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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                12-DEC-2019
                                                                10:45 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

                            STATE OF HAWAII,
                     Respondent/Plaintiff-Appellee,

                                      vs.

         CHARLY HERNANE, also known as CHARLIE HERNANE,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

                              SCWC-XX-XXXXXXX

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                   (CAAP-XX-XXXXXXX; 1PC111000699)

                             DECEMBER 12, 2019

      RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
         CIRCUIT JUDGE AYABE IN PLACE OF POLLACK, J., RECUSED

                  OPINION OF THE COURT BY McKENNA, J.

                             I.    Introduction

       We hold that the time period a defendant continues to be

held in State custody in a mainland prison after his conviction
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is set aside and a new trial ordered is not excludable under

Hawaiʻi Rules of Penal Procedure (“HRPP”) Rule 48(c)(5) (2000)1

on the grounds the time period was “caused by the . . .

unavailability of the defendant.”           The Circuit Court of the

First Circuit2 therefore erred in denying Defendant Charly

Hernane’s (“Hernane”) motion to dismiss indictment for violation

of HRPP Rule 48.       As Hernane’s conviction is set aside, we

therefore need not address Hernane’s second question on

certiorari as to whether the circuit court’s responses to jury

communications constituted impermissible Allen charges.               See

State v. Villeza, 72 Haw. 327, 334, 817 P.2d 1054, 1058 (1991)

(quoting Allen v. United States, 164 U.S. 492 (1896) (explaining

that an Allen charge directs members in the minority of a




1
      HRPP Rule 48 provides in relevant part as follows:

             . . . .
             (b) By court. . . .[T]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:
             . . . .
             (3) from the date of . . . order granting a . . . 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:
             . . . .
             (5) periods that delay the commencement of trial and are
             caused by the absence or unavailability of the defendant;
             . . . .
2
      The Honorable Rom A. Trader presided.


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deadlocked jury to reconsider their views in light of the views

of the majority)).

       Based on the Rule 48 violation, however, which requires

dismissal of the charge against Hernane, we vacate the

Intermediate Court of Appeal’s (“ICA”) January 11, 2016 judgment

on appeal and the circuit court’s October 22, 2013 judgment of

conviction and sentence and remand this case to the circuit

court for further proceedings consistent with this opinion.3

                                II.   Background

A.     Factual and Procedural Background Preceding Trial on Remand4

       On May 18, 2011, a grand jury charged Hernane by indictment

with murder in the second degree of his mother, Teresita Dumalan

Hernane (“mother”), in violation of Hawaii Revised Statutes

(“HRS”) §§ 707-701.5 (Supp. 1986)5 and 706-656 (Supp. 1996).6                     On

3
      It is for the circuit court to address whether the Rule 48 dismissal
should be with or without prejudice, applying the factors set out in State v.
Estencion, 63 Haw. 264, 625 P.2d 1040 (1981):

              In determining whether to dismiss the case with or without
              prejudice, the court shall consider, among others, each of
              the following factors: 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.

Estencion, 63 Haw. at 269, 625 P.2d at 1044.     See also State v. Choy Foo, 142
Hawaiʻi 65, 414 P.3d 117 (2018).
4
      The facts in this section are summarized from testimony at Hernane’s
February 5, 2018 retrial.
5
       HRS § 707-701.5 provides as follows:

(continued. . .)
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May 11, 2011, police were called to the mother’s home after she

was found dead with cuts and wounds to her head and neck.                  A

knife was found next to her body.           Hernane was located shortly

thereafter in a nearby park with blood on his shirt and shorts.

      Hernane was initially convicted by a jury of murder in the

second degree and sentenced to a term of life imprisonment with

the possibility of parole.         A judgment of conviction and

sentence was entered on October 22, 2013.            Hernane appealed from

the conviction and sentence to the ICA alleging prosecutorial


(. . . continued)
            (1)   Except as provided in section 707-701, a person
            commits the offense of murder in the second degree if the
            person intentionally or knowingly causes the death of
            another person.

