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.

Thursday, June 18, 2015

Huge Landowners Can’t have a 1,000-Acre “Residence, Including Yard.”

State v. Guyton (HSC June 8, 2015)
Background. John Varel got a restraining order and later an injunction against Evans Guyton. The order prohibited Guyton from “[e]ntering or visiting [Varel’s] residence, including yard and garage.” Varel lives on a 1,000-acre property out in Waihee on Maui.  Guyton was later charged with violating a restraining order or injunction. HRS § 604-10.5(h). Specifically, the complaint alleged that Guyton of “entering and/or visiting the premises including yard and garage of the residence, and/or place of employment.”

At his trial, Varel described his vast property, including a macadamia nut farm, conservation lands, and his residence. The property starts at the highway and goes all the way up the mountains to the watershed. He testified that he never gave anyone permission to dirt bike on the property. Todd Arnold testified that he was hiking on the Varel property when he saw Guyton riding his dirt bike with others along the ridges near the outer parts of the property. Arnold testified that he knew that they were on the Varel property because he knows where the ridge lines are and that Varel pointed out to him the edge of his property. Varel was recalled to the stand and corroborated Arnold. Guyton then testified and acknowledged that Varel’s property is off limits. The district court found Guyton guilty and fined him $500. Guyton appealed. The ICA affirmed.

How to Construe an Injunction Order. Before punishing a person for violating an injunction order, the order must be so “clear and unambiguous” that a person of ordinary intelligence can “ascertain from the four corners of the order precisely what acts are forbidden.” LeMay v. Leander, 92 Hawaii 614, 625, 994 P.2d 546, 557 (2000).
The issue in this case centered around the injunction order prohibiting Guyton from entering Varel’s “residence, including yard.” According to the HSC, that language is clear and unambiguous. The words must “be taken in their ordinary and familiar signification, and regard is to be had to their general and popular use.” In re Taxes of Johnson, 44 Haw. 519, 530, 356 P.2d 1028, 1034 (1960). Courts may “resort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms not statutorily defined.” State v. Pali, 129 Hawaii 363, 370, 300 P.3d 1022, 1029 (2013).

“Residence, Including Yard” Doesn’t Cover a 1,000-Acre Property. Turning to the Oxford English Dictionary, the HSC examined the words “residence” and “yard.” “Residence” means a person’s home, the place where someone lives; “yard” is a piece of ground adjoining a building or house. And so based on this, the HSC held that the “residence, including yard” encompassed the house where Varel lives and the adjacent area surrounding it. Interpreting the injunction order so that the entire 1,000-acre property constitutes “residence, including yard” would run afoul with the plain and ordinary meaning of the words. And so the district court and the ICA erred in interpreting the injunction order so expansively.

Even if the Words were Ambiguous, Lenity Would Favor the Defendant. The HSC then went on to examine what would happen if the words were ambiguous. “Where a criminal statute is ambiguous . . . the statute must be strictly construed against the government and in favor of the accused.” State v. Shimabukuro, 100 Hawaii 324, 327, 60 P.3d 274, 277 (2002). So even if the rule of lenity applied, the order must be construed so that it cannot include the outliers of the Varel property. The HSC reversed the judgment because there was insufficient evidence that Varel had actually violated the injunction order.