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### IN THE SUPREME COURT OF THE STATE OF HAWAI # I ---o0o---

________________________________________________________________ STATE OF HAWAI # I, Respondent/Plaintiff-Appellant,

vs. RUBIN IKOA CASUGAY-BADIANG, Petitioner/Defendant-Appellee.

________________________________________________________________ SCWC-11-0000802
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000802; CR. NO. 11-1-0523)

June 28, 2013 ACOBA, MCKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J., DISSENTING SEPARATELY,

WITH WHOM NAKAYAMA, J., JOINS AMENDED OPINION OF THE COURT BY MCKENNA, J. I. Introduction The sole issue before this court is whether a sentencing court has the discretion to sentence a defendant convicted of violating Hawai ‘ i Revised Statutes (“HRS”) § 712-1240.8 (1993 & Electronically Filed Supreme Court SCWC-11-0000802 28-JUN-2013 10:13 AM*** FOR PUBLICATION IN WE ST’S HAWAI # I REPORTS AND PACIFI C REPORTER *** 

### Supp. 2006) (Methamphetamine Trafficking in the Second Degree) 1 

### under HRS § 706-667 (1993 & Supp. 2006) (the “Young Adult Defendants” statute). Specifically, the issue is whether the 2

That statu te cu rrent ly st ates, as i t didat t he ti me ofthe alleg ed 1 offen se, t he fo llowi ng:

(1) Apers on co mmits the offen se ofmeth amphe tamin e traff ickin g in the s econddegr ee ifthe perso n kno wingl y distr ibute s met hamph etami ne in any amoun t. (2) M ethampheta mine traff ickin g in the s econddegr ee is a class B fe lony for w hich the d efend ant s hall be se ntenc ed as provi ded i n sub secti on (3 ). (3) N otwit hstan ding secti ons 7 06-62 0, 70 6-640 , 706 -641, 706- 660, 706-6 69, a nd an y oth er la w to the c ontra ry, a pers on convi cted of me thamp hetam ine t raffi ckingin t he se cond degre e sha ll be sent encedto a n ind eterm inate termof impri sonme nt often years witha ma ndato ry mi nimumtermof impri sonme nt ofnot less than one y ear a nd no t gre ater than four years and a fin e not to e xceed$10, 000,0 00; p rovid ed that: (a) If t he pe rson has o ne pr ior c onvic tion for metha mphet amine traf ficki ng pu rsuan t to this secti on or secti on 71 2-124 0.7, the m andat ory m inimu m ter m of impri sonme nt sh all b e not less than thre e yea rs, f our m onths and n ot gr eaterthan six years , eig ht mo nths; (b) If th e per son h as tw o pri or co nvict ions for metha mphet amine traf ficki ng pu rsuan t to this secti on or secti on 71 2-124 0.7, the m andat ory m inimu m ter m of impri sonme nt sh all b e not less than six years , eig ht mo nths and n ot gr eaterthan ten years ; or (c) If th e per son h as th ree o r mor e pri or co nvict ions for metha mphet amine traf ficki ng pu rsuan t to this secti on orsect ion 712-1 240.7 , the mand atorymini mum t erm o f imp rison ment shall be ten y ears.
That statu te cu rrent ly st ates, as i t didat t he ti me ofthe alleg ed 2 offen se, t he fo llowi ng:

(1) D efine d. Ayoun g adu lt de fenda nt is a pe rson convi cted of a crime who, at t he ti me ofthe offen se, i s les s tha n twent y-two year s of age a nd wh o has not been previ ously convi cted of a felon y as an ad ult o r adj udica ted a s a juven ile f or an offe nse t hat w ould have const itute d a f elony had t he yo ung a dult defen dant been an ad ult. (2) S pecia lizedcorr ectio nal t reatm ent. A you ng ad ult defen dant who i s sen tence d to a ter m of impri sonme nt excee ding thirt y day s maybe c ommit ted b y the cour t to the custo dy ofthe depar tment of p ublic safe ty an d sha ll recei ve, a s faras p racti cable , suc h spe cial and indiv idual ized corre ction al an d reh abili tativ e tre atmen t as may b e app ropri ate t o the youn g adu lt de fenda nt’s needs

. (3) S pecia l ter m. A youngadul t def endan t con victe d of a felon y, in lieuof a ny ot her s enten ce ofimpr isonm ent autho rizedby t his c hapte r, ma y be sente nced to a speci al 

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### phrase “Notwithstanding sections 706-620, 706-640, 706-641, 706- 660, 706-669, and any other law to the contrary,” found in the sentencing provision of HRS § 712-1240.8, overrides sentencing under HRS § 706-667 as “contrary.” We hold that it does not. Therefore, we reverse the ICA’s Judgment on Appeal, and affirm the circuit court’s Judgment of Conviction and Sentence and Order Denying Motion to Correct Illegal Sentence. II. Background Petitioner/Defendant-Appellee Rubin Ikoa Casugay-Badiang (“Casugay-Badiang”) pled guilty to two counts of Methamphetamine Trafficking in the Second Degree, in violation of HRS § 712- 1240.8. At Casugay-Badiang’s sentencing hearing, both the prosecution and defense requested a minimum sentence of one yearin prison, presumably under HRS § 712-1240.8(3), because CasugayBadiang had no prior criminal record.

indet ermin ate t erm o f imp rison ment if th e cou rt is of t he opini on th at su ch sp ecial termis a dequa te fo r the youn g adult defe ndant ’s co rrect ion a nd re habil itati on an d wil l not jeopa rdize the prote ction of t he pu blic. Whe n ord eringa speci al in deter minat e ter m of impri sonme nt, t he co urt s hall impos e the maxi mum l engthof i mpris onmen t, wh ich s hall be eight year s fora cl ass Afelo ny, f ive y ears for a clas s B felon y, an d fou r yea rs fo r a c lass C fel ony. The minimum lengt h of impri sonme nt sh all b e set by t he Ha waii parol ing autho rity in ac corda nce w ith s ectio n 706 -669. Duri ng th is speci al in deter minat e ter m, th e you ng ad ult s hall be incar cerat ed se parat ely f rom c areercrim inals , whe n pract icabl e. This sect ion s hall not a pply to th e off enses of murderor a ttemp ted murder

.



