Tuesday, November 24, 2015

Lost Wages are Compensable Under the Restitution Statute.

State v. DeMello (HSC November 2, 2015)
Background. Lawrence DeMello was charged with harassment and trespassing. He was found guilty after a bench trial. At trial, the complainant testified about an altercation he had with DeMello. Subsequently, the District Court held two evidentiary hearings on restitution claims. Again, the complainant testified about the altercation and included testimony about experiencing chronic pain, blurred vision, and having difficulty standing. She also testified that because of these injuries, she missed work as a hairdresser for ten days. She claimed lost wages in the amount of $1,155.12. DeMello argued that the lost wages were not part of the criminal restitution claim. The district court disagreed and ordered the lost wages as restitution. DeMello appealed the ICA vacated the order and held that lost wages were not compensable. The State petitioned the HSC.

Restitution and Lost Wages. “The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim.” HRS § 706-646(2). Restitution shall be “a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to: (a) Full value of stolen or damaged property . . . ; (b) Medical expenses; and (c) Funeral and burial expenses incurred as a result of the crime.” HRS § 706-646(3).

The Plain Language Rules: Lost Wages are Covered by Restitution Statute. The HSC here had to interpret the statute to see if this included lost wages. It started with the plain language of the statute. “Courts are bound, if rational and practicable, to give effect to all parts of a statute and no clause, sentence or word shall be construed as superfluous, void or insignificant if construction can be legitimately found which will give force to and preserve all words of the statute.” Dawes v. First Ins. Co. of Hawaii, Ltd., 77 Hawaii 117, 135, 883 P.2d 38, 56 (1994).

In examining the plain language of the restitution statute, the HSC held that the losses by the victim must be (1) reasonable, (2) verified, (3) suffered as a result of the defendant’s conduct, and (4) requested by the victim. This does not exclude lost wages. Such an interpretation, according to the HSC, “harmonizes” with HRS § 706-646(3), which calls for an amount “sufficient to reimburse any victim fully for” the losses. Moreover, the list subsection (3) is an “inclusive list” that does not foreclose the possibility of other kinds of losses. See, e.g., State v. Mita, 124 Hawaii 385, 391, 245 P.3d 458, 464 (2010) (phrase “shall include but not limited to” is an “inclusive, rather than exclusive, list of examples”). And so the HSC held that the statute includes reasonable, verifiable, and requested lost wages that were caused by the defendant’s conduct.

Legislative History Notwithstanding. The crux of the issue came from the legislative history. Courts “do not resort to legislative history to cloud a statutory text that is clear.” State v. Kalama, 94 Hawaii 60, 64, 8 P.3d 1224, 1228 (2000). According to the HSC, it has “repeatedly declined to rely on legislative history where the plain language did not produce an absurd result[.]”

In this case, the HSC examined the legislative history of the restitution statute. The statute was promulgated in 1998. At that time, various committees in the Legislature debated the inclusion of “therapy and wage loss,” but it ultimately did not make it into the final version. Later, the statute was amended in 2006 to its current form. There was no express discussion on wage loss, but there was the general intent to have a defendant fully compensate victims for their losses. According to the HSC, “whatever the 1998 Legislature may have said, in accordance with the clear language of the statute as of 2006, reasonable and verified lost wages are to be included in a restitution award.”

Justice Pollack’s Dissent. Justice Pollack disagreed with the majority’s interpretation of the statute. For him, “it is apparent that the legislature intended to limit the types of financial injuries that are compensable under the statute.” And because it was not clear if lost wages are covered, it was necessary to resort of legislative history.

Justice Pollack wrote that the legislative history showed that the legislature intended to exclude lost wages. Moreover, the rule of lenity supports the exclusion of lost wages. Because the majority’s decision “broadens the statute’s coverage well beyond its understood application by courts and practitioners for nearly twenty years and in a manner that is manifestly contrary to the legislature’s intent,” he dissented and would have affirmed the ICA. Judge Perkins, who sat by reason of a vacancy, joined.

