Dissenting Opinion by ACOBA, J.

I respectfully dissent.

In my view, the majority in this case incorrectly applies the terms "proceedings" and "penalty incurred" in the generic savings clause in Section 29 of Act 44, 2004 Haw. Sess. L. Act 44 [hereinafter Act 44], § 29 [hereinafter Section 29], to preclude the application of Section 11 of Act 44 [hereinafter, Section 11] to Defendant-Appellee Susan Reis (Reis). In light of its ameliorative and remedial purpose of allowing first-time drug offenders to be sentenced to probation, Section 11 should be applied to Reis because (1) under a plain reading of Section 29, Reis's sentencing "proceeding" took place after the effective date of Act 44, (2) alternatively, and assuming, arguendo, the term "proceedings" is ambiguous, the fact that prosecution of the case was initiated prior to the effective date of the Act does not preclude application of Section 11 under State v. Avilla, 69 Haw. 509, 750 P.2d 78 (1988), and also (3) Reis's sentence may be treated as "a penalty incurred," after the effective date of the Act.

Ultimately, the majority's interpretive construct is unsound because "nothing is to be gained by imposing the more severe penalty," Wayne LaFave, 1 Substantive Criminal Law, § 2.5 (2007) [hereinafter, Substantive Criminal Law], that existed before the most recent legislative policy embodied in Section 11, — especially when our case law permits this court to confirm application of Section 11. Unfortunately, the real "losses" are suffered by those individuals whose opportunity for rehabilitation is again forfeited by a decision of this court, and by the legislature in its efforts to combat the methamphetamine or "ice" problem. The consequences will invariably have an adverse effect for such persons in their personal lives, for those around them, and for our community as a whole.

Such considerations have obviously been at the heart of our trial courts' application of Section 11 and I view their positions in these cases as legally correct and judicially appropriate. Thus, I would affirm the decision of the Honorable Steven Aim of the circuit court of the first circuit (the court), applying Section 11 and sentencing Reis to probation.

I.

First, a plain reading of "proceedings" in Section 29 supports the view that the sentencing proceeding took place after the effective date of Act 44. In enacting Section 11, the legislature made clear, in the text of the Act, that a first-time drug offender may be "sentenced to probation to undergo and complete a substance abuse treatment program . . . notwithstanding that the person would be subject to sentencing as a repeat offender under [Hawai'i Revised Statutes (HRS) §] 706-606.5[.]" Act 44, pt II, § 11 at 214 (emphases added). Section 11 allows the court discretion in sentencing first-time drug offenders to probation provided the court has determined certain criteria are met. Id. These criteria include a determination that "the person is nonviolent" and that "[t]he person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment[.]" Id. Further, the court must also determine that "the person can benefit from substance abuse treatment" and if such criteria are met, "the person should not be incarcerated in order to protect the public." Id.

Act 44 announced the legislature's intention to give courts "more discretion . . . in sentencing" and stated that it "intend[ed] that a broader group" of drug offenders would be eligible to undergo drug treatment.

The Task Force recommended that [ 2002 Haw. Sess. L.] Act 161 [hereinafter Act 161] should be amended to clear up the confusion regarding repeat offenders and the criteria for eligibility for drug treatment, and permit more discretion by the court in sentencing. The legislature finds that diversion to drug treatment instead of prison is consistent with the solution to cure the ice epidemic. Accordingly, the legislature intends that a broader group of nonviolent drug offenders will be eligible for consideration for probation in order to undergo drug treatment. The purpose of this amendment is to provide the court with discretion in sentencing a first-time nonviolent drug offender to probation regardless of whether the offender has prior convictions. The legislature strongly urges courts to consider transferring the most severely addicted offenders or addicted offenders with criminal histories to the jurisdiction of the drug court as a condition of being sentenced to probation.

Act 44, pt II, § 9 at 213 (emphasis added). In Act 44, Section 29 is a generic savings clause to the effect that "[t]his Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." Act 44, pt IX, § 29 at 227 (emphasis added). Section 33 of the Act states that "[t]his Act shall take effect on July 1, 2004[.]" Act 44, pt IX, § 33 at 227.

There is no question that Section 11 is an ameliorative or remedial sentencing provision. An ameliorative statute can be defined as a "legislative change which . . . reduced] the penalty for criminal behavior." See Today's Law and, Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, Comment, 121 U. Pa. L.Rev. 120, 120 (1972);. see also Black's Law Dictionary 1319-20 (8th ed.2004) (defining a "remedial law" as "[a] law passed to correct or modify an existing law"). Act 44 is ameliorative in nature because it amends prior legislation requiring mandatory minimum sentences for persons who would be first-time nonviolent drug offenders and, instead, grants the court discretion to impose probation. Act 44, pt II, § 9 at 212-13. Where such provisions are concerned, "this court has taken the position that remedial legislation is to be construed liberally in order to accomplish the purpose for which it was enacted." State v. Von Geldern, 64 Haw. 210, 215, 638 P.2d 319, 323 (1981) (emphasis added) (citing Roe v. Doe, 59 Haw. 259, 581 P.2d 310 (1978) (other citation omitted)).

II.

In sentencing Reis, the court determined that the sentencing proceeding took place after the effective date of the Act, that the term proceedings may apply to a separate sentencing proceeding in a criminal case where the prosecution was begun before the effective date of the subject act, and the penalty, i.e., sentence, was incurred after the effective date of the Act.

Here [Reis] was arrested, she pled, and I think the plea was approximately a week before the Act 44 [effective] date. But the sentencing was well after that. And there is no question the legislature on their word intended that a broader group of non-violent drug offenders will be eligible for consideration for probation in order to undergo drug treatment. And the legislature wants to present more discretion by the [c]ourt, in sentencing. I believe that [Reis] fits into that criteria and both she and society will be better off with her getting dual-diagnosis care and, the drug treatment that are set up for her rather than sentencing her as a repeat offender and, sentencing her to prison.

. . . I think [this case is] different from [State v.] Walker [, 106 Hawai'i 1, 100 P.3d 595 (2004),] because of the timing. . . . Penalties were incurred after the effective date of Act H-And, proceedings that were begun, the [c]ourt is of the belief that when . . . proceedings [are] being discussed, it is referring to the sentencing proceedings.

. . . And the prosecution in Avilla argued that, proceedings that were begun should, refer to the initiation of the prosecution. The [s]upreme [c]ourt disagreed. [It] said that proceedings can also refer to bail proceedings, and, in Avilla, this was a, post-conviction bail proceeding. So it occurred, after the conviction, and that, I think, certainly comports with our situation in this case.

In addition, the [s]upreme [c]ourt also pointed, out in Avilla that when there is a doubt . . ., that an ambiguity exists. And in such case, the [c]ourt should look at the intent of the legislature for guidance. And as I said before, the intent is clear, and that's to give the [c]ourt more discretion in sentencing.

(Emphases added.)

III.

The court stated that it was "of the belief that when . . . proceedings is being discussed [in Act 44], it is referring to sentencing proceedings." Consistent with the court's reasoning, the term proceeding in Section 29 includes "[a]n act or step that is part of a larger action." Black's Law Dictionary at 1241. As such, a sentencing proceeding is obviously an "act or step" within the larger criminal action and, thus, fits within the definition of proceeding.