             (2)   Murder in the second degree is a felony for which the
             defendant shall be sentenced to imprisonment as provided in
             section 706-656.
6
      HRS § 706-656(2) provides as follows:

             Except as provided in section 706-657, pertaining to
             enhanced sentence for second degree murder, persons
             convicted of second degree murder and attempted second
             degree murder shall be sentenced to life imprisonment with
             possibility of parole. The minimum length of imprisonment
             shall be determined by the Hawai[ʻ]i paroling authority;
             provided that persons who are repeat offenders under
             section 706-606.5 shall serve at least the applicable
             mandatory minimum term of imprisonment.

             If the court imposes a sentence of life imprisonment
             without possibility of parole pursuant to section 706-657,
             as part of that sentence, the court shall order the
             director of public safety and the Hawai[]i paroling
             authority to prepare an application for the governor to
             commute the sentence to life imprisonment with parole at
             the end of twenty years of imprisonment; provided that
             persons who are repeat offenders under section 706-606.5
             shall serve at least the applicable mandatory minimum term
             of imprisonment.

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misconduct.       On January 11, 2016, the ICA entered a judgment on

appeal pursuant to its November 30, 2015 memorandum opinion,

State v. Hernane, CAAP-XX-XXXXXXX (App. Nov. 30, 2015) (mem.),

vacating the circuit court’s October 22, 2013 judgment of

conviction and remanding Hernane’s case for a new trial.                The

State filed an application for writ of certiorari to this court.

        Meanwhile, on February 9, 2016, the circuit court held a

hearing to set the retrial week.             Defense counsel explained that

Hernane was not present because he was “in prison in Arizona.”7

The State, through a deputy prosecuting attorney, informed the

circuit court that it had filed an application for writ of

certiorari, and the circuit court stayed the proceedings.

        On March 23, 2016, this court rejected certiorari.             This

triggered the 180-day time period pursuant to HRPP Rule 48 for

Hernane’s trial to commence.          See HRPP Rule 48.8

B.      Remanded Circuit Court Proceedings

        On April 12, 2016, another status conference was held, at

which the parties again discussed that Hernane was being held in

Arizona.      On April 13, 2016, the deputy prosecuting attorney

instructed paralegals at the Honolulu Prosecutor’s Office to



7
        The record does not reflect that Hernane was serving any other prison
term.
8
        See note 1, supra.

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contact the Department of Public Safety to arrange for Hernane’s

return.

     On May 3, 2016, the circuit court held another hearing to

set Hernane’s retrial.      Hernane was not present; defense counsel

stated that Hernane “had not been transported from prison by

airplane.”    The State represented that it had made a request to

the Department of Public Safety (“DPS”) to have Hernane returned

to Hawaii, and had been informed that he would be returned in

July of 2016, but that the exact date was not disclosed for

security reasons.

     The State asked the circuit court to take under advisement

any ruling on Rule 48 and stated that March 23, 2016 was

“conceptually the restart date for purposes of Rule 48.”

Defense counsel requested that trial not be set unless Hernane

was present.    Over defense counsel’s objection, the circuit

court set a trial date for August 1, 2016 and scheduled a trial

call for July 19, 2016.      The circuit court stated it would “take

under advisement the determination of Rule 48 excludability, if

any, until such time as the issue is raised.”

     On July 13, 2016, based on the State’s request, the trial

call was continued to July 22, 2016.




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      Hernane was returned to Hawaii on July 19, 2016.             One

hundred eighteen days had passed since certiorari had been

rejected on March 23, 2016.

      On July 22, 2016, Hernane’s counsel made an oral motion to

continue, and trial was continued to the week of October 31,

2016.     Thereafter, Hernane filed multiple continuances as well

as motions regarding his fitness to proceed; he was not

determined fit to proceed until December 7, 2017.              Hernane’s

retrial was then scheduled for February 5, 2018.

