DISSENTING OPINION OF ACOBA, J.
I respectfully dissent.
I.
State v. Sylva, 61 Haw. 385, 605 P.2d 496 (1980), left no doubt that any adjudicated violation of a criminal law by a minor does not constitute a conviction for adult sentencing purposes.(1) More egregious circumstances existed in Sylva than those in the present case. There the defendant had no adult criminal record but had been adjudicated a juvenile law violator in forty-two "offenses and had been committed to Koolau Boys Home." Id. at 386, 605 P.2d at 497. In holding that the trial court had erred in "statutorily disqualif[ying] the adult defendant [from] a [deferred acceptance of guilty (DAG)] plea because of his juvenile record," the supreme court dismissed out of hand the proposition that family court adjudications could be considered "convictions." Id. The DAG plea statutory provisions
involved were Hawaii Revised Statutes (HRS) § 853-4(6), (7), and (8) (1976 Repl.), which stated as follows:
(6) The defendant has been convicted of any offense defined as a felony by the [Hawaii] Penal Code or has been convicted for any conduct which if perpetrated in this state would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of an offense defined as a felony by the [Hawaii] Penal Code or for any conduct which if perpetrated in this state would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction.
Id. at 387, 605 P.2d at 497-98 (emphases added). The supreme court concluded that "subsections (6) and (8) do not apply [to disqualify the defendant] because [he] has had no prior conviction." Id., 605 P.2d at 498 (footnote omitted). In explaining this conclusion, the supreme court cited HRS § 571-1 of HRS chapter 571 which pertains to the family courts, and quoted it as follows:
This [HRS] chapter [571] creates within this State a system of family courts and it shall be a policy and purpose of said courts to conduct all proceedings to the end that no adjudication by the court of the status of any child under this chapter shall be deemed a conviction; . . . .
Id. at 387 n.1, 605 P.2d at 498 n.1 (emphasis added). Thus, nothing could be more explicit under the mandatory language of HRS § 571-1 (1993) and as applied by the supreme court in Sylva than that no juvenile adjudication by the family court shall be considered a conviction.
The paramount effect of HRS § 571-1 was implicitly confirmed in the supreme court's construction of subsection (7). On its face, that section appeared to disqualify from DAG plea consideration, any adult defendant who had engaged in felonious conduct while a juvenile. However, the supreme court rejected the State's position that "subsection (7) disqualifies [the defendant] from the benefit of a DAG plea because his juvenile record consisted of offenses which would have been felonies if committed by an adult." Id. at 387, 605 P.2d at 498. Reading subsection (7) "in context of subsections (6) and (8) and the purposes of [HRS c]hapter 853," the supreme court limited subsection (7) "to only those cases involving minors [who] . . . were waived from the family courts to the criminal courts to be tried as adults pursuant to HRS § 571-22." Id. at 389, 605 P.2d at 499 (emphasis added). Thus, under the rationale adopted by the supreme court, juvenile adjudications in the family court were not a basis for disqualifying adult eligibility for DAG pleas. The limited exception allowed by the supreme court in subsection (7) applied only when the minor's status was legally converted to adult status under a waiver proceeding. See In re Doe, 57 Haw. 413, 414 n.1, 558 P.2d 483, 484 n.1 (1976) (stating that a "waiver proceeding does not involve adjudication, or even consideration, of guilt or innocence of the accused, and a waiver order is not the functional equivalent of a sentence or order of probation by a criminal court").
That the noncriminal nature of proceedings against minors is inviolate even where concurrent jurisdiction over juvenile law violations is conferred on the district court was confirmed in State v. Buckman, 70 Haw. 328, 770 P.2d 418 (1989). There, the defendant was arrested for two traffic offenses, driving without a license and driving while intoxicated, when she was a juvenile. Id. at 328, 770 P.2d at 418. The district court which had concurrent jurisdiction of the case under HRS § 571-41(f) sentenced the defendant, who had turned eighteen years of age and therefore was of adult age, to thirty days in jail for driving without a license. Id.
