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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUL-2022
07:49 AM
Dkt. 50 MOP
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
LUKE JENSEN LAMAKU-O-KA-NA#AUA RITA, Defendant/Appellant
APPEAL FROM THE FAMILY COURT OF THE FIFTH CIRCUIT
(CASE NO. 5FFC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
In this interlocutory appeal, Defendant-Appellant Luke
Jensen Lamaku-O-Ka-Na'aua Rita (Rita) appeals from the July 8,
2020 Findings of Fact, Conclusions of Law (FOFs/COLs), and Order
Denying Defendant's Motion to Dismiss With Authorities (Order
Denying Motion to Dismiss) filed by the Family Court of the Fifth
Circuit (Family Court).1
On appeal, Rita contends that the Family Court
"committed plain error"2 when it denied Rita's Motion to Dismiss
With Authorities based on Hawai#i Rules of Penal Procedure (HRPP)
1
The Honorable Edmund D. Acoba presided.
2
Rita contends that the Family Court committed "plain" error in
denying his Motion to Dismiss. An appellate court may recognize plain error
if the error was "not brought to the attention of the court." HRPP Rule 52(b)
(emphasis added). The record reflects that Rita's Motion to Dismiss was fully
litigated before the Family Court. We construe Rita's contention as error,
but not as plain error. See id.; State v. Engelby, 147 Hawai #i 222, 231-32,
465 P.3d 669, 678-79 (2020) (quoting HRPP Rule 52(b)).
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Rule 483 (Rule 48 Motion to Dismiss), because Rita "was not
afforded a trial within the 6-month after arrest guarantee of
Rule 48 and that the failure to do so was not excusable." While
3
HRPP Rule 48 provides in pertinent part, that
. . . .
(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; or
(2) from the date of re-arrest or re-filing of the
charge, in cases where an initial charge was dismissed
upon motion of the defendant; or
(3) from the date of mistrial, order granting a new
trial or remand, in cases where such events require a
new trial.
. . . .
(c) Excluded Periods. The following periods shall be
excluded in computing the time for trial commencement:
(1) periods that delay the commencement of trial and
are caused by collateral or other proceedings
concerning the defendant, including but not limited to
. . . pretrial motions . . .;
. . . .
(5) periods that delay the commencement of trial and
are caused by the absence or unavailability of the
defendant;
. . . .
(8) other periods of delay for good cause.
(d) Per se excludable and includable periods of time
for purposes of subsection (c)(1) of this rule.
(1) For purposes of subsection (c)(1) of this rule,
the period of time, from the filing through the
prompt disposition of the following motions filed by
a defendant, shall be deemed to be periods of delay
resulting from collateral or other proceedings
concerning the defendant: motions to dismiss . . . .
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not specifically raised in his Point of Error,4 Rita challenges
COL 3, which states:
3. The period of delay from April 6, 2020 through July
6, 2020 is an excludable period of time for purposes of the
above-stated six-month timeframe as a period of delay for
good cause due to (a) the ongoing State of Emergency
resulting from the worldwide COVID-19 pandemic and (b) the
above-mentioned Orders of the Supreme Court of the State of
Hawai#i and the Chief Judge of the Circuit Court of the
Fifth Circuit, State of Hawai#i. HRPP Rule 48(c)(8).
Rita disputes the date of the Rule 48 deadline, and raises
various arguments that Chief Justice Mark E. Recktenwald's (Chief
Justice) Order of March 16, 2020 regarding the COVID-19 emergency
(Chief Justice's March 16, 2020 Order) was erroneously applied to
his case.
We hold that the Family Court did not err in applying
the Chief Justice's March 16, 2020 Order to this case, and in
concluding that there was no Rule 48 violation. We therefore
affirm.
I. BACKGROUND
On July 7, 2019, Rita was arrested for Violation of a
Protective Order under Hawaii Revised Statutes (HRS) § 586-11(a).
Bail was set, and Rita bailed out of custody two days later.