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### The circuit court, on the other hand, sua sponte raised the 3

### issue of whether it possessed the discretion to sentence CasugayBadiang under HRS § 706-667. The circuit court reasoned that it did retain such discretion because HRS § 712-1240.8(3) expressly excluded sentencing under HRS §§ 706-620, -640, -641, -660, and - 669, but HRS § 706-667 was not among that list. The circuit court recognized that HRS § 712-1240.8(3) included an additional phrase “and any other law to the contrary,” following the five
enumerated statutes. To the circuit court, however, the fact that HRS § 706-667 was not among the enumerated statutes “still ke[pt HRS §] 706-667 in play.” The circuit court then sentenced Casugay-Badiang to a “concurrent term of imprisonment of five (5) years in Counts I and II, as a young adult defendant (pursuant to §706-667, H.R.S.), with a mandatory minimum of one (1) year.” The State then filed its Motion to Correct Illegal Sentence, in which it argued that the circuit court’s decision to sentence Casugay-Badiang under HRS § 706-667 “runs contrary to the law imposing sentence upon offenders under HRS § 712-1240.8.” At a hearing on the motion, the State rested on its briefing, but defense counsel argued that (1) if the legislature intended for HRS § 712-1240.8(3) to override HRS § 706-667, then it would have included HRS § 706-667 among the five enumerated statutes in HRS

The H onora ble G lenn J. Ki m pre sided

. 3 

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### § 712-1240.8(3); and (2) if the legislature intended HRS § 706- 667 not to apply to methamphetamine trafficking, then it would have amended that statute to include that offense along with murder and attempted murder in HRS § 706-667(3). The circuit court added that it believed that it could still sentence Casugay-Badiang under HRS § 706-667 because that statute “mitigated,” but was not “contrary” to, the sentencing scheme set forth in HRS § 712-1240.8(3). The circuit court issued an Order Denying Motion to Correct Illegal Sentence. The State timely appealed the circuit court’s Judgment of Conviction and Sentence and its Order Denying Motion to Correct Illegal Sentence. Before the ICA, the State argued the following:

The c ircui t cou rt ab used its d iscre tion in se ntenc ing [Casu gay-B adian g] to five year s imp rison ment underHRS § 706-6 67 as a yo ung a dult defen dant, wher e HRS § 71 2- 1240. 8(3) provi des: Notw ithst andin g sec tions 706- 620, 706- 640, 706-6 41, 7 06-66 0, 70 6-669 , and any otherlaw to th e contr ary, a per son c onvic ted o f met hamph etami ne tr affic king in th e sec ond d egree shal l be sente nced to an inde termi nate term of impriso nment of t en ye ars w ith a mand atorymini mum term of impriso nment of n ot le ss th an on e yea r andnot great er th an fo ur ye ars a nd a fine not t o exc eed $10,0 00,00 0[.] 

### (Emphasis in original). The State essentially argued that the plain language of HRS § 712-1240.8(3) mandated sentencing under that statute. In support of its interpretation, the State pointed out that the phrase “notwithstanding any other law to the contrary” in a sentencing provision has previously been construed by this court, in State v. Dannenberg, 74 Haw. 75, 837 P.2d 776

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### (1992), as limiting the discretion of the trial court to take into account any other statutory sentencing scheme. The State further argued that HRS § 706-667 is “contrary” to HRS § 712- 1240.8(3), because a five-year indeterminate term under HRS § 706-667 is “completely different” from a ten-year indeterminate term under HRS § 712-1240.8(3). The ICA agreed with the State. It vacated the circuit court’s Judgment of Conviction and Sentence and remanded this case for re-sentencing under HRS § 712-1240.8. See State v. Casugay-Badiang, 128 Hawai ‘ i 370, 374, 289 P.3d 1006, 1010 (2012). It held:

HRS § 712- 1240. 8 cle arly precl udes the a pplic abili ty of sente ncingas a youn g adu lt de fenda nt un der H RS §7 06-66 7 for cases invo lvingmeth amphe tamin e tra ffick ing i n the seco nd degre e bec ause HRS § 706- 667 i s con traryto H RS § 712- 1240. 8. T he le gisla ture inten ded t o div est t he ci rcuit court of i ts di scret ion t o sen tence Casu gay-B adian g und er any s enten cing statu te ot her t han H RS § 712-1 240.8 (3). 

### 128 Hawai ‘ i at 373, 289 P.3d at 1009. The ICA concluded that the circuit court “erred in disregarding the plain language of HRS §
712-1240.8. . . .” 128 Hawai ‘ i at 374, 289 P.3d at 1010.
III. Discussion On certiorari, Casugay-Badiang argues that the “ICA’s Opinion simply concludes that ‘HRS § 706-667 is contrary to HRS § 712-1240.8’ without undertaking a thorough analysis of the construction of both statutes.” We now take a closer look at
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### A. HRS § 712-1240.8 HRS § 712-1240.8 provides:

Methamphetaminetraf ficki ng inthe second deg ree. (1) A perso n commits the o ffens e of metha mphet amine traf ficki ng in the s econddegr ee ifthe perso n kno wingl y dis tribu tes metha mphet amine in a ny am ount. ( 2) Me thamp hetam ine t raffi ckingin t he se cond degre e is a cla ss B felon y forwhic h the defe ndant shal l be sente nced as pr ovide d in subse ction (3). ( 3) No twith stand ing s ectio ns 70 6-620 , 706 -640, 706- 641, 706-6 60, 7 06-66 9, an d anyothe r lawto t he co ntrar y, a perso n con victe d of metha mphet amine traf ficki ng in the secon d deg ree s hall be se ntenc ed to an i ndete rmina te te rm of impri sonme nt often years witha ma ndato ry mi nimumtermof impri sonme nt ofnot less than one y ear a nd no t gre ater than four years and a fin e not to e xceed$10, 000,0 00; p rovid ed that: (a) If th e per son h as on e pri or co nvict ion f or metha mphet amine traf ficki ng pu rsuan t to this secti on or secti on 71 2-124 0.7, the m andat ory m inimu m ter m of impri sonme nt sh all b e not less than thre e yea rs, f our m onths and n ot gr eaterthan six years , eig ht mo nths; (b) If th e per son h as tw o pri or co nvict ions for metha mphet amine traf ficki ng pu rsuan t to this secti on or secti on 71 2-124 0.7, the m andat ory m inimu m ter m of impri sonme nt sh all b e not less than six years , eig ht mo nths and n ot gr eaterthan ten years ; or (c) If th e per son h as th ree o r mor e pri or co nvict ions for metha mphet amine traf ficki ng pu rsuan t to this secti on or secti on 71 2-124 0.7, the m andat ory m inimu m ter m of impri sonme nt sh all b e ten year s. 

