NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-JUN-2021
08:03 AM
Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
ADAM NATHANAEL, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KANE#OHE DIVISION
(CASE NO. 1DTC-18-071132)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Adam Nathanael (Nathanael) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), entered on November 12, 2019, in the
District Court of the First Circuit, Kane#ohe Division (District
Court).1/ Following a bench trial, Nathanael was convicted of
Operating a Vehicle After License and Privilege Have Been
Suspended or Revoked for Operating a Vehicle Under the Influence
of an Intoxicant (OVLPSR-OVUII), in violation of Hawaii Revised
Statutes (HRS) § 291E-62(a)(1) and (a)(2) (Supp. 2017).2/
1/
The Honorable Michelle N. Comeau presided.
2/
HRS § 291E-62 provides, in relevant part:
§ 291E-62 Operating a vehicle after license and
privilege have been suspended or revoked for operating a
vehicle under the influence of an intoxicant; penalties.
(a) No person whose license and privilege to operate a
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On appeal, Nathanael contends that the District Court
erred in denying Nathanael's motion to dismiss the charges then
pending against him for violation of Hawai#i Rules of Penal
Procedure (HRPP) Rule 483/ (Rule 48 Motion).4/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we vacate the
Judgment and remand to the District Court with instructions.
2/
(...continued)
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
section 291E-61 or 291E-61.5, or to part VII or part XIV of
chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or
291-7 as those provisions were in effect on December 31,
2001, shall operate or assume actual physical control of any
vehicle:
(1) In violation of any restrictions placed on the
person's license; [or]
(2) While the person's license or privilege to
operate a vehicle remains suspended or
revoked[.]
3/
HRPP Rule 48 provides, in relevant part:
(b) . . . 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 6 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[.]
. . . .
(c) Excluded periods. The following periods shall be
excluded in computing the time for trial commencement:
. . . .
(3) periods that delay the commencement of trial and
are caused by a continuance granted at the request or
with the consent of the defendant or defendant's
counsel[.]
4/
When Nathanael filed his Rule 48 Motion, a charge of Driving
Without Motor Vehicle Insurance, in violation of HRS § 431:10C-104(a), was
also pending against him. Nathanael was acquitted of this charge at trial.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Nathanael contends that because trial did not commence
within 180 days5/ of the filing of the charges against him, as
properly computed under HRPP Rule 48, the District Court erred in
denying Nathanael's Rule 48 Motion. Specifically, Nathanael
argues that in computing the time for trial commencement under
HRPP Rule 48, the District Court erred by excluding: (1) the
filing date of the complaint, November 27, 2018; and (2) the 28-
day period from February 21, 2019, to March 21, 2019, pursuant to
HRPP Rule 48(c)(3). Nathanael concludes that had this total
period of 29 days not been excluded, "the [180-]day period within
which trial must commence under HRPP Rule 48 would have expired."
Under these circumstances, where Nathanael was not
arrested and was charged by complaint, the District Court was
required, upon Nathanael's Rule 48 Motion, to dismiss the charges
"if trial [was] not commenced within 6 months . . . from the
filing of the charge[s.]" HRPP Rule 48(b)(1). The charges were
filed by complaint on November 27, 2018. See HRPP Rule 7(a)
("The charge against a defendant is . . . a complaint filed in
court[.]") Thus, the District Court should have computed the
180-day period prescribed by Rule 48 starting from November 27,
2018.6/ In fact, the District Court recognized that the complaint
was filed on November 27, 2018, but started its computation from
November 28, 2018, "for the sake of convenience because it's
going to allow [the court] to track Exhibit A which has been
prepared by the defense." This start date led the court to
conclude that "between November 28th and December 27th, that's 29
days that are included." This was error, as the period from
November 27, 2018, to December 27, 2018, was 30 days, and the
District Court thus improperly excluded one day from its Rule 48
calculation.7/
5/
"The six-month period under HRPP Rule 48 is equivalent to 180
days." State v. Alkire, 148 Hawai#i 73, 86, 468 P.3d 87, 100 (2020) (quoting
State v. Hernane, 145 Hawai#i 444, 450, 454 P.3d 385, 391 (2019)).
6/
Under HRPP Rule 45, "the day of the act or event from which the
designated period of time begins to run shall not be included." Thus, the
period at issue from November 27, 2018, to December 27, 2018, was 30 days.
7/
In its answering brief, the State "agrees that the District Court
erred in starting the calculation for Rule 48 on November 28 as opposed to
(continued...)
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
The District Court excluded the 28-day period from
February 21, 2019, to March 21, 2019, based on the following
reasoning:
January 24th to . . . February 21st, okay, so on the
24th defendant was present and represented by counsel at
that time. So defendant through his counsel asked to
continue this case because there was [a] potential plea
negotiation with the Prosecutor's Office. And so what
happened after that was there was a status [hearing] that
was set to figure out what was going on with the plea, and
then subsequently trial was set, so I find that the period
between . . . January 24th and February 21st falls under
Rule 48(c)(3) delay due to request of defendant and so that
is excluded for purposes of Rule 48.
And then likewise . . . the resetting which followed
on when it was determined that there was no potential plea.
Okay. And, again, you can see in the minutes, and neither
side is disputing the minutes are correct, although I
understand defense is, like I said, reframing it, yet the
defense made the request to reset.
