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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                20-DEC-2019
                                                                08:16 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI I

                                 ---o0o---


                           STATE OF HAWAI I,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                         KAOHULANI MEDEIROS,
                   Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
           (CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX)

                            DECEMBER 20, 2019

             RECKTENWALD, C.J., McKENNA, POLLACK, AND
      WILSON, JJ.; WITH NAKAYAMA, J., CONCURRING SEPARATELY

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          In 1976, the legislature enacted Hawai i Revised

Statutes (HRS) Chapter 853 to allow for the deferred acceptance

of guilty (DAG) pleas.      The legislature thereby sought “to

establish a means whereby a court in its discretion may defer

acceptance of a guilty plea for a certain period on certain
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conditions with respect to certain defendants[,] . . .

result[ing] in the discharge of the defendant and expungement of

the matter from [the defendant’s] record.”            1976 Haw. Sess. Laws

Act 154, § 1 at 279.      The legislature later amended HRS Chapter

853 to allow for deferred acceptance of no contest (DANC) pleas. 1

1983 Haw. Sess. Laws Act 290, § 1 at 617.

           As the legislature explained, HRS Chapter 853 serves

important policy goals and the availability of its benefits is

specifically tailored in furtherance of those goals:

           [I]n certain criminal cases, particularly those
           involving first time, accidental, or situational
           offenders, it is in the best interest of the State and
           the defendant that the defendant be given the
           opportunity to keep [the defendant’s] record free of a
           criminal conviction if [the defendant] can comply with
           certain terms and conditions during a period
           designated by court order. Especially where youth is
           involved, a record free of a felony conviction, which
           would foreclose certain educational, professional, and
           job opportunities may, in a proper case, be more
           conducive to offender rehabilitation and crime
           prevention than the deterrent effects of a conviction
           and sentence.

1976 Haw. Sess. Laws Act 154, § 1 at 279.

           HRS § 853-4 (2014 & Supp. 2018) sets forth the

circumstances under which a defendant is ineligible to benefit

from HRS Chapter 853.       One such circumstance is where the offense

charged is nonprobationable.        HRS § 853-4(5).       In State v.

Hamili, this court determined that Prohibited Fishing with Gill



     1
            Compare HRS § 853-1 (1977) with § HRS 853-1 (2014). As discussed
below, we note that motions for a deferred plea are to be treated similarly
whether or not the underlying plea is guilty or no contest.

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Nets was a nonprobationable offense because the use of the word

“shall” in the applicable sentencing provision indicated three

mandatory sentencing alternatives, none of which allowed for a

term of probation.      87 Hawai i 102, 107, 952 P.2d 390, 395

(1998).

             This case requires us to revisit Hamili and to consider

the bounds of a trial court’s discretion in granting or denying a

motion for a DANC plea.2       As discussed herein, we believe that

the legislature intended for the benefits of HRS Chapter 853 to

be broadly available to defendants, except where clearly

articulated, deliberate exceptions apply.            Applying those

principles here, we conclude that the underlying offenses at

issue in this case are probationable and Hamili is hereby

overruled.

             In addition, although the grant or denial of a motion

for a DANC plea is a matter within the discretion of the trial

court, in the instant case, the court erred in denying Kaohulani

Medeiros’s motion for a DANC plea.          We therefore vacate the

Intermediate Court of Appeals’ (ICA) Judgment on Appeal and the

Circuit Court of the Second Circuit’s (circuit court) Judgment,

Conviction, and Probation Sentence, and remand the case to the


      2
            The concurring opinion contends that we are applying plain error
review in our analysis. Respectfully, that is incorrect. It is of no import
whether the State did or did not challenge Medeiros’s eligibility for a DANC
plea during the sentencing proceeding. The circuit court would not have
abused its discretion in denying the DANC plea if the offense was not eligible
for a deferred sentence. Thus, we are required to address this issue,
including whether Hamili was properly decided.

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circuit court for proceedings consistent with this opinion.

                              I.   BACKGROUND3

            At around 9:30 p.m. on February 24, 2017, Department of

Land and Natural Resources (DLNR) Officers John Yamamoto and Mark

Chamberlain approached Medeiros on the side of Pi ilani Highway

on Maui, on suspicion that Medeiros may have been night hunting

using artificial light, in violation of the Hawai i

Administrative Rules (HAR).        Medeiros was dressed in a camouflage

t-shirt and admitted to Officer Yamamoto that “he was

spotlighting.”4     Officer Yamamoto seized a headlamp, an unloaded

rifle, a magazine containing ammunition, and a case of bullets

from Medeiros’s truck.

