State v. Choy Foo. , 414 P.3d 117 ( 2018 )

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Electronically Filed
Supreme Court
SCWC-13-0000636
16-MAR-2018
08:30 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellant,
vs.
QUINCY L.F. CHOY FOO, III, Petitioner/Defendant-Appellee.
_____________________________________________________________
SCWC-13-0000636
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000636; CR. NO. 12-1-0000829)
MARCH 16, 2018
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal stems from the Circuit Court of the First
Circuit’s (“circuit court”)1 grant of Quincy L.F. Choy Foo, III’s
(“Choy Foo”) Motion to Dismiss Charges for Violation of Hawaii
Rules of Penal Procedure (“HRPP”) Rule 48 (2000) (“motion to
1
The Honorable Patrick W. Border presided.
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dismiss”). On April 5, 2013, the circuit court granted Choy
Foo’s motion to dismiss the charge with prejudice.2
Choy Foo seeks review of the Intermediate Court of Appeals’
(“ICA”) December 29, 2016, opinion, which vacated the dismissal
order and remanded the case. The ICA held that a twenty-one day
period between Choy Foo’s arraignment and a hearing on his
waiver or demand of jury trial (“waiver/demand hearing”) was
excludable from HRPP Rule 48 calculations under subsections
(c)(1) and (c)(8). The ICA concluded that Choy Foo’s HRPP Rule
48 rights had therefore not been violated. Although not
necessary to its holding because it held that Rule 48 had not
been violated and the case should not have been dismissed, the
ICA also stated the circuit court erred in failing to consider
and articulate its analysis of the factors identified in State
v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), in dismissing
the case with prejudice.
For the reasons below, we hold the twenty-one day period
between Choy Foo’s arraignment and the first setting of the
waiver/demand hearing was not excludable pursuant to HRPP Rule
48(c)(1) or (c)(8). The circuit court therefore correctly ruled
2
A dismissal with prejudice prohibits the State from re-filing the
charges and re-starting prosecution of the case. See Dismissal with
prejudice Black’s Law Dictionary (10th ed. 2014) (“A dismissal . . . barring
the plaintiff from prosecuting any later lawsuit on the same claim.”)
2
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the case must be dismissed because Choy Foo’s HRPP Rule 48
rights had been violated. We agree with the ICA, however, that
upon remand, the circuit court must properly apply the Estencion
factors to determine whether the case should be dismissed with
or without prejudice.
II. Background
A. District Court Proceedings
On February 22, 2012, the State filed a complaint alleging
Choy Foo committed the offense of Sexual Assault in the Fourth
Degree, in violation of Section 707-733(1)(a) (2014) of the
Hawaii Revised Statutes (“HRS”). At his appearance on March 15,
2012, the State gave Choy Foo, who was without counsel at the
time, a copy of the complaint. The complete transcript of the
March 15, 2012 proceeding reads:
[THE STATE:] APA 003, Quincy Choy Foo III. Can you come
forward, please. Can you state your name.
[CHOY FOO:] Quincy Choy Foo III.
[THE STATE:] And for the record, I’m handing Mr. Choy Foo
III a copy of the (indiscernible) complaint.
(Indiscernible).
THE COURT: So you understand what you’re charged with,
this is a full misdemeanor. Up to a $2,000 fine, one year
in jail, or both is the maximum penalties.
[CHOY FOO:] Yeah.
THE COURT: So, we need to set this for demand or waiver of
your right to a jury trial. So, we’re going to set it for
three weeks. I’m going to give you a referral to public
defend –- defenders, excuse me, and you need to call them
right away for an appointment. Okay? And the bond to
continue. Thank you very much.
[CHOY FOO:] Thank you.
THE COURT: You have a seat. We’ll get your paperwork.
(Proceedings concluded.)
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The district court set the waiver/demand hearing for April 5,
2012.
On April 5, 2012, Choy Foo appeared without counsel,
explaining that he called the Office of the Public Defender
(“OPD”) and that he was told to request a continuance. Choy Foo
further explained that he had an appointment with the OPD on May
8, 2012. The court re-set the jury waiver/demand hearing for a
week after that appointment.
On May 15, 2012, Choy Foo appeared at the waiver/demand
hearing, again without counsel. Choy Foo explained the OPD had
told him to request another continuance because the office was
in training and he had an appointment scheduled for May 22,
2012. The district court continued the hearing to May 30, 2012.
The waiver/demand hearing was finally held on May 30, 2012,
and Choy Foo, who was represented by a deputy public defender
(“DPD”) at this time, demanded his right to a jury trial. The
district court set the arraignment for June 12, 2012, in the
circuit court.
B. Circuit Court Proceedings
Choy Foo was arraigned in the circuit court on June 12,
2012, and entered a not guilty plea. Trial was set for the week
of July 23, 2012. The case was continued twice at Choy Foo’s
request and three times due to court congestion. During a trial
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readiness hearing on January 14, 2013, the deputy prosecuting
attorney (“the State”) notified the court the HRPP Rule 48
deadline for the case would be March 3, 2013. The circuit court
set the case for trial on February 11, 2013, but on that day
continued the case due to court congestion.