 So What Now? The HSC has held that the Legislature’s statute included wage losses—despite evidence in the legislative history that it should not be included. The dissenters argued that that is not what the Legislature intended. And so the HSC has moved the ball into the court of the Legislature. Does the Legislature want to amend the statute to “fix” the ruling? Is that the true intent? Perhaps. In a weird way this is how democracy works.

Thursday, September 24, 2015

Traffic Infractions Do not Bar Subsequent Prosecutions

Traffic Infractions Do not Bar Subsequent Prosecutions
State v. Kalua (ICA September 2, 2015)
Background. Manaiakalani Kalua received two citations: one for excessive speeding in violation of HRS § 291C-105(a)(1) and one for regular-kine speeding in violation of HRS § 291C-102(a)(1). Excessive speeding means the vehicle is going either 80 mph or more or the vehicle is in excess of 30 mph of the speed limit.

The two charges are based on two separate incidents. In the notice of traffic infraction, Officer T. Koyanagi measured Kalua’s speed by radar and stated that he was going 71 mph in a 55-mph zone and that Officer Koyanagi tried to stop him as the speed limit dropped to 40 mph. In that zone, Officer Koyanagi cited Kalua for going 73 mph, which formed the basis for the excessive speeding.

For the regular-kine speeding, Kalua had to answer the citation within 21 calendar days or the court would enter a default judgment. He paid the speeding ticket and the default judgment. Regular speeding is not a crime, but a traffic infraction. Excessive speeding, which is a criminal offense, required an appearance in court and the citation included a summons to the District Court.

Kalua did not answer the regular-kine speeding and a default judgment was entered. He also did not appear at court and a bench warrant was issued. Subsequently, Kalua appeared in the District Court after the warrant had been served. Kalua then filed a motion to dismiss the excessive speeding charge on the grounds that he had already paid the traffic infraction and could not be subsequently prosecuted for the same or similar conduct. The district court granted the motion. The State appealed.

Penal Code Prohibits Repetitive Prosecutions . . . The “defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.” HRS § 701-109(2). The statute is “designed to prevent the State from harassing a defendant with successive prosecutions where the State is dissatisfied with the punishment previously ordered or where the State has failed to convict the defendant.” State v. Servantes, 35, 38, 804 P.2d 1347, 1348 (1991).

. . . but the Traffic Code Exception. On the other hand, there’s an exception to this statute in the Traffic Code. De-criminalized traffic infractions are outside the Hawaii Penal Code and traffic infractions are adjudicated pursuant to HRS Chapter 291D. “In no event shall section 701-109 preclude prosecution for a related criminal offense where a traffic infraction committed in the same course of conduct has been adjudicated pursuant to this chapter.” HRS § 291D-3(d). According to the ICA, this statute is intended to ensure that the “procedures established for the expeditious and streamlined adjudication of non-criminal traffic infractions will no jeopardize or adversely affect the State’s ability to pursue prosecutions of crimes related to the non-criminal traffic infractions.”

The ICA held that the plain language of HRS § 291D-3(d) allows the prosecution for the criminal offense of excessive speeding to proceed even though Kalua paid his traffic ticket arising out of the same episode.

Harmonizing Fitzwater. In doing so, the ICA also rejected the District Court’s conclusion that State v. Fitzwater, 122 Hawaii 354, 227 P.3d 520 (2010), changed the way it should interpret HRS § 291D-3(d). Regular-kine speeding is considered a lesser-included “offense” to excessive speeding. State v. Fitzwater, 122 Hawaii at 357, 227 P.3d at 523. The ICA simply held that it didn’t matter if regular-kine speeding was included with excessive speeding. It does not bar the prosecution from bringing the excessive speeding charge.

Double Jeopardy isn’t at Issue Either. The ICA also examined wither the excessive-speeding prosecution violated the Double Jeopardy clauses. U.S. Const. Am. V and Haw. Const. Art. I, Sec. 10 (no person “shall . . . be subject for the same offense to be twice put in jeopardy”). Double Jeopardy protects defendants from “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Higa, 79 Hawaii 1, 5, 897 P.2d 928, 932 (1995). Relying on almost exclusively federal precedent, the ICA stated that it was “well-settled that the double jeopardy protections against successive prosecutions and multiple punishments only prohibit successive criminal prosecutions and multiple criminal punishments for the same offense. Helvering v. Mitchell, 303 U.S. 391, 399 (1938); Hudson v. United States, 522 U.S. 93, 99 (1997); Purcell v. United States, 594 A.2d 527, 529 (D. C. Ct. App. 1991).

