the only offense for
which young adult defendant sentencing was unavailable. 67 Haw.
at 47 n.1, 677 P.2d 463 n.1.
The State appealed the defendant’s young adult defendant
sentence, arguing that the sentencing court should have sentenced
the defendant under the more recently passed HRS § 707-660.1,
which mandated a sentence of life imprisonment (with or without
parole, depending upon the circumstances of the attempted
murder). 67 Haw. at 47-48, 677 P.2d at 464. The State argued
that the legislature intended to repeal HRS § 706-667 by
implication, as to sentencing for the offense of attempted
murder, as evidenced in the Commentary to HRS § 707-660.1, which
stated that the “sentences for attempted murder . . . would be
similar to those provided for murder,” because “in either offense
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the intent to kill was the same.” 67 Haw. at 47 n.2, 48, 677
P.2d at 463 n.2, 464. The State argued that, when a general and
specific statute pertain to the same subject matter, the specific
statute (which it argued was HRS § 707-660.1) should supersede
and be deemed an exception to the general statute (which it
argued was HRS § 706-667). Id.
We rejected the State’s argument, noting that that rule of
statutory construction was “qualified by the proviso that the
conflict between the general and specific statutes in question be
‘plainly irreconcilable.’” Id. (citation omitted). Further, we
held:
H.R.S. § 706-667 specifically provides that it is not
applicable to the offense of murder. It also provides that
the sentencing court has the discretion to apply H.R.S. §
706-667 “. . . in lieu of any other sentence of imprisonment
authorized by this chapter.” These two provisions of H.R.S.
§ 706-667 are not plainly irreconcilable with H.R.S. § 706-
660.1, but rather invest the sentencing court with
discretion to apply H.R.S. § 706-667 to a young adult
defendant, as long as the offense in question is not murder.
67 Haw. at 48, 677 P.2d at 464-65. We then held that repeals by
implication are disfavored, and “that if effect can reasonably be
given to two statutes, it is proper to presume that the earlier
statute is intended to remain in force and that the later statute
did not repeal it.” Id.Similarly, in the instant appeal, the State’s argument that
HRS § 706-667 sentencing is no longer available under HRS § 712-
1240.8 could be construed as an argument that HRS § 712-1240.8
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repealed, by implication, young adult defendant sentencing as to
the offense of Methamphetamine Trafficking in the Second Degree.
Following the logic of Pacariem, however, it can be argued that
the sentencing court remained invested with discretion to
sentence Casugay-Badiang under HRS § 706-667 in lieu of any other
sentence of imprisonment, specifically the sentence set forth
under HRS § 712-1240.8 for Methamphetamine Trafficking in the
Second Degree, as the only offenses for which young adult
sentencing are not available remain murder and attempted murder.
Therefore, HRS § 712-1240.8, even with its “notwithstanding”
language, did not repeal by implication the sentencing
alternative available under HRS § 706-667.7
C. Legislative History of Act 230 of 2006
In light of these two competing and equally viable plain
language readings of HRS §§ 712-1240.8 and 706-667, legislative
history may be a helpful aid in understanding whether HRS § 712-
1240.8 overrides HRS § 706-667, or whether HRS § 706-667 remains
a sentencing alternative. The legislature addressed both
7
In 1986, the legislature amended HRS § 706-667 to expressly include
attempted murder as an offense for which young adult sentencing is not
available. 1986 Haw. Sess. Laws Act 314, § 44 at 614. Although the
legislature did not discuss Pacariem, it can be surmised that the amendment
was made in response to Pacariem. See Ota, 36 Haw. at 98-99 (“It is a common
practice of legislative bodies to enact laws to circumvent judicial
constructions deemed by the legislators to be contrary to the true meaning of
the statute construed.”).
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statutes in the same Act. See 2006 Haw. Sess. Laws Act 230, at
996-1025. Therefore, the actions the legislature took (or did
not take) in clarifying the relationship between these two
statutes in Act 230 is worth examining.
Act 230 enacted HRS § 712-1240.8 after repealing an earlier
version of the methamphetamine trafficking statute, HRS § 712-
1240.6. 2006 Haw. Sess. Laws Act 230, § 4 at 998-99 (enacting
Chapter 712, part IV); 1024 (repealing HRS § 712-1240.6).
