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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              31-AUG-2018
                                                              08:10 AM


           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


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

                                    vs.

                        SHAWN D. VISINTIN,
          Respondent and Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 13-1-0166)

                            AUGUST 31, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          A protracted pretrial period can hinder the accurate

determination of a case as evidence dissipates, as well as cause

anxiety and hardship to a defendant awaiting the disposition of

criminal charges.    Thus, the Hawai‘i and U.S. Constitutions and

our court rules grant an accused the right to a prompt

adjudication, and a case generally must be dismissed if a
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defendant is held to answer for a period exceeding a prescribed

time limit or an unreasonable amount of time without a trial

ensuing.

           In this case, the State was not prepared to proceed

with a prosecution on the date of the defendant’s initial court

appearance.    In a process referred to as a calendar call, the

court read aloud a list of defendants against whom no charges

had been filed before stating orally that the defendants were

free to go and that any bail or bond they posted would be

discharged.    Seven months later, the defendant was indicted for

the same crime for which he had been arrested, and he moved to

dismiss the case based on the State’s delay in bringing the

prosecution.

           We now hold that, because no written order or notice

of the ruling was filed effectively discharging the defendant’s

bail, he remained held to answer for the alleged crime

underlying his arrest and the case must be dismissed under our

court rules for this reason.      We further hold that the

Intermediate Court of Appeals erred by considering the legal

merits of the defendant’s constitutional speedy trial challenge

when the trial court failed to make the factual findings

necessary for review.     Accordingly, we remand the case for

dismissal with or without prejudice as the trial court

determines appropriate under our court rules.          We also set forth

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applicable legal principles for the trial court’s evaluation of

the defendant’s constitutional speedy trial challenge if the

dismissal under our court rules is determined to be without

prejudice.

                            I.   BACKGROUND

          A. Events on August 7, 2012 and Visintin’s Arrest

            On August 7, 2012, around 2:40 a.m., Officer Brian

Silva of the Kauai Police Department was on uniform patrol when

he saw a person running across the street to a facility that

appeared to be closed.     Upon turning on his cruise lights,

Officer Silva saw the figure of a person in the bushes of the

facility’s driveway.     Officer Silva exited his vehicle, ordered

the person to come out of the bushes, and asked the person for

identification.    Officer Silva observed that the person was

breathing heavily and sweating profusely and that there was an

odor of alcohol emitting from the person.         The person, who was

identified as Shawn Visintin, provided Officer Silva with his

driver’s license from the State of Montana.

            While Visintin was removing his license from his

wallet, Officer Silva saw a concealed weapons permit in the

wallet.    Suspecting that Visintin may be armed, Officer Silva

asked him if he was carrying any weapons.         After Visintin

responded that he had a handgun, Officer Silva conducted a pat-

down search of Visintin and discovered a semi-automatic .45

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caliber handgun in the back part of the waistband of Visintin’s

pants.    Officer Silva then recovered the handgun, which was

unloaded, and placed Visintin under arrest for place to keep

pistol or revolver in violation of Hawaii Revised Statutes (HRS)

§ 134-25.1

                B. Events Following Visintin’s Arrest

             Visintin’s bail was set at $10,000.        Upon posting bail

on August 7, 2012, Visintin was given a “Bail/Bond Receipt,

Acknowledgment, and Notice to Appear” form, indicating that he

was to appear in district court on September 5, 2012.2

             In an email to the prosecutor dated August 31, 2012,

counsel for Visintin inquired whether Visintin’s matter would

proceed as scheduled on September 5 or if the State of Hawaii

intended to dismiss the charge without prejudice.            Counsel

provided Visintin’s full name and the “BBRA NO.”3 associated with

the case.    The prosecutor responded that her office had not

received the police reports and thus no complaint had been

filed.

      1
            HRS § 134-25(a) (2011) provides in relevant part, “Except as
provided in sections 134-5 and 134-9, all firearms shall be confined to the
possessor’s place of business, residence, or sojourn.”

      2
            The form appears to be identical to Form J of the Hawaii Rules of
Penal Procedure.
      3
            “BBRA” is an acronym used to refer to “Bail/Bond Receipt,
Acknowledgment, and Notice to Appear.”




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           A “calendar call” was conducted in the District Court

of the Fifth Circuit (district court) on September 5, 2012.4

During this proceeding, the district court called the names of

those persons against whom no complaint had been filed,

including Visintin, who was not present.5           The court announced

that these persons were free to go and that any cash bail they

posted would be refunded or their bonds would be discharged.

However, the record does not contain a filed document or

calendar notation indicating that Visintin’s bond was

discharged, that the case was dismissed, or that the case was

addressed by some other disposition.         Nor does the record show

that Visintin received notice of the outcome of the September 5,

2012 proceeding.

           More than seven months later, on April 25, 2013, a

grand jury indicted Visintin on one count of place to keep

pistol or revolver in violation of HRS § 134-25 and one count of

unregistered firearm in violation of HRS §§ 134-3(a)6 and 134-


     4
           The Honorable Trudy K. Senda presided.
     5
            The State surmised that Visintin’s non-appearance at the calendar
call was due to Visintin’s counsel knowing beforehand that no complaint would
be filed.
     6
           HRS § 134-3(a) (2011) provides in pertinent part as follows:

           Every person arriving in the State who brings or by any
           other manner causes to be brought into the State a firearm
           of any description, whether usable or unusable, serviceable
           or unserviceable, modern or antique, shall register the

                                                             (continued . . .)

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17(b).7   The indictment was based on the same conduct for which

Visintin had been arrested almost nine months earlier.             On April

29, 2013, the Circuit Court of the Fifth Circuit (circuit court)

issued a warrant for Visintin’s arrest and set bail at $10,000.8

            In an email dated April 30, 2013, the prosecutor

informed Visintin’s counsel of the indictment and the

outstanding bench warrant for the arrest of Visintin, who had

returned to Montana following his release from custody.             The

prosecutor suggested that Visintin fly back to Kauai rather than

be arrested and extradited.       Defense counsel replied by email

and inquired whether Visintin’s case could be resolved at

arraignment.    In a response dated May 1, 2013, the prosecutor

stated that she would provide an answer at a later time as she

was getting ready for a trial scheduled the following week.

Three weeks later, in an email dated May 24, 2013, the

prosecutor asked defense counsel whether Visintin was planning

on returning to Kauai to turn himself in, adding that she would




(. . . continued)

            firearm within five days after arrival of the person or of
            the firearm, whichever arrives later[.]
      7
            HRS § 134-17(b) (2011) states, “Any person who violates section
134-3(a) shall be guilty of a petty misdemeanor.”
      8
            The Honorable Kathleen N.A. Watanabe presided.




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not discuss a plea offer until Visintin was arrested on the

warrant.

           On May 31, 2013, the State of Montana filed a

“Fugitive from Justice Complaint” (fugitive complaint) in

response to the warrant issued by the circuit court.            In the

fugitive complaint, a Montana County Attorney stated that

Visintin was wanted in Hawaii, Fifth Circuit, for the two

indicted offenses; that a warrant had been issued for Visintin’s

arrest; that Visintin “ha[d] fled from justice or ha[d] been

convicted of crimes in that state and ha[d] escaped from

confinement or ha[d] broken the terms of his bail, probation or

parole”; and that a request had been made by the authorities in

Hawaii for his arrest.     (Capitalization omitted.)       The fugitive

complaint requested the issuance of a warrant from the Montana

court commanding law enforcement officers “to apprehend the said

fugitive” and bring him to court.

           The next day, on June 1, 2013, Visintin was arrested

on the fugitive complaint, and he proceeded to post bail in

Montana.   Three days later, the Montana County Attorney filed a

motion to dismiss the fugitive complaint on the basis that “it

[was] not in the interest of justice to pursue.”           The following

day, the Montana court granted the motion, dismissed the case,

and exonerated any bond posted by Visintin.


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            Visintin subsequently returned to Kauai voluntarily

and on August 1, 2013, filed a motion in the circuit court to

recall the bench warrant issued after his indictment.             The court

denied Visintin’s request to be released on recognizance but

reduced the bail amount from $10,000 to $100.9           Visintin posted

bail on August 6, 2013, and he was arraigned the same day.

                          C. Motion to Dismiss

           1. Visintin’s Motion and the State’s Opposition

            On August 20, 2013, Visintin filed a “Motion to

Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due

Process” (motion to dismiss) in the circuit court.            In his

motion, Visintin argued that the time limit set forth in Rule 48

of the Hawaii Rules of Penal Procedure (HRPP)10 was exceeded


      9
            The Honorable Randal G.B. Valenciano presided over all remaining
circuit court proceedings.

            The order reducing Visintin’s bail also granted Visintin
permission to travel outside the State of Hawai‘i during his pretrial release
provided he executed a waiver of extradition and appeared for all court
proceedings. Visintin executed the required waiver on August 6, 2013.
      10
            HRPP Rule 48 (2000) provides in relevant part as follows:

            (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 . . . .

