State v. Ikezawa, 15937

• Decision Date: 26 August 1993
• Docket Number: No. 15937,15937
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Lee IKEZAWA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 593

857 P.2d 593

75 Haw. 210

STATE of Hawaii, Plaintiff-Appellee, v. Lee IKEZAWA, Defendant-Appellant.

No. 15937.

Supreme Court of Hawai'i.

Aug. 26, 1993.

Syllabus by the Court

1. Criminal charges are to be dismissed if a trial on those charges does not commence within six months from the time of the arrest or filing of the charges.

2. The time period is tolled when a charge is dismissed by the prosecutor and the same charge or a charge required to be joined with the original charge is subsequently brought.

3. An offense is required to be joined if it is a related offense.

4. Two or more offenses are related offenses and are required to be joined if they are within the jurisdiction of a single court and are based on the same conduct or arise from the same episode.

5. HRPP 48(c)(6) excludes the time between the dismissal of a charge by the prosecutor and the arrest or filing of a new charge, whichever is sooner, in an instance when the later charge is required to be joined with the original charge.

6. The Constitution neither prohibits nor requires retrospective effect of judicial decisions. Free to apply decisions with or without retroactivity, the Court's task is to exercise its discretion.

7. Factors to be considered when examining the question of the retroactive application of a judicial decision include: a) the purpose to be served by the newly announced rule; b) the extent of reliance on the old standards; and c) the effect on the administration of justice of a retroactive application of the new standards. Implicit in these factors is the concept of fairness, weighing against retroactive application if in doing so substantial prejudice would result.

8. Substantial reliance on past case law carries great weight against retroactive application of a new judicial decision when the defendant is prejudiced by such reliance.

Edward K. Harada, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Michael J. Park, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

Defendant-Appellant Lee Ikezawa appeals a circuit court order that denied his motion to dismiss pursuant to Hawaii Rules of Penal Procedure (HRPP) 48(b)(1). ¹ Ikezawa was originally charged with third degree assault in violation of Hawaii Revised Statutes (HRS) § 707-712 (1985) (first charge). This charge was subsequently dismissed without prejudice. A year later, he was charged with second degree assault in violation of HRS § 707-711 (Supp.1992) (second charge) and convicted of the included offense of assault in the third degree. This appeal centers on two issues: 1) whether HRPP 48(c)(6) ² excludes the time period between the dismissal of the first charge and Ikezawa's indictment on the second charge; and 2) whether State v. Balauro, 73 Haw. 70, 828 P.2d 267 (1992), can be applied retroactively to the facts of this case.

We hold that our decision in State v. Stone, 65 Haw. 308, 651 P.2d 485 (1982), applies in this case, and that Ikezawa justifiably relied on Stone when he filed his motion to dismiss. Furthermore, we hold that Balauro, which was decided after Ikezawa's trial, cannot be applied retroactively without serious prejudice to Ikezawa. Accordingly, we reverse the circuit court's order that denied Ikezawa's motion to dismiss and remand the case to the circuit court for a determination whether the charge should be dismissed with or without prejudice according to HRPP 48(b)(1).

I. Facts

On March 23, 1990, Ikezawa was arrested and charged with third degree assault. On April 30, 1990, the circuit court granted the prosecution's motion to dismiss the charges without prejudice.

On June 12, 1991, a grand jury returned an indictment against Ikezawa for second degree assault; ³ trial was set for December 2, 1991. On August 30, 1991, Ikezawa moved to dismiss the charge pursuant to HRPP 48(b)(1), but the circuit court denied the motion on October 8, 1991. Trial began December 2, 1991 and Ikezawa was convicted of the lesser included offense of third degree assault.

Ikezawa now appeals the circuit court's denial of his motion to dismiss, contending that the six-month period within which trial must commence under HRPP 48(b)(1) had lapsed. He argues that pursuant to Stone and State v. Holt, 67 Haw. 246, 684 P.2d 971 (1984), where the original charge differs from the subsequent charge, the time period between the dismissal of the original charge and the filing of the new charge must be included in the six-month calculation. Ikezawa concedes that if Balauro, the case that overruled Stone, applies, the circuit court properly denied his motion to dismiss. According to Ikezawa, however, Balauro cannot be applied retroactively because such application would violate his due process rights under the Hawaii and United States Constitutions. He complains that he relied on Stone, and if he had known that Balauro would be followed, he could have filed his motion later when a HRPP 48(b)(1) dismissal would have been required.

