IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee, v. MERVIN DUDOIT, JR.,
Defendant-Appellant
The defendant-appellant Mervin Dudoit, Jr. appeals solely with regard to his sentence in connection with his conviction of two counts of abuse of a family or household member, in violation of Hawai`i Revised Statutes (HRS) § 709-906 (Supp. 1997).(1) On appeal, Dudoit argues that the family court erred in sentencing him to a mandatory thirty-day jail term for the second count of the complaint, pursuant to the "repeat offender" provision of HRS § 709-906(5)(b), see supra note 1, because (1) the legislative history of HRS § 709-906(5) establishes that the legislature intended that the repeat offender provision apply only to offenses occurring after prior convictions of a violation of the statute, (2) the repeat offender provision cannot apply to offenses committed on the same day, and/or (3) the repeat offender provision cannot apply to offenses occurring within a short time of each other. We disagree with all of Dudoit's contentions. Accordingly, we affirm the family court's judgment, guilty conviction, and sentence.
I. BACKGROUND
Dudoit was charged by way of a complaint, filed on October 2, 1997, with two counts of abuse of a family or household member in violation of HRS § 709-906. The complaint alleged that, on September 14, 1997, Dudoit "did intentionally, knowingly or recklessly engage in and cause physical abuse of a family or household member," naming, in two separate counts, Josette Dudoit (Count I) and Michelle Dudoit (Count II) as his victims.
On January 8, 1998, the family court conducted a change of plea hearing. In connection with Dudoit's plea of no contest as to both charges, the prosecution recited the following factual basis:
This occurred on September 14th, 1997 in the morning hours, about 9 a.m.[ ]
The defendant had come home the night before at about 3 a.m.[ ] His wife had locked the door, so the defendant slept [o]n the back deck. When his wife woke up, she did go outside and attempted to wake the defendant up and was asking the defendant for their son's money. Apparently, the defendant said he had the money but he didn't produce the money. So there was some argument about the money.
They all then went into the house. While in the house[,] the defendant kicked the victim when the victim was by the icebox. He kicked the icebox door into the victim and it hit her in the left arm area. He then also kicked her in the arm causing a big bruise from her elbow to her shoulder on her left arm that lasted for more than one week.
At that time[,] the victim's daughter, [Michelle], went to try to stop her father from beating up on the mom. [Michelle] grabbed the father and they then got into a fight. The father pulled [Michelle's] hair and punched her in the head about two to three times . . . [,] [a]t which time the mom then intervened, stopped the two of them from fighting, was able to get the daughter, and they ran over to their neighbor's house[,] which is also her brother's home.
A short time later[,] the defendant went to the brother-in-law's house and again got into another fight with . . . both victim[s]. He kicked the daughter in the back. An independent witness then saw that[ ] [and] ran to help the daughter. The defendant had the daughter by the hair at that time. His wife was in the house. The independent witness was able to break up the defendant from his daughter.
When the mom came outside, she then . . . spit in the defendant's face and started to yell at him. And then he grabbed her by the hair and began slapping her on the head at the brother-in-law's house.
The independent witness then told the defendant to leave, at which time he did, and the police were called.
The defendant has no prior criminal record other than these charges. And with regard to the injuries [inflicted] on [Michelle], she did complain of pain to her head area where her hair had been pulled and punched, and she did have small scratch marks on the inside of her right arm which she complained of pain to.
The family court accepted Dudoit's no contest pleas and turned to the issue of sentencing. The parties disputed whether the "repeat offender" provision of HRS § 709-906(5) applied to Count II. The family court continued the sentencing hearing in order to study the issue further. On February 6, 1998, the family court conducted a final hearing on the issue. After hearing further arguments, the family court ruled that, by employing the terms "first offense" and "second and any other subsequent offense," HRS § 709-906 applies to the commission of successive violations of the statute, rather than to convictions of such violations. Although the family court acknowledged that the legislative history of the statute, as amended, suggested that the legislature had intended the repeat offender provision of HRS § 709-906 to pertain to subsequent convictions, it concluded that the statutory language, as actually enacted, "failed relatively miserably" to achieve that end. Accordingly, the family court ruled that Count II of the complaint was a "second offense" for purposes of HRS § 709-906(5) and that it was "compelled to issue the 30 day sentence" with respect to that count. The family court sentenced Dudoit to probation for a period of one year, subject, as one condition of probation, to incarceration of forty-eight hours in conjunction with Count I and thirty days in conjunction with Count II.
The family court's judgment was filed on February 9, 1998. Dudoit timely appealed on March 9, 1998.(2)
II. STANDARDS OF REVIEW
A. Sentencing
"The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed." State v. Valera, 74 Haw. 424, 439, 848 P.2d 376, 383, reconsideration denied, 74 Haw. 650, 853 P.2d 542 (1993).
State v. Davia, 87 Hawai`i 249, 253-54, 953 P.2d 1347, 1351-52 (1998) (quoting State v. Cornelio, 84 Hawai`i 476, 483, 935 P.2d 1021, 1028 (1997) (quoting State v. Gaylord, 78 Hawai`i 127, 143-44, 890 P.2d 1167, 1183-84 (1995))). "An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Id. at 253, 953 P.2d at 1351 (citations and internal quotation marks omitted).
B. Interpretation Of A Statute
"[T]he interpretation of a statute . . . is a question of law reviewable de novo." State v. Arceo, 84 Hawai`i 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara, 81 Hawai`i 324, 329, 916 P.2d 1225, 1230 (1996) (citations omitted)). See also State v. Toyomura, 80 Hawai`i 8, 18, 904 P.2d 893, 903 (1995); State v. Higa, 79 Hawai`i 1, 3, 897 P.2d 928, 930, reconsideration denied, 79 Hawai`i 341, 902 P.2d 976 (1995); State v. Nakata, 76 Hawai`i 360, 365, 878 P.2d 669, 704, reconsideration denied, 76 Hawai`i 453, 879 P.2d 556 (1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095, 130 L.Ed.2d 1063 (1995).