On July 9, 2019, Plaintiff-Appellee State of
Hawai#i (State) charged Rita via Complaint with Violation of an
Order for Protection in violation of HRS § 586-11(a). On
4
Rita appeals from the FOFs/COLs and Order Denying Motion to
Dismiss, but his Opening Brief does not quote any findings or conclusions
urged as error or refer to appended findings or conclusions in the Point of
Error section, as required by Hawai#i Rules of Appellate Procedure (HRAP) Rule
28(b)(4)(C). However, quotations of COLs 1, 2, and 3 are set forth in the
Argument section of the Opening Brief, and it is apparent that Rita challenges
COL 3, which we address infra. See Marvin v. Pflueger, 127 Hawai #i 490, 496,
280 P.3d 88, 94 (2012) (internal citations, quotation marks, brackets,
ellipses omitted) ("[N]oncompliance with Rule 28 does not always result in
dismissal of the claims, and this court has consistently adhered to the policy
of affording litigants the opportunity to have their cases heard on the
merits, where possible. This is particularly so where the remaining sections
of the brief provide the necessary information to identify the party's
argument.").
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September 23, 2019, Rita waived his right to a jury trial and
requested a jury-waived trial, which the Family Court set for
December 2, 2019. On December 2, 2019, Rita did not appear for
trial, resulting in the Family Court ordering a bench warrant.
On December 23, 2019, the Family Court granted recall
of the bench warrant. On January 13, 2020, the Family Court
appointed new counsel for Rita.
On March 5, 2020, Governor David Ige issued a
Proclamation declaring a state of emergency in the State of
Hawai#i in response to the public health threat posed by the
COVID-19 pandemic.5
On March 16, 2020, at a trial status hearing,6 the
State informed the Family Court that the HRPP Rule 48 deadline
would expire on May 1, 2020, and the Family Court set a new trial
date for April 6, 2020. After the hearing, at 2:51 p.m. the same
day, the Chief Justice's March 16, 2020 Order7 was issued, that
5
While not a part of the record on appeal, we take judicial notice
of Governor Ige's March 5, 2020 Proclamation. Office of the Governor,
Proclamation (2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003020-GOV-Emergency-P
roclamation_COVID-19.pdf.
See Hawai#i Rules of Evidence (HRE) Rule 201(b) ("A judicially noticed fact
must be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court, or (2)
capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned."); Uyeda v. Schermer, 144 Hawai #i
163, 172, 439 P.3d 115, 124 (2019) ("A fact is a proper subject for judicial
notice if it is common knowledge or easily verifiable.") (citing Almeida v.
Correa, 51 Haw. 594, 605, 465 P.2d 564, 572 (1970) (brackets omitted)).
6
Court minutes reflect that the trial status hearing was held from
1:08 to 1:10 p.m.
7
The Chief Justice's March 16, 2020 Order stated in pertinent part:
ORDER
(By: Recktenwald, C.J.)
On March 5, 2020, Governor David Ige declared a state
of emergency in Hawai#i in response to the emerging public
health threat posed by COVID-19. The World Health
Organization has since designated the COVID-19 outbreak a
global pandemic. The Hawai#i Department of Health urges all
to prepare for the possible community spread of COVID-19 and
take steps to avoid potential transmission, including
(continued...)
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continued criminal trials in the State of Hawai#i to a date after
April 30, 2020 to the extent reasonably possible.
On March 17, 2020, the Chief Judge of the Circuit Court
of the Fifth Circuit (Fifth Circuit Chief Judge) issued Emergency
Order #3 Regarding Family Court of the Fifth Circuit (Fifth
Circuit March 17, 2020 Emergency Order #3), which cited the Chief
Justice's March 16, 2020 Order, and stated that "in light of the
public health emergency in the State of Hawai#i," it was
7
(...continued)
avoiding public gatherings. Consistent with the
recommendations of these public health authorities, and
pursuant to my authority as chief justice under HRS §§
601-2(a) and -2(b)(6), the Hawai#i State Judiciary is taking
steps to protect the health and safety of court personnel
and users by minimizing the risk of spreading COVID-19 in
the courts. . . .
IT IS HEREBY ORDERED that, with the exception of
emergency and time-sensitive matters, in-person appearances
for civil, family, and, to the extent possible, criminal
dockets will be limited starting Tuesday March 17, 2020
until Thursday April 30, 2020, unless otherwise ordered.
