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State v. Rauch12/6/2000
that the circuit court failed to consider the HRS § 706-606 factors in imposing a sentence of probation for ten years. Rather her claim is that the HRS § 706-606 factors must be considered in the specific context of imposing conditions of probation; Gaylord, consequently, is inapposite.
In Gaylord, this court observed that the HRS § 706-606 factors must be considered in the context of the sentencing court's decision to impose consecutive or concurrent sentences, inasmuch as HRS § 706-668.5, vesting the sentencing court with discretion to impose consecutive or concurrent sentences, expressly provides that the sentencing court "shall consider the factors set forth in [HRS §] 706-606." By way of contrast, in imposing a sentence of probation, the applicable statute expressly provides that the sentencing court "shall consider . . . he factors set forth in [HRS §] 706-606 to the extent that they are applicable." Accordingly, we find no merit in Rauch's claim that the circuit court was required to consider all of the HRS § 706-606 factors in determining whether to impose a term of probation and the conditions thereof.
Rauch next appears to argue that because the record allegedly fails to support findings under HRS §§ 706-606(2)(c) and 706-606(2)(d), the circuit court was precluded from imposing a sentence of incarceration. This argument is also without merit, inasmuch as the foregoing statutory provisions require the sentencing court to weigh and balance the various factors and in no manner indicate that any given factor is dispositive of whether a term of imprisonment may be imposed as a condition of probation. Thus, even if neither factor had evidentiary support, the circuit court would not, under the statutory sentencing scheme outlined above, be required to forego imposing a term of imprisonment as a condition of probation.
IV. CONCLUSION
In light of the foregoing, we affirm the circuit court's judgment of conviction and sentence.
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