On March 11, 2013, Choy Foo filed his motion to dismiss.
Choy Foo contended that a total of 189 includable days had
passed since the inception of the case, and that this clearly
exceeded the six-month, or 180 day, period within which trial
must commence under HRPP Rule 48.3 As such, Choy Foo requested
that the circuit court dismiss his case with prejudice.
The State filed a memorandum in opposition to Choy Foo’s
motion to dismiss on March 12, 2013. The State argued that the
time from Choy Foo’s arraignment on March 15, 2012, until the
first waiver/demand hearing on April 5, 2012 should be excluded
from the 180 day period for “good cause” pursuant to HRPP Rule
3
HRPP Rule 48(b)(1) provides, in relevant part:
(b) By court. Except in the case of traffic offenses that
are not punishable by imprisonment, the court shall, on
motion of the defendant, dismiss the charge, with or
without prejudice in its discretion, if trial is not
commenced within 6 months:
(1) from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner, on any offense
based on the same conduct or arising from the same criminal
episode for which the arrest or charge was made[.]
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48(c)(8).4 The State contended that, therefore, the Rule 48
deadline was not until March 24, 2013.
On March 25, 2013, the circuit court held a hearing on the
motion to dismiss. At the outset, the circuit court clarified,
and the parties confirmed, that the only time frame in dispute
was the twenty-one day period from March 15, 2012, until April
5, 2012. The DPD provided the circuit court with background
information regarding the district court’s HRPP Rule 48
practice, specifically regarding the routine three-week
continuance for waiver/demand hearings:
[DPD:] [A misdemeanor case] is the only type of case in the
first circuit where a defendant has a right to a jury trial
where . . . the defendant has to demand that right before
he’s entitled to the jury trial.
THE COURT: Yeah. In other words, in every other kind of
situation, the defendant’s court is chosen for him.
[DPD:] Yes, Your Honor.
THE COURT: Right.
[DPD:] And the way the process works in district court is
there’s an initial appearance. At the time the defendant
is released on bail, he’s given this initial appearance.
At that time, he’s not given any charges. He’s not being
told what he’s charged with. He’s not told that he should
get an attorney.
If an –- if a defendant wishes to hire private
counsel prior to that, they can do that. But, at the same
time, he hasn’t been advised of the counsel, so –- his
right to counsel or what he’s actually been charged with.
As a matter of course in district court, even if a
defendant appears with an attorney at the initial
appearance, the case is continued for waiver or demand
regardless of what the defendant wants to do.
4
HRPP Rule 48(c)(8) provides, in relevant part:
(c) Excluded periods. The following periods shall be
excluded in computing the time for trial commencement:
. . . .
(8) other periods of delay for good cause.
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In this case –- anytime there’s a –- anytime the
total period exceeds 180 days, it becomes the state’s
burden to prove that a period is excludable. You know,
generally, in district court, this period is charged to the
state for Rule 48 purposes. That’s the general practice in
district court amongst all the district court judges.
(Emphases added). The DPD reiterated that setting the
waiver/demand hearing for three weeks after arraignment is the
standard practice of the district court:
THE COURT: And that’s standard procedure. And what you’re
saying is that’s the standard of what’s done in the
district court?
[DPD:] Yes, Your Honor. And that’s done by court. Mr.
Choy Foo doesn’t come in and ask for a continuance. He
doesn’t say, you know, I want counsel before I make this
decision. At that time, generally, if you’re not
represented as a defendant, discovery is not provided to
you by the state. So, there’s a whole procedure that’s set
up that’s basically done for the convenience of the
district court, because more people in district court waive
jury trial than demand. This is the system they’ve set up.
Other –- easily, the system could be that your case
goes to circuit court, and if you choose to waive, then it
goes back to district court. So, essentially, in –- if
that period is charged to the defendant, you’re forcing the
defendant to choose between his right to speedy trial and
his right to jury trial. You’re forcing him to waive one
or the other. And there’s an equal protection argument,
because if a defendant is able to secure private counsel
prior to the initial appearance and that makes some sort of
difference, it’s still going to get set for three weeks for
waiver/demand.
The DPD also confirmed that when the district court performs
HRPP Rule 48 calculations, it does not exclude the continued
time period for waiver/demand hearings. The State conceded that
with respect to the time between arraignment and waiver demand
“it is the practice of district court to charge that time to the
state.” However, the State argued that based on this court’s
opinions in State v. Senteno, 69 Haw. 363, 742 P.2d 369 (1987),
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and State v. Samonte, 83 Hawaii 507, 928 P.2d 1 (1996), the
district court’s practice was incorrect.
After the parties finished their arguments, the circuit
court orally dismissed the case with prejudice and offered the
following explanation:
[HRPP Rule 48] appears to be technical. It assigns certain
delays to parties regardless of whether there actually was
a delay. And I’m going to follow the district court
practice and find that the period of time before this jury
waiver is not excludable and that it counts so that the
period between March 15th and April 5th does count against
the state, and that 189 days have run, and, therefore, that
the –- the Rule 48 has been violated by nine days, and
therefore, that the matter is dismissed with prejudice. I
do so despite the fact that the nature of the charge is one
of the more troubling ones, to say the least, in our
culture.