### At issue in this case is whether the circuit court had the discretion to sentence Casugay-Badiang to a special five-year indeterminate term of imprisonment under HRS § 706-667 in the face of the following language from HRS § 712-1240.8(3):

Notwi thsta ndingsect ions 706-6 20, 7 06-64 0, 70 6-641 , 706 -660, 706-6 69, a nd an y oth er la w to the c ontra ry, a pers on convi cted of me thamp hetam ine t raffi ckingin t he se cond degre e sha ll be sent encedto a n ind eterm inate termof impri sonme nt often years witha ma ndato ry mi nimumtermof impri sonme nt ofnot less than one y ear a nd no t gre ater than four years and a fin e not to e xceed$10, 000,0 00[.]



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### This court’s foremost obligation in construing a statute is “to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” State v. Valdivia, 95 Hawai ‘ i 465, 472, 24 P.3d 661, 668 (2001)(citation omitted). “Where the statutory language is unambiguous, the court’s sole duty is to give effect to its plain and obvious meaning.” State v. Sakamoto, 101 Hawai ‘ i 409, 412, 70 P.3d 635, 638 (2003)(citations omitted). 1. A Plain Language Reading of HRS § 712-1240.8(3)

in Favor of the State This court previously interpreted the statutory phrase “notwithstanding any other law to the contrary” as removing a circuit court’s discretion to sentence under any other law. An early case interpreting the phrase “any other law to the contrary” was State v. Rice, 66 Haw. 101, 657 P.2d 1026 (1983). In the context of whether the prostitution statute allowed for deferred acceptance of guilty pleas, this court concisely held, “[W]e think that § 853-1, HRS, is ‘any other law to the contrary’ and that the court below therefore correctly construed § 712- 1200(4) as taking away its power to grant deferred acceptance of guilty pleas in prostitution cases.” 66 Haw. at 102, 657 P.2d at 1026.

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### In Dannenberg, this court once again held that the trial court abused its discretion in granting a defendant’s motion for a DANC plea to a charge of prostitution under HRS § 712-1200, which, at that time, provided in relevant part:

Notwi thsta ndingany otherlaw to th e con trary , a p erson convi cted of co mmitt ing t he of fense of p rosti tutio n sha ll be sente nced as fo llows : [f or th e fir st of fense , a f ine o r commu nity servi ce an d/or a pri son t erm o f not more than 30 days; for a sub seque nt of fense , a f ine a nd a priso n ter m of 30 da ys, w ithou t pos sibil ity o f sus pensi on ofsent ence or proba tion. ] 

### 74 Haw. at 77, 79-80, 837 P.2d at 777, 778. The Dannenberg court reaffirmed Rice and clarified its reasoning in that case as
follows:

As De fenda nt po ints out, HRS § 712- 1200 is ambiguo us as to

wheth er th e ‘no twith stand ing a ny ot her l aw to the contr ary’ refer s to HRS c h. 85 3 (19 85 & Supp. 1991 ) whi ch is the statu tory autho rity for p ermit ting discr etion ary d eferr ed accep tance of g uiltyplea s anddefe rred accep tance of n olo conte ndere plea s. D efend ant’s argu ment that the s enten cing provi sions of H RS § 712-1 200 o nly a pply where defe ndant is actua lly ‘ convi cted’ and that a DAN C is not a conv ictio n is well- taken . Ho wever , to permi t a t rial court to d efer the entryof a plea in o rder to av oid a conv ictio n per mits the court to a void the s enten cing schem e cre ated by th e legis latur e spe cific ally for p rosti tutio n cas es an d is there fore repug nant to th e leg islat ive i ntent in e nacti ng the p rosti tutio n law

. 

### 74 Haw. at 80, 837 P.2d at 778-79. This court then turned to the legislative history of the prostitution statute, which revealed that “[t]he intent was clearly 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.” 74 Haw. at 81, 837 P.2d at 779. Thus, this court held that DANC’s were not available for prostitution charges,

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### “[s]ince it is clear that the language of the statute anticipates mandatory sentencing for prostitution offenders, and the legislative history reveals an intent to remove judicial discretion from sentencing[.]” 74 Haw. at 83, 837 P.2d at 779- 80. Thus, under Dannenberg, HRS § 712-1240.8(3)’s 4 

### “notwithstanding any other law to the contrary” phrase indicatesthat the circuit court lacked the discretion to sentence CasugayBadiang under any other sentencing scheme not found in HRS § 712- 1240.8(3), which would include HRS § 706-667. Numerous cases since Dannenberg interpreted the phrase “notwithstanding any other law to the contrary.” In State v. Smith, 103 Hawai ‘ i 228, 234, 81 P.3d 408, 414 (2003), we synthesized these cases and held that the interpretation of the phrase “notwithstanding any other law to the contrary” has been, since Rice, a plain-language interpretation divesting the sentencing court of discretion to sentence under any other
scheme: [T]hi s cou rt ha s rep eated ly employe d a p lain- langu age

analy sis i n int erpre ting statu tes t hat c ontai n the phra se, ‘notw ithst andin g anyothe r lawto t he co ntrar y. . . .’ See State v. H amili , 87 Hawai ‘ i 102 , 105 , 952 P.2d390, 393 (1998 )(rea ffirm ing t his c ourt’ s hol ding in St ate v . Ric e, infra ); St ate v . Dan nenbe rg, 7 4 Haw . 75, 80, 837 P .2d 7 76, 778 ( 1992) (reaf firmi ng th is co urt’s hold ing i n Ric e, in fra); State v. Mun Ch ung T om, 6 9 Haw . 602 , 604 , 752 P.2d597, 598 (1988 )(ana logiz ing t he la nguag e of the d rivin g und er th e influ ence (DUI) stat ute t o the word ing o f the pros titut ion

Danne nbergwas latersupe rsede d by statu te. The p rosti tutio n sta tute 4 was l ater amend ed to expr esslyallo w forprob ation , and , the refor e, DANC pleas . Se e Sta te v. Klie , 116 Hawa i ‘ i 519 , 523 , 174 P.3d358, 362 (2007 ). 

