State v. Visintin. , 426 P.3d 367 ( 2018 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
31-AUG-2018
08:10 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Petitioner and Respondent/Plaintiff-Appellee,
vs.
SHAWN D. VISINTIN,
Respondent and Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 13-1-0166)
AUGUST 31, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
A protracted pretrial period can hinder the accurate
determination of a case as evidence dissipates, as well as cause
anxiety and hardship to a defendant awaiting the disposition of
criminal charges. Thus, the Hawai‘i and U.S. Constitutions and
our court rules grant an accused the right to a prompt
adjudication, and a case generally must be dismissed if a
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defendant is held to answer for a period exceeding a prescribed
time limit or an unreasonable amount of time without a trial
ensuing.
In this case, the State was not prepared to proceed
with a prosecution on the date of the defendant’s initial court
appearance. In a process referred to as a calendar call, the
court read aloud a list of defendants against whom no charges
had been filed before stating orally that the defendants were
free to go and that any bail or bond they posted would be
discharged. Seven months later, the defendant was indicted for
the same crime for which he had been arrested, and he moved to
dismiss the case based on the State’s delay in bringing the
prosecution.
We now hold that, because no written order or notice
of the ruling was filed effectively discharging the defendant’s
bail, he remained held to answer for the alleged crime
underlying his arrest and the case must be dismissed under our
court rules for this reason. We further hold that the
Intermediate Court of Appeals erred by considering the legal
merits of the defendant’s constitutional speedy trial challenge
when the trial court failed to make the factual findings
necessary for review. Accordingly, we remand the case for
dismissal with or without prejudice as the trial court
determines appropriate under our court rules. We also set forth
2
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applicable legal principles for the trial court’s evaluation of
the defendant’s constitutional speedy trial challenge if the
dismissal under our court rules is determined to be without
prejudice.
I. BACKGROUND
A. Events on August 7, 2012 and Visintin’s Arrest
On August 7, 2012, around 2:40 a.m., Officer Brian
Silva of the Kauai Police Department was on uniform patrol when
he saw a person running across the street to a facility that
appeared to be closed. Upon turning on his cruise lights,
Officer Silva saw the figure of a person in the bushes of the
facility’s driveway. Officer Silva exited his vehicle, ordered
the person to come out of the bushes, and asked the person for
identification. Officer Silva observed that the person was
breathing heavily and sweating profusely and that there was an
odor of alcohol emitting from the person. The person, who was
identified as Shawn Visintin, provided Officer Silva with his
driver’s license from the State of Montana.
While Visintin was removing his license from his
wallet, Officer Silva saw a concealed weapons permit in the
wallet. Suspecting that Visintin may be armed, Officer Silva
asked him if he was carrying any weapons. After Visintin
responded that he had a handgun, Officer Silva conducted a pat-
down search of Visintin and discovered a semi-automatic .45
3
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caliber handgun in the back part of the waistband of Visintin’s
pants. Officer Silva then recovered the handgun, which was
unloaded, and placed Visintin under arrest for place to keep
pistol or revolver in violation of Hawaii Revised Statutes (HRS)
§ 134-25.1
B. Events Following Visintin’s Arrest
Visintin’s bail was set at $10,000. Upon posting bail
on August 7, 2012, Visintin was given a “Bail/Bond Receipt,
Acknowledgment, and Notice to Appear” form, indicating that he
was to appear in district court on September 5, 2012.2
In an email to the prosecutor dated August 31, 2012,
counsel for Visintin inquired whether Visintin’s matter would
proceed as scheduled on September 5 or if the State of Hawaii
intended to dismiss the charge without prejudice. Counsel
provided Visintin’s full name and the “BBRA NO.”3 associated with
the case. The prosecutor responded that her office had not
received the police reports and thus no complaint had been
filed.
1
HRS § 134-25(a) (2011) provides in relevant part, “Except as
provided in sections 134-5 and 134-9, all firearms shall be confined to the
possessor’s place of business, residence, or sojourn.”
2
The form appears to be identical to Form J of the Hawaii Rules of
Penal Procedure.
3
“BBRA” is an acronym used to refer to “Bail/Bond Receipt,
Acknowledgment, and Notice to Appear.”
4
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A “calendar call” was conducted in the District Court
of the Fifth Circuit (district court) on September 5, 2012.4
During this proceeding, the district court called the names of
those persons against whom no complaint had been filed,
including Visintin, who was not present.5 The court announced
that these persons were free to go and that any cash bail they
posted would be refunded or their bonds would be discharged.
However, the record does not contain a filed document or
calendar notation indicating that Visintin’s bond was
discharged, that the case was dismissed, or that the case was
addressed by some other disposition. Nor does the record show
that Visintin received notice of the outcome of the September 5,
2012 proceeding.
More than seven months later, on April 25, 2013, a
grand jury indicted Visintin on one count of place to keep
pistol or revolver in violation of HRS § 134-25 and one count of
unregistered firearm in violation of HRS §§ 134-3(a)6 and 134-
4
The Honorable Trudy K. Senda presided.
5
The State surmised that Visintin’s non-appearance at the calendar
call was due to Visintin’s counsel knowing beforehand that no complaint would
be filed.
6
HRS § 134-3(a) (2011) provides in pertinent part as follows:
Every person arriving in the State who brings or by any
other manner causes to be brought into the State a firearm
of any description, whether usable or unusable, serviceable
or unserviceable, modern or antique, shall register the
(continued . . .)
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17(b).7 The indictment was based on the same conduct for which
Visintin had been arrested almost nine months earlier. On April
29, 2013, the Circuit Court of the Fifth Circuit (circuit court)
issued a warrant for Visintin’s arrest and set bail at $10,000.8
In an email dated April 30, 2013, the prosecutor
informed Visintin’s counsel of the indictment and the
outstanding bench warrant for the arrest of Visintin, who had
returned to Montana following his release from custody. The
prosecutor suggested that Visintin fly back to Kauai rather than
be arrested and extradited. Defense counsel replied by email
and inquired whether Visintin’s case could be resolved at
arraignment. In a response dated May 1, 2013, the prosecutor
stated that she would provide an answer at a later time as she
was getting ready for a trial scheduled the following week.
Three weeks later, in an email dated May 24, 2013, the
prosecutor asked defense counsel whether Visintin was planning
on returning to Kauai to turn himself in, adding that she would
(. . . continued)
firearm within five days after arrival of the person or of
the firearm, whichever arrives later[.]
7
HRS § 134-17(b) (2011) states, “Any person who violates section
134-3(a) shall be guilty of a petty misdemeanor.”
8
The Honorable Kathleen N.A. Watanabe presided.
6
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not discuss a plea offer until Visintin was arrested on the
warrant.
On May 31, 2013, the State of Montana filed a
“Fugitive from Justice Complaint” (fugitive complaint) in
response to the warrant issued by the circuit court. In the
fugitive complaint, a Montana County Attorney stated that
Visintin was wanted in Hawaii, Fifth Circuit, for the two
indicted offenses; that a warrant had been issued for Visintin’s
arrest; that Visintin “ha[d] fled from justice or ha[d] been
convicted of crimes in that state and ha[d] escaped from
confinement or ha[d] broken the terms of his bail, probation or
parole”; and that a request had been made by the authorities in
Hawaii for his arrest. (Capitalization omitted.) The fugitive
complaint requested the issuance of a warrant from the Montana
court commanding law enforcement officers “to apprehend the said
fugitive” and bring him to court.
The next day, on June 1, 2013, Visintin was arrested
on the fugitive complaint, and he proceeded to post bail in
Montana. Three days later, the Montana County Attorney filed a
motion to dismiss the fugitive complaint on the basis that “it
[was] not in the interest of justice to pursue.” The following
day, the Montana court granted the motion, dismissed the case,
and exonerated any bond posted by Visintin.
7
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Visintin subsequently returned to Kauai voluntarily
and on August 1, 2013, filed a motion in the circuit court to
recall the bench warrant issued after his indictment. The court
denied Visintin’s request to be released on recognizance but
reduced the bail amount from $10,000 to $100.9 Visintin posted
bail on August 6, 2013, and he was arraigned the same day.
C. Motion to Dismiss
1. Visintin’s Motion and the State’s Opposition
On August 20, 2013, Visintin filed a “Motion to
Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due
Process” (motion to dismiss) in the circuit court. In his
motion, Visintin argued that the time limit set forth in Rule 48
of the Hawaii Rules of Penal Procedure (HRPP)10 was exceeded
9
The Honorable Randal G.B. Valenciano presided over all remaining
circuit court proceedings.
