As Corrected December 11, 2015.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-13-0000401; FC-CR. NO. 12-1-01963.
James S. Tabe & Titiimaea N. Ta'ase for petitioner.
Loren J. Thomas for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. Part I (By: Recktenwald, C.J., with whom Nakayama, McKenna, Pollack, and Wilson, JJ., join). Part II (By: McKenna, J., with whom Pollack and Wilson, JJ., join, and Recktenwald, C.J., dissenting separately, with whom Nakayama, J., joins).
[136 Hawai'i 491] PART I: HAWAI'I RULES OF PENAL PROCEDURE RULE 48
The central issue is whether the family court erred in finding that a delay due to the trial judge's illness was excluded as " good cause" from the calculation of the time for commencing defendant's trial under Rule 48 of Hawai'i Rules of Penal Procedure (HRPP).
Defendant Scott A. Abregano was charged with violation of a protective order, under which Abregano was the respondent and his wife, KA, was the petitioner. Before Abregano's trial began, the date of the trial was continued for one month because the trial judge was ill. Although HRPP Rule 48 requires that a criminal defendant be tried within six months of the earlier of his or her arrest or indictment, this continuance resulted in Abregano's trial not beginning until March 12, 2013--fourteen days after the six-month period expired. Before trial began, Abregano filed a Rule 48 motion to dismiss, which the family court denied based upon its conclusion that the period of delay due to the trial judge's illness was excluded from the HRPP Rule 48 period because it constituted " good cause" for delay under HRPP Rule 48(c)(8).
We conclude that under the circumstances in this case, the family court erred in finding that the trial judge's illness constituted good cause to exclude one month under HRPP Rule 48. Accordingly, we vacate the judgment on appeal of the Intermediate Court of [136 Hawai'i 492] Appeals (ICA) \and the family court's judgment of conviction and sentence, and remand to the family court to decide whether to dismiss Abregano's charges with or without prejudice. Because this issue is dispositive, we do not address the other issues raised by Abregano in his appeal except as noted below.
A. Pre-trial Proceedings
On August 30, 2012, Abregano was arrested for violating a protective order. Abregano was charged as follows:
On or about the 30th day of August, 2012, in the City and County of Honolulu, State of Hawai'i, SCOTT A. ABREGANO did intentionally or knowingly violate the Order for Protection issued in FC-DA No. 12-1-6011 on the 17th day of January, 2012 by the Honorable Lanson K. Kupau, Judge of the Family Court of the First Circuit, State of Hawai'i, pursuant to Chapter 586 of the Hawai'i Revised Statutes, thereby committing the offense of Violation of an Order for Protection in violation of Section 586-5.5 and Section 586-11(a) of the Hawai'i Revised Statutes.
Abregano pleaded not guilty and requested a jury trial. The State calculated that the deadline for Abregano's trial under Hawai'i Rules of Penal Procedure (HRPP) Rule 48 was February 26, 2013, so the court set Abregano's trial for January 14, 2013. On January 14, 2013 the parties appeared in family court before Judge Jeanette Castagnetti. The State and Abregano both stated that they were ready for trial, and the court scheduled the trial to commence the next day. The parties appeared before the family court on January 15, 2013 and declared they were ready for trial. The court continued the trial until February 11, 2013 " due to court congestion." Neither party objected to this continuance.
On February 11, 2013, the parties appeared before the family court and both declared they were ready for trial. However, Judge Castagnetti continued the trial until March 11, due to her illness:
As I informed the attorneys earlier during another matter, notwithstanding that both sides are declaring ready for trial, having gone through the part of this morning's calendar call, uh, the court feels that it's not going to be able to proceed to trial this week. It's apparent to me that I'm coming down with a flu bug, and so I'm going to continue this matter due to the court's unavailability for trial this week.
So that means for you, Mr. Abregano, your next calendar call setting will be on March 11th at 8:30.
Although Abregano did not formally object to this continuance, the following exchange occurred between Abregano's counsel and the court:
[DEFENSE COUNSEL]: And, Your Honor, it is my understanding that you won't make any finding with respect to Rule 48; right?
THE COURT: Correct.
[DEFENSE COUNSEL]: So any objection would not be relevant at this point?
THE COURT: Well, you can -- I mean we'll note that both sides are ready. And then, um, obviously there will be no waiver of Rule 48 speedy trial by defense given the circumstances, so we can note that as well.
[DEFENSE COUNSEL]: Thank you, Your Honor.
On March 5, 2013, Abregano filed a " Motion to Dismiss for Violation of HRPP Rule 48, and Speedy Trial." Abregano argued that the Rule 48 six-month period began running on August 30, 2012, the date of his arrest, that six months had already elapsed by March 5, 2013, and that the reasons for continuance beyond the six-month period did not fall into any of the excluded periods provided by Rule 48. Abregano argued that for periods of delay caused by court congestion to be excluded under Rule 48, there must be " exceptional circumstances," which require a showing that the congestion " deviat[ed] from the norm." Abregano argued that such congestion was not present here.