                                                             (continued . . .)

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based on the plain language of the rule because more than nine

months had passed from the setting of bail to his arraignment.11

Visintin submitted that HRPP Rule 48 does not support the

conclusion that the “unsetting of bail” triggers Rule 48

tolling.    Rather, he maintained, tolling requires that the State

demonstrate good cause for the delay.

            Visintin contended that the delay, which doubled the

period allowed under the rule, was entirely attributable to the

State and that the State had provided no good cause for the

delay.     Thus, Visintin concluded that HRPP Rule 48 supported the

dismissal of his case with prejudice.

            Visintin also contended that his constitutional right

to speedy trial, which attached at his initial arrest, was


(. . . continued)

            (c) Excluded Periods. The following periods shall be
            excluded in computing the time for trial commencement:

                    . . .

                    (6) the period between a dismissal of the charge by
                    the prosecutor to the time of arrest or filing of a
                    new charge, whichever is sooner, for the same offense
                    or an offense required to be joined with that
                    offense;

                    . . .

                    (8) other periods of delay for good cause.
      11
            Visintin distinguished his case from State v. Johnson, 62 Haw.
11, 608 P.2d 404 (1980), arguing that, unlike in Johnson where the defendant
was released outright, bail was set in his case and the setting of bail is
the point from which the clock runs pursuant to HRPP Rule 48.




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violated.   He maintained that the State was entirely responsible

for the delay and had provided no valid reason for it, that the

delay was presumptively prejudicial, that he suffered tangible

losses to his employment, that “memories have faded and even

police witnesses who ‘searched the area for criminal activity

with negative results’ have apparently retired,” and that he had

always demanded a speedy trial.       Visintin also submitted that

the calendar call procedure does not provide a mechanism by

which a defendant could assert the right to speedy trial.             Thus,

Visintin argued, the violation of his constitutional right to

speedy trial supported the dismissal of his case with prejudice.

            Lastly, Visintin asserted that the State had thwarted

the purpose of bail, which is to ensure that the defendant is

present at trial while also affording the defendant freedom from

harassment and confinement.      Although he posted bail, Visintin

contended, he was arrested two more times and a fugitive warrant

was wrongly obtained in another state based on inaccurate

information.    Visintin concluded that requiring the posting of

bail multiple times for the same matter violates the Eighth

Amendment to the U.S. Constitution and article I, section 12 of

the Hawaii Constitution.

            Opposing Visintin’s motion to dismiss, the State

described the “unique” procedure employed in the district court

of the Fifth Circuit when the State does not file a charging
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document by an established deadline.12         The State contended that

it did not charge Visintin as it lacked adequate information to

do so because the police reports were not forwarded to the

prosecutor’s office until the date when Visintin’s bond was

discharged.    Since no case numbers are created unless a charging

document has been filed, the State asserted, there is no readily

available mechanism to file a written dismissal of a case.

Therefore, the State submitted, the effect of the call list is a

“de facto dismissal of the cases,” and the period from the day

after Visintin’s bond was discharged until he was indicted was

excluded from the time limit calculation under HRPP Rule

48(c)(6).    Alternatively, the State maintained that this period

was excluded under HRPP Rule 48(c)(8) for good cause because the

procedure employed in the Fifth Circuit prevented the State from

filing a dismissal of the case before the first scheduled court

date.

            As to the claim of a constitutional speedy trial

violation, the State argued that Visintin did not provide

sufficient facts demonstrating actual prejudice and that he had

not previously asserted his right to a speedy trial.            Upon

balancing the four factors set forth in Barker v. Wingo, 407



     12
            A detailed summary of this procedure is set forth infra.




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U.S. 514 (1972), the State concluded that Visintin’s right to

speedy trial under the federal and state constitutions was not

violated.

            Finally, the State submitted that Visintin’s argument

as to excessive bail was without merit because the State had not

charged him by the calendar call date, and his bond was

discharged.    Any argument by Visintin that he did not receive

notice of the dismissal, the State added, was misplaced given

that defense counsel knew before the calendar call proceeding

that no complaint would be filed.

                 2. Hearing on the Motion to Dismiss

            At the hearing on Visintin’s motion, the State

requested that the court take judicial notice that, inter alia,

the prosecutor assigned to Visintin’s case was in trial from

December 3 to December 11, 2012, and from January 7, 2013, to

March 6, 2013.     The court questioned whether the prosecutor’s

work schedule was a sound basis for the delay, stating that the

court was not aware of any cases in which the prosecutor’s

workload justified a delay in bringing a defendant to trial.13

     13
            The court concluded that it would take judicial notice of the
presented facts but that it was inclined not to give these facts any weight.
Prior to the hearing on the motion to dismiss, the State filed a notice of
intent requesting that the court also take judicial notice that 2012 was an
election year for the prosecutor’s office, that the new prosecutor was
elected on November 6, 2012, and that the new prosecutor took office on
December 3, 2012.




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           The State then called Vera Tabe, court administrator

of the Fifth Circuit, to testify about the “calendar call

procedure” that the district court of the Fifth Circuit has

adopted.   Tabe testified that, after a defendant posts bail or

bond or is released on his or her own recognizance, the district

court receives an original BBRA from the Kauai Police

Department, which is file-stamped and placed in a “pending file”

(a lateral drawer).     A criminal number is not assigned to a case

until a complaint is filed by the prosecutor’s office.            When the

State does not file a charging document by 12:00 p.m. on Monday

of the week of the scheduled court date, the case is placed on

the calendar call list, an internal document that notes the

defendant’s name, charge, and method of release.

           At the scheduled proceeding, Tabe continued, the judge

reads the names on the call list and informs the defendants that

no formal charges have been filed and that they will be served

with documents indicating where and when to appear if there are

charges filed in the future.      If cash bail has been posted,

there is an unfiled “order” that is provided to the fiscal

office to refund the cash.      If a bond was posted, “the judge

just discharges the bond,” meaning “there is nothing more on

that bond.”

           Tabe explained that no document is filed by either the

court or the clerk as to any action taken regarding the bail or

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bond and no notation is made on the calendar call list regarding

the discharge.     Additionally, Tabe stated that no written notice

is provided to the defendant or defense counsel when a bond is

discharged and nothing is sent to the bonding company.

           To Tabe’s knowledge, the State has never attempted to

request a written dismissal of a case that has been placed in

the pending file, although defendants commonly file motions

under the bail/bond receipt number seeking permission to travel.

Tabe acknowledged that, after the case is placed on the calendar

call list, circuit court staff “[do not] know what actually

happens to the case.”14      These unwritten “court rules” relating

to the calendar call procedure, Tabe explained, are based on an

agreement between the courts and the prosecutor’s office.

           Following Tabe’s testimony, the circuit court denied

Visintin’s motion to dismiss, relying solely on HRPP Rule 48.

The court found that the period from the calendar call date to

the date of Visintin’s indictment was excluded under HRPP Rule

48(c)(6), reasoning that the purpose of the calendar call list

is to notify “defendants who have been arrested . . . that their

case is not active and is being dismissed.”           Based on this

finding, the court concluded that 180 qualifying days had not


     14
            There is no consequence for a defendant whose name is on the call
list who does not appear for the calendar call.




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passed since Visintin’s arrest.15            The court did not make any

findings as to Visintin’s contentions that his constitutional

right to speedy trial and right against excessive bail had been

violated.

            D. No Contest Plea and Circuit Court Judgment

               On September 16, 2013, Visintin pleaded no contest to

the charge of place to keep pistol or revolver, which plea was

made conditional on his right to appeal any pretrial rulings,

and the State dismissed the unregistered firearm charge.16                The

court sentenced Visintin to five years of probation, with a

condition of sixty days in jail in addition to time previously

served.     The circuit court entered its judgment of guilty

conviction and probation sentence on January 30, 2014.17

                                 II.   APPEAL

               Visintin timely appealed to the Intermediate Court of

Appeals (ICA) from the circuit court’s denial of the motion to

dismiss and the judgment.          In a published opinion, the ICA

vacated the circuit court’s judgment and remanded the case to

the circuit court for dismissal, with or without prejudice, as
      15
               The court directed the State to prepare an order regarding its
oral ruling.     However, no such order is found in the record on appeal.
      16
            The court denied Visintin’s motion for deferred acceptance of his
nolo contendere plea.
      17
            In an order filed on February 19, 2014, the court granted
Visintin’s motion for stay of execution of sentence pending appeal.