            The State charged Medeiros by Felony Information and

Non-Felony Complaint with the following four counts:

      Count I:          Place to Keep Unloaded Firearms Other Than

                        Pistol and Revolvers, a class C felony, in

                        violation of HRS § 134-24(a) (2011);

      Count II:         Place to Keep Ammunition, a misdemeanor, in

                        violation of HRS § 134-27(a) (2011);


      3
            The facts contained herein are from the testimony of Department of
Land and Natural Resources Officers John Yamamoto and Mark Chamberlain,
elicited at a hearing on a motion that Medeiros filed to suppress all
statements that he made to the officers, as well as evidence seized from his
vehicle. The circuit court denied the motion. Medeiros did not testify at
the hearing, and there was no trial in this case. Defense counsel cross-
examined the officers, but did not offer any testimony or evidence to
substantively contradict the officers’ testimony.
      4
            According to Officer Yamamoto, “spotlighting” refers to “panning
[a] light up, down, side to side looking for various animals,” in connection
with night hunting.

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      Count III:         Hunting Hours, a petty misdemeanor, in

                         violation of HAR § 13-123-6; and

      Count IV:          Artificial Light Prohibited, a petty

                         misdemeanor, in violation of HAR § 13-123-7. 5

A.   Circuit Court Proceedings

             Medeiros entered an initial plea of not guilty as to

all four counts.      He subsequently filed a motion to suppress “all

evidence obtained by law enforcement officers of the state [DLNR]

arising out of an investigative detention of [Medeiros] on

Pi ilani Highway on Feb[ruary] 24, 2017[,]” including all

statements made by Medeiros and all physical evidence seized from

his truck.     The circuit court6 held a hearing on the matter, at

which Officers Yamamoto and Chamberlain testified. 7

      1.     Suppression Hearing

             Officer Yamamoto testified that at around 9:00 pm on

February 24, 2017, he and Officer Chamberlain were patrolling an

area between Kaupō and Ulupalakua for hunting and fishing

violations.     Officer Yamamoto testified that he and Officer


      5
            HAR § 13-123-6 provides: “Hunting is permitted from one-half hour
before sunrise to one-half hour after sunset. No person shall hunt from one-
half hour after sunset to one-half hour before sunrise except where specified
differently.”

            HAR § 13-123-7 provides: “No person shall hunt game mammals with
the use of artificial light, except as optical sighting devices during
authorized hunting hours.”
      6
             The Honorable Rhonda I.L. Loo presided.
      7
            Officer Chamberlain corroborated Officer Yamamoto’s testimony.
Because Officer Chamberlain’s testimony is duplicative, we do not include it
in this opinion.

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Chamberlain stopped at an elevated vantage point with a clear,

unobstructed view of the area.        Officer Yamamoto observed a gray

Toyota pickup truck pass by and “[u]pon the Toyota coming up on

the other horizon across [] the valley, . . . [he] started seeing

panning of a light.”

          Officer Yamamoto testified that the light was coming

from the driver’s side of the vehicle, which was slowly moving

down Pi ilani Highway, “heading towards Kaupo/Hana.”             Officer

Yamamoto explained that spotlighting is a “common act of a hunter

[engaged in] night hunting.       They tend to look for animals on the

side of the road.”     He further explained that the truck’s slow

maneuvering was “an act that’s consistent [with what] a night

hunter would do.”     Because spotlighting is “pretty common with

night hunting in that area,” Officer Yamamoto suspected that

there “could be possibly night hunting going on[.]”

          Officer Yamamoto testified that after observing the

truck for about two minutes, he and Officer Chamberlain got into

separate vehicles and headed toward it.          Officer Yamamoto

admitted that he lost sight of the truck for about fifteen

minutes, until he noticed a gray Toyota pickup truck traveling in

the opposite direction.      The truck turned left in front of

Officer Yamamoto, onto the shoulder.         Although Officer Yamamoto

could not say for sure that the truck on the shoulder was the

same vehicle that he observed from the vantage point, it had the

same general appearance, and Officer Yamamoto had only observed


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one other vehicle - a smaller sedan - on the road that night.                As

a result, Officer Yamamoto also pulled onto the shoulder.

            Officer Yamamoto stated that when he exited his

vehicle, the driver of the truck was walking towards him, wearing

a camouflage t-shirt.      He identified the driver as Kaohulani

Medeiros.   Officer Yamamoto testified that he told Medeiros, “the

reason why we’re here . . . I won’t lie to you.            What we observed

earlier was a light panning from this vehicle.”            Medeiros

responded, “I’m not going to lie to you either.            I was

spotlighting.”

