State v. Ramos

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JAN-2024
08:07 AM
Dkt. 59 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
ARTEMIO D. RAMOS, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NOS. 2CPC-XX-XXXXXXX and 2CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant Artemio D. Ramos (Ramos), appeals
from the November 15, 2022 "State's Findings of Fact [(FOFs)],
Conclusions of Law [(COLs)], and Order Denying Defendant's
Motion to Dismiss Pursuant to Rule 48" (Orders Denying Rule 48
Dismissal), entered in two separate multi-count sexual assault
cases,1 consolidated for trial, by the Circuit Court of the
Second Circuit (Circuit Court).2

1 The two underlying cases were 2CPC-XX-XXXXXXX and 2CPC-21-
0000588.
2 The Honorable Kirstin M. Hamman presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

On appeal, Ramos contends that the Circuit Court erred
by: (1) denying Ramos's Hawai‘i Rules of Penal Procedure (HRPP)
Rule 48 motion to dismiss (Rule 48 Motion) after Ramos
"established more than 180 days passed since the resetting of
trial"; (2) entering FOFs and COLs that suggested the
continuance was excluded because Ramos "consented to the delay";
and (3) finding that "the effects of the COVID-19 pandemic
amounted to good cause to toll Rule 48."3
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, we resolve Ramos's
points of error as follows, and affirm.
We focus our review on Ramos's contention challenging
FOF 4 and COL 9's4 exclusion of the 172-day time period from
February 18, 2022 to August 8, 2022 under HRPP Rule 48(c)(3),

3 Ramos's points of error "A.," One, and Two have been renumbered.
See Hawai‘i Rules of Appellate Procedure Rule 28(b)(4) (requiring numbered
points of error).
4 FOF 4 states:

4. After a series of waivers, that excluded all
but ten (10) additional days, Defendant [Ramos] appeared in
person in court, along with Counsel (via zoom) on February
18, 2022, when the matter was set for trial by agreement of
the parties on August 8, 2022[.]

(Emphasis added.)

COL 9 states:

9. The period from February 18, 2022, to August 8,
2022, is excluded due to Defense Counsel's agreement, while
Defendant [Ramos] was present in court to the trial date of
August 8, 2022. Rule 48(c)(3); State v. Diaz, 100 Haw.
210, 223, 58 P.3d 1257, 1270 (2002); State v. Schoenlein,
125 Haw. 246, 257 P.3d 1223 *2 (ICA 2011); State v. Kaehu,
144 Haw. 436, 443 P.3d 128 *2 (ICA 2019).

(Emphasis added.)

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because the excludability of this time frame is dispositive of
this appeal.5
Ramos argues that "2/18/2022–8/8/2022 is not
[e]xcludable" because Ramos "[a]greed to the setting of the
[t]rial date, not to [c]ontinue [t]rial." This argument is not
supported by the record.
"A trial court's findings of fact (FOFs) in deciding
an HRPP 48(b) motion to dismiss are subject to the clearly
erroneous standard of review." State v. Choy Foo, 142 Hawai‘i
65, 72, 414 P.3d 117, 124 (2018) (quoting State v. Samonte, 83
Hawai‘i 507, 514, 928 P.2d 1, 8 (1996)). "[W]hether those facts
fall within HRPP 48(b)'s exclusionary provisions is a question
of law, the determination of which is freely reviewable pursuant
to the 'right/wrong' test." Id. (quoting Samonte, 83 Hawai‘i at

514, 928 P.2d at 8).
HRPP Rule 48(c)(3) excludes, from the computation of
the 180-day required time period for trial commencement,
"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[.]" The exclusion under HRPP
Rule 48(c)(3) "only requires consent from either the defendant
or the defendant's counsel." State v. Diaz, 100 Hawai‘i 210,
223, 58 P.3d 1257, 1270 (2002).

5 Ramos does not challenge the 36 unexcluded days in the
immediately preceding time frame, May 5, 2017 to February 18, 2022, set forth
in COL 7, which states:

7. Defendant [Ramos] is not challenging the time
between May 5, 2017, and February 18, 2022, and furthermore
the Court finds that the entire period, except for thirty-
six (36) days is excluded pursuant to Rule 48(c) and (d).

Thus, if the 172-day time period at issue is not excludable as Ramos
contends, then the total unexcludable time would be 208 days (172 days
plus 36 days), and Rule 48 would be violated. Therefore, whether we
affirm or reverse the Circuit Court's exclusion of this 172-day time
period is dispositive.
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The transcript of the trial setting hearing reflects
the following:
THE CLERK: Calling 2CPC-17-173 and 2CPC-21-588,
Artemio Ramos for trial setting status.

[DEPUTY PROSECUTING ATTORNEY (DPA)]: Good morning,
Your Honor. [DPA] on behalf of the State of Hawaii.

