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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               29-OCT-2018
                                                               08:24 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant,
                                vs.
        MATTHEW SEAN SASAI, Petitioner/Defendant-Appellee,
            (CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX)

                                     AND

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant/Cross-Appellee,
                               vs.
 BRENT N. TANAKA, Petitioner/Defendant-Appellee/Cross-Appellant
          (CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX).
________________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                         (CAAP-XX-XXXXXXX)

                             OCTOBER 29, 2018

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

                 OPINION OF THE COURT BY 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
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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 (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,




1
      The Honorable James H. Ashford presiding.



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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 Ginoza2 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.




2
      Judge Ginoza became Chief Judge effective April 24, 2018.



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                                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 Hawaiʻi 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


3
       This case was 1DCW-14-4628, which became CAAP-15-865.
4
       This case was 1DCW-14-5843, which became CAAP-15-866.
5
      Sasai filed his Motion to Dismiss for Violation of Defendant’s Right to
Equal Protection of the Laws (“Sasai Equal Protection Motion”). That motion,
as well as part of the Tanaka Combined Motion, made an equal protection
argument based on alleged discriminatory enforcement of the prostitution
statute. Petitioners have not pursued that argument on certiorari.


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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.



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    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

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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




6
      Petitioners called two Honolulu Police Department (“HPD”) officers and
one former prosecutor to testify to the State and HPD’s enforcement practices
with respect to HRS §§ 712-1200(1)(a) and (1)(b). The majority of that
testimony relates to the equal protection argument not before this court.
7
      The district court took Petitioners’ discriminatory enforcement
argument under advisement, and later denied their motions with respect to
that argument.



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FOF/COL and Order.8       Based on the testimony of former Deputy

Prosecuting Attorney Klemen Urbanc (“Urbanc”), 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

Urbanc 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

8
      Specifically, the district court’s Order (1) granted Sasai’s Modica
Motion; (2) denied Sasai’s Equal Protection Motion; and (3) granted in part
and denied in part Tanaka’s Combined Motion.
9
      House Bill No. 240, which amended HRS § 712-1200 to include the
language at issue in this case, actually became effective July 1, 2011.     H.B.
240, S.D. 1, C.D. 1, 26th Leg., Reg. Sess. (2011).


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           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).”




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    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[ʻ]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




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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

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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 same.”           Third, the State noted that


10
      Tanaka’s cross appeal argued the Petitioners’ discriminatory
enforcement argument, and challenged errors in the FOF that Tanaka ultimately
conceded did not “significantly affect the district court’s ruling denying
Tanaka’s motion in part (or granting Tanaka’s motion in part).”


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Petitioners conceded the State could refile the charges under

HRS § 712-1200(1)(a) if the charges under subsection (1)(b) were

dismissed without prejudice.

     The State asserted the district court’s interpretation of

HRS §§ 712-1200(1)(a) and (1)(b), in addition to rendering

subsection (1)(b) “superfluous,” also rendered HRS § 853-

4(a)(13)(V) void.     The State opined that if the legislature

thought HRS § 712-1200(1)(a) applied to purchasers of sexual

conduct as well as sellers, “it could and it would have amended

the language . . . so that it would have been even clearer that

HRS § 712-1200(1)(a) is not a proper charge for those who buy

sex.”

     Petitioners argued their alleged conduct would be a

violation of HRS § 712-1200(1)(a) that necessarily constituted a

violation of HRS § 712-1200(1)(b).         They explained that in

Hoang, this court looked to the elements of the statutes,

language of the charging document, and the specific facts of the

case to determine whether a Modica violation had occurred.               86

Hawai‘i at 58, 947 P.2d at 370.        Petitioners noted that in

Hatori, the ICA performed a similar analysis to conclude that,

as applied to the facts of that case, charging under a higher-

grade felony statute was a Modica violation.           92 Hawai‘i at 227,

990 P.2d at 125.     Based on these cases, Petitioners asserted the



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State was required to prove the same facts under HRS §§ 712-

1200(1)(a) and (1)(b):

           Under either of the two statutory provisions, the State
           essentially must establish the following: a defendant
           intentionally or knowingly entered into agreement with
           another person; the first term of the agreement is to
           engage in sexual conduct; and the second term of the
           agreement is payment of a fee. Thus, the act of “agreeing
           to engage in sexual conduct with another person for a fee,”
           which is required for a conviction for HRS § 712-1200(1)(a)
           is identical to the act of “agreeing to pay a fee to
           another to engage in sexual conduct”, which is required for
           the [sic] a conviction under HRS § 712-1200(1)(b). Clearly,
           the harm, which the Modica rule seeks to prevent, is
           perpetuated when the State is allowed to exercise unguided
           discretion in choosing to charge a person under subsection
           (1)(b) instead of (1)(a) when the elements of proof under
           [sic] offense are identical.