The supreme court reversed the sentence because "the district court . . . acted outside the limits of its concurrent jurisdiction in sentencing [the defendant] to serve a jail sentence for a traffic offense committed while she was still a minor." Id. at 331, 770 P.2d at 421. It reasoned that under HRS § 571-41(f), "[t]he exercise of jurisdiction over children by [the] district court shall . . . be considered noncriminal in procedure and result in the same manner as though the matter had been adjudicated and disposed of by a family court." Id. The supreme court observed that
[t]he noncriminal nature of family court proceedings accords with "the philosophy and approach of this specialized court [which] is based upon the principle that the state has a responsibility to protect . . . children[.]" Hse. Stand. Comm. Rep. No. 130, in 1965 House Journal, at 550. To allow the district court to impose a sentence of imprisonment upon a minor would be contrary to this philosophy and violative of HRS § 571-41(f).
Id. at 331, 770 P.2d at 420 (emphasis added). See also In re Doe, 86 Hawaii 517, 521-22, 950 P.2d 701, 705-06 (App. 1997) (holding that family court had no jurisdiction to sentence the defendant to an adult correctional facility because defendant was a juvenile at the time of the offense and an adjudicated law violator may be transferred to an adult facility only if he or she disrupts the order of a youth correctional facility as provided under HRS § 352-28 (1993)).
The foregoing rebuts the majority's conclusion that the position of Defendant-Appellant Jonathan Riveira (Defendant) "is simply the obverse of the position rejected in Sylva," majority opinion at 20; Sylva in fact affirmed the plain language of HRS § 571-1 which prohibits treating juvenile adjudications as convictions. Buckman similarly reaffirmed the noncriminal nature of juvenile proceedings.
II.
It is necessary to establish that the issue here is not one of maximizing access to sentencing information as the majority poses it. Therefore, I regard Sylva as standing for more than "the limited proposition that the more lenient disposition not be categorically foreclosed" as the majority contends. That proposition obfuscates the distinction between judicial authority to impose a sentence and judicial discretion to choose from among various sentencing alternatives.
In Sylva, the supreme court concluded that as a matter of law, the statutory language in subsections (6), (7), and (8) deprived the trial court of any discretion to treat juvenile adjucations as a disqualifying factor. Sylva, 61 Haw. at 387-89, 605 P.2d at 498-99. That point was distinguished from the trial court's discretion to consider "all kinds of factors . . . past record, age of defendant," id. at 386, 605 P.2d at 497, in determining whether to "deny or accept DAG pleas," the exercise of which was subject to review only for abuse. Id. at 390, 605 P.2d at 499.
State v. Nobriga, 56 Haw. 75, 527 P.2d 1269 (1974), was no different. There, it was said that "sufficient and accurate information" was "necessary" for the sentencing court "[i]n any system which vests discretion in the sentencing authority . . . so that it may rationally exercise its discretion." Id. at 81, 527 P.2d at 1273 (emphasis added).
I have no quarrel with this principle.
However, the question here is not one involving the exercise of sentencing discretion, but is purely one of statutory construction because it must be determined whether Defendant was legally amenable to the sentence imposed in the first place. An examination of the no-fault insurance statutes involved demonstrate quite clearly that we are faced with a question of legal interpretation, not sentencing discretion.
III.
In pertinent part, the relevant no-fault statutes state as follows:
Conditions and operation and registration of motor vehicles. (a) . . . no person shall operate or use a motor vehicle upon any public street, road or highway of this State at any time unless such motor vehicle is insured at all times under a no-fault policy.
HRS § 431:10C-104 (Supp. 1997).
Penalties. (a)(1) Any person . . . in the capacity of the operator . . . of a motor vehicle . . ., who violates any applicable provision of this article, shall be subject to citation . . . .
(2) Notwithstanding any provision of the Hawaii Penal Code:
. . . .
(B) If the person is convicted of not having had a no-fault policy in effect at the time the citation was issued, the fine shall be $500 for the first offense and a minimum of $1500 for each subsequent offense that occurs within a five-year period from any prior conviction; provided that the judge:
(i) Shall have the discretion to suspend the fine . . ., grant community service in lieu of the fine, . . . for the first offense, . . . and . . . for the second offense; and
(ii) May grant community service in lieu of the fine for subsequent offenses . . . .[(2)]
HRS § 431:10C-117 (emphases added).
