NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-MAY-2022
07:46 AM
Dkt. 86 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RIAN TIMOTHY SHANNON, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
EWA DIVISION
(CASE NO. 1DTA-16-01638)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Rian Timothy Shannon appeals from
the Second Amended Notice of Entry of Judgment and/or Order and
Plea/Judgment (Second Amended Judgment) entered by the District
Court of the First Circuit, #Ewa Division on August 27, 2019.1
For the reasons explained below, we vacate the Second Amended
Judgment and remand for further proceedings.
After a district court bench trial, Shannon was found
guilty of Operating a Vehicle Under the Influence of an
Intoxicant, in violation of Hawaii Revised Statutes (HRS) § 291E-
61(a)(1). He appealed, asserting (among other things) that the
district court erred by denying his motion to dismiss under
Rule 48 of the Hawai#i Rules of Penal Procedure (HRPP). We
vacated and remanded for entry of findings of fact and
1
The Honorable James C. McWhinnie presided.
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conclusions of law. State v. Shannon, Nos. CAAP-XX-XXXXXXX,
CAAP-XX-XXXXXXX (consolidated), 2019 WL 1552055 (Haw. App.
Apr. 10, 2019) (Shannon I).
On remand, the district court entered its "Findings of
Fact, Conclusions of Law and Order Denying Defendant's
November 29, 2016, Motion to Dismiss for Rule 48 Violation" and
the Second Amended Judgment on August 27, 2019. This appeal
followed.
Rule 48(b)(1) allows a defendant to move to dismiss the
charges against them if trial is not commenced within six months
— construed as 180 days, State v. Hutch, 75 Haw. 307, 330,
861
P.2d 11, 23 (1993) — from the date of arrest if bail is set.
Id.
at 313,
861 P.2d at 22. Rule 48(c) mandates that the court
exclude certain time periods from its computation in determining
whether the one hundred eighty days have run.
Id. at 330-331,
861 P.2d at 23. A trial court's findings of fact in deciding a
Rule 48 motion to dismiss are subject to the clearly erroneous
standard of review.
Id. at 328,
861 P.2d at 22. However,
whether those facts fall within one of Rule 48(c)'s exclusionary
provisions is a question of law, which is freely reviewable under
the right/wrong test.
Id. at 329,
861 P.2d at 22.
The State's answering brief concedes that it "cannot in
good faith contest [Shannon]'s assertion that '[t]he motion[] to
dismiss for violation of HRPP Rule 48 [was] clearly decided
erroneously and the case must be remanded for a dismissal[.]'"
However, "[i]n 'confession of error' cases where the prosecution
'admits' to error, . . . before a conviction is reversed, it is
incumbent on the appellate court first to ascertain that the
confession of error is supported by the record and well-founded
in law and second to determine that such error is properly
preserved and prejudicial." State v. Hoang, 93 Hawai#i 333, 336,
3 P.3d 499, 502 (2000) (cleaned up). The record indicates that
the State's concession was well-founded, and the district court
erred in denying Shannon's Rule 48 motion to dismiss.
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Shannon was arrested and posted bail on April 9, 2016.
He was arraigned on May 10, 2016, and trial was set for June 14,
2016. The time from Shannon's arrest to his original trial date
was 65 days, not including the one-day arraignment continuance he
requested. HRPP Rule 48(c)(3).
Shannon requested a trial continuance from June 14,
2016 to July 12, 2016; this 28-day period is not included in the
Rule 48 180-day limit. HRPP Rule 48(c)(3).
Shannon's case was called for trial on July 12, 2016.
Shannon challenges the district court's finding of fact nos. 9
and 19:
9. July 12, 2016, the State was ready to proceed to trial
and the hearing on the State's Motion for Protective
Order was continued to allow the Defendant to file a
memorandum in opposition to said Motion. Because
Defendant's counsel stated he was not available on
either July 19, August 2 or August 9, but he would be
available on August 16, 2016, the hearing was
continued to August 16, 2016, at Defendant's counsel's
request.
. . . .
19. Therefore, the court finds that Defendant requested
continuances . . . on July 12, 2016, of twenty-eight
(28) days[.]
(emphasis added). It is not clear from the record how the
district court calculated the 28-day period; 28 days from
July 12, 2016, is August 9, 2016, and the record does not reflect
anything happening on August 9, 2016. The period at issue —
July 12, 2016 to August 16, 2016, is actually 35 days.
