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NO. CAAP-19-0000851

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

ADAM NATHANAEL, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

KANE#OHE DIVISION

(CASE NO. 1DTC-18-071132)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Adam Nathanael (Nathanael) appeals

from the Notice of Entry of Judgment and/or Order and

Plea/Judgment (Judgment), entered on November 12, 2019, in the

District Court of the First Circuit, Kane#ohe Division (District

Court).1/ Following a bench trial, Nathanael was convicted of

Operating a Vehicle After License and Privilege Have Been

Suspended or Revoked for Operating a Vehicle Under the Influence

of an Intoxicant (OVLPSR-OVUII), in violation of Hawaii Revised

Statutes (HRS) § 291E-62(a)(1) and (a)(2) (Supp. 2017).2/

1/ The Honorable Michelle N. Comeau presided.

2/ HRS § 291E-62 provides, in relevant part:

§ 291E-62 Operating a vehicle after license and

privilege have been suspended or revoked for operating a

vehicle under the influence of an intoxicant; penalties. 

(a) No person whose license and privilege to operate a 

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000851

17-JUN-2021

08:03 AM

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On appeal, Nathanael contends that the District Court

erred in denying Nathanael's motion to dismiss the charges then

pending against him for violation of Hawai#i Rules of Penal

Procedure (HRPP) Rule 483/ (Rule 48 Motion).4/

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we vacate the

Judgment and remand to the District Court with instructions.

2/ (...continued)

vehicle have been revoked, suspended, or otherwise

restricted pursuant to this section or to part III or

section 291E-61 or 291E-61.5, or to part VII or part XIV of

chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or

291-7 as those provisions were in effect on December 31,

2001, shall operate or assume actual physical control of any

vehicle:

(1) In violation of any restrictions placed on the

person's license; [or]

(2) While the person's license or privilege to

operate a vehicle remains suspended or

revoked[.]

3/ HRPP Rule 48 provides, in relevant part:

 (b) . . . 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 6 months:

 (1) from the date of arrest if bail is set or from

the filing of the charge, whichever is sooner, on any

offense based on the same conduct or arising from the

same criminal episode for which the arrest or charge

was made[.]

 . . . .

 (c) Excluded periods. The following periods shall be

excluded in computing the time for trial commencement:

 . . . .

 (3) periods that delay the commencement of trial and

are caused by a continuance granted at the request or

with the consent of the defendant or defendant's

counsel[.]

4/ When Nathanael filed his Rule 48 Motion, a charge of Driving

Without Motor Vehicle Insurance, in violation of HRS § 431:10C-104(a), was

also pending against him. Nathanael was acquitted of this charge at trial.

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Nathanael contends that because trial did not commence

within 180 days5/ of the filing of the charges against him, as

properly computed under HRPP Rule 48, the District Court erred in

denying Nathanael's Rule 48 Motion. Specifically, Nathanael

argues that in computing the time for trial commencement under

HRPP Rule 48, the District Court erred by excluding: (1) the

filing date of the complaint, November 27, 2018; and (2) the 28-

day period from February 21, 2019, to March 21, 2019, pursuant to

HRPP Rule 48(c)(3). Nathanael concludes that had this total

period of 29 days not been excluded, "the [180-]day period within

which trial must commence under HRPP Rule 48 would have expired." 

Under these circumstances, where Nathanael was not

arrested and was charged by complaint, the District Court was

required, upon Nathanael's Rule 48 Motion, to dismiss the charges

"if trial [was] not commenced within 6 months . . . from the

filing of the charge[s.]" HRPP Rule 48(b)(1). The charges were

filed by complaint on November 27, 2018. See HRPP Rule 7(a)

("The charge against a defendant is . . . a complaint filed in

court[.]") Thus, the District Court should have computed the

180-day period prescribed by Rule 48 starting from November 27,

2018.6/ In fact, the District Court recognized that the complaint

was filed on November 27, 2018, but started its computation from

November 28, 2018, "for the sake of convenience because it's

going to allow [the court] to track Exhibit A which has been

prepared by the defense." This start date led the court to

conclude that "between November 28th and December 27th, that's 29

days that are included." This was error, as the period from

November 27, 2018, to December 27, 2018, was 30 days, and the

District Court thus improperly excluded one day from its Rule 48

calculation.7/

5/ "The six-month period under HRPP Rule 48 is equivalent to 180

days." State v. Alkire, 148 Hawai#i 73, 86, 468 P.3d 87, 100 (2020) (quoting

State v. Hernane, 145 Hawai#i 444, 450, 454 P.3d 385, 391 (2019)).

6/ Under HRPP Rule 45, "the day of the act or event from which the

designated period of time begins to run shall not be included." Thus, the

period at issue from November 27, 2018, to December 27, 2018, was 30 days.

7/ In its answering brief, the State "agrees that the District Court

erred in starting the calculation for Rule 48 on November 28 as opposed to 

(continued...)

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The District Court excluded the 28-day period from

February 21, 2019, to March 21, 2019, based on the following

reasoning:

January 24th to . . . February 21st, okay, so on the

24th defendant was present and represented by counsel at

that time. So defendant through his counsel asked to

continue this case because there was [a] potential plea

negotiation with the Prosecutor's Office. And so what

happened after that was there was a status [hearing] that

was set to figure out what was going on with the plea, and

then subsequently trial was set, so I find that the period

between . . . January 24th and February 21st falls under

Rule 48(c)(3) delay due to request of defendant and so that

is excluded for purposes of Rule 48.

And then likewise . . . the resetting which followed

on when it was determined that there was no potential plea. 