    Petitioners asserted subsections (1)(a) and (1)(b) provided

no limitations or guidance for their application, leaving the

State with unbridled discretion in choosing which defendants to

charge under which subsection.        Although Petitioners conceded

that the legislature intended to render persons charged under

HRS § 712-1200(1)(b) ineligible for deferral, they contended the

legislature’s intent with respect to either HRS § 712-1200(1)(b)

or HRS § 853-4 was irrelevant to application of the Modica rule.

    In reply, the State argued that a subsequent amendment to

HRS § 712-1200(1)(a) in 2016 “confirmed” the legislature’s

original intent was that HRS § 712-1200(1)(a) should apply to

sellers of sexual conduct and HRS § 712-1200(1)(b) should apply

to purchasers of sexual conduct.          Specifically, the legislature

distinguished subsection (1)(a) from subsection (1)(b) by adding



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the phrase “in return,” so that subsection (1)(a) was violated

when a person engaged in sexual conduct “in return for a fee.”11

       In its SDO, the ICA vacated the district court’s order

insofar as it granted the Petitioners’ motions based on Modica.

State v. Sasai, No. CAAP-15-865, State v. Tanaka, No. CAAP-15-

866 (App. Jun. 30, 2017) (SDO) at 2.            While it concluded that

the district court’s reading of HRS § 712-1200(1)(b) was

correct, and that subsection applied only to purchasers of

sexual conduct, the ICA held that the district court erred in

determining that subsection (1)(b) was superfluous.               Sasai, SDO

at 4.      In order to “harmonize” subsections (1)(a) and (1)(b),

and give effect to them both, the ICA concluded that if

subsection (1)(b) applied to the purchasers of sexual conduct,

then subsection (1)(a) was meant to apply to the sellers of

sexual conduct.        Sasai, SDO at 4-5.      The ICA looked to the

legislative history of HRS § 712-1200(1)(b), as well as the

subsequent amendment to HRS § 712-1200(1)(a), to confirm its

interpretation of the statute.           Sasai, SDO at 5.

       Having determined that subsections (1)(a) and (1)(b)

prohibited different conduct, the ICA reasoned that the

subsections therefore contained different “essential elements


11
      When the State filed its Reply Brief on June 2, 2016, it noted that the
amendment “was awaiting the Governor’s signature to go into effect.” The
amendment became effective on July 1, 2016. HRS § 712-1200 (2016).



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for each offense and can be punished differently.”            Sasai, SDO

at 6.   The ICA held that the Modica rule did not apply to

Petitioners’ cases and the district court erred in granting

their motions to dismiss.       Id.

    Judge Ginoza dissented.           Sasai, SDO at 12 (Ginoza, J.,

dissenting).    In her view, the history and plain language of HRS

§§ 712-1200(1)(a) and (1)(b) made clear that a person “who

pays/agrees to pay/offers to pay a fee to another to engage in

sexual conduct” could be charged under either subsection, and

that “the prohibited conduct was the same under both

subsections.”    Sasai, SDO at 13 (Ginoza, J., dissenting).              “In

short,” she explained, “for such person, the elements of proof

for conviction under either subsection (1)(a) or (1)(b) were the

same, and a violation of subsection (1)(a) would invariably and

necessarily constitute a violation of subsection (1)(b).”

Sasai, SDO at 13-14 (Ginoza, J., dissenting).

    Judge Ginoza noted that although Modica addressed a felony

and a misdemeanor offense, this court has applied the Modica

rule to different grades of felonies in Arceo, and the ICA did

so in Hatori.    Sasai, SDO at 14 (Ginoza, J., dissenting).              She

opined that Modica applied to Petitioners’ cases, where both

subsection (1)(a) and subsection (1)(b) were petty misdemeanors

but “the penalty under subsection (1)(b) is more severe in that

a DAG is precluded under HRS § 853-4(a)(13)(V).”            Id.   In sum,

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Judge Ginoza would have affirmed the district court’s dismissal

of Petitioners’ charges.          Id.

C.     Application for Writ of Certiorari

       Petitioners raise a single question in their Application:

“Whether the ICA majority gravely erred in holding that the

trial court erred in dismissing the charges due to violations of

Petitioners’ Due Process and Equal Protection rights pursuant to

State v. Modica, 58 Haw. 249, 567 P.2d 4[2]0 (1977).”                They make

three arguments:        first, the ICA majority incorrectly

interpreted HRS § 712-1200(1)(a) by relying on dictionary

definitions; second, the subsequent legislative history of HRS §

712-1200(1)(a) did not support the majority’s position; and

third, the majority judicially revised the statute, which was

improper.

