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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-13-0000636
                                                                 16-MAR-2018
                                                                 08:30 AM


              IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

            STATE OF HAWAII, Respondent/Plaintiff-Appellant,

                                       vs.

      QUINCY L.F. CHOY FOO, III, Petitioner/Defendant-Appellee.
    _____________________________________________________________

                               SCWC-13-0000636

             CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-13-0000636; CR. NO. 12-1-0000829)

                                MARCH 16, 2018

          McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
              DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                   OPINION OF THE COURT BY McKENNA, J.

                              I.    Introduction

      This appeal stems from the Circuit Court of the First

Circuit’s (“circuit court”)1 grant of Quincy L.F. Choy Foo, III’s

(“Choy Foo”) Motion to Dismiss Charges for Violation of Hawaii

Rules of Penal Procedure (“HRPP”) Rule 48 (2000) (“motion to


1
      The Honorable Patrick W. Border presided.
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dismiss”).     On April 5, 2013, the circuit court granted Choy

Foo’s motion to dismiss the charge with prejudice.2

      Choy Foo seeks review of the Intermediate Court of Appeals’

(“ICA”) December 29, 2016, opinion, which vacated the dismissal

order and remanded the case.         The ICA held that a twenty-one day

period between Choy Foo’s arraignment and a hearing on his

waiver or demand of jury trial (“waiver/demand hearing”) was

excludable from HRPP Rule 48 calculations under subsections

(c)(1) and (c)(8).       The ICA concluded that Choy Foo’s HRPP Rule

48 rights had therefore not been violated.            Although not

necessary to its holding because it held that Rule 48 had not

been violated and the case should not have been dismissed, the

ICA also stated the circuit court erred in failing to consider

and articulate its analysis of the factors identified in State

v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), in dismissing

the case with prejudice.

      For the reasons below, we hold the twenty-one day period

between Choy Foo’s arraignment and the first setting of the

waiver/demand hearing was not excludable pursuant to HRPP Rule

48(c)(1) or (c)(8).       The circuit court therefore correctly ruled


2
      A dismissal with prejudice prohibits the State from re-filing the
charges and re-starting prosecution of the case. See Dismissal with
prejudice Black’s Law Dictionary (10th ed. 2014) (“A dismissal . . . barring
the plaintiff from prosecuting any later lawsuit on the same claim.”)


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the case must be dismissed because Choy Foo’s HRPP Rule 48

rights had been violated.         We agree with the ICA, however, that

upon remand, the circuit court must properly apply the Estencion

factors to determine whether the case should be dismissed with

or without prejudice.

                                II.   Background

A.     District Court Proceedings

       On February 22, 2012, the State filed a complaint alleging

Choy Foo committed the offense of Sexual Assault in the Fourth

Degree, in violation of Section 707-733(1)(a) (2014) of the

Hawaii Revised Statutes (“HRS”).            At his appearance on March 15,

2012, the State gave Choy Foo, who was without counsel at the

time, a copy of the complaint.          The complete transcript of the

March 15, 2012 proceeding reads:

              [THE STATE:] APA 003, Quincy Choy Foo III. Can you come
              forward, please. Can you state your name.
              [CHOY FOO:] Quincy Choy Foo III.
              [THE STATE:] And for the record, I’m handing Mr. Choy Foo
              III a copy of the (indiscernible) complaint.
              (Indiscernible).
              THE COURT: So you understand what you’re charged with,
              this is a full misdemeanor. Up to a $2,000 fine, one year
              in jail, or both is the maximum penalties.
              [CHOY FOO:] Yeah.
              THE COURT: So, we need to set this for demand or waiver of
              your right to a jury trial. So, we’re going to set it for
              three weeks. I’m going to give you a referral to public
              defend –- defenders, excuse me, and you need to call them
              right away for an appointment. Okay? And the bond to
              continue. Thank you very much.
              [CHOY FOO:] Thank you.
              THE COURT: You have a seat. We’ll get your paperwork.
              (Proceedings concluded.)



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The district court set the waiver/demand hearing for April 5,

2012.

       On April 5, 2012, Choy Foo appeared without counsel,

explaining that he called the Office of the Public Defender

(“OPD”) and that he was told to request a continuance.               Choy Foo

further explained that he had an appointment with the OPD on May

8, 2012.      The court re-set the jury waiver/demand hearing for a

week after that appointment.

       On May 15, 2012, Choy Foo appeared at the waiver/demand

hearing, again without counsel.           Choy Foo explained the OPD had

told him to request another continuance because the office was

in training and he had an appointment scheduled for May 22,

2012.      The district court continued the hearing to May 30, 2012.

       The waiver/demand hearing was finally held on May 30, 2012,

and Choy Foo, who was represented by a deputy public defender

(“DPD”) at this time, demanded his right to a jury trial.                The

district court set the arraignment for June 12, 2012, in the

circuit court.

B.     Circuit Court Proceedings

       Choy Foo was arraigned in the circuit court on June 12,

2012, and entered a not guilty plea.            Trial was set for the week

of July 23, 2012.        The case was continued twice at Choy Foo’s

request and three times due to court congestion.              During a trial

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readiness hearing on January 14, 2013, the deputy prosecuting

attorney (“the State”) notified the court the HRPP Rule 48

deadline for the case would be March 3, 2013.            The circuit court

set the case for trial on February 11, 2013, but on that day

continued the case due to court congestion.

