 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    24-APR-2020
                                                    01:45 PM



                   IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I

                                   –––O0O–––

                  STATE OF HAWAI#I, Plaintiff-Appellant,
                                    v.
                    COREY THOMPSON, Defendant-Appellee


                             NO. CAAP-XX-XXXXXXX


            APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
                          (FC-CR NO. 16-1-0320K)


                                APRIL 24, 2020


          LEONARD, PRESIDING JUDGE, AND CHAN AND WADSWORTH, JJ.


                  OPINION OF THE COURT BY WADSWORTH, J.

              Plaintiff-Appellant State of Hawai#i (State) filed a
criminal complaint charging Defendant-Appellee Corey Thompson
(Thompson) with Abuse of Family or Household Member, in violation
of HRS § 709-906(1)1/ (Complaint).          Thompson was summoned to
appear before the Family Court of the Third Circuit (Family
Court) to answer the charge.          Following Thompson's appearance and
a subsequent motion, the Family Court dismissed the Complaint
without prejudice on the grounds that: (1) the Complaint was not


     1/
              HRS § 709-906(1) (Supp. 2015) provides, in relevant part:

                    It shall be unlawful for any person, singly or in
              concert, to physically abuse a family or household member
              . . . .
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

signed by the complainant under oath or made by declaration in
accordance with the rules of court, in violation of Hawaii
Revised Statutes (HRS) § 805-1;2/ (2) no affidavit in support of
the Complaint was provided to Thompson at the time of his
arraignment, in violation of Hawai#i Rules of Penal Procedure
(HRPP) Rule 5(b)(1);3/ and (3) a penal summons was issued to
Thompson based upon a defective complaint and without a probable



     2/
          HRS § 805-1 (2014) provides:
                 Complaint; form of warrant. When a complaint is made
          to any prosecuting officer of the commission of any offense,
          the prosecuting officer shall examine the complainant, shall
          reduce the substance of the complaint to writing, and shall
          cause the complaint to be subscribed by the complainant
          under oath, which the prosecuting officer is hereby
          authorized to administer, or the complaint shall be made by
          declaration in accordance with the rules of court. If the
          original complaint results from the issuance of a traffic
          summons or a citation in lieu of an arrest pursuant to
          section 803-6, by a police officer, the oath may be
          administered by any police officer whose name has been
          submitted to the prosecuting officer and who has been
          designated by the chief of police to administer the oath, or
          the complaint may be submitted by declaration in accordance
          with the rules of court. Upon presentation of the written
          complaint to the judge in whose circuit the offense
          allegedly has been committed, the judge shall issue a
          warrant, reciting the complaint and requiring the sheriff,
          or other officer to whom it is directed, except as provided
          in section 805-3, to arrest the accused and to bring the
          accused before the judge to be dealt with according to law;
          and in the same warrant the judge may require the officer to
          summon such witnesses as are named in the warrant to appear
          and give evidence at the trial. The warrant may be in the
          form established by the usage and practice of the issuing
          court.
     3/
          HRPP Rule 5(b)(1) provides, in relevant part:
                ARRAIGNMENT. In the district court, if the offense
          charged against the defendant is other than a felony, the
          complaint shall be filed and proceedings shall be had in
          accordance with this section (b). A copy of the complaint,
          including any affidavits in support thereof, and a copy of
          the appropriate order, if any, shall be furnished to the
          defendant. . . . When the offense is charged by complaint,
          arraignment shall be in open court, or by video conference
          when permitted by Rule 43. The arraignment shall consist of
          the reading of the complaint to the defendant and calling
          upon the defendant to plead thereto. . . . The defendant may
          waive the reading of the complaint . . . at arraignment
          . . . . In addition to the requirements of Rule 10(e), the
          court shall, in appropriate cases, inform the defendant of
          the right to jury trial in the circuit court and that the
          defendant may elect to be tried without a jury in the
          district court.