The State's motion for protective order had been filed
on May 27, 2016. The first page of the motion lists a hearing
date of June 7, 2016. But the district court docket contains no
record of the case being called for a hearing on June 7, 2016, or
of a June 7, 2016 hearing on a motion for protective order being
continued. The transcript of proceedings on July 12, 2016,
indicates confusion over the status of the State's motion:
THE COURT: Did you file your memo in op?
Usually --
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[DEFENSE COUNSEL]: Usually I do. And the reason I
didn't -- let me see.
Did I?
Hold on.
Ah. Okay.
So is the government's protective order on today's
calendar?
THE COURT: It looks like (indiscernible).
[DEFENSE COUNSEL]: But if it doesn't have a --
THE COURT: Well, on June 14 [sic] it was set for
hearing, but then it was continued to today (indiscernible).
[DEFENSE COUNSEL]: If the government's motion did not
contain a notice of hearing, why is it set at all?
THE COURT: It was set originally June 14 [sic].
[DEFENSE COUNSEL]: With a notice of hearing?
THE COURT: Well, this -- this has a notice of hearing.
I'm not sure --
[DEFENSE COUNSEL]: What has a notice of hearing?
THE COURT: Actually, it just has a notification of the
hearing date. It doesn't have a separate document.
[DEFENSE COUNSEL]: Does it have a notification?
THE COURT: I'm not sure.
[DEFENSE COUNSEL]: Is that --
THE COURT: This is what (indiscernible) from [the
deputy prosecuting attorney who signed the motion for
protective order].
Was there a notice of hearing filed --
[DEFENSE COUNSEL]: Oh, finally.
THE COURT: -- alongside (inaudible)?
It was filled in; but I'm not sure where they got that
date from.
[DEFENSE COUNSEL]: My guess is they picked it. That
is, a prosecutor picked it. There is no -- there is no
notice of hearing.
It also doesn't comply with a variety of rules. I can
go through those.
But that's the first thing we need to hear, is --
well, the first thing we need to hear is my motion to seek
discovery without the protective order. Theirs actually
shouldn't be heard because there is no notice of hearing. It
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doesn't comply with Rule 47, which is -- they need to
provide a basis. If you look at the simple two-page
declaration, there is no basis. What they do is they say, We
want a protective order because there's a rule that allows
us to get one. That -- I mean, that's what it is.
THE COURT: (Indiscernible).
[DEFENSE COUNSEL]: Well, there aren't any, okay. What
we have is Mr. Shannon's date of birth. We have Mr.
Shannon's Social Security number. He's well aware of both of
those. And they provide no argument, all right. Rule 16 says
that the government needs to provide a -- a good cause for
the protective order, Rule 16 says. So if they want a
protective order for investigative items and such, then they
can do so. They can say, We have an undercover officer and
-- because the officer's safety -- you know, that's fine.
They don't have that. We have a DUI case here. And the
categories that the declaration provides says Social
Security numbers, dates of birth, et cetera, all of which
are my client's. So I'm not really sure where the argument
is.
But it also suffers from procedural defects. There is
no notice of hearing, which is why it should never have been
calendared. It violated, originally, Rule 8 because it
didn't provide 14 days' notice. All motions are to be had at
least 14 days out. My motion for a protective order [sic]
did comply with that, and it does have a notice of hearing.
There's also no certification on there, that has to be
complied with by every counsel.
So I would object to the Court's hearing of the
government's motion for the protective order at all.
THE COURT: Any response?
[DEPUTY PROSECUTING ATTORNEY]: Your Honor, with --
with reference to the protective order, I mean --
THE COURT: (Indiscernible)?
[DEPUTY PROSECUTING ATTORNEY]: Yes. Yeah. This is --
it -- it's basically just enumerating the basic rule of
(indiscernible) --
THE COURT: Well, let's deal with -- first, his
argument (indiscernible). Procedurally, by the rules --
[DEPUTY PROSECUTING ATTORNEY]: Okay.
THE COURT: -- (indiscernible), before we get to the
merits.
[DEPUTY PROSECUTING ATTORNEY]: Yeah. With reference to
the procedural defects, I haven't quite reviewed the -- the
time of the filing.
THE COURT: And -- because Mr. O'Grady usually files
his memo (inaudible).
[DEPUTY PROSECUTING ATTORNEY]: Yes.
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THE COURT: (Inaudible).
[DEPUTY PROSECUTING ATTORNEY]: Yeah.
[DEFENSE COUNSEL]: Right.
THE COURT: All right. And I -- I'm -- I
(indiscernible).