On April 5, 2013, the circuit court entered a written order
granting Choy Foo’s motion to dismiss the charges with prejudice
for violation of HRPP Rule 48, but it did not state its reasons
for doing so.
C. Appeal to the ICA
1. The State’s Opening Brief
The State raised two points of error in its opening brief
before the ICA. First, the State contended that because the
three-week delay was for Choy Foo’s benefit, and was not
“unreasonably long,” the circuit court erred in failing to
exclude that period from the HRPP Rule 48 calculations. Quoting
State v. Canencia, No. 29345, 2009 WL 3151221 (App. Sept. 30,
2009) (mem.), an unpublished ICA memorandum opinion, the State
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asserted that “[i]t is well established that a period of time in
which the defendant is not represented by counsel is an
excludable period.” Second, the State argued that the circuit
court abused its discretion in failing to articulate and weigh
the factors from Estencion when dismissing this case with
prejudice.5
2. Choy Foo’s Answering Brief
In his answering brief, Choy Foo contended the State
incorrectly relied on Canencia. The ICA should not consider
Canencia persuasive or applicable, Choy Foo asserted, because
the case was unpublished and did not address the unique
procedural issues in Choy Foo’s case. Specifically, Choy Foo
argued the cases cited in Canencia, namely, Samonte and Senteno,
were distinguishable from Choy Foo’s case in two ways.
First, Choy Foo asserted that the defendants in Samonte and
Senteno faced felony charges brought in the circuit court, and
5
In Estencion, this court adopted the following language of the Federal
Speedy Trial Act, making it a requirement for the application of HRPP Rule
48(b):
In determining whether to dismiss the case with or without
prejudice, the court shall consider, among others, each of
the following factors: the seriousness of the offense; the
facts and the circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.
63 Haw. at 269, 625 P.2d at 1044 (citing § 3162(a)(1) of the Federal Speedy
Trial Act, 18 U.S.C.A. (1969), Supp.1980)).
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therefore they were not subject to the automatic three-week
continuance Choy Foo faced in the district court for his
misdemeanor charge. Second, Choy Foo argued the time periods in
question in Samonte and Senteno were excludable because the
court granted the defendants’ motions for withdrawal of counsel.
Choy Foo noted that he did not request that a previous attorney
withdraw from the case; instead, he made his initial appearance
without any representation, and the district court set a
waiver/demand hearing without a motion by either party. In sum,
Choy Foo argued no binding legal authority addressed the
specific circumstances of his case.
As to the State’s second point of error, Choy Foo conceded
the circuit court should have analyzed and applied the Estencion
factors when it dismissed his case with prejudice. Choy Foo
therefore requested that the ICA vacate the dismissal with
prejudice and remand the case to allow the circuit court to
weigh the Estencion factors to properly determine whether the
case should be dismissed with or without prejudice.
3. The ICA Opinion
As an initial matter, the ICA agreed with Choy Foo’s
concession on the State’s second point of error, concluding that
“at a minimum[] the Dismissal Order must be vacated and the case
remanded for consideration of the Estencion factors and
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articulation of necessary findings.” State v. Choy Foo, 139
Hawaii 339, 342, 389 P.3d 934, 937 (App. 2016), as amended (Feb.
14, 2017) (citing State v. Hern, 133 Hawaii 59, 64-65, 323 P.3d
1241, 1246-47 (App. 2013)).
The ICA characterized the first point of error as:
“[W]hether the twenty-one day delay between March 15, 2012, and
April 5, 2012, during which Choy Foo was referred to the Public
Defender’s Office to seek appointed counsel, constituted
excludable delay under HRPP Rule 48.” Choy Foo, 139 Hawaii at
342, 389 P.3d at 937. Viewing that issue in the context of “the
fundamental importance of the right to counsel,” the ICA held
that the period was excludable and that the circuit court erred
in granting Choy Foo’s motion to dismiss. 139 Hawaii at 343,
389 P.3d at 938.
The ICA concluded that the twenty-one day period in
question fell within HRPP Rule 48(c)(1).6 It opined the purpose
of the waiver/demand continuance was to ensure Choy Foo was
represented by counsel, which was the same purpose as delays for
6
HRPP Rule 48(c)(1) provides:
(c) Excluded periods. The following periods shall be
excluded in computing the time for trial commencement:
(1) periods that delay the commencement of trial and are
caused by collateral or other proceedings concerning the
defendant, including but not limited to penal
irresponsibility examinations and periods during which the
defendant is incompetent to stand trial, pretrial motions,
interlocutory appeals and trials of other charges[.]
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withdrawal of counsel and appointment of new counsel, delays for
which are excludable under HRPP Rule 48(d)(1). 139 Hawaii at
344, 389 P.3d at 939. In support of its position, the ICA cited
this court’s opinion in Senteno and its own unpublished
memorandum opinion, Canencia. 139 Hawaii at 345, 389 P.3d at
940. Opining the facts of Canencia were similar to those of the
case at hand, the ICA quoted its reasoning in Canencia:
It is well established that a period of time in which the
defendant is not represented by counsel is an excludable
period. See [Samonte, 83 Hawaii at 515-16, 928 P.2d at 9-
10]; [Senteno, 69 Haw. at 368, 742 P.2d at 373]; HRPP Rule
48(d)(1). Canencia was without counsel at his first
appearance on September 28, 2007. The district court could
not proceed to taking Canencia’s plea and if Canencia
pleaded not guilty, to setting a trial date, while Canencia
was not represented by counsel and had not waived his right
to counsel. Consequently, the district court had no choice
but to defer the case for the appointment of counsel, which
began with the referral of Canencia to the Public Defender.
