State v. Jumila , 87 Haw. 1 ( 1998 )

KLEIN, Justice.

Defendant-appellant Clemente B. Jumila, Jr., appeals the Third Circuit Court’s denial of his motion to reduce sentence and correct illegal sentence pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35. For the reasons set forth below, we vacate the circuit court’s denial of Jumila’s HRPP Rule 35 motion and reverse Jumila’s conviction and sentence on the Hawai'i Revised Statutes (HRS) § 134-6(a) charge.

I. BACKGROUND

In December 1995, Jumila pleaded no contest to charges of murder in the second degree, in violation of HRS § 707-701.5(1) (1993),¹ and carrying or use of a firearm in the commission of a separate felony, to wit, murder in the second degree, in violation of HRS § 134-6(a) (Supp.1996).² The circuit court accepted the no contest pleas and found Jumila guilty of both offenses. Then, at his sentencing hearing, Jumila argued that, if a mandatory minimum term were to be imposed on the second degree murder charge pursuant to HRS § 706-660.1(1)(a) (1993)³ for the use of a firearm while engaged in the commission of the murder, then HRS § 701-109(1)(a) and (4)(a) (1993) would prohibit the imposition of separate sentences for each offense. Over his objection, the circuit court sentenced Jumila to (1) life imprisonment with the possibility of parole on the second degree murder charge, and (2) an indeterminate term of imprisonment of twenty years on the HRS § 134-6(a) charge. In addition, the circuit court imposed a mandatory minimum term of imprisonment of fifteen years on the second degree murder charge pursuant to HRS § 706—660.1(1)(a). The sentences were to run concurrently.

Jumila thereafter filed a motion, pursuant to HRPP Rule 35, to reduce sentence and correct illegal sentence, which the circuit court denied on May 6, 1996. This timely appeal followed.

II. DISCUSSION

A. Analysis

On appeal, Jumila argues that, because he was sentenced to a mandatory minimum term of fifteen years in connection with the second degree murder charge, the charge of carrying or use of a firearm in the commission of a separate felony was an included offense, as defined in HRS § 701-109(4)(a), of murder in the second degree. Thus, Ju-mila contends that, pursuant to HRS § 701-109(l)(a), which provides that a “defendant may not ... be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in subsection (4) of this section!,]” he should not have received both .the twenty year sentence on the HRS § 134-6(a) charge and the life sentence with the fifteen year mandatory minimum term on the second degree murder charge. Accordingly, Jumila urges us to hold that the circuit court erred in denying his motion to reduce sentence and correct illegal sentence.

According to HRS § 701-109(4)(a), one offense is included within another when “it is established by proof of the same or less than all the facts required to establish the commission of the [other] offense.... ” The use of a firearm is a fact that needs to be proven to establish the HRS § 134-6(a) offense; however, the use of a firearm does not need to be proven in order to establish the offense of second degree murder. That Ju-mila’s sentence for second degree murder was enhanced, pursuant to HRS § 706-660.1(l)(a), because of the use of a firearm does not alter that fact. Accordingly, we hold that the offense of use of a firearm in the commission of second degree murder in violation of HRS § 134-6(a) is not an included offense⁴ of second degree murder in violation of HRS § 707-701.5(1).

Jumila’s HRS § 701-109 argument is not, however, without merit. “[B]ecause HRS § 134-6(a) requires the actual commission of an underlying felony,” the prosecution “is required to prove all of the conduct, attendant circumstances, and results of conduct that comprise the underlying crime” in order to convict a defendant of violating HRS § 134-6(a). State v. Israel, 78 Hawai'i 66, 74-75, 890 P.2d 303, 311-12 (1995). Therefore, by virtue of the statutory definition of HRS § 134-6(a), the felony underlying an HRS § 134-6(a) charge will always be “established by proof of the same or less than all the facts required to establish the commission of the” HRS § 134-6(a) offense. Consequently, the felony underlying an HRS § 134-6(a) offense is, as a matter of law, an included offense of the HRS § 134-6(a) offense.