Gray v. Administrative Director of the Court, 84 Hawai`i 138, 144, 931 P.2d 580, 586 (1997) (some brackets added and some in original). See also State v. Soto, 84 Hawai`i 229, 236, 933 P.2d 66, 73 (1997). Furthermore, our statutory construction is guided by established rules:
When construing a statute, our foremost obligation 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. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, "[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
Gray, 84 Hawai`i at 148, 931 P.2d at 590 (quoting State v. Toyomura, 80 Hawai`i 8, 18-19, 904 P.2d 893, 903-04 (1995)) (brackets and ellipsis points in original) (footnote omitted). This court may also consider "[t]he reason and spirit of the law, and the cause which induced the legislature to enact it . . . to discover its true meaning." HRS § 1-15(2) (1993). "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 upon in aid to explain what is doubtful in another." HRS § 1-16 (1993).
State v. Stocker, No. 21277, slip op. at 9-10 (Haw. Feb. 19, 1999) (quoting Ho v. Leftwich, 88 Hawai`i 251, 256-57, 965 P.2d 793, 798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai`i 217, 229-30, 953 P.2d 1315, 1327-28 (1998))).
III. DISCUSSION
A. The Repeat Offender Provision Of HRS § 709-906(5) Applies To The Commission Of Successive Violations Of HRS § 709-906 And Not Merely To Successive Convictions Of Such Violations.
The legislature added the "repeat offender" language to HRS § 709-906(5) in 1992. See 1992 Haw. Sess. L. Act 290, § 7 at 750 (hereinafter, "Act 290"). In addition to the amendment to HRS § 709-906, Act 290 also amended, inter alia, HRS §§ 580-10 (relating to permanent restraining orders), 586-4 (relating to temporary restraining orders), and 586-11 (relating to protective orders). To each of these statutes, Act 290 added a "repeat offender" provision similar to that added to HRS § 709-906. The relevant amendments to HRS §§ 580-10 and 586-4 provided in relevant part as follows: "For a first conviction . . . the person shall serve a mandatory minimum jail sentence of forty-eight hours [and] [f]or the second and any subsequent conviction . . . the person shall serve a mandatory minimum jail sentence of thirty days." Act 290, §§ 1 and 2 at 745-47 (emphasis in original deleted) (emphases added). The relevant amendment to HRS § 586-11 provided as follows:
(1) For a violation of the order for protection that occurs after a conviction for a violation of the same order, a violator shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours;
(2) For any subsequent violation that occurs after a second conviction for violation of the same order for protection, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days.
Id., § 6 at 749 (emphasis in original deleted) (emphases added). Thus, the three other "repeat offender" provisions created by Act 290 referred expressly to "conviction[s] for violation" of those statutes. By contrast, the amendments to HRS § 709-906(5) referred to "offenses." See supra note 1; see also Act 290, § 7 at 750.
The amendments to HRS § 709-906 were originally proposed in House Bill (H.B. No.) 3326. The House Judiciary Committee reported the purpose of the amendments as follows:
The nature of domestic abuse is such that ongoing violence is not uncommon and, in fact, has the great likelihood of becoming more serious and increasing in frequency. Your Committee understands that uniform sanctions applied in a graduated way in response to these serious offenses will deliver a strong message to the offenders, and compensate for any disparity in personal opinion or bias that may be held by an officer of the law or an officer of the court.
This bill was amended by making any person convicted of a second offense or any subsequent offense which occurs within one year of the previous offense to be termed a "repeat offender" for the purposes of sentencing and must serve a minimum jail sentence of thirty days.
Hse. Stand. Comm. Rep. No. 20-92, in 1992 House Journal, at 906 (emphasis added). When H.B. No. 3326 was sent to the Senate, it was consolidated, along with several other bills, into H.B. No. 3854, which had previously related only to temporary restraining orders. The Senate Judiciary Committee described its purpose in consolidating the bills as follows:
Your Committee . . . found this bill[, i.e., H.B. 3854,] to be an appropriate vehicle to consolidate several bills amending the provisions of chapter 586, a bill dealing with chapter 709 and a proposed amendment to chapter 580. These bills were thematically related and consolidation provided a better prospect of consistency. More specifically[,] the following bills were incorporated: H.B. 2605, H.D. 1 (§ 586-4 and -11), H.B. 3221, H.D. 1 (§ 585-5 and -6) and H.B. 3326, H.D. 1 (§ 709-906). In addition, a proposed amendment to section 580-10, Hawaii Revised Statutes was included.
. . . .
H.B. No. 3326, H.D. 1 proposed mandatory jail time, similar to the provision of H.B. No. 2605, H.D. 1 for abuse of a household member or refusal to comply with a lawful order of a police officer who is interceding in a domestic dispute. Your Committee amended the provisions of H.B. No. 3326[,] which were added to this bill to reflect the decisions made concerning the provisions taken from H.B. No. 2605, H.D. 1. Your Committee notes that this consistency is achieved at the cost of reducing the currently applicable penalties. Consistency was chosen, over maintaining the more stringent penalties in the current law, primarily to highlight the issue for closer scrutiny by the conference committee[,] which is virtually necessary on a bill of this complexity.
