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State v. Visintin

Supreme Court of Hawaii

August 31, 2018

STATE OF HAWAI'I, Petitioner and Respondent/Plaintiff-Appellee,
SHAWN D. VISINTIN, Respondent and Petitioner/Defendant-Appellant.


          Tracy Murakami for petitioner/respondent.

          Daniel G. Hempey for respondent/petitioner.



          POLLACK, J.

         A protracted pretrial period can hinder the accurate determination of a case as evidence dissipates, as well as cause anxiety and hardship to a defendant awaiting the disposition of criminal charges. Thus, the Hawai'i and U.S. Constitutions and our court rules grant an accused the right to a prompt adjudication, and a case generally must be dismissed if a defendant is held to answer for a period exceeding a prescribed time limit or an unreasonable amount of time without a trial ensuing.

         In this case, the State was not prepared to proceed with a prosecution on the date of the defendant's initial court appearance. In a process referred to as a calendar call, the court read aloud a list of defendants against whom no charges had been filed before stating orally that the defendants were free to go and that any bail or bond they posted would be discharged. Seven months later, the defendant was indicted for the same crime for which he had been arrested, and he moved to dismiss the case based on the State's delay in bringing the prosecution.

         We now hold that, because no written order or notice of the ruling was filed effectively discharging the defendant's bail, he remained held to answer for the alleged crime underlying his arrest and the case must be dismissed under our court rules for this reason. We further hold that the Intermediate Court of Appeals erred by considering the legal merits of the defendant's constitutional speedy trial challenge when the trial court failed to make the factual findings necessary for review. Accordingly, we remand the case for dismissal with or without prejudice as the trial court determines appropriate under our court rules. We also set forth applicable legal principles for the trial court's evaluation of the defendant's constitutional speedy trial challenge if the dismissal under our court rules is determined to be without prejudice.

         I. BACKGROUND

         A. Events on August 7, 2012 and Visintin's Arrest

         On August 7, 2012, around 2:40 a.m., Officer Brian Silva of the Kauai Police Department was on uniform patrol when he saw a person running across the street to a facility that appeared to be closed. Upon turning on his cruise lights, Officer Silva saw the figure of a person in the bushes of the facility's driveway. Officer Silva exited his vehicle, ordered the person to come out of the bushes, and asked the person for identification. Officer Silva observed that the person was breathing heavily and sweating profusely and that there was an odor of alcohol emitting from the person. The person, who was identified as Shawn Visintin, provided Officer Silva with his driver's license from the State of Montana.

         While Visintin was removing his license from his wallet, Officer Silva saw a concealed weapons permit in the wallet. Suspecting that Visintin may be armed, Officer Silva asked him if he was carrying any weapons. After Visintin responded that he had a handgun, Officer Silva conducted a pat-down search of Visintin and discovered a semi-automatic .45 caliber handgun in the back part of the waistband of Visintin's pants. Officer Silva then recovered the handgun, which was unloaded, and placed Visintin under arrest for place to keep pistol or revolver in violation of Hawaii Revised Statutes (HRS) § 134-25.[1]

         B. Events Following Visintin's Arrest

         Visintin's bail was set at $10, 000. Upon posting bail on August 7, 2012, Visintin was given a "Bail/Bond Receipt, Acknowledgment, and Notice to Appear" form, indicating that he was to appear in district court on September 5, 2012.[2]

         In an email to the prosecutor dated August 31, 2012, counsel for Visintin inquired whether Visintin's matter would proceed as scheduled on September 5 or if the State of Hawai'i intended to dismiss the charge without prejudice. Counsel provided Visintin's full name and the "BBRA NO."[3] associated with the case. The prosecutor responded that her office had not received the police reports and thus no complaint had been filed.

         A "calendar call" was conducted in the District Court of the Fifth Circuit (district court) on September 5, 2012.[4]During this proceeding, the district court called the names of those persons against whom no complaint had been filed, including Visintin, who was not present.[5] The court announced that these persons were free to go and that any cash bail they posted would be refunded or their bonds would be discharged. However, the record does not contain a filed document or calendar notation indicating that Visintin's bond was discharged, that the case was dismissed, or that the case was addressed by some other disposition. Nor does the record show that Visintin received notice of the outcome of the September 5, 2012 proceeding.

