State v. Valeros

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2024
07:53 AM
Dkt. 41 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
GLEN HERBERT VALEROS, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Plaintiff-Appellant State of Hawai#i (State) appeals

from the August 3, 2023 Order Granting Defendant's Motion to

Dismiss for Violation of [Hawai#i Rules of Penal Procedure

(HRPP)] Rule 48 (Dismissal Order) entered by the Circuit Court of

the Second Circuit (Circuit Court)1 in favor of Defendant-

Appellee Glen Herbert Valeros (Valeros).

The State raises a single point of error on appeal,
contending that the Circuit Court abused its discretion when it

dismissed the charges against Valeros with prejudice, as opposed

to without prejudice.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

1
The Honorable Michelle Drewyer presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

resolve the State's point of error as follows:

The State argues that the Circuit Court abused its

discretion in dismissing with prejudice because it failed to

properly weigh the three factors identified in State v.

Estencion, 63 Haw. 264, 625 P.2d 1040 (1981). The three-factor

test under Estencion is an adoption of the Federal Speedy Trial

Act and is meant to apply when there is a violation of HRPP Rule

48(b). It states:
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 this chapter and
on the administration of justice.

Id. at 269, 625 P.2d at 1044 (citation omitted).

Prejudice to the defendant may also be relevant to the

determination, but this is often inherent in an examination of

the third Estencion factor. See State v. Fukuoka, 141 Hawai#i

48, 56, 404 P.3d 314, 322 (2017) (citations omitted).

Here, the Circuit Court did not enter any written

findings of fact or conclusions of law supporting the Dismissal

Order. So, we examine the Circuit Court's oral explanation of

its decision to dismiss with prejudice:
Well, I'm going to address the Rule 48 issue first. The
Estencion factors that the Court needs to address and
consider.
I do find that the offense is a serious offense. I
find that (Inaudible). I find that the facts and
circumstances of the case which led to dismissal are that
Mr. Valeros was on parole for quite some time. The entire
time (Inaudible) when this order was executed when the
warrant came to be. And he was checking in regularly with
his parole officer and had updated all his information, his
address, phone number (Inaudible). That no attempts
(Inaudible) were made to serve him.

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So I find that based (Inaudible) in the interest of
dismissing this matter with prejudice.
And the last factor that the Court needs to consider,
the impact of the prosecution on the administration of this
chapter and on the administration of justice.

You know, we have a rule to a right to speedy trial
for a reason. And I considered this seriousness of the
offense. But if the Court were to simply dismiss this
without prejudice, it seems to me that we'd be frustrating
the rule that we're trying to enforce.
I don't see any reason under the facts of this case
why it's a year later, we're at A&P basically. So, you
know, it's going to be another few months at least before we
get to any kind of trial. And it will not be a speedy
trial.
So I find that those facts -- specifically, I find
that if the prosecution would be free to commence another
prosecution again by the same offense, the right to speedy
trial would be meaningless.

Prosecutors were (Inaudible) to commence another
prosecution later have not been deterred from the undue
delay.
So in this case, I am going to grant the motion,
dismiss this matter on the basis of Rule 48 with prejudice.

The serious nature of the offense is undisputed by the

parties. Valeros was charged with five counts of Sexual Assault

in the Third Degree, in violation of Hawaii Revised Statutes

(HRS) § 707-732(1)(b) (Supp. 2023),2 each involving charges of

sexual contact with a minor less than fourteen years old.

Although the Circuit Court found that "the offense is a serious

offense," there is no indication as to the weight the court gave

to the fact that there were multiple offenses charged, that the

2
HRS § 707-732 provides, in relevant part:

§ 707-732 Sexual assault in the third degree. (1) A
person commits the offense of sexual assault in the third
degree if the person:
. . . .
(b) Knowingly subjects to sexual contact a person who is
less than fourteen years old or causes such a person
to have sexual contact with the actor[.]
. . . .
(2) Sexual assault in the third degree is a class C felony.