Liberally construing the remedial provisions of Act 44 as we must, see Von Geldern, 64 Haw. at 215, 638 P.2d at 323, a plain reading of the statute permits the remedial provision to be applied in sentencing proceedings that were begun after the effective date of the Act. Inasmuch as the sentencing proceeding was a separate step that took place after the effective date of Act 44, and in view of the liberal construction this court has said must be given to remedial legislation, see id., the court could, as it did, treat Section 11 as incorporating a sentencing proceeding that occurred after the effective date of the Act.

IV.

Despite the foregoing, the majority maintains that the term "`proceedings,' as it appears in Act 44, Section 29, unambiguously refers to the initiation of a criminal prosecution[,]" majority opinion at 87, 165 P.3d at 988 (emphasis added), and, as such, obviates application of the remedial provisions to Reis. However, applying a plain language approach, the term proceedings is not defined in Act 44 as the "initiation of a criminal prosecution," as the majority would have it. There is nothing on the face of the statute or in the legislative history with respect to Section 11 that states the legislature intended that "proceedings" would refer only to "the initiation of a criminal prosecution."

But assuming, arguendo, that a prosecution includes, inter alia, a sentencing proceeding, the majority's conclusion that "` proceedings,' . . . subsumes . . . other procedural events" does not follow. Majority opinion at 97-98, 165 P.3d at 998-99 (emphasis added). Although a sentencing "proceeding" is part of a prosecution, the majority erroneously equates the term "proceeding" with the term "criminal prosecution." See majority opinion at 97-98, 165 P.3d at 998-99. Manifestly, this conflicts with the plain meaning of "proceedings," which, as discussed supra, includes an "[a]n act or step that is part of a larger action[,]" Black's Law Dictionary at 1241, such as a prosecution, id. at 1258 (defining "prosecution" as "[a] criminal proceeding in which an accused person is tried"). Thus, the majority's underlying premise — namely that "`proceedings' . . . means criminal prosecutions," majority opinion at 97-98, 165 P.3d at 998-99, is faulty. Indeed, that a sentencing proceeding occurring after the enactment of Act 44 must be viewed as inclusive of the remedial provision of Section 11 is accredited by this court's stated adherence to "the position that remedial legislation is to be construed liberally . . . to accomplish the purpose for which it was enacted." Von Geldern, 64 Haw. at 215, 638 P.2d at 323.

V. A.

Second, in the alternative, and assuming, arguendo, the term proceedings in a generic savings clause is viewed as ambiguous, as this court indicated in Avilla, Section 11 should apply to defendants sentenced after the effective date of Act 44. As the court declared, Avilla is directly on point because it addressed an ameliorative statute, Act 139, 1987 Haw. Sess. L. Act 139 [hereinafter Act 139], that contained an identical savings clause. The savings clause in Avilla, like the one in the instant case, stated that it did "not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." 69 Haw. at 511, 750 P.2d at 79.

The issue in Avilla was whether the savings clause precluded the defendant from petitioning for release on bail pursuant to HRS § 804-4, as amended on June 5, 1987. Id. at 509, 750 P.2d at 78. Prior to June 5, 1987, the statute in issue had read that "no bail shall be allowed pending appeal of a felony conviction where a sentence of imprisonment has been imposed." Id. at 510, 750 P.2d at 78. But "[i]n 1987 the legislature amended the statute to allow a criminal defendant who is sentenced to imprisonment to be released pending appeal in given circumstances." Id. at 510, 750 P.2d at 78-79.

Avilla was indicted prior to the passage of the Act Like the majority approach in this case, the trial court concluded that the Act was "not applicable to this case because under Section 1[0], [the savings clause], the proceedings of July 1986 began before the effective date of the amendment of June 5, 1987." Id. at 511, 750 P.2d at 79.

Reading the savings clause at issue, this court found "no clue on how the legislature intended `proceedings' to be read." Id. at 513, 750 P.2d at 80. Avilla noted that the relevant legislative committee reports related the amendment of the statute "was prompted by a concern for those criminal defendants whose appeals are eventually deemed meritorious." Id. Based on that concern, this court stated that it could not "conclude the legislature meant to deny every convicted criminal whose prosecution began before the amendment [of the statute] became effective an opportunity to seek release on bail pending appeal." Id. Further, "[a]n acceptance of the State's position would be inconsistent with the legislative purpose to prevent the injustice of a criminal defendant, particularly one whose release would pose no danger to others, being imprisoned while there is pending a substantial question of law or fact that casts doubt on the validity of his conviction." Id.

This court held that, in light of the remedial nature of the legislation, the term proceedings included a bail proceeding occurring after the effective date of Act 139, even though the criminal action involved had begun before the effective date of that act Id. at 513, 750 P.2d at 80-81. Thus, Avilla determined that the trial court erred "when it ruled the Act did not apply to prosecutions [that were] begun before its effective date[.]" Id. (emphasis added); see id. (finding that despite the savings clause, retroactive application was appropriate but that defendant could not be released on bail because he had not shown "he is not one likely to flee or pose a danger to others" as required by the statute). Even the majority acknowledges that "[i]n Avilla, this court held that the ameliorative amendments . . . were available to a defendant who was indicted . . . prior to . . . the effective date of the amendments." Majority opinion at 88-39, 165 P.3d at 989-99.

Therefore, assuming, arguendo, ambiguity in the term proceedings, in the instant case, as in Avilla, we cannot "conclude the legislature meant to deny every [qualified] convicted criminal whose prosecution began before the amendment" of Section 11 the opportunity to seek probation. 69 Haw. at 513, 750 P.2d at 80. Consequently, as the trial court in Avilla erred in "rul[ing] that Act [139] did not apply to prosecutions [that were] begun before its effective date," id. at 513, 750 P.2d at 81, so does the majority err in ruling the term "proceedings" must apply to a "unitary criminal prosecution" that were begun before the effective date of Act 44, majority opinion at 89 n. 31, 165 P.3d at 999 n. 31.

This is because such a ruling is "inconsistent with the [remedial] purpose," Avilla, 69 Haw. at 513, 750 P.2d at 80, of Section 11. Accordingly, the court was correct in determining that, consistent with Avilla, remedial provisions in acts that include identical savings clauses can be applied to prosecutions that were begun before the effective date of such acts, absent express legislative intent to the contrary, such as that lacking in this case.

Moreover, if any ambiguity exists, despite the history of the legislature's ongoing explicit effort to divert first time drug offenders into drug rehabilitation programs, the rule of lenity commands the same result. See State v. Aiwohi, 109 Hawai'i 115, 129, 123 P.3d 1210, 1224 (2005) ("In the absence of clear statutory language, and with no legislative guidance vis-à-vis legislative history, the applicable doctrine is the rule of lenity." (Citation omitted.)); State v. Shimabukuro, 100 Hawai'i 324, 328, 60 P.3d 274, 278 (2002) ("Where a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity." (Citing State v. Kaakimaka, 84 Hawai'i 280, 292, 933 P.2d 617, 629 (1997) ("Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." (Citations omitted.)))). Hence, in this case, the generic savings clause appended to Act 44 must be construed against the prosecution with respect to Section 11, in consonance with the rule of lenity.

B.