The chief judges of each circuit shall devise a
circuit-specific plan to significantly reduce the need for
in-court appearances while this Order is in effect and
postpone court proceedings as appropriate. This shall be
carried out in the following manner:
1. Circuit Plans: Each judicial circuit may issue orders
and adjust court operations as warranted to address
the urgent and rapidly evolving public health
conditions, including but not limited to postponement
of in-person proceedings; remotely conducting
proceedings; adjusting the form, venue, or frequency
of proceedings; or otherwise modifying operations.
. . . .
4. Criminal: To the extent reasonably possible, criminal
trials, grand jury proceedings, and hearings will be
postponed to a date after Thursday, April 30, 2020,
except this postponement shall not apply to initial
appearances in felony cases, preliminary hearings for
in-custody defendants in felony cases, arraignment and
plea hearings, hearings held pursuant to Hawai #i
Revised Statutes Chapter 704, and proceedings that the
presiding judge deems urgent.
(Emphases added).
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necessary to continue all family court criminal trials to "a date
after April 30, 2020."
On April 6, 2020, Rita's trial date, the Family Court
issued a minute order that re-scheduled Rita's April 6, 2020
jury-waived trial to July 6, 2020 and cited the Chief Justice's
March 16, 2020 Order. (April 6, 2020 Minute Order).
On April 17, 2020, the Chief Justice issued an Order
Regarding Trials (Chief Justice's April 17, 2020 Order Regarding
Trials)8 that postponed all criminal and family court trials to
"a date after Friday, May 29, 2020."
On April 29, 2020, the Fifth Circuit Chief Judge issued
an Amended Emergency Order #3 Regarding Family Court of the Fifth
Circuit (Fifth Circuit April 29, 2020 Amended Emergency Order
#3), which adopted the Chief Justice's April 27, 2020 Order
8
The Chief Justice's April 17, 2020 Order Regarding Trials stated:
ORDER REGARDING TRIALS
(By: Recktenwald, C.J.)
. . . . In response to the declared state of emergency, I
issued an Order on March 16, 2020 in an effort to ensure the
health and safety of court personnel and users and minimize
the risk of spreading COVID-19 in the courts. Consistent
with the continued recommendations of public health
authorities to take steps to avoid potential transmission of
COVID-19, including by avoiding public gatherings, and
pursuant to Article VI, sections 6 and 7 of the Hawai #i
Constitution and Hawai#i Revised Statutes §§ 601-1.5 and
601-2,
IT IS HEREBY ORDERED that all trials in civil,
criminal, and family courts shall be postponed to a date
after Friday, May 29, 2020, or to a date after the
termination of the state of emergency as declared by
Governor Ige, whichever is sooner, unless otherwise ordered
by the chief judge of the respective circuit.
The other provisions of my March 16, 2020 Order remain
in effect, subject to my further modification. The emergency
orders previously issued by the chief judge of each circuit
shall also remain in effect, unless modified by the chief
judge of said circuit.
This order may be modified or extended as necessary.
(Emphases added).
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Regarding Judiciary Operations9 and required all trials to be
"continued to a date after May 29, 2020."
On May 28, 2020, the Chief Justice issued an Order
Regarding Judiciary Operations (Chief Justice's May 28, 2020
Order), which extended the provisions of the previous COVID-19-
related orders, including the Chief Justice's March 16, 2020
Order, to June 30, 2020.
On May 29, 2020, the Fifth Circuit Chief Judge issued
an Order Regarding the Reopening of the Family Court of the Fifth
Circuit (Fifth Circuit May 29, 2020 Order Regarding Reopening),
which resumed full operation of all criminal calendars on June 1,
2020.
