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State v. Sasai

Supreme Court of Hawaii

October 29, 2018

STATE OF HAWAI'I, Respondent/Plaintiff-Appellant,
v.
MATTHEW SEAN SASAI, Petitioner/Defendant-Appellee, (CAAP-15-0000865; CASE NO. 1DCW-14-0004628) AND STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant/Cross-Appellee,
v.
BRENT N. TANAKA, Petitioner/Defendant-Appellee/Cross-Appellant (CAAP-15-0000866; CASE NO. 1DCW-14-0005843)

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-00008 65)

          Antoinette Lilley and James S. Tabe (John M. Tonaki and Audrey L. Stanley with them on the briefs) for petitioners

          Brian R. Vincent (Keith M. Kaneshiro with him on the briefs) for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          McKENNA, J.

         I. Introduction

         In this consolidated appeal, Matthew Sean Sasai and Brent N. Tanaka ("Sasai" and "Tanaka," respectively; collectively, "Petitioners") assert that their due process and equal protection rights were violated when they were each charged with one count of Prostitution under Hawaii Revised Statutes ("HRS") § 712-1200(1)(b) (2014). When Petitioners were charged, HRS § 712-1200(1)(b) provided that "[a] person commits the offense of prostitution if the person . . . [p]ays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct," and HRS § 712-1200(1)(a) provided that "[a] person commits the offense of prostitution if the person . . . [e]ngages in, or agrees or offers to engage in, sexual conduct with another person for a fee[.]" In their motions to dismiss, Petitioners argued that HRS §§ 712-1200(1)(a) and (1)(b) prohibited the same conduct, but subsection (1)(b) carried a harsher penalty because it made them ineligible for a deferred acceptance of a guilty or no contest plea ("DAG/DANC plea") under HRS § 853-4(a)(13)(V) (2014). They argued that pursuant to State v. Modica, 58 Haw. 249, 567 P.2d 420');">567 P.2d 420 (1977), where two crimes prohibit the same conduct, it would violate their due process and equal protection rights to convict them of the crime carrying the harsher penalty. The District Court of the First Circuit ("district court")[1] agreed and entered its Findings of Fact, Conclusions of Law, and Order ("FOF/COL and Order") on October 6, 2015, granting Petitioners' motions to dismiss based on Modica and dismissing the charges with prejudice.

         On appeal, a majority of the Intermediate Court of Appeals ("ICA") vacated the district court's rulings in a Summary Disposition Order ("SDO"), determining that HRS § 712-1200(1) (a) applied only to sellers of sexual conduct while subsection (1)(b) pertained only to purchasers. The ICA majority concluded that subsections (1)(a) and (1)(b) therefore prohibited different conduct, and that the district court erred in finding a Modica violation. Judge Ginoza[2] dissented, agreeing with the district court that a person charged under HRS § 712-1200(1) (b) could be charged under HRS § 712-1200(1)(a), and that subsection (1)(b) carried a harsher penalty by virtue of ineligibility for a DAG/DANC plea.

         On certiorari, Petitioners assert the ICA majority erred in vacating the district court's order granting dismissal. We agree, and we therefore vacate the ICA's SDO and Judgment on Appeal. Because the district court did not provide reasons for its dismissal with prejudice, however, we remand these cases to the district court for further proceedings consistent with this opinion.

         II. Background

         A. District Court Proceedings

         On September 10, 2014, Sasai was charged with one count of Prostitution, in violation of HRS § 712-1200(1) (b).[3] Tanaka was charged with the same offense on December 18, 2014.[4]

         1. Petitioners' Motions to Dismiss

         On May 15, 2015, Tanaka filed his Motion to Dismiss for Violation of Defendant's Right to Due Process and Equal Protection of the Laws ("Tanaka Combined Motion"). On June 9, 2015, Sasai filed his Motion to Dismiss for Violation of Defendant's Right to Due Process and Equal Protection of the Laws ("Sasai Modica Motion").[5]

         In their respective motions, Petitioners requested their charges be dismissed, arguing that being charged under HRS § 712-1200(1)(b) violated their due process and equal protection rights under the United States and Hawai'i constitutions because HRS § 712-1200(1)(b) carried a harsher punishment, but contained "the exact same elements" as HRS § 712-1200(1) (a) . They noted that this court, in Modica, ruled that a felony conviction would violate the defendant's rights to due process and the equal protection of the laws "where the same act committed under the same circumstances is punishable either as a felony or as a misdemeanor, under either of two statutory provisions, and the elements of proof essential to either conviction are exactly the same[.]" 58 Haw. at 251, 567 P.2d at 422 (citations omitted). Petitioners argued "the Modica rule applies to any situation where the elements of two different crimes regardless of their classification are the same, but the statutory penalties are different."