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statu te, i nfra, and notin g tha t “th e lan guage of t he DU I statu te [( i.e., a pe rson convi cted ‘shal l be sente nced as follo ws wi thout poss ibili ty ofprob ation ’)] i s suf ficie ntly clearin m andat ing t he se ntenc e to be imposed ”); S tate v. Rice, 66 H aw. 1 01, 6 57 P. 2d 10 26 (1 983) (hold ing t hat, where the p rosti tutio n sta tute provi des “ notwi thsta ndingany other law t o the cont rary, a pe rson convi cted of co mmitt ing t he offen se ofpros titut ion s hall be se ntenc ed as foll ows[, ]” the p hrase “‘an y oth er la w to the c ontra ry’ .

. . takes away [the trial cour t’s] powerto g rant defer red a ccept ance of guilt y ple as in pros titut ion c ases” ). 

### See also State v. Kamanao, 118 Hawai ‘ i 210, 218, 188 P.3d 724, 732 (2008)(“The express language of HRS § 706-606.5, ‘[n]othwithstanding . . . any other law to the contrary . . . [,] ‘clearly limits the applicability of HRS § 706-668 in cases involving the ‘[s]entencing of repeat offenders.’ HRS § 706-668 is precisely the type of ‘law to the contrary’ described in HRS § 706-606.5.”) Moreover, within the phrase “notwithstanding any other law to the contrary,” a plain language, dictionary definition of “contrary” is “being opposite to or in conflict with each other[.]” Merriam Webster’s Collegiate Dictionary 765 (10th Ed. 1989)(cited in State v. Schnabel, 127 Hawai ‘ i 432, 448, 279 P.3d 1237, 1253 (2012)). “‘[T]wo statutes conflict’ where ‘[i]t is not possible to give effect to both[.]” Id. (citing State v. Richie, 88 Hawai ‘ i 19, 35, 960 P.2d 1227, 1243 (1998)). In Casugay-Badiang’s case, HRS § 706-667 is seemingly contrary to HRS § 712-1240.8(3) because “[i]t is not possible to give effect to both” an indeterminate five-year term of imprisonment under

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### the former statute and an indeterminate ten-year term of imprisonment under the latter. Under Richie, then, and in contrast to the circuit court’s reasoning, a sentence under HRS § 706-667 is not just “mitigating” in relation to HRS § 712- 1240.8(3); it is contrary to HRS § 712-1240.8(3). Thus, under Richie, HRS § 706-667 would appear to be included in HRS § 712- 1240.8(3)’s phrase “notwithstanding . . . any other law to the contrary[.]”

2. A Plain Language Reading of HRS § 712-1240.8(3) in Favor of Casugay-Badiang On the other hand, HRS § 706-667 is not included among the five enumerated statutes in HRS § 712-1240.8(3)’s “notwithstanding” clause, evidencing no express legislative intent to exclude it as a sentencing alternative. This court previously decided a case in which HRS § 706-667 was considered to be a “sentencing alternative” in the face of a sentencing statute that excluded “any other law to the contrary.” In State v. Lau, 73 Haw. 259, 831 P.2d 523 (1992), a case decided four months before Dannenberg, the defendant (“Lau”) was sentenced to an indeterminate twenty-year term of imprisonment following a class A felony drug conviction for cocaine trafficking. 73 Haw. at 260-61, 831 P.2d at 524. On appeal, he argued that “the sentencing court committed reversible error by not stating its reasons for imposing a twenty

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### year sentence . . . [and that] it is unknown if the court considered the alternative eight year sentence under the young adult defendants statute for which he was qualified.” 73 Haw. at 260-61, 831 P.2d at 523-24. This court held:

Our r eviewof t he re cord revea ls th at th e sen tenci ng co urt had t he be nefit of a pre- sente nce r eport , the argu ments of couns el, w hich inclu ded r efere nces to bo th th e ord inary twent y yea r ter m andthe speci al in deter minat e ter m of eight years , andappe llant ’s pe rsona l sta temen t. T hus, we ca n reaso nablyinfe r tha t the cour t didcons ider the s enten cing alter nativ es, a nd we ther efore affi rm. 

### 73 Haw. at 260, 831 P.2d at 524. This was so, even though at the time Lau was decided, HRS § 706-659 (1985) provided, “Notwithstanding . . . any other law to the contrary, a person who has been convicted of a class A felony shall be sentenced to an indeterminate term of imprisonment of twenty years without possibility of suspension of sentence or probation.” (emphasis added). This court stated that the sentencing court could sentence Lau under HRS § 706-667, without discussing HRS § 706-659’s express “notwithstanding any other law to the contrary” language, which is similar to HRS § 712- 1240.8(3)’s “notwithstanding” language. 73 Haw. at 260, 831 P.2d at 524. In fact, we stated, “Once the court determines that imprisonment is necessary, the court ‘is free . . . to choose’ between the ordinary term or the special indeterminate sentence under the young adult defendants statute.” 73 Haw. at 263, 831 P.2d at 525 (citing HRS § 706-667 commentary). Therefore, Lau is

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### in tension with Dannenberg, as well as Rice, which existed at the time Lau was decided. The legislature amended HRS § 706-659 twice since Lau was decided, with neither amendment expressly eliminating HRS § 706- 667 as a sentencing alternative, where applicable. See 1994 5 

### Haw. Sess. Laws Act 229, § 3 at 558; 2012 Haw. Sess. Laws Act 292, § 4 at 993. Lau’s interpretation of HRS § 706-659 to allow for sentencing under HRS § 706-667 appears to have been untouched by the legislature, which is “‘presumed [to] know the law when enacting statutes, ‘including this court’s interpretations of statutory language.” State v. Reis, 115 Hawai ‘ i 79, 97, 165 P.3d 980, 998 (2007); Terr. v. Ota, 36 Haw. 80, 98-99 (1942)(“While . . . legislative inaction does not amount to legislative construction, it does indicate a lack of active disagreement with [judicial interpretation]. . . [L]egislative inaction tends to indicate agreement.”) In addition, even if HRS § 706-667 is “contrary” to HRS § 712-1240.8(3)’s sentencing scheme, the following rules of statutory interpretation would favor Casugay-Badiang’s position:

Also of no te, t he le gisla ture inclu ded t he “n otwit hstan ding” clau se wh en 5 it en actedHRS § 706 -659 in 19 80. 1980 Haw. Sess. Laws Act 293, § 1 a t 562

- 63. HRS § 706- 667 e xiste d at that time, havi ng be en en actedin 1 972. See 1972 Haw. Sess. Laws Act 9, § 1 at 81-82 . HR S § 7 06-66 7 was not inclu ded amongthe otherstat utes in th e “no twith stand ing c lause ” of HRS § 706- 659. 1980 Haw. Sess. Laws Act 293, § 1 a t 562 -63. Also in 1 980, the l egisl ature amend ed HR S § 7 06-66 7 but did not r efere nce o r exc lude HRS § 706- 659 f rom H RS § 706 -667. 198 0 Haw . Ses s. La ws Ac t 295 , §§ 2, 3 at 56 3. T heref ore, young adult defe ndant sent encin g app ears to be gene rallyavai lable for class A felon y con victi ons, and h as be en si nce t he ti me HR S § 7 06-65 9 was enac ted. 