The majority's attempt to distinguish Avilla is inconsistent with Avilla itself. Its first argument, see supra note 10, does not dispute that Avilla had an "identical" savings clause; however the majority maintains that Avilla is distinguishable because "the subject matter of Act 139 . . . pertained solely to bail." Majority opinion at 89, 165 P.3d at 990. In that respect, the majority ignores the precedential weight of Avilla, paring the opinion down to the unsubstantiated proposition that " Avilla demonstrates that the [unique] subject matter of an act can create ambiguity where normally none exists." Majority opinion at 88, 165 P.3d at 989. This assertion is unsupported by case law and Avilla. Avilla said nothing about the "unique subject matter" of bail but plainly concluded that the word "proceedings" as used in Act 139 was subject to multiple interpretations. 69 Haw. at 512, 750 P.2d at 80.

As to its second argument, see supra note 10, the majority misstates the case. There is no indication in Avilla that this court made any presupposition that "proceedings" generally or "normally" means prosecutions, as the majority maintains, see majority opinion at 89, 165 P.3d at 990, inasmuch as Avilla specifically stated that "` [p]roceedings,' as employed in the section of [the act] in question, can mean prosecutions; but within the context of statutes regulating the release of defendants on bail, it can also mean bail proceedings." 69 Haw. at 512, 750 P.2d at 80 (emphases added). Because the term proceedings was broad enough to encompass several steps in a criminal action, this court determined that the savings clause was ambiguous. See id.

Similarly, here, "proceedings" is a multifaceted term and if viewed as ambiguous, may reasonably be construed in remedial legislation to include sentencing proceedings, as the court decided. As such, the majority's far-reaching inference that the above statement from Avilla means proceedings are "normally" prosecutions, majority opinion at 89, 165 P.3d at 990, is, with all due respect, erroneous as applied to remedial statutes, and conflicts with the rule of liberal construction. Von Geldern, 64 Haw. at 215, 638 P.2d at 323. Similar to the reasoning in Avilla, "within the context of statutes regulating" the discretion to afford probation, proceedings "can also mean" sentencing hearings. Avilla, 69 Haw. at 512, 750 P.2d at 80.

As to the majority's third argument, see supra note 10, consistent with Avilla, if proceedings in the savings clause is viewed as ambiguous, legislative history may be consulted in order to discern legislative intent. See Hawaii Providers Network, Inc. v. AIG Hawaii Ins. Co., 105 Hawai'i 362, 369, 98 P.3d 233, 240 (2004) (stating that "[i]f statutory language is ambiguous or doubt exists as to its meaning, courts may take legislative history into consideration in construing a statute" (internal quotation marks, brackets, and citation omitted)). The majority appears to argue that the term proceedings is not ambiguous and, thus, the legislative history need not be consulted. See majority opinion at 90 n. 18, 165 P.3d at 991, 991 n. 18. But the majority does not quote a single opinion that defines proceeding as "the initiation of a criminal prosecution," see majority opinion at 87, 165 P.3d at 988, in support of its position. On the other hand, the legislative history behind section 11 supports a liberal interpretation of the remedial provision, not a narrow one.

As to the fourth argument, see supra note 10, the majority argues that this "dissent oversimplifies the analysis in Avilla" because it was not the "ameliorative nature" of the Act that caused the court to rule thusly but the "ambigui[ty]" in the term "`proceedings.'" Majority opinion at 89 n. 15, 165 P.3d at 990 n. 15. Irrespective of whether the majority is willing to correctly acknowledge the rule of construction confirmed in Von Geldern, 64 Haw. at 215, 638 P.2d at 323, it cannot refute that if the term proceedings is ambiguous, such an ambiguity must be resolved in favor of the defendant, as it was in Avilla or must otherwise be resolved under the rule of lenity. The majority's decision to sever application of ameliorative statutes after a prosecution has begun, obviously contradicts Avilla inasmuch as the remedial statute was applied to Avilla even though his prosecution began prior to its effective date.

Avilla had been tried, convicted, and sentenced before the effective date of Act 139. Accordingly, even if the term proceedings is viewed from the majority perspective, i.e., as the initiation of a criminal prosecution, then Avilla may still be read as applying the statutory act to prosecutions that were begun before the act's effective date. 69 Haw. at 515, 750 P.2d at 81 (stating that "the Act [applied] to prosecutions begun before its effective date"). Avilla applied the new amendment because this court concluded that the term proceedings was not limited to the initiation of criminal "prosecutions" as the majority argues.

VI.

Eschewing the precedential weight of Avilla in which remedial legislation was construed, the majority instead relies heavily upon Van den Berg, which, as the majority notes, "raised the question whether the 1990 or 1993 version of HRS § 134-6(a), involving use of a firearm applied to the defendants' case." Majority opinion at 87, 165 P.3d at 988 (citing Van den Berg, 101 Hawai'i at 190-91, 65 P.3d at 137-38). Although the statute at issue had a similar savings clause, it did not involve any ameliorative provisions. The majority disregards this dispositive distinction and is left with merely noting that "nothing in the Van den Berg analysis conflicts with our conclusion in that case that `proceedings' unambiguously commence with the initiation of a unitary criminal prosecution[.]" Majority opinion at 88, 165 P.3d at 989. The truth of the matter is that the question of the existence of a "unitary criminal prosecution" was never posed or decided in Van den Berg. Therefore, as contrasted with Koch, Avilla, and Von Geldern, and the other cases explaining the doctrine of amelioration discussed in greater detail infra., Van den Berg cannot, in principle, be viewed as relevant or controlling.

The majority mischaracterizes this dissent as "fail[ing] to articulate how an unambiguous term can be rendered ambiguous merely because the statutory provision . . . is ameliorative." Majority opinion, at 88, 165 P.3d at 989. As noted repeatedly in this dissent, the term proceedings on its face can plainly include a sentencing proceeding occurring after the effective date of Act 44. Alternatively, however, if the word proceedings is viewed as ambiguous — the majority acknowledging at least two interpretations of the term, majority opinion at 89 n. 16, 165 P.3d at 990 n. 16 — proceedings can refer to different stages of a larger action, including the sentencing stage. In that case, the rationale in Avilla controls and a sentencing proceeding must be upheld, even if the underlying offense or charge occurred before the effective date of Act 44. Hence, the majority can only reach its result by disregarding Avilla's precedential force and by resting on a case that had nothing to do with remedial legislation.

In this case, Reis was not sentenced prior to the effective date of Act 44 and, consistent with Avilla, her sentencing hearing constitutes a proceeding within the meaning of the Act Because the issue is not before us, we need not decide what other hearings might be encompassed by the term proceedings in various contexts. Nevertheless, as noted infra, our own case law supports the application of ameliorative sentencing proceedings that become effective even while the case is on appeal. See Von Geldern, 64 Haw. at 215, 638 P.2d at 324 (concluding that the ameliorative provisions apply because "[a] judgment is not final for this purpose while the case is on appeal or where the time for appeal has not yet run" (citation omitted)).

VII.