         Petitioners urged the district court to analyze "the elements of the charges based on the particular facts of the case[, ]" as this court had done in State v. Hoang, 86 Hawai'i 48, 947 P.2d 360 (1997), and the ICA had done in State v. Hatori, 92 Hawai'i 217, 990 P.2d 115 (App. 1999). They contended that both HRS §§ 712-1200(1)(a) and (1)(b) required "the 'same act' of entering into an agreement for sexual conduct for a fee, which implicitly involves agreement for payment," and therefore that act was punishable "under either HRS § 712-1200(1)(a) and HRS § 712-1200(1)(b) 'precisely because the elements of proof essential to either conviction are exactly the same.'" This conclusion was supported, Petitioners contended, by the legislative history of HRS § 712-1200.

         At the time Petitioners were charged, both HRS § 712-1200(1)(a) and (1)(b) were petty misdemeanors punishable by a mandatory $500 fine and up to thirty days in jail, but convictions under subsection (1)(b) were not eligible for deferred acceptance of guilty or no contest plea under HRS § 853-4(13)(V) (2014). Because the punishment for subsection (1)(b) was more severe, that is, violators of subsection (1)(a) could seek a deferred plea but violators of (1)(b) could not, Petitioners asserted that their respective charges should be dismissed as a violation of their due process and equal protection rights under Modica.

         In its memoranda in opposition to Petitioners' respective motions, the State submitted, based on its interpretation of HRS § 712-1200, that subsection (1)(a) should be read to apply only to "those persons offering sex for a fee," whereas subsection (1)(b) should be read to apply to "those persons who offer a fee for sex. ..." The State urged the district court to read the statute this way "to give proper meaning to all portions of § 712-1200," and avoid rendering subsection (1)(b) a "nullity." Further, the State argued the legislative history of the statute made clear that subsection (1)(b) was intended to apply to the patrons of prostitutes.

         The State contended that HRS §§ 712-1200(1)(a) and (1)(b) did not have the same elements and did not prohibit the same act because "subsection (1)(a) applies to those who offer sex for money, whereas subsection (1)(b) applies to those [who] offer money for sex." The State asserted "[t]he acts . . . reside on opposite sides of the transaction or agreement and cannot, therefore, be the same act." Additionally, the State argued the statutory penalties for violating subsections (1)(a) and (1)(b) were the same, and asserted that a deferral is a "non-penalty" because "[w]hether or not a deferral is an option is not the punishment itself but is a delayed dismissal given certain conditions."

         2. District Court's FOF/COL and Order

         The district court held a two-day consolidated hearing on the motions to dismiss. Petitioners called three witnesses and the district court accepted several stipulations.[6] On July 21, 2015, the district court granted the Petitioners' motions, based on Modica, and dismissed their respective charges with prejudice.[7]

         On October 6, 2015, the district court filed its written FOF/COL and Order.[8] Based on the testimony of former Deputy Prosecuting Attorney Klemen Urbane ("Urbane"), the district court found that before the 2011 amendment to HRS § 712-1200(1), "both [purchasers and sellers of sexual conduct] were prosecuted under the same provision - HRS § 712-1200(1); the subdivisions in what would later become HRS §§ 712-1200(1)(a) and (1)(b) did not exist yet. The language in HRS § 712-1200 did not prohibit Urbane from prosecuting any [purchasers of sexual conduct] charged with prostitution." Factual stipulations, entered into by the parties and the district court on June 26, 2015, further explained how HRS § 712-1200 changed over time:

1. Prior to 1990, HRS § 712-1200(1) provided: "A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person in return for a fee."
2. In 1990, HRS § 712-1200(1) was amended to delete the phrase "in return" such that HRS § 712-1200(1) then read: "A person commits the offense of prostitution if the person engages in, or agrees or offers to engage in, sexual conduct with another person for a fee."
3. The language of HRS § 712-1200 remained the same from 1990 until July 1, 2012. [9]
4. Effective April 25, 2013, HRS [§] 853-4 excludes persons charged under HRS § 712-1200(1)(b) from being able to move for a deferred acceptance of a no contest or guilty plea.
5. Conference Committee Report No. 76 provides that one of the purposes of House Bill No. 240 [(the 2011 amendment to HRS § 712-1200)] was to "[e]xtend the offenses of prostitution and solicitation of prostitution to reach those who pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct."