            Officer Yamamoto further testified that when he asked

Medeiros if he had any weapons, Medeiros recovered a rifle and a

case of bullets from the cab of his truck and stated that the

magazine for the weapon “was in the cup holder between the

driver’s seat and the passenger seat.”          Officer Yamamoto

testified that the magazine contained ammunition, but there were

no bullets in the rifle’s chamber.         Officer Yamamoto further

testified that he recovered a headlamp “that was given to him as

what was being shined.”

            According to Officer Yamamoto, Medeiros stated that he

borrowed the rifle from his brother and was planning to go

hunting the next morning.       Medeiros also stated that he was

driving home from work when he pulled over to urinate, and

further explained that he worked in Wailuku and lived in Hāna.

However, Officer Yamamoto testified that Medeiros’s truck was


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actually headed toward Wailuku, rather than Hāna, just before it

pulled onto the shoulder.       Officer Yamamoto issued Medeiros two

criminal citations for “night illumination for hunting . . . and

for night hunting.”

            The circuit court entered findings of fact, conclusions

of law, and an order denying Medeiros’s motion to suppress.                  The

circuit court’s findings of fact essentially restated the

testimony of Officers Yamamoto and Chamberlain.

     2.     Plea Agreement and Motion for a DANC Plea

            Medeiros entered into a plea agreement whereby the

State would dismiss Counts I and II if Medeiros pleaded guilty or

no contest to Counts III and IV.          The plea agreement further

provided that Medeiros would be sentenced to a $100 fine for each

count.    Medeiros filed a motion for a DANC plea, expressing his

intent to plead no contest to both petty misdemeanor charges, and

requesting that the circuit court defer acceptance of his no

contest pleas, pursuant to HRS Chapter 853. 8          Medeiros attached


     8
            HRS § 853-1(a) (2014) provides that, upon a proper motion,

            (1)   When a defendant voluntarily pleads guilty or
                  nolo contendere, prior to commencement of trial,
                  to a felony, misdemeanor, or petty misdemeanor;

            (2)   It appears to the court that the defendant is
                  not likely again to engage in a criminal course
                  of conduct; and

            (3)   The ends of justice and the welfare of society
                  do not require that the defendant shall
                  presently suffer the penalty imposed by law,

            the court, without accepting the plea of nolo
            contendere or entering a judgment of guilt and with
                                                                   (continued...)

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letters written by his father and brother as exhibits to his

motion for a DANC plea.         The letters explained that the rifle

seized from Medeiros’s truck was registered to Medeiros’s father,

and that both Medeiros and his brother had permission to use and

transport it.

              At a hearing on Medeiros’s change of plea and

sentencing, the circuit court found that Medeiros “voluntarily

enter[ed] pleas of no contest with an understanding of the nature

of the charges against him and the consequences of his plea.”

Defense counsel then requested that the circuit court grant

Medeiros’s motion for a DANC plea, in consideration of the

factors set forth by HRS § 853-1(a), because: 1) Medeiros

voluntarily pled no contest to both petty misdemeanor charges; 2)

Medeiros’s history showed that he would not likely engage in a

future criminal course of conduct; and 3) the administration of

justice did not require that Medeiros suffer any penalty, other

than the fines set forth by the plea agreement and the conditions

imposed for the duration of a DANC plea probationary period.

Accordingly, defense counsel requested that the circuit court

sentence Medeiros to a $100 fine for each count, pursuant to the

plea agreement, and “continue the deferral pending the final

outcome or payment of the $200.00 fine.            In other words, if



     8
         (...continued)
              the consent of the defendant and after considering the
              recommendations, if any, of the prosecutor, may defer
              further proceedings.

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[Medeiros] pays $200.00 in one month, then the [DANC plea]

probationary period ends.”

          Medeiros then addressed the court and stated, “[s]orry

for the mess that I got myself into.         And you’re not going to see

me in here again.     I can guarantee that.       This was just one big

misunderstanding.     And I[’m] sorry.”

          The prosecutor deferred to the circuit court with

regard to Medeiros’s motion for a DANC plea, stating:

          Medeiros was honest with the DLNR officers that night.
          Um, he was honest. Maybe he didn’t quite know the
          law.

          . . . .

          [H]e’s young. He’s 23 years old. He’s never been in
          trouble before. This is – he’s never been arrested
          before. I think that this is a huge learning
          experience for him. . . . I don’t think that we’ll
          see him in this courtroom again.

          He definitely has support from his family. I think
          his parents have been here with him every time in
          court.

          Mr. Medeiros, Sr. wrote a letter explaining the
          situation. . . . [P]erhaps this was a
          misunderstanding in that the Medeiros family doesn’t
          quite know the law and understand the law. I think by
          this point they do.

          And . . . so I’m comfortable that this was a learning
          experience for Mr. Medeiros. I don’t think that he
          will be back in court again.

