State v. Hernane.

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-DEC-2019
10:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
CHARLY HERNANE, also known as CHARLIE HERNANE,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1PC111000699)
DECEMBER 12, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE AYABE IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
We hold that the time period a defendant continues to be
held in State custody in a mainland prison after his conviction
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
is set aside and a new trial ordered is not excludable under
Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 48(c)(5) (2000)1
on the grounds the time period was “caused by the . . .
unavailability of the defendant.” The Circuit Court of the
First Circuit2 therefore erred in denying Defendant Charly
Hernane’s (“Hernane”) motion to dismiss indictment for violation
of HRPP Rule 48. As Hernane’s conviction is set aside, we
therefore need not address Hernane’s second question on
certiorari as to whether the circuit court’s responses to jury
communications constituted impermissible Allen charges. See
State v. Villeza, 72 Haw. 327, 334, 817 P.2d 1054, 1058 (1991)
(quoting Allen v. United States, 164 U.S. 492 (1896) (explaining
that an Allen charge directs members in the minority of a
1
HRPP Rule 48 provides in relevant part as follows:
. . . .
(b) By court. . . .[T]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:
. . . .
(3) from the date of . . . order granting a . . . remand,
in cases where such events require a new trial.
. . . .
(c) Excluded periods. The following periods shall be
excluded in computing the time for trial commencement:
. . . .
(5) periods that delay the commencement of trial and are
caused by the absence or unavailability of the defendant;
. . . .
2
The Honorable Rom A. Trader presided.
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
deadlocked jury to reconsider their views in light of the views
of the majority)).
Based on the Rule 48 violation, however, which requires
dismissal of the charge against Hernane, we vacate the
Intermediate Court of Appeal’s (“ICA”) January 11, 2016 judgment
on appeal and the circuit court’s October 22, 2013 judgment of
conviction and sentence and remand this case to the circuit
court for further proceedings consistent with this opinion.3
II. Background
A. Factual and Procedural Background Preceding Trial on Remand4
On May 18, 2011, a grand jury charged Hernane by indictment
with murder in the second degree of his mother, Teresita Dumalan
Hernane (“mother”), in violation of Hawaii Revised Statutes
(“HRS”) §§ 707-701.5 (Supp. 1986)5 and 706-656 (Supp. 1996).6 On
3
It is for the circuit court to address whether the Rule 48 dismissal
should be with or without prejudice, applying the factors set out in State v.
Estencion, 63 Haw. 264, 625 P.2d 1040 (1981):
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.
Estencion, 63 Haw. at 269, 625 P.2d at 1044. See also State v. Choy Foo, 142
Hawaiʻi 65, 414 P.3d 117 (2018).
4
The facts in this section are summarized from testimony at Hernane’s
February 5, 2018 retrial.
5
HRS § 707-701.5 provides as follows:
(continued. . .)
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
May 11, 2011, police were called to the mother’s home after she
was found dead with cuts and wounds to her head and neck. A
knife was found next to her body. Hernane was located shortly
thereafter in a nearby park with blood on his shirt and shorts.
Hernane was initially convicted by a jury of murder in the
second degree and sentenced to a term of life imprisonment with
the possibility of parole. A judgment of conviction and
sentence was entered on October 22, 2013. Hernane appealed from
the conviction and sentence to the ICA alleging prosecutorial
(. . . continued)
(1) Except as provided in section 707-701, a person
commits the offense of murder in the second degree if the
person intentionally or knowingly causes the death of
another person.
(2) Murder in the second degree is a felony for which the
defendant shall be sentenced to imprisonment as provided in
section 706-656.
6
HRS § 706-656(2) provides as follows:
Except as provided in section 706-657, pertaining to
enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second
degree murder shall be sentenced to life imprisonment with
possibility of parole. The minimum length of imprisonment
shall be determined by the Hawai[ʻ]i paroling authority;
provided that persons who are repeat offenders under
section 706-606.5 shall serve at least the applicable
mandatory minimum term of imprisonment.
