STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. CHARLY HERNANE, also known as CHARLIE HERNANE, Petitioner/Defendant-Appellant.
SCWC-18-0000350
IN THE SUPREME COURT OF THE STATE OF HAWAII
DECEMBER 12, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE AYABE IN PLACE OF POLLACK, J., RECUSED
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-18-0000350; 1PC111000699)
OPINION OF
I. Introduction
We hold that the time period a defendant continues to be held in State custody in a mainland prison after his conviction is set aside and a new trial ordered is not excludable under
Based on the Rule 48 violation, however, which requires dismissal of the charge against Hernane, we vacate the Intermediate Court of Appeal s ( ICA ) January 11, 2016 judgment on appeal and the circuit court s October 22, 2013 judgment of conviction and sentence and remand this case to the circuit
II. Background
A. Factual and Procedural Background Preceding Trial on Remand4
On May 18, 2011, a grand jury charged Hernane by indictment with murder in the second degree of his mother, Teresita Dumalan Hernane ( mother ), in violation of
Hernane was initially convicted by a jury of murder in the second degree and sentenced to a term of life imprisonment with the possibility of parole. A judgment of conviction and sentence was entered on October 22, 2013. Hernane appealed from the conviction and sentence to the ICA alleging prosecutorial misconduct. On January 11, 2016, the ICA entered a judgment on appeal pursuant to its November 30, 2015 memorandum opinion, State v. Hernane, CAAP-13-0005212 (App. Nov. 30, 2015) (mem.), vacating the circuit court s October 22, 2013 judgment of conviction and remanding Hernane s case for a new trial. The State filed an application for writ of certiorari to this court.
Meanwhile, on February 9, 2016, the circuit court held a hearing to set the retrial week. Defense counsel explained that Hernane was not present because he was in prison in Arizona. 7 The State, through a deputy prosecuting attorney, informed the circuit court that it had filed an application for writ of certiorari, and the circuit court stayed the proceedings.
On March 23, 2016, this court rejected certiorari. This triggered the 180-day time period pursuant to
B. Remanded Circuit Court Proceedings
On April 12, 2016, another status conference was held, at which the parties again discussed that Hernane was being held in Arizona. On April 13, 2016, the deputy prosecuting attorney instructed paralegals at the Honolulu Prosecutor s Office to contact the
On May 3, 2016, the circuit court held another hearing to set Hernane s retrial. Hernane was not present; defense counsel stated that Hernane had not been transported from prison by airplane. The State represented that it had made a request to the Department of Public Safety ( DPS ) to have Hernane returned to Hawaii, and had been informed that he would be returned in July of 2016, but that the exact date was not disclosed for security reasons.
The State asked the circuit court to take under advisement any ruling on Rule 48 and stated that March 23, 2016 was conceptually the restart date for purposes of Rule 48. Defense counsel requested that trial not be set unless Hernane was present. Over defense counsel s objection, the circuit court set a trial date for August 1, 2016 and scheduled a trial call for July 19, 2016. The circuit court stated it would take under advisement the determination of Rule 48 excludability, if any, until such time as the issue is raised.
On July 13, 2016, based on the State s request, the trial call was continued to July 22, 2016.
Hernane was returned to Hawaii on July 19, 2016. One hundred eighteen days had passed since certiorari had been rejected on March 23, 2016.
On July 22, 2016, Hernane s counsel made an oral motion to continue, and trial was continued to the week of October 31, 2016. Thereafter, Hernane filed multiple continuances as well as motions regarding his fitness to proceed; he was not determined fit to proceed until December 7, 2017. Hernane s retrial was then scheduled for February 5, 2018.
On February 5, 2018, the day of his scheduled jury trial, Hernane filed a motion to dismiss indictment for violation of
The State opposed the Rule 48 Motion and asserted that because Hernane was being held pre-trial in Arizona, Hernane must be deemed unavailable from May 3, 2016 to July 22, 2016.