      On February 5, 2018, the day of his scheduled jury trial,

Hernane filed a motion to dismiss indictment for violation of

HRPP Rule 48 (“Rule 48 Motion”).          Hernane maintained that since

March 23, 2016, a total of 684 days had passed, of which only

the 503 days between July 22, 2016 and December 7, 2017

qualified as excludable time periods for the purposes of HRPP

Rule 48(c)(1) and (c)(3); Hernane conceded as excludable his

requested continuances as well as proceedings relating to his

fitness to stand trial.9        Hernane alleged, however, that as of


9
      HRPP Rule 48(c)(1) and (c)(3) exclude the following time periods from
Rule 48’s 180-day “commencement of trial” deadline:

            (1) periods that delay commencement of trial and are caused by
            collateral or other proceedings concerning the defendant,
            including but not limited to penal irresponsibility examinations
            and periods during which the defendant is incompetent to stand
            trial, pretrial motions, interlocutory appeals and trials of
            other charges;
            . . . .
(continued. . .)
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February 5, 2018, 181 days had elapsed since the rejection of

the application for writ of certiorari on March 23, 2016 that

were not excludable pursuant to HRPP Rule 48, requiring

dismissal due to a violation of HRPP Rule 48.

     The State opposed the Rule 48 Motion and asserted that

because Hernane was being held pre-trial in Arizona, Hernane

“must be deemed unavailable from May 3, 2016 to July 22, 2016.”

     A hearing on the Rule 48 Motion was held that day, February

5, 2018.    The circuit court took judicial notice of the records

and files in the case to calculate the time elapsed between the

date certiorari was rejected and the date Hernane’s trial

commenced, which would be later that same day, February 5, 2018.

The State entered four exhibits into evidence, which contained a

series of emails between the deputy prosecuting attorney and

paralegals at the Honolulu prosecutor’s officer concerning

Hernane’s return to Hawaiʻi.

     The State called one witness, a paralegal at the Honolulu

prosecutor’s office, to testify about the procedure used by the

prosecutor’s office to return a defendant housed in a mainland

facility to Hawaii for trial.        The paralegal explained,

(. . . continued)
            (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;
            . . . .


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           [w]hen we’re informed that the defendant is being
           housed in a mainland facility, we contact the
           Department of Public Safety. Our contact is Howard
           Komori [“Komori”]. He handles -- he’s the
           administrator for inmates who are housed in a
           mainland facility.

           Q. [Deputy Prosecuting Attorney] And could you
           explain for us in greater detail what the request is
           that you submit to Mr. Komori?

           A. [Paralegal] It’s -- we usually either call or
           email him with our request for a specific inmate to
           be brought back to the state, and we let him know
           that he needs to be brought back for trial[.]

The paralegal further stated that on April 13, 2016, she

received an email from the deputy prosecuting attorney

requesting that she contact DPS to have Hernane brought back to

the state for trial.      The paralegal further explained that

thereafter she contacted Komori and was informed that Hernane

would be brought back in July of 2016.          The paralegal also

testified that on April 26, 2016, she sent another email

updating the deputy prosecuting attorney that Hernane was still

scheduled to return to Hawaiʻi in July 2016.          She testified that

DPS decides when a defendant is brought back, and to her

knowledge, the prosecutor’s office does not have any say as to

when someone is brought back.

     The paralegal also testified that, on June 22, 2016, the

deputy prosecuting attorney requested that she follow-up with

Komori regarding Hernane’s return, which the paralegal did, and

she was informed that he would be brought back on July 19, 2016.

She testified that, knowing that a trial call was scheduled for
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July 19, 2016, she called the court to move the trial call to

after the 19th and was given two dates, the 21st or 22nd of

July.      The paralegal contacted Hernane’s counsel after obtaining

the new July 22nd date.         On cross-examination, she testified

that it was her understanding that Hernane was being brought

back on the first regularly scheduled available flight back to

Hawaii.