If the court imposes a sentence of life imprisonment
without possibility of parole pursuant to section 706-657,
as part of that sentence, the court shall order the
director of public safety and the Hawai[]i paroling
authority to prepare an application for the governor to
commute the sentence to life imprisonment with parole at
the end of twenty years of imprisonment; provided that
persons who are repeat offenders under section 706-606.5
shall serve at least the applicable mandatory minimum term
of imprisonment.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
misconduct. On January 11, 2016, the ICA entered a judgment on
appeal pursuant to its November 30, 2015 memorandum opinion,
State v. Hernane, CAAP-XX-XXXXXXX (App. Nov. 30, 2015) (mem.),
vacating the circuit court’s October 22, 2013 judgment of
conviction and remanding Hernane’s case for a new trial. The
State filed an application for writ of certiorari to this court.
Meanwhile, on February 9, 2016, the circuit court held a
hearing to set the retrial week. Defense counsel explained that
Hernane was not present because he was “in prison in Arizona.”7
The State, through a deputy prosecuting attorney, informed the
circuit court that it had filed an application for writ of
certiorari, and the circuit court stayed the proceedings.
On March 23, 2016, this court rejected certiorari. This
triggered the 180-day time period pursuant to HRPP Rule 48 for
Hernane’s trial to commence. See HRPP Rule 48.8
B. Remanded Circuit Court Proceedings
On April 12, 2016, another status conference was held, at
which the parties again discussed that Hernane was being held in
Arizona. On April 13, 2016, the deputy prosecuting attorney
instructed paralegals at the Honolulu Prosecutor’s Office to
7
The record does not reflect that Hernane was serving any other prison
term.
8
See note 1, supra.
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
contact the Department of Public Safety to arrange for Hernane’s
return.
On May 3, 2016, the circuit court held another hearing to
set Hernane’s retrial. Hernane was not present; defense counsel
stated that Hernane “had not been transported from prison by
airplane.” The State represented that it had made a request to
the Department of Public Safety (“DPS”) to have Hernane returned
to Hawaii, and had been informed that he would be returned in
July of 2016, but that the exact date was not disclosed for
security reasons.
The State asked the circuit court to take under advisement
any ruling on Rule 48 and stated that March 23, 2016 was
“conceptually the restart date for purposes of Rule 48.”
Defense counsel requested that trial not be set unless Hernane
was present. Over defense counsel’s objection, the circuit
court set a trial date for August 1, 2016 and scheduled a trial
call for July 19, 2016. The circuit court stated it would “take
under advisement the determination of Rule 48 excludability, if
any, until such time as the issue is raised.”
On July 13, 2016, based on the State’s request, the trial
call was continued to July 22, 2016.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Hernane was returned to Hawaii on July 19, 2016. One
hundred eighteen days had passed since certiorari had been
rejected on March 23, 2016.
On July 22, 2016, Hernane’s counsel made an oral motion to
continue, and trial was continued to the week of October 31,
2016. Thereafter, Hernane filed multiple continuances as well
as motions regarding his fitness to proceed; he was not
determined fit to proceed until December 7, 2017. Hernane’s
retrial was then scheduled for February 5, 2018.
On February 5, 2018, the day of his scheduled jury trial,
Hernane filed a motion to dismiss indictment for violation of
HRPP Rule 48 (“Rule 48 Motion”). Hernane maintained that since
March 23, 2016, a total of 684 days had passed, of which only
the 503 days between July 22, 2016 and December 7, 2017
qualified as excludable time periods for the purposes of HRPP
Rule 48(c)(1) and (c)(3); Hernane conceded as excludable his
requested continuances as well as proceedings relating to his
fitness to stand trial.9 Hernane alleged, however, that as of
9
HRPP Rule 48(c)(1) and (c)(3) exclude the following time periods from
Rule 48’s 180-day “commencement of trial” deadline:
(1) periods that delay 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;
. . . .
(continued. . .)
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
February 5, 2018, 181 days had elapsed since the rejection of
the application for writ of certiorari on March 23, 2016 that
were not excludable pursuant to HRPP Rule 48, requiring
dismissal due to a violation of HRPP Rule 48.
The State opposed the Rule 48 Motion and asserted that
because Hernane was being held pre-trial in Arizona, Hernane
“must be deemed unavailable from May 3, 2016 to July 22, 2016.”
A hearing on the Rule 48 Motion was held that day, February
5, 2018. The circuit court took judicial notice of the records
and files in the case to calculate the time elapsed between the
date certiorari was rejected and the date Hernane’s trial
commenced, which would be later that same day, February 5, 2018.
