Thursday, June 27, 2013

Youthful Offender Statute Trumps Sentencing Under Meth Trafficking

State v. Casugay-Badiang (HSC June 19, 2013)
Background. Rubin Ikoa Casugay-Badiang pleaded guilty to two counts of methamphetamine trafficking in the second degree, class B felonies. HRS § 712-1240.8. Each count carried a penalty of an indeterminate term of ten years prison, a mandatory minimum term of imprisonment of one to four years, and a fine up to $10,000. At sentencing, the parties agreed that because he had no prior arrests or convictions and because he was a young adult defendant pursuant to HRS § 706-667, Casugay-Badiang should face only the one-year mandatory minimum term. The circuit court disagreed and raised the issue as to whether it had the discretion to sentence without a mandatory minimum based on language in the young-adult-defendant statute. Under the young-adult defender statute, the circuit court reduced the ten years to five and imposed the one year of a mandatory minimum. The prosecution filed a motion to correct the illegal sentence on the grounds that the circuit court misinterpreted the statutes. At a hearing on the motion, Casugay-Badiang argued that the legislature intended the young-adult statute to “override” the meth trafficking statute and that the sentence was a legal one. The circuit court agreed and denied the motion.

Young Adults v. Meth Trafficking. “Notwithstanding sections 706-620, 706-640, 706-641, 706-660, 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[.]” HRS § 712-1240.8. The question for the HSC was whether the young adult defendant statute, which affords discretion to the sentencing court in reducing the severity and term of the sentence, was among a “law to the contrary.”

The Ground Rules of Statutory Interpretation. The foremost obligation in interpreting statutes 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.” State v. Valdivia, 95 Hawai'i 465, 472, 24 P.3d 661, 668 (2003). “Where the statutory language is unambiguous, the court’s sole duty is to give effect to its plain and obvious meaning.” State v. Sakamoto, 101 Hawai'i 409, 412, 70 P.3d 635, 638 (2003).

Two Different “Plain Meaning” Readings of the Same Statute!? The HSC focused on this key phrase in the meth trafficking statute and noted that it has interpreted this phrase found throughout the HRS. Generally, the HSC has held that that phrase meant that removed the sentencing court’s discretion from applying any other law other than the one contained in that statute. See State v. Rice, 66 Haw. 101, 657 P.2d 1026 (1983); State v. Dannenberg, 74 Haw. 75, 837 P.2d 776 (1992); State v. Smith, 103 Hawai'i 228, 234, 81 P.3d 408, 414 (2003); State v. Kamano, 118 Hawai'i 210, 218, 188 P.3d 724, 732 (2008). Specifically, the word “contrary” means the “opposite to or in conflict with each other[.]” State v. Schnabel, 127 Hawai'i 432, 448, 279 P.3d 1237, 1253 (2012). And so a plain-language reading of the statute would signify that any statute that was the opposite of the statute with the NAOLTTC phrase would be inapplicable. And so, it would seem that a plain-reading analysis alone would mean that the circuit court erred in denying the prosecution’s motion.

. . . On the Other Hand. Then again, there was an argument that an equally plain reading of the trafficking statute would allow the circuit court to apply the young adult defendant statute. The trafficking offense enumerates five distinct statutes and a catchall in the notwithstanding phrase. That, according to the HSC, was evidence that the legislature did not intend to exclude the young-adult statute as a sentencing alternative.

And of course there was State v. Lau, 73 Haw. 259, 831 P.2d 523 (1992). There, the HSC examined the sentence to a twenty-year prison term for cocaine trafficking. Lau argued that because the sentencing court failed to explain why he got the deuce; in support of his argument, Lau noted that there was no way to show that the sentencing court even considered the young adult statute. Id. at 260-61, 831 P.2d at 523-24. The HSC disposed of the argument by noting that there was a presentence investigation report and arguments of counsel, which referred to the ordinary twenty-year term as well as the reduced one. Id. at 260, 831 P.2d at 523.