         More than seven months later, on April 25, 2013, a grand jury indicted Visintin on one count of place to keep pistol or revolver in violation of HRS § 134-25 and one count of unregistered firearm in violation of HRS §§ 134-3(a)[6] and 134- 17(b).[7] The indictment was based on the same conduct for which Visintin had been arrested almost nine months earlier. On April 29, 2013, the Circuit Court of the Fifth Circuit (circuit court) issued a warrant for Visintin's arrest and set bail at $10, 000.[8]

         In an email dated April 30, 2013, the prosecutor informed Visintin's counsel of the indictment and the outstanding bench warrant for the arrest of Visintin, who had returned to Montana following his release from custody. The prosecutor suggested that Visintin fly back to Kaua'i rather than be arrested and extradited. Defense counsel replied by email and inquired whether Visintin's case could be resolved at arraignment. In a response dated May 1, 2013, the prosecutor stated that she would provide an answer at a later time as she was getting ready for a trial scheduled the following week. Three weeks later, in an email dated May 24, 2013, the prosecutor asked defense counsel whether Visintin was planning on returning to Kaua'i to turn himself in, adding that she would not discuss a plea offer until Visintin was arrested on the warrant.

         On May 31, 2013, the State of Montana filed a "Fugitive from Justice Complaint" (fugitive complaint) in response to the warrant issued by the circuit court. In the fugitive complaint, a Montana County Attorney stated that Visintin was wanted in Hawai'i, Fifth Circuit, for the two indicted offenses; that a warrant had been issued for Visintin's arrest; that Visintin "ha[d] fled from justice or ha[d] been convicted of crimes in that state and ha[d] escaped from confinement or ha[d] broken the terms of his bail, probation or parole"; and that a request had been made by the authorities in Hawai'i for his arrest. (Capitalization omitted.) The fugitive complaint requested the issuance of a warrant from the Montana court commanding law enforcement officers "to apprehend the said fugitive" and bring him to court.

         The next day, on June 1, 2013, Visintin was arrested on the fugitive complaint, and he proceeded to post bail in Montana. Three days later, the Montana County Attorney filed a motion to dismiss the fugitive complaint on the basis that "it [was] not in the interest of justice to pursue." The following day, the Montana court granted the motion, dismissed the case, and exonerated any bond posted by Visintin.

Visintin subsequently returned to Kaua'i voluntarily and on August 1, 2013, filed a motion in the circuit court to recall the bench warrant issued after his indictment. The court denied Visintin's request to be released on recognizance but reduced the bail amount from $10, 000 to $100.[9] Visintin posted bail on August 6, 2013, and he was arraigned the same day.

         C. Motion to Dismiss

         1. Visintin's Motion and the State's Opposition

         On August 20, 2013, Visintin filed a "Motion to Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due Process" (motion to dismiss) in the circuit court. In his motion, Visintin argued that the time limit set forth in Rule 48 of the Hawai'i Rules of Penal Procedure (HRPP) [10] was exceeded based on the plain language of the rule because more than nine months had passed from the setting of bail to his arraignment.[11]Visintin submitted that HRPP Rule 48 does not support the conclusion that the "unsetting of bail" triggers Rule 48 tolling. Rather, he maintained, tolling requires that the State demonstrate good cause for the delay.

         Visintin contended that the delay, which doubled the period allowed under the rule, was entirely attributable to the State and that the State had provided no good cause for the delay. Thus, Visintin concluded that HRPP Rule 48 supported the dismissal of his case with prejudice.

         Visintin also contended that his constitutional right to speedy trial, which attached at his initial arrest, was violated. He maintained that the State was entirely responsible for the delay and had provided no valid reason for it, that the delay was presumptively prejudicial, that he suffered tangible losses to his employment, that "memories have faded and even police witnesses who 'searched the area for criminal activity with negative results' have apparently retired," and that he had always demanded a speedy trial. Visintin also submitted that the calendar call procedure does not provide a mechanism by which a defendant could assert the right to speedy trial. Thus, Visintin argued, the violation of his constitutional right to speedy trial supported the dismissal of his case with prejudice.

         Lastly, Visintin asserted that the State had thwarted the purpose of bail, which is to ensure that the defendant is present at trial while also affording the defendant freedom from harassment and confinement. Although he posted bail, Visintin contended, he was arrested two more times and a fugitive warrant was wrongly obtained in another state based on inaccurate information. Visintin concluded that requiring the posting of bail multiple times for the same matter violates the Eighth Amendment to the U.S. Constitution and article I, section 12 of the Hawai'i Constitution.