The order reducing Visintin’s bail also granted Visintin
permission to travel outside the State of Hawai‘i during his pretrial release
provided he executed a waiver of extradition and appeared for all court
proceedings. Visintin executed the required waiver on August 6, 2013.
10
HRPP Rule 48 (2000) provides in relevant part as follows:
(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 six months:
(1) from the date of arrest if bail is set or from
the filing of the charge, whichever is sooner, on any
offense based on the same conduct or arising from the
same criminal episode for which the arrest or charge
was made . . . .
(continued . . .)
8
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based on the plain language of the rule because more than nine
months had passed from the setting of bail to his arraignment.11
Visintin submitted that HRPP Rule 48 does not support the
conclusion that the “unsetting of bail” triggers Rule 48
tolling. Rather, he maintained, tolling requires that the State
demonstrate good cause for the delay.
Visintin contended that the delay, which doubled the
period allowed under the rule, was entirely attributable to the
State and that the State had provided no good cause for the
delay. Thus, Visintin concluded that HRPP Rule 48 supported the
dismissal of his case with prejudice.
Visintin also contended that his constitutional right
to speedy trial, which attached at his initial arrest, was
(. . . continued)
(c) Excluded Periods. The following periods shall be
excluded in computing the time for trial commencement:
. . .
(6) the period between a dismissal of the charge by
the prosecutor to the time of arrest or filing of a
new charge, whichever is sooner, for the same offense
or an offense required to be joined with that
offense;
. . .
(8) other periods of delay for good cause.
11
Visintin distinguished his case from State v. Johnson, 62 Haw.
11, 608 P.2d 404 (1980), arguing that, unlike in Johnson where the defendant
was released outright, bail was set in his case and the setting of bail is
the point from which the clock runs pursuant to HRPP Rule 48.
9
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violated. He maintained that the State was entirely responsible
for the delay and had provided no valid reason for it, that the
delay was presumptively prejudicial, that he suffered tangible
losses to his employment, that “memories have faded and even
police witnesses who ‘searched the area for criminal activity
with negative results’ have apparently retired,” and that he had
always demanded a speedy trial. Visintin also submitted that
the calendar call procedure does not provide a mechanism by
which a defendant could assert the right to speedy trial. Thus,
Visintin argued, the violation of his constitutional right to
speedy trial supported the dismissal of his case with prejudice.
Lastly, Visintin asserted that the State had thwarted
the purpose of bail, which is to ensure that the defendant is
present at trial while also affording the defendant freedom from
harassment and confinement. Although he posted bail, Visintin
contended, he was arrested two more times and a fugitive warrant
was wrongly obtained in another state based on inaccurate
information. Visintin concluded that requiring the posting of
bail multiple times for the same matter violates the Eighth
Amendment to the U.S. Constitution and article I, section 12 of
the Hawaii Constitution.
Opposing Visintin’s motion to dismiss, the State
described the “unique” procedure employed in the district court
of the Fifth Circuit when the State does not file a charging
10
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document by an established deadline.12 The State contended that
it did not charge Visintin as it lacked adequate information to
do so because the police reports were not forwarded to the
prosecutor’s office until the date when Visintin’s bond was
discharged. Since no case numbers are created unless a charging
document has been filed, the State asserted, there is no readily
available mechanism to file a written dismissal of a case.
Therefore, the State submitted, the effect of the call list is a
“de facto dismissal of the cases,” and the period from the day
after Visintin’s bond was discharged until he was indicted was
excluded from the time limit calculation under HRPP Rule
48(c)(6). Alternatively, the State maintained that this period
was excluded under HRPP Rule 48(c)(8) for good cause because the
procedure employed in the Fifth Circuit prevented the State from
filing a dismissal of the case before the first scheduled court
date.
As to the claim of a constitutional speedy trial
violation, the State argued that Visintin did not provide
sufficient facts demonstrating actual prejudice and that he had
not previously asserted his right to a speedy trial. Upon
balancing the four factors set forth in Barker v. Wingo, 407
12
A detailed summary of this procedure is set forth infra.
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U.S. 514 (1972), the State concluded that Visintin’s right to
speedy trial under the federal and state constitutions was not
violated.
Finally, the State submitted that Visintin’s argument
as to excessive bail was without merit because the State had not
charged him by the calendar call date, and his bond was
discharged. Any argument by Visintin that he did not receive
notice of the dismissal, the State added, was misplaced given
that defense counsel knew before the calendar call proceeding
that no complaint would be filed.
2. Hearing on the Motion to Dismiss
At the hearing on Visintin’s motion, the State
requested that the court take judicial notice that, inter alia,
the prosecutor assigned to Visintin’s case was in trial from
December 3 to December 11, 2012, and from January 7, 2013, to
March 6, 2013. The court questioned whether the prosecutor’s
work schedule was a sound basis for the delay, stating that the
court was not aware of any cases in which the prosecutor’s
workload justified a delay in bringing a defendant to trial.13
13
The court concluded that it would take judicial notice of the
presented facts but that it was inclined not to give these facts any weight.
Prior to the hearing on the motion to dismiss, the State filed a notice of
intent requesting that the court also take judicial notice that 2012 was an
election year for the prosecutor’s office, that the new prosecutor was
elected on November 6, 2012, and that the new prosecutor took office on
December 3, 2012.
12
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The State then called Vera Tabe, court administrator
of the Fifth Circuit, to testify about the “calendar call
procedure” that the district court of the Fifth Circuit has
adopted. Tabe testified that, after a defendant posts bail or
bond or is released on his or her own recognizance, the district
court receives an original BBRA from the Kauai Police
Department, which is file-stamped and placed in a “pending file”
(a lateral drawer). A criminal number is not assigned to a case
until a complaint is filed by the prosecutor’s office. When the
State does not file a charging document by 12:00 p.m. on Monday
of the week of the scheduled court date, the case is placed on
the calendar call list, an internal document that notes the
defendant’s name, charge, and method of release.
At the scheduled proceeding, Tabe continued, the judge
reads the names on the call list and informs the defendants that
no formal charges have been filed and that they will be served
with documents indicating where and when to appear if there are
charges filed in the future. If cash bail has been posted,
there is an unfiled “order” that is provided to the fiscal
office to refund the cash. If a bond was posted, “the judge
just discharges the bond,” meaning “there is nothing more on
that bond.”
Tabe explained that no document is filed by either the
court or the clerk as to any action taken regarding the bail or
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bond and no notation is made on the calendar call list regarding
the discharge. Additionally, Tabe stated that no written notice
is provided to the defendant or defense counsel when a bond is
discharged and nothing is sent to the bonding company.
To Tabe’s knowledge, the State has never attempted to
request a written dismissal of a case that has been placed in
the pending file, although defendants commonly file motions
under the bail/bond receipt number seeking permission to travel.
Tabe acknowledged that, after the case is placed on the calendar
call list, circuit court staff “[do not] know what actually
happens to the case.”14 These unwritten “court rules” relating
to the calendar call procedure, Tabe explained, are based on an
agreement between the courts and the prosecutor’s office.
Following Tabe’s testimony, the circuit court denied
Visintin’s motion to dismiss, relying solely on HRPP Rule 48.
The court found that the period from the calendar call date to
the date of Visintin’s indictment was excluded under HRPP Rule
48(c)(6), reasoning that the purpose of the calendar call list
is to notify “defendants who have been arrested . . . that their
case is not active and is being dismissed.” Based on this
finding, the court concluded that 180 qualifying days had not
14
There is no consequence for a defendant whose name is on the call
list who does not appear for the calendar call.
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passed since Visintin’s arrest.15 The court did not make any
findings as to Visintin’s contentions that his constitutional
right to speedy trial and right against excessive bail had been
violated.
D. No Contest Plea and Circuit Court Judgment
On September 16, 2013, Visintin pleaded no contest to
the charge of place to keep pistol or revolver, which plea was
made conditional on his right to appeal any pretrial rulings,
and the State dismissed the unregistered firearm charge.16 The
court sentenced Visintin to five years of probation, with a
condition of sixty days in jail in addition to time previously
served. The circuit court entered its judgment of guilty
conviction and probation sentence on January 30, 2014.17
II. APPEAL
Visintin timely appealed to the Intermediate Court of
Appeals (ICA) from the circuit court’s denial of the motion to
dismiss and the judgment. In a published opinion, the ICA
vacated the circuit court’s judgment and remanded the case to
the circuit court for dismissal, with or without prejudice, as
15
The court directed the State to prepare an order regarding its
oral ruling. However, no such order is found in the record on appeal.
