Defendant-Appellant Jason Kim (Kim) appeals the Judgment filed on March 15, 2004 in the Circuit Court of the Third Circuit (circuit court).
On May 9, 2002, a grand jury indicted Kim in Cr. No. 02-1-0149 for Prohibited Acts Related to Drug Paraphernalia, in violation of Hawaii Revised Statutes (HRS) § 329-43.5(a) (1993).
On April 9, 2003, Kim was re-indicted in Cr. No. 03-1-0092 for the same offense.
On appeal, Kim argues that the circuit court erred in failing to grаnt with prejudice his “Motion to Dismiss For Violation of Rule 48, HRPP” (Motion to Dismiss).
I.
Hawai'i Rules of Penal Procedure Rule 48 provides, in relevant part:
Rule 48. DISMISSAL.
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(b) By court. Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months:
(1) from the date of arrest if bail is set or from the filing of the charge, whichever is soоner[.]
In the Declaration of Counsel attached to the Motion to Dismiss, Kim’s counsel stated that the State had made only one attempt to contact Kim regarding the warrant for Kim’s arrest and that was a telephone attempt on or about June 24, 2002. Kim’s counsel further stated that “[f]or the next six and a half months no efforts were made to serve [Kim] until he was served on or about January 8, 2003.”
In its memorandum in opposition to the Motion to Dismiss, the State conceded that it had violated HRPP Rule 48:
1. Length of Delay
The Defendant became “accused” on May 8, 2002, when he was indicted by the Grand Jury. Trial is set for April 14, 2003. The time from indictment to the scheduled trial is 341 days. The State does not dispute the calculations in Defendant’s Exhibits A and B. The days over the Rule 48 period is 65 days. This “presumptively prejudicial” delay, while not extreme, does require further inquiry.
2. Reason for Delay
The warrant for the Defendant’s arrest went unserved from May 8, 2002 to Aрril 14, 2003[sic]. Up until one attempt [sic] was made by the State to effectuate service. The State cannot offer any reason for this failure to have Defendant served. However, this should not be seen as a deliberate attempt by the State to violate Defendant’s rights or prejudice him.
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B. Hawai'i Rules of Penal Procedure Rule k8
Hawai'i Rules of Penal Procedure, Rule 48 requires the Court to dismiss criminal charges if the trial is not commenced within six months from the date of the filing of the charge. In this case, the Grand Jury returned the indictment on May 8, 2002. In order to comply with Rule 48, the State was required to have been [sic] brought the Defendant to trial before November 4, 2002. However, Defendant was served on January 8, 2003. The Rule 48 time has run. Therefore, and [sic] the only questionfor the Court is whether the Rule 48 dismissal would be with or without prejudice.
In its Order Granting, In Part, Defendant’s Motion to Dismiss for Violation of Rule 48, HRPP, the circuit court made the follоwing Conclusions of Law:
1. There is a violation of HRPP, Rule 48;
2. The offense charged is possession of drug paraphernalia, which is a class “C” felony. This is a serious offense, although not as serious as other class “C” offenses;
3. There is no justification for the violation of the Rule 48 period;
4. The impact of reprosecution on the administration of justice does not warrant dismissal with prejudice, considering that the Rule 48 period was exceeded by 65 days, which is minimal, аnd Defendant has not shown any particular prejudice caused by the delay[J
Kim argues that Conclusions of Law numbers 2 and 4 are in error.
II.
“A trial court’s ruling on a motion to dismiss an indictment is reviewed for an abuse of discretion.” State v. Mendonca,
III.
Kim argues that the circuit court erred in failing to grant his Motion to Dismiss with prejudice rather than without prejudice. In support of this argument, Kim cites three factors the circuit court must consider when determining whether to grant a motion to dismiss for violation of HRPP Rule 48, as articulated by the Hawai'i Supreme Court in State v. Estencion,
A. The Seriousness of the Offense.
Kim argues that the charge of Prohibited Acts Related to Drug Paraphernalia, a class C felony, is not a serious offense in this case because there were no exacerbating circumstances, such as violence, in the underlying criminal matter. In support of this argument, Kim cites to United States v. Caparella,
In Caparella, the defendant had been charged with mail theft and opening mail without authority. Id. at 977. The government moved ex parte to dismiss the complaint against Caparella because it had failed to timely file an indictment/ information against Caparella. Id. The court granted the government’s motion. Id. The government re-filed one of the chargеs, and Caparella moved to dismiss. Id. During the hearing on the motion, the magistrate stated that when he granted the dismissal, he had not considered the factors under 18 U.S.C. § 3162(a)(1). Caparella,
In United States v. Simmons,
[E]ven though a relatively small quantity of heroin was involved here, we consider the narcotics offense to which Simmons pled guilty—possession of six glassine envelopes with intent to distribute—“serious” within the meaning of the statute. Heroin is a “hard” drug; by imposing a sentence of five years, followed by three years special parole, the district court certainly indicated that it viewed appellant’s crime as a serious one. Because the court in Capar-ella found that the offense involved there was not serious, that case is distinguishable in this important respect. We conclude that the first factor weighs heavily in favor of dismissal without prejudice.
Simmons,
The same year Simmons was decided, the United States District Court for the District of Vermont in United States v. Buxton,
The United States District Court for the District of Massachusetts distinguished the crime involved in United States v. Medugno,
[u]nlike the defendants in Caparella and [United States v.] Smith, [225 F.Supp.2d 1305 (D.Utah 2002) ], Medugno is not charged with a crime against property. He is charged with obstructing justice, a crime that strikes at the very heart of our justice system. Justice cannot be replaced or repaid like a piece of stolen property. For these reasons, therefore, the first factor weighs in favor of dismissаl without prejudice.