The State entered four exhibits into evidence, which contained a
series of emails between the deputy prosecuting attorney and
paralegals at the Honolulu prosecutor’s officer concerning
Hernane’s return to Hawaiʻi.
The State called one witness, a paralegal at the Honolulu
prosecutor’s office, to testify about the procedure used by the
prosecutor’s office to return a defendant housed in a mainland
facility to Hawaii for trial. The paralegal explained,
(. . . continued)
(3) periods that delay the commencement of trial and are
caused by a continuance granted at the request or with the
consent of the defendant or defendant's counsel;
. . . .
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
[w]hen we’re informed that the defendant is being
housed in a mainland facility, we contact the
Department of Public Safety. Our contact is Howard
Komori [“Komori”]. He handles -- he’s the
administrator for inmates who are housed in a
mainland facility.
Q. [Deputy Prosecuting Attorney] And could you
explain for us in greater detail what the request is
that you submit to Mr. Komori?
A. [Paralegal] It’s -- we usually either call or
email him with our request for a specific inmate to
be brought back to the state, and we let him know
that he needs to be brought back for trial[.]
The paralegal further stated that on April 13, 2016, she
received an email from the deputy prosecuting attorney
requesting that she contact DPS to have Hernane brought back to
the state for trial. The paralegal further explained that
thereafter she contacted Komori and was informed that Hernane
would be brought back in July of 2016. The paralegal also
testified that on April 26, 2016, she sent another email
updating the deputy prosecuting attorney that Hernane was still
scheduled to return to Hawaiʻi in July 2016. She testified that
DPS decides when a defendant is brought back, and to her
knowledge, the prosecutor’s office does not have any say as to
when someone is brought back.
The paralegal also testified that, on June 22, 2016, the
deputy prosecuting attorney requested that she follow-up with
Komori regarding Hernane’s return, which the paralegal did, and
she was informed that he would be brought back on July 19, 2016.
She testified that, knowing that a trial call was scheduled for
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
July 19, 2016, she called the court to move the trial call to
after the 19th and was given two dates, the 21st or 22nd of
July. The paralegal contacted Hernane’s counsel after obtaining
the new July 22nd date. On cross-examination, she testified
that it was her understanding that Hernane was being brought
back on the first regularly scheduled available flight back to
Hawaii.
Hernane then argued that he was not “unavailable” for
purposes of HRPP Rule 48 for the period during which he was
“housed on the mainland” because he “was in Hawaii State
custody.” Alternatively, Hernane argued that even if he was
“unavailable,” the State did not show it exercised due diligence
to bring him back promptly.
The State argued that it had exercised due diligence in
securing Hernane’s presence for trial, and thus, Hernane’s Rule
48 Motion should be denied pursuant to State v. Jackson, 8 Haw.
App. 624, 817 P.2d 130 (1991). The State argued “it was only on
April 12th, 2016, when I [the deputy prosecuting attorney]
became aware” at an informal status conference that Hernane was
being held in Arizona.10 The State further maintained that the
“Honolulu prosecutor’s office does not tell [DPS] what to do and
10
But see text accompanying note 7, supra.
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
when to do it” and their office had timely submitted the request
and then had to “simply wait[] for [DPS’s] response.”
After the parties completed their arguments, the circuit
court noted that the disputed time period was March 23, 2016 up
through and including the July 22, 2016, a total of 121 days,
during “the vast majority” of which Hernane was held in Arizona
until he was returned on July 19, 2016 “or thereabouts.”
Hernane asserted a violation of HRPP Rule 48 based on the
passage of 181 unexcludable days, a difference of only one day
from the requirement that trial commence within 180 days. The
circuit court clarified that it would rule alternatively, and
proceeded to offer various calculations of excludable time
periods, all of which supported its conclusion that there was no
violation of HRPP Rule 48.
In its first alternative, the circuit court ruled that the
118 days between the rejection of certiorari on March 23, 2016
until Hernane’s return to Hawaiʻi on July 19, 2016, were
excludable. In its second alternative, the circuit court ruled
that the ninety-eight days from April 12, 2016, when the deputy
prosecuting attorney allegedly became aware that Hernane was not
present in the State,11 until Hernane’s return on July 19, 2016,
11
Again, at the February 9, 2016 trial setting hearing with the deputy
prosecuting attorney present, Hernane’s counsel noted that Hernane was not
(continued. . .)
