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NO. CAAP-18-0000526

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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

CORY McGLOTHIN, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

HONOLULU DIVISION

(CASE NO. 1DTA-17-04452)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Cory McGlothin (McGlothin) appeals

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

Plea/Judgment, entered on May 30, 2018, in the District Court of

the First Circuit, Honolulu Division (District Court).1/ When

the State was not ready to proceed at trial, the District Court,

at McGlothin's request, dismissed the charges against him,

namely, Operating a Vehicle Under the Influence of an Intoxicant,

in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1),

and Driving Without a License, in violation of HRS § 286-102. 

On appeal, McGlothin contends that the District Court

erred in: (1) dismissing the charges without prejudice, rather

than with prejudice; and (2) "conducting off-the-record phone

calls and text messaging" with two other district court judges,

one of whom had set the case for trial, thereby violating

McGlothin's right to a public trial and due process. 

1/ The Honorable Trish K. Morikawa presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000526

29-JUN-2020

08:01 AM
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Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

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

resolve McGlothin's points of error as follows:

In support of his first point of error, McGlothin

contends that the District Court: (a) abused its discretion when

it purportedly modified another judge's earlier order setting a

"firm" trial date of May 30, 2018,2/ by not dismissing the case

with prejudice, or holding a trial and acquitting McGlothin, on

that date, when the State was not ready to proceed; and (b) made

inadequate findings to justify its decision to dismiss the case

without prejudice.

(1)(a) We reject McGlothin's contention that the

District Court modified the prior ruling of another judge. On

March 14, 2018, Judge Domingo entered an order which, among other

things, set a trial date of May 30, 2018, with the notation,

"Firm." There is no indication in the record, however, that

Judge Domingo intended: (i) to dismiss the case with prejudice

should the State be unable to proceed on the "firm" trial date;

or (ii) to hold a trial on that date, despite the State's

inability to proceed, without regard to the circumstances. Nor

has McGlothin supplied any authority holding that a trial court

must follow one of these two courses of action when the State is

unable to proceed to trial on a "firm" trial date. 

Under these circumstances, when the parties appeared

for trial on May 30, 2018, and the State was not ready to

proceed, it appears that the District Court sought to act

consistently with Judge Domingo's prior order. At that time,

McGlothin argued that the case had been "set for a firm trial

setting for today," and "ask[ed] that it be dismissed pursuant to

that previous ruling." The District Court stated in part: 

"[L]et me double-check with Judge Iha by what she meant on

firm[.]" Defense counsel responded, "All right." The District

Court then said, "[S]o if you could . . . wait till the recess, I

can go and check with her, I can give her a call." Defense

2/ The Honorable William M. Domingo presided.

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counsel responded, "Okay." 

After the recess, the District Court stated, "I don't

have an answer just yet because it wasn't Judge Iha, it's Judge

Domingo, so if I don't hear back from him within, like, the next

five minutes, then I'm just going to rule." Defense counsel

responded, "Thank you." Shortly thereafter, the District Court

reported:

Okay. So I was able to get in touch with Judge

Domingo who was the one who set it firm. Not that I doubted

you, counsel, but I just wanted to double-check since

nothing was in the minutes. He did say he set it firm and

that if the State wasn't ready, that the Court would dismiss

the case.

Defense counsel replied, "Thank you, Your Honor." 

At that point, the District Court denied the State's

request for a continuance, granted McGlothin's motion to dismiss,

and invited oral argument as to whether the dismissal should be

with or without prejudice. Following argument, the court stated

several reasons that the case would be dismissed without

prejudice. Defense counsel then said, "[W]e object because

you're overruling the previous court," and the District Court

responded, "No. I specifically checked with Judge Domingo, and

he said specifically that I can do it without [prejudice]." 

On this record, and absent any ruling by Judge Domingo

that he would dismiss the case with prejudice under these

circumstances, we conclude that the District Court's decision was

consistent with Judge Domingo's earlier ruling and did not modify

it. Accordingly, we need not address McGlothin's argument that

the purported modification was an abuse of discretion. 

(1)(b) In dismissing the case without prejudice, the

District Court made the following oral findings on May 30, 2018:

THE COURT: Okay. So the Court's going to note that

there are two counts in this case, the Driving -- Operating

a Vehicle Under the Influence as well as a No Motor Vehicle

Driver's License. The Court's going to note that both of

those charges are petty misdemeanors. While that is the

lowest of offenses, nevertheless, the Court does find that

these are serious, and it is two counts, not just one. 

The Court's also going to note that when I look at the

procedural history in the case, that there has been a number

of motions filed, that, yes, discovery was trying to be

gotten to the Defendant. 

The Court's going to note that, that from this Court's

understanding, this would have been technically the first

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legitimate trial setting of which the State was not ready to

proceed. The State's indicated, although counsel has object

-- is stating differently, the State's indicating that the

Rule 48 is July 28th, so there would still be time,

arguably, even though Defense is stating otherwise, to

proceed with this case where the Court could put this on for

the calendar. 

The Court's going to note, nevertheless, that since

the previous judge did issue -- did state that this was firm

and that, that this would be dismissed, that the Court would

be nevertheless going along with that Court's prior ruling. 

The Court's also going to note that this was set firm

because the Defendant had left the jurisdiction. 