THE COURT: Good morning.

[DEFENSE COUNSEL]: Good morning, Your Honor.
[(Defense Counsel states his name.)]

I can see you guys on the screen, but I'm trying to
flip on my video, but it's not going on. So I do apologize
for that.

THE COURT: That's okay. I did see you were -- you're
-- you had your video on earlier. That's fine.

And your client Mr. Ramos is present in court, in
custody.

[DEFENSE COUNSEL]: Thank you, Your Honor. I believe
today we have the setting of the new dates.

THE COURT: Yes. We need to set a trial date.

THE CLERK: We can set that for -- we can set that
for Monday, August 8th at 10:00.

[DEFENSE COUNSEL]: August 8th at 10:00.

THE COURT: All right. Does that work for the State?

[DPA]: It does, Your Honor. I just wanted to put on
the record due to the delay in the trial date, the State
has been ready for trial; prepared. I understand -- I
talked to [defense counsel] on the phone. In the interim,
while we were discussing this and understanding that due to
his schedule, he had a bunch -- he had a number of things
in the -- in -- I think in March and April anyway, so I
believe he needed more time.

Is that correct, [defense counsel]?

[DEFENSE COUNSEL]: That is correct, Your Honor. I did
tell Mr. Ramos that I do have a firm murder trial on
Kauai that starts in May, and I do have another --
yeah, in May, and then I do have another trial coming
up in June thereafter. So that's about it, Judge.

THE COURT: Well, we do have earlier dates available.
I know you said you have a trial in June. When is that
trial?

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[DEFENSE COUNSEL]: It depends on the -– they're both
on Kauai. It depends on the length of the murder trial
that commences in late May.

THE COURT: Okay.

[DPA]: Well, if the defense is okay with the date,
the State is okay. But –-

THE COURT: All right.

[DPA]: -- the August date, but just want to put that
on the record.

THE COURT: All right. And is that -- you're okay with
that date, August 8th, [defense counsel]?

[DEFENSE COUNSEL]: I'm fine with that date, Your
Honor. And that'll give me time to -- with the COVID
restriction going down, it'll give me time to personally go
down to MCCC to meet with Mr. Ramos.

THE COURT: All right. Okay. All right. So August 8th,
and we'll prepare a scheduling order.

(Emphases added.)
Here, the record does not reflect that defense counsel
objected on speedy trial or HRPP Rule 48 grounds, to setting a
trial date 172 days, or almost six months, away. When the court
clerk provided the August 8, 2022 trial date, the Circuit Court
inquired whether that date was suitable with both counsels. The
DPA represented the State had been ready for trial, but "if the
defense is okay with the date, the State is okay." Defense
counsel stated he had scheduling conflicts in May and June due
to other trials; and that he was "fine with that date" because
it would provide defense counsel "time to personally go down to
MCCC to meet" with Ramos. The Circuit Court then confirmed
August 8, 2022 as the reset trial date.
FOF 4 and COL 9, which both contained the Circuit
Court's finding that defense counsel manifested "agreement" with
the August 8, 2022 trial date, are supported by the record and
not clearly erroneous. See Choy Foo, 142 Hawai‘i at 72, 414 P.3d

at 124; Diaz, 100 Hawai‘i at 223, 58 P.3d at 1270. COL 9's mixed

5
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finding and conclusion that excluded this time period under HRPP
Rule 48(c)(3) was correct. See Choy Foo, 142 Hawai‘i at 72, 414

P.3d at 124. Because the 172 days were correctly excluded, this
leaves only 36 unexcluded days in COL 7, and the 180-day time
limit for trial commencement under HRPP Rule 48 was not
violated. The Circuit Court correctly denied Ramos's Rule 48
Motion.
In light of our resolution, it is not necessary to
address Ramos's remaining contention.6
For the foregoing reasons, we affirm the Second
Circuit Court's November 15, 2022 "State's Findings of Fact,
Conclusions of Law, and Order Denying Defendant's Motion to
Dismiss Pursuant to Rule 48" entered in 2CPC-XX-XXXXXXX and
2CPC-XX-XXXXXXX.
DATED: Honolulu, Hawai‘i, January 30, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Emmanuel G. Guerrero,
Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Richard B. Rost,
Associate Judge
Deputy Prosecuting Attorney
County of Maui,
/s/ Karen T. Nakasone
for Plaintiff-Appellee.
Associate Judge

6 The 40-day time period from August 8, 2022, to September 26, 2022
that Ramos challenges in his third point of error, is not determinative of
the outcome of Ramos's Rule 48 Motion. Assuming arguendo this period should
have been excluded, this only results in 76 (40 + 36) unexcluded days, far
short of the 180-day time limit under the rule.
6