16
The court denied Visintin’s motion for deferred acceptance of his
nolo contendere plea.
17
In an order filed on February 19, 2014, the court granted
Visintin’s motion for stay of execution of sentence pending appeal.
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determined by that court pursuant to HRPP Rule 48. State v.
Visintin, 142 Hawaii 126, 140, 414 P.3d 178, 192 (App. 2018).
The ICA determined that, based on the plain language
of HRPP Rule 48(b)(1) and the record, the calendar call
procedure did not stop the Rule 48 clock from running. Id. at
138, 414 P.3d at 190. Hawai‘i Supreme Court precedents have
acknowledged that HRPP Rule 48 is modeled after section 12-
2.2(a) of the American Bar Association Standards for Criminal
Justice (2d ed. Supp. 1986), the ICA stated, under which the key
inquiry in the speedy trial calculation is whether the defendant
is “held to answer” for an offense through custody, bail, or
recognizance. Visintin, 142 Hawaii at 138-39, 414 P.3d at 190-
91 (citing State v. White, 92 Hawaii 192, 199, 990 P.2d 90, 97
(1999)). Reasoning that the purpose of the Rule is to “prevent
long periods of detention, conditional release, personal
anxiety, and public suspicion,” the ICA held that a defendant’s
reasonable belief that he or she was being held to answer was
sufficient to cause the HRPP Rule 48 clock to continue to run.
Id. at 139, 414 P.3d at 191 (quoting ABA Standards for Criminal
Justice, § 12-2.2(a) cmt. at 12-21 (2d ed. Supp. 1986)).
Because the record did not reflect that Visintin was notified
that his posted bond was discharged or that there was a change
in his bail status, the ICA held, “the effect is that he
16
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reasonably believed he was still ‘held to answer’ for the
offense asserted upon his arrest.” Id.
In addition, the ICA determined that the calendar call
procedure should not be construed as a de facto dismissal of
Visintin’s case because it would contravene the requirements of
HRPP Rule 48. Id. The plain text of HRPP Rule 48(a),18 the ICA
reasoned, indicates that a prosecutor’s dismissal of a charge
must include a document filed with the court. Id. at 139-40,
414 P.3d at 191-92. The ICA held that, under the calendar call
procedure, there is neither a document “filed” nor a “charge” to
be dismissed, and the procedure thus cannot be considered a
dismissal under HRPP Rule 48(c)(6). Id. Additionally, the ICA
held that the State had not made a showing of good cause under
HRPP Rule 48(c)(8).19 Id. at 140, 414 P.3d at 192.
Accordingly, the ICA held that the circuit court was
required to dismiss the charges pursuant to HRPP Rule 48 because
18
HRPP Rule 48(a) provides, “The prosecutor may by leave of court
file a dismissal of a charge and the prosecution shall thereupon terminate.
Such a dismissal may not be filed during the trial without the consent of the
defendant.” HRPP Rule 48(a) (underlining added).
19
Chief Judge Nakamura dissented from this ruling, maintaining
that, given the longstanding use of the calendar call procedure, the
prosecutor knew that not filing a charge by the deadline “will effectively
lead” to its dismissal, adding that the defense attorney should also be aware
that such a failure meant no charge was pending and the arrested person was
free to leave. Visintin, 142 Hawai‘i at 146–47, 414 P.3d at 198–99 (Nakamura,
C.J., concurring and dissenting). As to Visintin in particular, the dissent
asserted that any lack of notice was due to his failure to appear as directed
in his bail/bond receipt. Id. at 147, 414 P.3d at 199.
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none of the rule’s exclusions were applicable. Id. The ICA
limited its ruling to the circumstances in this case and stated
that it did “not reach the question of the type of notice that
must be given to a defendant when he or she is released or
discharged from bail.” Id. at 140 n.16, 414 P.3d at 192 n.16.
On remand, the ICA directed that the circuit court exercise its
discretion to determine whether the charges should be dismissed
with or without prejudice. Id. at 140, 414 P.3d at 192.
Turning to the constitutional speedy trial challenge,
the ICA found that the circuit court had not addressed
Visintin’s constitutional speedy trial right and thus had
implicitly rejected it when the court denied Visintin’s motion
to dismiss on Rule 48 grounds. Id. The ICA then considered the
merits of the challenge. The ICA applied the four-part test set
forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine
whether Visintin’s constitutional speedy trial right was
violated. Visintin, 142 Hawaii at 140-42, 414 P.3d at 192-94.
After concluding that the length of the delay was sufficient to
warrant considering the remaining factors, the ICA determined
that the reasons for the delay, the timing and consistency of
Visintin’s demand for a speedy trial, and the amount of
prejudice the delay caused Visintin all weighed in favor of the
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State.20 Id. Thus, the ICA held that Visintin’s constitutional
right to speedy trial was not violated. Id.
As to Visintin’s final contention on appeal, the ICA
pointed out that Visintin provided no authority for the
assertion that a defendant whose right against excessive bail
has been violated is entitled to dismissal of criminal charges.
Id. at 143, 414 P.3d at 195. The ICA therefore held that “there
is no independent basis for dismissing the criminal charges
against Visintin based on his claim of excessive bail.” Id.
Both the State and Visintin filed applications for
writs of certiorari from the ICA’s decision. We accepted both
applications.
III. STANDARDS OF REVIEW
A trial court’s findings of fact (FOFs) in deciding an HRPP
Rule 48(b) motion to dismiss are subject to the clearly
erroneous standard of review. . . . However, whether those
facts fall within HRPP Rule 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 Hawaii 507, 514, 928 P.2d 1, 8 (1996).
This court reviews questions of constitutional law
under the right/wrong standard. State v. Davis, 133 Hawaii 102,
111, 324 P.3d 912, 921 (2014) (citing State v. Jenkins, 93
Hawaii 87, 100, 997 P.2d 13, 26 (2000)).
20
The ICA’s reasoning as to each factor is discussed in greater
length infra, § IV-B-1.
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IV. DISCUSSION
A. State’s Application for Writ of Certiorari
On certiorari, the State contends that the contested
period was excludable under HRPP Rule 48(c)(6) or,
alternatively, HRPP Rule 48(c)(8). These arguments are
addressed in turn below.
1. The Period Between the Calendar Call Proceeding and the
Indictment Date is not Excluded under HRPP Rule 48(c)(6)
Under HRPP Rule 48(b), trial must commence within six
months “from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner.” The parties agree
that bail was set following Visintin’s initial arrest, thereby
starting the clock from the date of arrest for purposes of HRPP
Rule 48(b). See State v. Visintin, 142 Hawai‘i 126, 138, 414
P.3d 178, 190 (App. 2018). HRPP Rule 48(c)(6), however,
excludes from the computation of time for trial commencement
“the period between a dismissal of the charge by the prosecutor
to the time of arrest or filing of a new charge, whichever is
sooner, for the same offense.” The State contends that the
more-than-seven-month period from the calendar call proceeding
to the date of Visintin’s indictment is excluded under HRPP Rule
48(c)(6) because the calendar call procedure effectively
dismissed Visintin’s case.