       Hernane then argued that he was not “unavailable” for

purposes of HRPP Rule 48 for the period during which he was

“housed on the mainland” because he “was in Hawaii State

custody.”       Alternatively, Hernane argued that even if he was

“unavailable,” the State did not show it exercised due diligence

to bring him back promptly.

       The State argued that it had exercised due diligence in

securing Hernane’s presence for trial, and thus, Hernane’s Rule

48 Motion should be denied pursuant to State v. Jackson, 8 Haw.

App. 624, 817 P.2d 130 (1991).           The State argued “it was only on

April 12th, 2016, when I [the deputy prosecuting attorney]

became aware” at an informal status conference that Hernane was

being held in Arizona.10         The State further maintained that the

“Honolulu prosecutor’s office does not tell [DPS] what to do and


10
       But see text accompanying note 7, supra.


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when to do it” and their office had timely submitted the request

and then had to “simply wait[] for [DPS’s] response.”

       After the parties completed their arguments, the circuit

court noted that the disputed time period was March 23, 2016 up

through and including the July 22, 2016, a total of 121 days,

during “the vast majority” of which Hernane was held in Arizona

until he was returned on July 19, 2016 “or thereabouts.”

Hernane asserted a violation of HRPP Rule 48 based on the

passage of 181 unexcludable days, a difference of only one day

from the requirement that trial commence within 180 days.                   The

circuit court clarified that it would rule alternatively, and

proceeded to offer various calculations of excludable time

periods, all of which supported its conclusion that there was no

violation of HRPP Rule 48.

       In its first alternative, the circuit court ruled that the

118 days between the rejection of certiorari on March 23, 2016

until Hernane’s return to Hawaiʻi on July 19, 2016, were

excludable.       In its second alternative, the circuit court ruled

that the ninety-eight days from April 12, 2016, when the deputy

prosecuting attorney allegedly became aware that Hernane was not

present in the State,11 until Hernane’s return on July 19, 2016,



11
      Again, at the February 9, 2016 trial setting hearing with the deputy
prosecuting attorney present, Hernane’s counsel noted that Hernane was not
(continued. . .)
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were excludable.      To reach this finding, the circuit court

relied on Jackson, and found (1) that “the State, upon becoming

informed of [Hernane’s whereabouts], made good-faith diligent

efforts going forward to secure the attendance of the defendant

for the anticipated retrial,” and (2) that the “July date” was

not an “unreasonable delay” because it was “the first available

scheduled return for mainland inmates.”           In its third

alternative, the circuit court ruled that the 77 days from the

May 3rd calendar call until Hernane’s return on July 19th were

excludable pursuant to HRPP Rule 48(c)(5) and (c)(8) and

Jackson.

     On February 27, 2018, the court entered its findings of

fact, conclusions of law, and order denying Hernane’s Rule 48

Motion consistent with its oral rulings.

     Hernane’s jury trial commenced on February 5, 2018 after

the Rule 48 hearing, and it lasted six days.            On February 15,

2018, the jury returned a verdict finding Hernane guilty of the

lesser-included offense of manslaughter in violation of HRS §

707-702(1)(a).12     On April 17, 2018, the circuit court entered a




(. . . continued)
present because he was being held in Arizona. See text accompanying note 7,
supra.
12
       HRS § 707-702(1)(a) (Supp. 2011) provides in relevant part: “A person
commits the offense of manslaughter if . . . [t]he person recklessly causes
the death of another person . . . .”

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judgment of conviction and sentence, sentencing Hernane, inter

alia, to a twenty-year term of incarceration.

C.     Appeal to the ICA

       Hernane timely appealed the circuit court’s judgment of

conviction and sentence to the ICA, basically repeating the

arguments he made below and challenging the circuit court’s

denial of his Rule 48 Motion.           In its April 11, 2019 summary

disposition order, the ICA affirmed the circuit court’s judgment

of conviction and sentence.          State v. Hernane, CAAP-XX-XXXXXXX,

at 6, 11 (App. April 11, 2019) (SDO).