         The district court concluded that only a purchaser of sexual conduct "can properly be charged under HRS § 712- 1200(1)(b)" but that "all persons charged with prostitution- whether [purchasers of sexual conduct] or [sellers of sexual conduct]-can properly be charged under HRS § 712-1200(1) (a) ." This conclusion was "evident from the plain language of HRS § 712-1200(1)(a)," the district court held, "as both (i) a prospective or actual buyer of sex, and (ii) a prospective or actual seller of sex, can be said to engage in, agree to engage in, or offer to engage in sexual conduct with another person for a fee (as required by HRS § 712-1200(1)(a))." The enforcement history of the statute also supported this conclusion, because "[f]or many years, the State prosecuted both [purchasers and sellers of sexual conduct] under an identical statute (HRS § 712-1200(1))," and the fact that "the State prosecuted [sellers and purchasers of sexual conduct] alike under a statute substantively identical to the current HRS § 712-1200(1) (a) is further evidence to support the conclusion that all persons now charged with prostitution . . . can properly be charged under HRS § 712-1200(1) (a) ."

         The district court rejected the State's argument "that the Court's interpretation of HRS § 712-1200(1) (a) would render HRS § 712-1200(1)(b) a nullity," relying on its plain language interpretation of the statute:

10. . . . HRS § 712-1200(1)(b) properly can be used to charge [purchasers of sexual conduct], at least insofar as charging a [purchaser of sexual conduct] with prostitution would comport with the plain language of the statute. Therefore, the Court's interpretation of HRS § 712-1200(1)(a) does not render HRS § 712-1200(1)(b) a nullity. The Court does, however, find that HRS § 712-1200 (1) (b) is superfluous. However, neither HRS § 712-1200(1)(a) nor HRS § 712-1200(1)(b) are ambiguous. Although the Hawai[']i Legislature may have adopted a superfluous statute, the Court cannot ignore the plain language of HRS § 712-1200(1)(a); and it cannot ignore the legislative history of HRS § 712-1200, or the history of enforcement of the prostitution statute. Therefore, the Court cannot accept the State's argument on this point.
11. In all cases that were brought under HRS § 712-1200(1), and are or can be brought under HRS § 712-1200(1)(a), the fundamental bargain is identical: the accused offers to engage in sex (or agrees to engage in sex or does, in fact, engage in sex) with another person in exchange for a fee. This bargain is the same for both parties involved, as they both agree to engage in sex for a fee. Thus, the conduct is the same-engaging in sex for a fee-regardless of whether the involved party is a [seller of sexual conduct] or a [purchaser of sexual conduct].

         Because a person charged under HRS § 712-1200(1)(b) is prohibited from seeking a deferral of a guilty or no contest plea under HRS § 853-4(a) (13) (V), the district court concluded that "in practical effect, a person charged under HRS § 712-1200(1)(b) is exposed to the possibility of a far harsher result than a person charged under HRS § 712-1200(1) (a) ." That "harsher result" included a guaranteed fine, a potential jail sentence, and the inability to seek "deferral, dismissal and expungement[.]"

         The district court recognized that under Modica, "if a violation of a misdemeanor statute would invariably and necessarily also constitute a violation of a felony statute, then it is a violation of equal protection and due process to proceed against a defendant under the felony statute." Additionally, it noted a felony conviction is a due process and equal protection violation "when the same act committed under the same circumstances is punishable either as a felony or as a misdemeanor[.]" Because Modica applied to differently classed felonies in State v. Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996), the district court concluded it should logically apply "to differentially classed petty misdemeanors, such as charges under HRS §[§] 712-1200(1) (a) and (1)(b)."

         Finally, the district court concluded that the conduct prohibited by HRS §§ 712-1200(1)(a) and (1)(b) was the same, and "[t]herefore, the result should be the same, but it is not-due to HRS § 853-4(a)(13)(V), which essentially discriminates against defendants charged under HRS § 712-1200(1)(b)." The district court further concluded that because "[t]he guiding principle of Modica is that if the same conduct can be charged more harshly under one statute than another," it would be a violation of the due process and equal protection clauses for the State to prosecute Petitioners under the "statute which yields a harsher penalty." The district court summarily dismissed the charges against Sasai and Tanaka with prejudice.

         The district court's Judgment and Notice was entered on October 10, 2015. The State appealed and Tanaka cross-appealed. [10]

         B. ICA Proceedings

         On the State's motion, Petitioners' cases were consolidated under CAAP-15-865.

         In its opening brief, the State raised three points of error related to the Petitioners' Modica motions. First, the State challenged COLs 5 through 12, in which the district court interpreted the language of HRS §§ 712-1200(1)(a) and (1)(b) as prohibiting the same conduct. The State reasserted its argument that subsection (1)(a) applies solely to sellers of sexual conduct because subsection (1)(b) applies solely to purchasers. Second, the State disputed COLs 17 through 19, which analyzed HRS §§ 712-1200(1)(b) and 853-4, asserting that even if HRS § 712-1200(1)(b) was subject to a harsher penalty, Modica did not apply to the Petitioners' cases because "the elements of the two subsections are not the ...


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