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The ICA in this case correctly determined that the
district court’s calendar call procedure cannot be construed as
a de facto dismissal because it would contravene the plain
language of HRPP Rule 48. Visintin, 142 Hawai‘i at 139-40, 414
P.3d at 191-92. HRPP Rule 48(a) sets forth the procedure by
which a prosecutor may dismiss a case and thereby obtain tolling
under HRPP Rule 48(c)(6). The rule states that “a prosecutor
may by leave of court file a dismissal of a charge and the
prosecution shall thereupon terminate.” HRPP Rule 48(a)
(emphases added). Under the calendar call procedure, there is
no “charge” to be dismissed because charges have not yet been
initiated. There also is nothing “filed,” which by its plain
meaning indicates the submission of a written document. See
Hawai‘i Rules of Electronic Filing (HREF) Rules 1.1, 1.4 (2010)
(defining “conventionally file” and “electronic filing” to mean
“the submission of paper documents and physical exhibits to the
clerk for filing in the court record” and “the submission of
documents by authorized JEFS Users for docketing and storage in
JIMS,” respectively); HRPP Rule 2.3 (2012) (cross-referencing
the HREF for definitions). Additionally, the prosecution does
not obtain leave from the court prior to employing the calendar
call procedure as is required for the dismissal of charges under
HRPP Rule 48(a). The calendar call procedure is therefore not a
21
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dismissal by the prosecutor for purposes of HRPP Rule 48, and it
cannot form the basis for tolling under HRPP Rule 48(c).21
The ICA indicated, however, that the result would have
been different had the record established that Visintin was
notified that his bond was discharged or that his bail status
had changed. Relying on section 12-2.2(a) of the American Bar
Association Standards for Criminal Justice (2d ed. Supp. 1986),
the ICA held that the HRPP Rule 48 clock continued to run
because Visintin “reasonably believed he was still ‘held to
21
It is notable that, prior to 2010, many procedures in Hawai‘i
circuit, family, and district courts were governed by a range of informal
administrative orders and memoranda that commonly set forth individualized
local practices not unlike the calendar call procedure utilized in the
present case. See In re Bettencourt, 126 Hawai‘i 26, 28, 265 P.3d 1122, 1124
(2011). Like the calendar call procedure, the various administrative orders
and memoranda caused much confusion and were oftentimes in conflict with
Hawai‘i statutes, our precedents, or our duly promulgated court rules. See
id.; Price v. Obayashi Haw. Corp., 81 Hawai‘i 171, 178, 914 P.2d 1364, 1371
(1996). And because the plethora of regulations was not easily navigated,
they created inconsistent results and hindered public access to our justice
system.
Cognizant of these difficulties, Chief Justice Ronald T.Y. Moon
issued an order rescinding all statewide circuit, family, and district court
administrative orders or memoranda. Order, In Re Statewide Court
Administrative Orders and Memoranda (Haw. June 9, 2010),
http://www.courts.state.hi.us/docs/sct_various_orders/order35.pdf. The order
noted that many of the administrative orders and memoranda contained
“requirements that are more appropriate for court rules than for
administrative orders and memoranda.” Id. This is because the Hawaii
Constitution reserves to the Hawai‘i Supreme Court the power to “promulgate
rules . . . relating to process, practice, [and] procedure.” Haw. Const.
art. VI, § 7.
The calendar call employed in the present case resembles the
rescinded administrative orders in many respects and possesses the same
potential to create inconsistent results, hinder access to justice, and
impinge on this court’s constitutional authority. Further, the problems
created by these types of administrative practices are compounded when the
procedure is not even memorialized in writing, as in this case.
22
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answer’ for the offense asserted upon his arrest.” Visintin,
142 Hawai‘i at 139, 414 P.3d at 191. Accordingly, the ICA
limited its ruling “to the circumstances in this case” and did
“not reach the question of the type of notice that must be given
to a defendant when he or she is released or discharged from
bail.” Id. at 140 n.16, 414 P.3d at 192 n.16.
But this reasoning is predicated on the incorrect
assumption that Visintin was in fact no longer held to answer
following the calendar call proceeding. Although it is true
that, under our precedents, the HRPP Rule 48 trial clock does
not run when a defendant is released outright without bail being
set, see State v. Johnson, 62 Haw. 11, 12, 608 P.2d 404, 405
(1980), no actual order discharging Visintin’s bail and
releasing him outright was ever entered in this case.
That a written order must be filed in this context--or
at the very least a written notice of entry of the decision or
ruling--is indicated by the plain language of the HRPP. HRPP
Rule 44A (2011) provides in relevant part as follows:
After the decision or ruling of the court following a
hearing on a motion, the clerk shall note the decision or
ruling on the docket. The filing of the written decision
or ruling, or in the event of an oral decision or ruling,
the filing of the written notice of entry of the decision
or ruling, in the office of the clerk constitutes entry of
the order. The decision or ruling or notice of entry shall
be signed by the judge or by the clerk, if the judge so
directs, provided that for purposes of this rule, an oral
order granting an oral motion is entered when the court’s
oral order is entered by the clerk on the electronic
docket.
23
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(Emphasis added.) The calendar call proceeding operates as a
hearing on the State’s motion to refund bail or discharge a bond
and to release the defendant outright. See Motion, Black’s Law
Dictionary (10th ed. 2014) (“A written or oral application
requesting a court to make a specified ruling or order.”).
Alternatively, the proceeding may be viewed as a hearing on the
court’s own motion or a joint motion of the court and the State.
Regardless of whom the motion is viewed as originating
from, HRPP Rule 44A requires either the district court or court
clerk to file a written order or a written notice of the ruling
for the decision to be considered “entered.”22 It must follow
that, even were we to construe the circuit court’s general
statements addressing multiple defendants during the calendar
call procedure as an oral order, that order would be ineffective
because it was not accompanied by a written notice of entry.
And without an effective order, Visintin remained held to answer
as a matter of law, notwithstanding any administrative
procedural actions or his notice thereof.
Sound policy considerations underlie HRPP Rule 44A’s
requirements. The absence of a written order or notice of entry
22
Although criminal charges have not yet been filed against
defendants involved in the calendar call procedure, the HRPP nonetheless
apply because they “govern the procedure in the courts of the State in all
penal proceedings,” with only limited exceptions not applicable here. HRPP
Rule 1(a) (2012) (emphasis added).
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denies future courts an adequate record of events that occurred
under the jurisdiction of district courts in the Fifth Circuit.
The present case is emblematic of the problems that can arise
under such conditions. Because no formal order was filed in
Visintin’s case, the circuit court lacked any meaningful ability
to review judicial records following Visintin’s indictment when
it considered the State’s request for an arrest warrant and bail
in the amount of $10,000.
Despite the fact that the earlier posted bond had been
discharged because the prosecutor was unprepared to proceed with
the case, the circuit court’s outstanding warrant resulted in
Montana issuing a “fugitive” warrant against Visintin.
Visintin’s life was subject to significant upheaval when he was
arrested by Montana law enforcement as a fugitive from justice,
incarcerated, and again required to post bail. At a minimum,
had there been a written order or notice of entry discharging
Visintin’s initial bond and formally releasing him from custody,
the issuance of the fugitive warrant in this case may have been
avoided.
Additionally, were we to hold that the calendar call
proceeding was a legally effective order, the absence of a
written order or notice of entry of the ruling would force a
person released pursuant to the procedure to obtain the
transcript or recording of the proceeding to acquire
25
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documentation that he or she is no longer being held to answer
for the crime underlying the person’s arrest. A defendant
should not be required to take such measures to obtain
information affecting one’s fundamental liberty that may easily
be relayed through a written order or notice of entry. Nor
should the defendant, counsel, or the public be required to rely
upon a court’s verbal statements indicating that a felony case
will not be going forward or that the restraints of bail
conditions no longer apply.
Further compounding the problematic nature of the
calendar call procedure is that the procedure itself is
unwritten and thus not readily accessible to public
understanding or scrutiny except to those with inside
knowledge.23 Pro se defendants or those with counsel unfamiliar
with the Fifth Circuit’s “unique” procedure are unlikely to
23
Inside knowledge as to the discharge of bond figured prominently
in the reasoning of Chief Judge Nakamura’s concurring in part and dissenting
in part opinion (dissent). The dissent argued that, given the longstanding
use of the calendar call procedure, the “prosecutor knows” that not filing a
charge by the deadline will effectively lead to its dismissal, and “criminal
defense counsel should be aware that under the calendar call procedure” the
State’s failure to formally charge a defendant by a week before the calendar
call appearance date means that no charge is pending, any bail will be
returned, and any bail bond will be discharged. Visintin, 142 Hawai‘i at 146–
47, 414 P.3d at 198–99 (Nakamura, C.J., concurring and dissenting). As
discussed supra, note 21, the adoption of informal court procedures is
problematic even when their details are published in written form because,
inter alia, they require uninitiated litigants to navigate a maze of
administrative procedures and thereby impair public access to our justice
system. We likewise reject an approach that is reliant upon the presumed
knowledge of counsel as to unwritten, localized court procedures.
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understand the legal significance the procedure is intended to
hold without a written document, leaving them uninformed as to
the status of the criminal claim against them.
The State argues that requiring a written order to
discharge bail will leave it with no established method of
disposing of a case under these circumstances. It is not
possible to file a written bail discharge order before a written
complaint is filed, the State contends, because there is no case
number under which to file the order. But the filing of written
orders prior to formal charging is both routine and expressly
authorized under our court rules.