Okay. And, again, you can see in the minutes, and neither

side is disputing the minutes are correct, although I

understand defense is, like I said, reframing it, yet the

defense made the request to reset.

Thus, it appears that the District Court excluded the periods

from January 24, 2019, to February 21, 2019, and from

February 21, 2019, to March 21, 2019, pursuant to HRPP Rule

48(c)(3), as "periods that delay[ed] the commencement of trial

and [were] caused by a continuance granted at the request or with

the consent of" Nathanael or his counsel. HRPP Rule 48(c)(3). 

The parties do not dispute that the period from

January 24, 2019, to February 21, 2019, was properly excluded

under HRPP Rule 48(c)(3). At a January 24, 2019 status hearing,

Nathanael's counsel requested "a continuance for status" to

pursue "possible plea negotiations." The District Court

"continue[d] this one month for status" and set a status hearing

for February 21, 2019. 

The disputed issue is whether the period from

February 21, 2019, to March 21, 2019, was also properly excluded

under HRPP Rule 48(c)(3). On February 21, 2019, Nathanael was

present in court with counsel, and the following exchange

occurred:

7/ (...continued)

November 27. So that entitles Defendant to one additional day."

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[DPA]: Your Honor, calling cases 26 and 27, Adam

Nathanael, 1DTC 18-007671 and 1DTC 18-0071132.8/

[DEFENSE COUNSEL]: Good morning, Your Honor. Deputy

Public Defender . . . on behalf of Adam Nathanael who's

present to my left, Your Honor, for both cases we would just

set these matters for trial.

I believe that we'll –

THE COURT: No deal then?

[DEFENSE COUNSEL]: We weren't able to come to an

agreement, yeah, there was no agreement reached.

THE COURT: So set for trial.

THE CLERK: Will be March 21st.

(Footnote added.) Nathanael argues that the setting of trial,

and thus the period from February 21, 2019, to March 21, 2019,

was not a continuance granted at the request or with the consent

of Nathanael or his counsel. The State argues:

If that time were not excluded, then it would always be to a

defendant's benefit to repeatedly — whether in good faith or

not — continue status hearings under the guise of plea

negotiations so that in the end defendant could seek a

dismissal based on Rule 48. In fact, as the District Court

observed, the minutes reflect that Defendant's request to

set the matter for trial was granted and the case was set

for March 21, 2019. The District Court properly excluded

the time.

Initially, we note that on this record, the State has

not shown that Nathanael was not acting in good faith on

January 24, 2019, when he requested a continuance to pursue

possible plea negotiations. Further, the State offers no

authority for its position that when Nathaniel later informed the

court that no plea agreement had been reached and requested that

trial be set, the succeeding 28-day period "delay[ed] the

commencement of trial and [was] caused by a continuance granted

at the request or with the consent of" Nathanael or his counsel. 

HRPP Rule 48(c)(3); cf. State v. Choy Foo, 142 Hawai#i 65, 73 414

P.3d 117, 125 (2018) ("When applying HRPP Rule 48(c)(1), the

trial court's two inquiries are: (1) whether the period actually

8/ Nathanael was also charged with OVLPSR-OVUII, in violation of HRS

§ 291E-62(a)(1) and (a)(2), in Case No. 1DTC-18-007671. See State v.

Nathanael, No. CAAP-19-0000474, 2021 WL 1553857, at *1 (Haw. App. Apr. 20,

2021) (SDO).

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delays the commencement of trial; and (2) whether the period is

'caused by collateral or other proceedings concerning the

defendant.'" (footnote omitted)) 

"The court's interpretation of HRPP Rule 48 must begin

with the plain language of the rule." Choy Foo, 142 Hawai#i at

73 414 P.3d at 125. HRPP Rule 48(c)(3) excludes periods of delay

that are "caused by a continuance granted at the request or with

the consent of the defendant or defendant's counsel." (Emphasis

added.) In these circumstances, where trial had never been set,

Nathanael's request to set trial was not a request for a

continuance, and the court's setting of trial was not a

continuance granted at the request or with the consent of

Nathanael or his counsel. "[I]f a time period is not excluded

from calculation by [HRPP Rule 48], it is included in the

calculation." Choy Foo, 142 Hawai#i at 75, 414 P.3d at 127. 

Thus, the 28-day period at issue should have been included in

computing the time within which trial had to commence, and the

District Court improperly excluded that period.

We conclude that the District Court erred in excluding

a total of 29 days from the court's Rule 48 calculation. 

Including that time period, the State did not bring Nathanael to

trial within the 180-day period set forth in HRPP Rule 48.9/

Accordingly, the District Court erred in denying Nathanael's Rule

48 Motion. 

For these reasons, we vacate the District Court's

November 12, 2019 Judgment with respect to Nathanael's OVLPSROVUII conviction, and we remand the case with instructions that

the District Court: (1) enter an order dismissing the OVLPSROVUII charge against Nathanael pursuant to HRPP Rule 48; (2)

consider the factors identified in State v. Estencion, 63 Haw.

264, 625 P.2d 1040 (1981), in determining whether to dismiss the

charge with or without prejudice; and (3) make findings that

9/ Although the District Court initially set trial for March 21,

2019, Nathanael's trial was subsequently continued several times and

eventually occurred on November 12, 2019. The parties do not dispute the

District Court's treatment of these additional continuances for purposes of

the court's Rule 48 calculation.

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clearly articulate the effect of the Estencion factors and any

other factor the court considers in rendering its decision.

DATED: Honolulu, Hawai#i, June 17, 2021.

On the briefs:

Andrew I. Kim,

Deputy Public Defender,

for Defendant-Appellant.

Loren J. Thomas,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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