by Anthony Accurso
The Supreme Court of Hawai’i held that a defendant’s time spent in the custody of the State, though he was in a mainland prison in Arizona, did not make him “unavailable” for trial.
Charly Hernane was charged with the second-degree murder of his mother, Teresita Dumalan Hernane, after she was found dead in her home on May 11, 2011. Though initially convicted and sentenced to life without parole, Hernane’s conviction was vacated on appeal for prosecutorial misconduct. On March 23, 2016 the Supreme Court of Hawai’i denied certiorari.
This denial began the 180-day time limit for prosecution mandated by HRPP Rule 48.
On April 13, the prosecutor’s office began the process of having him transported from the prison in Arizona where he had been serving his time pending the outcome of his appeal.
The Department of Public Safety of Hawai’i (“DPS”), a state agency, transported him back on July 19, 2016 supposedly the earliest date that it could move him. After several continuances and hearings on Hernane’s fitness to stand trial, the trial was set to begin on February 5, 2018.
On that day, Hernane moved to dismiss the charges because it was 181 days after the Supreme Court denied certiorari, not counting continuances and delays requested by the defendant.
Importantly, this included the 188 days that Hernane was in state custody on the mainland. The court denied his motion on the grounds that the prosecutor’s office had exercised due diligence in returning him.
Hernane was convicted again, though this time of the lesser-included charge of manslaughter. The Supreme Court of Hawai’i granted his appeal on the denial of the Rule 48 motion.
Rule 48 requires the State to bring a defendant to trial within six months of being charged for a crime. HRPP Rule 48(b). This means 180 days under State v. Hoey, 881 P.2d 504 (Haw. 1994). HRPP Rile 48(c)(5) states “The following periods shall be excluded in computing the time for trial commencement: periods that delay the commencement of trial and are caused by the absence or unavailability of the defendant.” The decision of the Court turned on whether Hernane was “unavailable” because the State’s DPS could, or would, not move him back to the state until July 19, 2016.
The Intermediate Court of Appeals upheld the circuit court’s denial of the Rule 48 motion by adopting the definition of “unavailable” from the Federal Speedy Trial Act, 18 U.S.C. § 3161(h)(3)(b) (1979): “a defendant ... shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence.”
Court rulings from other jurisdictions generally defined “unavailable” as when a defendant “voluntarily absented” themselves from the state or resists being returned to the state. That’s also the position of the American Bar Association. American Bar Association Standards for Criminal Justice Relating to Speedy Trial, Standard 12-2.3(e) (Supp. 1986).
Here, Hernane was in the custody of the Hawai’i DPS. “The State knew where he was and had control over his location,” and ‘‘he did not resist being returned to the state for trial,” the Court observed. Thus, “no due diligence inquiry [was] necessary because the State had the sole responsibility for transporting the defendant.”
Accordingly, the Court vacated Hernane’s conviction and ordered the circuit court to grant his motion for dismissal under HRPP Rule 48. See: State v. Hernane, 454 P.3d 385 (Haw. 2019).
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Related legal case
State v. Hernane
|Cite||454 P.3d 385 (Haw. 2019)|
|Level||State Supreme Court|