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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   29-JUN-2020
                                                   07:45 AM



                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                STATE OF HAWAI#I, Plaintiff-Appellee, v.
                     JOY BARUA, Defendant-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DTA-18-02991)


                    SUMMARY DISPOSITION ORDER
   (By: Chan, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

             Defendant-Appellant Joy Barua (Barua) appeals from the
Notice of Entry of Judgment and/or Order and Plea/Judgment,
entered on February 14, 2019, in the District Court of the First
Circuit, Honolulu Division (District Court).1/ When the State
was not ready to proceed on Barua's motions to suppress evidence,
the District Court, at Barua's request, dismissed the charge
against him, namely, Operating a Vehicle Under the Influence of
an Intoxicant (OVUII), in violation of Hawaii Revised Statutes
§ 291E-61(a)(1) and/or (a)(3) (Supp. 2017).
          Barua raises a single point of error on appeal, arguing
that the District Court erred in dismissing the case without
prejudice, instead of with prejudice.
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Barua's point of error as follows:


     1/
             The Honorable Kenneth J. Shimozono presided.
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          At a hearing on February 14, 2019, the District Court
dismissed the case in the following exchange:
                THE COURT: Okay. So one, two, three, four. Okay.
          So what I'm going to do is I'm going to deny the State's
          request to continue this for APT and motions. I'm going to
          grant the defense motion to dismiss. I'm going to dismiss
          it without prejudice.

                [DEFENSE COUNSEL]:   Thank you, your honor.

                THE COURT: And is there any bail to be returned?   And
          I'm doing it for lack of prosecution. Okay.

                [Prosecutor], obviously if the State feels that it can
          gather its witnesses for, you know, the motion, it's your
          discretion to refile the charges. Okay. So bail to be
          returned to postee.

                [DEFENSE COUNSEL]:   Thank you, your honor.

(Emphases added.)
          Barua contends, in part, that the District Court erred
in dismissing the charge without prejudice because the District
Court "made inadequate findings to justify its decision[.]"
Barua urges us to reach the merits and dismiss the case with
prejudice. Alternatively, Barua argues that the case should be
remanded for appropriate findings by the District Court.
          The State agrees that the District Court "failed to
provide sufficient findings regarding its dismissal of this case
without prejudice" and states the case "should be remanded for
proper findings . . . in order to allow for proper appellate
review." The State also argues that Barua has not supplied a
record sufficient for this court to determine whether the case
should be dismissed with prejudice.
          "In criminal cases, 'the power of a court to dismiss a
case on its own motion for failure to prosecute with due
diligence is inherent.'" State v. Mageo, 78 Hawai#i 33, 37, 889
P.2d 1092, 1096 (App. 1995) (emphasis and brackets omitted)
(quoting State v. Estencion, 63 Haw. 264, 268, 625 P.2d 1040,
1043 (1981)). A trial court has the inherent power to dismiss a
charge with or without prejudice for the failure to prosecute
with due diligence, but must clearly articulate the reasons for
its decision so that a reviewing court may accurately assess
whether the trial court duly exercised its discretion. See id.
at 37-38, 889 P.2d at 1096-97 (trial courts exercising their


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inherent power to dismiss a criminal case with prejudice should
set forth their reasons for doing so); State v. Hern, 133 Hawai#i
59, 64, 323 P.3d 1241, 1246 (2013) (in determining whether to
dismiss a charge with or without prejudice under Hawai#i Rules of
Penal Procedure (HRPP) Rule 48(b), the trial court must "clearly
articulate the effect of the . . . factors [set forth in
Estencion, 63 Haw. at 269, 625 P.2d at 1044] and any other factor
it considered in rendering its decision"). When issuing its
findings, the trial court should consider the appropriate factors
depending upon the grounds for dismissal. Compare Mageo, 78
Hawai#i at 37-38, 889 P.2d at 1096-97 (dismissal with or without
prejudice for want of prosecution requires "balancing of the
interest of the state against fundamental fairness to a defendant
with the added ingredient of the orderly functioning of the court
system" (quoting State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705,
712 (1982)) (bracket omitted)), with Estencion, 63 Haw. at 269,
625 P.2d at 1044 (dismissal with or without prejudice for
violation of HRPP Rule 48 requires consideration of: "the
seriousness of the offense; the facts and the circumstances of
the case which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter and on the
administration of justice.").
           Here, the District Court appeared to dismiss the case
"for lack of prosecution," but did not clearly articulate the
basis for that decision or the reasons for dismissing the case
without prejudice. In addition, the record on appeal is
inadequate for this court to meaningfully review whether the
District Court properly exercised its discretion in dismissing
the OVUII charge without prejudice.2/
           Therefore, we vacate the Notice of Entry of Judgment
and/or Order and Plea/Judgment, entered on February 14, 2019, in
the District Court of the First Circuit, Honolulu Division, and
remand the case for the District Court to enter findings to
support its decision to dismiss without prejudice and for further

      2/
         Although Barua ordered the transcript of the February 14, 2019
hearing in which the District Court dismissed the case without prejudice, the
transcripts of other hearings held in the case were not made part of the
record on appeal.

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proceedings consistent with this Summary Disposition Order.

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


On the briefs:
                                      /s/ Derrick H.M. Chan
Richard L. Holcomb                    Presiding Judge
(Holcomb Law, LLLC)
for Defendant-Appellant.              /s/ Keith K. Hiraoka
                                      Associate Judge
Chad M. Kumagai,
Deputy Prosecuting Attorney,          /s/ Clyde J. Wadsworth
City & County of Honolulu,            Associate Judge
for Plaintiff-Appellee.




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