Canencia did not object to the delay of proceedings and
referral to the Public Defender.
Choy Foo, 139 Hawaii at 345, 389 P.3d at 940 (emphasis added)
(quoting Canencia, mem. op. at *2). The ICA reiterated that its
conclusion that the twenty-one day period was excludable was
supported by “the recognition of a defendant’s fundamental right
to be represented by counsel and the inability of a court to
proceed to trial” found in Senteno and Canencia. Id.
The ICA decided, alternatively, that the waiver/demand
continuance was excludable under HRPP Rule 48(c)(8) as a
“period[] of delay for good cause.” Id. Noting that this court
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has said “the good cause provision ‘is provided to take care of
unanticipated circumstances’ and that good cause means ‘a
substantial reason that affords legal excuse,’” the ICA
analogized Choy Foo’s case to this court’s decision in Senteno.
Choy Foo, 139 Hawaii at 345-46, 389 P.3d at 940-41 (citing State
v. Abregano, 136 Hawaii 489, 497, 363 P.3d 838, 846 (2015)).
Although Choy Foo had never been represented by counsel and thus
his delay involved initial appointment of counsel, the ICA
reasoned that this situation was still like the delay caused by
withdrawal of counsel in Senteno, because “trial in both cases
‘could not proceed in the absence of trial counsel or a waiver
of counsel.’” Choy Foo, 139 Hawaii at 346, 389 P.3d at 941
(citing Senteno, 69 Haw. at 368, 742 P.2d at 369)).
Finally, the ICA was unpersuaded by Choy Foo’s argument
that the twenty-one day delay was a common occurrence in the
district court, and was therefore not an “unanticipated”
circumstance. Choy Foo, 139 Hawaii at 346, 389 P.3d at 941.
The ICA determined that because the district court cannot know
in advance which defendants will appear without counsel at their
initial appearance, the district court cannot “address the
defendant’s need for representation by counsel until the
defendant appears in court.” Id. Thus, the ICA held that “Choy
Foo’s appearance without counsel was an unanticipated
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circumstance and that the twenty-one day delay to afford him the
opportunity to seek counsel through the Public Defender’s Office
was a period of delay for ‘good cause’ under HRPP Rule
48(c)(8).” Id.
D. Application for writ of certiorari and oral argument
Choy Foo timely applied for writ of certiorari, raising a
single point of error:
Whether the ICA gravely erred in holding that the twenty-
one day period between Petitioner’s arraignment in District
Court and the next hearing set sua sponte by the District
Court to determine whether Petitioner would demand or waive
his right to a jury trial was excludable under Hawaii Rules
of Penal Procedure (HRPP) Rule 48(c)(1) and/or HRPP Rule
48(c)(8).
With respect to exclusion under HRPP 48(c)(1), Choy Foo
makes two distinct arguments: (1) the waiver/demand hearing was
not a proceeding concerning the defendant that delayed trial;
and (2) the ICA erred in inferring that the purpose of the
twenty-one day period was to provide Choy Foo with an
opportunity to seek counsel, and reliance on that inferred
purpose resulted in an erroneous decision. With respect to
exclusion under HRPP Rule 48(c)(8), Choy Foo argues that: (1)
the ICA erred in relying on inapplicable law to reach its
decision; and (2) that Choy Foo’s appearance without counsel at
arraignment was not an “unanticipated circumstance” that
amounted to “good cause” within the meaning of HRPP Rule
48(c)(8).
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At oral argument, Choy Foo again stated that the
waiver/demand hearing is routinely set three weeks after
arraignment by the district court, even for defendants who are
already represented by counsel, and that the delay is routinely
included in HRPP Rule 48 calculation. State v. Choy Foo, SCWC-
13-000636, Oral Argument, available at
http://www.courts.state.hi.us/oral-argument-before-the-supreme-
court-of-hawaii-no-scwc-13-0000636, at 5:05, 7:15, 7:25
(hereinafter “Oral Argument”). Both parties again acknowledged
that the circuit court erred in dismissing the case with
prejudice without considering and explaining its application of
the Estencion factors. Id. at 15:45, 35:45.
III. Standards of Review
A. HRPP Rule 48 Dismissal
The appellate court reviews a trial court’s decision on a
HRPP Rule 48 motion to dismiss under both the “clearly
erroneous” and “right/wrong” tests:
A trial court’s findings of fact (FOFs) in deciding an HRPP
48(b) motion to dismiss are subject to the clearly
erroneous standard of review. An FOF is clearly erroneous
when, despite evidence to support the finding, the
appellate court is left with the definite and firm
conviction that a mistake has been committed. However,
whether those facts fall within HRPP 48(b)’s exclusionary
provisions is a question of law, the determination of which
is freely reviewable pursuant to the “right/wrong” test.
