Opinion
No. CAAP–11–0000373.
2014-06-13
STATE of Hawai‘i, Plaintiff–Appellee, v. Jasmine K. LOPEZ, Defendant–Appellant.
Appeal from the Circuit Court of the First Circuit (CR. No. 08–1–1654).Glenn D. Choy, on the briefs, for defendant-appellant.Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.
Appeal from the Circuit Court of the First Circuit (CR. No. 08–1–1654).
Glenn D. Choy, on the briefs, for defendant-appellant. Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.
NAKAMURA, C.J., and GINOZA, J. with FUJISE, J., dissenting separately.
MEMORANDUM OPINION
Defendant–Appellant Jasmine K. Lopez (Lopez) appeals from an “Order Denying Motion for Reconsideration of Sentence” entered on April 21, 2011, in the Circuit Court of the First Circuit (circuit court). Pursuant to a plea agreement, Lopez plead guilty to violating Hawaii Revised Statutes (HRS) § 291C–12.5 (2007) (Accidents Involving Substantial Bodily Injury). Lopez requested a deferred acceptance of guilty plea (DAG), which was denied by the circuit court, both initially and on reconsideration. Lopez was sentenced to five (5) years probation subject to terms and conditions including, inter alia, a term of imprisonment of sixty (60) days and various fines and assessments.
Lopez filed for reconsideration pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 35.
At various points in this matter, the Honorable Michael A. Town, Edwin C. Nacino, and Michael D. Wilson presided.
The plea agreement allowed Lopez to plead to the lesser included offense of Accidents Involving Substantial Bodily Injury, a class C felony, instead of the charged offense of Accidents Involving Death or Serious Bodily Injury, a violation of HRS § 291C–12 (2007), a class B felony. The parties reached no agreement as to sentencing.
HRS § 291C–12.5 provides in pertinent part:
§ 291C–12.5, Accidents involving substantial bodily injury, (a) The driver of any vehicle involved in an accident resulting in substantial bodily injury to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 291C–14. Every such stop shall be made without obstructing traffic more than is necessary.
(b) Any person who violates subsection (a) shall be guilty of a class C felony.
On appeal, Lopez asserts that the circuit court erred because it denied her a DAG on the incorrect basis that HRS § 853–4(2)(A) (2012 Supp.) precluded a DAG for the HRS § 291C–12.5 offense.
HRS § 853–4(2)(A) was renumbered and is now HRS § 853–4(a)(2)(A), effective as of April 25, 2013. 2013 Haw. Sess. Laws Act 53, §§ 1 and 4, at 94 and 96.
During the course of this case, Plaintiff–Appellee State of Hawai‘i (State) has taken inconsistent positions as to whether Lopez is eligible for a DAG. The State did not initially contest Lopez's eligibility for a DAG. Subsequently, during proceedings on Lopez's motion to reconsider her request for a DAG, a new deputy prosecuting attorney appeared in the case and argued that HRS § 853–4(2)(A) precluded a DAG for the offense in this case. On appeal, the State has again reversed course, now taking the position that a DAG was not precluded by HRS § 853–4(2)(A). However, the State asserts, for the first time, that because the circuit court imposed sixty days of jail time, it would be “fundamentally inconsistent” to allow a DAG when one of the requirements for a DAG under HRS § 853–1(a) (1993) is that “[t]he ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.”
We conclude that Lopez's offense under HRS § 291C–12.5 is eligible for a DAG. We also conclude that the State's argument under HRS § 853–1(3), which was not raised in the circuit court, has been waived in this case and we need not address it.
However, because it is unclear from the record why the circuit court denied Lopez's request for a DAG, we remand for further proceedings consistent with this opinion.
I. Proceedings Below
Pursuant to a plea agreement, Lopez plead guilty to violating HRS § 291C–12.5. As part of her plea form filed on May 25, 2010, Lopez moved for a DAG.