This analysis is analogous to that set forth in State v. Vinge, 81 Hawai'i 309, 318-19, 916 P.2d 1210, 1219-20 (1996), wherein we concluded that the offenses of “theft and attempted theft, regardless of degree, are included offenses of first degree robbery.” 81 Hawai'i at 319, 916 P.2d at 1220. In Vinge, we noted that, because robbery in the first degree is defined by HRS § 708-840 (1993) as the commission of certain acts “in the course of committing theft,”

in order for the prosecution to prove that a defendant committed robbery in the first degree, the prosecution must also prove— as an element of first degree robbery—all the elements of theft or attempted theft. Therefore, because (1) theft is an element of first degree robbery, (2) a defendant cannot commit first degree robbery without committing theft or attempted theft, and (3) attempted theft is an included offense of theft, see HRS § 701-109(4)(b), we hold that theft and attempted theft, regardless of degree, are included offenses of first degree robbery.

Id.

Because the felony underlying an HRS § 134-6(a) offense is an included offense of the HRS § 134-6(a) offense, pursuant to HRS § 701-109(1)(a), Jumila should not have been convicted of both the HRS § 134-6(a) offense and the underlying second degree murder offense.⁵ If he should not have been convicted of both offenses, then, of course, he should not have received separate sentences for each offense. Consequently, the circuit court erred in denying Jumila’s motion to reduce sentence and correct illegal sentence.

In order to remedy the HRS § 701-109 violation, the conviction and sentence for one of the two offenses must be reversed. When a defendant is convicted of an offense and a “lesser” included offense, see State v. Malufau, 80 Hawai'i 126, 138, 906 P.2d 612, 624 (1995) (order on motion for reconsideration) (an included offense is “lesser” when “it is an offense of a class and grade lower than the greater offense”), we simply reverse the conviction and sentence for the “lesser” included offense. See Vinge, 81 Hawai'i at 324, 916 P.2d at 1223; see also State v. Reyes, 5 Haw.App. 651, 659, 706 P.2d 1326, 1331, reconsideration denied, 5 Haw.App. 683, 753 P.2d 253 (1985). This solution is fair to the defendant because it remedies the HRS § 701-109 violation, and it is fair to the prosecution and the public because it sustains the conviction of the offense of the highest class and grade of which the defendant was convicted.⁶

In the instant case, however, the included offense is murder in the second degree, an offense of a higher class and grade than HRS § 134-6(a), a class A felony. HRS § 134-6(e). Under these circumstances, where (1) the second degree murder conviction was otherwise valid and (2) the HRS § 701-109 violation can be remedied by reversing the HRS § 134-6(a) conviction and sentence, we believe that it would be manifestly unfair to the prosecution and to the public to reverse the second degree murder conviction simply because'it was the included offense. Accordingly, in order to remedy the HRS § 701-109 violation, we reverse Jumila’s conviction and sentence on the HRS § 134-6(a) charge.⁷ Cf. State v. Liuafi, 1 Haw.App. 625, 644, 623 P.2d 1271, 1283 (1981) (where defendant’s convictions of both attempted murder and failure to render assistance violated HRS § 701-109(1)(c) because inconsistent findings of fact were required to establish the commission of the offenses, the proper disposition was to vacate the conviction for failure to render assistance).

B. Response to Dissent

The dissent essentially argues that the legislature intended that an individual could be convicted of both an HRS § 134-6(a) offense and the underlying felony offense and that the legislature thereby created an exception to the statutory prohibition set forth in HRS § 701-109 against convictions for both an offense and an offense included therein. See dissenting opinion at 7-9, 950 P.2d at 1207-1209.⁸ We agree that the legislature could, if it desired, create an exception to the statutory prohibition set forth in HRS § 701-109 against convictions for both an offense and an offense included therein. In our view, however, there is not sufficient basis in the language or legislative history of HRS § 134-6(a) to conclude that the legislature so desired.

We have found no indications in the language of HRS § 134-6(a) or the legislative history preceding its original enactment in 1990 to suggests that the legislature intended that an individual could be convicted of both an HRS § 134-6(a) offense and its underlying felony or that the legislature otherwise intended to create an exception to HRS § 701-109. Moreover, we note that the dissent’s interpretation of the legislative intent is based virtually entirely on an isolated sentence that was mere dictum in a single committee report regarding a 1993 amendment to HRS § 134-6(a). See dissenting opinion at 7, 950 P.2d at 1207 (citing Sen. Stand. Comm. Rep. No. 1217, in 1993 Senate Journal, at 1210).⁹ In light of the attenuated legislative history in this regard, we must abide by the plain language of HRS §§ 134-6(a) and 701-109, which, as discussed above, prohibits the conviction of a defendant for both an HRS § 134-6(a) offense and its underlying felony.