HRPP Rule 5(a)(2) (2012), for example, provides the
following:
(2) PROBABLE CAUSE DETERMINATION UPON ARREST WITHOUT A
WARRANT. As soon as practicable, and, Rule 45
notwithstanding, not later than 48 hours after the
warrantless arrest of a person held in custody, a district
judge shall determine whether there was probable cause for
the arrest. . . . If probable cause is found as aforesaid,
an appropriate order shall be filed with the court as soon
as practicable. If probable cause is not found, or a
proceeding to determine probable cause is not held within
the time period provided by this subsection, the arrested
person shall be ordered released and discharged from
custody.
(Emphases added.) Thus, this rule provides that when a person
has been arrested without a warrant and remains in custody, the
court shall, no later than forty-eight hours after the arrest,
determine whether there is probable cause for the arrest. If
probable cause is found, the court is required to file an order
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as soon as practicable. Similarly, if probable cause is not
found or a proceeding to determine probable cause is not held
within the time provided by HRPP Rule 5(a)(2), the arrested
person “shall be ordered released and discharged from custody.”
(Emphasis added.) In other words, when probable cause has not
otherwise been determined through a preliminary hearing or
indictment, the district court must file an order whenever a
person is arrested without a warrant and held in custody for
more than forty-eight hours after arrest, notwithstanding the
lack of formal charges in the case.
This authority of the district court to issue orders
prior to the filing of a charge is also recognized in HRPP Rule
5(c)(8), which provides as follows: “The district court, as
authorized by Hawaii Revised Statutes, chapter 804, may admit
the defendant to bail or modify bail any time prior to the
filing of the written order committing the case to circuit
court.” HRPP Rule 5(c)(8) (2014). Indisputably, admission to
bail or modification of bail requires a written order of the
court. The court’s authority to modify bail prior to the filing
of the charge was in fact referenced by the court administrator,
who stated that defendants commonly file motions to the court
under the BBRA number seeking permission to travel. If motions
and orders can be filed under the BBRA number, nothing precludes
the district court from filing a written order or notice of
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entry under that number to refund bail, discharge a bond, and
release the defendant outright from custody. Accordingly, this
court will not defer to the established procedure of the
district court in the Fifth Circuit with regard to cases on the
calendar call list--which does not include disposition by a
written order or notice of entry--merely because a charge has
not been filed in the case.
In summary, because the calendar call procedure
involves matters with significant and consequential effects, a
verbal directive that is not memorialized is ineffective as an
“order.” To hold otherwise would create great uncertainty by
denying future courts, defendants, and the public a definitive
record of proceedings. And, as this case demonstrates, the
absence of a written order or notice of entry affects the
integrity of the procedure by which judicial warrants issue and
hampers a court’s duty to promote a fair process. This is why
the filing of a written order--or at the very least a written
notice of entry--is both permitted and explicitly called for
under our court rules.24
24
See HRPP Rule 2 (1977) (“These rules are intended to provide for
the just determination of every penal proceeding. They shall be construed to
secure simplicity in procedure, fairness in administration and the
elimination of unjustifiable expense and delay.”).
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Because there was no written order or notice of entry
of an oral order discharging Visintin’s bond and releasing him
outright, Visintin remained held to answer for purposes of the
HRPP Rule 48 trial clock. And, because no dismissal of charges
occurred, the period between the calendar call procedure and the
date of his indictment is not excluded under HRPP Rule 48(c)(6).
2. The Period Between the Calendar Call Proceeding and the
Indictment Date is not Excluded under HRPP Rule 48(c)(8)
The State contends in the alternative that the period
between the calendar call proceeding and the date of Visintin’s
indictment is excluded based on good cause. HRPP Rule 48(c)(8)
provides that “other periods of delay for good cause” shall be
excluded from the computation of time for trial commencement.
This court has defined “good cause” as “a substantial reason
which affords a legal excuse.” State v. Senteno, 69 Haw. 363,
368, 742 P.2d 369, 373 (1987) (citing State v. Estencion, 63
Haw. 264, 267, 625 P.2d 1040, 1042 (1981)). The good cause
provision of HRPP Rule 48(c), we have held, “is provided to take
care of unanticipated circumstances” and events that are not
reasonably foreseeable. State v. Abregano, 136 Hawaii 489, 497,
498, 363 P.3d 838, 846, 847 (2015) (quoting State v. Gillis, 63
Haw. 285, 288, 626 P.2d 190, 192 (1981)). It “is not to be used
to excuse a lack of diligence on the part of the government to
comply with Rule 48.” Id. (quoting Gillis, 63 Haw. at 288, 626
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P.2d at 193). “Whether a period of time is excludable as ‘good
cause’ under HRPP Rule 48(c)(8) is dependent on the facts of
each case.” Id. at 498–99, 363 P.3d at 847–48 (citing State v.
Herrera, 63 Haw. 405, 409, 629 P.2d 626, 629 (1981)).
On certiorari, the State argues that Visintin’s
failure to appear at the scheduled court proceeding constitutes
good cause to exclude the delay between the calendar call
proceeding and the date of Visintin’s indictment under HRPP Rule
48(c)(8). The State contends that Visintin chose not to attend
the hearing even though he was ordered to do so.
In State v. Choy Foo, 142 Hawaii 65, 71-72, 414 P.3d
117, 123-24 (2018), the defendant argued that his appearance
without counsel at arraignment was not an unanticipated
circumstance constituting good cause. We agreed, holding that
it was “‘reasonably foreseeable’ that many defendants will make
their initial appearance in district court without an attorney.”
Id. at 76, 414 P.3d at 128. Similarly, it is not an
unanticipated circumstance that many defendants will not appear
at the calendar call given that, under the system that has been
established in the Fifth Circuit, there is no consequence for a
defendant who does not appear at the calendar call.
Moreover, as discussed above, the calendar call
procedure would not have resulted in the stopping of the HRPP
Rule 48 trial clock even had Visintin been present at the
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calendar call proceeding because no written order or notice of
entry was filed discharging Visintin’s bond. Visintin’s
nonattendance was therefore irrelevant to the State’s obligation
to comply with the HRPP Rule 48 time limit and cannot constitute
good cause for its failure to do so. Accordingly, the ICA did
not err in vacating the circuit court’s judgment because the
contested period was not excluded under HRPP Rule 48(c)(8).25
B. Visintin’s Application for Writ of Certiorari
Visintin contends on certiorari that the circuit court
erred in denying his constitutional speedy trial motion and that
his right against excessive bail was violated, which should have
resulted in the dismissal of the criminal charges against him.
1. Speedy Trial
The Sixth Amendment to the United States Constitution
and article I, section 14 of the Hawaii Constitution guarantee a
defendant in a criminal case the right to a speedy trial in all
25
It is also noted that the circuit court judgment prescribed a
jail term “in addition to time served.” However, HRS § 706-671(1) provides
in relevant part as follows:
When a defendant who is sentenced to imprisonment has
previously been detained in any State or local correctional
or other institution following the defendant’s arrest for
the crime for which sentence is imposed, such period of
detention following the defendant’s arrest shall be
deducted from the minimum and maximum terms of such
sentence.
HRS § 706-671(1) (2012) (emphasis added).
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prosecutions. State v. Lau, 78 Hawaii 54, 62, 890 P.2d 291, 299
(1995). Whether the defendant’s right to a speedy trial has
been violated is determined by applying the four factors
articulated in Barker v. Wingo, 407 U.S. 514 (1972): “(1) length
of the delay; (2) reasons for the delay; (3) defendant’s
assertion of his right to speedy trial; and (4) prejudice to the
defendant.” Lau, 78 Hawaii at 62, 890 P.2d at 299 (citing
Barker, 407 U.S. at 530). No one factor “is to be regarded as
either a necessary or sufficient condition to the finding of a
deprivation of the right to a speedy trial.” Id. (quoting State
v. Wasson, 76 Hawaii 415, 419, 879 P.2d 520, 524 (1994)).
Rather, the factors are related “and must be considered together
with such circumstances as may be relevant.” Id. (quoting
Wasson, 76 Hawaii at 419, 879 P.2d at 524). When a defendant’s
right to a speedy trial has been violated, the only remedy is
dismissal with prejudice. Id.
As to the first factor, length of delay, the ICA held
in this case that the more-than-twelve-month period between
Visintin’s arrest and the filing of the motion to dismiss was
sufficient to warrant inquiry into the other Barker factors.
State v. Visintin, 142 Hawaii 126, 141, 414 P.3d 178, 193 (App.