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determined by that court pursuant to HRPP Rule 48.           State v.

Visintin, 142 Hawaii 126, 140, 414 P.3d 178, 192 (App. 2018).

           The ICA determined that, based on the plain language

of HRPP Rule 48(b)(1) and the record, the calendar call

procedure did not stop the Rule 48 clock from running.            Id. at

138, 414 P.3d at 190.     Hawai‘i Supreme Court precedents have

acknowledged that HRPP Rule 48 is modeled after section 12-

2.2(a) of the American Bar Association Standards for Criminal

Justice (2d ed. Supp. 1986), the ICA stated, under which the key

inquiry in the speedy trial calculation is whether the defendant

is “held to answer” for an offense through custody, bail, or

recognizance.   Visintin, 142 Hawaii at 138-39, 414 P.3d at 190-

91 (citing State v. White, 92 Hawaii 192, 199, 990 P.2d 90, 97

(1999)).   Reasoning that the purpose of the Rule is to “prevent

long periods of detention, conditional release, personal

anxiety, and public suspicion,” the ICA held that a defendant’s

reasonable belief that he or she was being held to answer was

sufficient to cause the HRPP Rule 48 clock to continue to run.

Id. at 139, 414 P.3d at 191 (quoting ABA Standards for Criminal

Justice, § 12-2.2(a) cmt. at 12-21 (2d ed. Supp. 1986)).

Because the record did not reflect that Visintin was notified

that his posted bond was discharged or that there was a change

in his bail status, the ICA held, “the effect is that he


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reasonably believed he was still ‘held to answer’ for the

offense asserted upon his arrest.”         Id.

           In addition, the ICA determined that the calendar call

procedure should not be construed as a de facto dismissal of

Visintin’s case because it would contravene the requirements of

HRPP Rule 48.     Id.   The plain text of HRPP Rule 48(a),18 the ICA

reasoned, indicates that a prosecutor’s dismissal of a charge

must include a document filed with the court.           Id. at 139-40,

414 P.3d at 191-92.      The ICA held that, under the calendar call

procedure, there is neither a document “filed” nor a “charge” to

be dismissed, and the procedure thus cannot be considered a

dismissal under HRPP Rule 48(c)(6).         Id.   Additionally, the ICA

held that the State had not made a showing of good cause under

HRPP Rule 48(c)(8).19     Id. at 140, 414 P.3d at 192.

           Accordingly, the ICA held that the circuit court was

required to dismiss the charges pursuant to HRPP Rule 48 because

     18
            HRPP Rule 48(a) provides, “The prosecutor may by leave of court
file a dismissal of a charge and the prosecution shall thereupon terminate.
Such a dismissal may not be filed during the trial without the consent of the
defendant.” HRPP Rule 48(a) (underlining added).
     19
            Chief Judge Nakamura dissented from this ruling, maintaining
that, given the longstanding use of the calendar call procedure, the
prosecutor knew that not filing a charge by the deadline “will effectively
lead” to its dismissal, adding that the defense attorney should also be aware
that such a failure meant no charge was pending and the arrested person was
free to leave. Visintin, 142 Hawai‘i at 146–47, 414 P.3d at 198–99 (Nakamura,
C.J., concurring and dissenting). As to Visintin in particular, the dissent
asserted that any lack of notice was due to his failure to appear as directed
in his bail/bond receipt. Id. at 147, 414 P.3d at 199.




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none of the rule’s exclusions were applicable.          Id.   The ICA

limited its ruling to the circumstances in this case and stated

that it did “not reach the question of the type of notice that

must be given to a defendant when he or she is released or

discharged from bail.”     Id. at 140 n.16, 414 P.3d at 192 n.16.

On remand, the ICA directed that the circuit court exercise its

discretion to determine whether the charges should be dismissed

with or without prejudice.      Id. at 140, 414 P.3d at 192.

            Turning to the constitutional speedy trial challenge,

the ICA found that the circuit court had not addressed

Visintin’s constitutional speedy trial right and thus had

implicitly rejected it when the court denied Visintin’s motion

to dismiss on Rule 48 grounds.       Id.   The ICA then considered the

merits of the challenge.      The ICA applied the four-part test set

forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine

whether Visintin’s constitutional speedy trial right was

violated.   Visintin, 142 Hawaii at 140-42, 414 P.3d at 192-94.

After concluding that the length of the delay was sufficient to

warrant considering the remaining factors, the ICA determined

that the reasons for the delay, the timing and consistency of

Visintin’s demand for a speedy trial, and the amount of

prejudice the delay caused Visintin all weighed in favor of the




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State.20   Id.   Thus, the ICA held that Visintin’s constitutional

right to speedy trial was not violated.          Id.

            As to Visintin’s final contention on appeal, the ICA

pointed out that Visintin provided no authority for the

assertion that a defendant whose right against excessive bail

has been violated is entitled to dismissal of criminal charges.

Id. at 143, 414 P.3d at 195.        The ICA therefore held that “there

is no independent basis for dismissing the criminal charges

against Visintin based on his claim of excessive bail.”             Id.

            Both the State and Visintin filed applications for

writs of certiorari from the ICA’s decision.           We accepted both

applications.

                     III.    STANDARDS OF REVIEW

            A trial court’s findings of fact (FOFs) in deciding an HRPP
            Rule 48(b) motion to dismiss are subject to the clearly
            erroneous standard of review. . . . However, whether those
            facts fall within HRPP Rule 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. Samonte, 83 Hawaii 507, 514, 928 P.2d 1, 8 (1996).

            This court reviews questions of constitutional law

under the right/wrong standard.        State v. Davis, 133 Hawaii 102,

111, 324 P.3d 912, 921 (2014) (citing State v. Jenkins, 93

Hawaii 87, 100, 997 P.2d 13, 26 (2000)).

     20
            The ICA’s reasoning as to each factor is discussed in greater
length infra, § IV-B-1.




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                          IV.    DISCUSSION

          A. State’s Application for Writ of Certiorari

          On certiorari, the State contends that the contested

period was excludable under HRPP Rule 48(c)(6) or,

alternatively, HRPP Rule 48(c)(8).        These arguments are

addressed in turn below.

   1. The Period Between the Calendar Call Proceeding and the
     Indictment Date is not Excluded under HRPP Rule 48(c)(6)

          Under HRPP Rule 48(b), trial must commence within six

months “from the date of arrest if bail is set or from the

filing of the charge, whichever is sooner.”          The parties agree

that bail was set following Visintin’s initial arrest, thereby

starting the clock from the date of arrest for purposes of HRPP

Rule 48(b).   See State v. Visintin, 142 Hawai‘i 126, 138, 414

P.3d 178, 190 (App. 2018).      HRPP Rule 48(c)(6), however,

excludes from the computation of time for trial commencement

“the period between a dismissal of the charge by the prosecutor

to the time of arrest or filing of a new charge, whichever is

sooner, for the same offense.”       The State contends that the

more-than-seven-month period from the calendar call proceeding

to the date of Visintin’s indictment is excluded under HRPP Rule

48(c)(6) because the calendar call procedure effectively

dismissed Visintin’s case.




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          The ICA in this case correctly determined that the

district court’s calendar call procedure cannot be construed as

a de facto dismissal because it would contravene the plain

language of HRPP Rule 48.      Visintin, 142 Hawai‘i at 139-40, 414

P.3d at 191-92.     HRPP Rule 48(a) sets forth the procedure by

which a prosecutor may dismiss a case and thereby obtain tolling

under HRPP Rule 48(c)(6).      The rule states that “a prosecutor

may by leave of court file a dismissal of a charge and the

prosecution shall thereupon terminate.”         HRPP Rule 48(a)

(emphases added).    Under the calendar call procedure, there is

no “charge” to be dismissed because charges have not yet been

initiated.   There also is nothing “filed,” which by its plain

meaning indicates the submission of a written document.            See

Hawai‘i Rules of Electronic Filing (HREF) Rules 1.1, 1.4 (2010)

(defining “conventionally file” and “electronic filing” to mean

“the submission of paper documents and physical exhibits to the

clerk for filing in the court record” and “the submission of

documents by authorized JEFS Users for docketing and storage in

JIMS,” respectively); HRPP Rule 2.3 (2012) (cross-referencing

the HREF for definitions).      Additionally, the prosecution does

not obtain leave from the court prior to employing the calendar

call procedure as is required for the dismissal of charges under

HRPP Rule 48(a).    The calendar call procedure is therefore not a



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dismissal by the prosecutor for purposes of HRPP Rule 48, and it

cannot form the basis for tolling under HRPP Rule 48(c).21

           The ICA indicated, however, that the result would have

been different had the record established that Visintin was

notified that his bond was discharged or that his bail status

had changed.    Relying on section 12-2.2(a) of the American Bar

Association Standards for Criminal Justice (2d ed. Supp. 1986),

the ICA held that the HRPP Rule 48 clock continued to run

because Visintin “reasonably believed he was still ‘held to

     21
            It is notable that, prior to 2010, many procedures in Hawai‘i
circuit, family, and district courts were governed by a range of informal
administrative orders and memoranda that commonly set forth individualized
local practices not unlike the calendar call procedure utilized in the
present case. See In re Bettencourt, 126 Hawai‘i 26, 28, 265 P.3d 1122, 1124
(2011). Like the calendar call procedure, the various administrative orders
and memoranda caused much confusion and were oftentimes in conflict with
Hawai‘i statutes, our precedents, or our duly promulgated court rules. See
id.; Price v. Obayashi Haw. Corp., 81 Hawai‘i 171, 178, 914 P.2d 1364, 1371
(1996). And because the plethora of regulations was not easily navigated,
they created inconsistent results and hindered public access to our justice
system.

