   ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCPW-17-0000739
                                                               22-DEC-2017
                                                               09:01 AM



                             SCPW-17-0000739

            IN THE SUPREME COURT OF THE STATE OF HAWAII


                        RANDALL ABE, Petitioner,

                                     vs.

         THE HONORABLE PAULA DEVENS, Per Diem Judge of the
                District Court of the First Circuit,
                 State of Hawaii, Respondent Judge,

                                     and

                     STATE OF HAWAII, Respondent.


                           ORIGINAL PROCEEDING
                       (CASE NO. 1DCW-17-0003781)

                      SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

           Petitioner Randall Abe seeks a writ of mandamus

directing the Honorable Paula Devens (Judge Devens) to release

him from custody forthwith pursuant to the requirement that a

defendant be released upon motion if a preliminary hearing has

not commenced within two days of the defendant’s initial

appearance.    See Hawaii Rules of Penal Procedure (HRPP) Rule

5(c)(3) (2014).
  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          On October 11, 2017, Abe was arrested for terroristic

threatening in the first degree and assault in the second

degree.   On October 13, 2017, a complaint charging Abe with the

offenses for which he was arrested was filed in the District

Court of the First Circuit (district court).

          A preliminary hearing was scheduled for October 17,

2017.   At the scheduled hearing, the State requested to continue

the hearing for one week, explaining that the complaining

witness had not been served with a subpoena.          The State

indicated that the complaining witness had been in contact with

its investigator and that it had no information that the

complaining witness was not cooperative.         The State added that

the complaining witness lives in low-income housing in Kapolei

and thus transportation may be an issue.         Abe objected to the

requested continuance, arguing that there was no good cause for

the continuance given that the complaining witness had been in

contact with the State’s investigator.         Abe requested that the

matter be dismissed and that Abe be released on his own

recognizance forthwith.     In the alternative, Abe requested that

bail be reduced or that, if the court was inclined to continue,

the hearing be continued for no more than one day.

          The district court found that there was good cause for

a continuance and continued the hearing for one week; the court

also denied Abe’s request for reduction of bail.           On October 24,

                                     2
  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


2017, while this petition was pending, the State charged Abe by

grand jury indictment.

          In his petition, Abe contends that, pursuant to HRPP

Rule 5(c)(3), Judge Devens was required to release him on his

own recognizance upon his request because a preliminary hearing

did not commence within two days after his initial appearance.

HRPP Rule 5(c)(3) provides in relevant part as follows:

          if the defendant is held in custody for a period of more
          than 2 days after initial appearance without commencement
          of a defendant’s preliminary hearing, the court, on motion
          of the defendant, shall release the defendant to appear on
          the defendant’s own recognizance, unless failure of such
          determination or commencement is caused by the request,
          action or condition of the defendant, or occurred with the
          defendant’s consent, or is attributable to such compelling
          fact or circumstance which would preclude such
          determination or commencement within the prescribed period,
          or unless such compelling fact or circumstance would render
          such release to be against the interest of justice.

In Moana v. Wong, No. SCPW-17-0000532, 2017 WL 5591471, at *8-10

(Haw. Nov. 21, 2017), we held that HRPP Rule 5(c)(3) provides a

strong presumption that the release of a defendant held in

custody is required upon motion, when a preliminary hearing has

not commenced within two days of initial appearance.           When a

delay is not caused by a defendant and occurs without the

defendant’s consent, a court may deny a defendant’s motion for

release only in a circumstance that is of such gravity as to

overcome the strong presumption of release.          Id.   If such a

compelling circumstance is found, the continuance of the




                                     3
  ***NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


preliminary hearing must be no longer than needed to resolve the

circumstance making the delay necessary.         Id.

          Based on Moana, the record does not indicate that any

compelling fact or circumstance was implicated in Abe’s case.

And even if there was a compelling fact or circumstance, the

continuance was not limited to the time necessary to

expeditiously resolve the circumstance precluding the hearing.

However, because Abe was charged by grand jury indictment during

the pendency of this petition, which obviates the need for a

preliminary hearing, the petition is moot.         See id. at *3-5.

Accordingly,

          IT IS HEREBY ORDERED that Abe’s petition is denied.

          DATED: Honolulu, Hawaii, December 22, 2017.

James S. Tabe                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Patricia Kickland
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




                                     4