The dissent further asserts that our holding in the instant case is incorrect because it “effectively nullifies” HRS § 134-6(a). Dissenting opinion at 10, 950 P.2d at 1210. However, as the dissent acknowledges, this alleged statutory nullification would, at most, only apply “as far as murder-related and class A felonies are concerned.” Id. We do not disagree that the prosecution is likely “simply to stop bringing HRS § 134-6(a) charges” when the underlying felony is a class A felony or murder or attempted murder in any degree, id. at 10-11, 950 P.2d at 1210-1211, and that “the prosecution is likely to charge a defendant with an HRS § 134-6(a) violation [only] when the underlying felony is a class B or C felony.” Id. at 10, 950 P.2d at 1210. However, even assuming that this is true, we do not agree that this “nullifies” HRS § 134-6(a) in a significant manner.

First, we note that there are far more class B and C felonies than murder-related and class A felonies that could be the underlying felonies in HRS § 134-6(a) charges. There are only ten class A felonies that are defined by the Hawaii Penal Code (HPC).¹⁰ On the other hand, there are approximately twenty class B felonies and well over fifty class C felonies defined in the HPC.¹¹

In addition to the fact that the alleged nullification of HRS § 134^6(a) would, at most, only apply to a relatively small number of murder-related and class A felonies, we note that the effect of any such nullification would be minimal. This is because, even if the prosecution were allowed to convict defendants of both an HRS § 134-6(a) offense and its underlying felony, (1) conviction of an HRS § 134-6(a) offense in addition to an underlying murder-related or class A felony would be unlikely to increase a defendant’s sentence due to the fact that there is “a presumptive legislative preference for concurrent sentencing with respect to multiple terms of imprisonment imposed at the same time”, State v. Cornelio, 84 Hawai'i 476, 493, 935 P.2d 1021, 1038 (1997), and (2) as explained by the dissent, a defendant may not be convicted of an HRS § 134-6(a) violation and receive a mandatory minimum term of imprisonment on the underlying felony pursuant to HRS § 706-660.1. Dissenting opinion at 14, 950 P.2d at 1214. Therefore, in most cases in which an individual commits a murder-related or class A felony with a firearm, one would expect the prosecution to seek imposition of a mandatory minimum term of imprisonment pursuant to HRS § 706-660.1, rather than seek a conviction of an HRS § 134-6(a) offense and attempt to overcome the presumption of concurrent sentencing.

III. CONCLUSION

For the foregoing reasons, we (1) vacate the circuit court’s order denying Jumila’s motion to reduce sentence and correct illegal sentence and (2) reverse Jumila’s conviction and sentence on the HRS § 134—6(a) charge.

1 . HRS § 707-701.5 provides in relevant part:

Murder in the second degree. (1) ... [A] person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.

2 . HRS § 134-6 provides in relevant part:

Carrying or use of firearm in the commission of a separate felony; place to keep firearms; loaded firearms; penalty, (a) It shall be unlawful for a person to knowingly carry on the person or have within the person's immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not; provided that a person shall not be prosecuted under this subsection where the separate felony is:

(1) A felony otherwise defined by this chapter;

(2) The felony offense of reckless endangering in the first degree under section 707-713;

(3) The felony offense of terroristic threatening in the first degree under section 707-716(1)(a), 707-716(1)(b), and 707-716(1)(d); or

(4)The felony offenses of criminal property damage in the first degree under section 708-820 and criminal property damage in the second degree under section 708-821 and the firearm is the instrument or means by which the property damage is caused.

3 .HRS § 706-660.1 provides in relevant part:

Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony. (1) A person convicted of a felony, where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree—up to fifteen ycars[.]

4 . There is no question that the HRS § 134-6(a) offense was not “an attempt to commit” the second degree murder offense or an offense included therein. See HRS § 701—109(4)(b). Similarly, it is evident that the two offense do not differ “only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish" the commission of the HRS § 134-6(a) offense. See HRS § 701-109(4)(c). Therefore, the HRS § 134-6(a) offense was not an included offense of second degree murder under HRS § 701-109(4)(b) or (c).

