State v. Lungoci ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-JUN-2022
07:48 AM
Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MICHAEL LUNGOCI, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-20-00722)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Michael Lungoci (Lungoci) appeals
from the February 16, 2021 Notice of Entry of Judgment and/or
Order and Plea/Judgment (Judgment), entered by the District Court
of the First Circuit, Honolulu Division (District Court).1
On March 11, 2020, Lungoci was charged by complaint
with Operating a Vehicle Under the Influence of an Intoxicant, in
violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1),
(b)(1).2 Lungoci requested to dismiss the case based on, inter
1
The Honorable James C. McWhinnie presided.
2
HRS § 291E-61 (Supp. 2019), entitled "Operating a vehicle under
the influence of an intoxicant," provides in pertinent part:
(a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the
person operates or assumes actual physical control of
a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal mental
faculties or ability to care for the person and guard
against casualty[.]
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
alia, "the length of this case[.]" On February 16, 2021, the
District Court dismissed the case without prejudice.
Lungoci raises a single point of error on appeal,
arguing that the District Court erred in dismissing the case
without prejudice or, at the very least, the case should be
vacated and remanded for findings in support of dismissing with
or without prejudice. While Plaintiff-Appellee State of Hawai#i
(State) argues that the District Court did not abuse its
discretion in dismissing the case without prejudice, the State
"acknowledges" that the District Court did not indicate its
reasons for dismissing the case without prejudice and did not
affirmatively state that it considered the Estencion3 factors and
then clearly articulate its findings on the record.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Lungoci's point of error as follows, and vacate and
remand for findings.
"In criminal cases, 'the power of a court to dismiss a
case on its own motion for failure to prosecute with due
diligence is inherent.'" State v. Mageo, 78 Hawai#i 33, 37, 889
P.2d 1092, 1096 (App. 1995) (emphasis and brackets omitted)
(quoting Estencion, 63 Haw. at 268, 625 P.2d at 1043). A trial
court has the inherent power to dismiss a charge with or without
prejudice, but must clearly articulate the reasons for its
2
(...continued)
. . . .
(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be
sentenced without possibility of probation or
suspension of sentence as follows:
(1) For the first offense, or any offense not
preceded within a ten-year period by a conviction for
an offense under this section or section 291E-4(a)[.]
3
See State v. Estencion, 63 Haw. 264, 269, 625 P.2d 1040, 1044
(1981) (dismissal with or without prejudice for violation of HRPP Rule 48
requires consideration of: "the seriousness of the offense; the facts and the
circumstances of the case which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter and on the administration
of justice.").
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
decision so that a reviewing court may accurately assess whether
the trial court duly exercised its discretion. See id. at 37-38,
889 P.2d at 1096-97; see also State v. Hern, 133 Hawai#i 59, 64,
323 P.3d 1241, 1246 (App. 2013), abrogated on other grounds by
State v. McKeown, No. CAAP-XX-XXXXXXX, 2021 WL 2182355, at *1
(App. May 28, 2021) (holding that in determining whether to
dismiss a charge with or without prejudice under Hawai#i Rules of
Penal Procedure (HRPP) Rule 48(b), the trial court must "clearly
articulate the effect of the . . . factors [set forth in
Estencion, 63 Haw. at 269, 625 P.2d at 1044] and any other factor
it considered in rendering its decision").
Here, the District Court did not provide any
explanation for its decision to dismiss the case without
prejudice. We conclude that the record in this case is
inadequate for this court to meaningfully review whether the
District Court properly exercised its discretion in dismissing
the case without prejudice. See Hern, 113 Hawai#i at 64, 323
P.3d at 1246.
For the foregoing reasons, the February 16, 2021 Notice
of Entry of Judgment and/or Order and Plea/Judgment is vacated,
and this case is remanded to the District Court to enter
appropriate findings to support its decision to dismiss without
prejudice and for further proceedings as may be necessary
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, June 23, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Richard L. Holcomb, Chief Judge
(Holcomb Law, LLLC)
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
3