2018). With regard to the second factor, reasons for the delay,
the ICA held that the State’s proffered explanations--the
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assigned prosecutor’s unavailability and the leadership change
at the prosecutor’s office--were not “overwhelming
justifications” but nonetheless provided “a reasoned basis for
the delay and are weighted less heavily.” Id. The ICA thus
concluded that the second factor weighed slightly in favor of
the State. Id. The ICA also determined that a portion of the
delay, which spanned several months, was attributable to the
time required to bring Visintin back to Hawaii from Montana and
was reasonable. Id. Turning to the third factor, assertion of
the right to a speedy trial, the ICA held that this factor
weighed in favor of the State because, other than the motion to
dismiss, the record lacked a showing that Visintin actually
desired a speedy trial. Id. at 141-42, 414 P.3d at 193-94.
Lastly, with respect to the fourth factor, prejudice
to the defendant, the ICA held that Visintin did not submit
“objective, contemporaneous evidence of anxiety, such as prompt
and persistent assertion of the desire for a speedy trial
coupled with a demonstrable basis for the court’s believing the
delay is traumatic.” Id. at 142, 414 P.3d at 194 (quoting State
v. Ferraro, 8 Haw. App. 284, 300, 800 P.2d 623, 632 (1990)).
Further, the ICA determined that Visintin did not suffer
oppressive pretrial incarceration, that he only alleged the
possibility of prejudice--which was insufficient to establish a
violation of the constitutional speedy trial right, and that the
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twelve-month period of delay was not “exceedingly long.” Id.
Accordingly, the ICA held that Visintin’s constitutional right
to a speedy trial had not been violated. Id.
a. The ICA Erred in Considering Visintin’s Constitutional
Speedy Trial Claim on the Merits
After determining that the circuit court “implicitly
rejected” Visintin’s argument regarding the right to a speedy
trial when it denied his motion to dismiss, the ICA considered
the merits of Visintin’s constitutional speedy trial challenge.
Visintin, 142 Hawai‘i at 140-42, 414 P.3d at 192-94. However,
nothing in the record indicates that the circuit court
considered Visintin’s argument regarding his constitutional
right to a speedy trial, let alone evaluated the four Barker
factors. Instead, the circuit court relied solely on HRPP Rule
48 in denying Visintin’s motion to dismiss.
Additionally, even assuming the circuit court
considered Visintin’s argument regarding a constitutional speedy
trial violation, the court neither issued a written order
setting forth its findings or conclusions with respect to the
issue nor did it state any findings or conclusions on the record
when it denied the motion.
HRPP Rule 12(e) (2007) provides in relevant part,
“Where factual issues are involved in determining a motion, the
court shall state its essential findings on the record.”
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(Emphasis added.) Visintin’s motion to dismiss based on a
constitutional speedy trial violation required the determination
of factual issues that are part and parcel of the four Barker
factors. The circuit court, however, failed to make any factual
findings as to the speedy trial motion.
This court has repeatedly stated that “cases will be
remanded when the factual basis of the lower court’s ruling
cannot be determined from the record.” See, e.g., State v.
Anderson, 67 Haw. 513, 514, 693 P.2d 1029, 1030 (1985)
(remanding to the lower court after determining that the lower
court granted the motion to suppress without having made any
findings of fact); State v. Hutch, 75 Haw. 307, 331, 861 P.2d
11, 23 (1993) (holding that both trial courts committed
reversible error in denying the defendant’s HRPP Rule 48 motions
without stating the “essential findings on the record”); see
also State v. Rodrigues, 122 Hawaii 229, 238, 225 P.3d 671, 680
(App. 2010) (“In the absence of the findings of fact required by
HRPP Rule 12(e), it is not the role of the appellate court, in
the first instance, to make determinations” as to such factual
issues). This is because “[factual] findings are imperative for
an adequate judicial review of a lower court’s conclusions of
law.” Anderson, 67 Haw. at 514, 693 P.2d at 1030; accord Hutch,
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75 Haw. at 331, 861 P.2d at 23; Rodrigues, 122 Hawaii at 238,
225 P.3d at 680.
The ICA nevertheless considered Visintin’s argument as
to his constitutional speedy trial challenge. The ICA evaluated
each of the four Barker factors and made a number of implicit or
express factual findings in determining whether the factors
weighed in favor of or against Visintin.
For example, regarding the second Barker factor,
reasons for the delay, the ICA found that the State’s proffered
justifications--that the prosecutor was unavailable due to her
trial schedule and that it was an election year--provided “a
reasoned basis for the delay.” Visintin, 142 Hawai‘i at 141, 414
P.3d at 193. The ICA also determined that a portion of the
delay was due to the time needed to bring Visintin back to
Hawaii from Montana following his indictment, which was
“reasonable.” Id. The circuit court, however, did not make any
specific findings that these reasons were the actual causes of
the delay. And, insofar as the ICA suggested that Visintin was
responsible for the delay for his return to Hawai‘i from Montana,
this conclusion was contradicted by the circuit court’s factual
findings in ruling upon Visintin’s HRPP Rule 48 argument. The
court found that the State was responsible for the period of
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delay between Visintin’s indictment and the arraignment, not
Visintin. The court stated as follows:
Now, once the indictment is issued on April 25th to the
period of August 6th, because the defendant is free to
leave at that point in time, you cannot now say the
defendant is making himself unavailable. It would be
inconsistent for the Court to have that type of ruling. So
the period between April 25th to August 6th is chargeable
to the State.
The ICA never determined that this finding was clearly
erroneous, and the circuit court is certainly better positioned
than an appellate court to make factual findings as to the
causes of delay and the allocation of responsibility between the
parties.
Similarly, the ICA specifically found as to the fourth
factor, prejudice to the defendant, that Visintin did not suffer
oppressive pretrial incarceration, that he did not suffer
anxiety, and that he had only alleged the possibility of
prejudice, which the ICA stated was insufficient to establish a
violation of the speedy trial right. Visintin, 142 Hawai‘i at
142, 414 P.3d at 194. However, the circuit court itself did not
make any findings as to whether Visintin had established
oppression, anxiety, or prejudice. This was of particular
import here because Visintin alleged that he had suffered a
number of extreme, potentially anxiety-inducing circumstances
that were arguably caused by the State’s delay in bringing the
case. Visintin asserted that he was subject to multiple
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arrests, including one in which heavily armed Marshals forced
their way into his family home in Montana and forcibly detained
Visintin and his mother. Visintin further contended that he
endured false accusations of being a fugitive and was required
to post bail multiple times. And the email exchanges between
the deputy prosecutor and Visintin’s counsel may suggest that
Visintin was very concerned as to the impact of the prosecution
on his prospects of becoming a police officer, a job for which
he had invested much training and preparation. Whether these
events occurred, were caused by the delay, and resulted in
Visintin experiencing great anxiety were factual matters that
should have been initially ascertained by a trial court and not
by a court on appeal.
Thus, because “it is not the role of the appellate
court, in the first instance, to make determinations” as to
factual issues, the ICA erred in considering Visintin’s
constitutional speedy trial argument without the circuit court
having made any findings of fact. Rodrigues, 122 Hawaii at 238,
225 P.3d at 680.
b. The ICA Applied Incorrect Principles of Law
In improperly considering Visintin’s constitutional
speedy trial claim, the ICA did not correctly apply precedent
relating to three Barker factors: reasons for the delay,
assertion of the right to a speedy trial, and prejudice to the
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defendant. These three factors are accordingly addressed below
to set forth principles applicable to the circuit court’s
determination should the speedy trial motion be further
considered on remand.
i. Reasons for the Delay
This court has stated, in accordance with the U.S.
Supreme Court’s decision in Barker, that different weights are
assigned to different reasons in determining whether a delay of
trial violates a defendant’s constitutional speedy trial right.
Lau, 78 Hawaii at 63, 890 P.2d at 300 (citing Barker, 407 U.S.
at 531). “A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the
government.” Id. (quoting Barker, 407 U.S. at 531). “A more
neutral reason such as negligence or overcrowded courts should
be weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.” Id.
(quoting Barker, 407 U.S. at 531).
When a defendant contributes in substantial part to
the delay, we have held that the second Barker factor weighs in
favor of the prosecution. In State v. White, for instance, the
defendant’s various pretrial motions resulted in a delay of
approximately four and a half months. 92 Hawaii 192, 203, 990
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P.2d 90, 101 (1999). Although the State’s requests to continue
trial resulted in a four-month delay, the White court determined
that the State’s requests did not appear to have been a
deliberate attempt to delay trial. Id. Because the defendant
was responsible for a substantial part of the delay, the court
concluded that the second Barker factor weighed in favor of the
State. Id. at 204, 990 P.2d at 102.