At an August 24, 2010 hearing on Lopez's sentencing, the circuit court heard argument and engaged in a colloquy with Lopez before accepting her guilty plea and sentencing her to inter alia probation and sixty days in jail to commence forthwith. The circuit court thereby implicitly denied Lopez's motion for a DAG, but also sua sponte invited Lopez to file a motion for reconsideration on the DAG and immediately scheduled a hearing for such a motion. Lopez filed her Motion for Reconsideration of Sentence (Motion for Reconsideration) pursuant to HRPP Rule 35 on November 10, 2010.
The Honorable Michael A. Town presided.
Judge Town also acknowledged that he would be retiring from the bench effective October 1, 2010, and that this subsequent hearing would be held before a different judge.
On February 22, 2011, a hearing was held on Lopez's Motion for Reconsideration and for a further review hearing. At this hearing, the court and the parties addressed a review report by Lopez's probation officer and there was lengthy discussion as to whether Lopez was abiding by the terms of her probation. Also at this hearing, the State questioned for the first time Lopez's statutory eligibility for a DAG, asserting that a DAG was precluded by the plain language of HRS § 853–4(2)(A). After a discussion with counsel regarding Lopez's statutory eligibility for a DAG, the circuit court continued the matter to allow the parties to file briefs on the issue. Only Lopez filed further briefing.
The Honorable Edwin C. Nacino presided.
On March 22, 2011, another hearing was held on Lopez's Motion for Reconsideration and for a further review hearing. After argument by the parties, the circuit court stated that it would take the matter under advisement. The court also had this further discussion on the record:
The Honorable Michael D. Wilson presided.
THE COURT: Anything further, Mr. Choy? I'll let you know by Friday.
MR. CHOY: Question, Judge, if the Court determines there is statutory eligibility would we then have to argue eligibility for this person or
THE COURT: You mean statutorily eligibility under the deferral statute?
MR. CHOY: Right.
THE COURT: I'll let you know after I reach a conclusion as to whether or not the deferral is legally available. But I would be inclined to probably grant a deferral if there was a legal basis for it.
(Emphasis added.)
On April 21, 2011, the circuit court issued an order denying Lopez's Motion for Reconsideration. The order does not indicate the basis for denying the Motion for Reconsideration and thus it is unclear if the court in fact determined that HRS § 853–4(2)(A) precluded a DAG for Lopez's HRS § 291C–12.5 offense.
II. Standard of Review
This case requires us to determine the applicability of HRS § 853–4(2)(A) to a violation of HRS § 291C–12.5. Issues of statutory interpretation are reviewed de novo. Lingle v. Hawai‘i Gov't Emps. Ass'n, 107 Hawai‘i 178, 183, 111 P.3d 587, 592 (2005).
III. Discussion
Lopez argues that the circuit court erred in denying her Motion for Reconsideration because she is eligible for a DAG under HRS § 853–1 (1993 and 2011 Supp.) and a DAG was not precluded under HRS § 853–4(2)(A). As noted earlier, the State now agrees that HRS § 853–4(2)(A) does not prevent Lopez from being eligible for a DAG, but instead argues that allowing a DAG would be inconsistent with the circuit court having sentenced Lopez to sixty days confinement given the requirements under HRS § 853–1.
We agree with the parties that HRS § 853–4(2)(A) does not statutorily preclude a DAG for Lopez's HRS § 291C–12.5 offense. HRS § 853–4(2)(A) states:
§ 853–4 Chapter not applicable; when. This chapter shall not apply when:
....
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person [.]
(Emphasis added.) The felony in this case is the violation of HRS § 291C–12.5, which states in pertinent part:
§ 291C–12.5. Accidents involving substantial bodily injury. (a) The driver of any vehicle involved in an accident resulting in substantial bodily injury to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 291C–14.
(Emphasis added.)
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.
Lingle, 107 Hawai‘i at 183, 111 P.3d at 592 (quoting Guth v. Freeland, 96 Hawai‘i 147, 150, 28 P.3d 982, 985 (2001)); see HRS §§ 1–15, 1–16 (2009).
