NEW LAW ON 1ST-TIME DRUG OFFENDERS PUT TO TEST

WAILUKU -- A former Hana man who would be subject to a one-year, eight-month
mandatory minimum term in prison also is eligible for no prison at all under
a new state law for first-time drug offenders.

During a hearing Tuesday, 2nd Circuit Judge Joseph Cardoza instructed Maui
Deputy Prosecutor Kevin Jenkins to file a motion for a mandatory prison term
for Philip Acang, 30, on multiple counts of drug possession, including
possession of crystal methamphetamine.

But Deputy Public Defender Wendy Hudson will be allowed to argue that the
law providing for a mandatory prison term for Acang as a repeat offender
does not apply based on the new law, Act 161.

Cardoza reviewed some of the terms of the new law, noting that provisions
that would allow a criminal defendant to be sentenced to prison apparently
do not apply to Acang.

Acang pleaded no contest to a series of drug offenses dating back to
September 2000 in three separate criminal cases before Cardoza. The
convictions include offenses involving possession of crystal
methamphetamine, which normally requires a mandatory prison term.

Acang also was convicted in 1992 of second-degree robbery, which counts as a
prior felony conviction in determining whether he is a repeat offender.

Act 161, which went into effect on July 1, provides for a first-time drug
offender to be placed on probation, with no jail time but with a requirement
that the individual undergo drug treatment.

There are exceptions. The individual cannot have been convicted of a violent
crime within the previous five years and cannot be convicted of distributing
or manufacturing illegal drugs.

But there is no indication of whether the new law excludes sentencing under
other laws that may apply, such as the provision for mandatory minimum
prison terms for a defendant who is found to be a repeat offender, Cardoza
said.

Hudson said the fact that the law does not provide an exception indicates
the Legislature did intend to include repeat offenders within the terms of
the new law. The law applies to individuals who are already on probation or
parole, but who are convicted of a drug offense for the first time.

"The intent was to include repeat offenders as an alternative to sentencing
for people with drug addictions," she said. "The spirit of the law is to
help people who are addicted."

But Jenkins suggested the law did not apply if the court finds that the law
does not address a defendant's unique situation.

Cardoza instructed Jenkins to file a motion for a mandatory minimum prison
term for Acang as a repeat offender, with Hudson to be allowed to respond
with a brief in opposition. A hearing on the issues was scheduled for Oct.
14.