Cases from other jurisdictions also support a liberal reading where ameliorative sentencing statutes are involved. For example, the majority points to People v. Floyd, 31 Cal.4th 179, 1 Cal.Rptr.3d 885, 72 P.3d 820 (2003), for the proposition disputed here that "the general trend among the states nationally is . . . not to apply" "a specific savings clause" "retroactively[.]" Majority opinion at 94, 165 P.3d at 996. In Floyd, the California Supreme Court concluded the savings clause in Proposition 36[, The Substance Abuse and Crime Prevention Act of 2000,] ("[e]xcept as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively[,]"), precluded application to Floyd who had already been sentenced. Id. at 821 (quoting Proposition 36 § 8, as approved by voters, Gen. Elec. (Nov. 7, 2000) (emphasis added)). However, Floyd is inapposite inasmuch as it addressed "whether Proposition 36 . . . applie[d] to defendants who were sentenced, prior to the act's effective date of July 1, 2001, but whose judgments were not yet final as of that date." Id. (emphasis added). In contrast, here Reis was not sentenced prior to the effective date of Act 44, but after its effective date.

In a case more factually similar to ours, the California court of appeals, in In re DeLong, 93 Cal.App.4th 562, 564, 113 Cal. Rptr.2d 385 (2001), considered whether the same Proposition would apply to a defendant who had not yet been sentenced. According to DeLong, "[t]he essential issue presented is the applicability of Proposition 36 to a defendant such as DeLong who was adjudged guilty prior to the initiative's effective date of July 1, 2001, but not sentenced until afterwards." Id. (emphasis added).

The appeals court focused on the ameliorative provision of Proposition 36 that "any person convicted of a nonviolent drug possession offence shall receive probation." Id. at 565, 113 Cal.Rptr.2d 385. DeLong determined that the term "convicted" " must be given a meaning that comports with the purpose of Proposition 36, which is aimed at diverting nonviolent defendants from incarceration into substance abuse programs" and was "intended to have a far-ranging application to nonviolent drug offenders." Id. at 568-69, 113 Cal.Rptr.2d 385. (emphasis added). As such, that court concluded that "`convicted' within the meaning [of the Proposition meant] adjudication of guilt and judgment thereon." Id. Reading the term liberally, it concluded that because " DeLong . . . was found guilty but had not yet been sentenced when the initiative took effect, . . . [she] had not yet been convicted as of that date and [was] eligible for sentencing pursuant to Proposition 36" Id. at 570, 113 Cal.Rptr.2d 385 (emphases added).

Likewise, the New York Court of Appeals explained that where a defendant has not yet been sentenced, the case does not involve "retroactivity" in the classic sense.

This appeal only involves application of the new law to prosecutions before sentence, not to final cases or cases on direct review. Thus, it does not involve "retroactivity" in the classic sense ( see, Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 227, 250 N.Y.S.2d 412, 199 N.E.2d 496 [(N.Y. 1964)]; Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 [(Ky. 1987)]). However, because the cases use the terms "retroactively" or "retroactive", for ease of discussion those terms will be used in the opinion.

People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69, 70 n. 1 (1989) (emphasis added). The New York courts have also said that "[w]hen, prior to sentencing, the Legislature makes a judgment that the crime a defendant has committed warrants a lesser punishment, the defendant may be punished in accordance with the new standards because they represent society's most up-to-date evaluation of the nature of his offense." People v. Walker, 81 N.Y.2d 661, 603 N.Y.S.2d 280, 623 N.E.2d 1, 5 (1993) (emphasis added). Thus, these courts, in line with our own principle requiring liberal construction of ameliorative sentencing statutes, have applied ameliorative amendments that become effective after a defendant has committed the offense or been convicted, and have not characterized such application as retroactive.

VIII. A.

Third, the court, in interpreting the savings clause in Section 29 could, as it did, properly determine that the penalty, i.e., sentence, was incurred after the effective date of the act and therefore Section 11 was applicable to Reis. In interpreting ameliorative amendments, the phrase "penalties that were incurred" has been determined to mean penalties that a defendant faces after he has been convicted of a crime. Consequently, where ameliorative provisions are involved, some courts have found that no "penalty is incurred" until the defendant is sentenced.

For example, in State v. Tapp, 26 Utah 2d 392, 490 P.2d 334 (1971), under facts similar to the instant case, the Utah supreme court considered whether a savings clause precluded the trial judge from imposing a lesser sentence attributable to a statutory amendment adopted between the time the defendant was charged with possessing marijuana and the date of sentencing. Id. at 336. The defendant argued that "he was entitled to the benefit of the lesser statutory penalty in effect at the time of trial, judgment and sentence, rather than the more severe penalty which was in effect at the time the offense was committed." Id. at 335. The Utah court, like the majority here, focused on the language of a similar savings clause but concluded, instead, that "[t]he only way that statute can apply to the problem here involved" would be through its "penalty incurred" provision. Id. at 336.

Tapp decided that the savings clause did not bar the application of the ameliorative sentencing statute because "[i]nasmuch as no penalty is incurred until the defendant is convicted, judgment entered and sentence imposed, that statute does not affect the propriety of [retroactive application of the ameliorative statute] in accordance with the law as it exists at that time " and " if the statute reducing the penalty has become effective before the sentence . . . the defendant is entitled to the lesser penalty as provided by the law at the time of the judgment and sentence." Id. (emphases added). The majority's assertion that Tapp "cites no authority supporting its conclusion that a penalty is, by its plain meaning, `incurred' at the time of sentencing[,]" majority opinion at 92, n. 24, 165 P.3d at 993 n. 24 (emphasis omitted), is simply not true. In fact, the Tapp court relies heavily on case law. It stated that:

There are several considerations which in our minds tend to support our conclusion that where an enactment reducing the penalty for an offense has become effective prior to the conviction, a defendant is entitled to the benefit thereof by having [a] penalty imposed in accordance with the law at the time of the sentence. The first of these is that it is the prerogative of the legislature, expressing the will of the people, to fix the penalties for crimes; and, the courts should give effect to the enactment and the effective date thereof as so declared. There are some other fundamental principles [i]ngrained in our law which, though not directly controlling on the problem at hand, are generally in harmony with the policy considerations which lead to the conclusion we have reached herein. One of these is that to insist mi the prior existing harsher penalty is a refusal to accept and keep abreast of the process which has been continuing over the years of ameliorating and modifying the treatment of antisocial behavior-by changing the emphasis from vengeance and punishment to treatment and rehabilitation. In the same tenor are the time-honored rules of the criminal law generally favorable to one accused of crime: that in case of doubt or uncertainty as to the degree of crime, he is entitled to the lesser; and correlated thereto: that as to an alternative between a severe or a lenient punishment, he is entitled to the latter.

Tapp, 490 P.2d at 335-36 (footnotes omitted) (emphases added) (citing In re Folk, 64 Cal.2d 684, 51 Cal.Rptr. 279, 414 P.2d 407 (1966); In re Ring, 64 Cal.2d 450, 50 Cal. Rptr. 530, 413 P.2d 130 (1966); In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965); In re Fink, 67 Cal.2d 692, 63 Cal.Rptr. 369, 433 P.2d 161 (1967); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967) (other citations omitted)).

B.

The same rationale is applicable here and this court can "give effect to the enactment and the effective date thereof as so declared" and apply the statute in effect at the time of Reis's sentencing. Id. Factually, like the defendant in Tapp, Reis was not sentenced until after the effective date of the statute and, as such, under Tapp's approach to ameliorative statutes, no penalty had been incurred until after the statute's effective date. The savings clause in Section 29, then, would not preclude the application of ameliorative sentencing provisions.