Sen. Stand. Comm. Rep. No. 2651, in 1992 Senate Journal, at 1181 (emphases added). The conference committee made further reference to the goal of "consistency": "This bill is used as a vehicle to consolidate several bills amending the provisions of Chapter 586, HRS, a bill dealing with Chapter 709, HRS, and a proposed amendment to Chapter 580, HRS. These bills are thematically related and consolidation provides a better prospect of consistency." Conf. Comm. Rep. No. 122, in 1992 House Journal, at 854 (emphasis added).(3)
Based on the foregoing legislative history, Dudoit argues that the legislature intended the "repeat offender" amendments to HRS §§ 580-10, 586-4, 586-11, and 709-906 to be "consistent," i.e., to have the same effect. Thus, Dudoit urges that the legislature's use of the terms "first offense" and "second or subsequent offense" in HRS § 709-906(5) was, essentially, an error; the legislature, he maintains, intended, instead, that all of the repeat offender provisions effected by Act 290 apply to second or subsequent convictions occurring after a first conviction. Dudoit further argues that the term "offense," as it appears in the statute, is ambiguous with respect to the question whether it refers to prior convictions or the commission of prior violations of the statute, and, in light of the above-described legislative intent, that it should be therefore construed in his favor.
As noted above, the family court agreed with Dudoit that the legislature had intended that the repeat offender provision of HRS § 709-906 be "consistent" with the repeat offender provisions of HRS §§ 580-10, 586-4, and 586-11, but, inasmuch as the legislature had "failed relatively miserably" to draft the statutes in a consistent manner, the family court concluded that it was constrained by the actual -- and plain and unambiguous -- language of HRS § 709-906. We agree with the family court's assessment.(4)
Contrary to Dudoit's suggestion, the meaning of the term "offense," as employed in HRS § 709-906, is plain and unambiguous. As the term is commonly understood, an offense is "a breach of the criminal laws," i.e., a "violation of law for which [a] penalty is prescribed." Black's Law Dictionary 1081 (6th ed. 1990).(5) A "conviction," by contrast, is "[t]he final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere[.]" Id. at 333.
The repeat offender sentencing enhancement contained in HRS § 709-906(5)(b) applies to "a second offense and any other subsequent offense that occurs within one year of the previous offense." (Emphasis added.) Dudoit asserts that "a charge does not become an 'offense' until after a conviction is obtained," citing to People v. Nees, 615 P.2d 690, 693 (Colo. 1980) (holding that "it is not known legally that an offense has been committed until there is a conviction"). In other words, Dudoit argues that a previous offense does not "occur" for purposes of HRS § 709-906(5)(b), until the defendant is convicted of that offense. However, an examination of HRS § 709-906 in pari materia with other sections of the Hawai`i Penal Code (HPC) belies Dudoit's premise.
In HRS § 701-101 (1993), the legislature prescribed the manner by which the comprehensive 1986 amendments to the HPC would be implemented. HRS § 701-101(1) provides as follows:
Except as provided in subsection (2), amendments made by Act 314, Session Laws of Hawaii 1986, to this Code do not apply to offenses committed before the effective date of Act 314, Session Laws of Hawaii 1986. Prosecutions for offenses committed before the effective date of Act 314, Session Laws of Hawaii 1986, are governed by the prior law, which is continued in effect for that purpose, as if amendments made by Act 314, Session Laws of Hawaii 1986, to this Code were not in force. For purposes of this section, an offense is committed before the effective date of Act 314 Session Laws of Hawaii 1986, if any of the elements of the offense occurred before that date.
(Emphases added.) In HRS § 701-101(1), therefore, the legislature unambiguously distinguished between the commission and prosecution of an offense and fixed the commission of an offense at the time when "any elements of the offense occurred." HRS § 701-102 (1993) provides in relevant part that "[n]o behavior constitutes an offense unless it is a crime or violation under this Code or another statute of this State." (Emphasis added.) Thus, HRS § 701-102 indicates that the HPC considers the behavior -- i.e., the culpable conduct -- itself to be the "offense," rather than a conviction that results from the culpable behavior. HRS § 701-107 (1993) provides in relevant part:
Grades and classes of offenses. (1) An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime. Crimes are of three grades: felonies, misdemeanors, and petty misdemeanors. . . .
(2) A crime is a felony if it is so designated in this Code or if persons convicted thereof may be sentenced to imprisonment for a term which is in excess of one year.
(Emphases added.) As the highlighted language indicates, HRS § 701-107 provides that one may be "convicted" of a "crime," which is a type of "offense."(6) In other words, the terms "offense" and "conviction" have distinct meanings, because there must first be an "offense" before there can be a "conviction." Finally, HRS § 701-108(4) (1993) provides in relevant part that "[a]n offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated." Thus, an offense "occurs" when the requisite conduct enumerated in the statutory elements of the offense, together with the requisite state of mind, have actually manifested themselves, rather than when they are adjudicated as having done so.
Construed together, HRS §§ 701-101, 701-102, 701-107, and 701-108 establish that the term "offense," as employed by the HPC, refers to the commission of the crime or violation(7) and not to the procedural events that transpire as a result of that commission, e.g., prosecution, conviction (upon adjudication of guilt), and sentencing. Accordingly, the plain meaning of "offense," as employed in HRS § 709-906(5), precludes an interpretation equating it with the term "conviction."
"[T]his court is . . . willing to look beyond the plain, obvious, and unambiguous language of a statute, the facial constitutionality of which is not at issue, for the purpose of ascertaining its underlying legislative intent, but only if a literal construction 'would produce an absurd and unjust result.'" State v. Buch, 83 Hawai`i 308, 326-27, 926 P.2d 599, 617-18 (1996) (Levinson, J., concurring and dissenting) (citing Sandy Beach Defense Fund v. City Council of the City and County of Honolulu, 70 Haw. 361, 773 P.2d 250 (1989), and Franks v. City and County of Honolulu, 74 Haw. 328, 843 P.2d 668 (1993)) (emphasis in original) (footnote omitted).(8) See also HRS § 1-15(3) (1993) (providing that "[e]very construction which leads to an absurdity shall be rejected").