            Cognizant of these difficulties, Chief Justice Ronald T.Y. Moon
issued an order rescinding all statewide circuit, family, and district court
administrative orders or memoranda. Order, In Re Statewide Court
Administrative Orders and Memoranda (Haw. June 9, 2010),
http://www.courts.state.hi.us/docs/sct_various_orders/order35.pdf. The order
noted that many of the administrative orders and memoranda contained
“requirements that are more appropriate for court rules than for
administrative orders and memoranda.” Id. This is because the Hawaii
Constitution reserves to the Hawai‘i Supreme Court the power to “promulgate
rules . . . relating to process, practice, [and] procedure.” Haw. Const.
art. VI, § 7.

            The calendar call employed in the present case resembles the
rescinded administrative orders in many respects and possesses the same
potential to create inconsistent results, hinder access to justice, and
impinge on this court’s constitutional authority. Further, the problems
created by these types of administrative practices are compounded when the
procedure is not even memorialized in writing, as in this case.




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answer’ for the offense asserted upon his arrest.”           Visintin,

142 Hawai‘i at 139, 414 P.3d at 191.        Accordingly, the ICA

limited its ruling “to the circumstances in this case” and did

“not reach the question of the type of notice that must be given

to a defendant when he or she is released or discharged from

bail.”   Id. at 140 n.16, 414 P.3d at 192 n.16.

          But this reasoning is predicated on the incorrect

assumption that Visintin was in fact no longer held to answer

following the calendar call proceeding.         Although it is true

that, under our precedents, the HRPP Rule 48 trial clock does

not run when a defendant is released outright without bail being

set, see State v. Johnson, 62 Haw. 11, 12, 608 P.2d 404, 405

(1980), no actual order discharging Visintin’s bail and

releasing him outright was ever entered in this case.

          That a written order must be filed in this context--or

at the very least a written notice of entry of the decision or

ruling--is indicated by the plain language of the HRPP.            HRPP

Rule 44A (2011) provides in relevant part as follows:

          After the decision or ruling of the court following a
          hearing on a motion, the clerk shall note the decision or
          ruling on the docket. The filing of the written decision
          or ruling, or in the event of an oral decision or ruling,
          the filing of the written notice of entry of the decision
          or ruling, in the office of the clerk constitutes entry of
          the order. The decision or ruling or notice of entry shall
          be signed by the judge or by the clerk, if the judge so
          directs, provided that for purposes of this rule, an oral
          order granting an oral motion is entered when the court’s
          oral order is entered by the clerk on the electronic
          docket.


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(Emphasis added.)     The calendar call proceeding operates as a

hearing on the State’s motion to refund bail or discharge a bond

and to release the defendant outright.          See Motion, Black’s Law

Dictionary (10th ed. 2014) (“A written or oral application

requesting a court to make a specified ruling or order.”).

Alternatively, the proceeding may be viewed as a hearing on the

court’s own motion or a joint motion of the court and the State.

           Regardless of whom the motion is viewed as originating

from, HRPP Rule 44A requires either the district court or court

clerk to file a written order or a written notice of the ruling

for the decision to be considered “entered.”22          It must follow

that, even were we to construe the circuit court’s general

statements addressing multiple defendants during the calendar

call procedure as an oral order, that order would be ineffective

because it was not accompanied by a written notice of entry.

And without an effective order, Visintin remained held to answer

as a matter of law, notwithstanding any administrative

procedural actions or his notice thereof.

           Sound policy considerations underlie HRPP Rule 44A’s

requirements.    The absence of a written order or notice of entry


     22
            Although criminal charges have not yet been filed against
defendants involved in the calendar call procedure, the HRPP nonetheless
apply because they “govern the procedure in the courts of the State in all
penal proceedings,” with only limited exceptions not applicable here. HRPP
Rule 1(a) (2012) (emphasis added).



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denies future courts an adequate record of events that occurred

under the jurisdiction of district courts in the Fifth Circuit.

The present case is emblematic of the problems that can arise

under such conditions.     Because no formal order was filed in

Visintin’s case, the circuit court lacked any meaningful ability

to review judicial records following Visintin’s indictment when

it considered the State’s request for an arrest warrant and bail

in the amount of $10,000.

           Despite the fact that the earlier posted bond had been

discharged because the prosecutor was unprepared to proceed with

the case, the circuit court’s outstanding warrant resulted in

Montana issuing a “fugitive” warrant against Visintin.

Visintin’s life was subject to significant upheaval when he was

arrested by Montana law enforcement as a fugitive from justice,

incarcerated, and again required to post bail.          At a minimum,

had there been a written order or notice of entry discharging

Visintin’s initial bond and formally releasing him from custody,

the issuance of the fugitive warrant in this case may have been

avoided.

           Additionally, were we to hold that the calendar call

proceeding was a legally effective order, the absence of a

written order or notice of entry of the ruling would force a

person released pursuant to the procedure to obtain the

transcript or recording of the proceeding to acquire

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documentation that he or she is no longer being held to answer

for the crime underlying the person’s arrest.           A defendant

should not be required to take such measures to obtain

information affecting one’s fundamental liberty that may easily

be relayed through a written order or notice of entry.             Nor

should the defendant, counsel, or the public be required to rely

upon a court’s verbal statements indicating that a felony case

will not be going forward or that the restraints of bail

conditions no longer apply.

           Further compounding the problematic nature of the

calendar call procedure is that the procedure itself is

unwritten and thus not readily accessible to public

understanding or scrutiny except to those with inside

knowledge.23   Pro se defendants or those with counsel unfamiliar

with the Fifth Circuit’s “unique” procedure are unlikely to


     23
            Inside knowledge as to the discharge of bond figured prominently
in the reasoning of Chief Judge Nakamura’s concurring in part and dissenting
in part opinion (dissent). The dissent argued that, given the longstanding
use of the calendar call procedure, the “prosecutor knows” that not filing a
charge by the deadline will effectively lead to its dismissal, and “criminal
defense counsel should be aware that under the calendar call procedure” the
State’s failure to formally charge a defendant by a week before the calendar
call appearance date means that no charge is pending, any bail will be
returned, and any bail bond will be discharged. Visintin, 142 Hawai‘i at 146–
47, 414 P.3d at 198–99 (Nakamura, C.J., concurring and dissenting). As
discussed supra, note 21, the adoption of informal court procedures is
problematic even when their details are published in written form because,
inter alia, they require uninitiated litigants to navigate a maze of
administrative procedures and thereby impair public access to our justice
system. We likewise reject an approach that is reliant upon the presumed
knowledge of counsel as to unwritten, localized court procedures.




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understand the legal significance the procedure is intended to

hold without a written document, leaving them uninformed as to

the status of the criminal claim against them.

          The State argues that requiring a written order to

discharge bail will leave it with no established method of

disposing of a case under these circumstances.          It is not

possible to file a written bail discharge order before a written

complaint is filed, the State contends, because there is no case

number under which to file the order.        But the filing of written

orders prior to formal charging is both routine and expressly

authorized under our court rules.

          HRPP Rule 5(a)(2) (2012), for example, provides the

following:

          (2) PROBABLE CAUSE DETERMINATION UPON ARREST WITHOUT A
          WARRANT. As soon as practicable, and, Rule 45
          notwithstanding, not later than 48 hours after the
          warrantless arrest of a person held in custody, a district
          judge shall determine whether there was probable cause for
          the arrest. . . . If probable cause is found as aforesaid,
          an appropriate order shall be filed with the court as soon
          as practicable. If probable cause is not found, or a
          proceeding to determine probable cause is not held within
          the time period provided by this subsection, the arrested
          person shall be ordered released and discharged from
          custody.