When a Civil Penalty Becomes a Criminal Punishment . . . Based on that, the ICA held that if the regular-kine speeding infraction was civil in nature and not a criminal offense, then the Double Jeopardy clauses would not apply. To determine whether a statute and its punishment are civil or criminal requires an analysis. Even when the statute is not labelled as a criminal punishment and even when there is no jail involved, the court must still determine if “the statutory scheme was so punitive either in purpose or effect as to negate [the Legislature’s] intention” to keep it a non-criminal infraction. Tause v. State Dept. of Labor and Indus. Rel., 113 Hawaii 1, 31, 147 P.3d 785, 815 (2006).

The determination is based on seven factors: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been historically regarded as a punishment (as opposed to a civil infraction); (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned Id. at 32, 147 P.3d at 816.

According to the ICA the “sanctions” for regular speeding are not so punitive that it would transform the civil remedy intended by the Legislature into a criminal punishment. Speeding sanctions are primarily monetary. HRS §§ 291D-3 and 9, HRS § 291C-102 and 161. And so because they are not criminal penalties, Double Jeopardy is not at issue and is not affected by the subsequent prosecution. The dismissal order was vacated and the case remanded back to the District Court.

The Fitzwater Problem in Kalua’s Case. The ICA remanded the case back to the District Court. An interesting problem could play out. If regular speeding is a lesser-included offense, and if Kalua had already paid his ticket for the regular speeding, what would happen if the prosecution failed to prove the excessive speeding, but could prove the regular speeding? What happened to the Double Jeopardy analysis then? Would it merge with an already-paid traffic offense? Wouldn’t the District Court have to dismiss the excessive speeding charge all over again and not impose a new fine? Wouldn’t we back at the same place? Perhaps all will be revealed after remand.

Ditching your Attorney is Tougher than it Seems

State v. Phua (HSC June 30, 2015)
Background. Han Kamakani Phua was arrested and charged with harassment after the complainant and others came onto his property and Phua got into a non-violent quarrel with them. Phua appeared in the District Court of the Third Circuit with his lawyer and a Mandarin interpreter. He entered a not guilty plea demanded a trial. At the trial date, the interpreter didn’t show up so Phua requested a continuance. The prosecution objected and presented two witnesses. The witnesses testified that Phua could speak, understand, and communicate in the English language when he worked as a stock boy at Walmart and after he had been arrested. Phua’s witnesses testified that although he could speak English, the language is not his first language (Malay and Chinese are). He had a hard time with legal documents and legal principles. Judge Joseph Florendo of the District Court denied the motion.

At the end of the trial, the court found Phua guilty as charged, granted counsel’s request for a pre-sentence investigation report, and scheduled a sentencing hearing. Days before sentencing, Phua filed pro se a “Motion to Amend/Writ of Error” seeking the removal of the case to federal court as a civil matter. Following the pleading came a Declaration of Phua’s Counsel in which counsel stated that he was unavailable for the sentencing hearing due to another matter in Hilo, but filed the Declaration of Counsel instead of a motion to continue because Phua insisted that he attend the hearing without his lawyer. Counsel presented two options for the court and Phua: if Phua wanted to proceed with counsel, please consider this a motion to continue. If he did not, then please refer to the PSI. Counsel recommended no jail and presented a sentencing argument. Counsel finally noted that he did not receive the PSI from probation despite his request to have it faxed to him.

At the hearing, Phua appeared without his lawyer. The district court did not make any reference to the declaration of counsel. The sentencing hearing was not noted as a possible motion to continue. Instead, the district court asked Phua if he wanted to proceed without his lawyer. Phua responded that he “let my attorney go, and that’s why I have filed this document right in front of me that I have submitted to the Court.” The court asked Phua if he fired his attorney and Phua said yes. The Court asked again if Phua wanted to proceed without any lawyer and represent himself. The Court told him that if he could not afford an attorney one would be appointed for him. Phua said he was unaware of that, but still wished to proceed pro se. The Court engaged in a colloquy about his age, his education, and his understanding of certain rights.

