The Prosecution is on the Hook to Bring You Back from the Mainland for Trial


State v. Hernane (HSC December 12, 2019)
Background. Charly Hernane was indicted for murdering his mother, found guilty by a jury, sentenced to prison for life, and appealed. The ICA vacated the judgment and remanded the case for a new trial. The prosecution applied for a writ of certiorari, but the HSC rejected its application on March 23, 2016.

On remand, the circuit court presided by Hon. Judge Rom A. Trader held a pretrial conference in April. Hernane was being held in a private prison in Arizona. At another pretrial conference on May 3, 2016, Hernane was still not present and counsel informed the court that he was still in Arizona. The prosecution informed the circuit court that it requested the Department of Public Safety to transport Hernane back to Honolulu, but that would not happen until July. Over Hernane’s objection, the circuit court set trial to begin on August 1, 2016. Hernane came back to Hawaii on July 19, 2016—118 days after the prosecution’s writ of certiorari was rejected. On July 22, 2016, Hernane requested to continue trial. It was continued several times after that.

Then, on February 5, 2018—the day of his scheduled trial, Hernane filed a motion to dismiss the indictment for violation of Hawaii Rules of Penal Procedure (HRPP) Rule 48. He argued that more than 180 unexcluded days had passed from the rejection of the prosecution’s application for a writ of certiorari. The critical period was from March 23, 2016 to July 22, 2016, the day of his first request to continue. The prosecution objected on the grounds that that time period was excluded because he was unavailable and imprisoned in Arizona.

At an evidentiary hearing, the prosecution called a paralegal working at the Honolulu prosecutor’s office. The paralegal testified that she duly emailed the Department of Public Safety’s contact person to bring over Hernane and that the prosecutor’s office has no say when someone is brought back. The circuit court denied the motion. Hernane went to trial and was found guilty of manslaughter. He was sentenced to prison for twenty years. He appealed again and the ICA—Chief Judge Lisa Ginoza, Judge Alexa Fujise, and Judge Keith Hiraoka—affirmed. He petitioned to the HSC.

The Rule 48 Conundrum. “[T]he court shall, on motion of the defendant, dismiss the charge . . . if trial is not commenced within 6 months . . . from the date of . . . order granting . . . a remand, in cases where such events require a new trial.” HRPP Rule 48(b)(3). Six months means 180 days. State v. Hoey, 77 Hawaii 17, 28, 881 P.22d 504, 514 (1994). But some periods of delay are excluded from the 180-day period. “[P]eriods that delay the commencement of trial and are caused by the absence or unavailability of the defendant” are excluded. HRPP Rule 48(c)(5).

It is undisputed that the 180-day clock began on the day the HSC rejected the prosecution’s application for writ of certiorari, March 23, 2016. The critical inquiry in this case is whether the 180-day clock runs from March 23, 2016 to July 18—the period of time in which Hernane was held in custody at an Arizona prison by the State.

A Narrow Holding and a Difficult Double Negative. The HSC began by noting the phrase “unavailability of the defendant’ in HRPP Rule 48(c)(5) is undefined. It ultimately held that a defendant is not “unavailable,” and therefore the 180-day clock still runs, when the defendant remains in Hawaii State custody and has not prevented his or her transportation to court.

In doing so, the HSC distinguished Hernane’s case from State v. Willoughby, 83 Hawaii 496, 927 P.2d 1379 (App. 1996), where a delay of 1,089 days from the indictment to service of the warrant on the mainland was excluded from the 180 days because the defendant actually caused the delay. It also distinguished the case from State v. Jackson, 8 Haw. App. 624, 817 P.2d 130 (1991), where the delay was caused by the fact that the defendant was held in custody by the federal government—and not the State. The HSC held that in this case, Hernane was held by the State of Hawaii, the same party that was going to prosecute him. That meant that the delay was not excluded from the 180 days.

Prosecutors Gotta Learn how to Transport the Accused. In a footnote, the HSC rejected the circuit court’s generous rationale that the Honolulu prosecutor’s office has “no control” over the Department of Public Safety. It noted that county prosecutors are delegated the power to prosecute from the Attorney General of the State. Ruggles v. Yagong, 135 Hawaii 441, 418, 353 P.3d 953, 960 (2015). They are agents of the State of Hawaii and must carry out the responsibilities of the State. The fact that the county prosecutor has little control over the Department of Public Safety is irrelevant. In other words, prosecutors—not the defense—are on the hook to get the accused back to the islands.

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