In our view, HRS § 853–4(2)(A) is properly construed as precluding a DAG for a felony that involves “intentional, knowing, or reckless” conduct that causes “bodily injury, substantial bodily injury, or serious bodily injury.” Stated another way, although the level of the injury is also important, HRS § 853–4(2)(A) encompasses felonies that involve the causing of the injury with the specified mens rea, i.e. “the intentional, knowing, reckless ... injury ... of another.” Our interpretation is consistent with and supported by HRS § 853–4(1), the immediately preceding section, which precludes a DAG when “[t]he offense charged involves the intentional, knowing, reckless, or negligent killing of another person.” Also consistent with our view, this court has previously held that, where an injury is caused by negligent conduct, HRS § 853–4(2)(A) did not apply. See Andrews v. State, 127 Hawai‘i 241, 277 P.3d 335, No. 29951, 2012 WL 1764079, at *3 (App. May 17, 2012) (SDO) (holding that HRS § 853–4(2)(A) does not preclude a deferred acceptance of a no contest plea for the offenses of Negligent Injury In the First Degree in violation of HRS § 707–705 (1993) and Accidents Involving Death or Serious Bodily Injury in violation of HRS § 291C–12 (2007), because both offenses involved negligent serious bodily injury).
In turn, HRS § 291C–12.5 does not require intentional, knowing or reckless conduct to have caused the substantial bodily injury referenced in that offense. Rather, it involves “an accident resulting in substantial bodily injury to any person[.]” (Emphasis added.) In State v. Chen, 77 Hawai‘i 329, 884 P.2d 392 (App.1994), this court construed HRS § 291C–12(a), which is identical with HRS § 291C–12.5(a), except that it involves “serious bodily injury” or “death” of a person. Pertinent to this case, Chen explained that an offense under HRS § 291C–12(a) does not require that the defendant's conduct caused the injury or death.
On the other hand, Count I called for proof beyond a reasonable doubt that Defendant was “involved in an accident resulting in death.” Count I, then, did not necessitate proof that “but for” Defendant's conduct, the death would not have been caused, but only proof that the vehicle Defendant was driving was a “vehicle involved in an accident [which] result[ed] in injury ... or death.” HRS § 291C–12(a). On its face, the statute's express language does not mandate that the defendant driver or his vehicle “cause” the accident or “cause” injury or death, to be considered “involved” in the requisite accident. Accordingly, criminal liability under HRS § 291C–12 (a) does not require proof that the driver of a vehicle caused injury to or death of a person, but only that the accident the driver was involved in resulted in injury to or death of any person.
77 Hawai‘i at 336, 884 P.2d at 399 (emphasis added). Chen further noted that “[t]he statutory language is broad, hinging criminal liability for failing to give information and to render aid on involvement in the incident.” Id. at 337, 884 P.2d at 400.
Because a defendant's conduct need not have caused the “accident” or the “substantial bodily injury” under HRS § 291C–12.5, being “involved in an accident resulting in substantial bodily injury” is an attendant circumstance for the HRS § 291C–12.5 offense. See State v. Wheeler, 121 Hawai‘i 383, 392, 219 P.3d 1170, 1179 (2009) (“[A]n attendant circumstance is essentially a circumstance that exists independently of the actor's conduct.” (internal quotation marks and brackets omitted)).
Therefore, given our interpretation of the statutes, HRS § 853–4(2)(A) does not exclude Lopez from being eligible for a DAG for her HRS § 291C–12.5 offense.
Further, as noted above, we need not address the State's most recent position, that in light of the circuit court's imposition of sixty days incarceration it would be “fundamentally inconsistent” to allow a DAG given the requirements for a DAG under HRS § 853–1(a). This argument was not raised in the circuit court and has been waived in this case. Even assuming that it has not been waived, the State's argument lacks merit because HRS 853–1(b) permits a court to grant a DAG upon any of the conditions of probation specified in HRS § 706–624 (2011 Supp.), which may include a term of imprisonment not exceeding one year for a class C felony case. See HRS § 706–624(2)(a).