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particular statutory section charged was directed at sex crimes

involving minors under the age of fourteen, and/or that each of

the offenses charged were class C felonies. In sum, there was no

particularized inquiry evident concerning the possible penalty,

the nature of the offense, the number of charged felonies, or

potential punishment. Cf. Fukuoka, 141 Hawai#i at 56-59, 404

P.3d at 322-25. There is nothing in the record to indicate what

weight, if any, the Circuit Court gave to this factor.

We next consider the Circuit Court's weighing of the
second Estencion factor, the facts and circumstances which led to

the dismissal. The Circuit Court articulated that Valeros had

been on parole for quite some time, checking in regularly,

keeping his contact information up to date, but that no attempts

were made to serve him. The Circuit Court did not state whether

it found that the delay was caused by the State's neglect or

deliberate misconduct, but it is clear that the Circuit Court

found that the State caused the delay and that this factor

favored dismissal with prejudice. The State noted that the

warrant had been sent out by the prosecutor for service, but it

is unclear why it was not served; there is no evidence of a

pattern of delay. The record contains no inquiry from the court

or explanation from the State for the State's delay. Although

the Circuit Court's examination of this factor is minimal, based

on the record before it, we cannot conclude that the Circuit

Court abused its discretion in finding this factor weighed in

favor of dismissal with prejudice.

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The third Estencion factor requires consideration of

the impact of reprosecution on the administration of the speedy

trial rule and on the administration of justice. 63 Haw. at 269,

625 P.2d at 1044. Concerning this factor, the Circuit Court

stated "if the Court were to simply dismiss this without

prejudice, . . . we'd be frustrating the rule that we're trying

to enforce," and "if the prosecution would be free to commence

another prosecution again by the same offense, the right to

speedy trial would be meaningless." This analysis would
inherently apply in every case in which an HRPP Rule 48 violation

occurred and would put a thumb on the scale in favor of dismissal

with prejudice in every instance of an HRPP Rule 48 violation.

Cf. Fukuoka, 141 Hawai#i at 65, 404 P.3d at 331. There is no

articulation of how the right to a speedy trial would be

meaningless in light of the facts and circumstances of this case.

There is no articulation of the impact of reprosecution on the

administration of justice generally. Cf. id. at 63, 404 P.3d at

329.

Moreover, a dismissal without prejudice is not

meaningless. See United States v. Taylor, 487 U.S. 326, 342

(1988) (dismissal without prejudice is not a "toothless

sanction;" greater deterrent effect of dismissal with prejudice

alone is not a sufficient reason to dismiss with prejudice).

While the delay was relatively lengthy, there is no evidence or

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finding that Valeros's ability to defend himself was impacted by

the delay and he was not in custody.3

The third factor of the Estencion test cannot be viewed

in isolation from the other factors. Here, there is no

indication that the Circuit Court gave any weight to the first

factor, which was poorly examined. While it was not an abuse of

discretion to find that the second factor weighed in favor of

dismissal with prejudice, there is no evidence or finding of

deliberate misconduct or repeated failures by the State, or how
much weight was given to this factor with respect to the other

factors. The Circuit Court's consideration of the third factor

was inadequate, particularly in conjunction with the lack of any

weighing of the three factors against one another.

We conclude that the Circuit Court abused its

discretion by failing to properly consider and by failing to

weigh all three Estencion factors against one another.

For these reasons, the Circuit Court's August 3, 2023

Dismissal Order is vacated, and this case is remanded to the

Circuit Court for further proceedings consistent with this

Summary Disposition Order.

3
We recognize that a showing of prejudice toward a defendant is not
a mandatory consideration. However, it is a permissible consideration that
might be helpful to particularize the general concerns about the
administration of the speedy trial rule to the circumstances of this case.

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DATED: Honolulu, Hawai#i, April 29, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Richard B. Rost,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
County of Maui, Associate Judge
for Plaintiff-Appellant.
/s/ Sonja M.P. McCullen
Benjamin E. Lowenthal, Associate Judge
Andres Tobar,
Office of the Public Defender,
for Defendant-Appellee.

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