A hearing on the Rule 48 Motion was held that day, February 5, 2018. The circuit court took judicial notice of the records and files in the case to calculate the time elapsed between the date certiorari was rejected and the date Hernane s trial commenced, which would be later that same day, February 5, 2018. The State entered four exhibits into evidence, which contained a series of emails between the deputy prosecuting attorney and paralegals at the Honolulu prosecutor s officer concerning Hernane s return to Hawaiʻi.
The State called one witness, a paralegal at the Honolulu prosecutor s office, to testify about the procedure used by the prosecutor s office to return a defendant housed in a mainland facility to Hawaii for trial. The paralegal explained,
[w]hen we re informed that the defendant is being housed in a mainland facility, we contact the Department of Public Safety. Our contact is Howard Komori [ Komori ]. He handles -- he s the administrator for inmates
who are housed in a mainland facility. Q. [Deputy Prosecuting Attorney] And could you explain for us in greater detail what the request is that you submit to Mr. Komori?
A. [Paralegal] It s -- we usually either call or email him with our request for a specific inmate to be brought back to the state, and we let him know that he needs to be brought back for trial[.]
The paralegal further stated that on April 13, 2016, she received an email from the deputy prosecuting attorney requesting that she contact DPS to have Hernane brought back to the state for trial. The paralegal further explained that thereafter she contacted Komori and was informed that Hernane would be brought back in July of 2016. The paralegal also testified that on April 26, 2016, she sent another email updating the deputy prosecuting attorney that Hernane was still scheduled to return to Hawaiʻi in July 2016. She testified that DPS decides when a defendant is brought back, and to her knowledge, the prosecutor s office does not have any say as to when someone is brought back.
The paralegal also testified that, on June 22, 2016, the deputy prosecuting attorney requested that she follow-up with Komori regarding Hernane s return, which the paralegal did, and she was informed that he would be brought back on July 19, 2016. She testified that, knowing that a trial call was scheduled for July 19, 2016, she called the court to move the trial call to after the 19th and was given two dates, the 21st or 22nd of July. The paralegal contacted Hernane s counsel after obtaining the new July 22nd date. On cross-examination, she testified that it was her understanding that Hernane was being brought back on the first regularly scheduled available flight back to Hawaii.
Hernane then argued that he was not unavailable for purposes of
The State argued that it had exercised due diligence in securing Hernane s presence for trial, and thus, Hernane s Rule 48 Motion should be denied pursuant to State v. Jackson, 8 Haw. App. 624, 817 P.2d 130 (1991). The State argued it was only on April 12th, 2016, when I [the deputy prosecuting attorney] became aware at an informal status conference that Hernane was being held in Arizona.10 The State further maintained that the Honolulu prosecutor s office does not tell [DPS] what to do and when to do it and their office had timely submitted the request and then had to simply wait[] for [DPS s] response.
After the parties completed their arguments, the circuit court noted that the disputed time period was March 23, 2016 up through and including the July 22, 2016, a total of 121 days, during the vast majority of which Hernane was held in Arizona until he was returned on July 19, 2016 or thereabouts. Hernane asserted a violation of
In its first alternative, the circuit court ruled that the 118 days between the rejection of certiorari on March 23, 2016 until Hernane s return to Hawaiʻi on July 19, 2016, were excludable. In its second alternative, the circuit court ruled that the ninety-eight days from April 12, 2016, when the deputy prosecuting attorney allegedly became aware that Hernane was not present in the State,11 until Hernane s return on July 19, 2016, were excludable. To reach this finding, the circuit court relied on Jackson, and found (1) that the State, upon becoming informed of [Hernane s
On February 27, 2018, the court entered its findings of fact, conclusions of law, and order denying Hernane s Rule 48 Motion consistent with its oral rulings.
Hernane s jury trial commenced on February 5, 2018 after the Rule 48 hearing, and it lasted six days. On February 15, 2018, the jury returned a verdict finding Hernane guilty of the lesser-included offense of manslaughter in violation of
C. Appeal to the ICA
Hernane timely appealed the circuit court s judgment of conviction and sentence to the ICA, basically repeating the arguments he made below and challenging the circuit court s denial of his Rule 48 Motion. In its April 11, 2019 summary disposition order, the ICA affirmed the circuit court s judgment of conviction and sentence. State v. Hernane, CAAP-18-0000350, at 6, 11 (App. April 11, 2019) (SDO).
