State v. Croke

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2024
07:58 AM
Dkt. 52 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOHN CROKE, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant John J. Croke (Croke), proceeding

self-represented, appeals from the March 13, 2023 Order Granting

Motion to Dismiss Amended Felony Information Filed October 26,

2022 (Order of Dismissal Without Prejudice), entered by the

Circuit Court of the First Circuit (Circuit Court).1

The State of Hawai#i (State) filed a March 1, 2021

Felony Information charging Croke with Assault in the Second

Degree, in violation of Hawaii Revised Statutes (HRS) § 707-

711(1)(a) (Supp. 2022).2 On May 17, 2021, Croke, proceeding with

counsel, filed a motion requesting that the Circuit Court appoint

1
The Honorable Paul B.K. Wong presided.
2
HRS § 707-711 provides, in pertinent part:
§ 707-711 Assault in the second degree. (1) A person
commits the offense of assault in the second degree if the
person:
(a) Intentionally, knowingly, or recklessly causes
substantial bodily injury to another[.]
a three-member panel to determine his fitness to proceed.3 The

court granted the motion and ordered Dr. Melissa Villalon

(Villalon), Dr. Steven Taketa (Taketa), and a State Designate of

the Courts and Corrections Division (State Designate) to

determine his fitness to proceed.

The Circuit Court received evaluations from Villalon,

Taketa, and Dr. Nikita Hay (Hay), the State Designate. The court

also received a report from Dr. Terence C. Wade (Wade), but it

was deleted from the lower-court docket because its upload into

this case was due to a clerical error. The court initially

deemed Croke unfit to proceed, suspended proceedings, and

committed him to treatment.4

On March 8, 2022, after receiving a letter from the

psychiatrist treating Croke, which recommended that the Circuit

Court re-examine Croke's fitness to proceed, the court ordered

Taketa, Villalon, and a State Designate to re-examine Croke. The

court received Villalon's, Taketa's, and Hay's further reports

and deemed Croke fit to proceed. Additional reports were later

submitted by Villalon, Taketa, and Hay, all deeming Croke fit to

proceed.

The State filed a September 1, 2022 State's Motion to

Amend the Felony Information (Motion to Amend) "to include the

statutory definition of 'substantial bodily injury.'"

Croke filed a September 7, 2022 Motion to Dismiss Based

Upon Defective Charge (Motion to Dismiss), arguing that the

3
The Honorable Shirley M. Kawamura presided.
4
The Honorable Christine E. Kuriyama presided.

2
Felony Information violated his due process rights to notice of

all the elements of the charged offense under the United States

and Hawai<i State Constitutions.

On September 12, 2022, the Circuit Court granted the

Motion to Amend and denied the Motion to Dismiss.5

On October 26, 2022, the State filed an Amended Felony

Information.

On February 2 and 6, 2023, Croke filed motions to

dismiss the Amended Felony Information on various grounds. At a
February 27, 2023 hearing, the Circuit Court found good cause to

dismiss without prejudice the Amended Felony Information pursuant

to State v. Jardine, 151 Hawai<i 96, 508 P.3d 1182 (2022).

Thereafter, the court entered the Order of Dismissal Without

Prejudice.

Croke timely filed a Notice of Appeal.

Croke presents two arguments on appeal,6 contending

that the Circuit Court: (1) prejudiced him by ordering a four-

person panel instead of the required three-person panel to
examine his fitness to proceed in the case; and (2) erred when it

dismissed the Amended Felony Information without prejudice.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

5
The Honorable Paul B.K. Wong presided.
6
While Croke fails to present points of error on appeal in
compliance with Hawai<i Rules of Appellate Procedure Rule 28(b)(4), (7), we
nevertheless address the merits of his arguments to the extent we can discern
them. See, e.g., Torres v. Read, CAAP-XX-XXXXXXX, 2019 WL 6998172, *1 (Haw
App. Dec. 19, 2019) (SDO).

3
the arguments advanced and the issues raised by the parties, we

resolve Croke's arguments as follows:

(1) Croke contends that he was never apprised as to

why a four-person panel was appointed to examine his fitness to

proceed with trial.

This argument appears to be based on a misunderstanding

on Croke's part. No four-person panel was appointed. As noted

above, the Circuit Court appointed three examiners: Villalon,

Taketa, and a State Designate. The court only considered three
evaluations from Villalon, Taketa, and Hay. Wade's report was

deleted because it was filed in this case only due to a clerical

error. Croke concedes that the court did not consider Wade's

report. Therefore, no abuse of discretion occurred in the

appointment of the panel to determine Croke's fitness to proceed.