. . . [I]n State v. Meyer, 61 Haw. 74, 595 P.2d 288 (1979), despite a clear and unambiguous legislative history -- as reflected in the relevant committee reports -- of an intent to accomplish a particular result in amending the drug laws, this court held, by virtue of the plain language of its statutory work product, that "the [l]egislature did not carry its intention into effect." Id. at 76, 595 P.2d at 290. Accordingly, the Meyer court quoted Queen v. San Tana, 9 Haw. 106, 108 (1893), which it analogized to HRS § 701-104 (1976),[(9)] for the following "principle of construction" that, in its view, remained "sound":
We cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. We do not legislate or make laws. Even where the Court is convinced in its own mind that the Legislature really meant and intended something not expressed by the phraseology of the Act, it has no authority to depart from the plain meaning of the language used.
Meyer, 61 Haw. at 77-78, 595 P.2d at 291 (emphasis added).
Buch, 83 Hawai`i at 325-26, 926 P.2d 616-17 (Levinson, J., concurring and dissenting) (some brackets added and some in original).
Dudoit appears to assert that it would be absurd to accord the plain meaning to the term "offense," as employed in HRS § 709-906(5)(b), because it would conflict with the policies generally underlying repeat offender sentencing provisions. In support, he cites this court's opinion in State v. Tavares, 63 Haw. 509, 630 P.2d 633 (1981), in which this court construed HRS § 706-606.5(1)(b) (Supp. 1980), which provided in relevant part, with respect to "any person convicted" of an enumerated list of offenses "who has a prior conviction for any of the . . . enumerated offenses," for enhanced sentencing as follows: "for each conviction after the first conviction," the offender should be sentenced to "a mandatory minimum period of imprisonment without possibility of parole during such period as follows: (a) Second conviction -- 5 years; (b) Third conviction -- 10 years." 63 Haw. at 510-11 n.1, 630 P.2d at 635 n.1 (emphases added). The issue before the Tavares court was whether it had been proper for the circuit court to consider the defendant's prior convictions resulting from a two-count indictment as two separate prior convictions for purposes of enhanced sentencing pursuant to HRS § 706-606.5. Id. at 511, 630 P.2d at 635. Holding that HRS § 706-606.5(1) was ambiguous "as to whether one conviction can be considered to have occurred 'after' another conviction where both have been rendered simultaneously in one trial," the Tavares court determined that the statutory language was susceptible to two interpretations:
One possible interpretation is that the legislature intended that each felony offense be committed after conviction for the preceding felony [in order] to warrant increased criminal penalties. Under this interpretation, convictions on several counts of an indictment which occur during the same trial would not be totalled up, but treated as "one" prior conviction. Another possible interpretation of the language of the statute is that a conviction on each count of an indictment represents a separate conviction for the purposes of adding up the number of convictions for sentencing. Under this interpretation, each conviction on a separate count would result in an enhanced criminal sentence.
Id. at 511-12, 630 P.2d at 635. The Tavares court then examined the case law of certain other jurisdictions and adopted the following statement of the general purpose of repeat offender sentencing statutes, as articulated by the Alaska Supreme Court in State v. Carlson, 560 P.2d 26 (Alaska 1977):
As the court pointed out, "[h]abitual criminal statutes are founded on the general principle that persistent offenders should be subject to greater sanctions than those who have been convicted once." [Carlson, 560 P.2d] at 28. Moreover, the court emphasized that the increased sanctions under habitual offender statutes are reserved for criminals who have been given an opportunity to reform following a conviction, but who persist in violations of the law. Id. at 28-29. As the court stated, the rationale for this sentencing approach is that a convicted criminal who has not taken advantage of the opportunity to reform and subsequently commits another crime is a worse offender than one who has committed several crimes prior to any conviction. Id. at 30.
Id. at 513-14, 630 P.2d at 636-37. Accordingly, the Tavares court held that "convictions on several counts of an indictment are to be treated as only one conviction for the purposes of section 706-606.5(1)." Id. at 515, 630 P.2d at 637.
Unlike the statute at issue in the present case, Tavares construed a statute that, by its express terms, pertained to the consequences of prior and subsequent convictions. See id. at 515, 630 P.2d at 637 (noting, in connection with the legislative history of HRS § 706-606.5, that "[t]he focus here is on the commission of an offense by a felon who has already been convicted."). Moreover, although the policy rationale articulated in Tavares may be sensible, the legislature could rationally have intended a somewhat different purpose in enacting HRS § 709-906(5).
The provisions of HRS § 709-906(5)(b) send a message to abusers that repeated violations of the statute will result in harsher sentences, regardless of when their convictions of those offenses have occurred. So construed, the statute's deterrent effect would derive from the constructive knowledge that all individuals are charged with possessing with respect to the content of the HPC. Cf. Commentary to HRS § 702-220 (1993) (noting that a "mistaken belief by the defendant that the defendant's conduct is not legally prohibited by the penal law . . . must, in most instances, be held . . . [to] afford no excuse . . . "); State v. Cavness, 80 Hawai`i 460, 468, 911 P.2d 95, 103 (App. 1996) (Kirimitsu, J., concurring and dissenting) (concluding that, in enacting HRS §§ 702-218 and 702-220, "the legislature eliminated generally the ignorance or mistake of law defense in order . . . [to] reflect the legal maxim, ignorance of the law excuses nobody" (footnote omitted)). Just as defendants are charged by the HPC with constructive knowledge of the possibility, for example, of consecutive sentences for multiple crimes, see Cornelio, 84 Hawai`i at 494-95, 935 P.2d at 1039-40 (holding that a sentence imposing consecutive prison terms must "embody[, inter alia,] the forward-looking aim of future crime reduction or prevention (the deterrent goal)" (citation and internal quotation signal omitted)), so too may they be charged with constructive knowledge of enhanced sentences for multiple violations. See, e.g., HRS §§ 706-661 (1993) and 706-662(4) (1993 & Supp. 1998). Given such constructive knowledge, it is arguably not unjust to penalize an offender who has violated HRS § 709-906 and who has failed to "take[] advantage of the opportunity to reform" since his last unpunished violation, regardless of when it was committed, in the same fashion as an offender who has already been convicted of and punished for his first violation prior to committing his second.