      On March 11, 2013, Choy Foo filed his motion to dismiss.

Choy Foo contended that a total of 189 includable days had

passed since the inception of the case, and that this clearly

exceeded the six-month, or 180 day, period within which trial

must commence under HRPP Rule 48.3          As such, Choy Foo requested

that the circuit court dismiss his case with prejudice.

      The State filed a memorandum in opposition to Choy Foo’s

motion to dismiss on March 12, 2013.           The State argued that the

time from Choy Foo’s arraignment on March 15, 2012, until the

first waiver/demand hearing on April 5, 2012 should be excluded

from the 180 day period for “good cause” pursuant to HRPP Rule




3
      HRPP Rule 48(b)(1) 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, with or
             without prejudice in its discretion, if trial is not
             commenced within 6 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[.]


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48(c)(8).4     The State contended that, therefore, the Rule 48

deadline was not until March 24, 2013.

      On March 25, 2013, the circuit court held a hearing on the

motion to dismiss.       At the outset, the circuit court clarified,

and the parties confirmed, that the only time frame in dispute

was the twenty-one day period from March 15, 2012, until April

5, 2012.     The DPD provided the circuit court with background

information regarding the district court’s HRPP Rule 48

practice, specifically regarding the routine three-week

continuance for waiver/demand hearings:

             [DPD:] [A misdemeanor case] is the only type of case in the
             first circuit where a defendant has a right to a jury trial
             where . . . the defendant has to demand that right before
             he’s entitled to the jury trial.
             THE COURT: Yeah. In other words, in every other kind of
             situation, the defendant’s court is chosen for him.
             [DPD:] Yes, Your Honor.
             THE COURT: Right.
             [DPD:] And the way the process works in district court is
             there’s an initial appearance. At the time the defendant
             is released on bail, he’s given this initial appearance.
             At that time, he’s not given any charges. He’s not being
             told what he’s charged with. He’s not told that he should
             get an attorney.
                   If an –- if a defendant wishes to hire private
             counsel prior to that, they can do that. But, at the same
             time, he hasn’t been advised of the counsel, so –- his
             right to counsel or what he’s actually been charged with.
                   As a matter of course in district court, even if a
             defendant appears with an attorney at the initial
             appearance, the case is continued for waiver or demand
             regardless of what the defendant wants to do.


4
      HRPP Rule 48(c)(8) provides, in relevant part:

             (c) Excluded periods. The following periods shall be
             excluded in computing the time for trial commencement:
             . . . .
             (8) other periods of delay for good cause.

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                   In this case –- anytime there’s a –- anytime the
             total period exceeds 180 days, it becomes the state’s
             burden to prove that a period is excludable. You know,
             generally, in district court, this period is charged to the
             state for Rule 48 purposes. That’s the general practice in
             district court amongst all the district court judges.

(Emphases added).       The DPD reiterated that setting the

waiver/demand hearing for three weeks after arraignment is the

standard practice of the district court:

             THE COURT: And that’s standard procedure. And what you’re
             saying is that’s the standard of what’s done in the
             district court?
             [DPD:] Yes, Your Honor. And that’s done by court. Mr.
             Choy Foo doesn’t come in and ask for a continuance. He
             doesn’t say, you know, I want counsel before I make this
             decision. At that time, generally, if you’re not
             represented as a defendant, discovery is not provided to
             you by the state. So, there’s a whole procedure that’s set
             up that’s basically done for the convenience of the
             district court, because more people in district court waive
             jury trial than demand. This is the system they’ve set up.
                   Other –- easily, the system could be that your case
             goes to circuit court, and if you choose to waive, then it
             goes back to district court. So, essentially, in –- if
             that period is charged to the defendant, you’re forcing the
             defendant to choose between his right to speedy trial and
             his right to jury trial. You’re forcing him to waive one
             or the other. And there’s an equal protection argument,
             because if a defendant is able to secure private counsel
             prior to the initial appearance and that makes some sort of
             difference, it’s still going to get set for three weeks for
             waiver/demand.

The DPD also confirmed that when the district court performs

HRPP Rule 48 calculations, it does not exclude the continued

time period for waiver/demand hearings.           The State conceded that

with respect to the time between arraignment and waiver demand

“it is the practice of district court to charge that time to the

state.”     However, the State argued that based on this court’s

opinions in State v. Senteno, 69 Haw. 363, 742 P.2d 369 (1987),

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and State v. Samonte, 83 Hawaii 507, 928 P.2d 1 (1996), the

district court’s practice was incorrect.

       After the parties finished their arguments, the circuit

court orally dismissed the case with prejudice and offered the

following explanation:

               [HRPP Rule 48] appears to be technical. It assigns certain
               delays to parties regardless of whether there actually was
               a delay. And I’m going to follow the district court
               practice and find that the period of time before this jury
               waiver is not excludable and that it counts so that the
               period between March 15th and April 5th does count against
               the state, and that 189 days have run, and, therefore, that
               the –- the Rule 48 has been violated by nine days, and
               therefore, that the matter is dismissed with prejudice. I
               do so despite the fact that the nature of the charge is one
               of the more troubling ones, to say the least, in our
               culture.

On April 5, 2013, the circuit court entered a written order

granting Choy Foo’s motion to dismiss the charges with prejudice

for violation of HRPP Rule 48, but it did not state its reasons

for doing so.