         Opposing Visintin's motion to dismiss, the State described the "unique" procedure employed in the district court of the Fifth Circuit when the State does not file a charging document by an established deadline.[12] The State contended that it did not charge Visintin as it lacked adequate information to do so because the police reports were not forwarded to the prosecutor's office until the date when Visintin's bond was discharged. Since no case numbers are created unless a charging document has been filed, the State asserted, there is no readily available mechanism to file a written dismissal of a case. Therefore, the State submitted, the effect of the call list is a "de facto dismissal of the cases," and the period from the day after Visintin's bond was discharged until he was indicted was excluded from the time limit calculation under HRPP Rule 48(c)(6). Alternatively, the State maintained that this period was excluded under HRPP Rule 48(c)(8) for good cause because the procedure employed in the Fifth Circuit prevented the State from filing a dismissal of the case before the first scheduled court date.

         As to the claim of a constitutional speedy trial violation, the State argued that Visintin did not provide sufficient facts demonstrating actual prejudice and that he had not previously asserted his right to a speedy trial. Upon balancing the four factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), the State concluded that Visintin's right to speedy trial under the federal and state constitutions was not violated.

         Finally, the State submitted that Visintin's argument as to excessive bail was without merit because the State had not charged him by the calendar call date, and his bond was discharged. Any argument by Visintin that he did not receive notice of the dismissal, the State added, was misplaced given that defense counsel knew before the calendar call proceeding that no complaint would be filed.

         2. Hearing on the Motion to Dismiss

         At the hearing on Visintin's motion, the State requested that the court take judicial notice that, inter alia, the prosecutor assigned to Visintin's case was in trial from December 3 to December 11, 2012, and from January 7, 2013, to March 6, 2013. The court questioned whether the prosecutor's work schedule was a sound basis for the delay, stating that the court was not aware of any cases in which the prosecutor's workload justified a delay in bringing a defendant to trial.[13]

         The State then called Vera Tabe, court administrator of the Fifth Circuit, to testify about the "calendar call procedure" that the district court of the Fifth Circuit has adopted. Tabe testified that, after a defendant posts bail or bond or is released on his or her own recognizance, the district court receives an original BBRA from the Kauai Police Department, which is file-stamped and placed in a "pending file" (a lateral drawer). A criminal number is not assigned to a case until a complaint is filed by the prosecutor's office. When the State does not file a charging document by 12:00 p.m. on Monday of the week of the scheduled court date, the case is placed on the calendar call list, an internal document that notes the defendant's name, charge, and method of release.

         At the scheduled proceeding, Tabe continued, the judge reads the names on the call list and informs the defendants that no formal charges have been filed and that they will be served with documents indicating where and when to appear if there are charges filed in the future. If cash bail has been posted, there is an unfiled "order" that is provided to the fiscal office to refund the cash. If a bond was posted, "the judge just discharges the bond," meaning "there is nothing more on that bond."

         Tabe explained that no document is filed by either the court or the clerk as to any action taken regarding the bail or bond and no notation is made on the calendar call list regarding the discharge. Additionally, Tabe stated that no written notice is provided to the defendant or defense counsel when a bond is discharged and nothing is sent to the bonding company.

         To Tabe's knowledge, the State has never attempted to request a written dismissal of a case that has been placed in the pending file, although defendants commonly file motions under the bail/bond receipt number seeking permission to travel. Tabe acknowledged that, after the case is placed on the calendar call list, circuit court staff "[do not] know what actually happens to the case."[14] These unwritten "court rules" relating to the calendar call procedure, Tabe explained, are based on an agreement between the courts and the prosecutor's office.

         Following Tabe's testimony, the circuit court denied Visintin's motion to dismiss, relying solely on HRPP Rule 48. The court found that the period from the calendar call date to the date of Visintin's indictment was excluded under HRPP Rule 48(c)(6), reasoning that the purpose of the calendar call list is to notify "defendants who have been arrested . . . that their case is not active and is being dismissed." Based on this finding, the court concluded that 180 qualifying days had not passed since Visintin's arrest.[15] The court did not make any findings as to Visintin's contentions that his constitutional right to speedy trial and right against excessive bail had been violated.

         D. No Contest Plea and Circuit Court Judgment

         On September 16, 2013, Visintin pleaded no contest to the charge of place to keep pistol or revolver, which plea was made conditional on his right to appeal any pretrial rulings, and the State dismissed the unregistered firearm charge.[16] The court sentenced Visintin to five years of probation, with a condition of sixty days in jail in addition to time previously served. The circuit court entered its judgment of guilty conviction and probation sentence on January 30, 2014.[17]

         II. APPEAL

         Visintin timely appealed to the Intermediate Court of Appeals (ICA) from the circuit court's denial of the motion to dismiss and the judgment. In a published opinion, the ICA vacated the circuit court's judgment and remanded the case to the circuit court for dismissal, with or without prejudice, as determined by that court pursuant to HRPP Rule 48. State v. Visintin, 142 Hawai'i 126, 140, 414 P.3d 178, 192 (App. 2018).