With respect to the Rule 48 issue, relying on its holding in Jackson, the ICA noted that the HRPP does not define unavailability, but that the ICA had previously adopted the definition of unavailability from the
The ICA stated that the main issue was whether the State used due diligence to procure Hernane s return to Honolulu for retrial. Hernane, SDO at 3-4. The ICA determined that based on the paralegal s testimony and the State s exhibits, the circuit court had not erred and had correctly concluded that Hernane s right to trial commencement under
D. Application for Writ of Certiorari
We address Hernane s first question on certiorari, whether the ICA gravely erred in denying his motion to dismiss the indictment pursuant to
III. Standard of Review of HRPP Rule 48 Motion to Dismiss
The appellate court reviews a trial court s decision on a
A trial court s findings of fact (FOFs) in deciding an
HRPP 48(b) motion to dismiss are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed. However, whether those facts fall withinHRPP 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 Hawaiʻi 507, 514, 928 P.2d 1, 8 (1996) (quoting State v. Hutch, 75 Haw. 307, 328-29, 861 P.2d 11, 22 (1993)).
Choy Foo, 142 Hawaiʻi at 72, 414 P.3d at 124.
IV. The time Hernane spent in Arizona in Hawai̒i State custody was not excludable under HRPP Rule 48(c)(5)
Hernane asserts the ICA erred in affirming the circuit court s denial of his Rule 48 motion by holding that Hernane was unavailable for purposes of
The purpose of Rule 48 is to ensure an accused a speedy trial, which is separate and distinct from his constitutional protection to a speedy trial. Estencion, 63 Haw. at 268, 625 P.2d at 1043. Speedy trial rules are intended to prevent unreasonable delay in the determination of criminal actions that subvert[] the public good and disgrace[] the administration of justice[.] Estencion, 63 Haw. at 268, 625 P.2d at 1043 (citing People v. Solomon, 70 N.E.2d 404 (1946)). To accomplish this end,
At issue in this case is one of those categories, which excludes periods that delay the commencement of trial and are caused by the absence or unavailability of the defendant.
Based on the authority below, we hold that a defendant is not unavailable for purposes of
In State v. Willoughby, 83 Hawaiʻi 496, 927 P.2d 1379 (App. 1996), the ICA affirmed a trial court ruling that the 1,089 days between an indictment and when the defendant was served with a warrant for his arrest on the mainland was excludable under
In Jackson, which the circuit court and the ICA relied upon in this case, although the defendant was imprisoned in Honolulu, the defendant was in federal custody. See 8 Haw. App. at 628-29, 817 P.2d at 135. The ICA adopted the following definition of unavailability from the
Relying on Jackson, the State and circuit court ruled that the State had exercised due diligence and made good faith efforts to return Defendant to Hawaiʻi for retrial[,] and that, therefore, the time Hernane remained in Arizona was excludable under
Through various cases similar to Willoughby and Jackson, other state courts have addressed whether a defendant who becomes absent due to relocation to another state or incarceration by another state or federal government is unavailable during the time period it takes to obtain the presence the defendant. For example, the Supreme Court of Pennsylvania has held that where a defendant incarcerated in an out-of-state jail initially refused extradition, he was unavailable until he was returned to that state. Commonwealth v. Stange, 428 A.2d 226 (Pa. 1981); see also People v. Garner, 74 Cal.Rptr. 298, 304 (Cal. Ct. App. 1990) (holding a defendant who resisted extradition was unavailable). That court also ruled that a defendant who had voluntarily absented himself from that state was unavailable until after he was returned to the state after arrest in an extradition waiver. Commonwealth v. Polsky, 426 A.2d 610 (Pa. 1981); see also State v. Hattori, 573 P.2d 829 (Ct. App. Wash. 1978) (holding that a defendant was unavailable until his arrest in California and return to Washington). But here, Jackson is inapplicable because Hernane was not held by another jurisdiction, but was in Hawai̒i State custody. Accordingly, no due diligence inquiry is necessary because the State had the sole responsibility for transporting the defendant.