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First , leg islat ive e nactm ents are p resumptive ly va lid a nd “shou ld be inte rpret ed [i n suc h a m anneras] to gi ve th em effec t.” S econd , “la ws in pari mate ria, or up on th e sam e subje ct ma tter, shal l be const rued with refer ence to ea ch other . Wh at is clea r in one s tatut e maybe c alledin a id to expla in wh at is doub tful in an other .” T hird, “whe re th ere is a ‘plai nly i rreco ncila ble’ confl ict b etwee n a g enera l and a spe cific stat ute c oncer ning the s ame s ubjec t mat ter, the speci fic w ill b e fav ored. How ever, wher e the stat utes simpl y ove rlap in th eir a pplic ation , eff ect w ill b e giv en to both if po ssibl e, as repe al byimpl icati on is disf avore d.” 

### Richardson v. City & County of Honolulu, 76 Haw. 46, 54-55, 868 P.2d 1193, 1201-02 (1994)(citations omitted). This court has already considered HRS § 706-667 to be a specific statute, “involv[ing] specialized treatment for a limited group of defendants,” as compared to other statutes that refer to “any sentence.” State v. Putnam, 93 Hawai ‘ i 362, 371, 3 P.3d 1239, 1248 (2000). Thus, in comparing statutes concerning the subject matter of sentencing, Putnam observed that “HRS § 706-667 is to be favored and would control,” were the defendant in that case age-eligible for young adult defendant sentencing, which she was not. Id.

B. HRS § 706-667
We now turn to an examination of HRS § 706-667, which provides:
Youngadul t def endan ts. (1) D efine d. Ayoun g adu lt

defen dant is a perso n con victe d of a cri me wh o, at the time of th e off ense, is l ess t han t wenty -two years of a ge an d who has n ot be en pr eviou sly c onvic ted o f a f elonyas a n adu lt or adjud icate d as a juv enile for an of fense that woul d hav e const itute d a f elonyhad the y oung adult defe ndant been an adult

. ( 2) Sp ecial ized corre ction al tr eatme nt. Ayoun g adu lt defen dant who i s sen tence d to a ter m of impri sonme nt



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excee ding thirt y day s maybe c ommit ted b y the cour t to the custo dy ofthe depar tment of p ublic safe ty an d sha ll recei ve, a s faras p racti cable , suc h spe cial and indiv idual ized corre ction al an d reh abili tativ e tre atmen t as may b e app ropri ate t o the youn g adu lt de fenda nt's needs

. ( 3) Sp ecial term . A y oung adult defe ndant conv ictedof a felon y, in lieuof a ny ot her s enten ce ofimpr isonm ent autho rizedby t his c hapte r, ma y be sente nced to a speci al indet ermin ate t erm o f imp rison ment if th e cou rt is of t he opini on th at su ch sp ecial termis a dequa te fo r the youn g adult defe ndant ’s co rrect ion a nd re habil itati on an d wil l not jeopa rdize the prote ction of t he pu blic. When orde ring a speci al in deter minat e ter m of impri sonme nt, t he co urt s hall impos e the maxi mum l engthof i mpris onmen t, wh ich s hall be eight year s fora cl ass Afelo ny, f ive y ears for a clas s B felon y, an d fou r yea rs fo r a c lass C fel ony. The minimum lengt h of impri sonme nt sh all b e set by t he Ha waii parol ing autho rity in ac corda nce w ith s ectio n 706 -669. Duri ng th is speci al in deter minat e ter m, th e you ng ad ult s hall be incar cerat ed se parat ely f rom c areercrim inals , whe n pract icabl e. T his s ectio n sha ll no t app ly to the offen ses o f mur der or at tempt ed mu rder. 

### 1. A Plain Language Reading of HRS § 706-667 in Favor of the State In the face of HRS § 712-1240.8(3)’s “notwithstanding . . . any other law to the contrary” language, the permissive “may be sentenced” in HRS § 706-667 seemingly lacks the force necessary to demonstrate that sentencing under HRS § 706-667 overrides sentencing under HRS § 712-1240.8(3). When HRS §§ 706-667 and 712-1240.8(3) are read together, the “notwithstanding . . . any other law to the contrary” language indicates that a special five-year indeterminate term of imprisonment under HRS § 706-667 is contrary to a ten-year indeterminate term of imprisonment under HRS § 712-1240.8(3). As the United States Supreme Court has observed, “[I]n construing statutes, the use of such a ‘notwithstanding’ clause

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### clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section. Likewise, the Courts of Appeals generally have ‘interpreted similar “notwithstanding” language . . . to supersede all other laws, stating that “[a] clearer statement is difficult to imagine.”’” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, (1993)(citations omitted).

2. A Plain Language Reading of HRS § 706-667 in Favor of Casugay-Badiang On the other hand, the plain language of HRS § 706-667 also states, “A young adult defendant convicted of a felony, in lieu of any other sentence of imprisonment authorized by this chapter, may be sentenced to a special indeterminate term of imprisonment.” All sentences for all offenses are governed by “this chapter,” meaning Chapter 706. See HRS § 706-600 6 

### (1993)(“No sentence shall be imposed otherwise than in accordance with this chapter.”); HRS § 706-660 cmt. (1993)(“This section establishes that dispositions for all offenses – whether defined within or outside the Penal Code – are to be imposed in accordance with this chapter and . . . ‘the only dispositions authorized are those permitted by the Code.’”). In addition, facially, the only limit on the application of

We th erefo re re ject the S tate’ s arg ument that HRS § 706 -667 does not 6 applyto H RS § 712-1 240.8 simp ly be cause HRS § 712 -1240 .8 is not foundwith in Chapt er 70 6. 