(Emphases added.)    Thus, this rule provides that when a person

has been arrested without a warrant and remains in custody, the

court shall, no later than forty-eight hours after the arrest,

determine whether there is probable cause for the arrest.              If

probable cause is found, the court is required to file an order


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as soon as practicable.     Similarly, if probable cause is not

found or a proceeding to determine probable cause is not held

within the time provided by HRPP Rule 5(a)(2), the arrested

person “shall be ordered released and discharged from custody.”

(Emphasis added.)    In other words, when probable cause has not

otherwise been determined through a preliminary hearing or

indictment, the district court must file an order whenever a

person is arrested without a warrant and held in custody for

more than forty-eight hours after arrest, notwithstanding the

lack of formal charges in the case.

           This authority of the district court to issue orders

prior to the filing of a charge is also recognized in HRPP Rule

5(c)(8), which provides as follows: “The district court, as

authorized by Hawaii Revised Statutes, chapter 804, may admit

the defendant to bail or modify bail any time prior to the

filing of the written order committing the case to circuit

court.”   HRPP Rule 5(c)(8) (2014).       Indisputably, admission to

bail or modification of bail requires a written order of the

court.    The court’s authority to modify bail prior to the filing

of the charge was in fact referenced by the court administrator,

who stated that defendants commonly file motions to the court

under the BBRA number seeking permission to travel.           If motions

and orders can be filed under the BBRA number, nothing precludes

the district court from filing a written order or notice of
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entry under that number to refund bail, discharge a bond, and

release the defendant outright from custody.           Accordingly, this

court will not defer to the established procedure of the

district court in the Fifth Circuit with regard to cases on the

calendar call list--which does not include disposition by a

written order or notice of entry--merely because a charge has

not been filed in the case.

           In summary, because the calendar call procedure

involves matters with significant and consequential effects, a

verbal directive that is not memorialized is ineffective as an

“order.”   To hold otherwise would create great uncertainty by

denying future courts, defendants, and the public a definitive

record of proceedings.      And, as this case demonstrates, the

absence of a written order or notice of entry affects the

integrity of the procedure by which judicial warrants issue and

hampers a court’s duty to promote a fair process.            This is why

the filing of a written order--or at the very least a written

notice of entry--is both permitted and explicitly called for

under our court rules.24




     24
            See HRPP Rule 2 (1977) (“These rules are intended to provide for
the just determination of every penal proceeding. They shall be construed to
secure simplicity in procedure, fairness in administration and the
elimination of unjustifiable expense and delay.”).




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          Because there was no written order or notice of entry

of an oral order discharging Visintin’s bond and releasing him

outright, Visintin remained held to answer for purposes of the

HRPP Rule 48 trial clock.      And, because no dismissal of charges

occurred, the period between the calendar call procedure and the

date of his indictment is not excluded under HRPP Rule 48(c)(6).

   2. The Period Between the Calendar Call Proceeding and the
     Indictment Date is not Excluded under HRPP Rule 48(c)(8)

          The State contends in the alternative that the period

between the calendar call proceeding and the date of Visintin’s

indictment is excluded based on good cause.          HRPP Rule 48(c)(8)

provides that “other periods of delay for good cause” shall be

excluded from the computation of time for trial commencement.

This court has defined “good cause” as “a substantial reason

which affords a legal excuse.”       State v. Senteno, 69 Haw. 363,

368, 742 P.2d 369, 373 (1987) (citing State v. Estencion, 63

Haw. 264, 267, 625 P.2d 1040, 1042 (1981)).          The good cause

provision of HRPP Rule 48(c), we have held, “is provided to take

care of unanticipated circumstances” and events that are not

reasonably foreseeable.     State v. Abregano, 136 Hawaii 489, 497,

498, 363 P.3d 838, 846, 847 (2015) (quoting State v. Gillis, 63

Haw. 285, 288, 626 P.2d 190, 192 (1981)).         It “is not to be used

to excuse a lack of diligence on the part of the government to

comply with Rule 48.”     Id. (quoting Gillis, 63 Haw. at 288, 626


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P.2d at 193).    “Whether a period of time is excludable as ‘good

cause’ under HRPP Rule 48(c)(8) is dependent on the facts of

each case.”    Id. at 498–99, 363 P.3d at 847–48 (citing State v.

Herrera, 63 Haw. 405, 409, 629 P.2d 626, 629 (1981)).

            On certiorari, the State argues that Visintin’s

failure to appear at the scheduled court proceeding constitutes

good cause to exclude the delay between the calendar call

proceeding and the date of Visintin’s indictment under HRPP Rule

48(c)(8).    The State contends that Visintin chose not to attend

the hearing even though he was ordered to do so.

            In State v. Choy Foo, 142 Hawaii 65, 71-72, 414 P.3d

117, 123-24 (2018), the defendant argued that his appearance

without counsel at arraignment was not an unanticipated

circumstance constituting good cause.        We agreed, holding that

it was “‘reasonably foreseeable’ that many defendants will make

their initial appearance in district court without an attorney.”

Id. at 76, 414 P.3d at 128.      Similarly, it is not an

unanticipated circumstance that many defendants will not appear

at the calendar call given that, under the system that has been

established in the Fifth Circuit, there is no consequence for a

defendant who does not appear at the calendar call.

            Moreover, as discussed above, the calendar call

procedure would not have resulted in the stopping of the HRPP

Rule 48 trial clock even had Visintin been present at the
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calendar call proceeding because no written order or notice of

entry was filed discharging Visintin’s bond.               Visintin’s

nonattendance was therefore irrelevant to the State’s obligation

to comply with the HRPP Rule 48 time limit and cannot constitute

good cause for its failure to do so.             Accordingly, the ICA did

not err in vacating the circuit court’s judgment because the

contested period was not excluded under HRPP Rule 48(c)(8).25

           B.      Visintin’s Application for Writ of Certiorari

                Visintin contends on certiorari that the circuit court

erred in denying his constitutional speedy trial motion and that

his right against excessive bail was violated, which should have

resulted in the dismissal of the criminal charges against him.

                                 1. Speedy Trial

                The Sixth Amendment to the United States Constitution

and article I, section 14 of the Hawaii Constitution guarantee a

defendant in a criminal case the right to a speedy trial in all


      25
            It is also noted that the circuit court judgment prescribed a
jail term “in addition to time served.” However, HRS § 706-671(1) provides
in relevant part as follows:

                When a defendant who is sentenced to imprisonment has
                previously been detained in any State or local correctional
                or other institution following the defendant’s arrest for
                the crime for which sentence is imposed, such period of
                detention following the defendant’s arrest shall be
                deducted from the minimum and maximum terms of such
                sentence.

HRS § 706-671(1) (2012) (emphasis added).




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prosecutions.    State v. Lau, 78 Hawaii 54, 62, 890 P.2d 291, 299

(1995).    Whether the defendant’s right to a speedy trial has

been violated is determined by applying the four factors

articulated in Barker v. Wingo, 407 U.S. 514 (1972): “(1) length

of the delay; (2) reasons for the delay; (3) defendant’s

assertion of his right to speedy trial; and (4) prejudice to the

defendant.”    Lau, 78 Hawaii at 62, 890 P.2d at 299 (citing

Barker, 407 U.S. at 530).      No one factor “is to be regarded as

either a necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial.”          Id. (quoting State

v. Wasson, 76 Hawaii 415, 419, 879 P.2d 520, 524 (1994)).

Rather, the factors are related “and must be considered together

with such circumstances as may be relevant.”          Id. (quoting

Wasson, 76 Hawaii at 419, 879 P.2d at 524).         When a defendant’s

right to a speedy trial has been violated, the only remedy is

dismissal with prejudice.      Id.

            As to the first factor, length of delay, the ICA held

in this case that the more-than-twelve-month period between

Visintin’s arrest and the filing of the motion to dismiss was

sufficient to warrant inquiry into the other Barker factors.

State v. Visintin, 142 Hawaii 126, 141, 414 P.3d 178, 193 (App.