Plainly, before imposing sentence under HRS § 431:10C-117(2)(b), the court must first determine a factual issue (which in this appeal is also raised as a legal one): whether there was a conviction either in a "first offense" or "any prior conviction" in the event of subsequent offenses. If it is determined, legally and factually, that there was a conviction, then the statute vests the court with the sentencing discretion envisioned in Nobriga. Such discretion would entail selecting from the menu of options set forth in 431:10C-117(2)(B)(i) and (ii) -- whether the fine should exceed $1500,(3) should be suspended, or should be converted into community service. Cf. Nobriga, 56 Haw. at 77, 527 P.2d at 1271 (stating that in the sentencing process "the presiding judge is no longer dealing with the process of determining factual issues, . . . but rather must concern himself [or herself] with imposing a fair, proper and just sentence").
It is at the point at which the court determines as a matter of law and fact that there was a conviction and not before, that "the well established rule that an adult defendant's juvenile record may be considered for purposes of sentencing," majority opinion at 17, becomes relevant. Access to the juvenile history of Defendant hence does nothing to resolve the legal question of whether a juvenile adjudication, in light of express language in HRS § 571-1, can be treated as a conviction for adult sentencing purposes under HRS § 431:10C-117(2)(b). Thus, the majority's rail against a "person's first violation . . . as an adult . . . be[ing] deemed a first offense, regardless of the person's history of violat[ions] . . . as a juvenile[,]" majority opinion at 17, does nothing to advance our analyses. As was illustrated in Sylva, the number of prior law violations committed by a juvenile does not dictate whether the courts should pronounce the resulting adjudications convictions. It is after all the law which we must construe and apply.
IV.
Under the reasoning adopted by the majority, a juvenile adjudication must be treated as a criminal conviction. In my opinion, this is not only violative of the provisions in HRS chapter 571 (1993) but a rejection of the juvenile family court system altogether.
The public purpose and policy of HRS chapter 571, which we are bound to apply, affirms in concise and lucid terms the non-criminal nature of family court proceedings involving minors:
The chapter creates within this State a system of family courts . . . . The court shall conduct all proceedings to the end that no adjudication by the court of the status of any child under this chapter shall be deemed a conviction; no such adjudication shall impose any civil disability ordinarily resulting from conviction; no child shall be found guilty or be deemed a criminal by reason of such adjudication; no child shall be charged with [a] crime or be convicted in any court except as otherwise provided in this chapter; and all children found responsible for offenses shall receive dispositions that provide incentive for reform or deterrence from further misconduct, or both. . . . Any evidence given in any case under section 571-11 shall not in any civil, criminal, or other cause in any court be lawful or proper evidence against the child for any purpose whatever [sic] except in subsequent cases involving the same child under section 571-11.
HRS § 571-1 (emphases added). HRS § 571-11(1) states, in part:
Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in proceedings:
(1) Concerning any person who is alleged to have committed an act prior to achieving eighteen years of age which would constitute a violation or attempted violation of any federal, state, or local law or municipal ordinance. . . .
(Emphases added.) Without qualification, then, HRS § 571-1 directs that "no adjudication by the [family] court of the status of any child under the chapter [571] shall be deemed a conviction." Correspondingly, HRS § 571-1 also mandates that "no child shall be found guilty or be deemed a criminal by reason of such adjudication." Accordingly, any juvenile adjudication, including that for a no-fault insurance violation, by definition, is not a conviction.
In addition to the foregoing precepts, HRS § 571-1 instructs that any evidence used in law violation proceedings "shall not in any . . . criminal . . . cause in any event be lawful or proper evidence against the child for any purpose whatever [sic] except in subsequent cases involving the same child under section 571-11." The plain import of this provision is that any evidence of no-fault insurance violations may only be used as evidence in subsequent family court proceedings. Evidence of such violations, therefore, cannot be offered as evidence "for any purpose whatever [sic]" in any court.
V.
