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                                                Electronically Filed
                                                Intermediate Court of Appeals
                                                CAAP-XX-XXXXXXX
                                                29-JUN-2020
                                                07:51 AM




                            NO. CAAP-XX-XXXXXXX

                   IN THE INTERMEDIATE COURT OF APPEALS
                         OF THE STATE OF HAWAI#I


                  STATE OF HAWAI#I, Plaintiff-Appellant,
                                    v.
                 JAMES P. AKIONA, JR., Defendant-Appellee


          APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
                            KONA DIVISION
                      (CR. NO. 3FFC-XX-XXXXXXX)


                        SUMMARY DISPOSITION ORDER
          (By:    Ginoza, Chief Judge, Leonard and Chan, JJ.)

            Plaintiff-Appellant State of Hawai#i (State) appeals
from an "Order Granting Defendant's Motion to Dismiss for Penal
Summons Issued Absent Probable Cause Supported by Oath or
Affirmation, Complaint Lacking Supporting Affidavit and Improper
Arraignment" entered on July 11, 2017, by the Family Court of the
Third Circuit (Family Court).1
          On January 26, 2017, the State filed a criminal
Complaint, charging Defendant-Appellee James Akiona, Jr.
(Akiona), with one count of the offense of violating a temporary
restraining order on August 17, 2016, in violation of Hawaii
Revised Statutes (HRS) § 586-4 (2012). The Complaint was signed
by a Deputy Prosecuting Attorney only. On April 26, 2017, upon
the issuance of two penal summons, Akiona appeared in Family

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         The Honorable Aley K. Auna presided.
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Court, where he was presented with a copy of the complaint,
orally arraigned, and requested an attorney. Upon Akiona's
subsequent motion, the Family Court dismissed the Complaint
without prejudice on the grounds that the Complaint was not
signed by the complainant under oath or made by declaration under
the rules of court, in violation of HRS § 805-12 and Hawai#i
Rules of Penal Procedure (HRPP) Rule 5(b)(1).3


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            § 805-1 Complaint; form of warrant. When a complaint
            is made to any prosecuting officer of the commission
            of any offense, the prosecuting officer shall examine
            the complainant, shall reduce the substance of the
            complaint to writing, and shall cause the complaint to
            be subscribed by the complainant under oath , which the
            prosecuting officer is hereby authorized to
            administer, or the complaint shall be made by
            declaration in accordance with the rules of court . If
            the original complaint results from the issuance of a
            traffic summons or a citation in lieu of an arrest
            pursuant to section 803-6, by a police officer, the
            oath may be administered by any police officer whose
            name has been submitted to the prosecuting officer and
            who has been designated by the chief of police to
            administer the oath, or the complaint may be submitted
            by declaration in accordance with the rules of court.
            Upon presentation of the written complaint to the
            judge in whose circuit the offense allegedly has been
            committed, the judge shall issue a warrant, reciting
            the complaint and requiring the sheriff, or other
            officer to whom it is directed, except as provided in
            section 805-3, to arrest the accused and to bring the
            accused before the judge to be dealt with according to
            law; and in the same warrant the judge may require the
            officer to summon such witnesses as are named in the
            warrant to appear and give evidence at the trial. The
            warrant may be in the form established by the usage
            and practice of the issuing court.
     3
         HRPP 5(b)(1) provides, in part:
                  ARRAIGNMENT. In the district court, if the
            offense charged against the defendant is other than a
            felony, the complaint shall be filed and proceedings
            shall be had in accordance with this section (b). A
            copy of the complaint, including any affidavits in
            support thereof, and a copy of the appropriate order,
            if any, shall be furnished to the defendant. . . .
            When the offense is charged by complaint,
            arraignment shall be in open court, or by video
            conference when permitted by Rule 43. The
            arraignment shall consist of the reading of the
            complaint to the defendant and calling upon the
            defendant to plead thereto. . . . The defendant
            may waive the reading of the complaint . . . at
            arraignment. . . . In addition to the requirements
            of Rule 10(e), the court shall, in appropriate
                                                                 (continued...)

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          On appeal, the State argues that the Family Court erred
by: dismissing the complaint due to the absence of a signature,
under oath, from the complainant; dismissing the complaint for
lack of an accompanying affidavit at the time of Akiona's
arraignment; and dismissing the case for lack of a probable cause
determination and for considering a penal summons case as
equivalent to an arrest and charge case.
          Upon careful review of the record and briefs submitted
by the parties and having given due consideration to the
arguments and issues they raise, as well as the relevant legal
authority, we resolve the State's points of error as follows, and
vacate and remand.
          This court recently examined similar issues in State v.
Thompson, No. CAAP-XX-XXXXXXX, -- P.3d --, 2020 WL 1970772 (App.
Apr. 24, 2020). There, we considered the legislative intent of
HRS § 805-1 and concluded, inter alia, the Family Court erred in
dismissing a complaint on the grounds that the complaint was
neither signed by the complainant under oath nor made by
declaration in accordance with the rules of court. Id. at *6.
The analysis in Thompson, based on facts nearly identical to this
case, is on point.
          (1) First, the State argues that the Family Court
erred in dismissing the complaint because it was not signed by
the complainant. As noted above, it is undisputed that the
Complaint was not "subscribed by a complainant under oath."
However, HRPP Rule 7(d)4 only requires that a complaint be signed

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       (...continued)
            cases, inform the defendant of the right to jury
            trial in the circuit court and that the defendant
            may elect to be tried without a jury in the
            district court.
HRPP Rule 5(b)(1) (emphasis added).
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            HRPP Rule 7(d) provides, in relevant part:

                  Nature and contents. The charge shall be a
            plain, concise and definite statement of the essential
            facts constituting the offense charged. An indictment
            shall be signed by the prosecutor and the foreperson
                                                                 (continued...)