       Petitioners assert that, based on the ICA’s definition of

“engage” as “to do or take part in something,” a person can be

either the fee payer or fee recipient and commit prostitution

under HRS § 712-1200(1)(a).             They contend that the “essence” of

the offense of prostitution “is that the parties enter into an

agreement or contract for sexual conduct for a fee.”               Because

the statute contained no limitation to reduce the scope of

subsection (1)(a) to the sellers of sexual conduct, Petitioners

argue the plain language of HRS § 712-1200(1)(a) prohibited both

the buying and selling of sexual conduct.

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    As to the ICA majority’s use of subsequent legislative

history, Petitioners assert that subsequent legislative history

“should be viewed with extreme caution,” citing precedent by

this court and persuasive authority from the United States

Supreme Court.     Petitioners contend that, instead, the actual

legislative history of HRS § 712-1200(1)(a) is relevant, and its

1990 amendment made clear that the language of HRS § 712-1200(1)

was meant to apply to both sellers of sexual conduct and

purchasers.    They assert the 2011 amendment splitting HRS § 712-

1200(1) into subsections (1)(a) and (1)(b) was intended to

prohibit the purchasing of sexual conduct.          Based on committee

reports, Petitioners maintain, however, that the legislature

enacted the 2011 amendment because it was mistaken about the

effect of its 1990 amendment, which already prohibited that

behavior.

    Petitioners argue that the 2016 amendment to HRS § 712-

1200(1)(a) was a substantive change to the law, not a

“clarification” of its language, because the statute was already

clear and unambiguous.      Ultimately, they argue, the

legislature’s 2016 “clarification” of HRS § 712-1200(1)(a) to

“distinguish” it from subsection (1)(b) was indicative of the

fact that, previously, there was no distinction between the

sections, and purchasers of sexual conduct could have been

charged under either subsection (1)(a) or (1)(b).

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       Finally, Petitioners assert the ICA majority’s

interpretation of HRS § 712-1200(1)(a) was an improper judicial

revision of the statute.          They argue the ICA majority’s

interpretation of the word “engage” improperly limited the

application of subsection (1)(a) to the sellers of sexual

conduct, which did not comport with the plain and unambiguous

language of the statute.          Furthermore, Petitioners opine that

the district court’s interpretation of subsection (1)(a) does

not render subsection (1)(b) superfluous.             Rather, in their

view, it would mean that defendants charged under subsection

(1)(b) between April 25, 2013 and July 1, 2016, would have a

Modica challenge, as long as they were otherwise eligible for a

deferral.

                           II.   Standards of Review

A.     Questions of Law

       Questions of law are reviewable de novo under the

right/wrong standard of review.           State v. Jess, 117 Hawaiʻi 381,

391, 184 P.3d 133, 143 (2008).

B.     Statutory Construction

       This court’s construction of statutes is guided by the

following rules:

              First, the fundamental starting point for statutory
              interpretation is the language of the statute itself.
              Second, where the statutory language is plain and
              unambiguous, our sole duty is to give effect to its plain
              and obvious meaning. Third, implicit in the task of
              statutory construction is our foremost obligation to

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              ascertain and give effect to the intention of the
              legislature, which is to be obtained primarily from the
              language contained in the statute itself. Fourth, when
              there is doubt, doubleness of meaning, or indistinctiveness
              or uncertainty of an expression used in a statute, an
              ambiguity exists.

State v. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177

(2009) (quoting Citizens Against Reckless Dev. v. Zoning Bd. of

Appeals of the City & Cty. of Honolulu, 114 Hawaiʻi 184, 193, 159

P.3d 143, 152 (2007)).

                                III. Discussion

A.     Evolution of HRS § 712-1200

       Before its amendment in 1990, HRS § 712-1200 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.”            HRS § 712-1200(1) (1986)

(emphasis added).        In 1990, the phrase “in return” was removed,

so that 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 for a

fee.”      1990 Haw. Sess. Laws Act 204, § 1 at 442.           As recounted

by the ICA in State v. Espinosa, 120 Hawai‘i 478, 210 P.3d 1

(App. 2009), “both the Senate and House Judiciary committees

noted . . . that the purpose of . . . amend[ing] HRS § 712–1200

[was] ‘to make it clear that the customer of a prostitute is

also guilty of the offense of prostitution[.]’”              120 Hawai‘i at

480, 201 P.3d at 3 (citing S. Stand. Comm. Rep. No. 325, in 1989

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Senate Journal, at 946; H. Stand. Comm. Rep. No. 1205–90, in

1990 House Journal, at 1316).

     In 2011, the legislature further amended HRS § 712-1200(1),

splitting it into the two subsections at issue in this case.

H.B. 240, S.D. 1, C.D. 1, 26th Leg., Reg. Sess. (2011).

