State v. Choy Foo

• Decision Date: 16 March 2018
• Docket Number: SCWC-13-0000636
• Citation: 414 P.3d 117
• Parties: STATE of Hawai'i, Respondent/Plaintiff-Appellant, v. Quincy L.F. CHOY FOO, III, Petitioner/Defendant-Appellee.
• Court: Hawaii Supreme Court

414 P.3d 117

STATE of Hawai'i, Respondent/Plaintiff-Appellant,

v.Quincy L.F. CHOY FOO, III, Petitioner/Defendant-Appellee.

SCWC-13-0000636

Supreme Court of Hawai'i.

MARCH 16, 2018

Audrey L. Stanley, Honolulu, for petitioner

Brian R. Vincent for respondent

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal stems from the Circuit Court of the First Circuit's ("circuit court")¹ grant of Quincy L.F. Choy Foo, III'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 prejudice.²

Choy 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.

For the 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 without prejudice.

II. Background

A. District Court Proceedings

On 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 Hawai'i 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. (Proceedings concluded.)

The district court set the waiver/demand hearing for April 5, 2012.

On 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.

On May 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, 2012.

The 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.

B. Circuit Court Proceedings

Choy 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 congestion.

On 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 48.³ As such, Choy Foo requested that the circuit court dismiss his case with prejudice.

The 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).⁴ The State contended that, therefore, the Rule 48 deadline was not until March 24, 2013.

On 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 up.

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 waiver/demand.

The DPD 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 (1987), and State v. Samonte, 83 Hawai'i 507, 928 P.2d 1 (1996), the district court's practice was incorrect.

After the parties finished their arguments, the circuit court orally dismissed the case with prejudice and offered the following explanation:

[ HRPP Rule 48 ] appears to be technical. It assigns certain delays to parties regardless of whether there actually was a delay. And 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

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