                                    2
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

cause affidavit, in violation of HRPP Rule 9(a).4/
          The State appeals from the Family Court's "Findings of
Fact/Conclusions of Law Granting Defendant's Motion to Dismiss
for Penal Summons Issued Absent Probable Cause Affidavit,
Complaint Lacking Supporting Affidavit, and Improper Arraignment"
(FOFs/COLs), entered on April 17, 2017.5/ The State contends
that the Family Court erred in dismissing the Complaint on the
stated grounds. The State argues that: (1) the Complaint
complied with HRS § 805-1 and HRPP Rule 7(d)6/ because it was
signed by the prosecutor; (2) an affidavit in support of the
Complaint was not required under HRPP Rule 5(b)(1); and (3) a
sworn complaint or affidavit showing probable cause that Thompson




     4/
          HRPP Rule 9(a) provides, in relevant part:

                (a)   Methods.

                (1) SUMMONS. Upon request of the prosecutor, the
          clerk shall issue a summons for a defendant named:

                (i)   in the complaint[.]

                . . . .
                (2) WARRANT. The court may order issuance of a warrant
          instead of a summons upon request of the prosecutor; provided,
          however, that no warrant may issue:

                (i) Upon a complaint unless it appears from the sworn
          complaint, or from affidavit(s) or declaration(s) filed with
          the complaint, that there is probable cause to believe that
          an offense has been committed and that the defendant has
          committed it[.]

                . . . .
                (5) FAILURE TO APPEAR. If a defendant fails to
          appear in response to a summons, a warrant may issue.
     5/
          The Honorable Ronald Ibarra presided.
     6/
          HRPP Rule 7(d) provides, in relevant part:

                Nature and contents. The charge shall be a plain,
          concise and definite statement of the essential facts
          constituting the offense charged. . . . A complaint shall
          be signed by the prosecutor. The charge need not contain a
          formal conclusion or any other matter not necessary to such
          statement. . . . Formal defects . . . shall not be ground
          for dismissal of the charge or for reversal of a conviction
          if the defect did not prejudice the defendant.


                                     3
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

had committed an offense was not required for the issuance of a
penal summons under HRPP Rule 9(a).
          After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve the
State's contentions as follows and vacate and remand.

                     I.   RELEVANT BACKGROUND

          On November 23, 2016, the State filed the Complaint,
which was signed by the deputy prosecuting attorney. On the same
date, the clerk of the Family Court issued a Penal Summons,
commanding Thompson to appear at the Kona District Court on
January 11, 2017, to answer the charge.
          On January 11, 2017, Thompson appeared in the district
family court, acknowledged receipt of the Complaint, and waived
an oral reading of the charge. Thompson entered a not-guilty
plea and demanded a jury trial. On January 12, 2017, the matter
was transferred to the circuit court for further proceedings.
          On March 2, 2017, Thompson filed a "Motion to Dismiss
for Penal Summons Issued Absent Probable Cause Affidavit,
Complaint Lacking Supporting Affidavit, and Improper Arraignment"
(Motion to Dismiss). The State filed its opposition to the
Motion to Dismiss on March 7, 2017. A hearing on the motion was
held on April 3, 2017.
          On April 17, 2017, the Family Court issued the
FOFs/COLs granting the Motion to Dismiss on the grounds described
above.

                          II.   DISCUSSION

A.   Compliance with HRS § 805-1 and HRPP Rule 7(d)
          The State contends that the Family Court erred in
concluding that the Complaint was fatally defective under HRS
§ 805-1 because it was not signed by the complainant under oath
or made by declaration in accordance with the rules of court.
The State argues that the Complaint complied with HRS § 805-1 and
HRPP Rule 7(d) because it was signed by the prosecutor.


                                  4
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

          HRS § 805-1 provides, in relevant part:
          When a complaint is made to any prosecuting officer of
          the commission of any offense, the prosecuting officer
          shall examine the complainant, shall reduce the
          substance of the complaint to writing, and shall cause
          the complaint to be subscribed by the complainant
          under oath, which the prosecuting officer is hereby
          authorized to administer, or the complaint shall be
          made by declaration in accordance with the rules of
          court. . . . Upon presentation of the written
          complaint to the judge in whose circuit the offense
          allegedly has been committed, the judge shall issue a
          warrant . . . to arrest the accused and to bring the
          accused before the judge to be dealt with according to
          law[.]