At the sentencing, there was no mention if Phua received the PSI. When the prosecutor referred to the recommendation in the PSI, Phua objected and “moved to strike” the statement. The court asked if Phua had anything to say and Phua made a statement saying that he was moving to “amend slash writ of error” related to civil cases, sovereign rights, and that only the United States District Court has jurisdiction over him. The district court denied the motion and sentenced him to jail for five days and probation for six months. Phua appealed and the ICA affirmed.

The Right to Counsel Extends to Sentencing. It is well-established that the State and federal constitutions guarantee the right to counsel at sentencing. State v. Pitts, 131 Hawaii 537, 544, 319 P.3d 456, 460-61 (2014). When a defendant wants to represent himself pro se, the trial court must offer counsel and proof on the record that the defendant “voluntarily, knowingly, and intelligently rejected the offer and waived that right.” State v. Dickson, 4 Haw. App. 614, 619, 673 P.2d 1036, 1041 (1983).

Waiving the Right to Counsel and Going Pro Se: A How-To. The HSC adopted the Dickson analysis in determining if the trial court properly waived the right to counsel. The waiver inquiry is divided into three “areas”: (1) the particular facts and circumstances relating to the defendant that indicate the defendant’s level of comprehension; (2) the defendant’s awareness of the risks of self-representation; and (3) the defendant’s awareness of the disadvantages of self-representation. Id. at 619-620, 673 P.2d at 1041-42. According to the HSC, the trial court must first examine the facts and circumstances particular to the defendant to assess his or her level of comprehension. Once that’s done, the trial court can tailor its colloquy to ensure that it adequately covers the other two factors.

First Factor: Background and Comprehension of Defendant. Once the defendant expresses an interest in going pro se, the court should inquire about certain facts that will assist the court in determining the defendant’s level of comprehension. This would include facts like the defendant’s age, education, English language skills, mental capacity, employment background, and prior experience with the criminal justice system.

Here, the HSC held that the district court’s inquiry was “limited.” Although the court questioned Phua about his age and whether he attended high school, other information presented to the court suggested that further inquiry was necessary. Phua’s mother had testified at trial that he was a “special education” student, that he did not pass any elementary grade levels after the first grade, and repeated the sixth grade three times. The court was also on notice that Phua may have had trouble with the English language because it was his second language. A “language barrier” is a “salient factor” putting the court on notice that the defendant’s waiver may be less than knowing and intelligent. State v. Gomez-Lobato, 130 Hawaii 465, 471, 312 P.3d 897, 903 (2013). Finally, Phua had no prior experience with the criminal justice system—he had no prior record.

Second Factor: Risks of Self-Representation. Once the first factor has been analyzed, the court moves on to the second and third factors. Under the second factor, the court must alert the defendant to things like “the nature of the charge, the elements of the offense, the pleas and defenses available, the punishments which may be imposed, and all other facts essential to a broad understanding of the whole matter.” Dickson, 4 Haw. App. at 619-20, 673 P.2d at 1041. Here, the district court did not properly assess the second factor. According to the HSC, the district court failed to apprise Phua, who had little to no understanding of the criminal justice system, about the potential punishments that may be imposed.

The Third Factor: Disadvantages of Self-Representation. As for the third and final facto, the HSC noted that Dickson cautioned trial courts about informing defendants about the disadvantages of self-representation:

The trial court should inform the defendant: of his right to counsel, whether private or appointed; that self-representation is detrimental to himself; that he will be required to follow all technical rules and substantive, procedural, and evidentiary law; that the prosecution will be represented by able counsel; that a disruption of the trial could lead to vacation of the right to self-representation; that if voluntary self-representation occurs, the defendant may not afterward claim that he had inadequate self-representation.

Id. at 620, 673 P.2d at 1041-42.