Abregano also argued that the illness of the judge does not constitute " exceptional circumstances," because it is not a " unique, [136 Hawai'i 493] nonrecurring event." Abregano also contended that delay due to a judge's illness is not " good cause" because it does not amount to a " substantial reason which affords a legal excuse." According to Abregano, his charges should have been dismissed with prejudice.
On March 11, 2013, the parties appeared in the family court. The court heard the parties' arguments on Abregano's motion to dismiss, and denied the motion, ruling that the continuance due to Judge Castagnetti's illness extended the Rule 48 trial deadline by one month to March 26, 2013:
[DEFENSE COUNSEL]: In this case, Your Honor, this matter came before the court on February 11, 2013. At that time the court continued all the cases because the court was ill. She said she was ill and unavailable. Um, the defense believed that that is not a reason that Rule 48 should be told [sic]. It doesn't fall within any of the exceptions under Subsection 48, 48(b) or 48(c), Your Honor.
THE COURT: Isn't there a catch-all provision?
[DEFENSE COUNSEL]: Good cause? Is that what the court is referring to?
THE COURT: Yes.
[DEFENSE COUNSEL]: Good cause has been defined by the court as, um, I have it in my motion, substantial reason which -- substantial reason which affords a legal excuse. And under State v. Extencion [sic] the supreme court indicated there's no substantial reason for delay when in that case the State lacked facilities to test the evidence and the crucial report that was missing that was received late and there was a shortage of experienced prosecutors. In this --
THE COURT: Well, is there a case that says the judge being sick is not good cause?
[DEFENSE COUNSEL]: No, Your Honor. But as in this case we have to make a prima facie case indicating that Rule 48 - uh, that there was a triggering event where Rule 48 was violated. Then the state has to make, um -- has to negate the burden or show -- has to meet its burden of indicating that Rule 48 had not yet run. In this case it is not exceptional circumstances. It is not good cause. Merely because one judge in Circuit Court is ill when there are 21 other judges, there are replacement judges. There are, um -
THE COURT: No. I disagree with you one hundred percent. There are no replacement judges. And it's just like you guys. When your client shows up and says I want P.D. Stanley who is my attorney, we routinely continue it so that we can protect the procedural rights of the defendant to say, yes, you have an assigned public defender. The court's going to honor that.
If Judge Castagnetti was sick, she was sick. That's not something that happens every day. I think that's good cause. I'm going to rule March, 26, '13 is the Rule 48 date. So we'll pass this case. Put it in the queue.
The family court then set the trial to commence the next day, on March 12, 2013.
Abregano's jury trial commenced on March 12, 2013, with Judge Ochiai presiding. The State presented its opening statement, contending that the evidence would demonstrate that Abregano had violated the protective order by coming too close to his stepdaughter, HP, who was one of the " protected persons" under the protective order, during a softball game in which HP was playing. Abregano, in his opening statement, acknowledged that Abregano's estranged wife (KA), was the " petitioner" under the protective order, and that Abregano was prohibited from coming within 100 feet of KA or 100 yards of KA's
work or home.  Abregano also contended, [136 Hawai'i 494] however, that the evidence would show that no term of the protective order prohibited Abregano from coming within 100 feet of HP or 100 yards of HP's school or home.
KA testified to the following. On January 17, 2012, KA petitioned for an order of protection in Family Court before Judge Kupau. The protective order designated KA as the petitioner and Abregano as the respondent. HP was also " covered" under the order. When the protective order was issued, Mr. William, a staff member of Adult Client Services, read the order aloud to Abregano. Abregano stated that he did not understand the order, so Judge Kupau read the order aloud, and Abregano then stated that he understood and signed the proof of service.
When, during Abregano's trial, the State questioned KA as to what Judge Kupau had told HP and Abregano about contact between the parties under the protective order, the following exchange occurred:
[STATE]: Okay. Um, what did [Judge Kupau] -- what did he tell you and the defendant about contact between parties?
[DEFENSE COUNSEL]: Objection. Hearsay. This is hearsay.
THE COURT: Mr. Prosecutor, does the document not speak for itself? It is in evidence.
[STATE]: All right. Um, then let's specifically address Points 3 and Points 4 in Section 3B --
THE COURT: All right.
[STATE]: -- 'cause that deals with contact between parties.
[STATE]: [KA], um, Section 3 says " The respondent is prohibited from coming or passing within 100 yards of any residence or place of employment or school of the petitioner. The respondent must not violate this order even if the petitioner invites the respondent over."
[DEFENSE COUNSEL]: Objection. Is that a question?
THE COURT: I think that is part of the question. So overruled at this time.
[STATE]: Do you remember Judge Kupau going over that portion Point 3B3 with you in open court and the defendant in open court?
[STATE]: Okay. Now does 3 -- did he tell you 3B3, that section that I just read to you, does that apply -- did he tell the defendant and you that that applies only to you or to -- I mean -- or to you and the other people covered under the order of protection?
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Okay. Sustained.
[STATE]: Okay. For the contact between parties section, did Judge Kupau say that it went over -- that it covers both -- just you or you and the ...