The majority cites to several cases, arguing that "courts in other jurisdictions have analyzed the phrase `penalties incurred' in the context of a savings clause and have concluded that a defendant incurs the penalty at the time of the commission of the offense." Majority opinion at 91-92, 165 P.3d at 992-93. However, these cases are plainly distinguishable because the cases concern preventing abatement of criminal prosecutions, or do not involve ameliorative statutes or unlike our case law, see Koch, 107 Hawai'i at 222, 112 P.3d at 76 (legislative intent to give retroactive effect may be express or implied), require an express legislative statement of retroactivity. The majority does nothing to dispute the foregoing, only stating that "none of the[se] distinctions that the dissent urges, in the end, explain why . . . the term `incurred' should be equated with `imposed[.]'" Majority opinion at 93 n. 25, 165 P.3d at 994 n. 25. However, as noted throughout this opinion, it is the context that gives meaning to the savings clause, i.e., where an ameliorative statute is at issue, the savings clause is to be read liberally in terms of its purpose. Thus, inasmuch as the context of each of these cases is inapposite to the present case, they furnish no support for the majority.

IX. A.

Even though not necessary to validate Reis's sentencing proceeding beyond the aforesaid grounds, it may be observed that if the term proceeding is viewed as "the initiation of a criminal prosecution against a defendant[,]" as the majority insists, majority opinion at 87, 165 P.3d at 988, the retroactive application of such a remedial statute, if within the legal discretion of the court, is authorized by case law in this jurisdiction. For example, as noted above, in Avilla, this court held that an ameliorative statute may be applied to prosecutions that were begun before the effective date of the act. 69 Haw. at 509, 750 P.2d at 78. The majority does not dispute that Avilla retroactively applied the amendment even though "the initiation of [the] criminal prosecution[,]" majority opinion at 87, 165 P.3d at 988, had already taken place and despite the inclusion of the same savings clause used in Act 44.

Aside from Avilla, this court has expressly authorized the retroactive application of ameliorative amendments, i.e., to prosecutions preceding the effective date of the amendment, notwithstanding the absence of a specific, expressed legislative intent. In Von Geldern, a criminal case where the charge was promotion of a dangerous drug, this court distinguished the application of penalty-increasing statutes from ameliorative amendments. With regard to penalty-increasing amendments, it said that "no new punitive measure may be applied to a crime already consummated, where its application would work to the detriment or material disadvantage of the wrongdoer. Such legislation would be ex post facto law as to the offender." Von Geldern, 64 Haw. at 212, 638 P.2d at 321 (emphasis added).

However, the ameliorative statute, in that case, 1980 Haw. Sess. L. Act 284 [hereinafter Act 284], had become effective on June 16, 1980, and was held applicable to a defendant who had filed his notice of appeal on August 31, 1979, after the effective date of Act 284. Id. This court said Act 284 "added a subsection to the mandatory minimum sentence statute . . . to provide the sentencing court with the discretionary authority to impose a lesser mandatory minimum sentence where the court found strong mitigating circumstances to warrant such action." Id. It was declared that Act 284 is "ameliorative in its intent and effect and its application . . . would neither be detrimental nor materially disadvantageous to the defendant[,]" because "[i]t authorizes the trial court to impose less than the mandatory minimum sentence of imprisonment where strong mitigating circumstances are shown to exist." Id. at 213, 638 P.2d at 322.

Von Geldern stated that, "[t]hat being the case, the only possible obstacle to its application in this case would be HRS [§] 1-3 which provides that `(n)o law has any retrospective operation, unless otherwise expressed or obviously intended.'" Id. (citing Oleson v. Borthwick, 33 Haw. 766 (1936) (other citation omitted)). According to this court, however, HRS § 1-3 is only a "rule of statutory construction and where the legislative intent may be ascertained, it is no longer determinative." Id. Also, although it discerned that there was " nothing in the language of Act 284 to indicate, one way or the other, that its ameliorative provisions may be applied retrospectively," this court nevertheless concluded that "such application where they may still be applied was obviously the intent of the legislature." Id. at 213-14, 638 P.2d at 322 (emphases added).

It was concluded that "[t]he legislature, we think, has thus established a pattern of conduct evidencing an inclination to allow the trial court in the exercise of its sound discretion to apply, in individualized circumstances, the `more enlightened sentencing provisions' of the Code, even where the crime was committed before its effective date." Id. at 214-15, 638 P.2d at 323. Consequently, although the defendant had been convicted and sentenced prior to the effective date of Act 28b, because the defendant's appeal was still pending, the Von Geldern court concluded that "the Act's ameliorative provisions were still capable of application" and "reversed and remanded for resentencing consistent with this opinion." Id. at 215, 638 P.2d at 323-24 (emphasis added).

The same applies here. As in Von Geldern, id. at 214, 638 P.2d at 322, a retrospective application is congruent with a "pattern of [legislative] conduct," id. at 214-15, 638 P.2d at 322, inasmuch as Section 9 of Act 44 vested the court "with discretion in sentencing a first-time nonviolent drug offender to probation regardless of whether the offender has prior convictions." Act 44, pt. II, § 9 at 213.

Therefore, as in Von Geldern, the "[legislative] inclination . . . to vest in the sentencing court the discretionary authority . . . [to implement a] more enlightened sentencing provision" applies here, despite the fact the prosecution had begun before the effective date of Act 44. 64 Haw. at 214, 638 P.2d at 322. Reis had not been sentenced before the effective date of Act 44, and, consequently, falls well within the holding in Von Geldern that extended Act 284 after judgment and sentence had been entered and during the pendency of appeal.

B.

Similarly, with respect to the earlier version of HRS § 706-622.5 contained in Act 161 (2002), this court in Koch said that HRS § 706-622.5 may be applied retroactively because the statute is "`ameliorative in its intent and effect . . . [and this court has] repeatedly validated the retrospective application of several remedial statutes on the basis of express or implied intent.'" 107 Hawai'i at 222, 112 P.3d at 76 (quoting Von Geldern, 64 Haw. at 216, 638 P.2d at 322); see also State v. Nakata, 76 Hawai'i 360, 376-77, 878 P.2d 699, 715-15 (1994) (determining that the retroactive application of a remedial sentencing scheme was not prohibited based on the express intent of the legislature).

In Koch, the defendant was "entitled to sentencing under the provisions of HRS § 706-622.5, which were in effect at the time of his sentencing but not at the date he committed the offenses of which he was convicted[.]" 107 Hawai'i at 221, 112 P.3d at 75 (emphasis added). Thus, based on Koch, and like Act 161, retroactive application of Act 44 is appropriate where it plainly fits within the legislative purpose of vesting more discretion in sentencing courts in order to reach a larger group of people. See Act 44, pt II, § 9 at 212-13. Reis's sentence, then, should be affirmed.

X.

The majority fails to validly distinguish Koch and Von Geldern. It maintains that "neither of the statutes [in those cases] contained specific savings clauses, a crucial fact . . . underlying . . . the ultimate conclusion in both cases that the ameliorative amendments could apply to the defendants." Majority opinion at 90, 165 P.3d at 991 (emphasis omitted).

First, neither case contains any discussion of a "specific" versus a "general" savings clause nor do any of the precedents from this jurisdiction support the majority's contention that the inclusion of a "specific savings clause" is a "crucial fact." Id. The majority makes a significant unsubstantiated leap by inferring that the addition of a generic savings clause, such as the one at issue here, in either Koch or Von Geldern, would have negated an implied legislative intent as to Section 11.

