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State v. Smith12/26/2003
t 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 , 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 , 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 Hawaii 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 mot
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