On June 19, 2020, Rita filed his Rule 48 Motion to
Dismiss the charge against him, arguing that the State failed to
comply with HRPP Rule 48 because the six-month trial deadline,
which Rita claimed was on "May 1, 2020," was not met. In the
motion, Rita primarily argued that the State was bound to a prior
"admission" it made, that the Rule 48 deadline expired on May 1,
2020.10 Rita also claimed, inter alia, that the Chief Justice's
March 16, 2020 Order did not apply to "time sensitive matters"
like his case; that the Order "contains no statement that the
time limitations" of HRPP Rule 48 "are tolled or extended in any
way. . . ."; and that assuming arguendo the Order applied, it
only extended "the Rule 48 date" until April 30, 2020, after
which Rita should have been afforded a trial on May 1, 2020.
Rita's motion did not argue against any excludable periods of
delay under subsection (c) of Rule 48; did not include a Rule 48
9
We take judicial notice of the Chief Justice's April 27, 2020
Order Regarding Judiciary Operations, which extended the provisions of the
Chief Justice's prior COVID-19-related orders. See HRE Rule 201(b); Uyeda,
144 Hawai#i at 172, 439 P.3d at 124.
10
Rita argued that a Rule 48 deadline date of May 1, 2020, applied
because "[i]n admissions in judicio the prosecuting attorney has conceded the
last date for providing the defendant a trial in compliance with Rule 48
expired on May 1, 2020."
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calculation chart; did not contain a memorandum of law in support
of his motion; and did not cite to any HRPP Rule 48 case law
aside from "State v. Estancion [sic], 63 Haw. 264, 625 P.2d 1040
(1981)."
The State's opposition provided a Rule 48 calculation
chart indicating that, as of April 6, 2020, the Rule 48 deadline
was May 22, 2020. The State argued that because of the Chief
Justice's March 16, 2020 and April 17, 2020 COVID-19-related
Orders and the ongoing COVID-19 pandemic, the 91-day delay from
April 6, 2020 to July 6, 2020 should be excluded for "good cause"
under HRPP Rule 48(c)(8). In the alternative, the State argued
that even if the time period after the June 1, 2020 resumption of
trials was counted against the State (i.e., 35 days), Rule 48 was
still not violated.11
In Rita's reply and during argument at the July 6, 2020
hearing, Rita largely repeated the arguments he previously raised
in his motion.12 Rita raised one additional argument that the
State "should have filed a motion with [the Family Court] before
the Rule 48 date passed . . . ." At the conclusion of the
hearing, the Family Court denied the motion.
On July 8, 2020, the Family Court entered its
FOFs/COLs, and Order Denying Motion to Dismiss, which stated:
I. FINDINGS OF FACT
1. Defendant was arrested on suspicion of Violation of
a Protective Order in violation of Hawaii Revised Statutes
("HRS") 586-11(a) on July 7, 2019 at which time bail was set
in this matter; Defendant bailed out of custody two days
later.
2. Defendant was charged with one count of Violation
of a Protective Order in violation of HRS 586-11(a) by
written complaint, filed in this matter on July 9, 2019.
11
In his Reply, Rita did not respond to the State's alternative
argument regarding the June 1, 2020 date for the resumption of trials in the
Fifth Circuit.
12
In response to the State's arguments, Rita did not present any
argument that the Chief Justice's COVID-19-related orders and the ongoing
COVID-19 pandemic did not constitute "good cause" under HRPP Rule 48(c)(8).
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3. Defendant was arraigned in this matter on August
19, 2019, at which time this Court scheduled an entry of
plea hearing for September 9, 2019.
4. On September 9, 2019, Defendant requested a
continuance of his entry of plea hearing in this matter from
September 9, 2019 to September 23, 2019.
5. Defendant waived his right to jury trial in this
matter on September 23, 2019 and the Court scheduled a jury
waived trial of this matter on December 2, 2019.
6. Defendant did not appear before the Court for his
jury waived trial on December 2, 2019, and the Court entered
a bench warrant for his arrest in the amount of $1,000.00.
7. Defendant filed a motion to recall the above bench
warrant on December 3, 2019, which motion was heard and
granted on December 23, 2019.
8. On March 5, 2020, Governor David Ige declared a
state of emergency in the State of Hawai#i in response to
the public health threat posed by the COVID-19 pandemic.
9. Defendant requested a few additional continuances
of this matter before requesting on March 16, 2020 that the
Court again schedule a jury waived trial of this matter.
