Friday, April 5, 2013

How to Dismiss With (or Without) Prejudice


State v. Hern & State v. Ledbetter (ICA March 27, 2013)
Background. In January, Dennis Hern was charged with driving under the influence of an intoxicant. Hern filed a series of pretrial motions including a motion to compel discovery and a motion to dismiss for lack of jurisdiction. At a hearing, the motion to compel was granted and the motion to dismiss was denied. In August, Hern filed a motion to dismiss for violation of speedy trial rights and a violation of HRPP Rule 48. The district court found a rule 48 violation and dismissed the case without prejudice. Hern moved to reconsider the dismissal without prejudice.

Joseph Ledbetter was also charged with DUI. Ledbetter filed four motions to compel discovery. At a hearing before the district court, the prosecution said it was ready for trial. Ledbetter said he had not received discovery. The trial was continue with time charged against the prosecution. At a hearing nearly two months later, the prosecution served Ledbetter with a memorandum in opposition to the motions to compel. The district court denied the motions and set the case for trial. Ledbetter moved to dismiss the case for violation of speedy trial and HRPP Rule 48. At trial call, the prosecution was not ready because two officers were sick and opposed the motion o dismiss. The district court, without explaining why, granted the motion and dismissed the case without prejudice. The prosecution appealed both cases and they were consolidated into one appeal.

HRPP Rule 48 and the Difference Between DWIPing or DWOPing. “Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within six months . . . from the date of arrest if bail is set or from the filing of the charge, whichever is sooner[.]” HRPP Rule 48(b)(1). The rule does not provide any guidance as to how the court is to exercise its discretion in dismissing the case with or without prejudice.

In State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), the HSC looked to a piece of federal legislation, the Speedy Trial Act, and adopted its three factors:

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 circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [HRPP Rule 48] and on the administration of justice. 
Id. at 269, 625 P.2d at 1044 (quoting 18 U.S.C. § 3162(a)(2)). In addition to these factors, the court may consider if the defendant was prejudiced by the Rule 48 violation. State v. Coyaso, 73 Haw. 352, 358, 833 P.2d 66, 69 (1992); State v. Kim, 109 Hawaii 59, 66, 122 P.3d 1157, 1164 (App. 2005).


The Court must make an on-the-Record Explanation for its Decision. The SCOTUS interpreted the Speedy Trial Act in United States v. Taylor, 487 U.S. 326 (1988). There, it held that because Congress required the “consideration” of the three factors, the trial court “must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. Only then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy, thereby failing to act within in the limits prescribed by Congress.” Id. at 336-37.

According to the ICA, because the HSC adopted the factors from the Speedy Trial Act in considering dismissals for Rule 48 violations, the Taylor rule should apply and not only must the trial court consider the factors, it “must also clearly articulate the effect of the Estencion factors and any other factor it considered in rendering its decision.

. . . but not Always. Then again, express findings and explanations may not be required all the time. The ICA also noted that even if the trial court’s findings are deficient, “where the record is sufficient for the appellate court to make a determination of whether the trial court abused its discretion, the appellate court may elect, at its option, to resolve the appeal on the merits.” See United States v. Robinson, 389 F.3d 582, 587-89 (6th Cir. 2004). Nonetheless, the ICA further noted that when the record shows that the trial court failed to consider the Estencion factors, where the record is unable to allow meaningful appellate review of the court’s discretion in dismissing the case, or if the trial court’s findings are so lacking and the appellate court simply does not want to “assume the burden of conducting a searching review of the record,” the appellate court will remand the case back to the trial court to make appropriate findings.

Applying the new Rule. For Hern, the district court dismissed the case without prejudice simply because it was the “typical practice of Rule 48” violations. This is an affirmative failure to consider the Estencion factors and reliance on a practice or policy instead. “Discretionary action must be exercised on a case-by-case basis, not by any inflexible blanket policy[.]” State v. Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975). As for Ledbetter, there was no explanation for dismissing without prejudice. The ICA reviewed the record and held that there was not enough in it to determine if the district court properly exercised its discretion in dismissing the case without prejudice. And so the ICA vacated both judgments with instructions on remand to consider the Estencion factors, and “make findings that clearly articulate the effect” of those factors or any other factors it considered.

A Massive Implication for Reviewing Consideration of Legislatively-Mandated Sentencing Factors. The adoption of the Taylor rule is logically sound. If the rule requires consideration of factors, then the court would abuse its discretion in failing to consider the factors. That means that if the court fails to show consideration of the factors, the appellate court cannot review the trial court’s discretion in a meaningful way and it should vacate and remand. Sounds simple enough.

But this is analogous to something much bigger than a Rule 48 violation. Our legislature, like Congress, has directed sentencing courts to consider a bevy of factors in determining whether to place a defendant on probation, HRS § 706-621, and in imposing any kind of sentence. HRS § 706-606. The HSC has held that a clear and express finding and consideration of these factors are not required and if there is no evidence to the contrary, the sentencing court is presumed to have considered these legislatively-mandated factors before imposing a sentence. State v. Sinagoga, 81 Hawaii 421, 918 P.2d 228 (1996); State v. Gaylord, 78 Hawaii 127, 890 P.2d 1167 (1995). It would seem that this case and Taylor stand in sharp contrast to this presumption. Moreover, it would also seem that the tide has turned against the presumption in light of State v. Hussein, 122 Hawaii 495, 229 P.3d 313 (2010). Perhaps the time has come for reconsideration of the presumption.

A Battle of the Factors. The defendants argued that the six factors set out in State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705, 712-13 (1982), applied. The ICA disagreed and noted that the Estencion factors were expressly fashioned and adopted for determining Rule 48 motions and it is controlling. This raises an interesting question. Is this intricate three-factor analysis and the collateral rule requiring an express finding on the record limited to Rule 48 violations? It would seem so. That means that the question of whether to dismiss a case with or without prejudice depends on the reason for the dismissal in the first place. And that would make sense.

For example, the Estencion factors would not seem to apply to a dismissal based on multiple mistrials. That was the reason for the dismissal in Moriwake and the factors there take that into consideration. The factors require the court to consider the similar evidence that would be presented in a retrial and the likelihood of anything different in the retrial. But on the other hand, Moriwake came out after Estencion. Has Moriwake superseded the earlier case without expressly overruling it? The ICA did not discuss why that was not the case.

A New Frontier in Appellate Litigation? So what are the factors when a case should be dismissed for lack of probable cause underlying an indictment, judicial determination of p. c., or felony information? How should a trial court consider a dismissal based on prosecutorial misconduct? If the kinds of factors depend on the kind of dismissal, then we are in need of a lot of guidance for the many different ways in which a case can get bounced. It opens up a world of possibilities.

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