C.     Appeal to the ICA

       1.      The State’s Opening Brief

       The State raised two points of error in its opening brief

before the ICA.        First, the State contended that because the

three-week delay was for Choy Foo’s benefit, and was not

“unreasonably long,” the circuit court erred in failing to

exclude that period from the HRPP Rule 48 calculations.                 Quoting

State v. Canencia, No. 29345, 2009 WL 3151221 (App. Sept. 30,

2009) (mem.), an unpublished ICA memorandum opinion, the State
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asserted that “[i]t is well established that a period of time in

which the defendant is not represented by counsel is an

excludable period.”        Second, the State argued that the circuit

court abused its discretion in failing to articulate and weigh

the factors from Estencion when dismissing this case with

prejudice.5

      2.      Choy Foo’s Answering Brief

      In his answering brief, Choy Foo contended the State

incorrectly relied on Canencia.             The ICA should not consider

Canencia persuasive or applicable, Choy Foo asserted, because

the case was unpublished and did not address the unique

procedural issues in Choy Foo’s case.             Specifically, Choy Foo

argued the cases cited in Canencia, namely, Samonte and Senteno,

were distinguishable from Choy Foo’s case in two ways.

      First, Choy Foo asserted that the defendants in Samonte and

Senteno faced felony charges brought in the circuit court, and


5
       In Estencion, this court adopted the following language of the Federal
Speedy Trial Act, making it a requirement for the application of HRPP Rule
48(b):

              In determining whether to dismiss the case with or without
              prejudice, the court shall consider, among others, each of
              the following factors: 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.

63 Haw. at 269, 625 P.2d at 1044 (citing § 3162(a)(1) of the Federal Speedy
Trial Act, 18 U.S.C.A. (1969), Supp.1980)).

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therefore they were not subject to the automatic three-week

continuance Choy Foo faced in the district court for his

misdemeanor charge.       Second, Choy Foo argued the time periods in

question in Samonte and Senteno were excludable because the

court granted the defendants’ motions for withdrawal of counsel.

Choy Foo noted that he did not request that a previous attorney

withdraw from the case; instead, he made his initial appearance

without any representation, and the district court set a

waiver/demand hearing without a motion by either party.               In sum,

Choy Foo argued no binding legal authority addressed the

specific circumstances of his case.

     As to the State’s second point of error, Choy Foo conceded

the circuit court should have analyzed and applied the Estencion

factors when it dismissed his case with prejudice.              Choy Foo

therefore requested that the ICA vacate the dismissal with

prejudice and remand the case to allow the circuit court to

weigh the Estencion factors to properly determine whether the

case should be dismissed with or without prejudice.

     3.      The ICA Opinion

     As an initial matter, the ICA agreed with Choy Foo’s

concession on the State’s second point of error, concluding that

“at a minimum[] the Dismissal Order must be vacated and the case

remanded for consideration of the Estencion factors and

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articulation of necessary findings.”             State v. Choy Foo, 139

Hawaii 339, 342, 389 P.3d 934, 937 (App. 2016), as amended (Feb.

14, 2017) (citing State v. Hern, 133 Hawaii 59, 64-65, 323 P.3d

1241, 1246-47 (App. 2013)).

        The ICA characterized the first point of error as:

“[W]hether the twenty-one day delay between March 15, 2012, and

April 5, 2012, during which Choy Foo was referred to the Public

Defender’s Office to seek appointed counsel, constituted

excludable delay under HRPP Rule 48.”             Choy Foo, 139 Hawaii at

342, 389 P.3d at 937.          Viewing that issue in the context of “the

fundamental importance of the right to counsel,” the ICA held

that the period was excludable and that the circuit court erred

in granting Choy Foo’s motion to dismiss.              139 Hawaii at 343,

389 P.3d at 938.

        The ICA concluded that the twenty-one day period in

question fell within HRPP Rule 48(c)(1).6             It opined the purpose

of the waiver/demand continuance was to ensure Choy Foo was

represented by counsel, which was the same purpose as delays for

6
    HRPP Rule 48(c)(1) provides:

               (c) Excluded periods. The following periods shall be
               excluded in computing the time for trial commencement:
                  (1) periods that delay the commencement of trial and are
               caused by collateral or other proceedings concerning the
               defendant, including but not limited to penal
               irresponsibility examinations and periods during which the
               defendant is incompetent to stand trial, pretrial motions,
               interlocutory appeals and trials of other charges[.]

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withdrawal of counsel and appointment of new counsel, delays for

which are excludable under HRPP Rule 48(d)(1).             139 Hawaii at

344, 389 P.3d at 939.        In support of its position, the ICA cited

this court’s opinion in Senteno and its own unpublished

memorandum opinion, Canencia.         139 Hawaii at 345, 389 P.3d at

940.     Opining the facts of Canencia were similar to those of the

case at hand, the ICA quoted its reasoning in Canencia:

             It is well established that a period of time in which the
             defendant is not represented by counsel is an excludable
             period. See [Samonte, 83 Hawaii at 515-16, 928 P.2d at 9-
             10]; [Senteno, 69 Haw. at 368, 742 P.2d at 373]; HRPP Rule
             48(d)(1). Canencia was without counsel at his first
             appearance on September 28, 2007. The district court could
             not proceed to taking Canencia’s plea and if Canencia
             pleaded not guilty, to setting a trial date, while Canencia
             was not represented by counsel and had not waived his right
             to counsel. Consequently, the district court had no choice
             but to defer the case for the appointment of counsel, which
             began with the referral of Canencia to the Public Defender.
             Canencia did not object to the delay of proceedings and
             referral to the Public Defender.

