CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000762; FC-CR. NO. 11-1-1675).
Steven T. Barta, for petitioner.
James M. Anderson, for respondent.
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
We hold first, that respectfully, the Family Court of the First Circuit (the family circuit court) should have arraigned Petitioner/Defendant-Appellant Sushil Basnet (Basnet) in accordance with Hawai'i Rules of Penal Procedure (HRPP) Rule 10(a), but because it failed to do so, the case must be dismissed without prejudice. Second, in the event of retrial, we hold that the charge was sufficient inasmuch as it "fully defin[ed] the offense in unmistakable terms readily comprehensible to persons of common understanding." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977). Accordingly, the family circuit court's judgment of conviction and sentence entered on September 23, 2013 is vacated and the case is dismissed without prejudice.
I. A. Arrest and Complaint
Basnet was arrested following an incident that took place the morning of June 7, 2011 at the Himalayan Kitchen restaurant. Respondent/Plaintiff-Appellee State of Hawai'i (the State) filed a Complaint against Basnet on June 9, 2011. The caption on the Complaint stated "IN THE DISTRICT COURT OF THE FIRST CIRCUIT" and the Complaint stated as follows:
The undersigned Deputy Prosecuting Attorney of the City and County of Honolulu, State of Hawaii charges:
On or about the 7th day of June, 2011, in the City and County of Honolulu, State of Hawaii, SUSHIL BASNET did intentionally, knowingly, or recklessly physically abuse [Basnet's wife], a family or household member, thereby committing the Offense of Abuse of Family or Household Members [ (AFHM) ], in violation of Section 709-906(1)  of the Hawaii Revised Statutes [(HRS)]. SUSHIL BASNET is subject to sentencing in accordance with Section 709-906(5) (a) of the [HRS].
(Emphasis added.) Basnet posted a $1, 000 cash bail and received a notice to appear at the "FAMILY [court] - Alakea" on June 21, 2011.
B. Proceedings Before Judge Choy
On June 21, 2011, a hearing apparently took place in the family district court before Judge Darryl Y.C. Choy. The Pre-Trial Order in the record, entered on June 21, 2011 by Judge Choy states at the top of the form that the order is from the "Family Court of the First Circuit." In the section of the form titled "Trial Setting", it indicates that Basnet waived reading of the charge, entered a plea of not guilty, and that a jury trial was demanded, and thereby the case was committed to circuit court. Basnet was ordered to appear next on September 19, 2011, at 1111 Alakea St., Courtroom 8C.
C. Pre-Trial Proceedings Before Judge Castagnetti
On September 19, 2011, the parties appeared before the Honorable Jeannette H. Castagnetti, in the family circuit court. Both parties indicated that they were ready to proceed to trial, and the family circuit court ordered the parties back to appear the following day for trial.
On Tuesday, September 20, 2011, the family circuit court informed the parties that the case was a "backup case for trial this week, " and ordered the parties to return that Thursday, September 22, 2011. The deputy prosecuting attorney also made an oral motion to amend the Complaint in the case. He stated that "[b]asically, the heading at the top says in the District Court. However, it was filed in the Family Court, and I just have corrected that with an amended [C]omplaint." At that time, defense counsel stated that he had "a rather lengthy objection". Defense counsel gave his notes he had made outlining his objection to Judge Castagnetti, after he indicated that the notes did not contain any privileged communications. The family circuit court indicated that it would take the State's oral motion to amend the Complaint under advisement, to address when the parties returned later that week.
On Thursday, September 22, 2011, the family circuit court addressed the issue of amending the Complaint that was raised by the deputy prosecuting attorney at the prior hearing. The deputy prosecuting attorney maintained that the purpose of amending the Complaint was to correct the typographical error that the case was in family court, and not in district court. Defense counsel stated his position that the error was substantive rather than typographical. In his view, the court lacked jurisdiction because Basnet was arraigned in circuit court and should have instead been arraigned in district court. He stated as follows:
Your Honor, my position is that it is not a typographical error. It is substantive.
This court has no jurisdiction for two very fundamental reasons. And I understand that it's probably very upsetting because what it means is that all of these cases are inappropriately being processed. Yet, as you know, the appellate court did strike down hundreds of — several hundred DUI cases last year because they, in fact, were not being properly charged. My argument is, one, this case is not properly charged and, two, it is not being properly processed.
