TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000636; CR.
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
appeal stems from the Circuit Court of the First
Circuit's ("circuit court") grant of Quincy
L.F. Choy Foo, Ill's ("Choy Foo") Motion to
Dismiss Charges for Violation of Hawai'i Rules of Penal
Procedure ("HRPP") Rule 48 (2000) ("motion to
dismiss"). On April 5, 2013, the circuit court granted
Choy Foo's motion to dismiss the charge with
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.
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 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
District Court Proceedings
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.
district court set the waiver/demand hearing for April 5,
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.
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,
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.
Circuit Court Proceedings
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 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
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. As such, Choy Foo requested
that the circuit court dismiss his case with prejudice.
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 48(c) (8) . The State
contended that, therefore, the Rule 48 deadline was not until
March 24, 2013.
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.
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
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
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 ...