In any case, this court has subsequently rejected the Tavares court's reasoning. In Cornelio, we noted that the Tavares court had failed to heed the provision, set forth in HRS § 706-660.5 (as it existed at that time), that "[t]he sentencing court may impose the above sentences consecutive to any other sentence then or previously imposed on the defendant." 84 Hawai`i at 489-90, 935 P.2d at 1044-45 (emphases added). Cornelio reasoned as follows:
Notwithstanding its attractiveness as a policy matter, the Tavares analysis disregarded the very rules of statutory construction that it purported to apply. In particular, the Tavares court was able to perceive ambiguity in the plain meaning of HRS § 706-606.5 only by pointedly ignoring the statute's proviso that "[t]he sentencing court may impose the [mandatory minimum prison] sentences [prescribed therein] consecutive to any other sentence then . . . imposed on the defendant[.]" (Emphasis added.) In the face of the proviso, the only "possible interpretation" of the repeat offender statute was that "a conviction on each count of an indictment represents a separate conviction for the purposes of adding up the number of convictions for sentencing," such that "each conviction on a separate count [could] result in an enhanced criminal sentence." See Tavares, 63 Haw. at 512, 630 P.2d at 635. Had it therefore adhered to the "basic tenet of statutory interpretation" that "where the language of [a] statute is plain and unambiguous, construction by the court is inappropriate, and the court is bound to give effect to the law, according to its plain and obvious meaning," see id. at 511, 630 P.2d at 635, the Tavares court could not have "look[ed] beyond [the] express language of the statute . . . to the case law of other jurisdictions," as "extrinsic aids to [its] construction," for the purpose of holding that "convictions on several counts of an indictment are to be treated as only one conviction for the purposes of section 706-606.5(1)." See id. at 511-12, 515, 630 P.2d at 635-37.
84 Hawai`i at 491, 935 P.2d at 1036 (emphases and brackets in original) (footnote omitted). Because the legislature had amended HRS § 706-606.5 subsequent to Tavares in a manner essentially adopting that decision's approach to the statute, we perceived no need in Cornelio to expressly overrule Tavares, despite its faulty reasoning. Id. at 492, 935 P.2d at 1037.
It is therefore no surprise that, in State v. Ramela, 77 Hawai`i 394, 885 P.2d 1135 (1994), we reached a conclusion quite different from that of Tavares, in connection with our analysis of HRS § 712-1200(4) (Supp. 1992), a statute whose language mirrors, more closely than HRS § 706-606.5, the pertinent provisions of HRS § 709-906(5). In Ramela, the defendant
was arrested for six separate offenses of prostitution, two occurring on the same evening. Prior to these offenses, [the defendant] had no criminal convictions. At arraignment, she pled not guilty to each offense.
All of the offenses were consolidated for trial, at which time, [the defendant] indicated that she wished to change all of her pleas to guilty. Defense counsel stipulated that a factual basis existed for each charged offense and requested that [the defendant] be allowed to enter her guilty pleas in reverse chronological order, with sentencing to follow in the same manner.
77 Hawai`i at 394, 885 P.2d at 1135. Over the prosecution's objection, the district court accepted the defendant's pleas as proffered and therefore did not apply the repeat offender provisions of HRS § 712-1200(4) (Supp. 1992) to the defendant's sentence. Id. at 394-95, 885 P.2d at 1135-36. At that time, HRS § 712-1200(4) 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:
(a) For the first offense, a fine of $500 and the person may be sentenced to a term of imprisonment of not more than thirty days . . . .
(b) For any subsequent offense, a fine of $500 and a term of imprisonment of thirty days, without possibility of suspension of sentence or probation.
Id. at 395, 885 P.2d at 1136 (emphases added).
On appeal by the prosecution, this court construed the term "subsequent offense" as follows:
The word "subsequent" is defined as "[f]ollowing in time; coming or being later than something else; succeeding." Black's Law Dictionary 1427 (6th ed. 1990). Thus, in the context of HRS § 712-1200(4)(b), any offense occurring after the date of the first offense is a "subsequent offense." According to this plain interpretation, all of [the defendant's] offenses occurring after the date of the first offense are subsequent offenses subject to the mandatory sentence prescribed in subsection (b). Any other reading of HRS § 712-1200(4) would produce an absurd result, Franks, 74 Haw. at 341, 843 P.2d at 674, and contradict the obvious meaning of the statute. State v. Paaluhi, 70 Haw. 237, 240, 768 P.2d 235, 237 (1989).
Id. at 395-96, 885 P.2d at 1135-36 (emphasis in original). Because we were satisfied that an absurd result could only be avoided by employing the "plain meaning" approach to the construction of the term "subsequent offense," we noted in Ramela that resort to the legislative history was "not necessary to our analysis," although we observed, in a footnote, that the legislative history supported our construction. Id. at 396 n.3, 885 P.2d at 1136 n.3. See also State v. Simpson, 9 Haw. App. 165, 827 P.2d 1156 (1992) (holding that a second offense was "subsequent," for purposes of HRS § 712-1200(4), inasmuch as it was "'subsequent,' in terms of both commission and ascertainment of guilt," notwithstanding that the two convictions had occurred simultaneously in the course of the same proceeding).
Likewise, because the plain meaning of the term "offense," as employed in HRS § 709-906(5)(b), does not lead to an absurd or unjust result, this court is constrained to abide by that meaning in construing the statute in the present case.