(Emphasis added.)
          Thompson argues, and the Family Court ruled, that under
HRS § 805-1, the Complaint had to be signed by the complainant
under oath or made by declaration according to applicable court
rules. It is undisputed that the Complaint was not signed by the
complainant under oath. The parties dispute, however, whether
the Complaint was "made by declaration in accordance with the
rules of court." HRS § 805-1. We will address that dispute
first, and then turn to the underlying issue of whether the
absence of the complainant's signature under oath or a
declaration made under applicable court rules rendered the
Complaint fatally defective for the purpose of initiating and
maintaining the prosecution against Thompson.
          Hawai#i Family Court Rules Rule 81(c) states that
"[c]ases for adults charged with the commission of a crime coming
within the jurisdiction of the family courts shall be governed by
the [HRPP]." Accordingly, here, the HRPP govern the initiation
of the charge against Thompson and are the applicable "rules of
court" for the purpose of making a complaint "by declaration"
under HRS § 805-1. It appears, however, there is no provision of
the HRPP that specifically addresses making a complaint "by
declaration."
          The State urges us to apply HRPP Rule 7(d), which
provides, in relevant part:
          The charge shall   be a plain, concise and definite
          statement of the   essential facts constituting the
          offense charged.   . . . A complaint shall be signed by
          the prosecutor.    The charge need not contain a formal



                                      5
  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
            conclusion or any other matter not necessary to such
            statement.
(Emphasis added.) While the rule makes no specific reference to
a "declaration" under HRS § 805-1, the State argues that the
phrase "declaration in accordance with the rules of court" is
ambiguous, and HRPP Rule 7 "is specific and on point with regards
to what is required to be in a complaint." The State further
argues that, because the Complaint here was signed by the
prosecutor in accordance with HRPP Rule 7(d), it sufficed as a
"complaint . . . made by declaration" under HRS § 805-1.
          Thompson, on the other hand, contends that HRS § 805-1
is "designed to prevent the institution of criminal prosecutions
based on false or frivolous charges."7/ To achieve this
objective, Thompson contends, Section 805-1 requires that: (1)
"the charges be reduced to writing," and (2) "the civilian or
police complainant verify the allegations of the written charge
by oath or declaration." Thompson argues that various court
rules, including HRPP Rule 47(d) and Hawai#i Rules of Appellate
Procedure Rule 52, define and set out the requirements for a
"declaration in lieu of affidavit," and the Complaint did not
comply with those requirements. The State points out that Rule
47 concerns motions, and argues that "[t]he declaration of HRPP
Rule 47 only pertains to motions filed after a case has been
initiated," i.e., it does not govern making a complaint by
declaration under HRS § 805-1.
          We recognize that the phrase "or the complaint shall be
made by declaration in accordance with the rules of court" is not
a model of clarity in this context. HRS § 805-1 does not
identify the rule of court that must be followed in making a
complaint "by declaration," and the HRPP do not include a rule
that specifically addresses making a complaint "by declaration."
Given this ambiguity, we look to the legislative history of this
provision to determine legislative intent. See State v.
Ruggiero, 114 Hawai#i 227, 231-32, 160 P.3d 703, 707-08 (2007).



      7/
            We note that Thompson offers no authority or other support for
this assertion.

                                      6
  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

          The legislature amended HRS § 805-1         in 2007, adding the
phrase at issue and further revising the text         as follows, with
deletions indicated in brackets and additions         denoted with
underlines:
               "§ 805–1 Complaint; form of warrant.   When a complaint
           is made to any prosecuting officer of the commission of any
           offense, the prosecuting officer shall examine the
           complainant, shall reduce the substance of the complaint to
           writing, and shall cause the [same] complaint to be
           subscribed by the complainant under oath, which the
           prosecuting officer is hereby authorized to administer[.],
           or the complaint shall be made by declaration in accordance
           with the rules of court. If the original complaint results
           from the issuance of a traffic summons or a citation in lieu
           of an arrest pursuant to section 803-6, by a police officer,
           the oath may be administered by any police officer whose
           name has been submitted to the prosecuting officer and who
           has been designated by the chief of police to administer the
           oath[.], or the complaint may be submitted by declaration in
           accordance with the rules of court. Upon presentation of
           the written complaint to the judge [within] in whose circuit
           the offense [is alleged to have] allegedly has been
           committed, the judge shall issue a warrant, reciting the
           complaint and requiring the sheriff, or other officer to
           whom it is directed [(except as provided in section 805-3),
           forthwith], except as provided in section 805-3, to arrest
           the accused and to bring the accused before the judge to be
           dealt with according to law; and in the same warrant the
           judge may require the officer to summon such witnesses as
           are named [therein] in the warrant to appear and give
           evidence at the trial. The warrant may be in the form
           established by the usage and practice of the issuing court."