Choy Foo, 139 Hawaii at 345, 389 P.3d at 940 (emphasis added)

(quoting Canencia, mem. op. at *2).          The ICA reiterated that its

conclusion that the twenty-one day period was excludable was

supported by “the recognition of a defendant’s fundamental right

to be represented by counsel and the inability of a court to

proceed to trial” found in Senteno and Canencia.             Id.

       The ICA decided, alternatively, that the waiver/demand

continuance was excludable under HRPP Rule 48(c)(8) as a

“period[] of delay for good cause.”          Id.   Noting that this court
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has said “the good cause provision ‘is provided to take care of

unanticipated circumstances’ and that good cause means ‘a

substantial reason that affords legal excuse,’” the ICA

analogized Choy Foo’s case to this court’s decision in Senteno.

Choy Foo, 139 Hawaii at 345-46, 389 P.3d at 940-41 (citing State

v. Abregano, 136 Hawaii 489, 497, 363 P.3d 838, 846 (2015)).

Although Choy Foo had never been represented by counsel and thus

his delay involved initial appointment of counsel, the ICA

reasoned that this situation was still like the delay caused by

withdrawal of counsel in Senteno, because “trial in both cases

‘could not proceed in the absence of trial counsel or a waiver

of counsel.’”     Choy Foo, 139 Hawaii at 346, 389 P.3d at 941

(citing Senteno, 69 Haw. at 368, 742 P.2d at 369)).

     Finally, the ICA was unpersuaded by Choy Foo’s argument

that the twenty-one day delay was a common occurrence in the

district court, and was therefore not an “unanticipated”

circumstance.     Choy Foo, 139 Hawaii at 346, 389 P.3d at 941.

The ICA determined that because the district court cannot know

in advance which defendants will appear without counsel at their

initial appearance, the district court cannot “address the

defendant’s need for representation by counsel until the

defendant appears in court.”        Id.    Thus, the ICA held that “Choy

Foo’s appearance without counsel was an unanticipated
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circumstance and that the twenty-one day delay to afford him the

opportunity to seek counsel through the Public Defender’s Office

was a period of delay for ‘good cause’ under HRPP Rule

48(c)(8).”      Id.

D.     Application for writ of certiorari and oral argument

       Choy Foo timely applied for writ of certiorari, raising a

single point of error:

              Whether the ICA gravely erred in holding that the twenty-
              one day period between Petitioner’s arraignment in District
              Court and the next hearing set sua sponte by the District
              Court to determine whether Petitioner would demand or waive
              his right to a jury trial was excludable under Hawaii Rules
              of Penal Procedure (HRPP) Rule 48(c)(1) and/or HRPP Rule
              48(c)(8).

       With respect to exclusion under HRPP 48(c)(1), Choy Foo

makes two distinct arguments:          (1) the waiver/demand hearing was

not a proceeding concerning the defendant that delayed trial;

and (2) the ICA erred in inferring that the purpose of the

twenty-one day period was to provide Choy Foo with an

opportunity to seek counsel, and reliance on that inferred

purpose resulted in an erroneous decision.             With respect to

exclusion under HRPP Rule 48(c)(8), Choy Foo argues that: (1)

the ICA erred in relying on inapplicable law to reach its

decision; and (2) that Choy Foo’s appearance without counsel at

arraignment was not an “unanticipated circumstance” that

amounted to “good cause” within the meaning of HRPP Rule

48(c)(8).
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       At oral argument, Choy Foo again stated that the

waiver/demand hearing is routinely set three weeks after

arraignment by the district court, even for defendants who are

already represented by counsel, and that the delay is routinely

included in HRPP Rule 48 calculation.            State v. Choy Foo, SCWC-

13-000636, Oral Argument, available at

http://www.courts.state.hi.us/oral-argument-before-the-supreme-

court-of-hawaii-no-scwc-13-0000636, at 5:05, 7:15, 7:25

(hereinafter “Oral Argument”).          Both parties again acknowledged

that the circuit court erred in dismissing the case with

prejudice without considering and explaining its application of

the Estencion factors.         Id. at 15:45, 35:45.

                          III. Standards of Review

A.     HRPP Rule 48 Dismissal

       The appellate court reviews a trial court’s decision on a

HRPP Rule 48 motion to dismiss under both the “clearly

erroneous” and “right/wrong” tests:

              A trial court’s findings of fact (FOFs) in deciding an HRPP
              48(b) motion to dismiss are subject to the clearly
              erroneous standard of review. An FOF is clearly erroneous
              when, despite evidence to support the finding, the
              appellate court is left with the definite and firm
              conviction that a mistake has been committed. However,
              whether those facts fall within HRPP 48(b)’s exclusionary
              provisions is a question of law, the determination of which
              is freely reviewable pursuant to the “right/wrong” test.

Samonte, 83 Hawaii at 514, 928 P.2d at 8 (quoting State v.

Hutch, 75 Haw. 307, 328-29, 861 P.2d 11, 22 (1993)).

