The Delay Caused by Getting a Public Defender is not Excluded Under Rule 48

State v. Choy Foo (HSC March 16, 2018)

Background. Quincy Choy Foo III was charged with sexual assault in the fourth degree. At his initial appearance Choy Foo appeared without a lawyer. The prosecutor handed him a complaint and the judge continued the case for three weeks. The judge referred Choy Foo to the Office of the Public Defender and told him to “call them right away for an appointment.” At the next hearing, Choy Foo appeared without a lawyer and informed the court that the public defender’s office told him to request a continuance. He said he made an appointment. The court continued the matter after the date of the scheduled appointment. At the third appearance, Choy Foo appeared still without a lawyer. He was told to request another continuance because the office was in training and had to reschedule. The continuance was granted. At the next hearing, Choy Foo was represented by a public defender.

Choy Foo moved to dismiss for violating his right to a speedy trial and in violation of HRPP Rule 48. The prosecution opposed. The key issue came down to the initial continuance—when Choy Foo first appeared alone and was told to go to the public defender’s office. The court ruled that this time was not waived or excluded under HRPP Rule 48 and dismissed the complaint with prejudice. The prosecution appealed. The ICA ruled that the 21 days were excluded, vacated the dismissal order and remanded. Choy Foo petitioned to the HSC.

HRPP Rule 48: the Basics. HRPP Rule 48 is designed to “ensure speedy trial for criminal defendants . . . [and] relieve congestion in the trial court, to promptly process all cases reaching the courts and to advance the efficiency of the criminal justice process.” State v. Hoey, 77 Hawaii 7, 29, 881 P.2d 504, 516 (1994). HRPP Rule 48(b) requires dismissal of the charges “if trial is not commenced within 6 months” of a relevant triggering date—such as “the date of arrest if bail is set or the filing of the charge, whichever is sooner.” HRPP Rule 48(b)(1).

Certain periods of time may be excluded. “[P]eriods that delay the commencement of trial and are caused by collateral or other proceedings concerning the defendant” are excluded. HRPP Rule 48(c)(1). This is a two-part analysis: (1) the period of delay must actually delay commencement of trial, State v. Hoey, 77 Hawaii at 30, 881 P.2d at 517; and (2) the period is “caused by collateral or other proceedings concerning the defendant.”

The Delay in Getting a Lawyer is not Excludable as a “Collateral or Other Proceeding.” The HSC focused on the second prong—if the 21-day delay in first contacting the public defender—was a “collateral or other proceeding.” The HSC held it was not and, therefore, not excluded to the 6-month calculation.

The HSC reasoned that even though the term “collateral or other proceedings” is not defined by the rule, the other enumerated exclusions—penal irresponsibility examinations, periods of defendant’s incompetency, pretrial motions, interlocutory appeals, and trials of other charges—do not come close to Choy Foo’s period of delay. The HSC rejected the ICA’s reasoning that while delays caused by a motion to withdraw as counsel may be excluded, a delay caused by the “initial appointment of counsel” is ministerial and does not involve the court.

No “Good Cause” Shown. A delay is also excluded if there is “good cause.” HRPP Rule 48(c)(8). A “good cause” is “a substantial reason which affords a legal excuse.” State v. Senteno, 69 Haw. 363, 368, 742 P.2d 369, 373 (1987). It also is designed to “take care of unanticipated circumstances,” State v. Gillis, 63 Haw. 285, 288, 626 P.2d 190, 192 (1981), that are “not reasonably foreseeable.” State v. Abregano, 136 Hawaii 489, 498, 363 P.3d 868, 847 (2015). The HSC held that it is reasonably foreseeable that many defendants will appear in the district court without a lawyer. The fact that Choy Foo appeared without a lawyer is reasonably foreseeable and thus not excluded under the good-cause provision.

The Remedy: Dismissal with or Without? The HSC remanded the case to the lower court to determine if the dismissal should be with or without prejudice. It was mindful that this question must take into account the factors laid out in State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981).

Justice Nakayama’s Dissent. Justice Nakayama took issue with the analysis that the delay was not a “collateral or other proceeding” under HRPP Rule 48(c)(1). Under her interpretation of the rules, the delay in getting a lawyer (without a motion) fell within the ambit of HRPP Rule 48(c)(1). Chief Justice Recktenwald joined.