Again, the HSC found that the colloquy in this case did not do enough. It did not adequately show that Phua was informed about the disadvantages of self-representation. It was not enough to have the district court simply ask Phua a series of yes-no questions without providing him an opportunity to express confusion or ask questions.

No Waiver and a Pre-Sentence Allocution Reminder. In addition to the Dickson analysis, the HSC held that Phua’s waiver of his right to counsel was critically deficient. The HSC noted that the district court’s failure to apprise Phua of the range of allowable punishment was enough to render the wavier invalid.

Lastly, the HSC noted that because it was going to remand for re-sentencing, it need not address the other issue on appeal: Phua’s right to address the court prior to sentencing. Nonetheless, the HSC took the time to remind courts that allowing the defendant to address the court prior to his or her sentencing is “essential to fair treatment.” State v. Chow, 77 Hawaii 241, 246-47, 883 P.2d 663, 668-69 (App. 1994).

Justice Nakayama’s Dissent and Concurrence. Justice Nakayama wrote separately. She agreed with the majority that Phua’s waiver was deficient because it was not knowing or intelligently done. She disagreed, however, with the majority’s analysis of the district court’s colloquy. Justice Nakayama wrote that the district court had done enough to determine that Phua knew what he was doing when he decided to proceed pro se. She pointed out that the district court asked Phua more than once if he understood that he had the right to an attorney and that Phua acknowledged this right even though he said that he was unaware of the right up until that point. As for inquiring into Phua’s background, Justice Nakayama believed that the district court had again done enough. Phua told the court that he was 31 and had a high school education. There was evidence that he worked at Wal-Mart and spoke English to his co-workers and customers there. And even though it would have been “ideal for the district court to reestablish all of this information on the record,” it is not—according to Justice Nakayama—constitutionally required. Judge Dean Ochiai, who stood in place of Justice Acoba, joined.

Thursday, July 30, 2015

Prosecutor's Office can Represent the State in Bail Forfeiture Proceedings

State v. Miles (ICA June 23, 2015)
Background. Robert Miles was charged with felony offenses. His bail bond company, Exodus Bail Bonds, posted bail on his behalf in the amount of $5,000. Miles pleaded guilty, but did not show up for his sentencing hearing. The circuit court issued a bail forfeiture judgment on October 8, 2012. On November 21, 2012, the prosecuting attorney’s office sent a letter to Exodus notifying it that the bail forfeiture judgment had been filed. Exodus filed a motion to set aside the forfeiture on the grounds that Miles had surrendered. The circuit court wanted more proof of the actual surrendering and denied the motion without prejudice. No additional proof was presented to the court and the motion to set aside remained denied. Exodus appealed.

The Prosecutor has Standing to Represent the State at a Bail Forfeiture Hearing. A surety may obtain relief from a bail forfeiture judgment “upon good cause shown why execution should not issue[.]” HRS § 804-51. Absent a good cause, the bond must be forfeited. State v. Vaimili, 131 Hawaii 9, 17, 313 P.3d 698, 706 (2013). Here, Exodus does not challenge the lack-of-good-cause finding by the circuit court. Instead, it argued that the prosecutor had no place at the hearing on its motion to set aside forfeiture.

The Prosecutor’s Source of Power. The office of the prosecuting attorney is indeed a county office, but each county has “the power to provide by charter for the prosecution of all offenses and to prosecute for offenses against the laws of the State under the authority of the attorney general of the State[.]” HRS § 46-1.5(17). The City and County of Honolulu exercised that power and established the office of the prosecuting attorney. The prosecutor’s office has the power to “[a]ttend all courts in the city and conduct, on behalf of the people, all prosecutions therein for offenses against the laws of the state and ordinances and rules and regulations of the city[.]” Rev. Charter of the City and County of Honolulu § 8-104.

Bail-Bond Forfeiture Proceedings are part of the Criminal Case. The ICA rejected Exodus’ argument that the bail bond proceedings were civil in nature and that the prosecutor’s office could not represent the State. The ICA noted that HRS § 804-5 establishes forfeiture proceedings in a “criminal cause.” Moreover, the legislative history of the provision strongly suggested to the ICA that the prosecutor’s office has a place in bail bond forfeiture proceedings. And so the ICA affirmed the order denying Exodus’ motion to set aside the bail forfeiture judgment.