       With respect to the Rule 48 issue, relying on its holding

in Jackson, the ICA noted that the HRPP does not define

unavailability, but that the ICA had previously adopted the

definition of unavailability from the Federal Speedy Trial Act,

18 U.S.C. § 3161(h)(3)(B) (1979): “a defendant . . . . shall be

considered unavailable whenever his [or her] whereabouts are

known but his [or her] presence for trial cannot be obtained by

due diligence.”        Hernane, SDO at 3 (citing Jackson, 8 Haw. App.

at 630, 817 P.2d at 135).          The ICA also opined that “‘[d]ue

diligence is a fluid concept that must be determined on a case

by case basis . . . .’”         Hernane, SDO at 3 (quoting Jackson, 8

Haw. App. at 630, 817 P.2d at 135).




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       The ICA stated that the main issue was whether the State

used due diligence to procure Hernane’s return to Honolulu for

retrial.      Hernane, SDO at 3-4.       The ICA determined that based on

the paralegal’s testimony and the State’s exhibits, the circuit

court had not erred and had correctly concluded that Hernane’s

right to trial commencement under HRPP Rule 48 had not been

violated. Hernane, SDO at 6.

D.     Application for Writ of Certiorari

       We address Hernane’s first question on certiorari, whether

the ICA gravely erred in denying his motion to dismiss the

indictment pursuant to HRPP Rule 48.            Hernane basically argues

that the delay between March 23, 2016 and July 19, 2016, was not

excludable because he was not “unavailable” for purposes of HRPP

Rule 48.

     III.     Standard of Review of HRPP Rule 48 Motion to Dismiss

              The appellate court reviews 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.




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            [State v. ]Samonte, 83 Hawai‘i [507, 514], 928 P.2d [1, 8
            (1996)] (quoting State v. Hutch, 75 Haw. 307, 328-29, 861
            P.2d 11, 22 (1993)).

Choy Foo, 142 Hawaiʻi at 72, 414 P.3d at 124.

 IV.    The time Hernane spent in Arizona in Hawai̒i State custody
             was not excludable under HRPP Rule 48(c)(5)

       Hernane asserts the ICA erred in affirming the circuit

court’s denial of his Rule 48 motion by holding that Hernane was

“unavailable” for purposes of HRPP Rule 48(c)(5) while he was in

Hawaiʻi State custody in an Arizona prison facility.

       “The purpose of Rule 48 is to ensure an accused a speedy

trial, which is separate and distinct from his constitutional

protection to a speedy trial.”        Estencion, 63 Haw. at 268, 625

P.2d at 1043.     Speedy trial rules are intended to prevent

unreasonable delay in the determination of criminal actions that

“subvert[] the public good and disgrace[] the administration of

justice[.]”     63 Haw. at 268, 625 P.2d at 1043 (citing People v.

Solomon, 70 N.E.2d 404 (1946)).        To accomplish this end, HRPP

Rule 48(b) requires a court to dismiss the charge upon the

defendant’s motion “‘if trial is not commenced within 6 months’

of a relevant triggering date.”        Choy Foo, 142 Hawaiʻi at 72, 414

P.3d at 124.    The six-month period under HRPP Rule 48 is

equivalent to 180 days.       See State v. Hoey, 77 Hawaiʻi 17, 28,

881 P.2d 504, 515 (1994).       Under HRPP Rule 48(c), there are

“eight categories of delay that are to be excluded from
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calculating the time within which trial must commence.”             Choy

Foo, 142 Hawaii at 72-73, 414 P.3d at 124-25.

     At issue in this case is one of those categories, which

excludes “periods that delay the commencement of trial and are

caused by the absence or unavailability of the defendant.”               HRPP

Rule 48(c)(5) (emphasis added).        What constitutes a “period[]

that delay[s] the commencement of trial and [is] caused by the

[] unavailability of the defendant” is not further defined

within the HRPP.