From Lau, the HSC noted that the cocaine trafficking statute had a similar “notwithstanding” clause. That implied that the sentencing court was still free to consider the reduced term under the young-adult statute. In fact, the HSC held that “[o]nce the court determines that imprisonment is necessary, the court is free to . . . choose between the ordinary term or the special indeterminate sentence under the young adult defendants statute.” Id. at 263, 831 P.2d at 525. That, according to the HSC, created “tension” between the competing interpretations and case law.

Resolving the Dueling Interpretations in Favor of the Defendant. The HSC did a similar analysis with the young adult defendant statute. In the end, the HSC conceded that there were strong arguments for both sides. But “where a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity. Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.” State v. Bayly, 118 Hawaii 1, 15, 185 P.3d 186, 200 (2008). And so, the HSC held that the young adult statute trumped the meth trafficking statute thereby affording the sentencing court the discretion to drop the ten-year term to five.

Chief Justice Recktenwald’s Dissent. The CJ wrote that there was no need for the strenuous debate and analysis. The meth trafficking statute clearly and succinctly stated that the defendant “shall be sentenced” pursuant to that particular statute “[n]otwithstanding . . . any other law to the contrary[.]” This would include the young adult statute. And although the CJ agrees that generally, the sentencing court has wide discretion in sentencing a defendant, the legislature clearly limited that discretion in this case. Justice Nakayama joined. 

Thursday, June 6, 2013

Nothing Criminal in Breaching a Contract

State v. Atwood (HSC June 3, 2013)
Background. Terrance Atwood was indicted with one count of theft in the first degree. HRS § 708-830.5. The prosecution presented an indictment before the grand jury. Witnesses testified that Atwood entered into a contract to remodel a bathroom in a Kihei home in exchange for $89,394. Atwood went to work. In the middle of the job, the homeowner learned that Atwood was not a licensed contractor, but nonetheless kept him on the job because he had already paid him. However, due to a dispute over the purchasing of certain materials, the homeowner fired Atwood before the job was finished and another contractor finished the job. The grand jury returned a true bill alleging theft in the first degree and an unlicensed activity charge (a misdemeanor). HRS § 436B-27.

Atwood moved to dismiss the indictment on the grounds that there was no probable cause to sustain the charge. He argued that the prosecution failed to prove that there was no evidence showing that Atwood had no intention of fulfilling his part of the contract. The prosecution countered that Atwood’s conduct constituted “deception” under the theft statute. The circuit court denied the motion, but permitted Atwood to proceed on an interlocutory appeal. The ICA affirmed. Atwood petitioned for certiorari.

The Offense of Theft by Deception Requires Proof of Deception. “A person commits the offense of theft in the first degree if the person commits theft . . . [o]f property or services, the value of which exceeds $20,000.” HRS § 708-830.5(1)(a). Theft arises when “[a] person obtains, or exerts control over, the property of another by deception with the intent to deprive the other of the property.” HRS § 708-830.  There are five different ways to “deprive” another. HRS § 708-800.

“Deception” Requires more than Nonperformance. The HSC reviewed the theft statute and its definitions and observed that the commentary addressed contractual obligations. “With respect to contractual obligations, a present intent not to perform would constitute deception, although mere breach at some future time, without such present intent, would not.” HRS § 708-833 cmt. The HSC also looked to courts from other jurisdictions and agreed that the indictment required probable cause that Atwood had the intent to “deprive” through nonperformance. See Smith v. State, 665 So.2d 1002, 1003 (Ala. Crim. App. 1995); Commonwealth v. Layaou, 405 A.2d 500, 501 (Pa. Super. 1979); State v. Jackson, 765 N.W.2d 541, 542-44 (S.D. 2009).

Here, the HSC held that Atwood spent considerable time in attempting to meet his contractual duties. Although the quality of his work may have been lacking, he did spent time and effort in exchange for the fees. Moreover, it appeared that he tried to finish the bathroom job, but could not because he was fired by the complainant. This is not proof of intentional nonperformance. Accordingly, there was no proof of an intent to “deprive” the owner.

