 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER




                                                      Electronically Filed
                                                      Intermediate Court of Appeals
                                                      CAAP-XX-XXXXXXX
                                                      29-JUN-2020
                                                      08:01 AM



                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                STATE OF HAWAI#I, Plaintiff-Appellee, v.
                  CORY McGLOTHIN, Defendant-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DTA-17-04452)


                       SUMMARY DISPOSITION ORDER
          (By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

             Defendant-Appellant Cory McGlothin (McGlothin) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, entered on May 30, 2018, in the District Court of
the First Circuit, Honolulu Division (District Court).1/ When
the State was not ready to proceed at trial, the District Court,
at McGlothin's request, dismissed the charges against him,
namely, Operating a Vehicle Under the Influence of an Intoxicant,
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1),
and Driving Without a License, in violation of HRS § 286-102.
          On appeal, McGlothin contends that the District Court
erred in: (1) dismissing the charges without prejudice, rather
than with prejudice; and (2) "conducting off-the-record phone
calls and text messaging" with two other district court judges,
one of whom had set the case for trial, thereby violating
McGlothin's right to a public trial and due process.



     1/
          The Honorable Trish K. Morikawa presided.
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve McGlothin's points of error as follows:
          In support of his first point of error, McGlothin
contends that the District Court: (a) abused its discretion when
it purportedly modified another judge's earlier order setting a
"firm" trial date of May 30, 2018,2/ by not dismissing the case
with prejudice, or holding a trial and acquitting McGlothin, on
that date, when the State was not ready to proceed; and (b) made
inadequate findings to justify its decision to dismiss the case
without prejudice.
          (1)(a) We reject McGlothin's contention that the
District Court modified the prior ruling of another judge. On
March 14, 2018, Judge Domingo entered an order which, among other
things, set a trial date of May 30, 2018, with the notation,
"Firm." There is no indication in the record, however, that
Judge Domingo intended: (i) to dismiss the case with prejudice
should the State be unable to proceed on the "firm" trial date;
or (ii) to hold a trial on that date, despite the State's
inability to proceed, without regard to the circumstances. Nor
has McGlothin supplied any authority holding that a trial court
must follow one of these two courses of action when the State is
unable to proceed to trial on a "firm" trial date.
          Under these circumstances, when the parties appeared
for trial on May 30, 2018, and the State was not ready to
proceed, it appears that the District Court sought to act
consistently with Judge Domingo's prior order. At that time,
McGlothin argued that the case had been "set for a firm trial
setting for today," and "ask[ed] that it be dismissed pursuant to
that previous ruling." The District Court stated in part:
"[L]et me double-check with Judge Iha by what she meant on
firm[.]" Defense counsel responded, "All right." The District
Court then said, "[S]o if you could . . . wait till the recess, I
can go and check with her, I can give her a call." Defense


     2/
          The Honorable William M. Domingo presided.

                                        2
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

counsel responded, "Okay."
          After the recess, the District Court stated, "I don't
have an answer just yet because it wasn't Judge Iha, it's Judge
Domingo, so if I don't hear back from him within, like, the next
five minutes, then I'm just going to rule." Defense counsel
responded, "Thank you." Shortly thereafter, the District Court
reported:
                Okay. So I was able to get in touch with Judge
          Domingo who was the one who set it firm. Not that I doubted
          you, counsel, but I just wanted to double-check since
          nothing was in the minutes. He did say he set it firm and
          that if the State wasn't ready, that the Court would dismiss
          the case.

Defense counsel replied, "Thank you, Your Honor."
          At that point, the District Court denied the State's
request for a continuance, granted McGlothin's motion to dismiss,
and invited oral argument as to whether the dismissal should be
with or without prejudice. Following argument, the court stated
several reasons that the case would be dismissed without
prejudice. Defense counsel then said, "[W]e object because
you're overruling the previous court," and the District Court
responded, "No. I specifically checked with Judge Domingo, and
he said specifically that I can do it without [prejudice]."
          On this record, and absent any ruling by Judge Domingo
that he would dismiss the case with prejudice under these
circumstances, we conclude that the District Court's decision was
consistent with Judge Domingo's earlier ruling and did not modify
it. Accordingly, we need not address McGlothin's argument that
the purported modification was an abuse of discretion.
          (1)(b) In dismissing the case without prejudice, the
District Court made the following oral findings on May 30, 2018:
                THE COURT: Okay. So the Court's going to note that
          there are two counts in this case, the Driving -- Operating
          a Vehicle Under the Influence as well as a No Motor Vehicle
          Driver's License. The Court's going to note that both of
          those charges are petty misdemeanors. While that is the
          lowest of offenses, nevertheless, the Court does find that
          these are serious, and it is two counts, not just one.
                The Court's also going to note that when I look at the
          procedural history in the case, that there has been a number
          of motions filed, that, yes, discovery was trying to be
          gotten to the Defendant.

                The Court's going to note that, that from this Court's
          understanding, this would have been technically the first

                                    3
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

          legitimate trial setting of which the State was not ready to
          proceed. The State's indicated, although counsel has object
          -- is stating differently, the State's indicating that the
          Rule 48 is July 28th, so there would still be time,
          arguably, even though Defense is stating otherwise, to
          proceed with this case where the Court could put this on for
          the calendar.