A Trial Court's Duty to See if the Jury was Under the Influence

State v. Chin (HSC June 25, 2015)
Background. Susan Chin was indicted with theft in the first degree, attempted theft in the first degree, and money laundering. Chin was the caretaker for the complainant, and the charges alleged that Chin took the proceeds from the sale of the complainant’s home, use of the complainant’s annuities and monies, and other benefits. Chin had a jury trial. In the middle of the trial, the prosecution’s witness, Charles Bowen, testified. The jury found Chin guilty of some, but not all charges.

Chin filed a motion for a new trial and included a declaration of Bowen. Bowen was the complainant’s neighbor who provided evidence for the prosecution. Bowen testified that he had a job with the U.S. government and had a security clearance. In the middle of the trial, a juror approached him in the bathroom. The juror did not say he was a juror, but handed him a business card. The card appeared to indicate that the person was a retired United States Navy service member. The person ended up being the foreperson on the jury.

The motion was denied and Chin was sentenced to prison for up to ten years and more than half a million dollars in restitution. Chin appealed and the ICA affirmed.

The Right to a Fair and Impartial Jury and the Williamson Two-Step. The defendant has a constitutional right to a fair and impartial jury in a criminal case. State v. Pokini, 55 Haw. 640, 641, 526 P.2d 94, 99 (1974). The defendant must first make a prima facie showing that a deprivation that “could substantially prejudice [his or her] right to a fair trial” by an impartial jury took place. State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991). Once made, the “rebuttable presumption of prejudice is raised.” Id. This Williamson test focuses first on the general nature of the outside influence and whether it “could” substantially prejudice the defendant. If it does, then the rebuttable presumption comes into play and the trial court is obligated to investigate.  Id.

According to the HSC, the trial judge (Judge Ahn) and the ICA wrongly applied the test. All that was required of the defendant was a prima facie showing that the outside influence “could” have substantially prejudiced the right to a fair trial. The circuit court and the ICA, however, raised the defendant’s burden to showing actual prejudice. The HSC made it very clear that once the defendant makes a showing that the outside influence could have substantially prejudiced the right to a fair trial, the trial court is obligated to investigate. That didn’t happen here.

Juror-Witness Contacts are an Outside Influence. The HSC then applied the test to Chin’s case. It focused on the nature of the alleged outside influence—the contact between a juror and a witness. Relying on precedent from the HSC and the US Supreme Court, the HSC held that “any contact or private communication, unless trivial, during trial between a juror and a witness represents an outside influence of a nature that could substantially prejudice a defendant’s right to a fair trial.” See Mattox v. United States, 146 U.S. 140, 150 (1892); Remmer v. United States, 347 U.S. 227, 229 (1954); State v. Pokini, 55 Haw. 640, 656, 526 P.2d 94, 108 (1974); State v. Messamore, 2 Haw. App. 643, 652, 639 P.2d 413, 420 (1982) abrogated on other grounds in State v. Moore, 82 Hawaii 202, 921 P.2d 122 (1996).

In a footnote, the HSC expanded on the word “trivial.” “A court may find that brief salutations, such as good morning or good afternoon, are trivial when there are no circumstances present indicating that the communication was anything other than benign.”

The communication in this case was not trivial. The trial court had enough evidence that the contact between Bowen and the juror could have substantially prejudiced Chin’s right to a trial. She met her burden triggering the court’s duty to investigate.

The Court’s Obligation to Investigate the Matter. Once the defendant meets his or her burden, the trial court is obligated to “further investigate the totality of circumstances surrounding the outside influence to determine its impact on jury impartiality.” Williamson, 72 Haw. at 102, 807 P.2d at 596. The investigation includes an “individual examination of potentially tainted jurors, outside the presence of the other jurors, to determine the influence, if any, of the extraneous matters.” Id. The court must investigate to determine if the outside influence was harmless or not. Messamore, 2 Haw. App. at 652, 639 P.2d at 420.

