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Electronically Filed
Supreme Court
SCPW-17-0000739
22-DEC-2017
09:01 AM
SCPW-17-0000739
IN THE SUPREME COURT OF THE STATE OF HAWAII
RANDALL ABE, Petitioner,
vs.
THE HONORABLE PAULA DEVENS, Per Diem Judge of the
District Court of the First Circuit,
State of Hawaii, Respondent Judge,
and
STATE OF HAWAII, Respondent.
ORIGINAL PROCEEDING
(CASE NO. 1DCW-17-0003781)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner Randall Abe seeks a writ of mandamus
directing the Honorable Paula Devens (Judge Devens) to release
him from custody forthwith pursuant to the requirement that a
defendant be released upon motion if a preliminary hearing has
not commenced within two days of the defendant’s initial
appearance. See Hawaii Rules of Penal Procedure (HRPP) Rule
5(c)(3) (2014).
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On October 11, 2017, Abe was arrested for terroristic
threatening in the first degree and assault in the second
degree. On October 13, 2017, a complaint charging Abe with the
offenses for which he was arrested was filed in the District
Court of the First Circuit (district court).
A preliminary hearing was scheduled for October 17,
2017. At the scheduled hearing, the State requested to continue
the hearing for one week, explaining that the complaining
witness had not been served with a subpoena. The State
indicated that the complaining witness had been in contact with
its investigator and that it had no information that the
complaining witness was not cooperative. The State added that
the complaining witness lives in low-income housing in Kapolei
and thus transportation may be an issue. Abe objected to the
requested continuance, arguing that there was no good cause for
the continuance given that the complaining witness had been in
contact with the State’s investigator. Abe requested that the
matter be dismissed and that Abe be released on his own
recognizance forthwith. In the alternative, Abe requested that
bail be reduced or that, if the court was inclined to continue,
the hearing be continued for no more than one day.
The district court found that there was good cause for
a continuance and continued the hearing for one week; the court
also denied Abe’s request for reduction of bail. On October 24,
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2017, while this petition was pending, the State charged Abe by
grand jury indictment.
In his petition, Abe contends that, pursuant to HRPP
Rule 5(c)(3), Judge Devens was required to release him on his
own recognizance upon his request because a preliminary hearing
did not commence within two days after his initial appearance.
HRPP Rule 5(c)(3) provides in relevant part as follows:
if the defendant is held in custody for a period of more
than 2 days after initial appearance without commencement
of a defendant’s preliminary hearing, the court, on motion
of the defendant, shall release the defendant to appear on
the defendant’s own recognizance, unless failure of such
determination or commencement is caused by the request,
action or condition of the defendant, or occurred with the
defendant’s consent, or is attributable to such compelling
fact or circumstance which would preclude such
determination or commencement within the prescribed period,
or unless such compelling fact or circumstance would render
such release to be against the interest of justice.
In Moana v. Wong, No. SCPW-17-0000532, 2017 WL 5591471, at *8-10
(Haw. Nov. 21, 2017), we held that HRPP Rule 5(c)(3) provides a
strong presumption that the release of a defendant held in
custody is required upon motion, when a preliminary hearing has
not commenced within two days of initial appearance. When a
delay is not caused by a defendant and occurs without the
defendant’s consent, a court may deny a defendant’s motion for
release only in a circumstance that is of such gravity as to
overcome the strong presumption of release. Id. If such a
compelling circumstance is found, the continuance of the
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preliminary hearing must be no longer than needed to resolve the
circumstance making the delay necessary. Id.
Based on Moana, the record does not indicate that any
compelling fact or circumstance was implicated in Abe’s case.
And even if there was a compelling fact or circumstance, the
continuance was not limited to the time necessary to
expeditiously resolve the circumstance precluding the hearing.
However, because Abe was charged by grand jury indictment during
the pendency of this petition, which obviates the need for a
preliminary hearing, the petition is moot. See id. at *3-5.
Accordingly,
IT IS HEREBY ORDERED that Abe’s petition is denied.
DATED: Honolulu, Hawaii, December 22, 2017.
James S. Tabe /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Patricia Kickland
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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