Nevertheless, the Court, just because people leave, the

Court doesn't think that that's a reason why Defendants

should get a chance to get their cases dismissed 'cause they

don't live here anymore since the offense occurred when it

was here and everybody else that still stays here, they

wouldn't have to have their trial set firm.

Granted, the Court does understand that he did have to

fly back particularly, he's in the military, but

nevertheless, when it comes to other Defendants that live

here, they're working as well, they -- you know, it was his

choice -- well, I don't know if it was his choice. He's in

the military so it's not necessarily his choice, but he did

leave the jurisdiction, so, nevertheless, this occurred

here.

So for those reasons as well as the procedural history

of the case -– the Court's going to note that [the State's

witness], it's my understanding he is on injured leave. He

would, according to counsel, be, be back by next week, so

the Court is going to dismiss this case without prejudice.

McGlothin contends that the District Court's findings

supporting dismissal without prejudice were inadequate, because

there was no finding as to the "administration of justice" factor

set out in State v. Estencion, 63 Haw. 264, 269, 625 P.2d 1040,

1044 (1981). He also argues that the District Court's finding

that "the State is somehow entitled to more than one trial

setting" because of McGlothin's "absence from the jurisdiction"

was an abuse of discretion.

When a trial court dismisses a criminal case for

violation of Hawai#i Rules of Penal Procedure (HRPP) Rule 48, its

decision to dismiss with or without prejudice is reviewed for

abuse of discretion. State v. Fukuoka, 141 Hawai#i 48, 55, 404

P.3d 314, 321 (2017).

In determining whether to dismiss the case with or without

prejudice, "the court shall consider, among others, each of

the following factors: the seriousness of the offense; the

facts and the circumstances of the case which led to the

dismissal; and the impact of a reprosecution on the

administration of [HRPP Rule 48] and on the administration

of justice."

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Id. at 55-56, 404 P.3d at 321-22 (quoting Estencion, 63 Haw. at

269, 625 P.2d at 1044). "Although not set forth as one of the

three enumerated factors, 'prejudice to the defendant may be a

relevant consideration in the trial court's decision to dismiss

with or without prejudice' under HRPP Rule 48." Id. at 56, 404

P.3d at 322 (quoting State v. Coyaso, 73 Haw. 352, 357, 833 P.2d

66, 69 (1992)). "[T]he trial court may consider other factors it

finds to be relevant to the case before it[.]" Id. (quoting

Coyaso, 73 Haw. at 357, 833 P.2d at 69).

In analyzing whether to dismiss a case with or

without prejudice under HRPP Rule 48 and Estencion,

the trial court must "clearly articulate the effect of

the Estencion factors and any other factor it

considered in rendering its decision." State v. Hern,

133 Hawai#i 59, 64, 323 P.3d 1241, 1246 (App. 2013). 

Accordingly, the court must explain the effect of the

Estencion factors on its reasoning to dismiss a charge

with or without prejudice. Id. The court is not

required, however, to make a determination as to

whether each individual factor weighs in favor of

dismissal with or without prejudice. 

The trial court must therefore provide an "explanation

of its consideration of the Estencion factors," and any

other factors it considered, "and the basis for its

decision." See id. at 65, 323 P.3d at 1247.

Fukuoka, 141 Hawai#i at 56, 404 P.3d at 322 (footnotes and

brackets omitted). 

Here, the District Court's oral findings show that it

considered each of the Estencion factors and explained the effect

of the factors on its reasoning to dismiss the charges without

prejudice. It is true that the District Court did not expressly

label its consideration of the impact of reprosecution on "the

administration of justice" as such. But the court clearly

evaluated that factor in substance, and sufficiently explained

its effect on the court's decision. In particular, the court

considered the possibility that the case might still be tried

before the HRPP Rule 48 deadline. The court also considered the

prejudice to McGlothin of having to fly back to Hawai#i for

trial, but concluded that his having left the jurisdiction did

not justify dismissal with prejudice where the alleged offenses

occurred here. See id. at 64, 404 P.3d at 330 (prejudice caused

to a defendant by a trial delay may be considered in determining

the impact of reprosecution on the administration of justice). 

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On this record, we cannot conclude that the District Court abused

its discretion in reaching this conclusion or in weighing the

relevant factors in deciding to dismiss the case without

prejudice. 

(2) As set forth above, when the parties appeared for

trial, and the State was not ready to proceed, McGlothin

expressly agreed to the District Court's contacting the judge who

had set the trial date to determine "what [the judge] meant on

firm." When the District Court later reported that Judge Domingo

"did say he set it firm and that if the State wasn't ready, that

the Court would dismiss the case[,]" defense counsel simply

responded, "Thank you, Your Honor." It was only after the court

announced its ruling to dismiss the case without prejudice that

defense counsel objected "to all this off-the-record banter

between the judges to determine what the ruling should be." 

Under these circumstances, where McGlothin expressly

consented to the District Court communicating with the two

identified judges for the indicated purpose, we conclude that

McGlothin waived any objection to such communications. 

Therefore, IT IS HEREBY ORDERED that the Notice of

Entry of Judgment and/or Order and Plea/Judgment, entered on

May 30, 2018, in the District Court of the First Circuit,

Honolulu Division, is affirmed.

DATED: Honolulu, Hawai#i, June 29, 2020.

On the briefs:

Richard L. Holcomb

(Holcomb Law, LLLC)

for Defendant-Appellant.

Donn Fudo,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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