By contrast, when a delay results from a more neutral
reason, we have held that the second Barker factor weighs in
favor of the defendant. In Lau, the defendants contended that
the reasons for the delay were court congestion and the State’s
determination to try every case involving a charge of driving
under the influence of an intoxicant. 78 Hawaii at 63, 890 P.2d
at 300. In response, the State conceded that court congestion
was present but argued that the evolution of caselaw in Hawaii
constituted “unique circumstances” that led to the backlog of
cases. Id. The Lau court acknowledged that the State’s
contention had some merit, but found that there was no
indication that the defendants were responsible for the delay in
bringing the case to trial. Id. “[W]hile court congestion is a
‘more neutral’ reason that ‘counts less heavily against the
State than would a deliberate delay,’” the court held, “it
nevertheless still tips the scales in favor of [the defendants],
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since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.” Id.
(quoting Wasson, 76 Hawaii at 420, 879 P.2d at 525). Thus, the
Lau court concluded that the second Barker factor weighed in
favor of the defendants. Id.
Even when the defendant is partially responsible for
the delay, this court has held that the second Barker factor may
tip in favor of the defendant. In State v. Dwyer, the
defendant’s trial was continued three times. One of the
continuances was due to the defendant’s counsel falling ill, and
one was at the request of the State because it was unable to
proceed to trial.26 78 Hawaii 367, 371, 893 P.2d 795, 799
(1995). The Dwyer court found that there was no attempt by the
State to deliberately delay the defendant’s trial. Id.
Nonetheless, it concluded that, on balance, the reasons-for-the-
delay factor weighed in favor of the defendant. Id. Similarly,
in Wasson, both the State and the defendant shared some
responsibility for the delay in the defendant’s trial. 76
Hawaii at 419-20, 879 P.2d at 524-25. The reasons for the delay
included court congestion, two failures to appear by the
26
The court in Dwyer found that the record was insufficient to
determine the reason for one of the continuances. State v. Dwyer, 78 Hawaii
367, 371, 893 P.2d 795, 799 (1995).
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defendant, and the defendant’s two motions for continuances.
Id. This court held that, while court congestion was a “more
neutral” reason that counted less heavily against the State and
was offset to a degree by the defendant’s own actions, the
second Barker factor nonetheless tipped in favor of the
defendant “since the ultimate responsibility for such
circumstances must rest with the government rather than with the
defendant.” Id. at 420, 879 P.2d at 525 (quoting Barker, 407
U.S. at 531).
In this case, although the ICA determined that the
State was primarily responsible for the delay, it held that the
reasons-for-the-delay factor weighed slightly in favor of the
State. Visintin, 142 Hawai‘i at 141, 414 P.3d at 193. The ICA
held that the State’s proffered justifications--that the
assigned prosecutor was unavailable and that the prosecutor’s
office underwent a change in leadership--provided “a reasoned
basis for the delay and are weighted less heavily.” Id. The
ICA did not directly state that Visintin was responsible for any
portion of the delay between his arrest on August 7, 2012, and
his arraignment on August 6, 2013, though the ICA appeared to
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suggest the delay in returning Visintin to Hawai‘i to stand trial
may be attributable to him.27 See id.
In Dwyer, the State moved to continue the trial
because it was unable to proceed with the case, and we held that
the second Barker factor tipped in favor of the defendant. 78
Hawai‘i at 371, 893 P.2d at 799. Likewise, this court in Wasson
weighed the second Barker factor in favor of the defendant when
court congestion was alleged as a reason for the delay. 76
Hawaii at 419, 879 P.2d at 524. The State submitted in this
case that it could not proceed with trial because the assigned
deputy prosecutor was busy with trials in other cases and there
was a change in leadership at the prosecutor’s office.28 But the
workload of a deputy prosecutor, the election of a new
prosecutor, and court congestion all share common features in
that they are in all but exceptional circumstances recurring,
systemic, foreseeable, and ultimately the government’s
responsibility.
27
As discussed supra, this suggestion is contrary to the circuit
court’s findings on the matter.
28
At the hearing on the motion to dismiss, the circuit court
appeared to reject the State’s reason for the delay based upon the assigned
prosecutor’s trial schedule, stating that it was not aware of any cases in
which the court “has said, ‘Ms. [Prosecutor], you’re busy, so we can infringe
on defendant’s right to, you know, a timely trial.’”
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Hence, the ICA misapprehended applicable principles in
evaluating the second Barker factor. Cf. State v. Hanawahine,
69 Haw. 624, 631, 755 P.2d 466, 470 (1988) (holding that the
defendant’s late arraignment that resulted from the assigned
prosecutor’s workload was “not good cause for the delay [under
HRPP Rule 48(c)(8)] given that [the prosecutor’s] problem is not
that unusual” (citing State v. Gillis, 63 Haw. 285, 626 P.2d 190
(1981) (per curiam))); State v. Dunphy, 71 Haw. 537, 543, 797
P.2d 1312, 1315 (1990) (analyzing the defendant’s due process
argument and determining that the period of delay resulting from
the “malfunctions in the staffing at the Prosecutor’s Office, is
unreasonable and inexcusable”).
ii. Assertion of the Right to a Speedy Trial
The ICA also incorrectly applied legal principles
relating to the third Barker factor: the assertion of the right
to a speedy trial. We have stated that “[a] defendant has no
duty to bring himself [or herself] to trial; the [S]tate has
that duty.” Wasson, 76 Hawaii at 420, 879 P.2d at 525
(alterations in original) (quoting Barker, 407 U.S. at 527).
“Thus, a defendant does not waive his or her right to a speedy
trial by failing to demand one.” Id. (citing Barker, 407 U.S.
at 526). However, the assertion of the right to a speedy trial
“is entitled to strong evidentiary weight in determining whether
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the defendant is being deprived of the right.” Id. (quoting
Barker, 407 U.S. at 531-32).
A defendant’s motion to dismiss based on speedy trial
“is ‘tantamount to an assertion of his [or her] constitutional
right to a speedy trial.’” Id. at 420-21, 879 P.2d at 525-26
(alteration in original) (quoting State v. Nihipali, 64 Haw. 65,
70 n.5, 637 P.2d 407, 412 n.5 (1981)). Nonetheless, the motion
“does not necessarily indicate that the defendant actually wants
to be tried immediately” unless accompanied by an alternative
demand for a speedy trial. Id. at 421, 879 P.2d at 526 (citing
United States v. Loud Hawk, 474 U.S. 302, 314 (1986)).
In concluding that this factor weighed in favor of the
State, the ICA determined that nothing in the record, other than
Visintin’s motion to dismiss, indicated that Visintin asserted
the right to a speedy trial. Visintin, 142 Hawai‘i at 141-42,
414 P.3d at 193-94. The ICA’s holding overlooks the significant
circumstance that there appears to have been no conventional
forum in which Visintin could have asserted the right to a
speedy trial.
Although Visintin was arrested on August 7, 2012, he
was not charged until more than seven months later on April 25,
2013. During the period between the arrest and the indictment,
there was no pending charge against Visintin. Visintin aptly
notes that it “is unfair to require that a defendant demand a
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speedy trial after he has been accused, but then refuse to
create an actual case in which defendant can make a timely
demand.” Without a pending charge and an arraignment to allow a
trial to be set, there does not appear to have been any standard
legal proceeding in which Visintin could have demanded a speedy
trial. And when Visintin was finally arraigned on August 6,
2013, he filed a motion to dismiss based on speedy trial grounds
within two weeks--on August 20, 2013.29 Thus, the ICA erred in
concluding this factor weighed in favor of the State without
considering whether Visintin raised the issue of speedy trial as
soon as was practicable under the circumstances.30
iii. Prejudice to the Defendant
Prejudice to the defendant “should be assessed in the
light of the interests of defendants [that] the speedy trial
right was designed to protect.” Lau, 78 Hawaii at 64, 890 P.2d
at 301 (quoting Barker, 407 U.S. at 532). These interests are
the prevention of oppressive pretrial incarceration, the
29
Although the motion was not accompanied by an alternate demand
for a speedy trial, more than a year had already elapsed by the time Visintin
was arraigned and a demand for speedy trial could have been made. A period
of even six months delay is deemed sufficient to warrant an inquiry into the
remaining Barker factors, and thus even a demand for immediate trial would
not have resulted in a “speedy” trial under our precedents. Lau, 78 Hawai‘i
at 63, 890 P.2d at 300.