          And so with regards to the request for a deferral,
          I’ll defer to the Court on that. . . . [T]he State is
          requesting, as pursuant to a plea agreement, the
          minimum fine, which is $100.00 on each of the petty
          misdemeanor counts.

          The circuit court found that Medeiros was “likely again


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to engage in such a criminal course of conduct,” and accordingly,

denied Medeiros’s motion for a DANC plea.            The circuit court

explained its ruling as follows:

            [A]ll I have before me is basically the arguments of
            counsel and the evidence that the Court heard at the
            motion to suppress.9

            . . . .

            As far as the request for deferral under [HRS §] 853-
            1[,] the Court has to consider whether a defendant
            voluntarily pleads no contest, which he has today,
            prior to the trial, whether it appears to the Court
            the defendant is not likely to again engage in the
            criminal course of conduct, and [whether] the ends of
            justice and the welfare of society do not require that
            the defendant presently suffer the penalty imposed by
            law.

            And the Court is concerned about the defendant’s . . .
            half truths, admitting that he was spotlighting,
            [while at] the same time saying that he was [going]
            home to Hana from work, when he was going in the
            opposite direction.

            The Court’s also concerned about the camouflage wear,
            the . . . location where this took place[,] which is
            known for night hunting. That it occurred at night,
            8:30 to 9:00 [], which is definitely within the time
            period for hunting hours.

            And that the artificial light . . . was recovered
            along with ammunition, [the] magazine in the
            cupholder, as well as [the fact that Medeiros was]
            wearing [] camo[uflage] . . ., and the weapon [] found
            in the vehicle.



      9
            Medeiros and the State had executed a stipulation and order
waiving the preparation of a presentence investigation (PSI) report. At the
hearing on Medeiros’s change of plea and sentencing, the circuit court
explained to Medeiros that the PSI report would be “pretty thorough and [would
give the court] a very good picture of [his] background and the kind of person
[he is], and what [his] history is.” After conducting an extensive colloquy
with Medeiros, the circuit court found that Medeiros “knowingly, intelligently
and voluntarily waiv[ed] his right to have a [PSI report] prepared.”
Accordingly, it entered the stipulation and order.

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                The Court finds the defendant is likely again to
                engage in such a criminal course of conduct. I’m
                going to deny [the] request for deferred acceptance of
                no contest plea.

        3.      Judgment, Conviction, and Probation Sentence

                The circuit court convicted Medeiros of Count III,

Hunting Hours, and Count IV, Artificial Light Prohibited - both

petty misdemeanor offenses.           HAR §§ 13-123-6, 13-123-7, 13-123-

13; HRS § 183D-5(a) (Supp. 2018). 10           The circuit court imposed a

fine of $100 for each count, for a total of $200.                It also

sentenced Medeiros to two six-month terms of probation, one for

each count, to run concurrently. 11

                Pursuant to a motion by the State, which was filed in

accordance with the plea agreement, the circuit court dismissed

with prejudice Counts I and II, the felony and misdemeanor

charges.

B.   Appeal to the ICA

                Medeiros appealed to the ICA, arguing that the circuit

court abused its discretion in denying his motion for a DANC

plea.        In response, the State argued that Medeiros was ineligible



        10
                See supra note 5.

            HAR § 13-123-13 provides: “Any person violating any of the
provisions of this chapter shall be subject to criminal and or administrative
penalties as provided in [HRS §§] 183D-5, 171-6.4, or 171-31.6.”

            HRS § 183D-5(a) provides, in part, “Any person violating . . . any
rule adopted under this chapter shall be guilty of a petty misdemeanor [.]”
        11
            The circuit court did not enter written findings of fact or
conclusions of law with regard to its denial of Medeiros’s motion for a DANC
plea.

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for a DANC plea under HRS § 853-4(a)(5) because the offenses to

which he pled no contest were nonprobationable.             (Citing Hamili,

87 Hawai i 102, 952 P.2d 390.)        The State further argued that the

circuit court did not abuse its discretion in denying Medeiros’s

motion for a DANC plea.

            The ICA did not address the State’s argument regarding

Medeiros’s eligibility for a DANC plea or probation.              With regard

to the circuit court’s denial of Medeiros’s motion for a DANC

plea, the ICA determined that, “based on the record in this case,

as well as the information and argument before the [c]ircuit

[c]ourt, it did not appear to the [circuit] court that it was

unlikely that Medeiros would again engage in a criminal course of

conduct.”    Although the ICA acknowledged that “there [was] scant

support in the record for or against this determination,” it

concluded that Medeiros had failed to show that the circuit

court’s denial of his motion for a DANC plea constituted an abuse

of discretion.     Thus, the ICA affirmed the circuit court’s

Judgment, Conviction, and Probation Sentence.

