LIHUE — The Intermediate Court of Appeals of the State of Hawaii on Tuesday ordered a sex assault defendant’s sentence to go back to court on Kauai for dismissal without prejudice.
Corazon D. Constantino, 43, was indicted on two counts of third-degree sexual assault and one count of attempted third-degree sexual assault in July 2010. His motion to dismiss a defective indictment after the sentencing was denied by 5th Circuit that December.
But the ICA ruled the indictment was flawed and the case should be vacated for failing to mention the victim was not married to the defendant in the indictment.
The 5th Circuit Court erred in denying the motions to dismiss when the defense presented the problem, it stated.
“We conclude that the state’s concession of error is appropriate, that Constantino’s conviction must be vacated and the case must be remanded for dismissal without prejudice,” the justices stated.
Dismissing a case without prejudice means charges can be refiled.
County Prosecuting Attorney Justin Kollar said the state intends to do just that.
“The decision does not affect the viability or strength of the case,” he said about a change in law that requires precise language in indictments. “Unfortunately, the appellate court didn’t signal a change in the law until after Judge Kathleen Watanabe had denied the defendant’s motion in the circuit court.”
While the case may be refiled, the defendant served his 364-day jail sentence, was released, and is registered as a sex offender, Kollar said.
Emmanuel Guerrero represented Constantino in the 5th Circuit case.
“It may appear to be a technicality but it is not,” Guerrero said of the grounds for dismissal. “It is a constitutional requirement, and the state had ample opportunity to correct that and they elected not to.”
In February 2011, the court denied Constantino’s motion to dismiss the indictment for lack of probable cause. Subsequent motions for the court to reconsider in 2013 were also denied.
Constantino accepted the terms of a no-contest plea agreement to an amended count of third-degree sexual assault on March 6, 2013. It allowed for a maximum 364-day jail sentence with probation to prevent triggering of deportation proceedings.
At the July 3, 2013, sentence hearing, Constantino requested to withdraw his plea agreement after the state presented him with a waiver of indictment with a request to sign it. He would then go to trial on three C felony charges.
Watanabe later denied his motion to withdraw the agreement.