2018).    With regard to the second factor, reasons for the delay,

the ICA held that the State’s proffered explanations--the


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assigned prosecutor’s unavailability and the leadership change

at the prosecutor’s office--were not “overwhelming

justifications” but nonetheless provided “a reasoned basis for

the delay and are weighted less heavily.”         Id.   The ICA thus

concluded that the second factor weighed slightly in favor of

the State.   Id.   The ICA also determined that a portion of the

delay, which spanned several months, was attributable to the

time required to bring Visintin back to Hawaii from Montana and

was reasonable.    Id.   Turning to the third factor, assertion of

the right to a speedy trial, the ICA held that this factor

weighed in favor of the State because, other than the motion to

dismiss, the record lacked a showing that Visintin actually

desired a speedy trial.     Id. at 141-42, 414 P.3d at 193-94.

          Lastly, with respect to the fourth factor, prejudice

to the defendant, the ICA held that Visintin did not submit

“objective, contemporaneous evidence of anxiety, such as prompt

and persistent assertion of the desire for a speedy trial

coupled with a demonstrable basis for the court’s believing the

delay is traumatic.”     Id. at 142, 414 P.3d at 194 (quoting State

v. Ferraro, 8 Haw. App. 284, 300, 800 P.2d 623, 632 (1990)).

Further, the ICA determined that Visintin did not suffer

oppressive pretrial incarceration, that he only alleged the

possibility of prejudice--which was insufficient to establish a

violation of the constitutional speedy trial right, and that the
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twelve-month period of delay was not “exceedingly long.”            Id.

Accordingly, the ICA held that Visintin’s constitutional right

to a speedy trial had not been violated.         Id.

  a.       The ICA Erred in Considering Visintin’s Constitutional
                   Speedy Trial Claim on the Merits

            After determining that the circuit court “implicitly

rejected” Visintin’s argument regarding the right to a speedy

trial when it denied his motion to dismiss, the ICA considered

the merits of Visintin’s constitutional speedy trial challenge.

Visintin, 142 Hawai‘i at 140-42, 414 P.3d at 192-94.           However,

nothing in the record indicates that the circuit court

considered Visintin’s argument regarding his constitutional

right to a speedy trial, let alone evaluated the four Barker

factors.    Instead, the circuit court relied solely on HRPP Rule

48 in denying Visintin’s motion to dismiss.

            Additionally, even assuming the circuit court

considered Visintin’s argument regarding a constitutional speedy

trial violation, the court neither issued a written order

setting forth its findings or conclusions with respect to the

issue nor did it state any findings or conclusions on the record

when it denied the motion.

            HRPP Rule 12(e) (2007) provides in relevant part,

“Where factual issues are involved in determining a motion, the

court shall state its essential findings on the record.”


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(Emphasis added.)    Visintin’s motion to dismiss based on a

constitutional speedy trial violation required the determination

of factual issues that are part and parcel of the four Barker

factors.   The circuit court, however, failed to make any factual

findings as to the speedy trial motion.

           This court has repeatedly stated that “cases will be

remanded when the factual basis of the lower court’s ruling

cannot be determined from the record.”         See, e.g., State v.

Anderson, 67 Haw. 513, 514, 693 P.2d 1029, 1030 (1985)

(remanding to the lower court after determining that the lower

court granted the motion to suppress without having made any

findings of fact); State v. Hutch, 75 Haw. 307, 331, 861 P.2d

11, 23 (1993) (holding that both trial courts committed

reversible error in denying the defendant’s HRPP Rule 48 motions

without stating the “essential findings on the record”); see

also State v. Rodrigues, 122 Hawaii 229, 238, 225 P.3d 671, 680

(App. 2010) (“In the absence of the findings of fact required by

HRPP Rule 12(e), it is not the role of the appellate court, in

the first instance, to make determinations” as to such factual

issues).   This is because “[factual] findings are imperative for

an adequate judicial review of a lower court’s conclusions of

law.”   Anderson, 67 Haw. at 514, 693 P.2d at 1030; accord Hutch,




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75 Haw. at 331, 861 P.2d at 23; Rodrigues, 122 Hawaii at 238,

225 P.3d at 680.

          The ICA nevertheless considered Visintin’s argument as

to his constitutional speedy trial challenge.          The ICA evaluated

each of the four Barker factors and made a number of implicit or

express factual findings in determining whether the factors

weighed in favor of or against Visintin.

          For example, regarding the second Barker factor,

reasons for the delay, the ICA found that the State’s proffered

justifications--that the prosecutor was unavailable due to her

trial schedule and that it was an election year--provided “a

reasoned basis for the delay.”       Visintin, 142 Hawai‘i at 141, 414

P.3d at 193.    The ICA also determined that a portion of the

delay was due to the time needed to bring Visintin back to

Hawaii from Montana following his indictment, which was

“reasonable.”     Id.   The circuit court, however, did not make any

specific findings that these reasons were the actual causes of

the delay.     And, insofar as the ICA suggested that Visintin was

responsible for the delay for his return to Hawai‘i from Montana,

this conclusion was contradicted by the circuit court’s factual

findings in ruling upon Visintin’s HRPP Rule 48 argument.             The

court found that the State was responsible for the period of




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delay between Visintin’s indictment and the arraignment, not

Visintin.    The court stated as follows:

            Now, once the indictment is issued on April 25th to the
            period of August 6th, because the defendant is free to
            leave at that point in time, you cannot now say the
            defendant is making himself unavailable. It would be
            inconsistent for the Court to have that type of ruling. So
            the period between April 25th to August 6th is chargeable
            to the State.

The ICA never determined that this finding was clearly

erroneous, and the circuit court is certainly better positioned

than an appellate court to make factual findings as to the

causes of delay and the allocation of responsibility between the

parties.

            Similarly, the ICA specifically found as to the fourth

factor, prejudice to the defendant, that Visintin did not suffer

oppressive pretrial incarceration, that he did not suffer

anxiety, and that he had only alleged the possibility of

prejudice, which the ICA stated was insufficient to establish a

violation of the speedy trial right.         Visintin, 142 Hawai‘i at

142, 414 P.3d at 194.      However, the circuit court itself did not

make any findings as to whether Visintin had established

oppression, anxiety, or prejudice.        This was of particular

import here because Visintin alleged that he had suffered a

number of extreme, potentially anxiety-inducing circumstances

that were arguably caused by the State’s delay in bringing the

case.   Visintin asserted that he was subject to multiple


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arrests, including one in which heavily armed Marshals forced

their way into his family home in Montana and forcibly detained

Visintin and his mother.      Visintin further contended that he

endured false accusations of being a fugitive and was required

to post bail multiple times.      And the email exchanges between

the deputy prosecutor and Visintin’s counsel may suggest that

Visintin was very concerned as to the impact of the prosecution

on his prospects of becoming a police officer, a job for which

he had invested much training and preparation.          Whether these

events occurred, were caused by the delay, and resulted in

Visintin experiencing great anxiety were factual matters that

should have been initially ascertained by a trial court and not

by a court on appeal.

          Thus, because “it is not the role of the appellate

court, in the first instance, to make determinations” as to

factual issues, the ICA erred in considering Visintin’s

constitutional speedy trial argument without the circuit court

having made any findings of fact.        Rodrigues, 122 Hawaii at 238,

225 P.3d at 680.

         b. The ICA Applied Incorrect Principles of Law

          In improperly considering Visintin’s constitutional

speedy trial claim, the ICA did not correctly apply precedent

relating to three Barker factors: reasons for the delay,

assertion of the right to a speedy trial, and prejudice to the
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defendant.     These three factors are accordingly addressed below

to set forth principles applicable to the circuit court’s

determination should the speedy trial motion be further

considered on remand.

                       i. Reasons for the Delay

           This court has stated, in accordance with the U.S.

Supreme Court’s decision in Barker, that different weights are

assigned to different reasons in determining whether a delay of

trial violates a defendant’s constitutional speedy trial right.

Lau, 78 Hawaii at 63, 890 P.2d at 300 (citing Barker, 407 U.S.

at 531).   “A deliberate attempt to delay the trial in order to

hamper the defense should be weighted heavily against the

government.”    Id. (quoting Barker, 407 U.S. at 531).          “A more

neutral reason such as negligence or overcrowded courts should

be weighted less heavily but nevertheless should be considered

since the ultimate responsibility for such circumstances must

rest with the government rather than with the defendant.”             Id.

(quoting Barker, 407 U.S. at 531).

           When a defendant contributes in substantial part to

the delay, we have held that the second Barker factor weighs in

favor of the prosecution.      In State v. White, for instance, the

defendant’s various pretrial motions resulted in a delay of

approximately four and a half months.        92 Hawaii 192, 203, 990



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P.2d 90, 101 (1999).     Although the State’s requests to continue

trial resulted in a four-month delay, the White court determined

that the State’s requests did not appear to have been a

deliberate attempt to delay trial.        Id.   Because the defendant

was responsible for a substantial part of the delay, the court

concluded that the second Barker factor weighed in favor of the

State.    Id. at 204, 990 P.2d at 102.