II. HRPP Rule 48

A. Tolling the Time Period

The language of HRPP 48 is clear and unambiguous. Criminal charges are to be dismissed if a trial on those charges does not commence within six months from the time of the arrest or of filing of the charges, whichever is sooner. HRPP 48(b)(1). The time period is tolled when a charge is dismissed by the prosecutor and the same charge or a charge required to be joined with the original charge is subsequently brought. HRPP 48(c)(6). Accordingly, HRPP 48(c)(6) provides two instances where the time period between the dismissal of the original charge and the institution of a new charge is excluded from the critical six-month calculation: 1) where the prosecution recharges the same offense it dismissed earlier; and 2) where the prosecution recharges a different offense which nevertheless was required to be joined with the original charge.

The application of HRPP 48(c)(6) is obvious when the offense subsequently charged is the same as the offense originally charged. See Holt, supra. What constitutes an "offense required to be joined with that [original] offense," however, is less clear. HRPP 8(c) ⁴ establishes that charges shall be dismissed for failure to join them with any "related offense." Thus, pursuant to HRPP 8(c), any "related offense" is "required to be joined." HRPP 13(b)(1) provides that, "[t]wo or more offenses are related ... if they are within the jurisdiction of a single court and are based on the same conduct or arise from the same episode." HRS § 701-109(2) similarly defines offenses required to be joined. ⁵

Therefore, by the plain language of HRPP 8(c) and 13(b)(1), offenses are "required to be joined" if they are within the jurisdiction of a single court and are based upon the same conduct or arise from the same criminal episode. ⁶ Thus, if an initial charge is dismissed without prejudice and the defendant is later charged with a different offense, albeit one based upon the same conduct or arising from the same criminal episode, then the later offense is one that was "required to be joined" with the original offense, and the time period between dismissal of the original charge and the filing of a new charge is tolled, pursuant to HRPP 48(c)(6). In the instant case, HRPP 48(c)(6) requires that the time period between the dismissal of the original third degree assault charge and the subsequent second degree assault charge be excluded from the critical six-month calculation because both offenses were "required to be joined," having arisen from the same episode.

B. The Stone and Holt Decisions

Ikezawa argues that the analysis of HRPP 48(c)(6) provided in Stone would preclude the exclusion, under HRPP 48(c), of the time between the dismissal of the first charge and his subsequent indictment on the second charge. In Stone, an original charge of first degree assault was dismissed without prejudice on the prosecution's motion. Stone, 65 Haw. at 308, 651 P.2d at 486. Eighteen months later, the defendant was indicted for first degree attempted assault. Id. The defendant successfully moved to dismiss the charge pursuant to HRPP 48(b)(1). Id. In affirming the dismissal, this court stated that the six-month period had elapsed and that neither of the HRPP 48(c) exclusions were applicable. Id. at 309, 651 P.2d at 486.

In Holt, an initial charge was dismissed without prejudice on the prosecutor's motion. Holt, 67 Haw. at 246, 684 P.2d at 971. Later, Holt was indicted on exactly the same charge, and the trial court granted Holt a dismissal pursuant to HRPP 48(b)(1). Id. at 246, 684 P.2d at 971-72. In reversing, this court stated that HRPP 48(c)(6) tolled the time period between the dismissal of the original charge and the new indictment. Id. The court distinguished Stone, stating that Stone had successfully argued the inapplicability of HRPP 48(c)(6) because the initial charge and the later charge were different. Id. 67 Haw. at 246-47, 684 P.2d at 972. We noted that in Stone, "[the] difference [in the charges] was decisive." Id. 67 Haw. at 247, 684 P.2d at 972.

Together, Stone and Holt established a clear, although erroneous, interpretation of HRPP 48(c)(6): the time period between the dismissal of a charge and the institution of a new charge was excluded only when the charges were the same. These opinions ignored the plain language of HRPP 48(c)(6) that permits tolling of the six-month period when the later charge is "required to be joined with [the original] offense."

According to the holdings of Stone and Holt, Ikezawa was entitled to a HRPP 48 dismissal of the refiled assault charge because the second degree assault charge was clearly "different" from the third degree assault charge. Therefore, Stone dictated the dismissal of the subsequent charge.

Ikezawa relied on Stone and Holt in bringing his motion for dismissal on August 30, 1991. ⁷ Had...