Finally, as noted earlier, the basis for the circuit court's denial of Lopez's Motion for Reconsideration is unclear from its order. During the various hearings, in addition to whether Lopez was statutorily eligible for a DAG, there was much discussion as to whether a DAG was appropriate for Lopez even if legally available. Thus, notwithstanding the circuit court's stated inclination at the March 22, 2011 hearing that the court would “probably grant a[DAG] if there was a legal basis for it,” we must remand for further proceedings.
IV. Conclusion
For the foregoing reasons, we vacate the Order Denying Motion for Reconsideration of Sentence entered on April 21, 2011 by the Circuit Court of the First Circuit, and remand for further proceedings consistent with this opinion. Dissenting Opinion by FUJISE, J.
The majority holds that the plain language of HRS § 853–4(2)(A) requires that, to be excluded from consideration for a deferral, the person charged must have caused the injury with the requisite intent. However, as HRS § 853–4(2)(A) does not contain the verb “cause” or any other language of causation, I disagree that the plain language of this statute dictates such a result and must respectfully dissent.
Hawai‘i courts have established a framework for evaluating statutory language:
First, the fundamental starting point for statutory-interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation 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. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. And fifth, in construing an ambiguous statute, the 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.
State v. Silver, 125 Hawai‘i 1, 4, 249 P.3d 1141, 1144 (2011) (citations omitted).
The provision in question, HRS § 853–4(2)(A), reads: This chapter shall not apply when:
HRS § 853(2)(A) was renumbered and is now HRS § 853–4(a)(2)(A). Act 53 (2013) reprinted in Session Laws of Hawaii, Regular Session of 2013 at 94. statute is not ambiguous, we decline to apply this rule.
....
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person [.]
The felony under consideration provides,
§ 291C–12.5. Accidents involving substantial bodily injury. (a) The driver of any vehicle involved in an accident resulting in substantial bodily injury to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of section 291C–14 .... [s]hall be guilty of a class C felony.
(Formatting altered).
The Hawai‘i Supreme Court has repeatedly stated that, when interpreting a statute, an appellate court's
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 where the language of the statute is plain and unambiguous, [a court's] only duty is to give effect to [the statute's] plain and obvious meaning.
State v. Wells, 78 Hawai‘i 373, 376, 894 P.2d 70, 73 (1995) (internal quotation marks, citations, and brackets in original omitted). The court has further admonished,
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 when the court is convinced in its own mind that the [l]egislature really meant and intended something not expressed by the phraseology of the [a]ct, it has no authority to depart from the plain meaning of the language used.
State v. Sakamoto, 101 Hawai‘i 409, 413, 70 P.3d 635, 639 (2003) (citation omitted) (rejecting the State's argument that the literal construction of HRS § 853–4(1) would lead to the anomalous result of excluding from deferral crimes involving the lesser, bodily injury, while allowing deferral for crimes involving the greater, substantial bodily injury).
Both HRS §§ 853–4(2)(A) and 291C–12.5 require that the various types of bodily injury be “involved” in the crime to trigger their operation. While Accidents Involving Substantial Bodily Injury does not contain a state of mind, by operation of HRS § 702–204 (1993), an intentional, knowing or reckless state of mind does apply to HRS § 291C–12.5.
Lopez argues that “the gravamen of the class of offenses involving leaving the scene of an accident is just that—leaving the scene—not causing injury.” However, HRS § 853–4(2)(A) does not state that the person seeking deferral must cause the injury involved in the offense, only that intentional, knowing, or reckless injury be “involved.” We are bound by the legislative determination not to include such language in HRS § 853–4(2)(A). See State v. Shannon, 118 Hawai‘i 15, 25, 185 P.3d 200, 210 (2008) (“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.” (internal quotation marks and citations omitted)).