Although the 1990 amendment already rendered HRS § 712-1200(1)

applicable to the purchasers of sexual conduct, Espinosa, 121

Hawai‘i at 480, 210 P.3d at 3, the legislature’s 2011 amendment

intended to “[e]xtend the offense[] of prostitution . . . to

reach those who pay, agree to pay, or offer to pay a fee to

another person to engage in sexual conduct[.]”           Conf. Comm. Rep.

No. 76 on H.B. No. 240 in 2011 House Journal, at 1630, 2011

Senate Journal, at 732.      The Senate Standing Committee Report

specifically states the amendment was intended “to address the

concerns raised from the case State v. Espinoza[sic][.]”             S.

Stand. Comm. Rep. No. 1137, in 2011 Senate Journal, at 1285.

     Whether or not the legislature was mistaken as to the

effect of the 1990 amendment, the 2011 amendment retained the

language of HRS § 712-1200(1) (Supp. 1990) when it created HRS §

712-1200(1)(a) (Supp. 2011), which provided:           “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[.]”      HRS § 712-1200(1)(a) (Supp. 2011).         In

contrast, the newly created subsection (1)(b) contained new

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language:       “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.”            HRS § 712-1200(1)(b)

(Supp. 2011).

       Effective July 1, 2016, HRS § 712-1200(1)(a) now provides:

“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 in return for a fee[.]”               H.B. 2561, 28th

Leg., Reg. Sess. (2016) (emphasis in original).               This amendment

was intended to “clarify” HRS § 712-1200(1)(a), “distinguishing

the offense from the offense under section 712-1200(1) . . . in

which the other person pays the fee[.]”             Id.    This case,

however, is governed by the previous version of the statute.

B.     The Modica Rule

       In Modica, this court held that a defendant’s rights to due

process of law and equal protection of the laws would be

violated when “a violation of [a] misdemeanor statute . . .

would invariably and necessarily constitute a violation of the

felony provision.”        58 Haw. at 250, 567 P.2d at 421 (citations

omitted).       A defendant may not be convicted of an offense that

carries a harsher penalty than another offense containing the

same elements:

              [W]here 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,

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           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.

58 Haw. at 251, 567 P.2d at 422 (citations omitted).            However,

where the defendant’s conduct violates either of two statutes,

but the defendant is charged or convicted of the offense that

carries the lesser punishment, there is no Modica violation.

See Hoang, 86 Hawaiʻi at 59, 947 P.2d at 371 (holding that

because the defendant was charged with the misdemeanor offense,

he could not be convicted of the felony, and therefore “was not

threatened with unbridled, capricious, and prejudicial

prosecutorial discretion.”).

     Although “[s]tatutes may on occasion overlap, depending on

the facts of a particular case, . . . it is generally no defense

to an indictment” that the defendant could have been charged

under another statute.      Modica, 58 Haw. at 251, 567 P.2d at 422.

Rather, when statutes overlap, “the matter is necessarily and

traditionally subject to the prosecuting attorney’s discretion.”

58 Haw. at 251, 567 P.2d at 422.          Overlapping statutes raise

constitutional concerns when, lacking legislative guidance,

prosecutors are left with unbridled discretion to charge

defendants with a more severe offense.          58 Haw. at 251, 567 P.2d

at 422 (citing State v. Pirkey, 281 P.2d 698, 703 (Or.

1955)(overruled on different grounds by City of Klamath Falls v.

Winters, 619 P.2d 217 (Or. 1980)) (holding it was


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unconstitutional “to vest in a grand jury or magistrate the

unguided and untrammeled discretion to determine whether a

defendant shall be charged with a felony or a misdemeanor[.]”);

Olsen v. Delmore, 295 P.2d 324, 327 (Wash. 1956) (citing Pirkey

for the proposition that the statute at issue “lodged . . .

