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State v. Foo

Intermediate Court of Appeals of Hawaii

December 29, 2016

STATE OF HAWAI'I, Plaintiff-Appellant,
v.
QUINCY L.F. CHOY FOO, III, Defendant-Appellee,

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 12-1-0829)

          Brian R. Vincent Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellant

          Tyler I. Gomes Deputy Public Defender for Defendant-Appellee

          NAKAMURA, C.J., and LEONARD and GINOZA, JJ.

          OPINION

          NAKAMURA, C.J.

         The question presented in this appeal is whether a delay caused by the referral of Defendant-Appellee. Quincy L.F. Choy Foo III (Choy Foo) to the Public Defender's Office, to enable him to seek a court-appointed lawyer, constituted an excludable delay for speedy trial purposes under Hawai'i Rules of Penal Procedure (HRPP) Rule 48 (2000). At Choy Foo's initial arraignment, for which he appeared without counsel, the court referred Choy Foo to the Public Defender's Office and set a new hearing in twenty-one days for Choy Foo to demand or waive his right to a jury trial. We conclude that this twenty-one day period was an excludable delay under HRPP Rule 48. In particular, we hold that this period was excludable under 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[, ]" or alternatively, under HRPP Rule 48(c)(8), which excludes "other periods of delay for good cause." We therefore vacate the dismissal of the charge against Choy Foo by the Circuit Court of the First Circuit (Circuit Court), [1] and we remand the case for further proceedings.

         BACKGROUND

         On February 22, 2012, Plaintiff-Appellant State of Hawai'i (State) filed a complaint in the District Court of the First Circuit (District Court) that charged Choy Foo with fourth-degree sexual assault, in violation of Hawaii Revised Statutes (HRS) § 707-733(1) (a) (2014).[2] Fourth-degree sexual assault is a misdemeanor that is punishable by imprisonment for up to one year, and Choy Foo was entitled to a jury trial unless he waived that right.

         On March 15, 2012, Choy Foo appeared in the District Court for arraignment and plea. He was not represented by counsel. After advising Choy Foo of the maximum penalty for the charged offense, the District Court referred Choy Foo to the Public Defender's Office and directed him to call the office "right away for an appointment." The District Court scheduled a new hearing in three weeks for Choy Foo to demand or waive his right to a jury trial.

          On April 5, 2012, Choy Foo appeared before the District Court without counsel. Choy Foo informed the District Court that he had called the Public Defender's Office and they asked him to request a continuance. He also advised the District Court that he had an appointment to see the Public Defender's Office on May 8th. The District Court continued the hearing until a week after May 8th.

         On May 15, 2012, Choy Foo appeared before the District Court without counsel. Choy Foo informed the District Court that he had contacted the Public Defender's Office and they wanted him to ask for another continuance because "they stay in training right now[.]" Choy Foo stated that he had an appointment with the Public Defender's Office scheduled for May 22nd. The District Court continued the hearing until May 30, 2012.

         On May 30, 2012, Choy Foo appeared before the District Court, and he was represented by a Deputy Public Defender (DPD). Choy Foo, through the DPD, demanded a jury trial. As a result, the District Court committed the matter to the Circuit Court and scheduled the case for arraignment in Circuit Court on June 12, 2012.

         On June 12, 2012, Choy Foo, represented by a DPD, appeared in Circuit Court for arraignment and plea. Choy Foo waived oral reading of the charge and entered a not guilty plea. The Circuit Court set the case for trial during the week of July 23, 2012. The Circuit Court subsequently continued the trial date several times, including two continuances at Choy Foo's request and over the State's objection.

         On March 11, 2013, Choy Foo filed a "Motion to Dismiss Charges for Violation of HRPP Rule 48" (Motion to Dismiss). Choy Foo argued that based on his calculation, 189 countable days had elapsed from the date he was arrested on the charge to the filing of his motion, thereby exceeding the six-month time period prescribed by HRPP Rule 48 for commencement of the trial. The State filed an opposition to the Motion to Dismiss, arguing that only 168 countable days had elapsed and therefore the speedy trial time limits imposed by HRPP Rule 48 had not been exceeded. The only time period disputed by the parties in their respective HRPP Rule 4 8 computations was the twenty-one day period between March 15, 2012, and April 5, 2012, which Choy Foo included and the State excluded in calculating the number of countable days that had elapsed.

         The Circuit Court held a hearing on Choy Foo's Motion to Dismiss. At the hearing, the parties focused their arguments on whether the twenty-one day period between Choy Foo's initial arraignment in District Court on March 15, 2012, and his next appearance on April 5, 2012 -- a delay to enable Choy Foo to meet with the Public Defender's Office to determine if he qualified for court-appointed counsel - was excludable under HRPP Rule 48. Choy Foo asserted that in cases of full misdemeanors, where the defendant has a right to a jury trial, the District Court, as a matter of course, will continue the case for three weeks after the defendant's initial appearance for a waiver or demand of jury trial. Choy Foo also asserted that the practice in District Court was to charge this time period to the State. The State agreed that this was the District Court's practice, but argued that this practice was incorrect under the law.

         The Circuit Court granted Choy Foo's Motion to Dismiss and dismissed the charge against Choy Foo with prejudice, ruling as follows:

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 4 8 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.

         Prior to the Circuit Court's ruling, the parties had not directed their arguments at the hearing to whether any dismissal should be with or without prejudice. After the Circuit Court announced its ruling, the Circuit Court did not permit argument on this issue, [3] despite the State's apparent attempt to present argument:

[Deputy Prosecuting Attorney (DPA)]: Your Honor, may I briefly just ask -
THE COURT: No. Remember, I get the last word. That's why I gave you guys all the time in the world to argue.
[DPA]: The only thing I'm challenging is -
THE COURT: No, no. Don't challenge anything.
[DPA]: - asking you to reconsider is the -
THE COURT: No, no. A reconsideration has to be in writing. You can't do a reconsideration. See, right now you're just arguing with me. You disagree and you're arguing. If you have to do a reconsideration, you do it in writing.
[DPA]: Your Honor, may you at least hear arguments on whether -
THE COURT: No. Hearing arguments - hearing arguments is reopening the matter. I get the last word. I've ruled. If ...

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