5 . Although Jumila entered pleas of no contest to the second degree murder and HRS § 134-6(a) charges, because he raised the HRS § 701-109 argument at his sentencing hearing, before judgment was entered, and because the prosecution has never contended that Jumila should be precluded from raising the argument, we conclude that Jumila did not waive his HRS § 701-109 rights when he entered his no contest pleas.

6 .We are mindful of the principles espoused in State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977), and State v. Kuuku, 61 Haw. 79, 595 P.2d 291 (1979), wherein this court ruled that:

[a] denial of [the] rights [to due process and the equal protection of the laws] would ... result ... if a violation of [a] misdemeanor statute ... would invariably and necessarily constitute a violation' of [a] felony provision .... Thus, where the same act committed under the same circumstances is punishable either as a felony or a misdemeanor, under either of two statutory provisions, and the elements' of proof essential to either conviction are exactly the same, a conviction under the felony statute would constitute a violation of the defendant’s rights to due process and the equal protection of the laws.

[Modica], 58 Haw. [at] 250-51, 567 P.2d [at] 421-22 ... (citations omitted). The "Módica rule,” which applies equally to the possibility of prosecution and conviction under two differently classed felonies (for example, under either a class [A] felony statute or a class C felony statute) ... was expressly reaffirmed in ... Kuuku, 61 Haw. [at] 80-81 [ & n. 1], 595 P.2d [at] 293 [ & n. 1]....

State v. Hoang, 86 Hawai'i 48, 51, 947 P.2d 360, 363 (1997); State v. Arceo, 84 Hawai'i 1, 22, 928 P.2d 843, 864 (1996) (citing State v. Aluli, 78 Hawai'i 317, 324, 893 P.2d 168, 175 (1995)) (Levinson, J., concurring).

However, because "the elements of proof essential to” a conviction under HRS § 134-6(a) are not "exactly the same” as those "essential” to a conviction under HRS § 707-701.5(1), the interrelationships between the two statutes do not "generate the very evils rendered unlawful by the Módica rule.” See Arceo, 84 Hawai'i at 22, 928 P.2d at 864.

7 . Because we are reversing Jumila’s conviction and sentence on the HRS § 134-6(a) charge, we need not address Jumila's argument that the double jeopardy clause prohibits the imposition of both a sentence on the HRS § 134-6(a) charge and a mandatory minimum term pursuant to HRS § 706-660.1(1)(a) based on the single use of a firearm.

8 . The discussion on pages 7-8, 950 P.2d at pages 1207-1208 of the dissenting opinion expressly sets forth the dissent’s interpretation of the legislative intent. Furthermore, to the extent that the dissent contends that HRS § 134-6(a) is a "specific” statute on the subject of included offenses and should be construed as an exception to HRS § 701-109(4)(a), see dissenting opinion at 7-8, 950 P.2d at 1208-1209, because the plain language of HRS § 134-6(a) does not in any manner mention included offenses or any exception to the law related thereto, the dissent’s contention can only be based on its interpretation of the legislative intent.

9 . As stated in' the cited committee report, the purpose of the bill at issue was only to:

(1) Make it unlawful to knowingly carry or have in a person’s immediate control a firearm while engaged in the commission of a separate felony;

(2) Provide that a person shall not be prosecuted under section 134-6(a) where the separate felony involves a possessory gun offense under Chapter 346, the offense of reckless endangering in the first degree under section 707-713, or the offense of terroristic threatening in the first degree except where a public servant is involved—all of which already have enhanced penalties for the use or possession of a firearm; and

(3) Applies the new provisions to convictions occurring after the approval of the Act.

10 . The ten class A felonies defined by the HPC are: Manslaughter, HRS § 707-702; Kidnapping, HRS § 707-720; Sexual Assault in the First Degree, HRS § 707-730; Promoting Child Abuse in the First Degree, HRS § 707-750; Extortion with Firearms, Explosives, and Dangerous Weapons, HRS § 707-768; Robbery in the First Degree, HRS § 708-840; Compensation by an Adult of Juveniles for Commission of a Class A or B Felony, HRS § 709-904.5; Promoting a Dangerous Drug in the First Degree, HRS § 712-1241; Promoting a Harmful Drug in the First Degree, HRS § 712-1244; and Commercial Promotion of Marijuana, HRS § 712-1249.4. In addition, Attempt to Commit any Class A Felony, HRS §§ 705-500, -502, is also a class A felony.

