Counsel's Duties Don't end after Dismissal (Without Prejudice)

Maddox v. State (HSC December 14, 2017)
Background. The prosecution indicted Mickey Maddox with attempted escape in the second degree and promoting prison contraband. He was arraigned about four months later and pleaded not guilty. Trial was delayed for nearly two years and most of that time was waived by Maddox. On December 23, 2008, the circuit court granted Maddox’s motion to appoint new defense counsel. The order appointed counsel “at all stages of proceedings, including appeal, if any.” Counsel filed a motion to dismiss the indictment. The circuit court granted the motion and dismissed it without prejudice.

Two weeks later Maddox was indicted for the same charges again. On the same day the new indictment came down, Maddox filed a “Second Notice of Appeal” and a motion for new counsel pro se. In the motions, Maddox stated that he planned to appeal the order dismissing without prejudice and asked for new counsel. A few weeks later, Maddox filed a “Third Notice of Appeal” on the same grounds. The circuit court did not rule on any of these motions. Nor does the record show that counsel moved to withdraw from representation. The ICA dismissed the appeal for lack of jurisdiction on the grounds that the circuit court did not enter an order of dismissal without prejudice. The circuit court subsequently entered its order.

Meanwhile on the case based on the new indictment, Maddox entered a plea agreement. He was sentenced to probation, but that was revoked and he was sentenced to prison.

Maddox then filed pro se a petition pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40 alleging ineffective assistance of counsel. He argued in the petition that his appointed counsel “abandoned all representation of his client and left him without any representation” on appeal of the order of dismissal without prejudice. He said that despite giving oral notice of his intention to appeal after the indictment was dismissed without prejudice, his counsel told him that he could not represent him “in any manner since the case had been dismissed and his representation terminated at that time.” The Rule 40 petition was denied. Maddox appealed from the denial of the petition and the ICA affirmed. Maddox petitioned for a writ of certiorari.

The Rule 40 Petition. The circuit court must grant an evidentiary hearing for a Rule 40 petition when the petitioner “alleges facts that if proven would entitle the petitioner for relief.” HRPP Rule 40(f). When the circuit court denies a Rule 40 petition without a hearing, the appellate court must determine if the record shows that the petitioner made “a showing of a colorable claim” requiring such a hearing. Dan v. State, 76 Hawaii 423, 427, 879 P.2d 528, 532 (1994).

Ineffective Assistance of Counsel Claims. The accused as the constitutional right to counsel. Haw. Const. Art. I, Sec. 14. Of course, the “constitutional right to the assistance of counsel in a criminal case is satisfied only when such assistance is ‘effective.’” State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972). When a defendant claims his or her counsel was constitutionally deficient, the defendant must show (1) “specific errors or omissions of defense counsel reflecting counsel’s lack of skill, judgment, or diligence” and (2) the errors or omissions “resulted in the withdrawal or substantial impairment of a potentially meritorious defense.” State v. Antone, 62 Haw. 346, 348-349, 615 P.2d 101, 104 (1980).

The Decision to Appeal—even if it’s Bogus—is the Defendant’s; not Counsel’s. Every defendant aggrieved by a circuit court judgment or final order has the right to appeal. HRS § 641-11; State v. Nicol, 140 Hawaii 482, 491, 403 P.3d 259, 266 (2017). This right triggers the constitutional guarantees of equal protection, due process, and effective assistance of counsel. Briones v. State, 74 Haw. 442, 460, 848 P.2d 966, 975 (1993).

The HSC made it very clear that when the defendant decides to appeal, that decision must be honored by counsel—even when counsel thinks it frivolous. In re: Attorney’s Fees of Mohr, 97 Hawaii 1, 7, 32 P.3d 647, 653 (2001). The failure to do that would be ineffective assistance of counsel.

In light of this clarification, the HSC noted that had Maddox’s counsel been effective in perfecting his appeal from the dismissal without prejudice, there would have been an appeal. Thus, the circuit court erred in dismissing his petition without an evidentiary hearing.

The Abandonment of Counsel Issue. The HSC addressed another issue raised by Maddox. The claim of counsel abandoning his or her client is distinct from ineffective assistance of counsel. Maples v. Thomas, 565 U.S. 266, 282 (2012). Once it is shown that counsel had abandoned the defendant during an critical stage of the case, federal courts do not require a showing of prejudice. United States v. Cronic, 466 U.S. 648, 659 (1984). In reviewing cases from other jurisdictions, the HSC essentially adopted the federal courts and held that “when appointed counsel wholly abandons professional duties to his or her client for the substantial duration of a critical stage of the proceeding without timely following the procedural steps to properly withdraw from representation, prejudice is presumed because it is the functional equivalent to having no counsel at all.”


In this case, the HSC noted that Maddox’s counsel did not withdraw shortly after the case was dismissed without prejudice. The only thing filed by counsel after the dismissal was the request for fees. The alleged statement to Maddox that counsel could not help him in his appeal constituted, according to the HSC, abandonment. And so the HSC held that this issue must also be heard in an evidentiary hearing.

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