Simultaneously, Act 230 also amended HRS § 706-667 to provide for
the availability of young adult defendant sentencing for persons
less than twenty-two years of age at the “time of the offense”
rather than at the “time of sentencing.” 2006 Haw. Sess. Laws
Act 230, § 25 at 1013. Although both HRS §§ 712-1240.8 and 706-
667 were dealt with in the same Act, the legislature made no
apparent effort to cross-reference one to the other. Two
conclusions might be drawn from the legislature’s inaction: one
that supports the State’s argument that HRS § 706-667 is not a
sentencing alternative following a conviction under HRS § 712-
1240.8, and one that supports Casugay-Badiang’s argument that it
is.
1. Analysis of Act 230 in Favor of the State
Act 230 was an omnibus crime bill, and neither HRS § 706-667
nor HRS § 712-1240.8 (nor the interaction between these two
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statutes) was debated or discussed in the Standing Committee
Reports, Conference Committee Reports, or on the House or Senate
floor. This was probably because the bill that became Act 230
was the result of the work of the Committee to Conduct a
Comprehensive Review of the Hawai‘i Penal Code, a committee
created by Act 125 of the 2005 Legislative Session which
submitted a Report to the Legislature proposing the addition of
seven new statutory sections, amendments to 46 existing statutory
sections, and the repeal of one statutory section-- proposals the
Legislature largely adopted without discussion. Compare 2006
Haw. Sess. Laws Act 230 at 996-1025 with Report of the Committee
to Conduct a Comprehensive Review of the Hawai‘i Penal Code
(“Report”) at 11-57 (2005). Hence, the legislature’s failure to
expressly cross-reference HRS § 706-667 with HRS § 712-1240.8
does not necessarily reflect a deliberate intent to retain HRS §
706-667 as a sentencing alternative to HRS § 712-1240.8(3). If
anything, such cross-reference was unnecessary, given the
legislature’s drafting of HRS § 712-1240.8(3) to exclude “any
other law to the contrary,” with young adult defendant five-year
indeterminate term sentencing contrary to the ten-year
indeterminate term called for in HRS § 712-1240.8(3). See
Cisneros, 508 U.S. at 18 (“[T]he use of such a ‘notwithstanding’
clause clearly signals the drafter’s intention that the
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provisions of the ‘notwithstanding’ section override conflicting
provisions of any other section. . . A clearer statement is
difficult to imagine.”)(citation omitted).
Moreover, the Committee that drafted the legislative
proposals that eventually became Act 230 identified crystal
methamphetamine abuse as “the dominant issue in the criminal
justice system,” affecting “most criminal cases” and “most of the
defendants who are sent to prison.” Report at 5. Thus, to the
Committee, the problem of methamphetamine in general was of
primary concern.
2. Analysis of Act 230 in Favor of Casugay-Badiang
Nevertheless, the legislature’s amendment to HRS § 706-667
in 2006 to set the defendant’s eligibility date for young adult
defendant sentencing as the “time of the offense,” versus the
“time of sentencing” also indicates the legislature’s intent to
increase a sentencing court’s discretion to apply HRS § 706-667
by increasing the pool of defendants eligible for young adult
sentencing. There is no legislative discussion of the amendment
to HRS § 706-667. The Report, however, explains that the change
was intended to prevent the unfairness that resulted when the
would-be young adult defendant aged out of eligibility for
sentencing under HRS § 706-667 simply based on when the
sentencing court scheduled his or her sentencing hearing. See
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Report at 27r. Thus, the increased sentencing discretion added
to HRS § 706-667 contradicts any purported legislative intent to
simultaneously decrease sentencing discretion via the enactment
of HRS § 712-1240.8. This is particularly true where the
legislature did not include Methamphetamine Trafficking in the
Second Degree among the other offenses for which young adult
defendant sentencing is unavailable. See HRS § 706-667(3)(“This
section shall not apply to the offenses of murder or attempted
murder.”).
The legislature could have cross-referenced HRS §§ 706-667
and 712-1240.8, if it had so intended, in Act 230. Tellingly,
Act 230 also amended another statute, HRS § 706-622.5, to
expressly exclude HRS § 712-1240.8. 2006 Haw. Sess. Laws Act
230, § 18 at 1009. HRS § 706-622.5 states, in relevant part,
with emphasis added, “Notwithstanding section 706-620(3), a
person convicted for the first or second time for . . . any
felony offense under part IV of chapter 712 . . . [but] not
including any methamphetamine trafficking offenses under sections
712-1240.7 and 712-1240.8, is eligible to be sentenced to
probation . . . .” Thus, if the legislature intended to exclude
Methamphetamine Trafficking from HRS § 706-667, it could have
done so, as it did with HRS § 706-622.5, but it did not.