Second, the fact that the statutes in Koch and Von Geldern did not contain savings clauses like that in Act 44 would not be dispositive of whether Section 11 may be retroactively applied ( i.e. to a case in which the offense preceded the effective date of Act 44) since such statutes were still subject to HRS § 1-3 which, as noted, states that "[n]o law has any retrospective operation, unless otherwise expressed or obviously intended" and HRS § 1-11 (1993) which states that "[n]o suit or prosecution pending at the time of the repeal of any law, for any offense committed, or for the recovery of any penalty or forfeiture incurred under the law so repealed, shall be affected by such repeal." Ordinarily, then, those statutes in Koch, Avilla, Von Geldern, and in the instant case would be given prospective effect as in Van den Berg. Yet, this court confirmed retrospective effect was permissible for the remedial provisions in both Koch and Von, Geldern.

Third, unlike Act 44, the statutes in Koch and Von Geldern, only contained ameliorative provisions which did not create new or enhanced penalties. Hence, contrary to the purported distinction drawn by the majority, a generic savings clause was not necessary to guard against ex pod facto violations in those cases. By contrast, Act 44 is a multi-statute amendment containing both ameliorative and penalty enhancing provisions, thus necessitating a generic savings clause.

XI.

The majority further maintains that Von Geldern and Koch are inapplicable because "the legislature knows the law when enacting statutes" and therefore, it was aware, "in enacting Act 44 . . . of . . . the crucial analytical role the absence of a savings clause played in Koch and Von Geldern,; yet the legislature nevertheless chose to include a savings clause" in Act 44. Majority opinion at 97, 165 P.3d at 998 (citation omitted). But, because of the "doubt" that must accompany such an assertion, see 1 Substantive Criminal Law, § 2.5 infra, "[a]bsent an indication that the legislature intends a statute to supplant common law [such as our precedent in Von Geldern, Avilla, and Koch], the courts should not give it that effect." Sutherland, Statutory Construction (Singer, 6th ed.) § 50:01 at 140 (citations omitted).

As was the case in Von Geldern, Avilla, and Koch, here there is simply no express indication that the legislature desired to prohibit retrospective effect to the remedial provisions. Those foregoing cases never discussed the lack of a savings clause as the reason for applying the ameliorative amendments to cases that originated before the effective date of the Acts. Rather, as noted, Avilla, applies the ameliorative amendment in spite of the same savings clause contained in Act, 44

Indeed, the legislature's imputed knowledge of these cases would support the opposite view from that taken by the majority — that based on the statements in the cases as quoted supra, this court will apply ameliorative amendments retroactively even in the absence of express legislative intent. See, e.g., Von, Geldern, 64 Haw. at 215, 638 P.2d at 324 (concluding that where the "legislature amended the mandatory sentencing provisions for repeat offenders for the purpose of remedying its inflexibility," the retroactive "application of the new, more flexible law . . . would be in keeping with this legislative objective"). Thus the presumption that the legislature is aware of this court's rulings supports rather than detracts from the retro-active application of Section 11.

XII.

The majority's assertion that "the inclusion of a specific savings clause [(Section 29)] . . . operate[s] as clear evidence of the legislature's intention that the act in question should apply prospectively only[,]" majority opinion at 95, 165 P.3d at 996, is subject to further rejoinder. One commentator has noted retroactive application of ameliorative amendments is appropriate because, " it is to be doubted that the savings statutes represent either sound, policy or the actual intent of the legislature" because "[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty . . . is sufficient to meet the legitimate ends of the criminal law." 1 Substantive Criminal Law, § 2.5 (emphasis added). Consequently, "[n]othing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance." Id. (emphasis added) (citations omitted).

According to LaFave, as such, " appellate courts have consequently given seemingly broad, savings statutes a narrow reading in order not to deprive the defendant before them of the benefit of a prior legislative judgment that the conduct should not be criminal or should be subjected to lesser punishment." Id. (citations and internal quotation marks omitted) (emphasis added). Similarly, a broad savings clause repetitive of such savings statutes should be given a narrow reading in the context of an ameliorative statute.

At issue here is the same provision the legislature first attempted to pass in 2002, but that was negated by this court in State v. Smith, 103 Hawai'i 228, 81 P.3d 408 (2003). Smith concluded that the repeat offender sentencing laws took precedence over the mandatory requirement to sentence a first-time drug offender to probation. Thus, as noted before, the legislature, in enacting Section 11, intended to "clear up the confusion regarding repeat offenders" and to make it clear that "first time nonviolent drug offenders" were "eligible for diversion to treatment." Act 44, pt II, § 9 at 212-13. Nothing in the Act indicates the legislature intended that the people identified as eligible for treatment would lose the benefit of the prior act (Act 161) simply because the legislature clarified the act to pass this court's muster. Nothing in the legislative history or in the majority draft contradicts this point. Nothing, then, mandates this court to deny extension of Section 11 to persons like Reis.

In light of the foregoing history of this particular ameliorative statute, it is to be "doubted" that the legislature "actual[ly] intend[ed]," 1 Substantive Criminal Law, § 2.5, the generic savings clause in Act 44 to abrogate application of Section 11 by appending the so called "specific savings clause" to Act 44, as it had done in all other criminal acts in 2004. See discussion supra.

Thus, contrary to the majority's position, the inclusion of a standard savings clause in this case does not indicate a "very real and clear legislative intent" to preclude application of Section 11. Majority opinion at 91, 165 P.3d at 992. The majority's argument that it "is not mutually exclusive" with the intent of the legislature to apply Section 11 prospectively and only allow the court "increased discretion . . . to new violations occurring after July 1, 2004[,]" majority opinion at 97 n. 30, 165 P.3d at 998 n. 30, is manifestly irreconcilable with sound policy, our precedent, and the evolution of Section 11. To reiterate, as noted by LaFave, there is "nothing to be gained by imposing the more severe penalty" that existed before the passage of Section 11, and the historical evolution of Section 11 portends none. 1 Substantive Criminal Law, § 2.5.

XIII.

The majority's contention that this dissent would allow other provisions of Act 44 to "be susceptible to challenge as unconstitutional ex post facto measures" must also fall by the wayside. Majority opinion at 97, 165 P.3d at 998. The Act, as noted previously, substantially addresses penalties related to drug possession, trafficking, and manufacturing. The savings clause here was of a general nature obviously included to prevent the ex post facto application of those penalty provisions. Where the legislature enacts legislation that includes penalties it would be charged with knowing that the savings clause is necessary to avoid an ex post facto violation. See State v. Guidry, 105 Hawai'i 222, 235, 96 P.3d 242, 255 (2004) (explaining that the "ex post facto clause prohibits legislatures from retroactively altering the definition of crimes or increasing the punishment for criminal cases" (citations, internal quotations, brackets, and ellipses omitted)). Accordingly, under our precedent a liberal reading is required as to the ameliorative provision. On the other hand, the non-remedial provisions are subject to the basic prohibition against retroactivity stated in the savings clause.

XIV. A.

The majority maintains that a "default presumption against retroactive application remains alive and well both in our jurisprudence and in the foreign jurisdictions that the dissent cites." Majority opinion at 94, 165 P.3d at 995. But except for Von Geldern, the cases cited by the majority for this proposition do not involve ameliorative statutes.