                The Court's going to note, nevertheless, that since
          the previous judge did issue -- did state that this was firm
          and that, that this would be dismissed, that the Court would
          be nevertheless going along with that Court's prior ruling.
                The Court's also going to note that this was set firm
          because the Defendant had left the jurisdiction.
          Nevertheless, the Court, just because people leave, the
          Court doesn't think that that's a reason why Defendants
          should get a chance to get their cases dismissed 'cause they
          don't live here anymore since the offense occurred when it
          was here and everybody else that still stays here, they
          wouldn't have to have their trial set firm.
                Granted, the Court does understand that he did have to
          fly back particularly, he's in the military, but
          nevertheless, when it comes to other Defendants that live
          here, they're working as well, they -- you know, it was his
          choice -- well, I don't know if it was his choice. He's in
          the military so it's not necessarily his choice, but he did
          leave the jurisdiction, so, nevertheless, this occurred
          here.

                So for those reasons as well as the procedural history
          of the case -– the Court's going to note that [the State's
          witness], it's my understanding he is on injured leave. He
          would, according to counsel, be, be back by next week, so
          the Court is going to dismiss this case without prejudice.

          McGlothin contends that the District Court's findings
supporting dismissal without prejudice were inadequate, because
there was no finding as to the "administration of justice" factor
set out in State v. Estencion, 63 Haw. 264, 269, 625 P.2d 1040,
1044 (1981). He also argues that the District Court's finding
that "the State is somehow entitled to more than one trial
setting" because of McGlothin's "absence from the jurisdiction"
was an abuse of discretion.
          When a trial court dismisses a criminal case for
violation of Hawai#i Rules of Penal Procedure (HRPP) Rule 48, its
decision to dismiss with or without prejudice is reviewed for
abuse of discretion. State v. Fukuoka, 141 Hawai#i 48, 55, 404
P.3d 314, 321 (2017).
          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 [HRPP Rule 48] and on the administration
          of justice."

                                    4
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER


Id. at 55-56, 404 P.3d at 321-22 (quoting Estencion, 63 Haw. at
269, 625 P.2d at 1044). "Although not set forth as one of the
three enumerated factors, 'prejudice to the defendant may be a
relevant consideration in the trial court's decision to dismiss
with or without prejudice' under HRPP Rule 48." Id. at 56, 404
P.3d at 322 (quoting State v. Coyaso, 73 Haw. 352, 357, 833 P.2d
66, 69 (1992)). "[T]he trial court may consider other factors it
finds to be relevant to the case before it[.]" Id. (quoting
Coyaso, 73 Haw. at 357, 833 P.2d at 69).
                In analyzing whether to dismiss a case with or
          without prejudice under HRPP Rule 48 and Estencion,
          the trial court must "clearly articulate the effect of
          the Estencion factors and any other factor it
          considered in rendering its decision." State v. Hern,
          133 Hawai#i 59, 64, 323 P.3d 1241, 1246 (App. 2013).
          Accordingly, the court must explain the effect of the
          Estencion factors on its reasoning to dismiss a charge
          with or without prejudice. Id. The court is not
          required, however, to make a determination as to
          whether each individual factor weighs in favor of
          dismissal with or without prejudice.
                The trial court must therefore provide an "explanation
          of its consideration of the Estencion factors," and any
          other factors it considered, "and the basis for its
          decision." See id. at 65, 323 P.3d at 1247.

Fukuoka, 141 Hawai#i at 56, 404 P.3d at 322 (footnotes and
brackets omitted).
          Here, the District Court's oral findings show that it
considered each of the Estencion factors and explained the effect
of the factors on its reasoning to dismiss the charges without
prejudice. It is true that the District Court did not expressly
label its consideration of the impact of reprosecution on "the
administration of justice" as such. But the court clearly
evaluated that factor in substance, and sufficiently explained
its effect on the court's decision. In particular, the court
considered the possibility that the case might still be tried
before the HRPP Rule 48 deadline. The court also considered the
prejudice to McGlothin of having to fly back to Hawai#i for
trial, but concluded that his having left the jurisdiction did
not justify dismissal with prejudice where the alleged offenses
occurred here. See id. at 64, 404 P.3d at 330 (prejudice caused
to a defendant by a trial delay may be considered in determining
the impact of reprosecution on the administration of justice).

                                    5
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

On this record, we cannot conclude that the District Court abused
its discretion in reaching this conclusion or in weighing the
relevant factors in deciding to dismiss the case without
prejudice.
           (2) As set forth above, when the parties appeared for
trial, and the State was not ready to proceed, McGlothin
expressly agreed to the District Court's contacting the judge who
had set the trial date to determine "what [the judge] meant on
firm." When the District Court later reported that Judge Domingo
"did say he set it firm and that if the State wasn't ready, that
the Court would dismiss the case[,]" defense counsel simply
responded, "Thank you, Your Honor." It was only after the court
announced its ruling to dismiss the case without prejudice that
defense counsel objected "to all this off-the-record banter
between the judges to determine what the ruling should be."
          Under these circumstances, where McGlothin expressly
consented to the District Court communicating with the two
identified judges for the indicated purpose, we conclude that
McGlothin waived any objection to such communications.
          Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered on
May 30, 2018, in the District Court of the First Circuit,
Honolulu Division, is affirmed.

          DATED:   Honolulu, Hawai#i, June 29, 2020.


On the briefs:
                                      /s/ Lisa M. Ginoza
Richard L. Holcomb                    Chief Judge
(Holcomb Law, LLLC)
for Defendant-Appellant.              /s/ Keith K. Hiraoka
                                      Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney,          /s/ Clyde J. Wadsworth
City & County of Honolulu,            Associate Judge
for Plaintiff-Appellee.




                                  6