2007 Haw. Sess. Laws Act 13, § 2 at 27-28.
          The Senate Committee on Judiciary and Labor (Committee)
reported that the purpose of the revision was "to authorize the
verification of arrest citations and traffic crime complaints by
declaration in accordance with the court rules." S. Stand. Comm.
Rep. No. 1194, in 2007 Senate Journal, at 1557-58 (emphasis
added). The Committee also found:
           [A]llowing the use of declarations in lieu of affidavits for
           arrest citations and traffic crime complaints is consistent
           with current rules of the court, and would not harm the
           offender's right to challenge the veracity of the officer.
           In addition, the use of declarations would allow for more
           timely processing of citations and complaints, and would
           save space on citation forms.

Id. (emphasis added).
          Testimony presented by the Judiciary explained the
purpose of the revision as follows:
           House Bill No. 1204 would also authorize an alternative form
           for verification of arrest citations and traffic crime
           complaints by allowing the issuing or complaining officer to


                                     7
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
          verify the citation or complaint by declaration.
          Declarations in lieu of affidavits are authorized by court
          rules. Allowing the use of declarations for arrest
          citations and traffic crime complaints would not harm the
          offender's right to challenge the veracity of the officer,
          and allows for a more timely processing of citations and
          complaints. In addition, use of declarations would save
          space on citation forms that are filled with other
          information.

Judiciary, Testimony to the House Committee on Judiciary on H.B.
1204, 24th Leg., Reg. Sess. (Feb. 1, 2007) (Hon. Corinne
Watanabe, Intermediate Court of Appeals) (emphasis added).
          Based on this legislative history, it appears that the
legislature revised the second sentence of Section 805-1 to
authorize an alternative form of "verification" for arrest
citations and traffic crime complaints by allowing issuing or
complaining police officers to use "declarations in lieu of
affidavits" "consistent with" court rules. It is not entirely
clear why similar language was added to the first sentence of
Section 805-1, authorizing complaints that are made to
prosecuting officers to be "made by declaration." It is also not
evident who is authorized to make such a declaration.
Nonetheless, it would appear, based on the legislative history,
and assuming that the legislature intended for the same words to
have the same meaning in consecutive sentences of the same
section, that the reference to "declaration" in the first
sentence of Section 805-1 means a "declaration in lieu of
affidavit" "consistent with" court rules.
          Here, that construction would mean, as Thompson argues,
that Section 805-1 required the Complaint to be signed by the
complainant under oath or made by declaration in lieu of
affidavit consistent with HRPP Rule 47(d). Regardless of who may
have been authorized to make such a declaration in this case, it
is undisputed that no such declaration accompanied the Complaint.
          That is not the end of our analysis, however, as the
State also contends that strict compliance with HRS § 805-1 was
not a prerequisite to initiating and maintaining the prosecution
against Thompson. The penultimate sentence of Section 805-1
states: "Upon presentation of the written complaint to the judge
in whose circuit the offense allegedly has been committed, the

                                    8
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

judge shall issue a warrant . . . to arrest the accused and to
bring the accused before the judge to be dealt with according to
law[.]" In a similar vein, HRPP Rule 9(a)(2) states that "no
warrant shall issue . . . [u]pon a complaint unless it appears
from the sworn complaint, or from affidavit(s) or declarations(s)
filed with the complaint, that there is probable cause to believe
that an offense has been committed and that the defendant has
committed it[.] Thus, consistent with the language of HRS § 805-
1, a sworn complaint, or a complaint accompanied by an affidavit
or declaration, establishing probable cause is a prerequisite to
the issuance of a valid arrest warrant. See Territory v.
Williams, 41 Haw. 348, 353 (Haw. Terr. 1956) (analyzing
predecessor statute to HRS § 805-18/ and affirming that "a
complaint subscribed under oath is a prerequisite to the issuance
of a valid warrant of arrest") (citing Territory v. Mix, 41 Haw.
163, 165 (Haw. Terr. 1955)).
          It does not necessarily follow, however, that the
absence of a sworn complaint or supporting declaration rendered
the Complaint here fatally defective for the purpose of
initiating and maintaining the prosecution against Thompson. See
Williams, 41 Haw. at 356 (ruling that predecessor statute to HRS
§ 805-1 "provide[d] only for the issuance of a complaint as the
basis of a warrant of arrest" and concluding that Hawai#i law did
not mandate an oath as a prerequisite to criminal proceedings in
the district court or a court of record). HRPP Rule 7(d) governs
the nature and contents of the charge that initiates a criminal
case. See State v. Knoeppel, 71 Haw. 168, 170, 785 P.2d 1321,
1322 (1990). While that rule states that "[a] complaint shall be