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### HRS § 706-667 as a sentencing option appears in subsection (3): “This section shall not apply to the offenses of murder and attempted murder.” Methamphetamine Trafficking in the Second Degree is not included among these offenses. This court previously construed the limitation found in subsection (3) in favor of young adult defendants. In State v. Pacariem, 67 Haw. 46, 47, 677 P.2d 463, 464 (1984), we faced the issue of whether young adult defendant sentencing was available following a conviction for attempted murder. At the time, HRS § 706-667 expressly stated that murder was the only offense for which young adult defendant sentencing was unavailable. 67 Haw. at 47 n.1, 677 P.2d 463 n.1. The State appealed the defendant’s young adult defendant sentence, arguing that the sentencing court should have sentenced the defendant under the more recently passed HRS § 707-660.1, which mandated a sentence of life imprisonment (with or without parole, depending upon the circumstances of the attempted murder). 67 Haw. at 47-48, 677 P.2d at 464. The State argued that the legislature intended to repeal HRS § 706-667 by implication, as to sentencing for the offense of attempted murder, as evidenced in the Commentary to HRS § 707-660.1, which stated that the “sentences for attempted murder . . . would be similar to those provided for murder,” because “in either offense

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### the intent to kill was the same.” 67 Haw. at 47 n.2, 48, 677 P.2d at 463 n.2, 464. The State argued that, when a general and specific statute pertain to the same subject matter, the specific statute (which it argued was HRS § 707-660.1) should supersede and be deemed an exception to the general statute (which it argued was HRS § 706-667). Id. We rejected the State’s argument, noting that that rule of statutory construction was “qualified by the proviso that the conflict between the general and specific statutes in question be ‘plainly irreconcilable.’” Id. (citation omitted). Further, we
held:

H.R.S . § 7 06-66 7 spe cific ally provi des t hat i t is not

appli cable to t he of fense of murder . It also prov ides that the s enten cing court has the d iscre tion to ap ply H .R.S. § 706-6 67 “.

. . in li eu ofany othersent ence of impriso nment autho rizedby t his c hapte r.” These two provi sions of H .R.S. § 706 -667 are n ot pl ainlyirre conci lable withH.R. S. § 706- 660.1 , but rath er in vest the s enten cing court with discr etion to a pply H.R.S . § 7 06-66 7 to a you ng ad ult defen dant, as l ong a s the offe nse i n que stion is n ot mu rder. 

### 67 Haw. at 48, 677 P.2d at 464-65. We then held that repeals by implication are disfavored, and “that if effect can reasonably be given to two statutes, it is proper to presume that the earlier statute is intended to remain in force and that the later statute did not repeal it.” Id. Similarly, in the instant appeal, the State’s argument that HRS § 706-667 sentencing is no longer available under HRS § 712- 1240.8 could be construed as an argument that HRS § 712-1240.8

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### repealed, by implication, young adult defendant sentencing as to the offense of Methamphetamine Trafficking in the Second Degree. Following the logic of Pacariem, however, it can be argued that the sentencing court remained invested with discretion to sentence Casugay-Badiang under HRS § 706-667 in lieu of any other sentence of imprisonment, specifically the sentence set forth under HRS § 712-1240.8 for Methamphetamine Trafficking in the Second Degree, as the only offenses for which young adult sentencing are not available remain murder and attempted murder. Therefore, HRS § 712-1240.8, even with its “notwithstanding” language, did not repeal by implication the sentencing alternative available under HRS § 706-667. 7 

### C. Legislative History of Act 230 of 2006 In light of these two competing and equally viable plain language readings of HRS §§ 712-1240.8 and 706-667, legislative history may be a helpful aid in understanding whether HRS § 712- 1240.8 overrides HRS § 706-667, or whether HRS § 706-667 remains a sentencing alternative. The legislature addressed both

In 19 86, t he le gisla ture amend ed HR S § 7 06-66 7 to expre ssly inclu de 7 attempted murde r as an of fense for whichyoun g adu lt se ntenc ing i s not avail able. 198 6 Haw . Ses s. La ws Ac t 314 , § 4 4 at 614. Alt houghthe legis latur e didnot discu ss Pa carie m, it can be su rmise d tha t the amen dment was m ade i n res ponse to P acari em. See O ta, 3 6 Haw . at 98-99 (“It is a comm on pract ice o f leg islat ive b odies to e nact laws to ci rcumv ent j udici al const ructi ons d eemedby t he le gisla tors to be cont rary to th e tru e mea ning of the s tatut e con strue d.”).



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### statutes in the same Act. See 2006 Haw. Sess. Laws Act 230, at 996-1025. Therefore, the actions the legislature took (or did not take) in clarifying the relationship between these two statutes in Act 230 is worth examining. Act 230 enacted HRS § 712-1240.8 after repealing an earlier version of the methamphetamine trafficking statute, HRS § 712- 1240.6. 2006 Haw. Sess. Laws Act 230, § 4 at 998-99 (enacting Chapter 712, part IV); 1024 (repealing HRS § 712-1240.6). Simultaneously, Act 230 also amended HRS § 706-667 to provide for the availability of young adult defendant sentencing for persons less than twenty-two years of age at the “time of the offense” rather than at the “time of sentencing.” 2006 Haw. Sess. Laws Act 230, § 25 at 1013. Although both HRS §§ 712-1240.8 and 706- 667 were dealt with in the same Act, the legislature made no apparent effort to cross-reference one to the other. Two conclusions might be drawn from the legislature’s inaction: one that supports the State’s argument that HRS § 706-667 is not a sentencing alternative following a conviction under HRS § 712- 1240.8, and one that supports Casugay-Badiang’s argument that it is. 1. Analysis of Act 230 in Favor of the State Act 230 was an omnibus crime bill, and neither HRS § 706-667 nor HRS § 712-1240.8 (nor the interaction between these two

