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.