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.