Having concluded that the plain language of HRS § 853–4(2)(A) includes the crime defined in HRS § 291C–12.5, my inquiry would ordinarily end here. However, I note that other aids to statutory interpretation are also consistent with this reading. Other exclusions contained in HRS § 853–4 contain language that support my interpretation. Compare HRS § 853–4(1)(2010) (“The offense charged involves the intentional, knowing, reckless, or negligent killing of another person.”) and HRS § 853–4(3)(2010) (“The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person.”) (emphasis added) with the subject HRS 853–4(2)(A). It appears that when the legislature wishes to require a causal link, it is aware of the language necessary to express this intent.
Lopez also points to committee reports in support of the original deferral statute enacted in 1976, expressing the notion that “[i]t is in the best interest of the State that in certain criminal cases, particularly those involving first time, accidental or situational offenders, the offender not be burdened with the stigma of having a criminal record for the rest of his life.” Sen. Conf. Comm. Rpt. 29–76. While this was no doubt the sentiment when the deferral statute was first enacted, four years later a somewhat different view emerged, when the legislature broadened two categories and added five, including a list of twelve specifically named offenses:
SECTION 1. The purpose of this Act is to correct obsolete wording and expand upon the exclusions from deferred acceptance of guilty pleas (DAG), particularly in view of the proliferation of DAG pleas being granted by judges. The use of a firearm, distribution of illicit drugs, and involvement in specific crimes would be excluded from DAGs. Repeat DAG offenders would no longer be able to receive DAGs after having been granted a previous DAG. Certain serious crimes not presently qualifying for exclusion from the granting of DAGS are added to the class A and violent crimes exclusions because of their seriousness and the failure of DAGs for such crimes to serve a valid public purpose.
Act 292 (1980) reprinted in Session Laws of Hawaii, Regular Session of 1980 at 557. Indeed, in the years that followed, many changes were made to HRS § 853–4; most of these changes added to the number and scope of the exclusions. See Act 130 (1993) (adding prostitution); Act 234 (1993) (adding felony and certain misdemeanors involving bodily injury); Act 201 (1996) (adding abuse of household members); Act 172 (1998) (adding violations of protective orders); Act 85 (2004) (adding offenses involving substantial bodily injury); Act 203 (2005) (adding campaign spending offenses); Act 80 (2006) (adding certain offenses against children); Act 288 (2007) (adding certain commercial drivers' traffic offenses); Act 53 (2013) (adding certain prostitution and street solicitation offenses).
Lopez argues that including crimes that do not involve causing the injury would be an “illogical result.” The grant of a deferral is a matter of legislative grace, State v. Kaufman, 92 Hawai‘i 322, 329, 991 P.2d 832, 839 (2000), and so it is within the legislature's authority to define the scope of that beneficence. Whether an interpretation of the deferral statute that excludes a fleeing the scene offense is illogical, depends on whether it is inconsistent with the legislative intent. Lopez cites to no legislative history that states such a result was unintended. On the other hand, as the evolution of HRS § 853–4 shows, the legislature did not confine other exclusions to crimes where the defendant caused physical harm, but also included crimes whose purpose is, at least in part, to prevent physical harm, such as violations of protective orders and traffic offenses. Clearly, the purpose of the fleeing the scene offenses is, in part, to prevent post-accident harm from coming to the injured person. Thus, the interpretation of HRS § 853–4(2)(A) to include offenses where the bodily injury has not been caused by the offender, but to prevent future harm, is not an illogical result.
Lopez also argues that the “rule of lenity” supports her interpretation of HRS § 853–4(a)(2)(A). However, this rule of construction applies only when the statute in question is ambiguous and the legislature does not provide sufficient guidance. State v. Woodfall, 120 Hawai‘i 387, 396, 206 P.3d 841, 850 (2009). As we conclude the language of the
For the foregoing reasons, I would affirm the Circuit Court's denial of Lopez's Motion for deferral.