The majority also cites to cases purportedly exhibiting a "general trend among the states nationally . . . not to apply the amendments retroactively, even when they are ameliorative." Majority opinion at 95-96, 165 P.3d at 996-97 (emphasis in original). However, all of the cases cited by the majority are distinguishable on various grounds. In some of the cases cited by the majority, the savings clause specifically provided for a pro spective application only. Other cases cited held that the retroactive application must be expressed as opposed to case law in our jurisdiction. Yet other cases did not afford retroactive effect because of specific statutes or constitutional provisions. Indeed, in one case cited by the majority, the statute was not deemed "ameliorative" at all.

B.

On the other hand, the majority disregards the fact that " under the doctrine of amelioration, a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime." Cotton v. Ellsworth, 788 N.E.2d 867 (Ind.App. 2003) (citing DeSantis v. State, 760 N.E.2d 641, 645 (Ind.Ct.App. 2001)) (emphasis added) (other citation omitted). See People v. Estela, 800 N.Y.S.2d 352, 2005 WL 517452 *2-3 (N.Y. 2005) (finding that the amelioration doctrine did not bar application where the act stated that it "shall apply to crimes committed on or after the effective date thereof[,]" because the amendments "covered a wide range of issues including sentencing, the definition of certain crimes, and other related matters" and it could not interpret the clause "so narrowly when it is considering only the issue of the reduction in applicable sentences" inasmuch as it "would be illogical to find that the legislative intent was that this defendant should serve a longer period of time than someone who committed exactly the same crime a month or a day later"); People v. Behlog, 544 N.Y.S.2d 804, 543 N.E.2d at 71 ("The general rule is that non-procedural statutes are not to be applied retroactively absent a plainly manifested legislative intent"; "[ t]here is an exception, however, when the Legislature passes an ameliorative amendment that reduces the punishment for a particular crime." (Other citations and internal quotation marks omitted.) (Emphasis added.)).

XV.

The majority relies on Holiday for the proposition that defendants should be punished according to the statute in existence at the time of the offense. Majority opinion at 93, 165 P.3d at 994. But Holiday is generally supportive of the position herein, for Holiday affirms the view that state courts "favor retroactive application of ameliorative sentencing legislation despite a general savings statute." Id. As noted before, the generic savings language in Section 29 is reflective of the "general savings" provisions in HRS §§ 1-3 and 1-11.

As recognized by Holiday, state courts have determined that ameliorative sentencing provisions should apply retroactively where the legislature expressly intends to give sentencing discretion to the trial court, as the Hawai'i legislature has in this case. In People v. Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990), the Michigan supreme court determined that an ameliorative sentencing provision would apply to the defendant even though he had been tried, convicted, and sentenced prior to the effective date of the provision. Schultz construed the general savings clause at issue to allow application of the new sentencing legislation which "authorized the trial court to depart from" mandatory minimum sentencing because it was "the clear intent of the [l]egislature . . . to vest discretion in the trial courts to determine whether a departure from the mandatory minimum terms . . . is warranted." Id. at 508, 512. See also State v. Cummings, 386 N.W.2d 468, 472 (N.D. 1986) (determining that the ameliorative sentencing statute at issue would apply retroactively because "the former penalty was too harsh and that the [new] and lighter punishment was . . . appropriate").

Assuming, arguendo, the legislature's intent to give retroactive application to Act 44 is implied, courts have inferred legislative intent to retroactively apply remedial statutes. In People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197 (1956), a similar savings clause was involved. Oliver determined that "[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law" and " it is safe to assume . . . that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts." Id. at 202 (emphasis added). Holiday noted that Oliver discerned this intent "from objective scrutiny of the purposes underlying sentencing statutes" and concluded that "once the legislature had seen the folly of harsher penalties than those newly enacted, any further enforcement of the repealed penalties could serve no legitimate purpose-only Vengeance or retribution.'" Holiday, 683 A.2d at 67-68 (quoting Oliver, 151 N.Y.S.2d 367, 134 N.E.2d at 203). Therefore, Oliver concluded that "the legislature must have intended the new law to apply immediately, at least in all cases where sentences had not yet been pronounced and finally adjudicated." Id. at 68 (citing Oliver, 151 N.Y.S.2d 367, 134 N.E.2d at 202) (emphasis added).

Similarly, in the instant case, whether viewed as "express or implied[,]" Koch, 107 Hawai'i at 222, 112 P.3d at 76, the legislature's intent to apply Act 44 retroactively is manifest because, as in Schultz, it "vest[ed] discretion in the trial courts to determine whether a departure from mandatory minimum terms . . . [was] warranted[,]" 460 N.W.2d at 512, because the legislature has determined the "former penalty" may be too harsh for some and the new "lighter punishment was . . . appropriate," Cummings, 386 N.W.2d at 472; and because the sentence had not yet been pronounced and finally adjudicated, Holiday, 683 A.2d at 68. As such, the court's action does not offend legislative intent.

XVI.

The majority maintains that all of the foreign cases "merely comport with our conclusion, appearing in Von Geldern and Koch, that the existence of a general savings clause does not prevent ameliorative amendments from being applied retroactively[.]" Majority opinion at 90-91, 165 P.3d at 991-92 (citing Koch, 107 Hawaii at 222, 112 P.3d at 76; Von Geldern, 64 Haw. at 213-14, 638 P.2d at 322 (emphasis omitted) (other citations omitted)). This is plainly not a conclusion supported by Koch or Von Geldern which, as noted above, do not distinguish between a general and a specific savings clauses, as the majority does.

Instead, as noted before, the generic savings clause in Act 44 — the same one included in all of the criminal acts in the 2004 legislative session, was plainly intended to prevent ex post facto violations — not to prevent the sentencing courts from exercising discretion the legislature deemed necessary to interdict an ice epidemic. That in Act 44 the legislature intended merely to clarify what it had already attempted to do via Act 161 is further evidence that it did not expect the amendment to preclude first-time offenders from receiving the treatment deemed necessary.

Finally, assuming arguendo the relevance of the majority's distinction between specific and general savings, the inclusion of the same savings clause within an act does not, in and of itself bar an ameliorative provision from applying retroactively. As demonstrated by Avilla, an ameliorative amendment may be implemented retroactively despite the inclusion of the same "specific" savings clause the majority relies on and despite the fact that the postulated "unitary" criminal prosecution had been initiated before passage of the amendment.

XVII.

Contrary to the majority's position, this dissent's interpretation will not produce "unjust[,]" "inconsistent[,]" or "arbitrary" "outcomes among defendants, which would vary as a function of the vagaries of the scheduling process." Majority opinion at 93, 165 P.3d at 994. There is nothing "unfair" or "arbitrary" about applying Section 11 in this case, as there was nothing unfair or arbitrary about applying ameliorative provisions in Avilla and Von Geldern, or in the numerous state decisions cited supra, where the subject proceedings took place after the effective date of the statute. The legislative intent was to provide more discretion to the sentencing courts in order to extend drug treatment to a broader group of defendants. See Act 44, pt II, § 9 at 212-13. Under Act 44, these considerations were well within the discretion of the courts to implement insofar as they related to scheduling of sentencing hearings.

