State v. Jumila

950 P.2d 1201, 87 Haw. 1, 1998 Haw. LEXIS 10
CourtHawaii Supreme Court
DecidedFebruary 3, 1998
Docket19898
StatusPublished
Cited by46 cases

This text of 950 P.2d 1201 (State v. Jumila) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jumila, 950 P.2d 1201, 87 Haw. 1, 1998 Haw. LEXIS 10 (haw 1998).

Opinions

KLEIN, Justice.

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

I. BACKGROUND

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

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

II. DISCUSSION

A. Analysis

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

According to HRS § 701-109(4)(a), one offense is included within another when “it is established by proof of the same or less than all the facts required to establish the [3]*3commission of the [other] offense.... ” The use of a firearm is a fact that needs to be proven to establish the HRS § 134-6(a) offense; however, the use of a firearm does not need to be proven in order to establish the offense of second degree murder. That Ju-mila’s sentence for second degree murder was enhanced, pursuant to HRS § 706-660.1(l)(a), because of the use of a firearm does not alter that fact. Accordingly, we hold that the offense of use of a firearm in the commission of second degree murder in violation of HRS § 134-6(a) is not an included offense4 of second degree murder in violation of HRS § 707-701.5(1).

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

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

in order for the prosecution to prove that a defendant committed robbery in the first degree, the prosecution must also prove— as an element of first degree robbery—all the elements of theft or attempted theft.

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Bluebook (online)
950 P.2d 1201, 87 Haw. 1, 1998 Haw. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jumila-haw-1998.