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### statutes) was debated or discussed in the Standing Committee Reports, Conference Committee Reports, or on the House or Senate floor. This was probably because the bill that became Act 230 was the result of the work of the Committee to Conduct a Comprehensive Review of the Hawai ‘ i Penal Code, a committee created by Act 125 of the 2005 Legislative Session which submitted a Report to the Legislature proposing the addition of seven new statutory sections, amendments to 46 existing statutory sections, and the repeal of one statutory section-- proposals the Legislature largely adopted without discussion. Compare 2006 Haw. Sess. Laws Act 230 at 996-1025 with Report of the Committee to Conduct a Comprehensive Review of the Hawai ‘ i Penal Code (“Report”) at 11-57 (2005). Hence, the legislature’s failure to expressly cross-reference HRS § 706-667 with HRS § 712-1240.8 does not necessarily reflect a deliberate intent to retain HRS § 706-667 as a sentencing alternative to HRS § 712-1240.8(3). If anything, such cross-reference was unnecessary, given the legislature’s drafting of HRS § 712-1240.8(3) to exclude “any other law to the contrary,” with young adult defendant five-year indeterminate term sentencing contrary to the ten-year indeterminate term called for in HRS § 712-1240.8(3). See Cisneros, 508 U.S. at 18 (“[T]he use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention that the

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### provisions of the ‘notwithstanding’ section override conflicting provisions of any other section. . . A clearer statement is difficult to imagine.”)(citation omitted). Moreover, the Committee that drafted the legislative proposals that eventually became Act 230 identified crystal methamphetamine abuse as “the dominant issue in the criminal justice system,” affecting “most criminal cases” and “most of the defendants who are sent to prison.” Report at 5. Thus, to the Committee, the problem of methamphetamine in general was of primary concern.

2. Analysis of Act 230 in Favor of Casugay-Badiang Nevertheless, the legislature’s amendment to HRS § 706-667 in 2006 to set the defendant’s eligibility date for young adult defendant sentencing as the “time of the offense,” versus the “time of sentencing” also indicates the legislature’s intent to increase a sentencing court’s discretion to apply HRS § 706-667 by increasing the pool of defendants eligible for young adult sentencing. There is no legislative discussion of the amendment to HRS § 706-667. The Report, however, explains that the change was intended to prevent the unfairness that resulted when the would-be young adult defendant aged out of eligibility for sentencing under HRS § 706-667 simply based on when the sentencing court scheduled his or her sentencing hearing. See

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### Report at 27r. Thus, the increased sentencing discretion added to HRS § 706-667 contradicts any purported legislative intent to simultaneously decrease sentencing discretion via the enactment of HRS § 712-1240.8. This is particularly true where the legislature did not include Methamphetamine Trafficking in the Second Degree among the other offenses for which young adult defendant sentencing is unavailable. See HRS § 706-667(3)(“This section shall not apply to the offenses of murder or attempted murder.”). The legislature could have cross-referenced HRS §§ 706-667 and 712-1240.8, if it had so intended, in Act 230. Tellingly, Act 230 also amended another statute, HRS § 706-622.5, to expressly exclude HRS § 712-1240.8. 2006 Haw. Sess. Laws Act 230, § 18 at 1009. HRS § 706-622.5 states, in relevant part, with emphasis added, “Notwithstanding section 706-620(3), a person convicted for the first or second time for . . . any felony offense under part IV of chapter 712 . . . [but] not including any methamphetamine trafficking offenses under sections 712-1240.7 and 712-1240.8, is eligible to be sentenced to probation . . . .” Thus, if the legislature intended to exclude Methamphetamine Trafficking from HRS § 706-667, it could have done so, as it did with HRS § 706-622.5, but it did not.

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### D. Policy Considerations Given the difficulties in divining the legislative intent behind Act 230, an examination of the legislature’s stated policies behind HRS §§ 706-667 and 712-1240.8 may provide needed guidance. Both statutes were chosen for unique treatment by our legislature. Both statutes are undergirded by powerful policy considerations.

1. Policy Considerations behind Hawai ‘ i’s Carve-Out for Methamphetamine Trafficking On one hand, the legislature has singled out methamphetamine trafficking as requiring sentencing separate from the general sentencing provisions found in Chapter 706. The legislature first carved out methamphetamine trafficking for separate sentencing in 2004 when it passed Act 44. 2004 Haw. Sess. Laws Act 44, § 3 at 204-27; see also H. Stand. Comm. Rep. No. 495-04, in 2004 House Journal, at 1604 (“Amending the new offense of unlawful methamphetamine trafficking to . . . . [s]pecify that other statutes relating to sentencing do not apply to the offense of methamphetamine trafficking[.]”). Act 44 resulted in the codification of HRS § 712-1240.6, which set classes of methamphetamine trafficking offenses according to the weight of methamphetamine, and set mandatory prison terms and fines according to the class of offense. HRS § 712-1240.6 (Supp. 2004).
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### The new carve-out was pursuant to the legislature’s finding “that new and enhanced criminal penalties are needed to protect [Hawai ‘ i’s] citizens from the effects of the ice epidemic.” 2004 Haw. Sess. Laws at 205. The legislature stated that “the use of and addiction to crystal methamphetamine (especially in the form known as ‘ice’) . . . has reached epidemic proportions and is currently considered a public health crisis. 2004 Haw. Sess. Laws at 204. HRS § 712-1240.6 was repealed in 2006 and replaced with our current methamphetamine trafficking statutes, HRS Chapter 712, Part IV.

2. Policy Considerations behind Hawai ‘ i’s Young Adult Defendant Sentencing On the other hand, the legislature has also singled out young adult defendants for specialized sentencing due to their immaturity and potential for rehabilitation. HRS § 706-667 is based on the Model Penal Code, Tentative Draft 7. Putnam, 93
Hawai ‘ i at 369, 3 P.3d at 1246 (“HRS § 706-667 is based on the Young Adult Offender statute, Section 6.05 of the Model Penal Code, and is in relevant part similarly worded.”). The Commentary to HRS § 706-667 contains a cross-reference to the Model Penal Code, Tentative Draft No. 7, comments at 24, which explains the general policy behind young adult sentencing as
follows:

26*** FOR PUBLICATION IN WE ST’S HAWAI # I REPORTS AND PACIFI C REPORTER *** [T]he inci dence of c rimin alityand of re cidiv ism i n thi s age span is di stres singl y anddisp ropor tiona tely high; that these are still , how ever, form ative year s in perso nal devel opmen t; an d tha t the se in divid uals invol ved h ave m any years of a ctive life ahea d. P ruden ce an d hum anitycomb ine, there fore, to a rgue for a spec ializ ed an d con centr ated effor t in this area. 