            By contrast, when a delay results from a more neutral

reason, we have held that the second Barker factor weighs in

favor of the defendant.     In Lau, the defendants contended that

the reasons for the delay were court congestion and the State’s

determination to try every case involving a charge of driving

under the influence of an intoxicant.        78 Hawaii at 63, 890 P.2d

at 300.    In response, the State conceded that court congestion

was present but argued that the evolution of caselaw in Hawaii

constituted “unique circumstances” that led to the backlog of

cases.    Id.   The Lau court acknowledged that the State’s

contention had some merit, but found that there was no

indication that the defendants were responsible for the delay in

bringing the case to trial.      Id.     “[W]hile court congestion is a

‘more neutral’ reason that ‘counts less heavily against the

State than would a deliberate delay,’” the court held, “it

nevertheless still tips the scales in favor of [the defendants],


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since the ultimate responsibility for such circumstances must

rest with the government rather than with the defendant.”                  Id.

(quoting Wasson, 76 Hawaii at 420, 879 P.2d at 525).             Thus, the

Lau court concluded that the second Barker factor weighed in

favor of the defendants.       Id.

           Even when the defendant is partially responsible for

the delay, this court has held that the second Barker factor may

tip in favor of the defendant.        In State v. Dwyer, the

defendant’s trial was continued three times.           One of the

continuances was due to the defendant’s counsel falling ill, and

one was at the request of the State because it was unable to

proceed to trial.26     78 Hawaii 367, 371, 893 P.2d 795, 799

(1995).   The Dwyer court found that there was no attempt by the

State to deliberately delay the defendant’s trial.              Id.

Nonetheless, it concluded that, on balance, the reasons-for-the-

delay factor weighed in favor of the defendant.           Id.     Similarly,

in Wasson, both the State and the defendant shared some

responsibility for the delay in the defendant’s trial.                76

Hawaii at 419-20, 879 P.2d at 524-25.         The reasons for the delay

included court congestion, two failures to appear by the


     26
            The court in Dwyer found that the record was insufficient to
determine the reason for one of the continuances. State v. Dwyer, 78 Hawaii
367, 371, 893 P.2d 795, 799 (1995).




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defendant, and the defendant’s two motions for continuances.

Id.   This court held that, while court congestion was a “more

neutral” reason that counted less heavily against the State and

was offset to a degree by the defendant’s own actions, the

second Barker factor nonetheless tipped in favor of the

defendant “since the ultimate responsibility for such

circumstances must rest with the government rather than with the

defendant.”     Id. at 420, 879 P.2d at 525 (quoting Barker, 407

U.S. at 531).

            In this case, although the ICA determined that the

State was primarily responsible for the delay, it held that the

reasons-for-the-delay factor weighed slightly in favor of the

State.    Visintin, 142 Hawai‘i at 141, 414 P.3d at 193.           The ICA

held that the State’s proffered justifications--that the

assigned prosecutor was unavailable and that the prosecutor’s

office underwent a change in leadership--provided “a reasoned

basis for the delay and are weighted less heavily.”             Id.   The

ICA did not directly state that Visintin was responsible for any

portion of the delay between his arrest on August 7, 2012, and

his arraignment on August 6, 2013, though the ICA appeared to




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suggest the delay in returning Visintin to Hawai‘i to stand trial

may be attributable to him.27       See id.

            In Dwyer, the State moved to continue the trial

because it was unable to proceed with the case, and we held that

the second Barker factor tipped in favor of the defendant.               78

Hawai‘i at 371, 893 P.2d at 799.          Likewise, this court in Wasson

weighed the second Barker factor in favor of the defendant when

court congestion was alleged as a reason for the delay.             76

Hawaii at 419, 879 P.2d at 524.        The State submitted in this

case that it could not proceed with trial because the assigned

deputy prosecutor was busy with trials in other cases and there

was a change in leadership at the prosecutor’s office.28             But the

workload of a deputy prosecutor, the election of a new

prosecutor, and court congestion all share common features in

that they are in all but exceptional circumstances recurring,

systemic, foreseeable, and ultimately the government’s

responsibility.




     27
            As discussed supra, this suggestion is contrary to the circuit
court’s findings on the matter.
     28
            At the hearing on the motion to dismiss, the circuit court
appeared to reject the State’s reason for the delay based upon the assigned
prosecutor’s trial schedule, stating that it was not aware of any cases in
which the court “has said, ‘Ms. [Prosecutor], you’re busy, so we can infringe
on defendant’s right to, you know, a timely trial.’”




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           Hence, the ICA misapprehended applicable principles in

evaluating the second Barker factor.        Cf. State v. Hanawahine,

69 Haw. 624, 631, 755 P.2d 466, 470 (1988) (holding that the

defendant’s late arraignment that resulted from the assigned

prosecutor’s workload was “not good cause for the delay [under

HRPP Rule 48(c)(8)] given that [the prosecutor’s] problem is not

that unusual” (citing State v. Gillis, 63 Haw. 285, 626 P.2d 190

(1981) (per curiam))); State v. Dunphy, 71 Haw. 537, 543, 797

P.2d 1312, 1315 (1990) (analyzing the defendant’s due process

argument and determining that the period of delay resulting from

the “malfunctions in the staffing at the Prosecutor’s Office, is

unreasonable and inexcusable”).

           ii.     Assertion of the Right to a Speedy Trial

           The ICA also incorrectly applied legal principles

relating to the third Barker factor: the assertion of the right

to a speedy trial.      We have stated that “[a] defendant has no

duty to bring himself [or herself] to trial; the [S]tate has

that duty.”      Wasson, 76 Hawaii at 420, 879 P.2d at 525

(alterations in original) (quoting Barker, 407 U.S. at 527).

“Thus, a defendant does not waive his or her right to a speedy

trial by failing to demand one.”         Id. (citing Barker, 407 U.S.

at 526).   However, the assertion of the right to a speedy trial

“is entitled to strong evidentiary weight in determining whether



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the defendant is being deprived of the right.”          Id. (quoting

Barker, 407 U.S. at 531-32).

          A defendant’s motion to dismiss based on speedy trial

“is ‘tantamount to an assertion of his [or her] constitutional

right to a speedy trial.’”      Id. at 420-21, 879 P.2d at 525-26

(alteration in original) (quoting State v. Nihipali, 64 Haw. 65,

70 n.5, 637 P.2d 407, 412 n.5 (1981)).         Nonetheless, the motion

“does not necessarily indicate that the defendant actually wants

to be tried immediately” unless accompanied by an alternative

demand for a speedy trial.      Id. at 421, 879 P.2d at 526 (citing

United States v. Loud Hawk, 474 U.S. 302, 314 (1986)).

          In concluding that this factor weighed in favor of the

State, the ICA determined that nothing in the record, other than

Visintin’s motion to dismiss, indicated that Visintin asserted

the right to a speedy trial.      Visintin, 142 Hawai‘i at 141-42,

414 P.3d at 193-94.     The ICA’s holding overlooks the significant

circumstance that there appears to have been no conventional

forum in which Visintin could have asserted the right to a

speedy trial.

          Although Visintin was arrested on August 7, 2012, he

was not charged until more than seven months later on April 25,

2013.   During the period between the arrest and the indictment,

there was no pending charge against Visintin.          Visintin aptly

notes that it “is unfair to require that a defendant demand a

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speedy trial after he has been accused, but then refuse to

create an actual case in which defendant can make a timely

demand.”    Without a pending charge and an arraignment to allow a

trial to be set, there does not appear to have been any standard

legal proceeding in which Visintin could have demanded a speedy

trial.    And when Visintin was finally arraigned on August 6,

2013, he filed a motion to dismiss based on speedy trial grounds

within two weeks--on August 20, 2013.29         Thus, the ICA erred in

concluding this factor weighed in favor of the State without

considering whether Visintin raised the issue of speedy trial as

soon as was practicable under the circumstances.30

                   iii.    Prejudice to the Defendant

            Prejudice to the defendant “should be assessed in the

light of the interests of defendants [that] the speedy trial

right was designed to protect.”        Lau, 78 Hawaii at 64, 890 P.2d

at 301 (quoting Barker, 407 U.S. at 532).          These interests are

the prevention of oppressive pretrial incarceration, the


     29
            Although the motion was not accompanied by an alternate demand
for a speedy trial, more than a year had already elapsed by the time Visintin
was arraigned and a demand for speedy trial could have been made. A period
of even six months delay is deemed sufficient to warrant an inquiry into the
remaining Barker factors, and thus even a demand for immediate trial would
not have resulted in a “speedy” trial under our precedents. Lau, 78 Hawai‘i
at 63, 890 P.2d at 300.
      30
            Indeed, the State itself acknowledged in its answering brief to
the ICA that the third Barker factor potentially weighed in favor of
Visintin.