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
were excludable. To reach this finding, the circuit court
relied on Jackson, and found (1) that “the State, upon becoming
informed of [Hernane’s whereabouts], made good-faith diligent
efforts going forward to secure the attendance of the defendant
for the anticipated retrial,” and (2) that the “July date” was
not an “unreasonable delay” because it was “the first available
scheduled return for mainland inmates.” In its third
alternative, the circuit court ruled that the 77 days from the
May 3rd calendar call until Hernane’s return on July 19th were
excludable pursuant to HRPP Rule 48(c)(5) and (c)(8) and
Jackson.
On February 27, 2018, the court entered its findings of
fact, conclusions of law, and order denying Hernane’s Rule 48
Motion consistent with its oral rulings.
Hernane’s jury trial commenced on February 5, 2018 after
the Rule 48 hearing, and it lasted six days. On February 15,
2018, the jury returned a verdict finding Hernane guilty of the
lesser-included offense of manslaughter in violation of HRS §
707-702(1)(a).12 On April 17, 2018, the circuit court entered a
(. . . continued)
present because he was being held in Arizona. See text accompanying note 7,
supra.
12
HRS § 707-702(1)(a) (Supp. 2011) provides in relevant part: “A person
commits the offense of manslaughter if . . . [t]he person recklessly causes
the death of another person . . . .”
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
judgment of conviction and sentence, sentencing Hernane, inter
alia, to a twenty-year term of incarceration.
C. Appeal to the ICA
Hernane timely appealed the circuit court’s judgment of
conviction and sentence to the ICA, basically repeating the
arguments he made below and challenging the circuit court’s
denial of his Rule 48 Motion. In its April 11, 2019 summary
disposition order, the ICA affirmed the circuit court’s judgment
of conviction and sentence. State v. Hernane, CAAP-XX-XXXXXXX,
at 6, 11 (App. April 11, 2019) (SDO).
With respect to the Rule 48 issue, relying on its holding
in Jackson, the ICA noted that the HRPP does not define
unavailability, but that the ICA had previously adopted the
definition of unavailability from the Federal Speedy Trial Act,
18 U.S.C. § 3161(h)(3)(B) (1979): “a defendant . . . . shall be
considered unavailable whenever his [or her] whereabouts are
known but his [or her] presence for trial cannot be obtained by
due diligence.” Hernane, SDO at 3 (citing Jackson, 8 Haw. App.
at 630, 817 P.2d at 135). The ICA also opined that “‘[d]ue
diligence is a fluid concept that must be determined on a case
by case basis . . . .’” Hernane, SDO at 3 (quoting Jackson, 8
Haw. App. at 630, 817 P.2d at 135).
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The ICA stated that the main issue was whether the State
used due diligence to procure Hernane’s return to Honolulu for
retrial. Hernane, SDO at 3-4. The ICA determined that based on
the paralegal’s testimony and the State’s exhibits, the circuit
court had not erred and had correctly concluded that Hernane’s
right to trial commencement under HRPP Rule 48 had not been
violated. Hernane, SDO at 6.
D. Application for Writ of Certiorari
We address Hernane’s first question on certiorari, whether
the ICA gravely erred in denying his motion to dismiss the
indictment pursuant to HRPP Rule 48. Hernane basically argues
that the delay between March 23, 2016 and July 19, 2016, was not
excludable because he was not “unavailable” for purposes of HRPP
Rule 48.
III. Standard of Review of HRPP Rule 48 Motion to Dismiss
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.
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
[State v. ]Samonte, 83 Hawai‘i [507, 514], 928 P.2d [1, 8
(1996)] (quoting State v. Hutch, 75 Haw. 307, 328-29, 861
P.2d 11, 22 (1993)).
Choy Foo, 142 Hawaiʻi at 72, 414 P.3d at 124.
IV. The time Hernane spent in Arizona in Hawai̒i State custody
was not excludable under HRPP Rule 48(c)(5)
Hernane asserts the ICA erred in affirming the circuit
court’s denial of his Rule 48 motion by holding that Hernane was
“unavailable” for purposes of HRPP Rule 48(c)(5) while he was in
Hawaiʻi State custody in an Arizona prison facility.
