Monday, October 17, 2016

Waiving your Rights has Never been this Tough

State v. Krstoth (HSC August 9, 2016)
Background. Takson Krstoth pleaded guilty to murder in the second degree. At the change-of-plea hearing, Krstoth appeared with a Chuukese interpreter. A colloquy between Krstoth and the court revealed that Krstoth was 22 years old with a tenth-grade education. He did not read or write in the English language. The circuit court accepted the plea and set the case for sentencing. Before sentencing, the court received a letter written by someone else and purportedly signed by Krstoth. The letter stated that he entered the plea agreement because he had been frightened terribly by his defense counsel. After the letter, Krstoth’s counsel moved to withdraw as counsel and a new lawyer was appointed. Krstoth then filed a motion to withdraw the guilty plea on the grounds that the interpreter was not informing Krstoth of what was being said and was simply telling him to “say yes” and “say no.” Krstoth also argued that he did not authorize his initial lawyer to enter the plea agreement for him. The circuit court denied the motion and sentenced Krstoth to life with the possibility of parole. The ICA affirmed.

Pleading Out the Right Way? The trial judge must ensure that a guilty plea is entered voluntarily and knowingly. State v. Solomon, 107 Hawaii 117, 127, 111 P.3d 12, 22 (2005). In order to ensure a voluntarily entered plea, “the trial court should make an affirmative showing by an on-the-record colloquy between the court and the defendant wherein the defendant is shown to have a full understanding of what the plea of guilty connotes and its consequences.” Id. There must be a showing on the record that the defendant validly waived his constitutional rights associated with trial. Id.

In this case, the HSC considered the validity of the following colloquy:

Q.           Do you understand that you have a right to plead not guilty and ask for a trial?
A.           Yes.
Q.           Do you understand by pleading guilty you’ll be giving up some rights?
A.           Yes.
Q.           I need you to listen up. You have a right to file motions to challenge the charge. You have a right to a public and speedy trial which means the prosecutor must present its case against you ask quickly as possible. You have a right to a jury trial. And what a jury trial is is twelve people from the community are randomly selected. They sit in those orange chairs there. They listen to the evidence, and the jury decides if the evidence is sufficient to find you guilty.
               You have the right to have the government bring the witnesses into court to testify in front of you. And through [your lawyer] you get to question the witnesses. You have a right to testify on your own behalf or have [your lawyer] bring witnesses for you to testify for you. And finally if there was a trial and if you were found guilty, you have a right to take an appeal to a higher court to see if there was any mistakes made by this court.
               Now those are your rights as you stand there this morning. Do you understand that?
A.           Yes.
Q.           Do you understand by pleading guilty you give up those rights?
A.           Yes.
Q.           Do you understand by pleading guilty, I’m going to find you guilty and sentence you without a trial?
A.           Yes.
Q.           Do you understand that after you are sentenced you cannot change your mind and say that I didn’t like the sentence so therefore I want my trial?
A.           Yes.

The validity of a waiver is determined by assessing the totality of the circumstances and by “taking into account the defendant’s background, experience, and conduct.” State v. Gomez-Lobato, 130 Hawaii 465, 470, 312 P.3d 897, 902 (2013). A language barrier “between the defendant and the court is a salient fact that puts the trial court on notice that a defendant’s waiver may be less than knowing and intelligent.” State v. Phua, 135 Hawaii 504, 513, 353 P.3d 1046, 1055 (2015).

The Right to a Jury Trial and how to Waive it. The HSC took issue with the part of the colloquy in which the circuit court described only part of the right to a jury trial. The HSC pointed out that at no time did the court inform Krstoth that he had the right to take part in selecting the jury, that the jury’s verdict must be unanimous, and that if he were to waive the right to a jury trial, but demanded trial, the judge would decide if the defendant is guilty or not guilty. See State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000). The HSC was careful to point out that informing the defendant about these rights is not mandatory all the time, it was mandatory here given Krstoth’s limited proficiency in English and his limited education.

Other Problems with the Colloquy. The HSC also took issue with the court’s recitation of rights. First off, the HSC pointed out that the court was wrong when it told Krstoth that if the jury were to “listen to the evidence, and the jury decides if the evidence is sufficient to find you guilty.” The statement, according to the HSC, suggests that Krstoth could be found guilty based on “sufficient” evidence and not proof beyond a reasonable doubt. Moreover, the HSC found the court’s suggestion that motions limited to “challenge the charge” and nothing more, and that the right to a speedy trial meant that “trial must commence as quickly as possible” were incorrect statements of law. In the end, the HSC held that there were too many problems with the colloquy to sustain a valid waiver and vacated the judgment.


So What have we Learned? Good question. The HSC did not establish any hard and fast rules in this case. True, not all colloquies require an extensive and detailed run down on the right to a jury trial and what it means—but the court needed to do that here. Why? Because of the language barrier? The limited education? Both? And besides, the court did not clearly state the rights at issue correctly. But was that the determinative factor? Maybe. Perhaps we can chalk this up as an example of everything going sideways and not just one thing standing out. But we won’t know that until another case comes along and the HSC clears it up.

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