The majority insists that the danger of "inconsistent" results is evidenced by Tapp. Majority opinion at 93, 165 P.3d at 994. Initially, it should be noted that the situation addressed in Tapp is not the case before this court since Reis's sentencing took place after the effective date of the amendment. However, in response to the majority, it may be observed that Tapp concerned two cases in which two defendants were convicted of committing the same crime. One defendant was sentenced prior to the effective date of an ameliorative statute, while the other was sentenced after the effective date. The defendant sentenced after the effective date then reaped the "benefit" of the ameliorative amendment while one sentenced before did not because "the judge followed the law in force and effect at that time." Tapp, 490 P.2d at 335 (concluding that "[a]s to those defendants who were sentenced prior to the amendment, the statute gives no aid" (citation omitted)).

Tapp offered several rationales as supportive of remedial legislation for its decision, recognizing, e.g., that where the legislature has expressed an intent to give a lesser penalty, "the courts should give effect to the enactment . . . [on] the effective date[,]" "to insist on the prior existing harsher penalty is a refusal to accept . . . the [shift in] emphasis from vengeance and punishment to treatment and rehabilitation" and "in case of doubt or uncertainty as to the degree of crime, [the defendant] is entitled to the lesser [penalty.]" Id.

Nevertheless, the majority asserts additional Utah case law purportedly supports its charge of inconsistency. For example, the Utah Court of Appeals, relying on the same reasons discussed in Tapp, concluded that a "`defendant's actions that delay sentencing are irrelevant' to receiving the benefits of the amended sanctions[,]" majority opinion at 94, 165 P.3d at 995 (citing State v. Patience, 944 P.2d 381, 385 (Utah Ct.App. 1997) (citation omitted)), because it was necessary to apply the "statute in effect at the time of . . . sentencing[,]" Patience, 944 P.2d at 392. The Utah approach is consistent with the general view interpreting savings clauses liberally in the case of ameliorative sentencing statutes, but employing various rationales.

In any event, no inconsistency would result in our jurisdiction because this court has allowed retroactive application of ameliorative sentencing even after prior sentencing has already occurred and while a case is on appeal. See Von Geldern, 64 Haw. at 215, 638 P.2d at 323 (stating that "[w]hen Act 284 became effective, the judgment and sentence of the trial court in the defendant's case was not final since his appeal was still pending" (citation omitted)). As related before, some courts, such as our own, have eschewed a literal interpretation of a savings clause to avoid what the majority characterizes as an "inconsistent" result and have allowed retro-active application of ameliorative amendments, even throughout the appeals process.

XVIII.

The majority claims its "construction of `proceedings' and `incurred' ensures the consistent application of justice and avoids potential constitutional infirmity." Majority opinion at 93, 165 P.3d at 994. To the contrary, (including the reasons discussed supra), it would be arbitrary and unjust not to apply the ameliorative provisions in this case. As Oliver stated, it would serve "no legitimate purpose[.]" 151 N.Y.S.2d 367, 134 N.E.2d at 203. Further, the California Supreme Court pointed out in Estrada, 48 Cal.Rptr. 172, 408 P.2d at 951, that where the legislature amends a statute to reduce the penalty, the "lighter penalty now deemed to be sufficient should apply[.]"

When the [l]egislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the [l]egislature must have intended that the new statute imposing the new lighter penalty now deemed, to be sufficient should apply to every case to which it constitutionally could, apply. . . . [T]o hold otherwise would, be to conclude that the [l]egislature was motivated, by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.

Id. (emphases added). See also State v. Macarelli, 118 R.I. 693, 375 A.2d 944, 947 (1977) (adopting Oliver's "sound judicial philosophy" because any other interpretation " would amount to nothing more than arbitrary retribution in contravention, of the obvious legislative purpose behind the mitigation of the penalty" (emphasis added)).

XIX.

Similarly here, as the court insightfully opined, "the intent of the legislature [in Act 44] . . . is clear, and that's to give the [c]ourt more discretion in sentencing"; and any other interpretation would amount to "arbitrary retribution" in contradiction to "the obvious legislative purpose[,]" Macarelli, 375 A.2d at 947, of Sections 9 and 11 of Act 44 to "provide the court with discretion in sentencing" to "diver[t offenders] to drug treatment instead of prison" and to find a "solution to cure the ice epidemic." Act 44, pt II, § 9 at 212-13. Where the legislature has created a lesser penalty it is "an inevitable inference that the [l]egislature must have intended" that it apply "to all cases . . . it constitutionally could apply to." Estrada, 48 Cal.Rptr. 172, 408 P.2d at 951.

In the instant case, there is no constitutional obstacle to extending the ameliorative provisions to Reis. To interpret the statute in any other way is to "conclude that the [l]egislature was motivated by a desire for vengeance[,]" id., despite its expressed concern of "treat[ing] the present generation of ice abusers and preventing] future generations from becoming substance abusers," Act 44, § 1 at 204. This is especially true in the case of Reis who appears to be the type of candidate the legislature envisioned would benefit from Act 44. As the court noted, "[s]eparate and apart from the legal issues" it felt "compelled to express [its] disappointment in the State using its prosecutorial discretion" because "this does not appear to be the appropriate case[.]"

The court indicated that "[Reis] has a long and tough road ahead of her" but she has gone to "Queen's," is currently "in a dual-diagnosis program . . . under the supervision [of] Diamond Head Mental Health Clinic" and, "that plus the term in jail she did, . . . is exactly what the legislature intended[.]" The court further opined that "under court supervision, people can prove that they are deserving" and "the [c]ourt wants to support [that] . . . I can't imagine either [Reis] or society being better off by me sentencing her as a repeat offender at this time and giving her five years in prison." Therefore, contrary to the majority's contention, precluding the application of remedial provisions to Reis attributes to the legislature an intent to impose "arbitrary retribution" for no legitimate reason within the scope of Act 44.

XX.

Lastly, the majority maintains that its opinion is consistent with Smith and Walker. Majority opinion at 98, 165 P.3d at 999. In enacting Act 44, the legislature was obviously attempting to reverse the effect of Smith. In Smith, this court held with respect to Act 161 (2002), the prior version of Act 44, "that the repeat offender sentencing laws took precedence over the mandatory requirement to sentence a first-time drug offender to probation." Walker, 106 Hawai'i at 4, 100 P.3d at 598 (emphasis added) (citing Smith, supra). This court recognized that "in response to [ Smith], the legislature amended HRS § 706-622.5" by way of Act 44. Id. Walker was not concerned with the ameliorative application of Act 44. Hence, any reference to the retroactive application of Act 44 in Walker must be considered dicta inasmuch as this court said in that case that "our decision in Smith is entirely dispositive of the present matter." Id. at 9, 100 P.3d at 603 (citing Smith, supra) (emphasis added). Walker is further distinguishable from the instant case, as the court noted, because in Walker, "the arrest, the plea, the conviction, sentencing, all took place before Act 44's effective date[.]" Majority opinion at 83, 165 P.3d at 984. Thus, definitively, the entire case proceeding in Walker was completed prior to the effective date of Act 44, whereas, here, Reis was not sentenced until after Act 44 became effective. Accordingly, neither case dictates the result here.

XXI.

It cannot be plainer then, that this savings clause is not a bar to application of a remedial sentencing provision. The legislature has expressed its intent that persons with prior convictions are not (nor, apparently, were ever intended to be) precluded from the remedial recourse of a probationary sentence for the purpose of drug rehabilitation. Accordingly, I would affirm the court's sentence.