10. On March 16 2020, the Court re-scheduled the jury
waived trial of this matter to April 6, 2020.
11. Also on March 16, 2020, an Order in the Matter of
the Judiciary's Response to the COVID-19 Outbreak was filed
in the Supreme Court of the State of Hawaii in
SCMF-XX-XXXXXXX, which Order continued all trials in the
State of Hawaii to a date after April 30, 2020.
12. On March 17, 2020, Emergency Order #3 Regarding
Family Court of the Fifth Circuit was signed by Chief Judge
Randal G.B. Valenciano and filed in the Circuit Court of the
Fifth Circuit, State of Hawaii under Sp. No.
5CSP-XX-XXXXXXX, which Order continued Adult Criminal Family
Court trials to a date after April 30, 2020.
13. On April 6, 2020, the Court re-scheduled the April
6, 2020 jury waived trial of this matter to July 7, 2020 [13]
due to the COVID-19 pandemic and the above-stated orders of
the Supreme Court of the State of Hawaii and the Chief Judge
of the Circuit Court of the Fifth Circuit, State of Hawaii.
14. On April 17, 2020 an Order Regarding Trials was
filed in the Supreme Court of the State of Hawaii in the
Matter of the Judiciary's Response to the COVID-19 Outbreak
in SCMF-XX-XXXXXXX, which Order provided:
13
While FOF 13 states that Rita's trial was rescheduled to July 7,
2020, the record reflects that the April 6, 2020 Minute Order rescheduled
Rita's trial to July 6, 2020.
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"IT IS HEREBY ORDERED that all trials in
civil, criminal, and family courts shall be
postponed to a date after Friday, May 29, 2020,
or to a date after the termination of the state
of emergency as declared by Governor Ige,
whichever is sooner, unless otherwise ordered by
the chief judge of the respective circuit."
15. On May 28, 2020, an Order Regarding Judiciary
Operations was signed by Chief Judge Randal G.B.
Valenciano[14] and filed in the Supreme Court of the State of
Hawaii in the Matter of the Judiciary's Response to the
COVID-19 Outbreak SCMF-XX-XXXXXXX, which Order further
extended the provisions of the March 16, 2020 Order through
June 30, 2020.
16. On April 29, 2020, an Order entitled Amended
Emergency Order #3 Regarding Family Court of the Fifth
Circuit was filed in the Circuit Court of the Fifth Circuit,
State of Hawaii under Sp. No. 5CSP-XX-XXXXXXX, which Order
continued all Family Court adult criminal trials to a date
after May 29,2020.
17. On May 29, 2020, an Order entitled Family Court of
the Fifth Circuit's Order the Reopening of the Family Court
of the Fifth Circuit was filed in the Circuit Court of the
Fifth Circuit, State of Hawaii, under Sp. No.
5CSP-XX-XXXXXXX, which Order provided that "The Family Court
of the Fifth Circuit will resume full operation of all
civil, juvenile, and criminal calendars on June 1, 2020."
II. CONCLUSIONS OF LAW
1. Under Hawai#i Rules of Penal Procedure ("HRPP"),
Rule 48(b)(1), the State has six months from July 7, 2019 to
bring this matter to trial because Defendant was arrested
and bail was set on that date.
2. The period of delay in this matter from December 2,
2019 through April 6, 2020 is an excludable period of time
for purposes of the above-stated six-month timeframe, as
this delay was caused by Defendant's failure to appear at
his initial jury waived trial on December 2, 2019. HRPP
Rule 48(c)(5).
3. The period of delay from April 6, 2020 through July
6, 2020 is an excludable period of time for purposes of the
above-stated six-month timeframe as a period of delay for
good cause due to (a) the ongoing State of Emergency
resulting from the worldwide COVID-19 pandemic and (b) the
above-mentioned Orders of the Supreme Court of the State of
Hawai#i and the Chief Judge of the Circuit Court of the
Fifth Circuit, State of Hawai#i. HRPP Rule 48(c)(8).
(Footnotes added).
14
While FOF 15 states that the Chief Justice's May 28, 2020 Order
was signed by Chief Judge Valenciano, the record reflects that it was signed
by the Chief Justice.