30
Indeed, the State itself acknowledged in its answering brief to
the ICA that the third Barker factor potentially weighed in favor of
Visintin.
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minimization of the defendant’s anxiety and concern, and the
preservation of the ability to mount an effective defense. Id.
With regard to anxiety, the ICA concluded in this case
as follows:
The government will prevail unless the defendant offers
objective, contemporaneous evidence of anxiety, such as
prompt and persistent assertion of the desire for a speedy
trial coupled with a demonstrable basis for the court’s
believing the delay is traumatic. State v. Ferraro, 8 Haw.
App. 284, 300, 800 P.2d 623, 632 (1990) (citation and
internal brackets omitted). Visintin has not offered such
evidence here.
Visintin, 142 Hawai‘i at 142, 414 P.3d at 194 (emphases added).
While the ICA correctly stated that to demonstrate anxiety, the
defendant must offer objective, current evidence, the ICA
incorrectly applied Ferraro to require that Visintin offer
evidence that he demanded a speedy trial in order to demonstrate
anxiety.
We have stated the following in addressing the issue
of prejudice in the speedy trial context:
[W]holly aside from possible prejudice to a defense on the
merits, [inordinate delay] may seriously interfere with the
defendant’s liberty, whether he is free on bail or not, and
. . . may disrupt his employment, drain his financial
resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family and his
friends.
Lau, 78 Hawaii at 65, 890 P.2d at 302 (alterations in original)
(quoting Moore v. Arizona, 414 U.S. 25, 27 (1973)). Thus,
because anxiety may be based on a variety of circumstances,
evidence of anxiety may take a variety of forms. The Ferraro
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court specifically recognized this fact when it used the phrase
“such as,” followed by examples of what may constitute evidence
of anxiety depending on the circumstances of the case. 8 Haw.
App. at 300, 800 P.2d at 632.
Although we have in the past held that a defendant’s
demand for a speedy trial may be relevant evidence of anxiety,
we have never indicated that it is a necessary precondition for
a showing of anxiety.31 When the defendant has raised financial
circumstances as a basis for asserted anxiety, for example,
Hawaii courts have considered whether there was a demand for
speedy trial as evidence that the defendant was indeed impacted
by the alleged financial hardship. In Lau, the defendants
contended that they suffered from anxiety due to increased
automobile insurance premiums. 78 Hawaii at 64, 890 P.2d at
301. In assessing whether the prejudice factor weighed in favor
of the defendants, this court considered, inter alia, that the
defendants had not asserted their right to a speedy trial and
concluded that the record did not show that the alleged
financial hardship was sufficient to warrant a finding of
prejudice to the defendants. Id. at 65, 890 P.2d at 302.
31
Such a holding would render the fourth Barker factor largely
redundant, as its parameters would almost entirely overlap with the third
Barker factor, which directly considers whether the defendant has asserted
the right to a speedy trial. A failure to demand a speedy trial would thus
negate both factors, regardless of any actual prejudice the defendant
demonstrates.
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In this case, whether Visintin demanded a speedy trial
is not an appropriate consideration as evidence of anxiety.
Visintin did not allege a financial hardship as a basis for any
asserted anxiety.
Moreover, as discussed supra, Visintin could not have
readily demanded a speedy trial during the period between the
initial court proceeding and the arraignment, as there was no
pending charge against him. Thus, the ICA misapprehended
Ferraro by improperly considering the absence of an assertion of
the right to a speedy trial by Visintin as a factor indicating
that there was no evidence of anxiety.
2. Excessive Bail
Under HRS § 804-1 (1993), bail is defined as “the
signing of the recognizance by the defendant and the defendant’s
surety or sureties, conditioned for the appearance of the
defendant at the session of a court of competent jurisdiction to
be named in the condition, and to abide by the judgment of the
court.” While the amount of bail rests within the discretion of
the judge, HRS § 804-9 (1993), article I, section 12 of the
Hawaii Constitution prohibits excessive bail. Sakamoto v. Won
Bae Chang, 56 Haw. 447, 450, 539 P.2d 1197, 1199 (1975). “In
all cases, the officer letting to bail should consider the
punishment to be inflicted on conviction, and the pecuniary
circumstances of the party accused.” HRS § 804-9.
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The ICA declined to reach Visintin’s argument that his
right against excessive bail was violated, concluding that
“there is no independent basis for dismissing the criminal
charges against Visintin based on his claim of excessive bail.”
State v. Visintin, 142 Hawai‘i 126, 143, 414 P.3d 178, 195 (App.
2018). The ICA’s ruling may potentially be interpreted
overbroadly as an apparent categorical exclusion on dismissal
based on violations of a defendant’s bail-related rights.
However, courts in other jurisdictions have held that the denial
of bail may warrant dismissal of the case with prejudice under
certain circumstances. For example, in City of Jamestown v.
Erdelt, the defendant was arrested for driving under the
influence of alcohol (DUI) and was detained for a period of
eight hours before being allowed to post bail. 513 N.W.2d 82,
83 (N.D. 1994). The trial court granted the defendant’s motion
to dismiss the DUI charge. Id. The Supreme Court of North
Dakota affirmed the trial court’s dismissal “as a sanction for
institutional non-compliance and systematic disregard of the
law.” Id. at 85-86 (citations omitted). The court reasoned
that the arresting officer had detained the defendant without
making an individualized determination of the intoxication and
dangerousness of the defendant--in violation of the bail
statutes and case precedent. Id. at 86.
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Similarly, in State v. Cuchy, DUI arrestees were
jailed for twelve hours, based on the sheriff department’s
policy, before being allowed to post bond. 19 P.3d 152, 153
(Kan. 2001). The Kansas Supreme Court determined that the
officers made no individualized determinations of whether the
arrestees were intoxicated and dangerous, instead detaining them
based solely on the blanket policy. Id. at 158. The court held
that the defendants were denied their constitutional right to
make bail. Id. However, because “the officers did not
disregard a previous ruling or decision by the district court in
detaining the defendants,” the court concluded that dismissals
were not warranted. Id. at 159-60.
In light of Erdelt and Cuchy, there is legal authority
for the proposition that criminal charges against a defendant
may be dismissed based on violations of the right to bail under
certain circumstances, including when law enforcement denies
bail pursuant to a blanket policy of jailing DUI arrestees for
several hours. Nevertheless, even if this court applied the
holding in Erdelt and Cuchy, a dismissal of the charges against
Visintin would not be warranted. While the circumstances in
this case raise serious concerns as to the number of times
Visintin was subject to arrest and the posting of bail for a
single incident, the circumstances are not similar to those
presented in Erdelt and Cuchy. Cf. Lock v. Moore, 541 N.W.2d
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84, 87 (N.D. 1995) (unlike in Erdelt, “this is not a case of a
person meeting all the bail requirements but nonetheless being
kept in jail”). Because the circumstances in this case do not
rise to the level of a violation of the right against excessive
bail, Visintin has not demonstrated that this constitutional
right was violated.32
V. CONCLUSION
Based on the foregoing, the ICA’s March 20, 2018
Judgment on Appeal is affirmed in part and vacated in part. The
ICA’s judgment on appeal is affirmed to the extent that it
vacated the circuit court’s judgment and remanded the case to
the circuit court for dismissal, with or without prejudice as
determined by that court, based on a finding of a HRPP Rule 48
violation. The ICA’s judgment on appeal is vacated insofar as
it considered Visintin’s speedy trial motion and concluded that
Visintin’s right to speedy trial was not violated. The case is
remanded to the circuit court for further proceedings. If, on
remand, the circuit court decides that the Rule 48 violation
warrants a dismissal without prejudice, the circuit court must
then rule on Visintin’s speedy trial motion, rendering findings
32
It is noted that Visintin also asserted in his motion to dismiss
that his right to due process was violated by the State’s “unilateral”
decision not to charge him when bail was initially set and then to “seek
multiple arrests and successive re-postings of bail.” This argument is not
raised on certiorari to this court.
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of facts and conclusions of law and applying the factors set
forth in Barker v. Wingo, 407 U.S. 514 (1972), consistent with
this opinion.
Tracy Murakami /s/ Mark E. Recktenwald
for petitioner/respondent
/s/ Paula A. Nakayama
Daniel G. Hempey
for respondent/petitioner /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
54