83 Hawai'i 496, State v. Willoughby

• Decision Date: 27 November 1996
• Docket Number: No. 16524,16524
• Citation: 927 P.2d 1379
• Parties: 83 Hawai'i 496 STATE of Hawai'i, Plaintiff-Appellee, v. Craig WILLOUGHBY, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1379

927 P.2d 1379

83 Hawai'i 496

STATE of Hawai'i, Plaintiff-Appellee, v. Craig WILLOUGHBY, Defendant-Appellant.

No. 16524.

Intermediate Court of Appeals of Hawai'i.

Nov. 27, 1996.

[83 Hawai'i 497] Syllabus by the Court

1. Because the circuit court sentenced defendant to pay restitution of $9,157.02 without making the requisite findings of fact and conclusions of law that the manner of defendant's payment was reasonable and one which defendant could afford, we vacate that part of the judgment which sentenced defendant to pay restitution and remand this case to the circuit court with instructions that it reconsider its sentence according to the guidelines set forth in State v. Johnson, 68 Haw. 292, 711 P.2d 1295 (1985).

2. In all other respects, we affirm the judgment convicting defendant of second degree

[83 Hawai'i 498] reckless endangering and carrying a firearm or permit on person without permit or license. Contrary to defendant's argument, defendant's right to a speedy trial under Hawai'i Rules of Penal Procedure Rule 48, the federal and state constitutions, and the Interstate Agreement on Detainers, Hawai'i Revised Statutes chapter 834, was not violated

Cheryl Rose Brawley (Alvin T. Sasaki, on the opening brief), Honolulu, for defendant-appellant.

James H. S. Choi, Deputy Prosecuting Attorney, City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and KIRIMITSU, JJ.

WATANABE, Judge.

Defendant-Appellant Craig Willoughby (Defendant) appeals from the September 23, 1992 Judgment of the First Circuit Court (Judgment), convicting and sentencing him for the offenses of reckless endangering in the second degree, a violation of Hawai'i Revised Statutes (HRS) § 707-714 (1993), and carrying a firearm on person without permit or license, a violation of HRS § 134-9 (1993).

Defendant contends that (1) the circuit court erroneously denied his November 14, 1991 motion to dismiss the indictment against him because his right under Hawai'i Rules of Penal Procedure (HRPP) Rule 48(b) to be tried within six months from "the date of arrest or filing of the charge, whichever is sooner" was violated; (2) his speedy trial right under both the federal and state constitutions was violated because he was tried over thirty-seven months after the indictment against him was filed; and (3) his right under the Interstate Agreement on Detainers (IAD), HRS chapter 834, to be tried within one hundred eighty (180) days of his request for final disposition of his Hawai'i charges, was violated. Defendant also contends that the circuit court erred when it sentenced him to pay restitution without first ascertaining whether he could afford to pay such amount.

We find no merit to Defendant's first three contentions. However, we agree that Defendant was improperly sentenced. Accordingly, we vacate that part of the Judgment which sentenced Defendant to pay restitution and remand this case to the circuit court, with instructions that it reconsider its sentence according to the guidelines set forth in this opinion.

BACKGROUND

Within minutes of an incident on November 4, 1987 in which Charles Cox (Cox) suffered a gunshot wound to his jaw, Michael Dess and Defendant voluntarily appeared at the Kailua police station, presented police officers with a gun, and reported that they had been involved in the shooting of Cox. Both men were then arrested, charged with attempted murder, and held in police custody.

The next morning, after police detective Calvin Ohira had interviewed Defendant about the incident, Defendant was released pending further investigation. Several days later, Defendant left Hawai'i for San Diego, California, leaving no forwarding address. He later moved on to Sicklerville, New Jersey, where he remained at his parents' home for approximately two years.

On October 5, 1988, a grand jury indicted Defendant for second degree attempted murder, first degree assault, carrying a firearm without a permit or license, and second degree theft, all arising out of the November 4, 1987 incident. A bench warrant was issued the next day for Defendant's arrest, but the police were unable to find Defendant to serve him with the warrant. Although police personnel periodically searched existing computer data bases over the next two years in an effort to locate Defendant, they were unsuccessful.