                         II.   STANDARDS OF REVIEW

A.   Statutory Interpretation

            “The interpretation of a statute is a question of law

reviewable de novo.”      Gray v. Admin. Dir. of the Court, 84

Hawai i 138, 144, 931 P.2d 580, 586 (1997) (citing State v.

Arceo, 84 Hawai i 1, 10, 928 P.2d 843, 852 (1996)).             Our

statutory construction is guided by the following well-


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established rules:

           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.

           When there is doubt, doubleness of meaning, or
           indistinctiveness or uncertainty of an expression used
           in a statute, an ambiguity exists.

           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.” HRS § 1-15(1) (1993). Moreover, the
           courts may resort to extrinsic aids in determining
           legislative intent. One avenue is the use of
           legislative history as an interpretive tool. Gray, 84
           Hawai i at 148, 931 P.2d at 590 (footnote omitted).
           [The appellate] court may also consider “the reason
           and spirit of the law, and the cause which induced the
           legislature to enact it to discover its true meaning.”
           HRS § 1-12(2). “Laws in pari materia, or upon the
           same subject matter, shall be construed with reference
           to each other. What is clear in one statute may be
           called upon in aid to explain what is doubtful in
           another.” HRS § 1-16 (1993).

State v. Koch, 107 Hawai i 215, 220, 112 P.3d 69, 74 (2005).

B.   Motion for a DANC Plea

           The grant or denial of a motion for a DANC plea is
           within the discretion of the [trial] court and will
           not be disturbed unless there has been manifest abuse
           of discretion. State v. Tom, 69 Haw. 602, 603, 752
           P.2d 597, 597 (1988). “An abuse of discretion occurs
           if the trial court has clearly exceeded the bounds of
           reason or has disregarded rules or principles of law
           or practice to the substantial detriment of a party
           litigant.” State v. Davia, 87 Hawai i 249, 253, 953
           P.2d 1347, 1351 (1998) (internal quotation marks and
           citation omitted).

State v. Klie, 116 Hawai i 519, 521-22, 174 P.3d 358, 360-61


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(2007).

                              III.   DISCUSSION

           Medeiros argues that the circuit court abused its

discretion by denying his motion for a DANC plea based on its

finding that he was likely again to engage in a criminal course

of conduct.    We agree.

A.   Medeiros Was Eligible for a DANC Plea

           As a threshold matter, we address the State’s

contention that Medeiros was ineligible for a DANC plea because

probation was not an authorized sentence for the offenses to

which he pled no contest.

           We begin our analysis with a historical overview.                  In

1972, the legislature undertook a “complete reorganization” of

the State’s criminal laws, which was aimed at, inter alia,

eliminating inconsistencies.         Conf. Comm. Rep. No. 1, in 1972

House Journal, at 1035.       This objective was advanced, in part,

through the enactment of Chapter 706, which largely standardized

sentencing.    1972 Haw. Sess. Laws Act 9, § 1 at 70-85.             Pursuant

to HRS § 706-600 (2014), “[n]o sentence shall be imposed

otherwise than in accordance with [HRS] chapter [706].”               The

commentary on HRS § 706-600 states, in part:

           This section establishes that dispositions for all
           offenses - whether defined within or outside of the
           Penal Code - are to be imposed in accordance with this
           chapter and that, except for the power of the court to
           impose “incidental civil sanctions[,”] . . . as
           provided in § 706-605(4), “the only dispositions
           authorized are those permitted by the Code.”



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           The Penal Code, in centralizing provisions relating to
           the disposition of convicted defendants in one
           chapter, differs from previous law which provided a
           separate sanction (fine or imprisonment or both) for
           each offense.

           . . . .

           By centralizing sentencing the Code seeks to achieve
           an internal consistency which is lacking under
           previous law.

(Emphases added).

           Four years after the legislature reorganized the

criminal laws by enacting Chapter 706, in 1976, the legislature

enacted Chapter 853, which allows for DAG pleas.            1976 Haw. Sess.

Law Act 154, § 1 at 279.      And in 1983, the legislature added DANC

pleas to Chapter 853.      1983 Haw. Sess. Laws Act 290, § 1 at 617.

The statute provides the same process for entering both DAG and

DANC pleas, and the same criteria apply to both.            HRS § 853-

1(a)(1).