It's very clear that the family court rules specifically state that the [HRPP] govern these types of cases. And, in fact, there are no rules in the family court rules governing the charge, the arraignment, and the processing of the defendant. That's clear.
So we look to the [HRPP]. [The HRPP] are also very clear on its face, and it says that if someone is charged with a non-felony, they don't get arraigned in circuit court. Family court is circuit court. It was inappropriate to arraign Mr. Basnet here. It's — so as a consequence, that arraignment is void.
The appropriate place is in the district court. And then when an individual either refuses to elect jury trial or demand jury trial, it is incumbent upon the [district] court to transfer it to the circuit court, and the circuit court does not obtain jurisdiction until the district court does so.  ] So I'm not simply arguing that he cannot amend the [C]omplaint. I'm arguing that this court does not have jurisdiction.
(Emphases added.) Defense counsel also made further arguments regarding the sufficiency of the Complaint for failure to define "physical abuse" or "family or household member", alleging that the Complaint should be dismissed pursuant to State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009).
The family circuit court rejected defense counsel's arguments regarding the arraignment, because it noted that Basnet was actually arraigned in a family district court:
THE COURT: .... First, let's deal with the issue of the State's oral motion to amend the [C]omplaint to have the heading listed as it being in the family court as opposed to the district court which [the deputy prosecuting attorney] has represented is a typographical error. So I understand [defense counsel's] argument that this court lacks jurisdiction over the subject — are you saying subject matter of the [C]omplaint?
[DEFENSE COUNSEL:] . . . Yes.
THE COURT: Okay. And you're also saying that the Rules of Penal Procedure were not followed appropriately because the defendant was arraigned in a circuit court as opposed to a district court?
[DEFENSE COUNSEL:] That's correct.
THE COURT: Okay, what about the fact that under the [HRS] that there are family district judges appointed who have the same powers as district court judges, and the courtroom next-door where the arraignment took place, those were family district court judges, and the family court has exclusive original jurisdiction over cases involving husbands and wi[ves]?
(Emphases added.) The court explained that the statutory scheme establishes both family district courts and family circuit courts, and concluded that Basnet had been properly arraigned in the family district court:
THE COURT: Okay. All right. All right, so [HRS] Chapter 571 pertains to family court, and specifically, [HRS §] 571-3 [(2006)] establishes that family courts are divisions of the circuit courts within the state. HRS [ §] 571-8 [(2006)] establishes district family courts in addition to the district courts established under HRS [§] 604-1 [ (1993) ] .
Pursuant to HRS [§] 571-8 (b), the Chief Justice may designate a district family judge to act as a district judge and, when so appointed, shall have all the powers of a district judge appointed pursuant to HRS [§] 604-2 [(Supp. 1994) .
[HRS §] 571-8.5 [(2006)] gives district family judges the power to make and issue all orders and writs necessary or appropriate in aid of their original jurisdiction. And HRS [§] 571-14 [(Supp. 2008)] gives the family court exclusive original jurisdiction to try an adult charged with an offense other than a felony against the person of the defendant's husband or wife, and in particular, that's
[HRS §] 571-14 (2) (B)  .
So I'm going to find that this court has jurisdiction, and also, that the defendant was properly arraigned by a district family court judge. And so I'm going to grant the State's oral motion to amend the [C]omplaint. I'll also find that there's been no prejudice to the defendant with respect to the amendment. It was, as the State represented, a typographical error, that this case is a family court criminal matter. It was assigned to a family court criminal number, and it was just a matter of changing the heading to be in the family court of the first circuit, State of Hawaii .
Defense counsel then asked the family circuit court to take judicial notice "of the lack of a commitment order from the district court to the circuit court." He also stated that he "would like findings with respect to whether the family circuit court is declaring that it is unnecessary for the family district court judge and the family district court, if you will, then, to not abide by the [HRPP] which specifically require a commitment order and a second arraignment within 14 days[.]" The family circuit court declined to make the requested findings, but stated that there was no commitment order that was issued by the district family judge after arraignment of the defendant. Defense counsel responded that "there was no subsequent arraignment within the 14 days, as required by the rules."
As to defense counsel's argument based on Wheeler, the family circuit court took Basnet's oral motion to dismiss the Complaint under advisement and indicated that it would make findings as to the ...