Medugno,
Even where the crime was similar to the one committed by Caparella, as in United States v. Morety,
[t]he Court of Appeals has observed that theft from the mails, 18 U.S.C. § 1709, was viewed by Congress аs “the lowest order of felony.” United States v. Caparella,716 F.2d 976 , 980 (2d Cir.1983). The undersigned nevertheless views, and has always viewed, possession of checks stolen from the mails as a most serious breach of the public trust and respectfully suggests that a felony carrying a five year jail term may not qualify as the “lowest order” of felony.
Morety,
Clearly, despite the Second Circuit’s requirement in Caparella that absent exacerbating circumstances such as violence a crime is not to be considered serious, many courts have declined to apply that standard.
B. The Facts and Circumstances of the Case Leading to the Dismissal.
Kim argues that given that the State in the instant case did not provide a justification for its delay in serving him, the circuit court should have dismissed with prejudice. He notes that the sole cause of the delay was the State’s negligence and inaction. The circuit court agreed that the State proffered no justification for violating the Rule 48 period.
Kim cites United States v. Russo,
However, in the instant case the first and third factors are not “neutral.” The parties do not agree that the offense was “serious.” The circuit court did not determine that the parties’ interests balanced out each other; it found, ostensibly, that the State’s interest outweighed Kim’s. Despite the fact that the State’s delay was unjustified, it does not in and of itself tip the balance toward dismissal with prejudiсe.
C. The Impact of a Reprosecution on the Administration of HRPP Rule 48 and on the Administration of Justice.
The United States Court of Appeals for the Eleventh Circuit in United States v. Williams,
In applying the third statutory factor, there is almost always some tension between the administration of the Act and the administration of justice. Indeed, defendants can always argue that the minimal sanction of dismissal without prеjudice takes the teeth out of the Act’s requirements. In response, the government can always argue that reprosecution furthers the public’s interest in bringing criminals to trial. Even though these two standard arguments neutralize each other, this third factor is not always neutral. The third factor not only allows courts to review the seriousness of the criminal charges and the reason for the delayed indictment but also provides authority for considering such aggravating and mitigating factors as the length of the delay and the prejudice to the defendant.
Williams,
In Caparella, the magistrate dismissed Ca-parella’s case without prejudice, believing that “the administration of the Act would not be impaired by reprosecution since there was no serious delay” in the reprosecution and the defendant was “brought to trial within the total number of days contemplated under the Act.” Caparella,
In Russo, because there was a delay from the time of Russo’s indictment for several federal drug offenses to the time of trial that went beyond the time proscribed by the Act, the lower court dismissed the case without prejudice. Russo,
In United States v. Vasquez-Escobar,
Conversely, in Williams, the Eleventh Circuit, in applying the third statutory factor, concluded that “the sixty-eight-day [sic] violation of the Speedy Trial Act was not so substantial per se as to require dismissing the charges in the complaint with prejudice.” Williams,
Given that the sixty-five day delay in serving Kim in the instant case is less than the sixty-eight day delay in Williams, and since the circuit court did not err when it determined the charge against Kim to be “serious,” the circuit court did not clearly abuse its discretion in determining that the delay was minimal.
This court found in State v. Ferraro,
In the instant case, Kim simply argues that “any delay negatively impacts the administration”
Kim further contends thе circuit court incorrectly placed the burden on the defendant to show prejudice caused by the delay. In support of this contention, he cites State v. Coyaso,
In Coyaso, the Hawai'i Supreme Court stated that a “dismissal with prejudice may be warranted without a specific finding that the defendant has been prejudiced by the delay.” Id. at 356,
In the instant case, the circuit court properly considered prejudice to Kim in its determination of whether to dismiss with or without prejudice. To say that а specific finding is not mandatory is not to say that it is insignificant. The circuit court considered particular prejudice on the part of Kim among other factors in dismissing Kim’s indictment without prejudice.
IV.
In dismissing without prejudice the charge against Kim, the circuit court considered and weighed the seriousness of the offense, the facts and circumstances that led to the dismissal, and the impact of a reprosecution on the administration of HRPP Rule 48 and on the administration of justice. The circuit court did not abuse its discretion in dismissing the charge without prejudice. Therefore, the Judgment filed on March 15, 2004 in the Circuit Court of the Third Circuit is affirmed.
Notes
. The Honorable Terence T. Yoshioka presided.
. Hawaii Revised Statutes (HRS) § 329-43.5(a) (1993) provides:
§ 329-43.5 Prohibited acts related to drug paraphernalia, (a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriаte as provided in section 706-641, fined pursuant to section 706-640.
.The April 9, 2003 Indictment read as follows:
On or about the 21st day of February, 2001, in the County and State of Hawaii, JASON KIM used and/or possessed with intent to use, drug paraphernalia, a pipe and/or plastic bags, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, and/or otherwise introduce into the human body a controlled substance, in violation of Chapter 329 of the Hawaii Revised Statutes, thereby committing the offense of Prohibited Acts Related to Drug Paraphernalia, in violation of Section 329-43.5(a), Hawaii Revised Statutes[.]
. Hawai'i Rules of Penal Procedure (HRPP) Rule 11(a)(2) provides:
Rule 11. PLEAS.
(a) Alternatives.
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(2) CONDITIONAL PLEAS. With the approval of the court and the consent of the State, á defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to seek review of the adverse determination of any specific pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
. This court has jurisdiction pursuant to State v. Pulse,
. United States v. Jervey,
. In his opening brief, Kim also erroneously states that in United States v. Russo,
. United States v. Taylor,