There do not appear to be any reported cases regarding whether or not a defendant held in state custody in that state s prison located in another state can be deemed unavailable in the custodial state. Florida courts have held, however, that for purposes of Florida s speedy trial rule, if the charging county has knowledge that the defendant is incarcerated in another county, the defendant is not considered unavailable for trial in the charging county. Mainwaring, 11 So. 3d at 989; see also State v. Steele, 624 N.W.2d 1, 8 (Neb. 2001) ( The primary burden of bringing an accused person to trial within the time provided by law is upon the State. ). The Colorado Court of Appeals held that defendants were not unavailable for purposes of that state s Speedy Trial Act for the time they were in California based on a post-arraignment extradition or a waiver of extradition. People v. Wimer, 604 P.2d 1183 (Colo. App. 1979). In addition, the Supreme Court of Illinois held that where the state had voluntarily relinquished control over a defendant to federal authorities, the delay was attributable to the state. People v. Swartz, 171 N.E.2d 784 (Ill. 1961).
The absence of reported cases similar to Hernane s situation is logical. As indicated by the cases above, it is when a defendant has voluntarily absented himself from a state or when a state does not know about or have control over the custody of a defendant in another state that a time period is excludable for speedy trial purposes for being caused by the unavailability of the defendant. As pointed out in the American Bar Association Standards for Criminal Justice Relating to Speedy Trial: [a] defendant should be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained or he resists being returned to the state for trial. AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE RELATING TO SPEEDY TRIAL, Standard 12-2.3(e) (Supp. 1986) (quoted in Jackson, 8 Haw. App. at 630, 817 P.2d at 134); see also People v. Moye, 635 P.2d 194, 196 (Colo. 1981) (citing ABA Standard 12-2.3(e)).
Under the ABA Standard, Hernane clearly was not unavailable. His whereabouts were known, but the requirement that his presence for trial cannot be obtained was simply non existent. Hernane was in custody of the State of Hawaiʻi Department of Public Safety. The State knew where he was and had control over his location;14 Hernane did not voluntarily absent himself to Arizona. In addition, he did not resist being returned to the state for trial. It was the State that failed to return him for 118 days although his conviction had been vacated; he was therefore a pre-trial detainee being held in a prison, not a jail. As a pre-trial detainee, he should have promptly been returned to Hawaiʻi.
In addition, the circuit court and ICA in this case relied on Jackson as legal authority allowing exclusion of the time Hernane was held in Arizona from the Rule 48 calculation. In Jackson, after citing the ABA Standard quoted above, the ICA adopted the
Yet, the
[D]elay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization [are excluded], except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant s arrival at the destination shall be presumed to be unreasonable[.]
V. Conclusion
For all of these reasons, the time Hernane spent in Arizona in State custody was not excludable under
Jon K. Ikenaga /s/ Mark E. Recktenwald
for petitioner /s/ Paula A. Nakayama
Stephen K. Tsushima /s/ Sabrina S. McKenna
for respondent /s/ Michael D. Wilson
/s/ Bert I. Ayabe
Notes
Estencion, 63 Haw. at 269, 625 P.2d at 1044. See also State v. Choy Foo, 142 Hawaiʻi 65, 414 P.3d 117 (2018).In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and the circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
Except as provided in section 706-657, pertaining to enhanced sentence for second degree murder, persons convicted of second degree murder and attempted second degree murder shall be sentenced to life imprisonment with possibility of parole. The minimum length of imprisonment shall be determined by the Hawai[ʻ]i paroling authority; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.
If the court imposes a sentence of life imprisonment without possibility of parole pursuant to section 706-657, as part of that sentence, the court shall order the director of public safety and the Hawai[]i paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.