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B.     Interpretation of Court Rules

       The interpretation of a court rule is reviewed de novo,

Sierra Club v. Dep’t of Transp., 120 Hawaii 181, 197, 202 P.3d

1226, 1242 (2009), and “[w]hen interpreting rules promulgated by

the court, principles of statutory construction apply.”                Gap v.

Puna Geothermal Venture, 106 Hawaii 325, 331, 104 P.3d 912, 918

(2004) (citation and internal quotation marks omitted).                This

court’s construction of statutes is guided by the following

rules:

              First, the fundamental starting point for statutory
              interpretation is the language of the statute itself.
              Second, where the statutory language is plain and
              unambiguous, our sole duty is to give effect to its plain
              and obvious meaning. Third, implicit in the task of
              statutory construction is our foremost obligation to
              ascertain and give effect to the intention of the
              legislature, which is to be obtained primarily from the
              language contained in the statute itself. Fourth, when
              there is doubt, doubleness of meaning, or indistinctiveness
              or uncertainty of an expression used in a statute, an
              ambiguity exists.

State v. Wheeler, 121 Hawaii 383, 390, 219 P.3d 1170, 1177

(2009) (quoting Citizens Against Reckless Dev. v. Zoning Bd. of

Appeals of the City & Cnty. of Honolulu, 114 Hawaii 184, 193,

159 P.3d 143, 152 (2007)).

                                IV. Discussion

       “HRPP [Rule] 48 is intended not only ‘to ensure speedy

trial for criminal defendants,’ . . . but also ‘to relieve

congestion in the trial court, to promptly process all cases

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reaching the courts[,] and to advance the efficiency of the

criminal justice process.’”         State v. Hoey, 77 Hawaii 17, 29,

881 P.2d 504, 516 (1994) (citing State v. Coyaso, 73 Haw. 352,

355, 833 P.2d 66, 68 (1992); Estencion, 63 Haw. at 268, 625 P.2d

at 1043).     To accomplish this end, HRPP Rule 48(b) requires the

court to dismiss the charge, upon the defendant’s motion, “if

trial is not commenced within 6 months” of a relevant triggering

date.7    Section (c) of HRPP Rule 48 provides eight categories of

delay that are to be excluded from calculating the time within

which trial must commence.8        In other words, all time periods are

counted in HRPP Rule 48 calculation unless excluded by

subsection (c).

      At issue here is HRPP Rule 48(c)(1), which excludes

“periods that delay the commencement of trial and are caused by

collateral or other proceedings concerning the defendant[.]”

When applying HRPP Rule 48(c)(1), the trial court’s two
7
      Specifically, HRPP Rule 48(b) begins its six month calculation as
follows:

             (1) from the date of arrest if bail is set or from the
             filing of the charge, whichever is sooner . . . or
             (2) from the date of re-arrest or re-filing of the charge,
             in cases where an initial charge was dismissed upon motion
             of the defendant; or
             (3) from the date of mistrial, order granting a new trial
             or remand, in cases where such events require a new trial.
8
      The text of HRPP Rule 48(c) states that it relates to “computing the
time for trial commencement.” However, in practice this language is more
accurately interpreted as “computing the time within which trial must
commence.”


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inquiries are: (1) whether the period actually delays the

commencement of trial;9 and (2) whether the period is “caused by

collateral or other proceedings concerning the defendant.”                For

a period to be excluded from calculation, both of these

inquiries must be answered in the affirmative.

       The record does not reflect whether the twenty-one day time

period at issue actually delayed the commencement of trial.10

The parties’ core dispute, and the focus of the ICA’s decision,

was instead whether the time period in question was caused by a

“collateral or other proceeding[] concerning the defendant”

within the meaning of HRPP Rule 48(c)(1), and whether the period

constituted “good cause” within the meaning of HRPP Rule

48(c)(8).      For the following reasons, we conclude that it was

neither.

A.     Exclusion was inappropriate under HRPP Rule 48(c)(1)

       The court’s interpretation of HRPP Rule 48 must begin with

the plain language of the rule.           See Wheeler, 121 Hawaii at 390,

219 P.3d at 1177.        Although HRPP Rule 48(c)(1) does not define


9
      This court has previously noted that “to be excludable under HRPP
[Rule] 48(c), a time period must actually delay a defendant’s trial.” Hoey,
77 Hawaii at 30, 881 P.2d at 517.
10
      Choy Foo’s trial was actually set several times within the 180-day
period: it was initially set for the week of July 23, 2012, continued three
times due to court congestion and twice at Choy Foo’s request, and then
eventually set for February 11, 2013 before being continued once more due to
court congestion.

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“collateral or other proceeding[] concerning the defendant,” it

does provide a list of examples of excludable periods,

“including but not limited to penal irresponsibility

examinations and periods during which the defendant is

incompetent to stand trial, pretrial motions, interlocutory

appeals and trials of other charges.”            Section (d) provides some

insight for the application of HRPP Rule 48(c)(1).               Subsection

(d)(1) lists motions that are deemed to create “periods of delay

resulting from collateral or other proceedings concerning the

defendant” and must be excluded from calculation.11              Conversely,

subsection (d)(2) lists periods attributable to specific motions
                                                                            12
or other court papers that must be included in calculation.


