***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-11-0000802
19-JUN-2013
08:20 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
RUBIN IKOA CASUGAY-BADIANG,
Petitioner/Defendant-Appellee.
SCWC-11-0000802
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000802; CR. NO. 11-1-0523)
JUNE 19, 2013
DISSENTING OPINION BY RECKTENWALD, C.J.,
IN WHICH NAKAYAMA, J., JOINS
I respectfully dissent. The statute governing
Methamphetamine Trafficking in the Second Degree provides that a
defendant “shall be sentenced” pursuant to that statute,
“[n]otwithstanding . . . any other law to the contrary[.]”
Hawai#i Revised Statutes (HRS) § 712-1240.8 (Supp. 2006). In my
view, this language reflects the legislature’s clear intent that
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
a defendant convicted of Methamphetamine Trafficking in the
Second Degree be sentenced pursuant to HRS § 712-1240.8, to the
exclusion of all other sentencing schemes, including HRS
§ 706-667 (Supp. 2006), the Young Adult Defendants statute.
Accordingly, I would affirm the judgment of the Intermediate
Court of Appeals, which vacated Rubin Ikoa Casugay-Badiang’s
sentence imposed pursuant to HRS § 706-667, and remanded for
resentencing pursuant to HRS § 712-1240.8.
“[T]he fundamental starting point for statutory-
interpretation is the language of the statute itself.” First
Ins. Co. of Hawaii v. A&B Props., 126 Hawai#i 406, 414, 271 P.3d
1165, 1173 (2012). “[W]here the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain and
obvious meaning.” Id. Here, HRS § 712-1240.8 provides:
(1) A person commits the offense of
methamphetamine trafficking in the second degree if
the person knowingly distributes methamphetamine in
any amount.
(2) Methamphetamine trafficking in the second
degree is a class B felony for which the defendant
shall be sentenced as provided in subsection (3).
(3) Notwithstanding sections 706-620, 706-640,
706-641, 706-600, 706-669, and any other law to the
contrary, a person convicted of methamphetamine
trafficking in the second degree shall be sentenced to
an indeterminate term of imprisonment of ten years
with a mandatory minimum term of imprisonment of not
less than one year and not greater than four years and
a fine not to exceed $10,000,000; provided that:
(a) If the person has one prior conviction for
methamphetamine trafficking pursuant to
this section or section 712-1240.7, the
mandatory minimum term of imprisonment
shall be not less than three years, four
months and not greater than six years,
eight months;
(b) If the person has two prior convictions
for methamphetamine trafficking pursuant
to this section or section 712-1240.7, the
mandatory minimum term of imprisonment
-2-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
shall be not less than six years, eight
months and not greater than ten years; or
(c) If the person has three or more prior
convictions for methamphetamine
trafficking pursuant to this section or
section 712-1240.7, the mandatory minimum
term of imprisonment shall be ten years.
(Emphasis added).
“[T]his court has repeatedly employed a plain-language
analysis in interpreting statutes that contain the phrase,
‘notwithstanding any other law to the contrary[.]’” State v.
Smith, 103 Hawai#i 228, 234, 81 P.3d 408, 414 (2003) (citations
omitted). We have held that this language divests the sentencing
court of discretion to sentence under any sentencing scheme other
than that specified by the applicable statute. Id.; see also
State v. Rice, 66 Haw. 101, 657 P.2d 1026 (1993) (holding that,
where the prostitution statute provides for specific sentencing
“[n]otwithstanding any other law to the contrary,” the trial
court lacks the power to grant a deferred acceptance of guilty
plea in prostitution cases); State v. Dannenberg, 74 Haw. 75, 80,
837 P.2d 776, 778-79 (1992) (reaffirming Rice); cf. State v. Tom,
69 Haw. 602, 604, 752 P.2d 597, 598 (1988) (referencing Rice, and
holding that, where the driving under the influence statute
provides that the defendant “shall be sentenced” pursuant to that
statute, the trial court lacks the power to grant a deferred
acceptance of no contest plea in driving under the influence
cases).
Moreover, HRS § 706-667 is contrary to HRS § 712-1240.8
because it allows for an indeterminate five-year term of
-3-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
incarceration, rather than the ten-year term required under HRS
§ 712-1240.8.1 Thus, it is not possible to give effect to both
sentencing schemes for the same offense. See State v. Richie, 88
Hawai#i 19, 35, 960 P.2d 1227, 1243 (1998) (noting that two
statutes conflict where it is not possible to give effect to
both). Generally, “[w]here there is a plainly irreconcilable
conflict between a general and a specific statute concerning the
same subject matter, the specific will be favored.” State v.
Hussein, 122 Hawai#i 495, 524, 229 P.3d 313, 342 (2010).
However, in the instant case, HRS § 712-1240.8 itself dictates
that it shall govern “notwithstanding . . . any other law to the
contrary[.]”