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II. STANDARD OF REVIEW
We review a trial court's decision on a HRPP Rule 48
motion to dismiss under both the "clearly erroneous" and
"right/wrong" tests:
A trial court's findings of fact (FOFs) in deciding an
HRPP 48(b) motion to dismiss are subject to the clearly
erroneous standard of review. An FOF is clearly erroneous
when, despite evidence to support the finding, the appellate
court is left with the definite and firm conviction that a
mistake has been committed. However, whether those facts
fall within HRPP 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. Choy Foo, 142 Hawai#i 65, 72, 414 P.3d 117, 124
(2018)(citations omitted).
III. DISCUSSION
On appeal, Rita does not challenge COL 3's conclusions
that: in ground (a), the "ongoing State of Emergency resulting
from the worldwide COVID-19 pandemic" constituted good cause;
and, in ground (b), that the COVID-19-related court orders
constituted good cause. COL 3. Unchallenged conclusions of law
are binding on appeal. See Amfac, Inc. v. Waikiki Beachcomber
Inv. Co., 74 Haw. 85, 125, 839 P.2d 10, 31 (1992). Rita raises
arguments regarding the date of the Rule 48 deadline and the
applicability of the Chief Justice's March 16, 2020 Order to
Rita's case, which we now address.
Rita first argues that the Family Court erred in
excluding the April 6, 2020 to July 6, 2020 time period because
"[i]f that period is not excluded from the calculation the Rule
48 deadline expired on May 22, 2020, according to the State's own
admissions in judicio." Rita claims that the State is bound on
appeal by its statement in an opposition memorandum below that
"the Rule 48 deadline was '5/22/20.'" Rita does not cite to any
authority that obligates this court to accept a party's legal
conclusion or representation, made in argument, that may or may
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not be accurate or correct. The application of Rule 48 or any of
its exclusions, and determination of whether the six-month
deadline under the rule is violated, are questions of law that
must be determined by the trial court in the first instance, and
are freely reviewable on appeal. See Choy Foo, 142 Hawai#i at
72, 414 P.3d at 124. The argument that this court must accept
and be bound by a "May 22, 2020" deadline lacks merit.
Second, Rita argues that the Chief Justice's March 16,
2020 Order did not apply to "emergency and time sensitive
matters," and that his jury-waived trial was a "time-sensitive"
matter. It was within the discretion of the Family Court not to
deem Rita's jury-waived trial a "time-sensitive matter." A trial
court's discretion will not be disturbed without a showing that
there is a clear abuse or that the court's ruling is arbitrary
and capricious. State v. Estencion, 63 Haw. 264, 267, 625 P.2d
1040, 1043 (1981). The Family Court determined that Rita was not
in custody and bailed out two days after his arrest. FOF 1. The
record reflects that the Chief Justice's March 16, 2020 Order
recognized an exception for "emergency and time-sensitive
matters" and gave the presiding judge discretion to conduct
proceedings that were "deem[ed] urgent." Given the circumstances
of this case, the Family Court did not abuse its discretion in
rescheduling Rita's case in accordance with the Chief Justice's
March 16, 2020 Order and the Fifth Circuit March 17, 2020
Emergency Order #3. See id.
Third, Rita argues that the Chief Justice's March 16,
2020 Order "contains no statement that the trial time limitations
of Rule 48 of the Hawaii Rules of Penal Procedure are tolled or
extended in any way because of the court's order," and thus, "it
must be presumed [that] those orders did not intend to address or
alter the rule's trial time requirements." To support his
interpretation, Rita relies on the statutory construction
principle of expressio unius est exclusio alterius, that "to
express or include one thing implies the exclusion of the other,
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or of the alternative." Choy Foo, 142 Hawai#i at 74, 414 P.3d at
126 (quoting Black's Law Dictionary (10th ed. 2014)) (internal
quotation marks omitted). Rita asserts that: "[t]he fact that
there have been at least three other orders which do specifically
address the subject of statutory, rule, and court order deadlines
and time requirements (the Chief Justice's March 20, 2020, August
27, 2020, and October 5, 2020 Orders) strongly supports" the
conclusion that the Chief Justice's March 16, 2020 Order was "not
intend[ed] to address or alter the rule's trial time
requirements."