Of these, pursuant to our holding in State v. Ganal, 81 Hawai’i 358, 373, 917 P.2d 370, 385 (1996), because HRS §§ 707-768 and 709-840(l)(b) already include the use of a dangerous instrument or weapon as an element, it is unlikely that the prosecution would charge defendants with an HRS § 134-6(a) violation if the underlying felony were Extortion with Firearms, Explosives, and Dangerous Weapons or Robbery in the First Degree, even if it were not precluded from doing so by HRS § 701-109. We further note that although HRS § 485-21 also defines certain violations of the Uniform Securities Act to be class A felonies, it is unlikely, though theoretically possible, that anyone would be prosecuted for carrying a firearm while committing such an offense.

11 .Some of the class B and C felonies defined in the HPC that could be the underlying felonies for HRS § 134-6(a) offenses are: Assault in the First Degree, HRS § 707-710; Assault in the Second Degree, HRS § 707-711(1)(a); Terroristic Threatening in the First Degree (against a public servant), HRS § 707—716(1)(c); Unlawful Imprisonment in the First Degree, HRS § 707-721; Custodial Interference in the First Degree, HRS § 707-726; Sexual Assault in the Second Degree, HRS § 707-731; Sexual Assault in the Third Degree, HRS § 707-732; Extortion in the First Degree, HRS § 707-765; Extortion in the Second Degree, HRS § 707-766; Burglary in the Second Degree; HRS § 708-811; Theft in the First Degree, HRS § 708-830.5; Theft in the Second Degree, HRS § 708-831; Theft of Livestock, HRS § 708-835.5; Unauthorized Control of a Propelled Vehicle, HRS § 708-836; Unauthorized Entry into a Motor Vehicle, HRS § 708-836.5; Robbery in the Second Degree, HRS § 708-841; Theft of Credit Cards, HRS § 708-8102(1); Money Laundering, HRS § 708A-3; Escape in the Second Degree, HRS § 710-1021; Intimidating a Correctional Worker, HRS §710-1031; Intimidating a Witness, HRS § 710-1071; Retaliating Against a Witness, HRS § 710-1072.2; Intimidating a Juror, HRS § 710-1074; Retaliating Against a Juror, HRS § 710-1075.5; Aggravated Harassment by Stalking, HRS § 711-1106.4; Interference with the Operator of a Public Transit Vehicle, HRS § 711-1112; Promoting Prostitution in the First Degree, HRS § 712-1202; Promoting Prostitution in the Second Degree, HRS § 712-1203; Promoting Gambling in the First Degree, HRS § 712-1221; Promoting Gambling Aboard Ships, HRS § 712-1222.5; Promoting a Dangerous Drug in the Second Degree, HRS § 712-1242; Promoting a Dangerous Drug in the Third Degree, HRS § 712-1243; Promoting a Harmful Drug in the Second Degree, HRS § 712-1245; Promoting a Harmful Drug in the Third Degree, HRS § 712-1246; Promoting a Detrimental Drug in the First Degree, HRS § 712-1247; Commercial Promotion of Marijuana in the Second Degree, HRS § 712-1249.5; and Promoting a Controlled Substance in, on, or near Schools or School Vehicles, HRS § 712-1249.6. In addition, Attempt to Commit any Class B or C Felony, HRS § 705-500, -502; Solicitation to Commit any Class A or B Felony, HRS §§ 705-510, -512; and Conspiracy to Commit any Class A, .B, or C Felony; HRS §§ 705-520, -526, are graded as class B or C felonies.

The foregoing list is not meant to be exhaustive and, among other things, does not include any class B or C felonies that already include the use of a dangerous instrument or weapon as an element In addition, the list does not include any of the class B and C felonies that are defined outside the HPC. However, we note that with respect to most of the class B and C felonies that are defined outside the HPC, it is unlikely, though theoretically possible, that anyone would be prosecuted for carrying a firearm while committing such offenses. The few exceptions might be: Forcibly Resisting a Poultry Inspector, HRS § 161—47(d); Intimidating a Person to Execute a Declaration Directing the Withholding or Withdrawing of a Life-sustaining Procedure, HRS § 327D-17; and Intimidating a Person to Execute a Declaration under HRS § 327F-3, HRS § 327F-12(a).