(2) Croke argues that this case should have been

dismissed with prejudice because the State did not hold a

required preliminary hearing under Hawai<i Rules of Penal

Procedure (HRPP) Rule 5(a)(1) for admission to bail. Croke

further argues that no preliminary hearings were held as required

under HRPP Rule 5(c)(1) for an initial appearance or arraignment

to determine probable cause in violation of his due process

rights.7 In addition, Croke argues that because he was initially

7
HRPP Rule 5 provides, in pertinent part:
Rule 5. PROCEEDINGS FOLLOWING ARREST.

(a) In general.
(1) UPON ARREST. An officer making an arrest
under a warrant shall take the arrested person without
unnecessary delay before the court having initially
(continued...)

4
charged with a defective Felony Information, dismissing the case

without prejudice also violated his due process rights.

While preliminary hearings are generally required under

HRPP Rule 5, subsection (c)(1) eliminates that requirement if the

defendant is "charged by information before the date set for such

hearing." Further, under HRS § 801-1(a) (2014):
No person shall be subject to be tried and sentenced
to be punished in any court, for an alleged offense, unless
upon indictment, complaint, or information, except for
offenses within the jurisdiction of a district court or in
summary proceedings for contempt. For any felony offense to
be tried and sentenced upon complaint, a finding of probable
cause after a preliminary hearing, or a waiver of the
probable cause determination at the preliminary hearing,
shall be required.

(Emphasis added). Moreover, the Hawai<i Supreme Court in Moana

v. Wong held that "[w]hen a defendant is . . . charged by

criminal information, a preliminary hearing need not — and, under

our rules, cannot — be conducted." 141 Hawai<i 100, 106, 405

7
(...continued)
jurisdiction, or, for the purpose of admission to
bail, before any judge or officer authorized by law to
admit the accused person to bail.

. . . .
(c) Felonies. In the district court, a defendant
charged with a felony shall not be called upon to plead, and
proceedings shall be had in accordance with this section
(c).

(1) INITIAL APPEARANCE; SCHEDULING OF PRELIMINARY HEARING . At
the initial appearance the court shall, in addition to
the requirements under Rule 10(e), furnish the
defendant with a copy of the complaint and affidavits
in support thereof, if any, together with a copy of
the appropriate order of judicial determination of
probable cause, if any, and inform the defendant of
the right to a preliminary hearing. If the defendant
waives preliminary hearing pursuant to subsection
(c)(2) of this rule, the court shall forthwith commit
the defendant to answer in the circuit court. If the
defendant does not waive such hearing, the court shall
schedule a preliminary hearing, provided that such
hearing shall not be held if the defendant is indicted
or charged by information before the date set for such
hearing.

5
P.3d 536, 542 (2017). The Circuit Court did not err in not

holding a preliminary hearing.

Croke contends that the Amended Felony Information

should have been dismissed with prejudice. As acknowledged by

both parties, the Felony Information was defective for failing to

include the definition of "substantial bodily injury." The

Amended Felony Information was also defective as it merely

reiterated the statutory definition of "substantial bodily

injury," which was described by the supreme court in Jardine as
"generic." 151 Hawai<i at 100, 508 P.3d at 1186.

When the statutory definition of an offense is generic,

the State must then "state the species of [the victim's] injury .

. . [and] descend to particulars," as it otherwise fails to

apprise the defendant of the charge against them in violation of

their due process rights. Id. at 101, 508 P.3d at 1187 (quoting

State v. Israel, 78 Hawai<i 66, 73, 890 P.2d 303, 310 (1995)).

In this case, as in Jardine, the Amended Felony Information only

reiterated the generic, statutory definition of "substantial
bodily injury." In Jardine, the supreme court affirmed our

decision in that case to affirm the circuit court's decision to

dismiss that case without prejudice. Id. at 102, 508 P.3d at

1188.

The supreme court has upheld and ordered dismissals of

numerous other cases without prejudice as the remedy for an

insufficient charge. See, e.g., State v. Kauhane, 145 Hawai<i

362, 370-72, 452 P.3d 359, 367-69 (2019); State v. Pacquing, 139

Hawai<i 302, 308-09, 389 P.3d 897, 903-04 (2016); State v.

6
Apollonio, 130 Hawai<i 353, 359 n.10, 311 P.3d 676, 682 n.10

(2013); State v. Wheeler, 121 Hawai<i 383, 386, 400, 219 P.3d

1170, 1173, 1187 (2009); see also State v. Taylor, 996 P.2d 571,

237 (Wash. 2000) (en banc) ("The remedy for an insufficient

charging document is reversal and dismissal of the charges

without prejudice to the State."). Croke provides no authority

and identifies no circumstance that would mandate dismissal with

prejudice in this case. Therefore, we conclude that the Circuit

Court did not err in entering the Order of Dismissal without
prejudice.

The Circuit Court's March 13, 2023 Order of Dismissal

Without Prejudice is affirmed.

DATED: Honolulu, Hawai#i, January 26, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
John J. Croke,
Defendant-Appellant, Pro Se. /s/ Clyde J. Wadsworth
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

7