Samonte, 83 Hawaii at 514, 928 P.2d at 8 (quoting State v.
Hutch, 75 Haw. 307, 328-29, 861 P.2d 11, 22 (1993)).
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B. Interpretation of Court Rules
The interpretation of a court rule is reviewed de novo,
Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 197, 202 P.3d
1226, 1242 (2009), and “[w]hen interpreting rules promulgated by
the court, principles of statutory construction apply.” Gap v.
Puna Geothermal Venture, 106 Hawaii 325, 331, 104 P.3d 912, 918
(2004) (citation and internal quotation marks omitted). This
court’s construction of statutes is guided by the following
rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation 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. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
State v. Wheeler, 121 Hawaii 383, 390, 219 P.3d 1170, 1177
(2009) (quoting Citizens Against Reckless Dev. v. Zoning Bd. of
Appeals of the City & Cnty. of Honolulu, 114 Hawaii 184, 193,
159 P.3d 143, 152 (2007)).
IV. Discussion
“HRPP [Rule] 48 is intended not only ‘to ensure speedy
trial for criminal defendants,’ . . . but also ‘to relieve
congestion in the trial court, to promptly process all cases
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reaching the courts[,] and to advance the efficiency of the
criminal justice process.’” State v. Hoey, 77 Hawaii 17, 29,
881 P.2d 504, 516 (1994) (citing State v. Coyaso, 73 Haw. 352,
355, 833 P.2d 66, 68 (1992); Estencion, 63 Haw. at 268, 625 P.2d
at 1043). To accomplish this end, HRPP Rule 48(b) requires the
court to dismiss the charge, upon the defendant’s motion, “if
trial is not commenced within 6 months” of a relevant triggering
date.7 Section (c) of HRPP Rule 48 provides eight categories of
delay that are to be excluded from calculating the time within
which trial must commence.8 In other words, all time periods are
counted in HRPP Rule 48 calculation unless excluded by
subsection (c).
At issue here is HRPP Rule 48(c)(1), which excludes
“periods that delay the commencement of trial and are caused by
collateral or other proceedings concerning the defendant[.]”
When applying HRPP Rule 48(c)(1), the trial court’s two
7
Specifically, HRPP Rule 48(b) begins its six month calculation as
follows:
(1) from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner . . . or
(2) from the date of re-arrest or re-filing of the charge,
in cases where an initial charge was dismissed upon motion
of the defendant; or
(3) from the date of mistrial, order granting a new trial
or remand, in cases where such events require a new trial.
8
The text of HRPP Rule 48(c) states that it relates to “computing the
time for trial commencement.” However, in practice this language is more
accurately interpreted as “computing the time within which trial must
commence.”
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inquiries are: (1) whether the period actually delays the
commencement of trial;9 and (2) whether the period is “caused by
collateral or other proceedings concerning the defendant.” For
a period to be excluded from calculation, both of these
inquiries must be answered in the affirmative.
The record does not reflect whether the twenty-one day time
period at issue actually delayed the commencement of trial.10
The parties’ core dispute, and the focus of the ICA’s decision,
was instead whether the time period in question was caused by a
“collateral or other proceeding[] concerning the defendant”
within the meaning of HRPP Rule 48(c)(1), and whether the period
constituted “good cause” within the meaning of HRPP Rule
48(c)(8). For the following reasons, we conclude that it was
neither.
A. Exclusion was inappropriate under HRPP Rule 48(c)(1)
The court’s interpretation of HRPP Rule 48 must begin with
the plain language of the rule. See Wheeler, 121 Hawaii at 390,
219 P.3d at 1177. Although HRPP Rule 48(c)(1) does not define
9
This court has previously noted that “to be excludable under HRPP
[Rule] 48(c), a time period must actually delay a defendant’s trial.” Hoey,
77 Hawaii at 30, 881 P.2d at 517.
10
Choy Foo’s trial was actually set several times within the 180-day
period: it was initially set for the week of July 23, 2012, continued three
times due to court congestion and twice at Choy Foo’s request, and then
eventually set for February 11, 2013 before being continued once more due to
court congestion.
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“collateral or other proceeding[] concerning the defendant,” it
does provide a list of examples of excludable periods,
“including but not limited to penal irresponsibility
examinations and periods during which the defendant is
incompetent to stand trial, pretrial motions, interlocutory
appeals and trials of other charges.” Section (d) provides some
insight for the application of HRPP Rule 48(c)(1). Subsection
(d)(1) lists motions that are deemed to create “periods of delay
resulting from collateral or other proceedings concerning the
defendant” and must be excluded from calculation.11 Conversely,
subsection (d)(2) lists periods attributable to specific motions
12
or other court papers that must be included in calculation.
11
HRPP Rule 48(d)(1) provides:
For purposes of subsection (c)(1) of this rule, the period
of time, from the filing through the prompt disposition of
the following motions filed by a defendant, shall be deemed
to be periods of delay resulting from collateral or other
proceedings concerning the defendant: motions to dismiss,
to suppress, for voluntariness hearing heard before trial,
to sever counts or defendants, for disqualification of the
prosecutor, for withdrawal of counsel including the time
period for appointment of new counsel if so ordered, for
mental examination, to continue trial, for transfer to the
circuit court, for remand from the circuit court, for
change of venue, to secure the attendance of a witness by a
material witness order, and to secure the attendance of a
witness from without the state.