Thus, it appears that the District Court excluded the periods
from January 24, 2019, to February 21, 2019, and from
February 21, 2019, to March 21, 2019, pursuant to HRPP Rule
48(c)(3), as "periods that delay[ed] the commencement of trial
and [were] caused by a continuance granted at the request or with
the consent of" Nathanael or his counsel. HRPP Rule 48(c)(3).
The parties do not dispute that the period from
January 24, 2019, to February 21, 2019, was properly excluded
under HRPP Rule 48(c)(3). At a January 24, 2019 status hearing,
Nathanael's counsel requested "a continuance for status" to
pursue "possible plea negotiations." The District Court
"continue[d] this one month for status" and set a status hearing
for February 21, 2019.
The disputed issue is whether the period from
February 21, 2019, to March 21, 2019, was also properly excluded
under HRPP Rule 48(c)(3). On February 21, 2019, Nathanael was
present in court with counsel, and the following exchange
occurred:
7/
(...continued)
November 27. So that entitles Defendant to one additional day."
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
[DPA]: Your Honor, calling cases 26 and 27, Adam
Nathanael, 1DTC 18-007671 and 1DTC XX-XXXXXXX. 8/
[DEFENSE COUNSEL]: Good morning, Your Honor. Deputy
Public Defender . . . on behalf of Adam Nathanael who's
present to my left, Your Honor, for both cases we would just
set these matters for trial.
I believe that we'll –
THE COURT: No deal then?
[DEFENSE COUNSEL]: We weren't able to come to an
agreement, yeah, there was no agreement reached.
THE COURT: So set for trial.
THE CLERK: Will be March 21st.
(Footnote added.) Nathanael argues that the setting of trial,
and thus the period from February 21, 2019, to March 21, 2019,
was not a continuance granted at the request or with the consent
of Nathanael or his counsel. The State argues:
If that time were not excluded, then it would always be to a
defendant's benefit to repeatedly — whether in good faith or
not — continue status hearings under the guise of plea
negotiations so that in the end defendant could seek a
dismissal based on Rule 48. In fact, as the District Court
observed, the minutes reflect that Defendant's request to
set the matter for trial was granted and the case was set
for March 21, 2019. The District Court properly excluded
the time.
Initially, we note that on this record, the State has
not shown that Nathanael was not acting in good faith on
January 24, 2019, when he requested a continuance to pursue
possible plea negotiations. Further, the State offers no
authority for its position that when Nathaniel later informed the
court that no plea agreement had been reached and requested that
trial be set, the succeeding 28-day period "delay[ed] the
commencement of trial and [was] caused by a continuance granted
at the request or with the consent of" Nathanael or his counsel.
HRPP Rule 48(c)(3); cf. State v. Choy Foo, 142 Hawai#i 65, 73 414
P.3d 117, 125 (2018) ("When applying HRPP Rule 48(c)(1), the
trial court's two inquiries are: (1) whether the period actually
8/
Nathanael was also charged with OVLPSR-OVUII, in violation of HRS
§ 291E-62(a)(1) and (a)(2), in Case No. 1DTC-18-007671. See State v.
Nathanael, No. CAAP-XX-XXXXXXX, 2021 WL 1553857, at *1 (Haw. App. Apr. 20,
2021) (SDO).
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
delays the commencement of trial; and (2) whether the period is
'caused by collateral or other proceedings concerning the
defendant.'" (footnote omitted))
"The court's interpretation of HRPP Rule 48 must begin
with the plain language of the rule." Choy Foo, 142 Hawai#i at
73 414 P.3d at 125. HRPP Rule 48(c)(3) excludes periods of delay
that are "caused by a continuance granted at the request or with
the consent of the defendant or defendant's counsel." (Emphasis
added.) In these circumstances, where trial had never been set,
Nathanael's request to set trial was not a request for a
continuance, and the court's setting of trial was not a
continuance granted at the request or with the consent of
Nathanael or his counsel. "[I]f a time period is not excluded
from calculation by [HRPP Rule 48], it is included in the
calculation." Choy Foo, 142 Hawai#i at 75, 414 P.3d at 127.
Thus, the 28-day period at issue should have been included in
computing the time within which trial had to commence, and the
District Court improperly excluded that period.
We conclude that the District Court erred in excluding
a total of 29 days from the court's Rule 48 calculation.
Including that time period, the State did not bring Nathanael to
trial within the 180-day period set forth in HRPP Rule 48.9/
Accordingly, the District Court erred in denying Nathanael's Rule
48 Motion.
For these reasons, we vacate the District Court's
November 12, 2019 Judgment with respect to Nathanael's OVLPSR-
OVUII conviction, and we remand the case with instructions that
the District Court: (1) enter an order dismissing the OVLPSR-
OVUII charge against Nathanael pursuant to HRPP Rule 48; (2)
consider the factors identified in State v. Estencion, 63 Haw.
264, 625 P.2d 1040 (1981), in determining whether to dismiss the
charge with or without prejudice; and (3) make findings that
9/
Although the District Court initially set trial for March 21,
2019, Nathanael's trial was subsequently continued several times and
eventually occurred on November 12, 2019. The parties do not dispute the
District Court's treatment of these additional continuances for purposes of
the court's Rule 48 calculation.
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
clearly articulate the effect of the Estencion factors and any
other factor the court considers in rendering its decision.
DATED: Honolulu, Hawai#i, June 17, 2021.
On the briefs:
/s/ Katherine G. Leonard
Andrew I. Kim, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
7