The majority's decision rests simply on the absence of language excluding juveniles from the penalty provisions of HRS § 431:10C-117(a)(2)(B). Majority opinion at 16. But in this sense, HRS § 431:10C-117(a)(2)(B) is no different from innumerable other criminal statutes which lack an exclusionary clause for juvenile adjudications. Under the HRS chapter 571 scheme adopted for juvenile proceedings, express exclusions are not required in the various other statutes because the subject of juvenile adjudications is expressly governed by the terms of general applicability employed in HRS § 571-1. Therefore, it is not the absence of exclusionary language that would subject juvenile adjudications to the same standard as adult convictions, but rather, the presence of express language to that effect which would require us to construe HRS § 431:10C-117 as an exception to the convictions prohibition in HRS § 571-1.(4)
VI.
Because HRS chapter 571 announces the State's policy on juvenile adjudications, in the absence of any specific language in a statute to the contrary, the provisions in that chapter should control any questions as to their treatment. There is no reference to HRS chapter 571 in HRS § 431:10C-117(a)(2). There is nothing in the no-fault statute which expresses any intent to carve out an exception to the policy set forth in HRS § 571-1. We may assume the legislature is cognizant of HRS chapter 571, and if it had intended to exclude juvenile adjudications in no-fault insurance cases from the provisions of HRS § 571-1, it would have explicitly said so. Marsland v. Pang, 5 Haw. App. 463, 485, 701 P.2d 175, 192, cert. denied, 67 Haw. 686, 744 P.2d 781 (1985) (stating "we must . . . assume that the legislature was aware of the state of the law . . . at [the time it legislated]"); see Keliipuleole v. Wilson, 85 Hawaii 217, 225, 941 P.2d 300, 308 (1997) (stating that in a declaratory judgment and injunctive relief action, "[p]resumably the legislature was aware of the status of the law and the policies of the [agency], yet declined to amend the statute").
Under the logic employed by the majority, every criminal sentencing statute can be similarly construed, absent specific language which would unnecessarily reiterate what is already set forth in HRS § 571-1. I see no basis for inferring, as the majority does, that the lack of exclusionary language evidences a legislative intent to override the plain pronouncement in HRS § 571-1 against treating juvenile adjudications as convictions.
VII.
It only remains to consider the majority's collateral contentions.
The majority challenges what is not challenged by Defendant. It is not questioned that juvenile drivers are subject, like adult drivers, to no-fault insurance requirements, as it is not challenged that juveniles are subject to the same proscriptions against criminal conduct that restrict adults. But as with the violation of other criminal statutes, a juvenile's violation of the no-fault insurance requirement is by virtue of HRS § 571-1, treated as non-criminal in nature. In that regard, sanctions are imposed by the family court including those aimed at "deterrence from further misconduct." HRS § 571-1.
There are no facts in the record to support the majority's speculation that following the dictates of HRS § 571-1 would mean "the deterrent effect of stepladder sanctions is completely lost[]" upon an adult. Majority opinion at 17. But more fundamentally, the majority's contention that HRS § 571-1 "virtually immunizes juveniles against any significant penalties under [the] no-fault insurance law[,]" majority opinion at 18, begs again the question of whether a juvenile adjudication is intended to be treated as a conviction. As in other criminal cases, juveniles are not subjected to the same "penalties" as are adults because where minors are involved, HRS § 571-1 governs. The relevant standard in such cases, therefore, is not "stepladder sanctions," but the prescription that "all children found responsible for offenses shall receive dispositions that provide incentive for reform or deterrence from further misconduct or both." HRS § 571-1.
The majority denigrates Defendant's legal arguments as "a series of absurdities." See Majority opinion at 16.
In what it labels as the "ultimate absurdity," the majority postulates that "[n]o juvenile could ever be subject to any fine . . . because the . . . fine for a first offense is itself conditioned upon the person first being 'convicted.'" Majority opinion at 18. This statement assumes the answer to the question at hand. Assuredly no minor could be subjected to HRS § 431:10C-117 because by virtue of HRS § 571-1, a minor's violation does not result in conviction; one can find fault with this proposition only if he or she is already committed to the unstated assumption that minors should be subjected to the same sanctions as adults.