     8/
          Revised Laws of Hawaii § 10770 (1945) stated, in relevant part:
                Complaint; form of warrant. Upon complaint made to
          any prosecuting officer of the commission of any offense, he
          shall examine the complainant, shall reduce the substance of
          the complaint to writing and cause the same to be subscribed
          by the complainant under oath, which he is hereby authorized
          to administer. Upon presentation of the written complaint to
          the magistrate within whose district the offense is alleged
          to have been committed such magistrate shall issue his
          warrant, reciting the complaint and requiring the high
          sheriff, or other officer to whom it is directed . . .,
          forthwith to arrest the accused and bring him before the
          magistrate to be dealt with according to law[.]

                                    9
  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

signed by the prosecutor[,]" it does not require that a complaint
be signed by the complainant under oath or accompanied by a
supporting declaration. Indeed, prior to July 1, 2008, Rule 7(d)
expressly allowed for a complaint to be "sworn to or affirmed in
writing before the prosecutor by the complaining witness," as
long as the complaint was also signed by the prosecutor,9/ but
the supreme court deleted that language in amendments to the
rule. See In re Amendment of the [HRPP], Order Concerning Rules
5(b)(1) and 7(a), 7(d), and 7(h) of the [HRPP] (Haw. Dec. 17,
2007) (amendments effective July 1, 2008). At the time the
Complaint was filed, Rule 7(d) required merely that the
prosecutor sign a complaint.
          In Knoeppel, the supreme court applied the then-current
version of HRPP Rule 7(d) to a complaint that charged the
defendant with abuse of a family or household member, in
violation of HRS § 709-906. 71 Haw. at 169-70, 785 P.2d at 1321-
22. The complaint had been signed by the arresting police
officer, but not by the prosecutor. The court ruled that the
plain and unambiguous language of then-Rule 7(d) "mandate[d] that
a criminal complaint . . . be: 1) signed by the prosecutor; or
2) sworn to or affirmed in writing before the prosecutor by the
complaining witness and be signed by the prosecutor." Id. at
170, 785 P.2d at 1322 (emphasis added). Notably, the court did
not read Rule 7(d) as requiring that the complaint be sworn to or
affirmed in writing by the complainant. Rather, the court



      9/
            Prior to July 1, 2008, Rule 7(d) provided, in relevant part:

            The charge shall be a plain, concise and definite
            written statement of the essential facts constituting
            the offense charged[.] . . . A complaint shall be
            signed by the prosecutor, or it shall be sworn to or
            affirmed in writing before the prosecutor by the
            complaining witness and be signed by the prosecutor;
            except that a complaint alleging a traffic offense may
            be sworn to or affirmed by a police officer before
            another police officer as provided by law and need not
            be signed by the prosecutor. The charge need not
            contain a formal conclusion or any other matter not
            necessary to such statement. . . . .

See In re Amendment of the [HRPP], Order Amending Rules 5(b)(1) and 7(d) of
the [HRPP] (Haw. Nov. 17, 2000).