11
       HRPP Rule 48(d)(1) provides:

              For purposes of subsection (c)(1) of this rule, the period
              of time, from the filing through the prompt disposition of
              the following motions filed by a defendant, shall be deemed
              to be periods of delay resulting from collateral or other
              proceedings concerning the defendant: motions to dismiss,
              to suppress, for voluntariness hearing heard before trial,
              to sever counts or defendants, for disqualification of the
              prosecutor, for withdrawal of counsel including the time
              period for appointment of new counsel if so ordered, for
              mental examination, to continue trial, for transfer to the
              circuit court, for remand from the circuit court, for
              change of venue, to secure the attendance of a witness by a
              material witness order, and to secure the attendance of a
              witness from without the state.

(Emphases added).
12
       HRPP Rule 48(d)(2) provides:

              For purposes of subsection (c)(1) of this rule, the period
              of time, from the filing through the prompt disposition of
              the following motions or court papers, shall be deemed not
                                                                (continued. . .)
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Subsection (d)(3) provides that motions that do not fall within

(d)(1) or (d)(2) should be evaluated by the criteria of section

(c).13

       Continuances for the appointment of counsel or for

waiver/demand hearings are not identified as excludable periods

in HRPP Rule 48(c)(1) or (d)(1), and subsection (d)(2) does not

specifically include these periods.           Additionally, neither

appointment of counsel nor waiver/demand hearings fall within

any of the other section (c) categories that subsection (d)(3)

directs the court to consider.14



(continued. . .)
            to be excluded in computing the time for trial
            commencement: notice of alibi, requests/motions for
            discovery, and motions in limine, for voluntariness hearing
            heard at trial, for bail reduction, for release pending
            trial, for bill of particulars, to strike surplusage from
            the charge, for return of property, for discovery
            sanctions, for litigation expenses and for depositions.

(Emphases added).
13
       HRPP Rule 48(d)(3) provides: “The criteria provided in section (c)
shall be applied to motions that are not listed in subsections (d)(1) and
(d)(2) in determining whether the associated periods of time may be excluded
in computing the time for trial commencement.” (emphasis added).
14
   Section (c) also excludes time periods caused by the following:

              (2) . . . congestion of the trial docket when the
              congestion is attributable to exceptional circumstances;
              (3) . . .a continuance granted at the request or with the
              consent of the defendant or defendant’s counsel;
              (4) . . . a continuance granted at the request of the
              prosecutor [and]

              . . . .

              (5) the absence or unavailability of the defendant[.]

                                                                (continued. . .)
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     Subsection (d)(1) excludes the time period to resolve

motions “for withdrawal of counsel including the time period for

appointment of new counsel if so ordered.”            The ICA reasoned

that appointment of new counsel should be treated like motions

for withdrawal of counsel under subsection (d)(1), and therefore

be excludable under HRPP Rule 48(c)(1), as they both “ensure

that a defendant . . . is represented by and has the assistance

of counsel.”      Choy Foo, 139 Hawai‘i at 344, 389 P.3d at 939.

However, withdrawal of existing counsel and initial appointment

of counsel are procedurally quite different.            First, as

explicitly provided in HRPP Rule 48(d)(1), the exclusion for

withdrawal of counsel is based on the filing of a motion.

Second, subsection (d)(1) specifically excludes the time from

filing of the withdrawal motion to disposition of the motion,

which means the that the time from filing of the motion to

appointment of substitute counsel is excluded.             In contrast, the

initial appointment of counsel is largely a ministerial act,

done with little court involvement, let alone the filing of a

motion.     See HRS § 802-4 (1974) (permitting public defenders to


(continued. . .)
HRPP Rule 48(c)(2)-(5)(emphasis added). Subsection (c)(6) excludes “the
period between a dismissal of the charge by the prosecutor to the time of
arrest or filing of a new charge[,]” and subsection (c)(7) excludes “a
reasonable period of delay when the defendant is joined for trial with a
codefendant[.]” “[O]ther periods of delay for good cause” are excluded under
HRPP Rule 48(c)(8) but, for the reasons discussed below, exclusion based on
this category is also inappropriate here.

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make indigence determinations, subject to court review, unless

the court orders otherwise); HRS § 802-5 (2015) (providing for

the court to appoint counsel for indigent defendants).

     Furthermore, the canon of construction expressio unius est

exclusio alterius holds that “to express or include one thing

implies the exclusion of the other, or of the alternative.”

Black’s Law Dictionary (10th ed. 2014).           Indeed, “the contrast

between a specific subject matter which is expressed and one

which is not mentioned leads to an inference that the latter was

not intended to be included within the statute.”             Int’l Sav. and

Loan Ass’n v. Wiig, 82 Hawaii 197, 201, 921 P.2d 117, 121

(1996).     The fact that initial appointment of counsel was not

placed among the examples of “collateral or other proceedings”

in subsections (c)(1) or (d)(1) suggests that it was not

intended to be treated like the items on those lists.

     Additionally, as noted, subsections (d)(1), (d)(2), and

(d)(3) all explicitly relate to time periods created by the

filing of motions.       Specifically, HRPP Rule 48(d)(1) pertains to

time periods “from the filing through the prompt disposition of

. . . motions filed by a defendant,” subsection (d)(2) concerns

periods related to “motions or court papers,” and subsection

(d)(3) applies to “motions that are not listed in subsections

(d)(1) and (d)(2)[.]”        All motions that are excluded by

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subsection (d)(1) and included by subsection (d)(2) require

disposition by the court.       The automatic continuance for a

waiver/demand hearing is not initiated by a motion.             The time

period at issue here was generated by the district court’s

choice to set a hearing.       Whether that hearing was for

waiver/demand or for appointment of counsel, or both, the time

period it created does not fall within the plain language of

HRPP Rule 48(c)(1).      This plain language conclusion is

undergirded by several additional considerations.