In August 1990, the Honolulu Police Department (HPD) received an inquiry from a New Jersey prosecutor's office as to whether there was an outstanding Hawai'i warrant for Defendant's arrest. Apparently, New Jersey officials had recently arrested Defendant on a California warrant for offenses committed Defendant was transported from New Jersey to California in September 1990 to face robbery, kidnapping, use of a knife, and theft charges. In January 1991, Defendant, pursuant to a plea agreement, pleaded guilty to the robbery and use of a knife charges, and his sentencing hearing was set for February 21, 1991. On February 19, 1991, a California probation officer telephoned HPD and received confirmation that Hawai'i's warrant against Defendant was still "good." Subsequent to this phone call, HPD entered the outstanding Hawai'i warrant against Defendant into the National Crime Information Center system, thus officially informing the nation that Defendant was wanted in Hawai'i.

[83 Hawai'i 499] in California in August 1988. HPD responded that there was a valid bench warrant for Defendant's arrest and instructed New Jersey officials to consider its response as a detainer for Defendant.

At the February 21, 1991 sentencing hearing, the California trial court, after discovering the existence of the Hawai'i charges against Defendant, rejected the plea agreement. Defendant thereafter went to trial on April 8, 1991 and was convicted of robbery, kidnapping, use of a knife, and vehicle theft. On May 23, 1991, Defendant was sentenced to a term of imprisonment for six years.

Prior to Defendant's California trial and for several months thereafter, California probation officials kept the City and County of Honolulu (Honolulu) prosecutor's office informed of Defendant's status. Although the prosecutor's office assured California officials that it would seek to extradite Defendant to stand trial in Hawai'i, it was not until August 19, 1991 that the Honolulu prosecutor first wrote to California authorities, requesting temporary custody of Defendant pursuant to the IAD. The prosecutor's request was received by California authorities on August 22, 1991, and they, in turn, notified Defendant of the request the following day.

On August 28, 1991, Defendant executed a notice to the Honolulu prosecutor, informing the prosecutor that Defendant was "now imprisoned in Pelican Bay State Prison at Crescent City, California[,]" and requesting that a final disposition be made of all untried indictments pending against him, in accordance with the IAD (Request for Final Disposition). The next day, the superintendent of the Pelican Bay State Prison transmitted to the Honolulu prosecutor Defendant's Request for Final Disposition, the superintendent's certificate as to Defendant's inmate status, and the superintendent's offer to deliver temporary custody of Defendant to the Honolulu prosecutor. These documents were received by the Honolulu prosecutor on September 3, 1991.

On September 10, 1991, the prosecutor wrote to accept the superintendent's offer of temporary custody of Defendant in connection with Defendant's Request for Final Disposition. Defendant was returned to Hawai'i late in the evening on September 28, 1991 and was immediately transported to the main HPD station, where he was served with the bench warrant for his arrest at 12:23 a.m. on September 29, 1991. At his arraignment hearing on October 7, 1991, Defendant entered a plea of not guilty and was given a trial week setting of January 6, 1992.

On November 14, 1991, Defendant moved to dismiss the indictment, arguing that his constitutional speedy trial and HRPP Rule 48 rights had been violated. The motion was scheduled to be heard on December 9, 1991. Pending the hearing on the motion, Defendant filed a motion to have a firm trial date set for his case. At the November 26, 1991 hearing on the motion for firm trial date, Defendant explained that since his case involved a number of expert and out-of-state witnesses, and since he was required under the IAD to be tried within 180 days of his Request for Final Disposition, the court should set a firm trial date for his case. The circuit court agreed to check the master criminal trials calendar and get Defendant a firm trial date.

On December 9, 1991, a three-day hearing on Defendant's motion to dismiss indictment for violation of speedy trial and HRPP Rule 48 commenced before First Circuit Court Judge Donald Tsukiyama (Judge Tsukiyama). At the outset of the hearing, defense counsel notified Judge Tsukiyama that, as stated in a supplemental memorandum in support of Defendant's motion, the motion to brought to trial within one hundred eighty (180) days after [Defendant] shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of [Defendant's] imprisonment and [Defendant's] request for a final disposition to be made of the indictment, information or complaint.

[83 Hawai'i 500] dismiss indictment was also grounded on a violation of Article III of the IAD, which obliged the court to dismiss the indictment against Defendant with prejudice if Defendant was not

HRS § 834-1, art. III(a) (1993).

On January 17, 1992, at the conclusion of the evidentiary hearing on the November 14, 1991 motion to dismiss indictment, Judge Tsukiyama orally denied the motion as to all grounds raised for the dismissal. On January 27, 1992, Judge Tsukiyama filed written findings of fact and conclusions of law and an order denying the motion. As to Defendant...