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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-13-0002551
                                                             25-FEB-2016
                                                             03:07 PM




                            SCWC-13-0002551


           IN THE SUPREME COURT OF THE STATE OF HAWAI'I




                         STATE OF HAWAI'I,

                   Respondent/Plaintiff-Appellee,


                                   vs.


                          BRANDON HAYATA,

                  Petitioner/Defendant-Appellant.




         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

              (CAAP-13-0002551; FC-CR NO. 11-1-1992)


                    SUMMARY DISPOSITION ORDER 

            (By: Recktenwald, C.J., Nakayama, McKenna,

                     Pollack, and Wilson, JJ.)


          Petitioner/Defendant-Appellant Brandon Hayata seeks


review of the Intermediate Court of Appeals’s (ICA) August 31,


2015 Judgment on Appeal filed pursuant to its June 15, 2015


Summary Disposition Order.      The ICA affirmed the Family Court of


the First Circuit’s Judgment of Conviction and Sentence.            The


family court adjudged Hayata guilty of violating an order of 

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protection, in violation of Hawai'i Revised Statutes (HRS) § 586­

11 (Supp. 2012).1      We accepted Hayata’s application for writ of

certiorari and now vacate the ICA’s Judgment on Appeal and the

family court’s judgment, and remand the case to the family court

to decide whether to dismiss Hayata’s conviction with or without

prejudice.

            After being arrested on September 17, 2012, Hayata

appeared several times before Judge Jeannette Castagnetti.              The

start date of Hayata’s trial was continued numerous times due to

court congestion.      When Hayata appeared for a calendar call on

February 11, 2013, Judge Castagnetti was ill and could not

proceed with trial, which led to an additional one-month

continuance.     On July 15, 2013, the day before trial began,

Hayata made an oral motion to dismiss for violation of Hawai'i

Rules of Penal Procedure (HRPP) Rule 48, which requires dismissal

if trial is not commenced within six months of the defendant’s

arrest.2   Hayata argued that the one-month delay due to Judge


      1
            HRS § 586-11 provides in relevant part: “Whenever an order for

protection is granted pursuant to this chapter, a respondent or person to be

restrained who knowingly or intentionally violates the order for protection is

guilty of a misdemeanor.”

      2

             HRPP Rule 48 (“Dismissal”) provides, in relevant part:


                  (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, 

                                                                (continued...)


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Castagnetti’s illness did not meet the Rule 48 criteria for


excludable periods of time.        The family court denied his motion,3


finding that Judge Castagnetti’s one-month absence due to illness


constituted “good cause” and should thus be excluded from


computing the time for trial to commence.          Based on this finding,


the family court concluded that Hayata’s Rule 48 period would not


expire until July 17, 2013.        Hayata was subsequently convicted of


violating the protection order and sentenced to two years’


probation. 


            On certiorari, Hayata contends that the ICA erred in


affirming the family court’s judgment because the family court


made no findings “establishing that Judge Castagnetti or any


other family circuit court judge exercised due diligence to


accommodate Hayata’s trial” or “any findings that an attempt was


made to secure a replacement judge or to transfer the case to 




      2
       (...continued)

            with or without prejudice in its discretion, if trial

            is not commenced within six months:


                  . . . . 


                  c) Excluded Periods. The following periods

            shall be excluded in computing the time for trial

            commencement:


                  . . . . 


                  (8) other periods of delay for good cause.

      3

            The Honorable Dean E. Ochiai presided over the hearing on the

motion, as well as subsequent proceedings in the case. 


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another courtroom in order to safeguard Hayata’s rights under


HRPP Rule 48.” 


           In State v. Abregano, No. SCWC-13-0000401, 2015 WL


8556221, at *7 (Haw. Dec. 11, 2015), we held that “although a


trial judge’s illness may constitute good cause for some period


of delay, under the circumstances of this case, where there is an


absence in the record of any attempt to find a replacement judge


or reassign Abregano’s case, there was no good cause to exclude a


four-week period.”    (Emphasis in original).       Applying those


principles here, where the record similarly lacks a basis to


support a finding that there were no replacement judges


available, the family court’s ruling in the instant case that


Judge Castagnetti’s illness constituted “good cause” was in


error, and the ICA erred by concluding that the family court


properly denied Hayata’s motion to dismiss pursuant to HRPP Rule


48.   Accordingly, Hayata’s conviction must be vacated.


           IT IS HEREBY ORDERED that the ICA’s August 31, 2015


Judgment on Appeal affirming the family court’s July 17, 2013


Judgment of Conviction and Sentence is vacated.          As in Abregano, 





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we remand the case to the family court to decide whether to

dismiss Hayata’s conviction with or without prejudice.

          DATED: Honolulu, Hawai'i, February 25, 2016.

Walter J. Rodby                        /s/ Mark E. Recktenwald
for petitioner
                                       /s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent	                          /s/ Sabrina S. McKenna 


                                         /s/ Richard W. Pollack


                                         /s/ Michael D. Wilson





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