In sum, the plain language of HRS § 712-1240.8 is clear
and sweeping: it requires that a defendant convicted of the
offense of Methamphetamine Trafficking in the Second Degree be
sentenced to, inter alia, an indeterminate ten-year term of
incarceration, with the mandatory minimum term to be set within
specified ranges based on the defendant’s prior offenses for
1
The legislature was not required to expressly enumerate HRS § 706-
667 among the statutes excluded from consideration in relation to a sentence
for Methamphetamine Trafficking in the Second Degree, see majority opinion at
28, because HRS § 706-667 constitutes “any other law to the contrary,” see HRS
§ 712-1240.8 (emphasis added). Respectfully, by limiting HRS § 712-1240.8 to
only those statutes expressly enumerated, the majority renders the phrase “any
other law to the contrary” superfluous, contrary to a canon of statutory
construction to which we have consistently adhered. See State v. Keawe, 107
Hawai#i 1, 5, 108 P.3d 304, 308 (2005) (“It is a cardinal rule of statutory
construction that courts are bound, if rational and practicable, to give
effect to all parts of a statute, and no clause, sentence, or word shall be
construed as superfluous, void, or insignificant if a construction can be
legitimately found which will give force to and preserve all words of the
statute.” (citation, internal quotation marks, and ellipsis omitted)).
-4-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
methamphetamine trafficking, if any. This sentence is to be
imposed regardless of alternative sentencing provisions set forth
in “any other law to the contrary[.]” Accordingly, sentencing
pursuant to HRS § 706-667 is unavailable.
State v. Lau, 73 Haw. 259, 831 P.2d 523 (1992), is not
to the contrary. There, this court considered whether the
sentencing court erred in failing to state its reasons on the
record in choosing between a twenty-year sentence for a class A
felony and an eight-year sentence pursuant to the Young Adult
Defendants statute. Id. at 260-61, 831 P.2d at 523-34. Although
HRS § 706-659 provided for a twenty-year term for class A
felonies “notwithstanding any other law to the contrary,” this
court noted that the defendant was qualified to be sentenced
under the Young Adult Defendants statute due to his age. Id. at
260, 831 P.2d at 524. However, this court did not resolve
whether application of the Young Adult Defendants statute was
precluded by the phrase “notwithstanding any other law to the
contrary,” and that issue was not before the court. See State v.
Kikuta, 125 Hawai#i 78, 100 n.2, 253 P.3d 639, 661 n.2 (2011)
(noting that a case cannot implicitly stand for a proposition
that the court did not address). Respectfully, by reading Lau as
supporting Casugay-Badiang’s position, the majority abrogates
decades of this court’s precedent that has held to the contrary.
See, e.g., Dannenberg, 74 Haw. at 80, 837 P.2d at 778-79; Smith,
103 Hawai#i at 234, 81 P.3d at 414.
-5-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Moreover, despite the plain language of the statute and
this court’s case law dispositively interpreting the phrase
“notwithstanding any other law to the contrary,” the majority
relies on legislative history to conclude that HRS § 706-667 is a
sentencing alternative to HRS § 712-1240.8. See majority opinion
at 28-30. Respectfully, however, the legislative history does
not reflect the legislature’s intent to allow sentencing pursuant
to HRS § 706-667 for the offense of Methamphetamine Trafficking
in the Second Degree.
The offense of Unlawful Methamphetamine Trafficking,
which preceded the offenses of Methamphetamine Trafficking in the
First and Second Degrees, was enacted in 2004 to “address the
devastating effects of crystal methamphetamine (commonly known as
‘ice’) abuse in Hawaii.”2 HRS § 712-1240.6 cmt. (Supp. 2004);
2004 Haw. Sess. Laws Act 44, § 3 at 207-08. The purpose of the
original bill was to, inter alia, “impose large penalties for
methamphetamine trafficking[.]” H. Stand. Comm. Rep. No. 495-04,
in 2004 House Journal, at 1603. The House amended the original
bill to “[s]pecify that other statutes relating to sentencing do
not apply to the offense of methamphetamine trafficking[.]” Id.
at 1604 (emphasis added). The bill that ultimately was enacted
into law provided that “[a] defendant convicted of the offense of
unlawful methamphetamine trafficking shall be sentenced in
2
Previously, offenses relating to methamphetamine trafficking were
punishable pursuant to HRS §§ 712-1241 and 712-1242 (Supp. 2002), Promoting a
Dangerous Drug in the First or Second Degree.
-6-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
accordance with this section, notwithstanding sections 706-
620(2), 706-659, 706-640, and 706-641.” 2004 Haw. Sess. Laws Act
44, § 3 at 207-08 (codified at HRS § 712-1240.6(4)).