     First, HRPP Rule 48 is clear:         if a time period is not

excluded from calculation by the rule, it is included in the

calculation.     Time periods for waiver/demand hearings or for

appointment of counsel are not excluded by the rule, therefore

those periods are included in calculating the time within which

trial must commence.      Even if HRPP Rule 48 were ambiguous with

respect to its excludable time periods, the rule of lenity would

require us to construe it strictly, and in favor of the

defendant.    See State v. Jing Hua Xiao, 123 Hawai‘i 251, 262, 231

P.3d 968, 979 (2010) (“[W]here a criminal statute is susceptible

of more than one construction, the narrower or stricter

construction should be adopted pursuant to the rule of lenity.”)

(citing State v. Bayly, 118 Hawai‘i 1, 15, 185 P.3d 186, 200

(2008)).

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     Second, we note that the district court appears to apply

its waiver/demand hearing practice to all defendants, whether

they have counsel or not.       This practice, implemented by the

district court without the request of the parties, and applied

uniformly without taking into consideration the needs of each

case, does not “concern” any particular defendant, let alone

“the defendant” to whom Rule 48 refers.          See HRPP Rule 48(c)(1)

(excluding from calculation “periods that delay the commencement

of trial and are caused by collateral or other proceedings

concerning the defendant[.]”) (emphasis added).            Rather, the

waiver/demand hearing continuance “concerns” the efficiency of

the district court calendar, as described below, rather than the

particularities of any defendant’s case.

     Third, in this regard, the district court’s continuance of

the waiver/demand hearing appears to be a practice developed to

avoid the possible procedural inefficiencies that would result

from the requirements of HRPP Rule 5 and HRS § 604-8.             Under HRS

§ 604-8(a) (2001), the district court loses jurisdiction over a

misdemeanor case once the defendant demands a jury trial, but

retains jurisdiction if the defendant does not make a jury

demand “on the date of arraignment or within ten days

thereafter.”     HRPP Rule 5(b)(3) further specifies that if the

defendant does not waive the right to a jury trial “at or before

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the time of entry of a plea of not guilty,” the district court

must “commit the defendant to the circuit court for trial by

jury.”     However, if the defendant waives the right to a jury

trial at the circuit court, the case may be remanded to the

district court.       HRPP Rule 5(b)(3)(iii).       In any event, neither

court may proceed with the case until the waiver/demand decision

is made.15     The waiver/demand hearing is therefore a practical

way for the district court to address a process that is unique

to misdemeanor cases.         It would be unfair to defendants to

exclude the time for a hearing set by the district court as part

of its responsibilities under the HRPP and the HRS.               And,

indeed, it is the district court’s standard practice to include

this waiver/demand hearing time in calculating when the trial

must commence.

              Fourth, at oral argument, the State did not dispute

Choy Foo’s representation that it is a regular practice to

include the three-week continuance for a waiver/demand hearing

in the HRPP Rule 48 calculation.             In other words, the trial

courts already factor in the 21 day continuance for a

waiver/demand hearing in the time period within which a

15
      We agree with the Dissent that waiver or demand of the defendant’s
right to a jury trial is a “critical stage” at which the defendant is
entitled to have counsel. Dissent at I.B.1. However, we respectfully
maintain that the defendant’s right to an attorney should not come at the
expense of his or her HRPP Rule 48 rights.


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misdemeanor defendant’s trial must commence.             Therefore, our

ruling merely comports with the status quo, and would not create

new problems, as theorized by the Dissent.             Dissent at Section

I.B.2.     In addition, our decision does not prolong the time

period to bring a misdemeanor defendant to trial, in contrast

with the ICA and Dissent’s position, which contravenes an

important purpose of Rule 48:          to ensure speedy trial for

defendants in criminal cases.

       Fifth, and finally, if the district court’s regular three

week continuances were truly created to allow defendants to

exercise their right to counsel, those continuances would be

unjustified for defendants who already have counsel at

arraignment.       Further, it would be particularly unfair to

indigent defendants for the court to exclude this period when it

coincides with their referral to the public defender’s office to

exercise their right to appointment of counsel provided by

statutory and constitutional law.16           If a defendant later appears

without counsel, for whatever reason, that time may be properly


16
      The court is required to refer an indigent person without counsel to
the public defender’s office. Haw. Const. art. I, § 14 (“The State shall
provide counsel for an indigent defendant charged with an offense punishable
by imprisonment.”); HRS § 802-1 (2015) (providing that all indigent people
faced with potential imprisonment are entitled to be represented by a public
defender); HRS § 802-2 (1985) (requiring the court to advise all defendants
in criminal cases who appear without counsel that they have a right to
counsel and that counsel may be appointed at no cost to them if they cannot
afford counsel).


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excluded under HRPP Rule 48(c)(3) if a continuance is granted at

the defendant’s request.         However, an initial referral to the

public defender is an indigent defendant’s statutory and

constitutional right that should not be afforded to them at the

expense of their HRPP Rule 48 rights.