discretion with prosecuting officials” and was therefore

unconstitutional)).12

       Unbridled prosecutorial discretion has remained a chief

concern in this court’s application of the Modica rule.                In

Arceo, the defendant was charged with one count of sexual

assault in the first degree, in violation of HRS § 707-


12
      In United States v. Batchelder, 442 U.S. 114 (1979), the United States
Supreme Court held that it was not unconstitutional for two statutes with
different penalties to prohibit identical conduct, as long as the government
“does not discriminate against any class of defendants.” 442 U.S. at 124-25.
The Court held that a prosecutor’s decision to charge under one statute or
the other is never “unfettered” because “[s]electivity in the enforcement of
criminal laws is, of course, subject to constitutional constraints.” 442
U.S. at 125-26. In effect, Batchelder overruled Pirkey and Olsen insofar as
they held that it was unconstitutional under the equal protection clauses of
the federal constitution to grant such discretion to charging officials.
      Some states have adopted the Batchelder analysis. See City of Klamath
Falls v. Winters, 619 P.2d 217 (Or. 1980) (recognizing that Batchelder
overruled Pirkey); see generally State v. Rooney, 19 A.3d 92 (Vt. 2011);
State v. Williams, 175 P.3d 1029 (Utah 2007); Johnson v. State, 61 P.3d 1234
(Wyo. 2003).
      Some states have declined to follow Batchelder on state law grounds.
See generally State v. Thompson, 200 P.3d 22 (Kan. 2009); People v. Sharpe,
839 N.E.2d 492 (Ill. 2005); People v. Estrada, 601 P.2d 619 (Colo. 1979).
      This court has continued to embrace the Modica rule. See Arceo, 84
Hawaiʻi 1, 928 P.2d 843 (applying the Modica rule in 1996, after Batchelder
was announced). We decline to adopt Batchelder. Our state constitution may
afford our citizens broader protections than the federal constitution.
Arceo, 84 Hawai‘i at 28, 928 P.2d at 870 (quoting State v. Wallace, 80 Hawai‘i
382, 397 n.14, 910 P.2d 695, 710 n.14 (1996)); State v. Hoey, 77 Hawai‘i 17,
36, 881 P.2d 504, 523 (1994)). As our cases after Batchelder could not have
been based on the federal constitution, they were based on the due process
and equal protection clauses of Article I, Section 5 of the Constitution of
the State of Hawaiʻi.


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730(1)(b)(1993), and one count of sexual assault in the third

degree, in violation of HRS § 707-732(1)(b)(1993).            84 Hawaiʻi at

2-3, 928 P.2d at 844-45.       The State argued those offenses could

be charged as continuing offenses.         84 Hawaiʻi at 4, 928 P.2d at

846.    This court disagreed, holding instead that each act in

violation of those statutes was a separate offense.            84 Hawaiʻi

at 21, 928 P.2d at 863.      To hold otherwise, we concluded, would

have meant that “the same acts committed under the same

circumstances could, by virtue of the prosecution’s charging

option or whim, be punishable either as a single offense or as

multiple offenses, even though the elements of proof essential

to either result would be exactly the same.”           84 Hawaiʻi at 22,

928 P.2d at 864.

       Although Modica analyzed a misdemeanor and a felony

statute, this court applied the Modica rule to two differently

classed felonies in Arceo.       84 Hawaiʻi at 22, 928 P.2d at 864.

As the focus of the Modica rule is curbing unbridled

prosecutorial discretion when identical conduct could constitute

crimes carrying punishments of differing severity, the Modica

rule can apply to offenses with the same or different statutory

classes.    Thus, as in the present case, the Modica rule can

apply—if its requirements are otherwise met—to two petty

misdemeanors.



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       In sum, the Modica rule requires the court to answer three

questions:       (1) whether defendant’s alleged conduct is

punishable under either of two statutory provisions; (2) whether

the elements of proof essential to conviction under the statutes

are exactly the same; and, (3) whether the punishment for the

offense with which the defendant was charged or convicted is

greater than the punishment for the alternative offense.                58

Haw. at 250-51, 567 P.2d at 421-22.

C.     Petitioners’ Charges Violated the Modica Rule

       1.     Petitioners’ conduct was punishable under either HRS
              §§ 712-1200(1)(a) or (1)(b)

       The threshold question of the Modica inquiry is whether the

defendant’s alleged conduct is punishable under either of two

statutory provisions.         58 Haw. at 251, 567 P.2d at 422.         This

court’s analysis must begin with the plain language of the

statute.      Wheeler, 121 Hawai‘i at 390, 219 P.3d at 1177.

       When Petitioners were charged, HRS § 712-1200(1)(a)

provided that a person who “[e]ngages in, or agrees or offers to

engage in, sexual conduct with another person for a fee”

committed the offense of prostitution.             HRS § 712-1200(1)(a)

(2014).      Subsection (1)(b) provided that one who “[p]ays, agrees

to pay, or offers to pay a fee to another to engage in sexual

conduct” also commits the offense of prostitution.               HRS § 712-

1200(1)(b) (2014).


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       The ICA reasoned that because subsection (1)(b) was limited

to purchasers, subsection (1)(a) must therefore be limited to

sellers.      Sasai, SDO at 4-5.      The ICA looked to a 2016 amendment

of HRS § 712-1200(1)(a) to “confirm” its interpretation of the

pre-2016 text, and sought to “harmonize” subsections (1)(a) and

(1)(b) under the guidance of State v. Davis, 63 Haw. 191, 624

P.2d 376 (1981).13       Sasai, SDO at 4.      The ICA erred in attempting

to “harmonize” the subsections of HRS § 712-1200 “to give effect

to them both” because the plain text of each subsection was

unambiguous.