While canons of statutory construction may be applied
to court orders, "[i]f the language of the order is unambiguous
and applying it in its literal sense would not produce a result
that is absurd, unjust, or at odds with governing law, we are
bound to enforce the plain meaning" of the court order.
Lâna#ians for Sensible Growth v. Land Use Comm'n, 146 Hawai#i 496,
503, 463 P.3d 1153, 1160 (2020) (citing State v. Guyton, 135
Hawai#i 372, 378, 351 P.3d 1138, 1144 (2015)). The Chief
Justice's March 16, 2020 Order is silent as to HRPP Rule 48 and
contains no ambiguity in that regard. The Order plainly does not
address HRPP Rule 48 in the postponement of criminal trials.
Moreover, the canon of expressio unius est exclusio alterius
applies to expressed and unexpressed subject matter within the
same statute, not between different statutes; and thus, the canon
need not be employed to different court orders. See Choy Foo,
142 Hawai#i at 74, 414 P.3d at 126 (comparing subsections (c)(1)
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and (d)(1) within HRPP Rule 48).15 Rita's reliance on the canon
is misplaced.
Fourth, Rita argues that "assuming arguendo that [the
Chief Justice's March 16, 2020 Order] did suspend trials and toll
the running of the Rule 48 clock, the order was only effective
until April 30, 2020[;]" the Order "did not impact the State's
ability to afford the defendant a trial in May within the Rule 48
time limits[;]" and Rita's trial was "outside the time for any
mandated suspension of proceedings" under the March 16, 2020
Order. However, as set forth in FOF 13 of the Family Court's
Order Denying Motion to Dismiss (which is unchallenged),16 the
Family Court rescheduled Rita's trial to July "due to the COVID-
19 pandemic" as well as the Chief Justice's March 16, 2020 Order
and the Fifth Circuit March 17, 2020 Emergency Order #3. The
Chief Justice's March 16, 2020 Order authorized each circuit to
"issue orders and adjust court operations as warranted to address
the urgent and rapidly evolving public health conditions,
including . . . postponement of in-person proceedings[.]"
Additionally, Rita's claim that he could have been afforded a
15
In Choy Foo, the Hawai#i Supreme Court explained the canon as
follows: "'[T]he contrast between a specific subject matter which is expressed
and one which is not mentioned leads to an inference that the latter was not
intended to be included within the statute.'" 142 Hawai #i at 74, 414 P.3d at
126 (quoting Int'l Sav. and Loan Ass'n v. Wiig, 82 Hawai #i 197, 201, 921 P.2d
117, 121 (1996)) (emphasis added). In Int'l Sav. and Loan Ass'n, the court
stated:
The inclusion of a specific matter in a statute implies the
exclusion of another "only where in the natural association
of ideas the contrast between a specific subject matter
which is expressed and one which is not mentioned leads to
an inference that the latter was not intended to be included
within the statute." 82 C.J.S. Statutes § 333, at 670
(1953).
82 Hawai#i at 201, 921 P.2d at 121 (emphases added). Both of these cases
reference the canon of expressio unius est exclusio alterius as applying to
specific matters within the same statute, not between different statutes.
16
Findings of fact which are unchallenged on appeal are binding on
the parties and on appeal. State v. Rodrigues, 145 Hawai #i 487, 494, 454 P.3d
428, 435 (2019) (quoting Kelly v. 1250 Oceanside Partners, 111 Hawai #i 205,
227, 140 P.3d 985, 1007 (2006)).
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trial in May 2020 is unavailing where subsequent COVID-19-related
court orders extended the postponement of trials due to the
ongoing state of emergency and in light of COL 3's conclusion
that the state of emergency constituted good cause under HRPP
Rule 48(c)(8), which Rita did not challenge. See Chief Justice's
April 17, 2020 Order Regarding Trials (postponing all trials to a
date after May 29, 2020); Fifth Circuit April 29, 2020 Amended
Emergency Order #3 (adopting Chief Justice's April 17, 2020 Order
requiring all trials to be continued to a date after May 29,
2020).