         The ICA determined that, based on the plain language of HRPP Rule 48(b)(1) and the record, the calendar call procedure did not stop the Rule 48 clock from running. Id. at 138, 414 P.3d at 190. Hawai'i Supreme Court precedents have acknowledged that HRPP Rule 48 is modeled after section 12-2.2(a) of the American Bar Association Standards for Criminal Justice (2d ed. Supp. 1986), the ICA stated, under which the key inquiry in the speedy trial calculation is whether the defendant is "held to answer" for an offense through custody, bail, or recognizance. Visintin, 142 Hawai'i at 138-39, 414 P.3d at 190-91 (citing State v. White, 92 Hawai'i 192, 199, 990 P.2d 90, 97 (1999)). Reasoning that the purpose of the Rule is to "prevent long periods of detention, conditional release, personal anxiety, and public suspicion," the ICA held that a defendant's reasonable belief that he or she was being held to answer was sufficient to cause the HRPP Rule 48 clock to continue to run. Id. at 139, 414 P.3d at 191 (quoting ABA Standards for Criminal Justice, § 12-2.2(a) cmt. at 12-21 (2d ed. Supp. 1986)). Because the record did not reflect that Visintin was notified that his posted bond was discharged or that there was a change in his bail status, the ICA held, "the effect is that he reasonably believed he was still 'held to answer' for the offense asserted upon his arrest." Id.

         In addition, the ICA determined that the calendar call procedure should not be construed as a de facto dismissal of Visintin's case because it would contravene the requirements of HRPP Rule 48. Id. The plain text of HRPP Rule 48(a), [18] the ICA reasoned, indicates that a prosecutor's dismissal of a charge must include a document filed with the court. Id. at 139-40, 414 P.3d at 191-92. The ICA held that, under the calendar call procedure, there is neither a document "filed" nor a "charge" to be dismissed, and the procedure thus cannot be considered a dismissal under HRPP Rule 48(c)(6). Id. Additionally, the ICA held that the State had not made a showing of good cause under HRPP Rule 48(c)(8).[19] Id. at 140, 414 P.3d at 192.

         Accordingly, the ICA held that the circuit court was required to dismiss the charges pursuant to HRPP Rule 48 because none of the rule's exclusions were applicable. Id. The ICA limited its ruling to the circumstances in this case and stated that it did "not reach the question of the type of notice that must be given to a defendant when he or she is released or discharged from bail." Id. at 140 n.16, 414 P.3d at 192 n.16. On remand, the ICA directed that the circuit court exercise its discretion to determine whether the charges should be dismissed with or without prejudice. Id. at 140, 414 P.3d at 192.

         Turning to the constitutional speedy trial challenge, the ICA found that the circuit court had not addressed Visintin's constitutional speedy trial right and thus had implicitly rejected it when the court denied Visintin's motion to dismiss on Rule 48 grounds. Id. The ICA then considered the merits of the challenge. The ICA applied the four-part test set forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether Visintin's constitutional speedy trial right was violated. Visintin, 142 Hawai'i at 140-42, 414 P.3d at 192-94. After concluding that the length of the delay was sufficient to warrant considering the remaining factors, the ICA determined that the reasons for the delay, the timing and consistency of Visintin's demand for a speedy trial, and the amount of prejudice the delay caused Visintin all weighed in favor of the State.[20] Id. Thus, the ICA held that Visintin's constitutional right to speedy trial was not violated. Id.

         As to Visintin's final contention on appeal, the ICA pointed out that Visintin provided no authority for the assertion that a defendant whose right against excessive bail has been violated is entitled to dismissal of criminal charges. Id. at 143, 414 P.3d at 195. The ICA therefore held that "there is no independent basis for dismissing the criminal charges against Visintin based on his claim of excessive bail." Id.

         Both the State and Visintin filed applications for writs of certiorari from the ICA's decision. We accepted both applications.


A trial court's findings of fact (FOFs) in deciding an HRPP Rule 48(b) motion to dismiss are subject to the clearly erroneous standard of review. . . . However, whether those facts fall within HRPP Rule 48(b)'s exclusionary provisions is a question of law, the determination of which is freely reviewable pursuant to the "right/wrong" test.

State v. Samonte, 83 Hawai'i 507, 514, 928 P.2d 1, 8 (1996).

         This court reviews questions of constitutional law under the right/wrong standard. State v. Davis, 133 Hawai'i 102, 111, 324 P.3d 912, 921 (2014) (citing State v. Jenkins, 93 Hawai'i 87, 100, 997 P.2d 13, 26 (2000)).

         IV. ...

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