       Although HRS § 712-1200(2) (2014) defined “sexual conduct”

by reference to HRS § 707-700 (2014), neither of those sections

defined the terms “engages in” or “pays.”             As the ICA noted,

courts may look to “legal or other well accepted dictionaries”

to ascertain the “ordinary meaning” of words in a statute.

State v. Jing Hua Xiao, 123 Hawai‘i 251, 259, 231 P.3d 968, 976

(2010).      To “engage” is “[t]o employ or involve oneself; to take


13
       Davis stated:

              Statutes should be interpreted according to the intent and
              meaning, and not always according to the letter, and every
              part thereof must be viewed in connection with the whole so
              as to make all parts harmonize, if practicable, and give a
              sensible and intelligent effect to each.

Davis, 63 Haw. at 193, 624 P.2d at 380. Davis stands for the proposition
that statutes should be read in pari materia to discern their meaning. Davis
is not relevant to determining whether a defendant’s constitutional rights
under the Modica rule are implicated by different statutes or different
subsections of a statute.


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part in[.]”14       Black’s Law Dictionary (10th ed. 2014).          The word

“pay” has multiple definitions, but HRS § 712-1200(1)(b) employs

it as a verb, and as such “pay” generally connotes a monetary

transaction between two or more parties.             See Black’s Law

Dictionary (10th ed. 2014) (defining “pay” as “1. To give money

for a good or service that one buys; to make satisfaction . . .

3. To give (someone) money for the job that he or she does; to

compensate a person for his or her occupation[.]”)

       By use of the phrase “[e]ngages in,” subsection (1)(a) made

it illegal to “involve oneself” or “to take part in” any “sexual

conduct with another person for a fee.”             As the district court

correctly concluded, this language prohibits conduct on both

sides of the prostitution transaction.             The purchasers and

sellers of sexual conduct both “take part in” and “involve

themselves” with prostitution.           A person who offers sexual

conduct for a fee literally “employs” themselves in

prostitution, but the purchaser of sexual conduct is no less

“engaged” in the transaction.

       Thus, because Petitioners’ alleged conduct was punishable

under either HRS § 712-1200(1)(a) or HRS § 712-1200(1)(b), the

first part of the Modica test is satisfied.



14
      The ICA defined “engage” as “to do or take part in something.”        Sasai,
SDO at 3 (quoting Merriam-Webster, https://www.merriam-
webster.com/dictionary/engage (last visited May 1, 2018)).


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     2.    The elements of proof essential to conviction under
           HRS §§ 712-1200(1)(a) and (1)(b) are identical, as
           applied to purchasers of sexual conduct

     Turning to the second part of the Modica inquiry, a denial

of the defendant’s constitutional rights occurs “only if a

violation of the misdemeanor statute . . . would invariably and

necessarily constitute a violation of the felony provision.”               58

Haw. at 250, 567 P.2d at 421.        Further, “the elements of proof

essential to either conviction” must be “exactly the same.”               58

Haw. at 251, 567 P.2d at 422.

     As discussed above, all violations of HRS § 712-1200(1)(b)

would also be violations of subsection (1)(a), as it existed

before July 1, 2016.      Subsection (1)(a), however, contains

broader language than subsection (1)(b), such that there are at

least two ways to “engage” in prostitution under that

subsection:    one may pay, or one may otherwise “engage” by

selling sexual conduct.      As a result, violation of subsection

(1)(a), the offense with the lesser punishment, is not

invariably and necessarily a violation of subsection (1)(b), the

offense with the greater punishment, and ordinarily the Modica

rule would not be violated.       See State v. Kuuku, 61 Haw. 79, 82,

595 P.2d 291, 294 (1979) (finding no Modica rule violation where

there were “any number of ways by which the [misdemeanor]

statute may be violated without also violating the [felony]

statute.”); but see Hatori, 92 Hawai‘i at 227, 990 P.2d at 125

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(finding a Modica violation where the lesser offense prohibited

a broader range of conduct, but the conduct at issue would

always constitute a violation of both the lesser and greater

offenses).

       Nonetheless, the 2011 amendment to HRS § 712-1200(1) made

possible the existence of “the very evils rendered unlawful by

the Modica rule.”        See Arceo, 84 Hawaiʻi at 22, 928 P.2d at 864

(identifying due process and equal protection violations in a

charging practice subject to “the prosecution’s charging option

or whim”).       The language of HRS § 712-1200(1) (Supp. 1990)

applied to both purchasers and sellers of sexual conduct, and

that language was used verbatim in HRS § 712-1200(1)(a) (2011).

Given that they have identical language, subsection (1)(a)

(Supp. 2011) should logically be interpreted the same way that

section (1) (Supp. 1990) once was — to apply to both purchasers

and sellers of sexual conduct.