VIII.
Finally, the majority seeks refuge in subsequent legislative history, inferring that since the term "conviction" in HRS § 431:10C-117(a)(2)(B) was later replaced by the word "offense" in the context of "technical, nonsubstantive" amendments, the word "conviction" had no "significance more or less" than "offense." Majority opinion at 21. But accepting this premise can mean nothing more than that the term "offense" must reasonably be construed to mean "conviction."(5) Nevertheless, the majority asserts that "such willy-nilly denotation" by the legislature "negates" Defendant's position. Majority opinion at 21.
The majority's laborious effort to revise the plain effect of the word "conviction" belies the suggestion that so little should be made of it. More importantly, however, due respect must be accorded the effect of words used by the legislature, even if their true significance is not imparted in legislative committee reports. In context, a purportedly technical change may in fact result in altering the substantive impact of a statute. When faced with interpreting statutes, the courts must be vigilant of the consequences statutes work, whether declared by the legislature or not. It is how the statute would be read by the layperson which guides our construction in criminal cases, and in that regard nothing could be plainer than that a juvenile adjudication is not a conviction.
IX.
For the foregoing reasons, I would vacate the judgment of conviction and remand the case for resentencing.
SIMEON R. ACOBA, JR.
Associate Judge
1. The majority maintains the term "conviction" varies according to its context.
The two definitions found in the cases are the one "common[ly]" used and the one
employed in a "technical" sense. "The word 'conviction' is more commonly used
and understood to mean a verdict of guilty or a plea of guilty. The more
technical definition includes the judgment or sentence rendered pursuant to an
ascertainment of guilt." State v. Akana, 68 Haw. 164, 167, 706 P.2d 1300, 1303
(1985) (citations omitted). Conviction is commonly referred to as "the finding
of the jury [or the court] that the defendant is guilty. In a more technical
sense, however, it means a final judgment entered on such a determination."
State v. Rodrigues, 68 Haw. 124, 129, 706 P.2d 1293, 1298 (1985) (citations
omitted; brackets in original). Neither definition would fit the circumstance of
a juvenile adjudication. See discussion infra.
2. Hawaii Revised Statutes (HRS) § 431:10C-117 (Supp. 1997) further states, in
part: (3) In addition to the fine in paragraph (2), for the
first conviction within a five-year period . . ., the
court shall either (A) Suspend the driver's license of the
driver or of the registered owner . . .; or (B) Require the driver or the registered
owner to keep a nonrefundable insurance
policy in force for six months. In addition to the fine in paragraph (2), if the
violation is a subsequent offense of driving without a
valid insurance policy, within a five-year period of any
prior conviction, the driver's licenses of the driver or
the registered owner shall be suspended for one
year . . . . . . . . (5) In the case of multiple convictions for driving
without a valid motor vehicle insurance policy within a
five-year period from any prior conviction, the court,
in addition to any other penalty, shall impose . . . : (A) Imprisonment of not more than thirty
days; (B) Suspension or revocation of the motor
vehicle registration plates . . .; (C) Impoundment, or impoundment and sale,
of the motor vehicle . . .; or (D) Any combination of those penalties. (Emphases added.)
3. I express no opinion on the validity of this provision.
4. For example, in HRS § 325-16.5 (1993) pertaining to HIV testing of sexual
assault offenders, the legislature specifically included a minor adjudicated a
law violator in the definition of "convicted person." Such a person is described
as "a person who has been convicted of an offense under sections 707-730, 707-731, or 707-732(1)(a), including a juvenile adjudicated of such an offense. A
person is convicted when a verdict or adjudication has been rendered by a judge
or jury, or a plea of guilty or nolo contendere has been accepted by the court."
(Emphases added.) Further, HRS § 325-16(7) (1993) reiterated expressly that a
court order for HIV testing would include a minor law violator; "[a] person who
has been convicted, or a juvenile who has been adjudicated, pursuant to sections
707-730, 707-731, or 707-732(1)(a) shall be tested to determine the person's HIV
status[.]" (Emphasis added.)
5. While the issue is not presented to us directly, any other interpretation
would implicate significant due process concerns.