     Based on the authority below, we hold that a defendant is

not “unavailable” for purposes of HRPP Rule 48 when he is in

Hawaiʻi State custody and does not prevent his own transportation

to court.    Cf. Mainwaring v. State, 11 So. 3d 986, 991 (Fla.

Dist. Ct. App. 2009) (“The bare refusal of one county to

transport an accused person to another county where the speedy

trial time is running is ordinarily not sufficient to establish

that the accused is ‘unavailable’ for trial.”).

     In State v. Willoughby, 83 Hawaiʻi 496, 927 P.2d 1379 (App.

1996), the ICA affirmed a trial court ruling that the 1,089 days

between an indictment and when the defendant was served with a

warrant for his arrest on the mainland was excludable under HRPP

Rule 48(c)(5) because the period had been caused by the

unavailability of the defendant.          83 Hawaiʻi at 501, 927 P.2d at

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1384.      During the 1,089 days, despite “periodically searching

existing computer data bases,” the Honolulu Police Department

(“HPD”) had been unable to find the defendant, who had left

Hawai̒i without leaving a forwarding address.             83 Hawaiʻi at 498,

927 P.2d at 1381.        HPD only learned the defendant’s whereabouts

when they were contacted by the New Jersey prosecutor’s office

regarding the outstanding warrant for the defendant’s arrest.

Id.

       In Jackson, which the circuit court and the ICA relied upon

in this case, although the defendant was imprisoned in Honolulu,

the defendant was in federal custody.            See 8 Haw. App. at 628-

29, 817 P.2d at 135.         The ICA adopted the following definition

of “unavailability” from the Federal Speedy Trial Act, 18 U.S.C.

§ 3161(h)(3)(B): “a defendant . . . shall be considered

unavailable whenever [the defendant’s] whereabouts are known but

[the defendant’s] presence for trial cannot be obtained by due

diligence[.]”       8 Haw. App. at 630, 817 P.2d at 134.13          The ICA

held that the State had exercised due diligence to secure the

defendant’s presence for his arraignment because the prosecuting

attorney had contacted the United States Marshal’s office in an

attempt to have the defendant brought to the circuit court, but

13
      As explained below, Jackson is inapplicable because Hernane was not
“unavailable.” As the issue is not before us, we do not decide whether “due
diligence” would satisfy the State’s burden in a case where a defendant is
actually “unavailable.”

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the Marshal refused to deliver the defendant.           8 Haw. App. at

632, 817 P.2d at 135.      The ICA held, “[t]he 231 days between

November 17, 1988, when the State first attempted to get the

Marshal to produce Defendant, and July 6, 1989, when Defendant

failed to appear for his eighth scheduled arraignment, was

properly excluded pursuant to Rule 48(c)(5), HRPP.”            8 Haw. App.

at 633, 817 P.2d at 136.       The ICA posited that to determine

whether due diligence was exercised, a court’s “focus is on what

was done by the state rather than on what was not done.”             8 Haw.

App. at 632, 817 P.2d at 136-37 (citing Ingram v. State, 703

P.2d 415, 431 (Alaska Ct. App. 1985) (“[P]rimary emphasis must

be on the reasonableness of the efforts actually made, not on

the alternative that might have been made available.”)).

     Relying on Jackson, the State and circuit court ruled that

the State had “exercised due diligence and made good faith

efforts to return Defendant to Hawaiʻi for retrial[,]” and that,

therefore, the time Hernane remained in Arizona was excludable

under HRPP Rule 48(c)(5).