(Emphases added).
12
HRPP Rule 48(d)(2) provides:
For purposes of subsection (c)(1) of this rule, the period
of time, from the filing through the prompt disposition of
the following motions or court papers, shall be deemed not
(continued. . .)
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Subsection (d)(3) provides that motions that do not fall within
(d)(1) or (d)(2) should be evaluated by the criteria of section
(c).13
Continuances for the appointment of counsel or for
waiver/demand hearings are not identified as excludable periods
in HRPP Rule 48(c)(1) or (d)(1), and subsection (d)(2) does not
specifically include these periods. Additionally, neither
appointment of counsel nor waiver/demand hearings fall within
any of the other section (c) categories that subsection (d)(3)
directs the court to consider.14
(continued. . .)
to be excluded in computing the time for trial
commencement: notice of alibi, requests/motions for
discovery, and motions in limine, for voluntariness hearing
heard at trial, for bail reduction, for release pending
trial, for bill of particulars, to strike surplusage from
the charge, for return of property, for discovery
sanctions, for litigation expenses and for depositions.
(Emphases added).
13
HRPP Rule 48(d)(3) provides: “The criteria provided in section (c)
shall be applied to motions that are not listed in subsections (d)(1) and
(d)(2) in determining whether the associated periods of time may be excluded
in computing the time for trial commencement.” (emphasis added).
14
Section (c) also excludes time periods caused by the following:
(2) . . . congestion of the trial docket when the
congestion is attributable to exceptional circumstances;
(3) . . .a continuance granted at the request or with the
consent of the defendant or defendant’s counsel;
(4) . . . a continuance granted at the request of the
prosecutor [and]
. . . .
(5) the absence or unavailability of the defendant[.]
(continued. . .)
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Subsection (d)(1) excludes the time period to resolve
motions “for withdrawal of counsel including the time period for
appointment of new counsel if so ordered.” The ICA reasoned
that appointment of new counsel should be treated like motions
for withdrawal of counsel under subsection (d)(1), and therefore
be excludable under HRPP Rule 48(c)(1), as they both “ensure
that a defendant . . . is represented by and has the assistance
of counsel.” Choy Foo, 139 Hawai‘i at 344, 389 P.3d at 939.
However, withdrawal of existing counsel and initial appointment
of counsel are procedurally quite different. First, as
explicitly provided in HRPP Rule 48(d)(1), the exclusion for
withdrawal of counsel is based on the filing of a motion.
Second, subsection (d)(1) specifically excludes the time from
filing of the withdrawal motion to disposition of the motion,
which means the that the time from filing of the motion to
appointment of substitute counsel is excluded. In contrast, the
initial appointment of counsel is largely a ministerial act,
done with little court involvement, let alone the filing of a
motion. See HRS § 802-4 (1974) (permitting public defenders to
(continued. . .)
HRPP Rule 48(c)(2)-(5)(emphasis added). Subsection (c)(6) excludes “the
period between a dismissal of the charge by the prosecutor to the time of
arrest or filing of a new charge[,]” and subsection (c)(7) excludes “a
reasonable period of delay when the defendant is joined for trial with a
codefendant[.]” “[O]ther periods of delay for good cause” are excluded under
HRPP Rule 48(c)(8) but, for the reasons discussed below, exclusion based on
this category is also inappropriate here.
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make indigence determinations, subject to court review, unless
the court orders otherwise); HRS § 802-5 (2015) (providing for
the court to appoint counsel for indigent defendants).
Furthermore, the canon of construction expressio unius est
exclusio alterius holds that “to express or include one thing
implies the exclusion of the other, or of the alternative.”
Black’s Law Dictionary (10th ed. 2014). Indeed, “the contrast
between a specific subject matter which is expressed and one
which is not mentioned leads to an inference that the latter was
not intended to be included within the statute.” Int’l Sav. and
Loan Ass’n v. Wiig, 82 Hawaii 197, 201, 921 P.2d 117, 121
(1996). The fact that initial appointment of counsel was not
placed among the examples of “collateral or other proceedings”
in subsections (c)(1) or (d)(1) suggests that it was not
intended to be treated like the items on those lists.
Additionally, as noted, subsections (d)(1), (d)(2), and
(d)(3) all explicitly relate to time periods created by the
filing of motions. Specifically, HRPP Rule 48(d)(1) pertains to
time periods “from the filing through the prompt disposition of
. . . motions filed by a defendant,” subsection (d)(2) concerns
periods related to “motions or court papers,” and subsection
(d)(3) applies to “motions that are not listed in subsections
(d)(1) and (d)(2)[.]” All motions that are excluded by
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subsection (d)(1) and included by subsection (d)(2) require
disposition by the court. The automatic continuance for a
waiver/demand hearing is not initiated by a motion. The time
period at issue here was generated by the district court’s
choice to set a hearing. Whether that hearing was for
waiver/demand or for appointment of counsel, or both, the time
period it created does not fall within the plain language of
HRPP Rule 48(c)(1). This plain language conclusion is
undergirded by several additional considerations.