           The deferral period associated with a DANC or DAG plea

is closely analogous to a probationary period.            State v. Kaufman,

92 Hawai i 322, 328, 991 P.2d 832, 838 (2000) (“Upon review of

the legislative and judicial history of DAG plea procedures, it

is clear that the DAG plea deferral period is closely analogous

to a ‘probationary period.’”); HRS § 853-1 (allowing for the

deferred acceptance of guilty pleas and no contest pleas without

distinguishing between the two).          It is therefore unsurprising

that, pursuant to HRS § 853-4(a)(5), HRS § 706-620 and Chapter

853 operate together to provide that defendants are ineligible to


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benefit from Chapter 853 where the underlying offense is

nonprobationable.

          HRS § 706-620 provides that “[a] defendant who has been

convicted of a crime may be sentenced to a term of probation.”                A

defendant in a criminal case is eligible to be sentenced to

probation under this section unless one of the six exceptions

provided therein applies, or a clear indication of legislative

intent to bar the application of HRS § 706-620 exists.              The six

excluded categories of crimes are as follows:


          (1)    The crime is first or second degree murder or
                 attempted first or second degree murder;

          (2)    The crime is a class A felony, except class A
                 felonies defined in chapter 712, part IV, and by
                 section 707-702;

          (3)    The defendant is a repeat offender under section
                 706-606.5;

          (4)    The defendant is a felony firearm offender as
                 defined in section 706-660.1(2);

          (5)    The crime involved the death of or the
                 infliction of serious or substantial bodily
                 injury upon a child, an elder person, or a
                 handicapped person under section 706-660.2; or

          (6)    The crime is cruelty to animals where ten or
                 more pet animals were involved under section
                 711-1108.5 or 711-1109.

HRS § 706-620.

          Furthermore, HRS § 706-605 (2014) specifically

authorizes a court, in its discretion, to sentence a person

convicted of a petty misdemeanor to a suspended sentence or a

term of probation.     HRS §§ 706-605(1), (3).

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             In Hamili, this court determined that Prohibited

Fishing with Gill Nets was a nonprobationable offense, pursuant

to this court’s interpretation of the applicable sentencing

provision, HRS § 188-70(a) (1993).          87 Hawai i at 107, 952 P.2d

at 395.   The provision provided:

             Any person violating any provision of this chapter
             . . . or any rule adopted pursuant thereto is guilty
             of a petty misdemeanor and upon conviction thereof
             shall be punished as follows:

             (1)   For a first conviction, by a fine of not more
                   than $500, or by imprisonment of not more than
                   thirty days, or both [.]

HRS § 188-70(a) (1993) (emphasis added).

             This court determined that the use of the word “shall”

indicated that the three sentencing alternatives set forth by the

statute constituted a mandatory sentencing provision.               Hamili, 87

Hawai i at 107, 952 P.2d at 395.         Therefore, this court concluded

that “a DANC plea [was] unavailable for persons convicted of

violating the gill net fishing statute.”           Id.   This court

explained:

             Because the sentencing court is limited to the
             alternatives expressly enumerated in HRS § 188-70, and
             probation is not an enumerated alternative, the
             offense for which the sentence is imposed is
             nonprobationable. Thus, HRS § 853-4(5), which
             provides that the DANC plea is not applicable where
             the offense charged is nonprobationable, prohibits the
             allowance of a DANC plea.

Id. (emphasis added).

             Like the sentencing provision in Hamili, the sentencing

provision in the instant case, HRS § 183D-5, utilizes the word


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“shall” and sets forth three sentencing alternatives. 12            Thus, it

appears that Hamili is dispositive of the inquiry at hand.

However, as discussed below, we conclude that Hamili was wrongly

decided and we hereby overrule it.

          This court’s analysis in Hamili relied heavily on State

v. Dannenberg, 74 Haw. 75, 837 P.2d 776 (1992), and State v. Mun

Chung Tom, 69 Haw. 602, 752 P.2d 597 (1988).           However, the Hamili

court did not address the applicability of HRS § 706-620, and in

light of the legislature’s clear intent in enacting HRS Chapter

706, we find that the Hamili court’s reliance upon these cases

was misplaced.    The sentencing provision in Hamili is

distinguishable from those at issue in Dannenberg and Tom because

it lacks a clear indication of legislative intent to bar

application of HRS § 706-620.

          In Dannenberg, this court held that trial courts lack

power to grant motions for a DANC plea in prostitution cases.                74

Haw. at 80, 837 P.2d at 779.       The sentencing provision at issue

stated, in pertinent part:

          Notwithstanding any other law to the contrary, a
          person convicted of committing the offense of
          prostitution shall be sentenced as follows:



     12
          HRS § 183D-5(a) provides, in pertinent part:

          Any person violating . . . any rule adopted under this
          chapter shall be guilty of a petty misdemeanor, and
          upon conviction thereof, shall be punished as follows:

          (1)    For a first conviction, by a mandatory fine of
                 not less than $100, or imprisonment of not more
                 than thirty days, or both[.]

