Monday, May 6, 2013

Putting Teeth in the Right to (Retained) Counsel


State v. Cramer (HSC April 29, 2013)
Background. Stephen Cramer was charged with up to seven drug-related offenses and entered the Maui Drug Court Program. He participated in the program for about 18 months before the prosecution filed a motion to terminate him. The circuit court granted the motion and terminated Cramer from the program. At a “stipulated-facts” trial, the prosecution presented an admission to the offenses from Cramer’s petition into the program. Cramer was found guilty.

At the sentencing hearing, Hayden Aluli appeared for Cramer on the condition that he be “given the opportunity to effectively prepare.” Aluli asked for a three-week continuance. The prosecutor was ready for sentencing. The motion for continuance was denied because the requests were untimely. Aluli did not enter his appearance and Cramer remained with the public defender. The public defender asked the circuit court if it had received a substance abuse assessment. The court had not and wanted to review it to determine if he was eligible for sentencing under HRS § 706-622.5. The prosecution requested a continuance and the circuit court agreed thereby continuing the hearing.

At the next hearing, the court sentenced Cramer to five years prison. Aluli appeared as appellate counsel and the ICA affirmed. Cramer petitioned to the HSC.

The Right to Counsel (of Choice). “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for the accused’s defense.” Haw. Const. Art. I, Sec. 14. U. S. Const. Am. VI. Under the state constitutional provision, this encompasses “a right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 180, 19 P.3d 1289, 1292 (2001). This right, however, “is qualified and can be outweighed by countervailing governmental interests.” Id.

The HSC examined for the first time those government interests. The HSC noted that in other jurisdictions, the decision to allow substitute counsel and a continuance turns on several factors. People v. Butcher, 79 Cal. Rptr. 618, 621 (Cal. Ct. App. 1969) (seven factors must be balanced to determine motions for substitute counsel and continuance on day of trial); see also State v. Prineas, 766 N.W.2d 206, 215 (Wisc. Ct. App. 2009) (trial court considered factors in determining defendant’s request for new counsel against “the public interests in the prompt and efficient administration of justice.”).

Here, the circuit court failed to consider any factors other than timeliness. There was no consideration of the length of the delay requested, the impact the delay would have on the prosecution, witnesses, or the court, or whether the delay was for a dilatory purpose. The prosecution did not object to the initial request for substitute counsel and there was no evidence in the record of any prejudice for a substitution and continuance. Nor was there any evidence that any witnesses, parties, or the court would be inconvenienced by the continuance. Thus, the HSC held that the denial of the continuance was an abuse of discretion. The HSC vacated the judgment and remanded for resentencing.

Justice Acoba’s Concurrence. Justice Acoba wrote separately to discuss in great detail that some constitutional violations are so fundamental that they can never be considered harmless. This is one of those cases. Justice Acoba wrote that once the right to retained counsel has been “wrongfully denied, a defendant need not show prejudice or prove the underlying value of such a choice.” Thus, the vacating and remanding of the judgment should have been automatic and the harmless-error analysis was unnecessary. Justice Pollack joined.

A Harmless-Error Analysis? The majority did not apply a harmless-error analysis. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the SCOTUS held that denial of the right to counsel of choice is one of those errors that is not subject to the harmless-error analysis. “It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.” Id. This was a similar situation for Cramer. In a footnote, the majority declined to review and take on the problems associated with the application of the harmless-error analysis. Curiously, Justice Pollack joined the majority opinion too.

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