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D. Policy Considerations
Given the difficulties in divining the legislative intent
behind Act 230, an examination of the legislature’s stated
policies behind HRS §§ 706-667 and 712-1240.8 may provide needed
guidance. Both statutes were chosen for unique treatment by our
legislature. Both statutes are undergirded by powerful policy
considerations.
1. Policy Considerations behind Hawai‘i’s Carve-Out
for Methamphetamine Trafficking
On one hand, the legislature has singled out methamphetamine
trafficking as requiring sentencing separate from the general
sentencing provisions found in Chapter 706. The legislature
first carved out methamphetamine trafficking for separate
sentencing in 2004 when it passed Act 44. 2004 Haw. Sess. Laws
Act 44, § 3 at 204-27; see also H. Stand. Comm. Rep. No. 495-04,
in 2004 House Journal, at 1604 (“Amending the new offense of
unlawful methamphetamine trafficking to . . . . [s]pecify that
other statutes relating to sentencing do not apply to the offense
of methamphetamine trafficking[.]”). Act 44 resulted in the
codification of HRS § 712-1240.6, which set classes of
methamphetamine trafficking offenses according to the weight of
methamphetamine, and set mandatory prison terms and fines
according to the class of offense. HRS § 712-1240.6 (Supp.
2004).
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The new carve-out was pursuant to the legislature’s finding
“that new and enhanced criminal penalties are needed to protect
[Hawai‘i’s] citizens from the effects of the ice epidemic.” 2004
Haw. Sess. Laws at 205. The legislature stated that “the use of
and addiction to crystal methamphetamine (especially in the form
known as ‘ice’) . . . has reached epidemic proportions and is
currently considered a public health crisis. 2004 Haw. Sess.
Laws at 204. HRS § 712-1240.6 was repealed in 2006 and replaced
with our current methamphetamine trafficking statutes, HRS
Chapter 712, Part IV.
2. Policy Considerations behind Hawai‘i’s Young Adult
Defendant Sentencing
On the other hand, the legislature has also singled out
young adult defendants for specialized sentencing due to their
immaturity and potential for rehabilitation. HRS § 706-667 is
based on the Model Penal Code, Tentative Draft 7. Putnam, 93
Hawai‘i at 369, 3 P.3d at 1246 (“HRS § 706-667 is based on the
Young Adult Offender statute, Section 6.05 of the Model Penal
Code, and is in relevant part similarly worded.”). The
Commentary to HRS § 706-667 contains a cross-reference to the
Model Penal Code, Tentative Draft No. 7, comments at 24, which
explains the general policy behind young adult sentencing as
follows:
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[T]he incidence of criminality and of recidivism in this age
span is distressingly and disproportionately high; that
these are still, however, formative years in personal
development; and that these individuals involved have many
years of active life ahead. Prudence and humanity combine,
therefore, to argue for a specialized and concentrated
effort in this area.
Model Penal Code, Tentative Draft No. 7, comments at 24 (1957);
Putnam, 93 Hawai‘i at 369-70, 3 P.3d at 1246-47 (citing to the
Model Penal Code, Tentative Draft No. 7); see also Model Penal
Code Part I Commentaries, vol. 3 at 75 (1985)(finalizing draft
comments similarly).
The Commentary to HRS § 706-667 also explains the philosophy
behind discretionary sentencing and special terms of imprisonment
for young adult defendants:
[T]he Code adopts a flexible approach in sentencing. The
court is not compelled to impose a special term in the case
of a convicted young adult. It may, according to the
provisions of Part II of this Chapter, suspend the
imposition of sentence or sentence the defendant to
probation. If the court determines that imprisonment is
necessary, the court is free, within the limitations
heretofore set forth, to choose between the special term
authorized by this section and the ordinary and extended
terms authorized by prior sections in this Part. Subsection
(3) merely authorizes the employment of a special, more
limited term of imprisonment “if the court is of the opinion
that such special term is adequate for... [the defendant’s]
correction and rehabilitation and will not jeopardize the
protection of the public.” Assuming the court is satisfied
that this condition can be met, there seems no reason for
not allowing the court, if it chooses, to protect the young
offender from the longer maxima provided for felonies.
HRS § 706-667 cmt. (1993 & Supp. 2006)(emphasis added). Other
passages in the Model Penal Code, Tentative Draft 7, illuminate
further policy reasons behind specialized young adult sentencing.
For example, as to why youthful offenders should receive a
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shorter term of imprisonment than ordinary offenders, the
American Law Institute reasoned as follows:
We recognize the theory . . . that . . . a longer term is
more reformative than a short, definite sentence to jail.