                                     10
  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

concluded that it was the absence of the prosecutor's signature
that rendered the complaint fatally defective. Id.
          Here, the Complaint that charged Thompson with abuse of
a family or household member was signed by the prosecutor in
compliance with the current version of HRPP Rule 7(b). The
Complaint was not a basis for issuance of an arrest warrant under
HRS § 805-1 or HRPP Rule 9(b). Rather, Thompson appeared in the
district family court pursuant to a lawful penal summons (see
infra Section C) and was not arrested. Under these
circumstances, the court's reasoning in Knoeppel leads us to
conclude that the Complaint satisfied Hawai#i law for the purpose
of initiating and maintaining the prosecution against Thompson.
Accordingly, we conclude that the Family Court erred in
dismissing the Complaint on the ground that it was neither signed
by the complainant under oath nor made by declaration in
accordance with the rules of court.10/

B.   Compliance with HRPP Rule 5(b)(1)
          The State contends that the Family Court erred in
concluding that Thompson's arraignment was defective under HRPP
Rule 5(b)(1) because no affidavit in support of the Complaint was
provided to Thompson at the time of his arraignment. The State
argues that Rule 5(b)(1) does not require furnishing such an
affidavit to the defendant.
          HRPP Rule 5(b)(1) governs the defendant's arraignment
where the charged offense is not a felony. The rule provides, in
relevant part:
           A copy of the complaint, including any affidavits in
           support thereof, and a copy of the appropriate order,
           if any, shall be furnished to the defendant. . . .
           When the offense is charged by complaint, arraignment
           shall be in open court, or by video conference when
           permitted by Rule 43. The arraignment shall consist
           of the reading of the complaint to the defendant and
           calling upon the defendant to plead thereto. . . . The



      10/
            The Family Court also erred in concluding that HRS § 805-1 was
"patterned after" Fed. R. Crim. P. Rules 3 and 4. It appears that the
earliest predecessor statutes to HRS § 805-1 were enacted before the original
1946 effective date of the Federal Rules of Criminal Procedure. See Williams,
41 Haw. at 355. The language of HRS § 805-1 also differs from that of Fed. R.
Crim. P. Rules 3 and 4 in important respects.

                                     11
  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
            defendant may waive the reading of the complaint . . .
            at arraignment[.]

HRPP Rule 5(b)(1) (emphasis added).
          We have already concluded that Hawai#i law did not
require that the Complaint be signed under oath by the
complainant or accompanied by a supporting declaration solely for
the purpose of initiating the prosecution against Thompson. The
plain and unambiguous language of Rule 5(b)(1), which requires
only that any affidavits in support of the complaint be furnished
to the defendant, further supports our conclusion.11/
          In contrast, under HRPP Rule 9(a)(2), an arrest warrant
may not be issued upon a complaint, "unless it appears from the
sworn complaint, or from affidavit(s) or declaration(s) filed
with the complaint," that there is probable cause to believe that
the defendant has committed an offense.
          Here, Thompson appeared in the district family court
pursuant to a penal summons, acknowledged receipt of the
Complaint, and waived an oral reading of the charge. The
Complaint was not the basis for an arrest warrant, and no arrest
warrant was issued. Under these circumstances, HRPP Rule 5(b)(1)
did not require the State to furnish Thompson with an affidavit
in support of the Complaint. Accordingly, we conclude that the
Family Court erred in dismissing the Complaint on the ground that
no supporting affidavit was provided to Thompson at the time of
his arraignment.

C.    Compliance with HRPP Rule 9(a)
          The State contends that the Family Court erred in
concluding that a penal summons was issued to Thompson based upon


      11/
            HRPP Rule 5(c)(1), which governs the initial appearance of a
defendant charged with a felony, similarly provides:

            At the initial appearance the court shall, in addition to
            the requirements under Rule 10(e), furnish the defendant
            with a copy of the complaint and affidavits in support
            thereof, if any, together with a copy of the appropriate
            order of judicial determination of probable cause, if any,
            and inform the defendant of the right to a preliminary
            hearing.
(Emphasis added.)