     Through various cases similar to Willoughby and Jackson,

other state courts have addressed whether a defendant who

becomes absent due to relocation to another state or

incarceration by another state or federal government is

“unavailable” during the time period it takes to obtain the

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presence the defendant.      For example, the Supreme Court of

Pennsylvania has held that where a defendant incarcerated in an

out-of-state jail initially refused extradition, he was

”unavailable” until he was returned to that state.            Commonwealth

v. Stange, 428 A.2d 226 (Pa. 1981); see also People v. Garner,

74 Cal.Rptr. 298, 304 (Cal. Ct. App. 1990) (holding a defendant

who resisted extradition was unavailable).          That court also

ruled that a defendant who had “voluntarily absented” himself

from that state was “unavailable” until after he was returned to

the state after arrest in an extradition waiver.            Commonwealth

v. Polsky, 426 A.2d 610 (Pa. 1981); see also State v. Hattori,

573 P.2d 829 (Ct. App. Wash. 1978) (holding that a defendant was

unavailable until his arrest in California and return to

Washington).     But here, Jackson is inapplicable because Hernane

was not held by another jurisdiction, but was in Hawai̒i State

custody.   Accordingly, no due diligence inquiry is necessary

because the State had the sole responsibility for transporting

the defendant.

     There do not appear to be any reported cases regarding

whether or not a defendant held in state custody in that state’s

prison located in another state can be deemed “unavailable” in

the custodial state.      Florida courts have held, however, that

for purposes of Florida’s speedy trial rule, “if the charging

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county has knowledge that the defendant is incarcerated in

another county, the defendant is not considered ‘unavailable’

for trial in the charging county.”         Mainwaring, 11 So. 3d at

989; see also State v. Steele, 624 N.W.2d 1, 8 (Neb. 2001) (“The

primary burden of bringing an accused person to trial within the

time provided by law is upon the State.”).          The Colorado Court

of Appeals held that defendants were not unavailable for

purposes of that state’s Speedy Trial Act for the time they were

in California based on a post-arraignment extradition or a

waiver of extradition.      People v. Wimer, 604 P.2d 1183 (Colo.

App. 1979).    In addition, the Supreme Court of Illinois held

that where the state had voluntarily relinquished control over a

defendant to federal authorities, the delay was attributable to

the state.    People v. Swartz, 171 N.E.2d 784 (Ill. 1961).

    The absence of reported cases similar to Hernane’s

situation is logical.      As indicated by the cases above, it is

when a defendant has “voluntarily absented” himself from a state

or when a state does not know about or have control over the

custody of a defendant in another state that a time period is

excludable for speedy trial purposes for being “caused by the

unavailability of the defendant.”         As pointed out in the

American Bar Association Standards for Criminal Justice Relating

to Speedy Trial: “[a] defendant should be considered unavailable

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whenever his whereabouts are known but his presence for trial

cannot be obtained or he resists being returned to the state for

trial.” AMERICAN BAR ASSOCIATION STANDARDS     FOR   CRIMINAL JUSTICE RELATING   TO

SPEEDY TRIAL, Standard 12-2.3(e) (Supp. 1986) (quoted in Jackson, 8

Haw. App. at 630, 817 P.2d at 134); see also People v. Moye, 635

P.2d 194, 196 (Colo. 1981) (citing ABA Standard 12-2.3(e)).

       Under the ABA Standard, Hernane clearly was not

“unavailable.”        His whereabouts were known, but the requirement

that “his presence for trial cannot be obtained” was simply non-

existent.       Hernane was in custody of the State of Hawaiʻi

Department of Public Safety.          The State knew where he was and

had control over his location;14 Hernane did not “voluntarily

absent” himself to Arizona.          In addition, he did not “resist

being returned to the state for trial.”              It was the State that

failed to return him for 118 days although his conviction had

been vacated; he was therefore a pre-trial detainee being held

in a prison, not a jail.          As a pre-trial detainee, he should

have promptly been returned to Hawaiʻi.
14
      We reject the circuit court’s finding that “[t]he Honolulu Prosecutor’s
Office exercises no control over [the Department of Public Safety]. Our
county prosecutors have been delegated the primary authority and
responsibility for initiating and conducting criminal prosecutions within
their respective counties, but do so under the authority of the attorney
general of the State of Hawaiʻi. Ruggles v. Yagong, 135 Hawaiʻi 411, 418, 353
P.3d 953, 960 (2015). As agents of the State of Hawai̒i, county prosecutors
are obligated to fulfill the responsibilities of the State of Hawaiʻi in their
prosecutions. Whether the Honolulu Prosecutor’s Office exercises “control”
over the Department of Public Safety is irrelevant -- Hernane was in Hawaiʻi
State custody and therefore was not unavailable.

