State v. Domingo (Concurring and Dissenting Opinion by J. Duffy, in which J. Acoba joins)

* * * NOT FOR PUBLICATION * * *

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CONCURRING AND DISSENTING OPINION BY DUFFY, J.
IN WHICH ACOBA, J., JOINS

I concur with the majority on points (1) and (2). Based upon Justice Acoba's Dissenting Opinion in State v. Rivera, 106 Hawai`i 146, 102 P.3d 1044 (2004), in which I joined, I would vacate the sentence imposed and remand for sentencing consistent with the Dissenting Opinion in State v. Rivera.