In 2005, the legislature convened a committee to
conduct a comprehensive review of the Hawai#i Penal Code and to
recommend amendments to the code. 2005 Haw. Sess. Laws Act 125,
§ 2 at 328-29. In its report to the 2006 legislature, the
committee noted that “ice” “is now the dominant issue in the
criminal justice system.” Hawai#i Judicial Council, Report of
the Committee to Conduct a Comprehensive Review of the Hawai#i
Penal Code, (Dec. 2005) (hereinafter “Report”) at 5. To address
this issue, the committee recommended repealing HRS § 712-1240.6,
and replacing it with new sections that separated methamphetamine
trafficking in the first and second degrees into separate
offenses. Id. at 10. The committee recommended replacing
definite minimum terms with minimum term ranges “to enhance the
court’s ability to tailor the minimum in accordance with the
aggravating and mitigating circumstances of any particular
trafficking case.” Id. at 56. However, “[t]he applicable
mandatory minimum range is to be determined exclusively by the
number of the defendant’s prior methamphetamine trafficking
convictions[.]”3 Id. at 11 (emphasis added).
3
This is contrary to the Young Adult Defendants statute, which
allows the court to impose a special indeterminate term of imprisonment, in
which the minimum length of imprisonment is set by the Hawaii Paroling
Authority in accordance only with HRS § 706-669. HRS § 706-667(3).
-7-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
The committee proposed legislation to effectuate these
recommendations. Id. at 52-54. The committee’s recommended
prohibition against sentencing under other laws was similar to
that contained in HRS § 712-1240.6, but the committee added the
phrase, “any other law to the contrary.” Compare HRS § 712-
1240.6(4) with Report at 53. The legislature subsequently
adopted the committee’s proposal nearly verbatim. Compare Report
at 53 with HRS § 712-1240.8(3).
The history of the methamphetamine trafficking laws
from 2004 through 2006 indicates that the legislature intended to
impose specific sentencing provisions for the offense of
Methamphetamine Trafficking in the Second Degree, to the
exclusion of all contrary sentencing schemes, including HRS
§ 706-667. Specifically, the legislature made clear its intent
in 2004 that “other statutes relating to sentencing do not
apply[,]” H. Stand. Comm. Rep. No. 495-04, in 2004 House
Journal, at 1604, and added the “any other law to the contrary”
language in 2006,4 2006 Haw. Sess. Laws Act 230, § 4 at 999
4
Legislative action following this court’s decision in Dannenberg
indicates that the legislature is aware of the meaning of that phrase
“notwithstanding any other law to the contrary,” and is able to act
accordingly. In Dannenberg, this court concluded that the phrase
“[n]otwithstanding any other law to the contrary” removed the sentencing
court’s discretion to grant deferred acceptance of guilty pleas in
prostitution cases. 74 Haw. at 80, 837 P.2d at 778. However, the legislature
subsequently amended the prostitution statute to allow for deferred acceptance
of guilty or no contest pleas in these cases by removing the “notwithstanding
any other law to the contrary” language. 2003 Haw. Sess. Laws Act 130, § 1 at
183 (codified at HRS § 712-1200(4) (1993)); see also State v. Hamili, 87
Hawai#i 102, 106 n.5, 952 P.2d 390, 394 n.5 (1998). Had the legislature
intended to permit alternative sentencing schemes for the offense of
Methamphetamine Trafficking in the Second Degree, it presumably would not have
added this language to the statute in 2006. See State v. Reis, 115 Hawai#i
-8-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
(codified at HRS § 712-1240.8(3)).
It is true that the committee also recommended
amendments to HRS § 706-667 in 2006, Report at 27q-27r, and that
these amendments were adopted by the legislature, 2006 Haw. Sess.
Laws Act 230, § 25 at 1013 (codified at HRS § 706-667 (Supp.
2006)). However, these amendments do not indicate a broad
legislative intent to expand the reach of the Young Adult
Defendants statute to persons convicted under HRS § 712-1240.8.
Rather, the amendments were directed at resolving a particular
problem: under the former version of the statute, a defendant’s
eligibility for Young Adult Defendants sentencing turned on his
or her age at the time of sentencing, rather than at the time of
the offense, resulting in inequities based on delays in
scheduling trial or sentencing. Report at 27r; see also HRS
§ 706-667 (Supp. 1997). Respectfully, amending HRS § 706-667 to
base eligibility on age at the time of the offense does not
reflect a legislative intent to remove young adults from the
provisions of HRS § 712-1240.8.
Finally, in this case, the sentencing court opined that
courts should have greater discretion in the sentencing process
than that afforded by HRS § 712-1240.8. “A sentencing judge
generally has broad discretion in imposing a sentence.” State v.
Pecpec, 127 Hawai#i 20, 32, 276 P.3d 589, 601 (2012). However,
79, 97, 165 P.3d 980, 998 (2007) (“[W]e must presume that the legislature
knows the law when enacting statutes[.]” (citation omitted)).
-9-
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
“[a] cardinal canon of statutory interpretation is that this
court 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. This is because we do not legislate or make laws.”
Smith, 103 Hawai#i at 233, 81 P.3d at 413 (citations, brackets,
and internal quotation marks omitted). Thus, it is not for this
court to afford the sentencing court discretion that the
legislature has so clearly curtailed.
Accordingly, I respectfully dissent.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
-10-