“The purpose of Rule 48 is to ensure an accused a speedy
trial, which is separate and distinct from his constitutional
protection to a speedy trial.” Estencion, 63 Haw. at 268, 625
P.2d at 1043. Speedy trial rules are intended to prevent
unreasonable delay in the determination of criminal actions that
“subvert[] the public good and disgrace[] the administration of
justice[.]” 63 Haw. at 268, 625 P.2d at 1043 (citing People v.
Solomon, 70 N.E.2d 404 (1946)). To accomplish this end, HRPP
Rule 48(b) requires a court to dismiss the charge upon the
defendant’s motion “‘if trial is not commenced within 6 months’
of a relevant triggering date.” Choy Foo, 142 Hawaiʻi at 72, 414
P.3d at 124. The six-month period under HRPP Rule 48 is
equivalent to 180 days. See State v. Hoey, 77 Hawaiʻi 17, 28,
881 P.2d 504, 515 (1994). Under HRPP Rule 48(c), there are
“eight categories of delay that are to be excluded from
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
calculating the time within which trial must commence.” Choy
Foo, 142 Hawaii at 72-73, 414 P.3d at 124-25.
At issue in this case is one of those categories, which
excludes “periods that delay the commencement of trial and are
caused by the absence or unavailability of the defendant.” HRPP
Rule 48(c)(5) (emphasis added). What constitutes a “period[]
that delay[s] the commencement of trial and [is] caused by the
[] unavailability of the defendant” is not further defined
within the HRPP.
Based on the authority below, we hold that a defendant is
not “unavailable” for purposes of HRPP Rule 48 when he is in
Hawaiʻi State custody and does not prevent his own transportation
to court. Cf. Mainwaring v. State, 11 So. 3d 986, 991 (Fla.
Dist. Ct. App. 2009) (“The bare refusal of one county to
transport an accused person to another county where the speedy
trial time is running is ordinarily not sufficient to establish
that the accused is ‘unavailable’ for trial.”).
In State v. Willoughby, 83 Hawaiʻi 496, 927 P.2d 1379 (App.
1996), the ICA affirmed a trial court ruling that the 1,089 days
between an indictment and when the defendant was served with a
warrant for his arrest on the mainland was excludable under HRPP
Rule 48(c)(5) because the period had been caused by the
unavailability of the defendant. 83 Hawaiʻi at 501, 927 P.2d at
16
 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
1384. During the 1,089 days, despite “periodically searching
existing computer data bases,” the Honolulu Police Department
(“HPD”) had been unable to find the defendant, who had left
Hawai̒i without leaving a forwarding address. 83 Hawaiʻi at 498,
927 P.2d at 1381. HPD only learned the defendant’s whereabouts
when they were contacted by the New Jersey prosecutor’s office
regarding the outstanding warrant for the defendant’s arrest.
Id.
In Jackson, which the circuit court and the ICA relied upon
in this case, although the defendant was imprisoned in Honolulu,
the defendant was in federal custody. See 8 Haw. App. at 628-
29, 817 P.2d at 135. The ICA adopted the following definition
of “unavailability” from the Federal Speedy Trial Act, 18 U.S.C.
§ 3161(h)(3)(B): “a defendant . . . shall be considered
unavailable whenever [the defendant’s] whereabouts are known but
[the defendant’s] presence for trial cannot be obtained by due
diligence[.]” 8 Haw. App. at 630, 817 P.2d at 134.13 The ICA
held that the State had exercised due diligence to secure the
defendant’s presence for his arraignment because the prosecuting
attorney had contacted the United States Marshal’s office in an
attempt to have the defendant brought to the circuit court, but
13
As explained below, Jackson is inapplicable because Hernane was not
“unavailable.” As the issue is not before us, we do not decide whether “due
diligence” would satisfy the State’s burden in a case where a defendant is
actually “unavailable.”
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the Marshal refused to deliver the defendant. 8 Haw. App. at
632, 817 P.2d at 135. The ICA held, “[t]he 231 days between
November 17, 1988, when the State first attempted to get the
Marshal to produce Defendant, and July 6, 1989, when Defendant
failed to appear for his eighth scheduled arraignment, was
properly excluded pursuant to Rule 48(c)(5), HRPP.” 8 Haw. App.
at 633, 817 P.2d at 136. The ICA posited that to determine
whether due diligence was exercised, a court’s “focus is on what
was done by the state rather than on what was not done.” 8 Haw.