First, HRPP Rule 48 is clear: if a time period is not
excluded from calculation by the rule, it is included in the
calculation. Time periods for waiver/demand hearings or for
appointment of counsel are not excluded by the rule, therefore
those periods are included in calculating the time within which
trial must commence. Even if HRPP Rule 48 were ambiguous with
respect to its excludable time periods, the rule of lenity would
require us to construe it strictly, and in favor of the
defendant. See State v. Jing Hua Xiao, 123 Hawai‘i 251, 262, 231
P.3d 968, 979 (2010) (“[W]here a criminal statute is susceptible
of more than one construction, the narrower or stricter
construction should be adopted pursuant to the rule of lenity.”)
(citing State v. Bayly, 118 Hawai‘i 1, 15, 185 P.3d 186, 200
(2008)).
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Second, we note that the district court appears to apply
its waiver/demand hearing practice to all defendants, whether
they have counsel or not. This practice, implemented by the
district court without the request of the parties, and applied
uniformly without taking into consideration the needs of each
case, does not “concern” any particular defendant, let alone
“the defendant” to whom Rule 48 refers. See HRPP Rule 48(c)(1)
(excluding from calculation “periods that delay the commencement
of trial and are caused by collateral or other proceedings
concerning the defendant[.]”) (emphasis added). Rather, the
waiver/demand hearing continuance “concerns” the efficiency of
the district court calendar, as described below, rather than the
particularities of any defendant’s case.
Third, in this regard, the district court’s continuance of
the waiver/demand hearing appears to be a practice developed to
avoid the possible procedural inefficiencies that would result
from the requirements of HRPP Rule 5 and HRS § 604-8. Under HRS
§ 604-8(a) (2001), the district court loses jurisdiction over a
misdemeanor case once the defendant demands a jury trial, but
retains jurisdiction if the defendant does not make a jury
demand “on the date of arraignment or within ten days
thereafter.” HRPP Rule 5(b)(3) further specifies that if the
defendant does not waive the right to a jury trial “at or before
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the time of entry of a plea of not guilty,” the district court
must “commit the defendant to the circuit court for trial by
jury.” However, if the defendant waives the right to a jury
trial at the circuit court, the case may be remanded to the
district court. HRPP Rule 5(b)(3)(iii). In any event, neither
court may proceed with the case until the waiver/demand decision
is made.15 The waiver/demand hearing is therefore a practical
way for the district court to address a process that is unique
to misdemeanor cases. It would be unfair to defendants to
exclude the time for a hearing set by the district court as part
of its responsibilities under the HRPP and the HRS. And,
indeed, it is the district court’s standard practice to include
this waiver/demand hearing time in calculating when the trial
must commence.
Fourth, at oral argument, the State did not dispute
Choy Foo’s representation that it is a regular practice to
include the three-week continuance for a waiver/demand hearing
in the HRPP Rule 48 calculation. In other words, the trial
courts already factor in the 21 day continuance for a
waiver/demand hearing in the time period within which a
15
We agree with the Dissent that waiver or demand of the defendant’s
right to a jury trial is a “critical stage” at which the defendant is
entitled to have counsel. Dissent at I.B.1. However, we respectfully
maintain that the defendant’s right to an attorney should not come at the
expense of his or her HRPP Rule 48 rights.
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misdemeanor defendant’s trial must commence. Therefore, our
ruling merely comports with the status quo, and would not create
new problems, as theorized by the Dissent. Dissent at Section
I.B.2. In addition, our decision does not prolong the time
period to bring a misdemeanor defendant to trial, in contrast
with the ICA and Dissent’s position, which contravenes an
important purpose of Rule 48: to ensure speedy trial for
defendants in criminal cases.
Fifth, and finally, if the district court’s regular three
week continuances were truly created to allow defendants to
exercise their right to counsel, those continuances would be
unjustified for defendants who already have counsel at
arraignment. Further, it would be particularly unfair to
indigent defendants for the court to exclude this period when it
coincides with their referral to the public defender’s office to
exercise their right to appointment of counsel provided by
statutory and constitutional law.16 If a defendant later appears
without counsel, for whatever reason, that time may be properly
16
The court is required to refer an indigent person without counsel to
the public defender’s office. Haw. Const. art. I, § 14 (“The State shall
provide counsel for an indigent defendant charged with an offense punishable
by imprisonment.”); HRS § 802-1 (2015) (providing that all indigent people
faced with potential imprisonment are entitled to be represented by a public
defender); HRS § 802-2 (1985) (requiring the court to advise all defendants
in criminal cases who appear without counsel that they have a right to
counsel and that counsel may be appointed at no cost to them if they cannot
afford counsel).
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excluded under HRPP Rule 48(c)(3) if a continuance is granted at
the defendant’s request. However, an initial referral to the
public defender is an indigent defendant’s statutory and
constitutional right that should not be afforded to them at the
expense of their HRPP Rule 48 rights.