No Evidence of Value Either. Another essential element to theft is value. Theft in the first degree requires proof that the property or services at issue exceeded a value of $20,000. HRS § 708-830.5(1)(a). According to the HSC, there was no evidence of the value of the property or services. The contract required the owner to pay Atwood over a period of several months in exchange for the benefit of the remodeled bathroom. The record failed to show the value of the remodeling work actually performed by Atwood from May 2006 through February 2007—the period in which Atwood was on the job working for his pay.

The prosecution tried to get around this by presenting several theories to get to $20K. First, the prosecution argued that the owner would have never hired Atwood in the first place had it not been for Atwood’s representation that he was a licensed contractor. The HSC disagreed that this was the kind of value contemplated by the theft statute. This is not evidence of deprived property or services. The prosecution then argued that the $38K paid to another contractor to finish the job should count. Again, the HSC disagreed. The amount paid to the replacement contractor was immaterial. In the end, all amounts paid to Atwood show that it was in exchange for the actual work done in the bathroom. There was no evidence of value.

The HSC vacated the ICA’s judgment and remanded the case to the circuit court with specific instructions to dismiss the theft count.

Saturday, June 1, 2013

HSC Resolves Medical Marijuana Loophole in Favor of Defendant

State v. Woodhall (HSC May 31, 2013)
Background. Geoffrey Woodhall was charged with a single count of knowingly possessing marijuana in violation of promoting a detrimental drug in the third degree. HRS § 712-1249(1). Apparently, Woodhall was arrested after marijuana was found in a plastic baggie at the airport in Kona even though Woodhall had a medical marijuana registry card. Woodhall filed a motion to dismiss on the grounds that the medical marijuana laws protected him from transporting the marijuana. According to Woodhall, the only prohibited use was ingesting the drug in public. The prosecution objected and urged the court to strictly construe the statutes.

Just before trial, the parties stipulated a number of facts: Woodhall knowingly possessed 2.12 grams of marijuana at the Kona airport in a clear, plastic baggie. The airport is a public place. Woodhall had a valid medical marijuana certificate. The marijuana was discovered at the TSA checkpoint. Woodhall was not ingesting the marijuana. The only real issue to be resolved at trial was whether the medical marijuana could be transported in a place open to the public. The district court ruled that the kind of transportation permitted under the medical marijuana laws was limited only to the transportation from caregiver to patient. The stipulated facts in this trial did not include that kind of transfer. The district court found Woodhall guilty as charged and fined him $50 and charged fees up to $280. Woodhall appealed. The ICA held that Woodhall failed to meet his burden in establishing the affirmative defense of medical marijuana. Woodhall petitioned for certiorari.

The Medical Use of Marijuana Defense. “It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329.” HRS § 712-1240.1(2). Furthermore, “[a] qualifying patient . . . may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana under this [part] or chapter 712; provided that the qualifying patient . . . strictly complied with the requirements of this part." HRS § 329-125(a).

Affirmative defenses place the burden of proof on the defendant to show the defense with preponderant evidence. HRS § 701-115(2)(b). This standard “directs the factfinder to decide whether the existence or nonexistence of the contested fact is more probable than its nonexistence.” State v. Romano, 114 Hawai'i 1, 8, 155 P.3d 1102, 1109 (2007). In other words, the defendant “need only offer evidence sufficient to tip the scale slightly in his or her favor, and the [prosecution] can succeed by merely keeping the scale evenly balanced.” Id. Here, however, the parties stipulated most of the facts to narrow in on the issue of the affirmative defense.

The Stipulated Facts . . . The reason why the parties stipulated most of the facts was to cut through the red tape and narrow it down to a single issue. So, the issue presented was with the stipulation that the marijuana was for “medical use” as defined in HRS § 329-121 and that the 2.12 grams were part of the “adequate supply” within the three-ounce limit in HRS § 329-121. Finally, the stipulation that Woodhall’s certificate was valid signifies that he is a “qualifying patient . . . diagnosed by a physician as having a debilitating medical condition” and that the “physician has certified in writing that, in the physician’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient.” HRS § 329-122(a)(1)&(2).