       Consequently, we conclude that the twenty-one day period

caused by the waiver/demand hearing was not excludable under

HRPP Rule 48(c)(1).17

B.     Exclusion was also inappropriate under HRPP Rule 48(c)(8)

       HRPP Rule 48(c)(8) provides, in relevant part, that “other

periods of delay for good cause” shall be excluded from trial

commencement calculation.         This court has defined “good cause”

to mean “a substantial reason which affords a legal excuse,”

Senteno, 69 Haw. at 368, 742 P.2d at 373 (citing Estencion, 63

Haw. at 267, 625 P.2d at 1042), and has held that the good cause

provision “is provided to take care of unanticipated

circumstances,” State v. Gillis, 63 Haw. 285, 288, 626 P.2d 190,

192 (1981).      Additionally, “a period is excludable as good cause


17
      We also note that to the extent that Canencia holds “a period of time
in which the defendant is not represented by counsel is an excludable
period,” it is overruled. The text of HRPP Rule 48 does not support so broad
a rule, and to hold otherwise would produce anomalous results. See
Keliipuleole v. Wilson, 85 Hawaii 217, 221-22, 941 P.2d 300, 304-05 (1997)
(“A rational, sensible and practicable interpretation [of a statute] is
preferred to one which is unreasonable or impracticable” (alterations in
original) (quoting State v. Lobendahn, 71 Haw. 111, 112, 784 P.2d 872, 873
(1989)).


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under HRPP Rule 48(c)(8) if the events causing the delay are

unanticipated and not reasonably foreseeable.”              Abregano, 136

Hawaii at 498, 363 P.3d at 847.          Most importantly, this court

has said that “[w]hether a period of time is excludable as ‘good

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

each case.”      136 Hawaii at 498–99, 363 P.3d at 847–48 (citation

omitted).

       As an alternate basis for its ruling in this case, the ICA

concluded that the twenty-one day time period was excludable for

good cause because the district court cannot anticipate whether

a defendant will have counsel or will need counsel appointed for

them until his or her first appearance in court.18              Choy Foo, 139

Hawaii at 346, 389 P.3d at 941.          Respectfully, we disagree.

Although the district court faces uncertainty with respect to

individual defendants, it is “reasonably foreseeable” that many

defendants will make their initial appearance in district court

without an attorney.        The district court can also foresee that

indigent defendants will not already be represented by a private

attorney, and cannot be represented by a public defender at

their initial appearance: it is the district court itself that

issues a referral to the public defender’s office.

18
      The record indicates, however, that the district court continues cases
for waiver/demand hearings even when defendants make their first appearance
already represented by counsel.

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       With respect to Choy Foo, the fact that he appeared without

counsel at his first appearance was not unanticipated or

reasonably unforeseeable, and therefore does not constitute

“good cause” within the meaning of HRPP 48(c)(8).

C.     Application of Estencion Factors

       The State argued, and Choy Foo conceded, that the circuit

court erred in failing to evaluate and apply the Estencion

factors before dismissing this case with prejudice.               See Hern,

133 Hawaii at 64, 323 P.3d at 1246 (holding that “in determining

whether to dismiss a charge with or without prejudice under HRPP

Rule 48(b), the trial court must not only consider the Estencion

factors, but must also clearly articulate the effect of the

Estencion factors and any other factor it considered in

rendering its decision.”).          Although a party’s concession of

error is not binding on this court, we conclude that it is well-

founded in this case.         See State v. Eduwensuyi, 141 Hawaii 328,

___, 409 P.3d 732, 737 (January 18, 2018) (citing Territory v.

Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945) (holding that a

prosecutor’s concession of error is entitled to “great weight,”

but is not binding upon the appellate court)).

       Accordingly, we remand the case to the circuit court for

application of the Estencion factors and articulation of

necessary findings.        The factors the circuit court must consider

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include, but are not limited to: “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.”     63 Haw. at 269, 625 P.2d at 1044 (citation omitted);

see also State v. Fukuoka, 141 Hawai‘i 48, 404 P.3d 314 (2017)

(considering the principles applicable to the Estencion factors

that guide a trial court in exercising its discretion to dismiss

a case with or without prejudice for a violation of HRPP Rule

48).

                                V. Conclusion

       The foregoing analysis is intended to clarify the

application of HRPP Rule 48 to the district court’s practice in

setting waiver/demand hearings for misdemeanor defendants.               When

the district court initiallly sets a misdemeanor case for

waiver/demand hearing or continues arraignment for a waiver or

demand of jury trial, this time period is not excludable from

HRPP Rule 48 calculation under either subsection (c)(1) or

(c)(8).     The circuit court did not err in dismissing this case

for violation of HRPP Rule 48; however, the case must be

remanded for proper consideration and application of the

Estencion factors as to whether the dismissal should have been

with or without prejudice.

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     We therefore vacate the ICA’s February 14, 2017 Judgment on

Appeal and the circuit court’s April 5, 2013 “Order Granting

Defendant’s Motion to Dismiss Charges for Violation of HRPP Rule

48” to the extent it dismissed the charge against Choy Foo with

prejudice and remand this case to the circuit court for further

proceedings consistent with this opinion.

Audrey L. Stanley                   /s/ Sabrina S. McKenna
for petitioner
                                    /s/ Richard W. Pollack
Brian R. Vincent
for respondent                      /s/ Michael D. Wilson




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