In noting that an offense is committed at the time its elements occur, however, we do not mean to imply that a prior offense may be proved, for purposes of enhancing the sentence of a "second" or "subsequent" offense, in a manner other than through evidence of a conviction of the prior offense. In the matter before us, the issue is not directly implicated, inasmuch as the two offenses relevant to our analysis were adjudicated simultaneously in the same court by way of no contest pleas, thereby obviating the need for actual proof of the initial offense. See State v. Merino, 81 Hawai`i 198, 215-19, 915 P.2d 672, 689-93 (1996). In any event, we agree with Dudoit and the Colorado Supreme Court that "it is not known legally that an offense has been committed until there is a conviction." Nees, 615 P.2d at 693. Accordingly, in order to prove a prior offense in order to justify an enhanced sentence for a "second" or "subsequent" offense pursuant to HRS § 709-906(5), the prosecution must adduce evidence of a conviction of the prior offense.(10)
B. The Repeat Offender Provision Of HRS § 709-906(5)(b) May Be Applied To "Offenses" "Occurring" On The Same Day.
Dudoit next argues, by analogy to Ramela, that "offenses must occur on separate dates to constitute separate offenses" for purposes of HRS § 709-906(5)(b). Dudoit focuses on the Ramela court's use of the phrase "any offense occurring after the date of the first offense." Id. at 395, 885 P.2d at 1135 (emphasis added).
Neither HRS §§ 712-1200(4) nor 709-906(5) makes any express mention of the "date" of a "second" or "subsequent" offense for purposes of the application of the relevant repeat offender provision. Moreover, neither statute provides any indication that the legislature intended to require "subsequent" offenses to occur on different days.
In Ramela, it was not analytically necessary to address the question whether a second offense occurring on the same day as the first constitutes a "subsequent" offense. The offenses that "follow[ed] in time" in that case were committed after the date of the first offense.(11) Thus, our use of the phrase "after the date" in Ramela, somewhat inartful as it may have been, merely reiterated what we had already held in the preceding sentence -- that a "subsequent" offense is one "coming or being later than" a prior offense. To the extent that our language in Ramela implied anything beyond that straightforward proposition, we hereby clarify that HRS § 712-1200(4) does not require that a "subsequent" offense occur on a separate day.
Likewise, inasmuch as the language of HRS § 709-906(5) provides no indication that a "second" or "subsequent" offense cannot occur on the same day as the "first offense," we reject Dudoit's invitation to impose such an arbitrary rule.
C. The Brief Interval Separating The "Offenses" In The Present Case Does Not Preclude The Application Of HRS § 709-906(5)(b).
As a final matter, Dudoit argues, by analogy to Ramela and Tavares, that multiple violations of HRS § 709-906 committed as part of the same incident do not constitute "second" or "subsequent" offenses for purposes of HRS § 709-906(5)(b). Like the term "offense," the adjectives "second" and "subsequent," which modify that term in HRS § 709-906(5)(b), are plain and unambiguous. See supra section III.A; Ramela, 77 Hawai`i at 395, 885 P.2d at 1136. Dudoit argues, however, that the simultaneity of his commission of the two charged offenses would render absurd and unjust the application of the repeat offender provision to him.
Both Dudoit and the dissent place an unwarranted spin on the prosecution's offer of proof by arguing that Dudoit's attacks on Josette and Michelle "took place virtually simultaneously." Dissenting opinion at 10. In fact, the prosecution represented that, after Dudoit inflicted several blows upon Josette and Michelle, Josette "intervened, stopped [Dudoit and Michelle] from fighting, was able to get [Michelle,] and they ran over to their neighbor's house[.]" Dudoit rekindled the confrontation "[a] short time later," when he went to the neighbor's home and "got into another fight with . . . both victim[s]." (Emphasis added.) Apparently encountering Michelle outside of the neighbor's house, Dudoit again kicked her and grabbed her hair while "[Josette] was in the house." Josette then came outside and spat on the defendant, provoking him to "grab[] her hair and . . . slap[] her on the head[.]" Although the record does not reflect the particular blows upon which the family court relied in accepting Dudoit's no contest pleas,(12) the family court could thus have legitimately selected blows that were separated by a significant interval. Accordingly, Dudoit's offenses could hardly be deemed "simultaneous." That being the case, we hold that the offense charged in Count II was "subsequent" to the offense charged in Count I, within the plain meaning of HRS § 709-906(5)(b).
Lastly, Dudoit argues, pursuant to Tavares, that he did not have time to "reform himself" between the commission of the two offenses and that application of HRS § 709-906(5)(b) to him would therefore be unjust. However, as discussed supra in section III.A, the legislature could rationally have determined that multiple offenders should be more severely punished for their successive violations regardless of whether they have had the "benefit" of an intervening conviction to nudge their consciences.
We hold that the family court did not abuse its discretion in applying the repeat offender provision of HRS § 709-906(5)(b) to Count II of the complaint.
IV. CONCLUSION
Based on the foregoing analysis, we affirm the family court's judgment, guilty conviction, and sentence.
On the briefs:
John N. Ikenaga, Deputy Public
Defender, for the defendant-
appellant Mervin Dudoit, Jr.
James W. Hupp, Deputy
Prosecuting Attorney, for
the plaintiff-appellee
State of Hawai`i
1. On September 14, 1997, the date on which the alleged offenses took place, HRS § 709-906 provided in relevant part:
Abuse of family and household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). . . .
For the purposes of this section, "family or household member" means spouses, former spouses, reciprocal beneficiaries, former reciprocal beneficiaries, parents, children, and persons jointly residing or formerly residing in the same dwelling unit.
. . . .
(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and
(b) For a second offense and any other subsequent offense that occurs within one year of the previous offense, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days.