                                     12
  FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

a defective complaint and without a probable cause affidavit, in
violation of HRPP Rule 9(a). The State argues that Rule 9(a)
treats a penal summons differently than an arrest warrant, and
that a sworn complaint or affidavit showing probable cause that
Thompson had committed an offense was not required for the
issuance of a valid penal summons.
          HRPP Rule 9(a) prescribes two different methods for
obtaining the appearance of a defendant in a criminal case: a
summons and an arrest warrant. Rule 9(a)(1) states, in relevant
part, that "[u]pon request of the prosecutor, the clerk shall
issue a summons for a defendant named . . . in the complaint[.]"
Rule 9(a)(2) states that "[t]he court may order issuance of a
warrant instead of a summons upon request of the prosecutor[,]"
provided that no warrant may issue upon a complaint "unless it
appears from the sworn complaint, or from affidavit(s) or
declaration(s) filed with the complaint, that there is probable
cause to believe that an offense has been committed and that the
defendant has committed it[.]" (Emphasis added.) The plain and
unambiguous language of Rule 9(a) thus distinguishes between a
penal summons and an arrest warrant, requiring a probable cause
showing for issuance of a warrant, but not for issuance of a
penal summons.
          Under the Fourth Amendment, a showing of probable cause
is required only when a defendant is to be subjected to an
extended pretrial restraint of liberty following arrest. See
Gerstein v. Pugh, 420 U.S. 103, 114, 125 n.26 (1975);12/ see also
United States v. Yellow Freight System, Inc., 637 F.2d 1248, 1252
(9th Cir. 1980) (absent arrest or some other restraint on a
defendant's liberty, a prosecution may be maintained without any



      12/
            In Gerstein, the Court held that the due process clause of the
Fourth Amendment requires a prompt determination of "probable cause to believe
the suspect has committed a crime" before a suspect can be detained for an
extended time. 420 U.S. at 120. In County of Riverside v. McLaughlin, 500
U.S. 44, 56 (1991), the Court held that "[t]aking into account the competing
interests articulated in Gerstein, we believe that a jurisdiction that
provides judicial determinations of probable cause within 48 hours of arrest
will, as a general matter, comply with the promptness requirement of
Gerstein." Hawai#i provides such determinations in non-felony cases under
HRPP Rule 5(b)(2).

                                     13
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

finding of probable cause). Here, the penal summons subjected
Thompson to no such restraint on his liberty and was thus proper.
          In concluding that the issuance of a penal summons
requires a probable cause showing, the Family Court wrongly
relied on United States v. Millican, 600 F.2d 273, 277 (5th Cir.
1979). There, the Fifth Circuit, construing the then-effective
version of Rule 9(a) of the Federal Rules of Criminal Procedure,
stated that even absent pretrial arrest or detention, a probable
cause determination should be made on the request of a defendant
who responds to a summons. Id. Here, however, Thompson did not
ask for a probable cause determination. Moreover, Millican and
Gerstein make clear that a probable cause determination is not a
constitutional prerequisite to a charging decision, i.e., to the
filing of the Complaint. See Millican, 600 F.2d at 276;
Gerstein, 420 U.S. at 125 n.26. In addition, the version of Fed.
R. Crim. P. Rule 9(a) that the Millican court considered differs
from HRPP Rule 9(a) in important respects. Most notably, the
final sentence of the federal Rule 9(a) provided that if a
defendant failed to appear in response to a summons, a warrant
"shall issue." This language created the possibility that a
summons could be issued on an information not supported by oath,
and a warrant then issued for failure to appear in response to
the summons, the end result being that the defendant could be
arrested on warrant without a probable cause showing. See
Millican, 600 F.2d at 277. In contrast, HRPP Rule 9(a)(5)
provides that if a defendant fails to appear in response to a
summons, a warrant "may issue," and HRPP Rule 9(a)(2) makes clear
that a warrant may not issue upon a complaint or information
without a probable cause showing. Millican is therefore
inapposite.
          Accordingly, we conclude that the Family Court erred in
dismissing the Complaint on the ground that a penal summons was
issued to Thompson in violation of HRPP Rule 9(a). Based on this
record, the Complaint was not defective and the penal summons was
properly issued.




                               14
 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

                           III.   CONCLUSION

          For these reasons, we vacate the "Findings of
Fact/Conclusions of Law Granting Defendant's Motion to Dismiss
for Penal Summons Issued Absent Probable Cause Affidavit,
Complaint Lacking Supporting Affidavit, and Improper
Arraignment," entered on April 17, 2017, in the Family Court of
the Third Circuit. This case is remanded to the Family Court for
further proceedings.

On the briefs:

Charles E. Murray, III.,                /s/ Katherine G. Leonard
Deputy Prosecuting Attorney,
County of Hawai#i,                      /s/ Derrick H.M. Chan
for Plaintiff-Appellant
                                        /s/ Clyde J. Wadsworth

William H. Jameson, Jr.,
Deputy Public Defender,
for Defendant-Appellee




                                   15