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minimization of the defendant’s anxiety and concern, and the

preservation of the ability to mount an effective defense.               Id.

           With regard to anxiety, the ICA concluded in this case

as follows:

           The government will prevail unless the defendant offers
           objective, contemporaneous evidence of anxiety, such as
           prompt and persistent assertion of the desire for a speedy
           trial coupled with a demonstrable basis for the court’s
           believing the delay is traumatic. State v. Ferraro, 8 Haw.
           App. 284, 300, 800 P.2d 623, 632 (1990) (citation and
           internal brackets omitted). Visintin has not offered such
           evidence here.

Visintin, 142 Hawai‘i at 142, 414 P.3d at 194 (emphases added).

While the ICA correctly stated that to demonstrate anxiety, the

defendant must offer objective, current evidence, the ICA

incorrectly applied Ferraro to require that Visintin offer

evidence that he demanded a speedy trial in order to demonstrate

anxiety.

           We have stated the following in addressing the issue

of prejudice in the speedy trial context:

           [W]holly aside from possible prejudice to a defense on the
           merits, [inordinate delay] may seriously interfere with the
           defendant’s liberty, whether he is free on bail or not, and
           . . . may disrupt his employment, drain his financial
           resources, curtail his associations, subject him to public
           obloquy, and create anxiety in him, his family and his
           friends.

Lau, 78 Hawaii at 65, 890 P.2d at 302 (alterations in original)

(quoting Moore v. Arizona, 414 U.S. 25, 27 (1973)).           Thus,

because anxiety may be based on a variety of circumstances,

evidence of anxiety may take a variety of forms.           The Ferraro


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court specifically recognized this fact when it used the phrase

“such as,” followed by examples of what may constitute evidence

of anxiety depending on the circumstances of the case.               8 Haw.

App. at 300, 800 P.2d at 632.

             Although we have in the past held that a defendant’s

demand for a speedy trial may be relevant evidence of anxiety,

we have never indicated that it is a necessary precondition for

a showing of anxiety.31        When the defendant has raised financial

circumstances as a basis for asserted anxiety, for example,

Hawaii courts have considered whether there was a demand for

speedy trial as evidence that the defendant was indeed impacted

by the alleged financial hardship.           In Lau, the defendants

contended that they suffered from anxiety due to increased

automobile insurance premiums.          78 Hawaii at 64, 890 P.2d at

301.    In assessing whether the prejudice factor weighed in favor

of the defendants, this court considered, inter alia, that the

defendants had not asserted their right to a speedy trial and

concluded that the record did not show that the alleged

financial hardship was sufficient to warrant a finding of

prejudice to the defendants.         Id. at 65, 890 P.2d at 302.
       31
            Such a holding would render the fourth Barker factor largely
redundant, as its parameters would almost entirely overlap with the third
Barker factor, which directly considers whether the defendant has asserted
the right to a speedy trial. A failure to demand a speedy trial would thus
negate both factors, regardless of any actual prejudice the defendant
demonstrates.



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           In this case, whether Visintin demanded a speedy trial

is not an appropriate consideration as evidence of anxiety.

Visintin did not allege a financial hardship as a basis for any

asserted anxiety.

           Moreover, as discussed supra, Visintin could not have

readily demanded a speedy trial during the period between the

initial court proceeding and the arraignment, as there was no

pending charge against him.      Thus, the ICA misapprehended

Ferraro by improperly considering the absence of an assertion of

the right to a speedy trial by Visintin as a factor indicating

that there was no evidence of anxiety.

                           2. Excessive Bail

           Under HRS § 804-1 (1993), bail is defined as “the

signing of the recognizance by the defendant and the defendant’s

surety or sureties, conditioned for the appearance of the

defendant at the session of a court of competent jurisdiction to

be named in the condition, and to abide by the judgment of the

court.”   While the amount of bail rests within the discretion of

the judge, HRS § 804-9 (1993), article I, section 12 of the

Hawaii Constitution prohibits excessive bail.          Sakamoto v. Won

Bae Chang, 56 Haw. 447, 450, 539 P.2d 1197, 1199 (1975).            “In

all cases, the officer letting to bail should consider the

punishment to be inflicted on conviction, and the pecuniary

circumstances of the party accused.”        HRS § 804-9.
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           The ICA declined to reach Visintin’s argument that his

right against excessive bail was violated, concluding that

“there is no independent basis for dismissing the criminal

charges against Visintin based on his claim of excessive bail.”

State v. Visintin, 142 Hawai‘i 126, 143, 414 P.3d 178, 195 (App.

2018).   The ICA’s ruling may potentially be interpreted

overbroadly as an apparent categorical exclusion on dismissal

based on violations of a defendant’s bail-related rights.

However, courts in other jurisdictions have held that the denial

of bail may warrant dismissal of the case with prejudice under

certain circumstances.     For example, in City of Jamestown v.

Erdelt, the defendant was arrested for driving under the

influence of alcohol (DUI) and was detained for a period of

eight hours before being allowed to post bail.          513 N.W.2d 82,

83 (N.D. 1994).    The trial court granted the defendant’s motion

to dismiss the DUI charge.      Id.    The Supreme Court of North

Dakota affirmed the trial court’s dismissal “as a sanction for

institutional non-compliance and systematic disregard of the

law.”    Id. at 85-86 (citations omitted).       The court reasoned

that the arresting officer had detained the defendant without

making an individualized determination of the intoxication and

dangerousness of the defendant--in violation of the bail

statutes and case precedent.      Id. at 86.



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          Similarly, in State v. Cuchy, DUI arrestees were

jailed for twelve hours, based on the sheriff department’s

policy, before being allowed to post bond.         19 P.3d 152, 153

(Kan. 2001).   The Kansas Supreme Court determined that the

officers made no individualized determinations of whether the

arrestees were intoxicated and dangerous, instead detaining them

based solely on the blanket policy.         Id. at 158.    The court held

that the defendants were denied their constitutional right to

make bail.   Id.    However, because “the officers did not

disregard a previous ruling or decision by the district court in

detaining the defendants,” the court concluded that dismissals

were not warranted.     Id. at 159-60.

          In light of Erdelt and Cuchy, there is legal authority

for the proposition that criminal charges against a defendant

may be dismissed based on violations of the right to bail under

certain circumstances, including when law enforcement denies

bail pursuant to a blanket policy of jailing DUI arrestees for

several hours.     Nevertheless, even if this court applied the

holding in Erdelt and Cuchy, a dismissal of the charges against

Visintin would not be warranted.         While the circumstances in

this case raise serious concerns as to the number of times

Visintin was subject to arrest and the posting of bail for a

single incident, the circumstances are not similar to those

presented in Erdelt and Cuchy.       Cf. Lock v. Moore, 541 N.W.2d

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84, 87 (N.D. 1995) (unlike in Erdelt, “this is not a case of a

person meeting all the bail requirements but nonetheless being

kept in jail”).     Because the circumstances in this case do not

rise to the level of a violation of the right against excessive

bail, Visintin has not demonstrated that this constitutional

right was violated.32

                             V.   CONCLUSION

            Based on the foregoing, the ICA’s March 20, 2018

Judgment on Appeal is affirmed in part and vacated in part.                 The

ICA’s judgment on appeal is affirmed to the extent that it

vacated the circuit court’s judgment and remanded the case to

the circuit court for dismissal, with or without prejudice as

determined by that court, based on a finding of a HRPP Rule 48

violation.    The ICA’s judgment on appeal is vacated insofar as

it considered Visintin’s speedy trial motion and concluded that

Visintin’s right to speedy trial was not violated.            The case is

remanded to the circuit court for further proceedings.             If, on

remand, the circuit court decides that the Rule 48 violation

warrants a dismissal without prejudice, the circuit court must

then rule on Visintin’s speedy trial motion, rendering findings

     32
            It is noted that Visintin also asserted in his motion to dismiss
that his right to due process was violated by the State’s “unilateral”
decision not to charge him when bail was initially set and then to “seek
multiple arrests and successive re-postings of bail.” This argument is not
raised on certiorari to this court.




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of facts and conclusions of law and applying the factors set

forth in Barker v. Wingo, 407 U.S. 514 (1972), consistent with

this opinion.

Tracy Murakami                           /s/ Mark E. Recktenwald
for petitioner/respondent
                                         /s/ Paula A. Nakayama
Daniel G. Hempey
for respondent/petitioner                /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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