. . . And now the Problem. It is undisputed that Woodhall “was authorized to possess . . . the marijuana for medical purposes pursuant to part IX of chapter 329[.]” HRS § 712-1240.1(1). But Woodhall still had to show that he was in “strict compliance” with HRS chapter 329. HRS § 329-125. Here’s the problem. “Medical use” of marijuana includes the “acquisition, possession, cultivation, use, distribution, or transportation of marijuana[.]” HRS § 329-121. However, “medical use” shall not apply “[a]t any . . . place open to the public.” HRS § 329-122. Woodhall argued that it would be impossibly to “strictly comply” because in order to acquire the marijuana for medical purposes, it may involve transporting it through some places that are “open to the public.” In fact, when Woodhall himself addressed the district court he noted the impossibility by arguing that the only way to absolutely strictly comply would involve the stork dropping it from the sky and onto his property. The ICA, however, disagreed.

HSC Moves Away from Rigid Construction. “Even the rule that penal statutes are to be strictly construed does not permit a court to ignore the legislative intent, nor does it require the rejection of that sense of words used which best harmonizes with the design of the statute or the end in view.” State v. Murray, 63 Haw. 12, 621 P.2d 334 (1980). Accordingly, the HSC delved deeply into the legislative history behind the medical marijuana statutes. It examined the committee reports and the floor debates. The HSC observed that the medical marijuana statutes are incomplete and the law “does not carry out its purpose, leaving qualified patients vulnerable to prosecution. It is especially unclear how medical marijuana is transported to the homes of qualified patients in the first instance, or by qualified patients anywhere outside their homes.” So given that ambiguity—and the fact that the legislators themselves debated the transportation problem, it is even more baffling what the “strict compliance” language in HRS § 329-125 really means.

Applying the Rule of Lenity. In the end, the HSC concluded that the “strict compliance” requirement creates “an impracticality that the legislature could not have intended.” This allowed the HSC to depart from the literal language of the statute. “[D]eparture from a literal construction of a statute is justified when such construction would produce an absurd result and . . . is clearly inconsistent with the purposes and policies of the act[.]” Morgan v. Planning Dep’t, 104 Hawai'i 173, 185, 86 P.3d 982, 994 (2004).

The departure invoked the rule of lenity. “[W]here a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity. Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.” State v. Bayly, 118 Hawai'i 1, 15, 185 P.3d 186, 200 (2008). And so, in construing the statute against the government, Woodhall’s interpretation prevailed and he is entitled to an acquittal.

Chief Justice Recktenwald’s Dissent and Concurrence: Once you get the Marijuana, go Straight home. The CJ agreed with the majority that the legislature created an absurd situation: a patient cannot transport marijuana without going through public places. He agreed that there was no statutorily-authorized way for a patient to obtain medical marijuana or transport it to the home. He concurred that a strict compliance of the statutes would render the obtaining and transporting of the marijuana meaningless. But the CJ felt that this did not justify the majority in holding that the patient can transport with the marijuana outside the home once it has been obtained. Because Woodhall did not present any evidence that he was heading home after immediately obtaining the marijuana.

The Dangers of Broad Interpretations. Ironically, the CJ turned to the same legislative record to justify his position. He noted no absurdity in prohibiting free transportation of the marijuana once it has been obtained. The history suggested that any use outside the home or residence should be punished. The CJ noted that the court must be very careful when wading into the murky waters of legislative history. “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. . . . Even when the court is convinced in its own mind that the Legislature really meant and intended something not expressed by the phraseology of the Act, it has no authority to depart from the plain meaning of the language used.” State v. Klie, 116 Hawai'i 519, 525, 174 P.3d 358, 364 (2007). The power to construe a statute to avoid absurdities, he argued, is limited in nature and the majority’s construction was too broad.