       As explained in Part III, Section C(1), the plain language

of HRS §§ 712-1200(1)(a) and (1)(b) (Supp. 2011) gave

prosecutors the ability to charge purchasers under either

subsection, at their discretion.15           The amendment of HRS § 712-


15
      At the hearing on the motions to dismiss, a list of defendants charged
under HRS § 712-1200(1)(b) and the known dispositions of their cases was
admitted into evidence. That list of dispositions indicated that at least
four defendants charged under HRS § 712-1200(1)(b) after April 25, 2013, were
ultimately granted deferred pleas after the State amended their charges to
HRS § 712-1200(1)(a).
(continued. . .)

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1200(1) in 2011 created a Modica problem, because it leaves the

determination of the defendant’s charges and ultimate punishment

to be governed by the prosecutor’s discretion.            See State v.

Lee, 75 Haw. 80, 93, 856 P.2d 1246, 1254 (1993) (“[A] criminal

statute is void for vagueness unless it . . . provides explicit

standards for those who apply the statute, in order to avoid

arbitrary and discriminatory enforcement and the delegation of

basic policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis.” (internal

quotations, brackets, and citation omitted)).

     Whether a purchaser is charged under subsection (1)(a) or

(1)(b), the State must prove that the purchaser “engaged”

themselves in prostitution by paying, agreeing to pay, or

offering to pay another person to engage in sexual conduct.                As

applied to the purchasers of sexual conduct, subsections (1)(a)

and (1)(b) prohibit the same conduct but prescribe different

punishment.     Because elements of proof essential to conviction

under HRS §§ 712-1200(1)(a) and (1)(b) are the same, as applied

to purchasers of sexual conduct, the second part of the Modica




(. . . continued)
      While the factual bases for these charges are not present in the
record, the fact that such amendments were possible supports our conclusion
that prosecutorial discretion, not the text of the statute or intent of the
legislature, determined whether defendants were prosecuted under HRS § 712-
1200(1)(b) instead of HRS § 712-1200(1)(a).


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test is met.16       Our holding is also consistent with the ICA’s

holding in Hatori that a Modica violation exists where the

lesser felony prohibited a broader range of conduct, but the

conduct at issue would always constitute a violation of both the

lesser and greater felonies.          Hatori, 92 Hawai‘i at 227, 990 P.2d

at 125.

       3.     The punishment for HRS § 712-1200(1)(b) is greater
              than the punishment for HRS § 712-1200(1)(a)

       The final question in the Modica inquiry is whether the

punishment for the offense with which the defendant was charged

is greater than the punishment for the alternative offense.                  58

Haw. at 251, 567 P.2d at 420.

       Prostitution, under either subsection of HRS § 712-1200(1),

is a petty misdemeanor.         HRS § 712-1200(3) (2014).        First time

offenders face a mandatory fine of no less than $500 but no more

than $1000, with the possibility of up to thirty days of

imprisonment, unless the court has granted a deferred plea under

HRS Chapter 853.        HRS § 712-1200(4)(a) (2014); HRS § 853-1(c)

(2014).      Granting a DAG/DANC plea is discretionary.           HRS § 853-

1(a).      Under HRS § 853-4(a)(13)(V) (2014), the deferral statute

is not applicable if the offense charged is a violation of HRS §

712-1200(1)(b).

16
      We emphasize that this “as applied” analysis is appropriate because the
amendment history of HRS § 712-1200(1) created uncertainty in the application
of previously understood language, which in turn significantly undermined the
legislative guidance provided by the text of the statute.


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       Ineligibility for a DAG/DANC plea means that all defendants

charged under HRS § 712-1200(1)(b) are subject to the

aforementioned penalties for the crime of prostitution.                Without

more specific guiding language in subsection (1)(a), it is the

prosecutor’s charging decision that ultimately determines

whether a defendant is charged under subsection (1)(a) or

(1)(b), and can attempt to seek deferral, or must face the

ordinary statutory penalty.          Because the ability of first-time

offenders to seek a DAG/DANC has significant effect on their

potential punishment, HRS § 712-1200(1)(b) carries a harsher

punishment than subsection (1)(a), and the third part of the

Modica test is satisfied.

       Based on the plain language of HRS §§ 712-1200(1)(a) and

(1)(b), as they existed at the time Petitioners were charged, we

conclude that Petitioners’ charges violated the Modica rule.17

The ICA erred in holding that Petitioners’ due process and equal

protection rights had not been violated.