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by the prosecutor. See id. (recognizing that the complaint was
signed by the prosecutor in compliance with HRPP Rule 7(d)). In
addition, the absence of a sworn complaint or supporting
declaration, for the purpose of initiating and maintaining the
prosecution against Akiona, did not render the Complaint fatally
defective. Id. Thus, given the circumstances in this case, we
conclude the Family Court erred by dismissing the Complaint on
the ground that it was neither signed by the complainant under
oath nor made by declaration in accordance with the rules of
court.
          (2) The State next argues that the Family Court erred
in dismissing the Complaint on grounds that Akiona was not
provided an accompanying affidavit at the time of his
arraignment. However, HRPP Rule 5(b)(1) does not require
furnishing of an affidavit to Akiona. Id. at *7. HRPP Rule 95
outlines two methods for obtaining the appearance of a defendant:
by summons or a warrant. An arrest warrant may not be issued
upon a complaint, "unless it appears from the sworn complaint, or


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       (...continued)
            of the grand jury. An information shall be signed by
            the prosecutor. A complaint shall be signed by the
            prosecutor.

HRPP Rule 7(d) (emphasis added).
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             HRPP Rule 9 provides, in relevant part:

                    (1) SUMMONS. Upon request of the prosecutor,
             the clerk shall issue a summons for a defendant named:
                    (i) in the complaint;
                    (ii) in the indictment; or
                    (iii) in the information. When a defendant is
             a corporation or any legal entity other than a
             natural person, a summons instead of a warrant shall
             issue to an authorized representative of the entity.
                    (2) WARRANT. The court may order issuance of a
             warrant instead of a summons upon request of the
             prosecutor; provided however, that no warrant shall
             issue:
                    (i) Upon a complaint unless it appears from the
             sworn complaint, or from affidavit(s) or
             declaration(s) filed with the complaint, that there
             is probable cause to believe that an offense has been
             committed and that the defendant has committed it[.]
HRPP 9(a).

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from affidavit(s) or declaration(s) filed with the complaint,"
that there is probable cause to believe that the defendant has
committed an offense. HRPP Rule 9(a)(2)(i). However, Akiona
appeared in the Family Court pursuant to an amended penal
summons. The Complaint was not the basis for an arrest warrant,
and no arrest warrant was issued. Under these circumstances,
HRPP Rule 5(b)(1) did not require the State to furnish Akiona
with an affidavit in support of the Complaint. Thompson, 2020
WL1970772, at *7. Consequently, we conclude the Family Court
erred in dismissing the Complaint on the ground that no
supporting affidavit was provided to Akiona at the time of his
arraignment.
           (3) Finally, the State argues that the Family Court
erred in dismissing the case for lack of a probable cause
determination and for considering a penal summons case equivalent
to an arrest and charge case. As discussed in Thompson, HRPP
Rule 9(a) distinguishes a penal summons from an arrest warrant
and requires a probable cause showing for issuance of a warrant,
but not for issuance of a penal summons. Thompson, 2020 WL
1970772, at *7 (noting the complaint was not the basis for an
arrest warrant, and no arrest warrant was issued). Here, Akiona
was issued a summons, and not an arrest warrant. Hence, similar
to Thompson, we conclude the Family Court erred in dismissing the
case for lack of a probable cause determination when none was
required.6
           Therefore, IT IS HEREBY ORDERED that the "Order
Granting Defendant's Motion to Dismiss For Penal Summons Issued
Absent Probable Cause Supported By Oath or Affirmation, Complaint
Lacking Supporting Affidavit, and Improper Arraignment," issued


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         We note that the first Penal Summons in this case filed on February
21, 2017, states in part: "If you fail to appear, a warrant of arrest shall be
issued for you." A Second Penal Summons was filed on March 22, 2017, which
states in part: "Failure to obey this summons will render you liable to
prosecution for contempt." In making their arguments on appeal, neither party
relies on or references the above language in the two penal summons.
Moreover, the record reflects that no arrest was made and no warrant was
issued. We therefore do not address any issue regarding the above language in
the two penal summons.

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by the Family Court of the Third Circuit on July 11, 2017, is
vacated. We remand this case to the Family Court for proceedings
consistent with this order.
          DATED: Honolulu, Hawai#i, June 29, 2020.


On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Charles E. Murray, III,
Deputy Prosecuting Attorney,          /s/ Katherine G. Leonard
for Plaintiff-Appellee.               Associate Judge

Phyllis J. Hironaka,                  /s/ Derrick H.M. Chan
Deputy Public Defender,               Associate Judge
for Defendant-Appellee.




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