(6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence treatment and counseling programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court ordered counseling.
(Emphases added.)
2. We note that,
[g]enerally, a guilty plea made voluntarily and intelligently precludes a defendant from later asserting any nonjurisdictional claims [on appeal], including constitutional challenges to the trial proceedings. Although the defendant may still challenge the sufficiency of the indictment or other like defects bearing directly upon the government's authority to compel the defendant to answer to charges in court, claims of nonjurisdictional defects in the proceedings, such as unlawfully obtained evidence and illegal detention, will generally not survive the plea. A plea of nolo contendere is equivalent to a plea of guilty in terms of waiving alleged nonjurisdictional defects.
State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990) (citations omitted). See also State v. Domingo, 82 Hawai`i 265, 921 P.2d 1166 (1996) (following Morin). However, inasmuch as sentence is determined after a plea is accepted, and (absent a prior agreement between the parties) a defendant cannot know what sentence will be imposed, a plea of no contest or guilty does not constitute a waiver of an appeal of the sentence on the grounds that it is illegal. See State v. Johnson, 459 So.2d 1316, 1319 (La. Ct. App. 1984) (Crain, J., concurring) ("[A] guilty plea coupled with an agreed upon sentence that is made part of the record waives [the] right to appellate review of the sentence, but where there is no specific agreement in the record as to [the] sentence[,] it will be reviewed on appeal." (Citations omitted.)); State v. Carroll, 662 N.E.2d 65, 69-70 (Ohio Ct. App. 1995) (holding that an express waiver of the right to appeal the sentence was invalid because the trial court had failed properly to advise the defendant and that the defendant therefore did not waive his right to appeal the legality of his sentence); People v. Crum, 572 N.Y.S.2d 25, 26 (N.Y. App. Div. 1991) ("Since the defendant did not expressly waive the right to appeal his sentence on the plea, nor was this issue mentioned at his plea hearing, we find that his right to appeal the sentence was not waived." (Citations omitted.)); Commonwealth v. Myers, 392 A.2d 685, 687 (Pa. 1978) ("[W]hen a defendant enters a plea of guilty, he waives his right to challenge on appeal all nonjurisdictional defects except the legality of his sentence and the validity of his plea." (Emphasis added.) (Citations omitted.)).
There is no indication in the record that Dudoit's changes
of plea entailed either an agreement regarding the sentence to be
imposed or an express waiver of Dudoit's right to appeal his
sentence. Accordingly, Dudoit did not waive his right to bring
the present appeal.
3. As the prosecution points out, HRS § 709-906 was again
amended in 1998. See 1998 Haw. Sess. L. Act 172, § 8 at 645-47.
Among the changes effected by Act 172 was the addition of the
following sentences to HRS § 709-906(5):
Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.
1998 Haw. Sess. L. Act 172, § 8 at 646 (emphasis in original deleted) (emphasis added). Act 172 also added a new subsection (7) to HRS § 709-906, providing as follows: "For any subsequent offense occurring within two years after a second misdemeanor conviction, the person shall be charged with a class C felony." Id., § 8 at 647 (emphasis in original deleted) (emphases added).
As the prosecution observes, the legislature employed the
term "conviction" in close proximity to its use of the term
"offense" in its 1998 amendments to HRS § 709-906, to the extent
of juxtaposing both the terms "offense" and "conviction" in the
same sentence in HRS § 709-906(7), thereby indicating that the
terms carried different meanings. Cf. State v. Medeiros, No.
20778, slip op. at 14-15 (Haw. Jan. 11, 1999) (holding that,
where the terms "may" and "shall" "are used in the same statute,
especially where [they] are used in close juxtaposition, we infer
that the legislature realized the difference in meaning and
intended that the verbs used should carry with them their
ordinary meanings" (quoting Gray, 84 Hawai`i at 149, 931 P.2d at
591 (quoting In re Tax Appeal of Fasi, 63 Haw. 624, 626-27, 634
P.2d 98, 101 (1981) (citations omitted))) (brackets in
original)). However, the 1998 amendments do not apply to Dudoit
in the present case because they became effective after the date
of his alleged violations of HRS § 709-906. See supra note 1.
This court employs subsequent legislative history only "to
confirm its interpretation of an earlier statutory provision."
Macabio v. TIG Ins. Co., 87 Hawai`i 307, 317, 955 P.2d 100, 110
(1998) (citation and internal quotation marks omitted) (emphasis
added). The legislature cannot change the intent behind a
statute through subsequent amendments that do not have
retroactive effect. Accordingly, inasmuch as the 1992
legislative history clearly suggests an intent contrary to that
which the prosecution asserts is reflected in the 1998 amendment,
the 1998 amendment is of little assistance for present purposes.
4. Because we deem the language of HRS § 709-906 to be
plain and unambiguous, the present case is distinguishable from
this court's recently published opinion in State v. Mattiello,
No. 21187, slip op. (Haw. Mar. 16, 1999). In Mattiello, this
court held that a facial conflict existed between the language of
HRS § 712-1240 (1993), which provided in relevant part that, "as
applied to liquids," "'[o]unce' means . . . a fluid ounce," which
is a measure of volume rather than of weight, and the phrase "[a]
person commits the offense of promoting a dangerous drug in the
first degree if the person knowingly . . . distributes . . . one
or more . . . mixtures . . . of an aggregate weight of . . .
three-eighth ounce or more, containing any other dangerous drug,"
as employed in HRS § 712-1241(1)(b)(ii)(B) (1993). (Emphasis
added.) This court held that "the juxtaposition of the words
'weight' and 'ounce' in HRS § 712-1241(1)(b)(ii)(B) injects some
ambiguity into the meaning of the term 'ounce.'" Mattiello, slip
op. at 15.