App. at 632, 817 P.2d at 136-37 (citing Ingram v. State, 703
P.2d 415, 431 (Alaska Ct. App. 1985) (“[P]rimary emphasis must
be on the reasonableness of the efforts actually made, not on
the alternative that might have been made available.”)).
Relying on Jackson, the State and circuit court ruled that
the State had “exercised due diligence and made good faith
efforts to return Defendant to Hawaiʻi for retrial[,]” and that,
therefore, the time Hernane remained in Arizona was excludable
under HRPP Rule 48(c)(5).
Through various cases similar to Willoughby and Jackson,
other state courts have addressed whether a defendant who
becomes absent due to relocation to another state or
incarceration by another state or federal government is
“unavailable” during the time period it takes to obtain the
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
presence the defendant. For example, the Supreme Court of
Pennsylvania has held that where a defendant incarcerated in an
out-of-state jail initially refused extradition, he was
”unavailable” until he was returned to that state. Commonwealth
v. Stange, 428 A.2d 226 (Pa. 1981); see also People v. Garner,
74 Cal. Rptr. 298, 304 (Cal. Ct. App. 1990) (holding a defendant
who resisted extradition was unavailable). That court also
ruled that a defendant who had “voluntarily absented” himself
from that state was “unavailable” until after he was returned to
the state after arrest in an extradition waiver. Commonwealth
v. Polsky, 426 A.2d 610 (Pa. 1981); see also State v. Hattori,
573 P.2d 829 (Ct. App. Wash. 1978) (holding that a defendant was
unavailable until his arrest in California and return to
Washington). But here, Jackson is inapplicable because Hernane
was not held by another jurisdiction, but was in Hawai̒i State
custody. Accordingly, no due diligence inquiry is necessary
because the State had the sole responsibility for transporting
the defendant.
There do not appear to be any reported cases regarding
whether or not a defendant held in state custody in that state’s
prison located in another state can be deemed “unavailable” in
the custodial state. Florida courts have held, however, that
for purposes of Florida’s speedy trial rule, “if the charging
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
county has knowledge that the defendant is incarcerated in
another county, the defendant is not considered ‘unavailable’
for trial in the charging county.” Mainwaring, 11 So. 3d at
989; see also State v. Steele, 624 N.W.2d 1, 8 (Neb. 2001) (“The
primary burden of bringing an accused person to trial within the
time provided by law is upon the State.”). The Colorado Court
of Appeals held that defendants were not unavailable for
purposes of that state’s Speedy Trial Act for the time they were
in California based on a post-arraignment extradition or a
waiver of extradition. People v. Wimer, 604 P.2d 1183 (Colo.
App. 1979). In addition, the Supreme Court of Illinois held
that where the state had voluntarily relinquished control over a
defendant to federal authorities, the delay was attributable to
the state. People v. Swartz, 171 N.E.2d 784 (Ill. 1961).
The absence of reported cases similar to Hernane’s
situation is logical. As indicated by the cases above, it is
when a defendant has “voluntarily absented” himself from a state
or when a state does not know about or have control over the
custody of a defendant in another state that a time period is
excludable for speedy trial purposes for being “caused by the
unavailability of the defendant.” As pointed out in the
American Bar Association Standards for Criminal Justice Relating
to Speedy Trial: “[a] defendant should be considered unavailable
20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
whenever his whereabouts are known but his presence for trial
cannot be obtained or he resists being returned to the state for
trial.” AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE RELATING TO
SPEEDY TRIAL, Standard 12-2.3(e) (Supp. 1986) (quoted in Jackson, 8
Haw. App. at 630, 817 P.2d at 134); see also People v. Moye, 635
P.2d 194, 196 (Colo. 1981) (citing ABA Standard 12-2.3(e)).
Under the ABA Standard, Hernane clearly was not
“unavailable.” His whereabouts were known, but the requirement
that “his presence for trial cannot be obtained” was simply non-
existent. Hernane was in custody of the State of Hawaiʻi
Department of Public Safety. The State knew where he was and
had control over his location;14 Hernane did not “voluntarily
absent” himself to Arizona. In addition, he did not “resist
being returned to the state for trial.” It was the State that
failed to return him for 118 days although his conviction had
been vacated; he was therefore a pre-trial detainee being held
in a prison, not a jail. As a pre-trial detainee, he should
have promptly been returned to Hawaiʻi.