After the investigation, the burden falls onto the prosecution to show that the outside influence on the jury was harmless beyond a reasonable doubt. Williamson, 72 Haw. at 102, 807 P.2d at 596.

The Remedy. The trial court failed to investigate the matter and there is no way to determine if Chin’s fundamental right to a fair trial by an impartial jury had been compromised or not. Based on that impossibility, the HSC not only vacated the judgment, it remanded for a new trial. In other words, the trial court was not given the opportunity to investigate. The presumption of prejudice prevailed and a new trial was ordered.

Tuesday, June 23, 2015

The Right to Counsel of Choice is Strong Enough to Outweigh a Jury that’s Ready to Go.

State v. Reed (HSC June 17, 2015)
Background. Ikaika Reed was charged with assault in the first degree. The allegation stems from an incident at the Waianae Boat Harbor, where during the early morning hours, Reed punched a guy in the face while holding the knife and caused a laceration across the guy’s face from “the tip of his ear to the tip of his nose.” If convicted, he was looking at a ten-year prison term with a mandatory minimum of three years and four months.

Shortly after his arraignment, the Office of the Public Defender was appointed to represent him. Twenty-seven days after the appointment, the public defender moved to continue trial because he had not received a copy of the grand jury proceedings. Trial was continued. About a week before trial, Reed moved to continue again. The motion was continued briefly. Five days before the trial date, Reed told the court that he was looking for retained counsel and requested more time. The prosecution did not object, but the circuit court denied the motion.

On the day of trial, Reed appeared with privately retained counsel and renewed his request for a continuance. The public defender moved to withdraw. Reed’s retained counsel explained that if the continuance was granted, he would be able to represent Reed at trial. The circuit court nonetheless found Reed’s request “dilatory” and denied the continuance and the public defender’s motion to withdraw.

After a two-day trial, the jury found Reed guilty. The circuit court sentenced Reed to ten years prison with the mandatory minimum of three years and four months. Reed appealed and the ICA affirmed.

Your Constitutional Right to the Lawyer of your Choice. The Sixth Amendment to the U.S. Constitution and Article 1, Section 14 of the Hawaii Constitution includes “the right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 179-80, 19 P.3d 1289, 1291-92 (2001). The right to retained counsel is so important that deprivation of it results in “structural error.” State v. Cramer, 129 Hawaii 296, 303, 299 P.3d 756, 763 (2013). A structural error affects the structure in which the trial took place, not the trial process itself. State v. Ortiz, 91 Hawaii 181, 193, 981 P.2d 1127, 1139 (1999). And so structural errors are not subject to harmless review. The HSC noted that inherent in the right to retained counsel is the fact that that the accused “should have confidence and trust in his or her counsel, and accordingly, in the judicial system as a whole.”

The Maddagan-Cramer-(and now)-Reed Balancing Test. Like all rights, the right to retained counsel is not absolute. When the court considers a motion to withdraw and substitute counsel, the trial court must give “[d]ue regard” to the defendant’s right to counsel of choice and “countervailing considerations.” Maddagan, 95 Hawaii at 180, 19 P.3d at 1292. The HSC pointed out that in Cramer there were cases from other jurisdictions that had identified a host of factors to determine. In Cramer, however, the trial court only considered the timeliness of the request and failed to address other factors. Id. at 302, 299 P.3d at 762. The HSC held that this case is extremely similar. Every request for a continuance in the case was justified and there was insufficient grounds to deny the motion to withdraw. The prompt administration of justice was simply not enough to justify the circuit court’s denial. And because this was a structural error, no harmlessness needed to be proved. The judgment was vacated and remanded for a new trial.

Sending a Letter Bound for the HPA is not “Remaining Silent” at the HPA.

State v. Garcia (HSC June 15, 2015)
Background. Eddie Garcia was charged with one count of continuous sexual assault of a minor under the age of fourteen years, a Class A felony, and one count of abuse of family household member. He pleaded not guilty and prepared for trial. After the pre-trial voluntariness hearing, Mr. Garcia reached a plea agreement with the prosecution. Mr. Garcia agreed to plead no contest to both counts and agree to 20 years prison concurrent (he wouldn’t have to do 21 years). The prosecution agreed to “remain silent at the minimum term hearing” in front of the Hawaii Paroling Authority.