Fifth, Rita argues that because the subsequent orders
issued by the Chief Justice or the Fifth Circuit Chief Judge were
not in existence when the Family Court issued its April 6, 2020
Minute Order, these orders "could not have formed the basis for
the trial court's decision to continue the trial to July 6,
2020." In unchallenged FOF 13, the Family Court cited the
"above-stated orders" of the Chief Justice and Fifth Circuit
Chief Judge and the "COVID-19 pandemic" as the reason for
rescheduling trial to July. The "above-stated orders" referred
to in FOF 13, included the Chief Justice's March 16, 2020 Order
(FOF 11), and the Fifth Circuit Chief Judge's March 17, 2020
Emergency Order #3 (FOF 12); no other orders are referenced in
the FOFs preceding FOF 13. These FOFs foreclose Rita's argument
because they establish that the Family Court did not rely on
orders subsequent to April 6, 2020 when issuing its April 6, 2020
Minute Order.
For the reasons stated above, we conclude that the
Family Court did not err in applying the Chief Justice's March
16, 2020 Order here, and COL 3 was not erroneous.17 See Choy
17
Based on our resolution, it is not necessary to address Rita's
remaining argument that the State waived its right to argue against his Rule
48 motion because the State did not file a motion alerting the Family Court of
the Rule 48 issue.
(continued...)
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Foo, 142 Hawai#i at 72, 414 P.3d at 124. There was no Rule 48
violation in this case because the July 6, 2020 trial date was
before the expiration of the Rule 48 deadline of August 7,
2020.18
17
(...continued)
In light of our conclusion that COL 3 was not wrong in applying
the good cause exception to exclude the April 6, 2020 to July 6, 2020 time
period, we need not address the State's argument in the alternative, regarding
an exclusion for the June 1, 2020 to July 6, 2020 time period.
18
The following HRPP Rule 48 calculation, based on the Family
Court's FOFs/COLs and Order, reflects an August 7, 2020 Rule 48 deadline. In
his Opening Brief, Rita concedes that the period between December 2, 2019, and
April 6, 2020, is excluded from the Rule 48 calculation due to his failure to
appear for his initial trial setting.
Dates Event(s) State Defense Rule 48
(included (excluded Deadline
days) days)
7/7/19 - Arrest-Arraignment -First 64 1/3/20
9/9/19 Entry of Plea
9/9/19 - First Entry of Plea to 14 1/3/20
9/23/19 Continued Entry of Plea
9/23/19 - Continued Entry of Plea 70 1/3/20
12/2/19 to First Bench Trial Date
12/2/19 - Defendant's Failure to 126 5/8/20
4/6/20 Appear at Initial Bench
Trial Date
4/6/20 - Court continuance due to 91 8/7/20
7/6/20 COVID-19
The total included time that had elapsed was 148 days, and thus, there
were 32 days remaining until the six-month Rule 48 deadline expired.
In the Answering Brief and Reply Brief, the parties dispute whether the
Family Court included or excluded the 14-day period between September 9, 2019
to September 23, 2019. The Family Court's COLs set forth the excludable time
periods, but did not exclude this period of time; thus, this time period is
included.
We note, however, that neither the parties nor the Family Court
addressed the applicability of HRPP Rule 48(c)(1) and (d)(1), regarding the
tolling of the Rule 48 deadline caused by the June 19, 2020 filing of Rita's
motion to dismiss, until its disposition on July 6, 2020. Subsections (c)(1)
and (d)(1) provide that: as to pretrial motions that "delay the commencement
of trial" filed by a defendant, including "motions to dismiss," the period of
time "from the filing through the prompt disposition" of the motion is "[p]er
se excludable" in computing the time for trial commencement.
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IV. CONCLUSION
For the foregoing reasons, we affirm the July 8, 2020
Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Dismiss With Authorities, filed by the
Family Court of the Fifth Circuit.
DATED: Honolulu, Hawai#i, July 28, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Bentley C. Adams, III, Chief Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Tracy Murakami, Associate Judge
Deputy Prosecuting Attorney,
County of Kaua#i, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
17