Consequently, we conclude that the twenty-one day period
caused by the waiver/demand hearing was not excludable under
HRPP Rule 48(c)(1).17
B. Exclusion was also inappropriate under HRPP Rule 48(c)(8)
HRPP Rule 48(c)(8) provides, in relevant part, that “other
periods of delay for good cause” shall be excluded from trial
commencement calculation. This court has defined “good cause”
to mean “a substantial reason which affords a legal excuse,”
Senteno, 69 Haw. at 368, 742 P.2d at 373 (citing Estencion, 63
Haw. at 267, 625 P.2d at 1042), and has held that the good cause
provision “is provided to take care of unanticipated
circumstances,” State v. Gillis, 63 Haw. 285, 288, 626 P.2d 190,
192 (1981). Additionally, “a period is excludable as good cause
17
We also note that to the extent that Canencia holds “a period of time
in which the defendant is not represented by counsel is an excludable
period,” it is overruled. The text of HRPP Rule 48 does not support so broad
a rule, and to hold otherwise would produce anomalous results. See
Keliipuleole v. Wilson, 85 Hawaii 217, 221-22, 941 P.2d 300, 304-05 (1997)
(“A rational, sensible and practicable interpretation [of a statute] is
preferred to one which is unreasonable or impracticable” (alterations in
original) (quoting State v. Lobendahn, 71 Haw. 111, 112, 784 P.2d 872, 873
(1989)).
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under HRPP Rule 48(c)(8) if the events causing the delay are
unanticipated and not reasonably foreseeable.” Abregano, 136
Hawaii at 498, 363 P.3d at 847. Most importantly, this court
has said that “[w]hether a period of time is excludable as ‘good
cause’ under HRPP Rule 48(c)(8) is dependent on the facts of
each case.” 136 Hawaii at 498–99, 363 P.3d at 847–48 (citation
omitted).
As an alternate basis for its ruling in this case, the ICA
concluded that the twenty-one day time period was excludable for
good cause because the district court cannot anticipate whether
a defendant will have counsel or will need counsel appointed for
them until his or her first appearance in court.18 Choy Foo, 139
Hawaii at 346, 389 P.3d at 941. Respectfully, we disagree.
Although the district court faces uncertainty with respect to
individual defendants, it is “reasonably foreseeable” that many
defendants will make their initial appearance in district court
without an attorney. The district court can also foresee that
indigent defendants will not already be represented by a private
attorney, and cannot be represented by a public defender at
their initial appearance: it is the district court itself that
issues a referral to the public defender’s office.
18
The record indicates, however, that the district court continues cases
for waiver/demand hearings even when defendants make their first appearance
already represented by counsel.
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With respect to Choy Foo, the fact that he appeared without
counsel at his first appearance was not unanticipated or
reasonably unforeseeable, and therefore does not constitute
“good cause” within the meaning of HRPP 48(c)(8).
C. Application of Estencion Factors
The State argued, and Choy Foo conceded, that the circuit
court erred in failing to evaluate and apply the Estencion
factors before dismissing this case with prejudice. See Hern,
133 Hawaii at 64, 323 P.3d at 1246 (holding that “in determining
whether to dismiss a charge with or without prejudice under HRPP
Rule 48(b), the trial court must not only consider the Estencion
factors, but must also clearly articulate the effect of the
Estencion factors and any other factor it considered in
rendering its decision.”). Although a party’s concession of
error is not binding on this court, we conclude that it is well-
founded in this case. See State v. Eduwensuyi, 141 Hawaii 328,
___, 409 P.3d 732, 737 (January 18, 2018) (citing Territory v.
Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945) (holding that a
prosecutor’s concession of error is entitled to “great weight,”
but is not binding upon the appellate court)).
Accordingly, we remand the case to the circuit court for
application of the Estencion factors and articulation of
necessary findings. The factors the circuit court must consider
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include, but are not limited to: “the seriousness of the
offense; the facts and the circumstances of the case which led
to the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.” 63 Haw. at 269, 625 P.2d at 1044 (citation omitted);
see also State v. Fukuoka, 141 Hawai‘i 48, 404 P.3d 314 (2017)
(considering the principles applicable to the Estencion factors
that guide a trial court in exercising its discretion to dismiss
a case with or without prejudice for a violation of HRPP Rule
48).
V. Conclusion
The foregoing analysis is intended to clarify the
application of HRPP Rule 48 to the district court’s practice in
setting waiver/demand hearings for misdemeanor defendants. When
the district court initiallly sets a misdemeanor case for
waiver/demand hearing or continues arraignment for a waiver or
demand of jury trial, this time period is not excludable from
HRPP Rule 48 calculation under either subsection (c)(1) or
(c)(8). The circuit court did not err in dismissing this case
for violation of HRPP Rule 48; however, the case must be
remanded for proper consideration and application of the
Estencion factors as to whether the dismissal should have been
with or without prejudice.
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We therefore vacate the ICA’s February 14, 2017 Judgment on
Appeal and the circuit court’s April 5, 2013 “Order Granting
Defendant’s Motion to Dismiss Charges for Violation of HRPP Rule
48” to the extent it dismissed the charge against Choy Foo with
prejudice and remand this case to the circuit court for further
proceedings consistent with this opinion.
Audrey L. Stanley /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent
for respondent /s/ Michael D. Wilson
31