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     In addition, the circuit court and ICA in this case relied

on Jackson as legal authority allowing exclusion of the time

Hernane was held in Arizona from the Rule 48 calculation.                In

Jackson, after citing the ABA Standard quoted above, the ICA

adopted the Federal Speedy Trial Act’s definition of

“unavailability” that “a defendant . . . shall be considered

unavailable whenever [the defendant’s] whereabouts are known but

[the defendant’s] presence for trial cannot be obtained by due

diligence.”    8 Haw. App. at 630, 817 P.2d at 134-35.

     Yet, the Federal Speedy Trial Act itself would not have

authorized the circuit court to exclude the bulk of the time

period Hernane was held in Arizona.         18 U.S.C. § 3161(h)(1)(F)

expressly limits the excludable time resulting from

transportation of defendants already within federal custody to

ten days:

            [D]elay resulting from transportation of any defendant from
            another district, or to and from places of examination or
            hospitalization [are excluded], except that any time
            consumed in excess of ten days from the date an order of
            removal or an order directing such transportation, and the
            defendant's arrival at the destination shall be presumed to
            be unreasonable[.]

HRPP Rule 48, on the other hand, does not contain this up-to-

ten-day leeway period for transporting defendants in the custody

of the State of Hawaiʻi.      Thus, the legal authority on which the

circuit court and ICA relied would not have allowed exclusion of



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the time periods they deemed excludable under HRPP Rule

48(c)(5).15

                                V.    Conclusion

       For all of these reasons, the time Hernane spent in Arizona

in State custody was not excludable under HRPP Rule 48(c)(5).

The circuit court therefore erred in denying Hernane’s Rule 48

Motion.      The Rule 48 violation requires dismissal of the charge

against Hernane.        We therefore vacate the ICA’s January 11, 2016

judgment on appeal and the circuit court’s October 22, 2013

judgment of conviction and sentence and remand this case to the




15
       Even for defendants held in the custody of another jurisdiction,
the Federal Speedy Trial Act contains additional language contradicting
the circuit court and ICA’s exclusion of the time Hernane continued to
be held in Arizona. 18 U.S.C. § 3161(j)(1)(A) contains language
clarifying the expected action of a government attorney to secure a
defendant’s presence for trial: “If the attorney for the Government
knows that a person charged with an offense is serving a term of
imprisonment in any penal institution, he shall promptly . . .
undertake to obtain the presence of the prisoner for trial[.]” 18
U.S.C. § 3161(j)(1)(A) (emphasis added). The legislative history of
the act provides that “[w]ith respect to the term ‘promptly’ as used in
this subsection, the Committee intends that the attorney for the
Government . . . shall initiate detainer or demand certificate
procedures as soon after he becomes aware of the fact that the accused
is imprisoned as is practicable.” H.R. Rep. No. 93-1508, at 22-23
(1974). Based on the record, the State did not act promptly to seek
Hernane’s return as the record reflects that the State knew Hernane was
imprisoned in Arizona in February 2016, but did not make a request for
Hernane’s return until April. In addition, the State could have and
should have flown Hernane back to Hawaiʻi promptly when his conviction
was vacated, as he was then a pre-trial detainee, not a convicted
felon.

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circuit court for further proceedings consistent with this

opinion.

Jon K. Ikenaga                     /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent                     /s/ Sabrina S. McKenna

                                   /s/ Michael D. Wilson

                                   /s/ Bert I. Ayabe




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