### Model Penal Code, Tentative Draft No. 7, comments at 24 (1957); Putnam, 93 Hawai ‘ i at 369-70, 3 P.3d at 1246-47 (citing to the Model Penal Code, Tentative Draft No. 7); see also Model Penal Code Part I Commentaries, vol. 3 at 75 (1985)(finalizing draft comments similarly). The Commentary to HRS § 706-667 also explains the philosophy behind discretionary sentencing and special terms of imprisonment for young adult defendants:

[T]he Code adop ts a flexi ble a pproa ch in sent encin g. Th e court is n ot co mpell ed to impo se a speci al te rm in the case of a convi cted youngadul t. I t may , acc ordin g to the provi sions of P art I I of this Chapt er, s uspen d the impos ition of s enten ce orsent ence the d efend ant t o proba tion. If t he co urt d eterm ines that impri sonme nt is neces sary, the court is f ree, withi n the limi tatio ns heret ofore set forth , to choos e bet ween the s pecia l ter m autho rizedby t his s ectio n andthe ordin ary a nd ex tende d terms auth orize d by priorsect ions in th is Pa rt. S ubsec tion (3) m erelyauth orize s the empl oymen t of a spe cial, more limit ed te rm ofimpr isonm ent “ if th e cou rt is of t he op inion that such speci al te rm is adeq uate for.. . [th e def endan t’s] corre ction and rehab ilita tion and w ill n ot je opard ize t he prote ction of t he pu blic. ” Ass umingthe court is s atisf ied that this condi tion can b e met , the re se ems n o rea son f or not a llowi ng th e cou rt, i f it choos es, t o pro tect the y oung offen der f rom t he lo nger maxim a pro videdfor felon ies. 

### HRS § 706-667 cmt. (1993 & Supp. 2006)(emphasis added). Other passages in the Model Penal Code, Tentative Draft 7, illuminate further policy reasons behind specialized young adult sentencing. For example, as to why youthful offenders should receive a

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### shorter term of imprisonment than ordinary offenders, the American Law Institute reasoned as follows:

We re cogni ze th e the ory . . . that

. . . a lo nger term is more refor mativ e tha n a s hort, defi nite sente nce t o jai l. This is a case, howe ver, where we t hink that theor y has outru n a s ense of ju st pr oport ion. Simp le re gard for perso nal l ibert y – o f you ng no less than of m ature adul ts – requi res, in ou r vie w, th at yo ungerpeop le no t be subje ct to more onero us se ntenc es be cause of t heir immat urity . We can perce ive n o ade quate basi s forsent encin g you ng ad ults, whose offe nses revea l no subst antia l dan ger t o the commu nity, to s enten ces a s lon g as those impo sed f or ma jor crime s. 

### Model Penal Code, Tentative Draft 7, comments at 28. IV. Conclusion There are strong arguments both for and against retaining discretion to sentence under HRS § 706-667 following a conviction under HRS § 712-1240.8. As analyzed above, however, there exists enough ambiguity in the language of both statutes, their relationship to each other, and the legislature’s actions (and inaction) with regard to each that the rule of lenity applies in this case. “[W]here a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity. Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.” State v. Bayly, 118
Hawai ‘ i 1, 15, 185 P.3d 186, 200 (2008)(citation omitted). In addition, based on the totality of the circumstances, it appears the legislature considers HRS § 706-667 a separate and unique sentencing overlay to all other indeterminate term

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### sentencing statutes (except murder and attempted murder) such that HRS § 706-667 would not be “contrary” to HRS § 712- 1240.8(3). First, the plain language of HRS § 712-1240.8 does 8 

### not enumerate HRS § 706-667 among the other five statutes excluded from consideration in sentencing for Methamphetamine Trafficking in the Second Degree. HRS § 712-1240.8(3). Further, the catch-all phrase “notwithstanding any other law to the contrary,” under Lau, has not been interpreted to limit the availability of young adult sentencing. Lau, 73 Haw. at 263, 831 P.2d at 525. Even if HRS § 706-667 could be viewed as conflicting with HRS § 712-1240.8(3)’s sentencing provisions, we have already held that the young adult defendant sentencing statute, as the more specific statute, “is to be favored and would control,” over other general sentencing statutes like HRS § 712-1240.8(3). Putnam, 93 Hawai ‘ i at 371, 3 P.3d at 1248. Second, young adult defendant sentencing is “in lieu of any other sentence of imprisonment” for any other offense except murder and attempted murder. HRS § 706-667(3). Under Pacariem, the limitation set forth in HRS § 706-667(3) is restrictively viewed. Pacariem, 67 Haw. at 48, 677 P.2d at 464-65. Methamphetamine Trafficking in the Second Degree is not listed

If th e leg islat ure d isagr ees w ith o ur in terpr etati on ofHRS § 706 -667, 8 as it appa rentl y didfoll owingPaca riem, it h as th e pow er to amen d HRS § 70 6- 667 ( and/o r HRS § 71 2-124 0.8) to cl arifythat youn g adu lt de fenda nt se ntenc ing is no t ava ilabl e fol lowin g a c onvic tion for M ethampheta mine Traff ickin g in the Secon d Deg ree. 

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### along with murder and attempted murder, indicating that the court retains discretion to sentence under HRS § 706-667 following a conviction under HRS § 712-1240.8. Third, when the legislature simultaneously amended HRS §706-667 and enacted HRS § 712-1240.8 in 2006, it did not crossreference those statutes with each other to indicate that young adult sentencing was not available following a conviction under HRS § 712-1240.8. 2006 Haw. Sess. Laws Act 230, §§ 4, 25 at 998- 99, 1013. Through that same act, the legislature demonstrated its ability to so cross-reference when it excluded HRS § 712- 1240.8 from HRS § 706-622.5. 2006 Haw. Sess. Laws Act 230, § 18 at 1008. Therefore, it appears that the legislature did not intend to exclude HRS § 706-667 as a sentencing alternative to HRS § 712-1240.8(3). Fourth, the policy considerations behind HRS § 706-667 indicate that young adult defendants are intended to be spared from the same sentences imposed on adults for major crimes like methamphetamine trafficking. Model Penal Code, Tentative Draft 7, comments at 28. As such, we hold that the sentencing court did retain discretion to sentence Casugay-Badiang under HRS § 706-667. Accordingly, the ICA’s Judgment on Appeal is reversed. The

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### circuit court’s Judgment of Conviction and Sentence and Order Denying Motion to Correct Illegal Sentence are affirmed.
Ronette M. Kawakami /s/ Simeon R. Acoba, Jr. (Summer M. M. Kupau with her on the briefs) /s/ Sabrina S. McKenna for petitioner /s/ Richard W. Pollack James M. Anderson for respondent

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