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.
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