D.     Dismissal With Prejudice

       Citing State v. Estencion, 63 Haw. 264, 625 P.2d 1040

17
      The potential for the Modica violation challenged by Petitioners was
created when HRS § 712-1200(1)(b) was excluded from the DAG/DANC statute on
April 25, 2013. See S.B. 194, 27th Leg., Reg. Sess. (2013) (amending HRS §
853-4, effective April 25, 2013).
      The 2016 amendment to HRS § 712-1200(1)(a) added the phrase “in return”
to subsection (1)(a) to further distinguish it from subsection (1)(b). H.B.
2561, 28th Leg., Reg. Sess. (2016). Only defendants who were otherwise
eligible for a DAG/DANC plea and were convicted under HRS § 712-1200(1)(b)
between April 25, 2013 and July 1, 2016 may be affected by the issue
Petitioners present here.


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(1981), the State asserted before the ICA that the district

court erred in dismissing the charges with prejudice, without

engaging in “any on the record balancing of the factors

necessary to determine whether dismissal should be with or

without prejudice.”

     The Estencion factors must be analyzed when dismissing a

case for violation of Hawaiʻi Rules of Penal Procedure (“HRPP”)

Rule 48.   In Estencion, we adopted factors listed in the Federal

Speedy Trial Act § 101, 18 U.S.C. § 3162(a)(1) (Supp. 1980), to

determine whether a charge should be dismissed with or without

prejudice for a HRPP Rule 48 violation, stating:

           In determining whether to dismiss the case with or without
           prejudice, the court shall consider, among others, each of
           the following factors: the seriousness of the offense; the
           facts and the circumstances of the case which led to the
           dismissal; and the impact of a reprosecution on the
           administration of this chapter and on the administration of
           justice.

63 Haw. at 269, 625 P.2d at 1044 (quoting 18 U.S.C. § 3162(a)(1)

(Supp. 1980)).

     We have yet to set out factors for a trial court to

consider to determine whether a criminal charge should be

dismissed before conviction with or without prejudice based on a

Modica violation.     In general, trial courts have the inherent

power to dismiss a charge, and although the exercise of that

power is not limited to “extraordinary situations,” it must be

done “upon ‘balancing the interest of the state against



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fundamental fairness to a defendant with the added ingredient of

the orderly functioning of the court system[.]’”            State v.

Hinton, 120 Hawai‘i 265, 277, 204 P.3d 484, 496 (2009) (quoting

State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705, 712 (1982)).

In State v. Fukuoka, 141 Hawaiʻi 48, 404 P.3d 314 (2017), a HRPP

Rule 48 case, we noted that in State v. Coyaso, 73 Haw. 352,

357, 833 P.2d 66, 69 (1992), we stated that “prejudice to the

defendant may [also] be a relevant consideration in the trial

court's decision to dismiss with or without prejudice”

under HRPP Rule 48.      Fukuoka, 141 Hawaiʻi at 56, 404 P.3d at 322.

     Estencion and its progeny lay out appropriate

considerations for a trial court in its determination of whether

to dismiss a criminal charge with or without prejudice in the

context of a pre-conviction dismissal for a Modica violation.

We hold that in the context of a pre-conviction dismissal for a

Modica violation, in determining whether to dismiss the case

with or without prejudice, the court must consider each of the

following factors:     the seriousness of the offense, the facts

and the circumstances of the case that led to the dismissal, the

impact of a reprosecution on the administration of justice, and

prejudice to the defendant.       Estencion referred to the

delineated factors as being “among others”; therefore, a court

may also consider other factors it deems relevant.            The court

must, however, articulate the reasons for its decision to

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dismiss with or without prejudice.         Cf. Fukuoka, 141 Hawaiʻi at

65, 404 P.3d at 331 (“In analyzing whether to dismiss a case

with or without prejudice for a violation of HRPP Rule 48, the

court must evaluate each Estencion factor and determine whether

the balance of factors weighs in favor of permitting or

prohibiting reprosecution.”)

    In this case, as argued by the State, the district court

dismissed the charges with prejudice without providing any

reasons for its decision.       We therefore remand these cases to

the district court for application of the appropriate factors

regarding whether the charges should be dismissed with or

without prejudice.

                             IV.   Conclusion

    For the reasons stated above, we vacate the ICA’s July 31,

2017 judgment on appeal, filed pursuant to its June 30, 2017

SDO, which vacated the district court’s October 16, 2015 order,

and we remand these cases to the district court for further

proceedings consistent with this opinion.

Antoinette Lilley and                  /s/ Mark E. Recktenwald
James S. Tabe
(John M. Tonaki and                    /s/ Paula A. Nakayama
Audrey L. Stanley
with them on the briefs)               /s/ Sabrina S. McKenna
for petitioners
                                       /s/ Richard W. Pollack
Brian R. Vincent
(Keith M. Kaneshiro                    /s/ Michael D. Wilson
with him on the briefs)
for respondent

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