This is a case, however, where we think that theory has
outrun a sense of just proportion. Simple regard for
personal liberty – of young no less than of mature adults –
requires, in our view, that younger people not be subject to
more onerous sentences because of their immaturity. We can
perceive no adequate basis for sentencing young adults,
whose offenses reveal no substantial danger to the
community, to sentences as long as those imposed for major
crimes.
Model Penal Code, Tentative Draft 7, comments at 28.
IV. Conclusion
There are strong arguments both for and against retaining
discretion to sentence under HRS § 706-667 following a conviction
under HRS § 712-1240.8. As analyzed above, however, there exists
enough ambiguity in the language of both statutes, their
relationship to each other, and the legislature’s actions (and
inaction) with regard to each that the rule of lenity applies in
this case. “[W]here a criminal statute is ambiguous, it is to be
interpreted according to the rule of lenity. Under the rule of
lenity, the statute must be strictly construed against the
government and in favor of the accused.” State v. Bayly, 118
Hawai‘i 1, 15, 185 P.3d 186, 200 (2008)(citation omitted).
In addition, based on the totality of the circumstances, it
appears the legislature considers HRS § 706-667 a separate and
unique sentencing overlay to all other indeterminate term
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sentencing statutes (except murder and attempted murder) such
that HRS § 706-667 would not be “contrary” to HRS § 712-
1240.8(3).8 First, the plain language of HRS § 712-1240.8 does
not enumerate HRS § 706-667 among the other five statutes
excluded from consideration in sentencing for Methamphetamine
Trafficking in the Second Degree. HRS § 712-1240.8(3). Further,
the catch-all phrase “notwithstanding any other law to the
contrary,” under Lau, has not been interpreted to limit the
availability of young adult sentencing. Lau, 73 Haw. at 263, 831
P.2d at 525. Even if HRS § 706-667 could be viewed as
conflicting with HRS § 712-1240.8(3)’s sentencing provisions, we
have already held that the young adult defendant sentencing
statute, as the more specific statute, “is to be favored and
would control,” over other general sentencing statutes like HRS §
712-1240.8(3). Putnam, 93 Hawai‘i at 371, 3 P.3d at 1248.
Second, young adult defendant sentencing is “in lieu of any
other sentence of imprisonment” for any other offense except
murder and attempted murder. HRS § 706-667(3). Under Pacariem,
the limitation set forth in HRS § 706-667(3) is restrictively
viewed. Pacariem, 67 Haw. at 48, 677 P.2d at 464-65.
Methamphetamine Trafficking in the Second Degree is not listed
8
If the legislature disagrees with our interpretation of HRS § 706-667,
as it apparently did following Pacariem, it has the power to amend HRS § 706-
667 (and/or HRS § 712-1240.8) to clarify that young adult defendant sentencing
is not available following a conviction for Methamphetamine Trafficking in the
Second Degree.
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along with murder and attempted murder, indicating that the court
retains discretion to sentence under HRS § 706-667 following a
conviction under HRS § 712-1240.8.
Third, when the legislature simultaneously amended HRS §
706-667 and enacted HRS § 712-1240.8 in 2006, it did not cross-
reference those statutes with each other to indicate that young
adult sentencing was not available following a conviction under
HRS § 712-1240.8. 2006 Haw. Sess. Laws Act 230, §§ 4, 25 at 998-
99, 1013. Through that same act, the legislature demonstrated
its ability to so cross-reference when it excluded HRS § 712-
1240.8 from HRS § 706-622.5. 2006 Haw. Sess. Laws Act 230, § 18
at 1008. Therefore, it appears that the legislature did not
intend to exclude HRS § 706-667 as a sentencing alternative to
HRS § 712-1240.8(3).
Fourth, the policy considerations behind HRS § 706-667
indicate that young adult defendants are intended to be spared
from the same sentences imposed on adults for major crimes like
methamphetamine trafficking. Model Penal Code, Tentative Draft
7, comments at 28.
As such, we hold that the sentencing court did retain
discretion to sentence Casugay-Badiang under HRS § 706-667.
Accordingly, the ICA’s Judgment on Appeal is reversed. The
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circuit court’s Judgment of Conviction and Sentence and Order
Denying Motion to Correct Illegal Sentence are affirmed.
Ronette M. Kawakami /s/ Simeon R. Acoba, Jr.
(Summer M. M. Kupau
with her on the briefs) /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
James M. Anderson
for respondent
31