FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER


DISSENTING OPINION BY FOLEY, J.

I respectfully dissent. HRS § 286-136(b) (2007 Repl.) provides for enhanced sentencing for multiple convictions within a five-year period:

(b) Any person who is convicted of violating section 286-102, 286-122, 286-130, 286-131, 286-132, 286-133, or 286-134 shall be subject to a minimum fine of $500 (1) and a maximum fine of $1,000, or imprisoned not more than one year, or both, if the person has two or more prior convictions for the same offense in the preceding five-year period.

HRS § 286-136(b) does not provide for enhanced sentencing for an offense following two or more convictions within a five-year period.

In State v. Mueller, 102 Hawai‘i 391, 76 P.3d 943 (2003), the Hawai‘i Supreme Court stated:

We have consistently held that this court cannot change the language of the statute. Further to the foregoing, 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. Indeed, in such cases our sole duty is to give effect to the statute's plain and obvious meaning.

Id. at 395, 76 P.3d at 947 (internal quotation marks and citations omitted).

However, if one looks beyond the language of HRS § 286-136(b), there is no "clearly expressed legislative intention to the contrary." State v. Lo, 66 Haw. 653, 659, 675 P.2d 754, 758 (1983) (internal quotation marks and citation omitted). In amending HRS § 286-136 to reduce prison terms for first and second convictions, the Hawai‘i Legislature stated it was "retaining a maximum term of imprisonment of one year for a third conviction within a five year period." Conf. Comm. Rep. No. 28, in 1996 House Journal, at 969, and in 1996 Senate Journal, at 751 (emphasis added). The Legislature read HRS § 286-136(b), the law it enacted, as triggering a maximum term of imprisonment of one year for a third conviction, not a third offense, within a five-year period.



1.      Effective May 20, 2003, subsection (b) of the statute was amended to add the words: "minimum fine of $500."