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           (a)   For the first offense, a fine of $500 and the
                 person may be sentenced to a term of
                 imprisonment of not more than thirty days;

                 . . . .

           (b)   For any subsequent offense, a fine of $500 and a
                 term of imprisonment of thirty days, without
                 possibility of suspension of sentence or
                 probation.

HRS § 712-1200 (Supp. 1991) (emphases added).

           This court noted that the legislative history of the

provision revealed clear legislative intent “to limit the

discretion of the trial court in sentencing prostitution offenses

and to provide a mandatory sentencing structure unlike that for

other petty misdemeanors.”       Dannenberg, 74 Haw. at 81, 837 P.2d

at 779 (citing Sen. Conf. Comm. Rep. No. 15, 1981 Senate Journal,

at 907).   In light of this indication of clear legislative intent

to exclude prostitution from the reach of general sentencing

provisions, this court “construe[d] ‘notwithstanding any other

law to the contrary’ in HRS § 712-1200 to bar the acceptance of

DANC and DAG pleas.”       Id. at 83, 837 P.2d at 780.        This court

explained, “[w]e do so because we believe that the legislature

did not intend the trial courts to have discretionary authority

to avoid the sentencing structure the legislature has imposed

upon prostitution law offenders.”         Id.

           Similarly, in Tom, this court held that it was beyond

the trial court’s discretion to grant a DANC plea in driving

under the influence cases because the underlying offense was

nonprobationable.     69 Haw. at 603, 752 P.2d at 598.           The

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sentencing provision at issue stated, “[a] person committing the

offense of driving under the influence of intoxicating liquor

shall be sentenced as follows without possibility of probation or

suspension of sentence.”      HRS § 291-4 (1985 & Supp. 1987).           This

court determined that this language was “sufficiently clear in

mandating the sentence to be imposed,” and thus affirmed the

trial court’s denial of the defendant’s motion for a DANC plea.

Tom, 69 Haw. at 603, 752 P.2d at 598.

          In contrast, the plain language of the sentencing

statute in Hamili was ambiguous with regard to the possibility of

probation or suspension of sentence, and as to the application of

general sentencing provisions.        As such, Hamili is

distinguishable from Dannenberg and Tom.          As set forth above,

through the enactment of HRS § 706-605, the legislature made

clear that a sentencing court is authorized to grant a DANC plea

or to impose a period of probation where the underlying offense

is a petty misdemeanor.      HRS §§ 706-605(1)(a), (3) (“In addition

to any disposition authorized in subsection (1)[, including

probation], the court may sentence a person convicted of a . . .

petty misdemeanor to a suspended sentence.”).            Furthermore, HRS

§ 706-600 and the commentary thereto indicate clear legislative

intent to “centraliz[e] sentencing.”         HRS § 706-600 (“[n]o

sentence shall be imposed otherwise than in accordance with [HRS]

chapter [706]).    The Hamili court failed to analyze these

statutory pronouncements in reaching its determination.              Upon


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further consideration, we hold that a clear indication of

contrary legislative intent must be present to exclude an offense

from the scope of HRS § 706-620, and that the use of the word

“shall” in the context of requiring a selection from alternative

sentences is insufficient to meet this standard.             We therefore

overrule Hamili.

            Because here, as in Hamili, there is no clear

indication of legislative intent to exclude the petty misdemeanor

offenses of Night Hunting and Artificial Light Prohibited from

the scope of HRS § 706-620, the offenses are probationable.

There is no suggestion that Medeiros was otherwise ineligible for

a DANC plea under HRS § 853-4. 13       We therefore conclude that

Medeiros was eligible for a DANC plea.

B.   The Circuit Court Abused its Discretion by Denying
     Medeiros’s Motion for a DANC Plea

            Where a defendant is eligible for a DANC or DAG plea,

the court may, in its discretion, defer acceptance of the

defendant’s plea and impose conditions of deferment, provided

that:

            (1)   [The] defendant voluntarily pleads guilty or
                  nolo contendere, prior to commencement of trial,
                  to a felony, misdemeanor, or petty misdemeanor;

            (2)   It appears to the court that the defendant is
                  not likely again to engage in a criminal course


      13
            HRS § 853-4(a) sets forth the circumstances under which a
defendant is ineligible to benefit from HRS Chapter 853. These include
specifically enumerated offenses and categories of offenses for which DANC and
DAG pleas are unavailable, as well as conditions pertaining to the manner in
which the charged offense was committed, and to the defendant’s criminal
history, that preclude application of HRS Chapter 853.