Before sentencing, Garcia’s family and friends submitted to the pre-sentence investigator letters of support of him. His daughter also wrote a letter asking the Court to lessen his sentence because her mother was struggling without him. The prosecution also submitted a letter and three exhibits. The letter pointed out “some aggravating factors” even though it simultaneously recognized that Garcia’s sentence had already been determined pursuant to the plea agreement. The letter drew attention to the facts underlying the case and the attached exhibits included evidence that was never part of the PSI report, including a transcribed confession by Garcia to the police. The letter drew conclusions from the material by arguing that Garcia has tried to avoid taking responsibility for “his aberrant and sexually predator actions.” The letter also called him a “master manipulator.” Finally, the letter summed up that there should be no factors in favor of withholding imprisonment.

Garcia moved to withdraw his no-contest plea on the grounds that the prosecutor breached her agreement. At the hearing on the motion, the family court, concluded that the prosecutor did not breach the agreement because the PSI had not yet gone to the HPA. The family court—over Garcia’s objection (he wanted to withdraw the plea entirely)—denied the motion, but ordered the old PSI stricken and ordered a new PSI. This time the new PSI did not contain the prosecutor’s letter and attachments. At sentencing the family court sentenced him to 20 years. Garcia appealed and the ICA affirmed. Garcia applied for a writ of cert.

The Two Standards in Evaluating a Motion to Withdraw a Plea. How the court evaluates the withdrawal of a no-contest or guilty plea depends on when the request was made.

Where the request is made after sentence has been imposed, the “manifest injustice” standard is to be applied. But where the motion is presented to the trial court before the imposition of the sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice.

State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 522-23 (1978). See also Hawaii Rules of Penal Procedure Rule 32(d). Here, Garcia moved to withdraw the plea before sentencing. That means, according to the HSC, that the issue was whether the prosecutor’s conduct was a fair and just reason for requesting the plea and whether the prosecution relied on the plea to its substantial prejudice.

Submitting a Letter Bound to the HPA was a “Fair and Just” Reason to Get out of the No-Contest Plea. “It is well settled that the terms of a plea agreement, which serve as the inducement for entering a plea, must be fulfilled.” State v. Adams, 76 Haw. 408, 414, 879 P.2d 513, 519 (1994). When the parties enter a plea agreement, “the liberty of the defendant, . . . the honor of the government, public confident in the fair administration of justice, and the efficient administration of justice” are all at stake. People v. Sanders, 191 Cal. App. 3d 79, 87 (Cal. Ct. App. 1987).

According to the HSC, the prosecutor’s sending of the letter and exhibits was “inconsistent” with the prosecution’s promise to “remain silent at the minimum term hearing” before the HPA. Even though the prosecutor knew that Garcia would be sentenced to twenty years and even though the letter would eventually be received by the HPA, the prosecutor submitted it. The letter was more than a factual rehashing of the offense, it also “drew conclusions from this factual information and presented argument attacking Garcia’s character.”

The Family Court’s Intervention Could not Save the No-Contest Plea. The HSC expressly noted that the family court’s effort to prevent the HPA from reaching the letter was not enough. “Although the family court’s intervention protected Garcia from being prejudiced at the HPA, it could not undo the impact on Garcia’s perception of the integrity of the system and the trustworthiness of the government and his own counsel.”

The HSC appeared to be deeply concerned about the loss of confidence and trust that accompanies a breached plea agreement. The HSC noted that “if the integrity of plea agreements is not enforced, defendants may lose trust and confidence in the defense counsel who recommended the plea agreement. This outcome would directly undercut the attorney-client relationship.” See State v. Gaylord, 78 Hawaii 127, 141, 890 P.2d 1167, 1181 (1995) (“the attorney-client relationship requires ‘the highest degree of trust and confidence.’”).

Editor’s Note. In the interest of full disclosure, I represented Mr. Garcia before the ICA and the HSC.