So this is going to be a (indiscernible) -- over your
objection, I'm going to (indiscernible). The time is still
running for Rule 48, so --
When does Rule 48 run from (indiscernible)? Some time
in (indiscernible)?
[DEPUTY PROSECUTING ATTORNEY]: November 4th.
(emphasis added). The State's representation that the Rule 48
deadline would run on November 4, 2016, was accurate; April 9,
2016 until November 4, 2016 — excluding the 29 days of
continuance requested by Shannon — is 180 days. The transcript
indicates that the district court continued the hearing on the
State's motion for protective order, over Shannon's objection,
based on the Rule 48 deadline expiring on November 4, 2016.
The hearing continued:
THE COURT: When are you going to be back
(indiscernible)?
(Indiscernible) set it for hearing, file your memo in
op, and (inaudible). And your client's presence is waivable
(indiscernible) according to (inaudible).
[DEFENSE COUNSEL]: Well, I can tell you when I'm not
going to be here. So I won't be here next Tuesday. I'll be
away at a DUI conference.
Does the Court matter how close it is?
THE COURT: No.
[DEFENSE COUNSEL]: Okay. Because the 2nd and the 9th
of August don't work for me either. So --
THE COURT: (Indiscernible)?
[DEFENSE COUNSEL]: I think I am here on the 16th, as a
matter of fact, because we're moving some things to the
16th. So the 16th would be fine.
THE COURT: So we'll move all motions to the 16th. So
everybody file their (indiscernible).
Mr. Shannon, again, talk to your attorney
(indiscernible) date and time. (Indiscernible) --
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Do we have a trial date set yet, or no?
[DEFENSE COUNSEL]: No, because we have no discovery.
THE COURT: We'll deal with that on the 16th.
[DEFENSE COUNSEL]: Yes, Your Honor.
[DEPUTY PROSECUTING ATTORNEY]: Is August 16th the
trial?
THE COURT: No.
[DEPUTY PROSECUTING ATTORNEY]: Status?
THE COURT: Hearing on all motions that we have so far.
Thus, the record indicates that the 35-day continuance from
July 12, 2016 until August 16, 2016 was imposed by the district
court, over Shannon's objection. The district court's findings
and conclusions to the contrary were, respectively, clearly
erroneous and wrong.
On August 16, 2016, it had been 100 unexcluded days
since Shannon's arrest. On that day the district court ruled on
the pretrial motions and set Shannon's trial for October 4, 2016.
The district court stated, "none of this will toll rule 48."
That added 49 days to the Rule 48 period, for a total of 149
includable days to October 4, 2016.
Shannon filed six motions to compel discovery. The
district court found, and Shannon does not challenge, that:
15. . . . With regard to the remaining Motions to Compel,
[Shannon]'s counsel stated he wanted additional time
(1) to file and serve a subpoena duces tecum on the
Honolulu Police Commission for the records of Honolulu
Police Department (HPD) Officer Christopher Paul and
(2) to file and serve a subpoena duces tecum on HPD
Officer Barry Tong. The return date on the subpoenas
duces tecum was set for November 15, 2016.
(bold italics added). "HRPP Rule 48(d)(2) includes in the
computation 'the period of time, from the filing through the
prompt disposition of . . . requests/ motions for discovery[.]'"
Shannon I, 2019 WL 1552055, at *2 n.6. That added 42 days to the
Rule 48 period, for a total of 191 includable days between
Shannon's arrest and the November 15, 2016 return on the
subpoenas for documents. The district court's finding of fact
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no. 20 (which was actually a combined finding of fact and
conclusion of law) that "HRPP Rule 48 was not violated" was
clearly erroneous.
The district court concluded:
11. Therefore, as a matter of law, the court concludes
there was no HRPP Rule 48 violation and Defendant's
November 29, 2016, Motion to Dismiss for Rule 48
Violation was properly denied.
This conclusion was wrong because 191 includable days had passed
since Shannon was arrested, and there had not been "a meaningful
commencement of trial." See State v. Alkire, 148 Hawai#i 73, 79,
468 P.3d 87, 93 (2020). The district court erred in denying
Shannon's Rule 48 motion to dismiss.
For the foregoing reasons, the Second Amended Judgment
entered by the district court on August 27, 2019, is vacated, and
this case is remanded to the district court for dismissal of the
charges against Shannon, with or without prejudice in its
discretion in accordance with the principles stated in State v.
Estencion, 63 Haw. 264, 269,
625 P.2d 1040, 1044 (1981).
DATED: Honolulu, Hawai#i, May 23, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Kevin O'Grady, Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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