14
We reject the circuit court’s finding that “[t]he Honolulu Prosecutor’s
Office exercises no control over [the Department of Public Safety]. Our
county prosecutors have been delegated the primary authority and
responsibility for initiating and conducting criminal prosecutions within
their respective counties, but do so under the authority of the attorney
general of the State of Hawaiʻi. Ruggles v. Yagong, 135 Hawaiʻi 411, 418, 353
P.3d 953, 960 (2015). As agents of the State of Hawai̒i, county prosecutors
are obligated to fulfill the responsibilities of the State of Hawaiʻi in their
prosecutions. Whether the Honolulu Prosecutor’s Office exercises “control”
over the Department of Public Safety is irrelevant -- Hernane was in Hawaiʻi
State custody and therefore was not unavailable.
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
In addition, the circuit court and ICA in this case relied
on Jackson as legal authority allowing exclusion of the time
Hernane was held in Arizona from the Rule 48 calculation. In
Jackson, after citing the ABA Standard quoted above, the ICA
adopted the Federal Speedy Trial Act’s definition of
“unavailability” that “a defendant . . . shall be considered
unavailable whenever [the defendant’s] whereabouts are known but
[the defendant’s] presence for trial cannot be obtained by due
diligence.” 8 Haw. App. at 630, 817 P.2d at 134-35.
Yet, the Federal Speedy Trial Act itself would not have
authorized the circuit court to exclude the bulk of the time
period Hernane was held in Arizona. 18 U.S.C. § 3161(h)(1)(F)
expressly limits the excludable time resulting from
transportation of defendants already within federal custody to
ten days:
[D]elay resulting from transportation of any defendant from
another district, or to and from places of examination or
hospitalization [are excluded], except that any time
consumed in excess of ten days from the date an order of
removal or an order directing such transportation, and the
defendant's arrival at the destination shall be presumed to
be unreasonable[.]
HRPP Rule 48, on the other hand, does not contain this up-to-
ten-day leeway period for transporting defendants in the custody
of the State of Hawaiʻi. Thus, the legal authority on which the
circuit court and ICA relied would not have allowed exclusion of
22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the time periods they deemed excludable under HRPP Rule
48(c)(5).15
V. Conclusion
For all of these reasons, the time Hernane spent in Arizona
in State custody was not excludable under HRPP Rule 48(c)(5).
The circuit court therefore erred in denying Hernane’s Rule 48
Motion. The Rule 48 violation requires dismissal of the charge
against Hernane. We therefore vacate the ICA’s January 11, 2016
judgment on appeal and the circuit court’s October 22, 2013
judgment of conviction and sentence and remand this case to the
15
Even for defendants held in the custody of another jurisdiction,
the Federal Speedy Trial Act contains additional language contradicting
the circuit court and ICA’s exclusion of the time Hernane continued to
be held in Arizona. 18 U.S.C. § 3161(j)(1)(A) contains language
clarifying the expected action of a government attorney to secure a
defendant’s presence for trial: “If the attorney for the Government
knows that a person charged with an offense is serving a term of
imprisonment in any penal institution, he shall promptly . . .
undertake to obtain the presence of the prisoner for trial[.]” 18
U.S.C. § 3161(j)(1)(A) (emphasis added). The legislative history of
the act provides that “[w]ith respect to the term ‘promptly’ as used in
this subsection, the Committee intends that the attorney for the
Government . . . shall initiate detainer or demand certificate
procedures as soon after he becomes aware of the fact that the accused
is imprisoned as is practicable.” H.R. Rep. No. 93-1508, at 22-23
(1974). Based on the record, the State did not act promptly to seek
Hernane’s return as the record reflects that the State knew Hernane was
imprisoned in Arizona in February 2016, but did not make a request for
Hernane’s return until April. In addition, the State could have and
should have flown Hernane back to Hawaiʻi promptly when his conviction
was vacated, as he was then a pre-trial detainee, not a convicted
felon.
23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
circuit court for further proceedings consistent with this
opinion.
Jon K. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Bert I. Ayabe
24