Although the legislative history appears to be at odds with
the plain meaning of the statutory language in the present case,
see infra, there is no facial incongruity in the statutory
language itself. Accordingly, there is no ambiguity of the kind
noted in Mattiello.
5. Dudoit points out that Black's Law Dictionary also
defines "[s]econd offense" as "[o]ne committed after conviction
for a first offense. It is the previous conviction, and not the
indictment, which is the basis of the charge of a second offense.
People v. Boardman, 172 App. Div. 733, 159 N.Y.S. 577 [(1916)]."
Black's Law Dictionary at 1081. Boardman, however, construed a
very different statute. As the Boardman court noted, "the court
is required by section 1941 of the Penal Law to act in imposing a
sentence for a second conviction upon proof of a prior conviction
alone." 159 N.Y.S. at 578.
6. The dissent misapprehends the implication of our
observation in this regard, apparently concluding that, because
one may be convicted of a crime, which is defined as a type of
offense, "a conviction is merely a type of offense." Dissenting
opinion at 9. On the contrary, HRS § 701-107 divides "offenses"
into two categories: "crimes" and "violations." "Crimes" are
further subdivided in HRS §§ 701-107 (1) through (4) into
"felonies," "misdemeanors," and "petty misdemeanors." Conviction
is a consequence of committing a "crime" or "violation," not a
type of "crime" or "violation."
7. HRS § 701-107(5) provides in relevant part:
An offense defined by this Code or by any other statute
of this State constitutes a violation if it is so designated
in this Code or in the law defining the offense or if no
other sentence than a fine, or fine and forfeiture or other
civil penalty, is authorized upon conviction or if it is
defined by a statute other than this Code which provides
that the offense shall not constitute a crime. . . .
8. The dissent appears to assert that the language of a
statute, no matter how plain and unambiguous, may be trumped by
indications of a contrary meaning derived from legislative
committee reports. However, as Justice Ramil himself aptly
observed, as author of this court's opinion in State v. Richie,
88 Hawai`i 19, 30, 960 P.2d 1227, 1230 (1998), "[i]t is a
cardinal rule of statutory interpretation that, where the terms
of a statute are plain, unambiguous and explicit, we are not at
liberty to look beyond that language for a different meaning.
Instead, our sole duty is to give effect to the statute's plain
and obvious meaning." (Quoting Alvarez v. Liberty House, Inc.,
85 Hawai'i 275, 278, 942 P.2d 539, 542 (1997) (quoting Ross v.
Stouffer Hotel Co. (Hawai'i) Ltd., Inc., 76 Hawai'i 454, 461, 879
P.2d 1037, 1044-45 (1994))). See also Konno v. County of
Hawai`i, 85 Hawai`i 61, 71, 937 P.2d 397, 407 (1997) ("[W]here
the language of the statute is plain and unambiguous, our only
duty is to give effect to its plain and obvious meaning."
(Quoting State v. Toyomura, 80 Hawai`i 8, 18, 904 P.2d 893, 903
(1995) (quoting Housing Finance & Dev. Corp. v. Castle, 79
Hawai`i 64, 76, 898 P.2d 576, 588 (1995))); Bumanglag v. Oahu
Sugar Co., Ltd., 78 Hawai`i 275, 280, 892 P.2d 468, 473 (1995)
(same) (citing State v. Mezurashi, 77 Hawai`i 94, 97, 881 P.2d
1240, 1243 (1994) (citing AIG Hawaiian Ins. Co. v. Estate of
Caraang, 74 Haw. 620, 634, 851 P.2d 321, 328 (1993))); Ing v.
Acceptance Ins. Co., 76 Hawai`i 266, 270, 874 P.2d 1091, 1095
(1994) (same) (citing Caraang, 74 Haw. at 634, 851 P.2d at 328);
Kunhert v. Allison, 76 Hawai`i 39, 44, 868 P.2d 457, 462 (1996)
(same) (citing Caraang, 74 Haw. at 634, 851 P.2d at 328);
Lealaimatafao v. Woodward-Clyde Consultants, 75 Haw. 544, 551,
867 P.2d 220, 224 (1994) (same) (citing Caraang, 74 Haw. at 634,
851 P.2d at 328).
9. HRS § 701-104 (1993), which has never been
amended, provides:
Principles of construction. The provisions of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.
Buch, 83 Hawai`i at 325-26 n.3, 926 P.2d 616-17 n.3 (Levinson,
J., concurring and dissenting).
10. The conviction constitutes the adjudicated proof that
the prior offense, in fact, occurred. As discussed supra,
however, the date of the prior offense is the date on which the
elements of the prior offense occurred and not the date of
conviction. To use the present case as an example, Dudoit was
convicted in connection with his attack on Josette on February 9,
1998, when the family court's judgment was filed. However, the
offense occurred on September 14, 1997, when Dudoit actually
attacked Josette.
11. Although two of the offenses at issue in Ramela were
committed on the same evening, it is clear that they were not the
defendant's first and second offenses, inasmuch as we expressly
vacated "the sentences for each of Ramela's six offenses."
Ramela, 77 Hawai`i at 396, 885 P.2d at 1137. Had the first two
offenses occurred on the same day, and had we meant to impose a
rule that offenses occurring on the same day cannot be considered
"subsequent" for purposes of the repeat offender provision of HRS
§ 712-1200(4), we would have vacated only four of the defendant's
sentences.
12. We note that this court's opinion in State v. Arceo, 84
Hawai`i 1, 928 P.2d 843 (1996), is not implicated here, inasmuch
as no jury was involved and Dudoit acquiesced in all of the
prosecution's representations regarding the events material to
his offenses. Moreover, Hawai`i Rules of Penal Procedure (HRPP)
Rule 11(f) (1996) does not require that a no contest plea be
supported by a "factual basis." Merino, 81 Hawai`i at 215-19,
915 P.2d at 689-93.