State v. Smith12/26/2003
FOR PUBLICATION
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 Hawaii Revised Statutes (HRS) § 712-1243 (1993 & Supp. 2002) (Count I), and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (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) and that the circuit court should have sentenced her in accordance with HRS § 706-622.5 (Supp. 2002).
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 Hawaii [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.
On February 25, 2003, the circuit cour
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