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                      of conduct; and

                (3)   The ends of justice and the welfare of society
                      do not require that the defendant shall
                      presently suffer the penalty imposed by law.

HRS § 853-1(a).

                However, the grant or denial of a motion for a DANC

plea may be set aside on appeal where there has been manifest

abuse of discretion.          Klie, 116 Hawai i at 521-22, 174 P.3d at

360-61.

                As discussed above, Medeiros was eligible for a DANC

plea.        The circuit court acknowledged that Medeiros voluntarily

pleaded nolo contendere to the underlying petty misdemeanor

offenses prior to the commencement of trial.               However, the

circuit court denied Medeiros’s motion for a DANC plea based on

its finding that Medeiros was likely to again engage in a

criminal course of conduct.

                Medeiros did not testify at the suppression hearing and

no presentence investigation report was prepared. 14              Thus, the

only information before the circuit court at the time of its

ruling on Medeiros’s motion for a DANC plea was: the testimony of

Officers Yamamoto and Chamberlain elicited at the suppression

hearing; Medeiros’s motion for a DANC plea and the attached

letters from his father and brother; the arguments of counsel;

and Medeiros’s statement, “[s]orry for the mess that I got myself

into.        And you’re not going to see me in here again.             I can


        14
                See supra note 8.

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guarantee that.     This was just one big misunderstanding.           And

I[’m] sorry.”

            The circuit court explained its finding that Medeiros

was likely to again engage in a criminal course of conduct as

follows:

            [T]he Court is concerned about the defendant’s . . .
            half truths, admitting that he was spotlighting,
            [while at] the same time saying that he was [going]
            home to Hana from work, when he was going in the
            opposite direction.

            The Court’s also concerned about the camouflage wear,
            the . . . location where this took place[,] which is
            known for night hunting. That it occurred at night,
            8:30 to 9:00 [], which is definitely within the time
            period for hunting hours [prohibited].

            And that the artificial light . . . was recovered
            along with ammunition, [the] magazine in the
            cupholder, as well as [the fact that Medeiros was]
            wearing [] camo[uflage] . . ., and the weapon [] found
            in the vehicle.

            As such, it appears that the circuit court based its

ruling on: 1) concerns regarding the manner in which Medeiros

committed the underlying offenses; and 2) the fact that one of

the statements that Medeiros made to the DLNR officers at the

time he was apprehended appeared to be inconsistent with such

evidence.    These were not sufficient grounds for the denial of

Medeiros’s motion for a DANC plea.

            First, the circuit court expressed concern regarding

certain aspects of Medeiros’s conduct at the time he was

apprehended by the DLNR officers, including the location where

the offenses took place, Medeiros’s camouflage t-shirt, and the


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equipment that was seized from his vehicle.           Although not

explicitly stated, it appears that the circuit court drew an

inference of sophistication from the way in which Medeiros

committed the underlying offenses, and thus found an apparent

likelihood that Medeiros would again engage in a criminal course

of conduct.   Even assuming that the circumstances of a

defendant’s commission of the underlying offense could, in some

instances, indicate a heightened likelihood of re-offending, we

do not see how the facts cited by the circuit court here give

rise to an inference that Medeiros was more likely to re-offend

than any other DANC plea-eligible defendant charged with the same

underlying offenses.

          Second, Medeiros’s statement to the DLNR officer that

he was going home to Hana at the time he was apprehended does not

constitute evidence that he is likely to again engage in a

criminal course of conduct simply because the statement may seem

implausible or inconsistent.       In addition, as recognized by the

State, “Medeiros was honest with the DLNR officers” when he

admitted that he had been spotlighting.

          In sum, there was a lack of evidence before the circuit

court to support its conclusion that Medeiros was likely to again

engage in a criminal course of conduct.          Moreover, Medeiros was a

youthful, first-time offender and the only statement that he made

to the circuit court consisted of an apology, acknowledgment of

the “mess that [he] got [himself] into,” and a “guarantee” that


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he would not re-offend.      Thus, in light of the entire record

before the circuit court, its denial of Medeiros’s motion for a

DANC plea constituted an abuse of discretion.

                             IV.   CONCLUSION

          As discussed herein, the circuit court erred in denying

Medeiros’s motion for a DANC plea.         We therefore vacate the ICA’s

February 28, 2019 Judgment on Appeal and the circuit court’s

October 12, 2017 Judgment, Conviction, and Probation Sentence.

This case is remanded to the circuit court for proceedings

consistent with this opinion.

Hayden Aluli                          /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Sabrina S. McKenna
Peter A. Hanano
for respondent                        /s/ Richard W. Pollack

                                      /s/ Michael D. Wilson




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