HSC Extends Right to Counsel (and a Deadline) in Proceedings Before the HSC

State v. Uchima (HSC May 19, 2020)
Background. Jason Uchima was charged with operating a vehicle while under the influence of an intoxicant. He moved to suppress evidence seized by the police after he was arrested, including all of his statements to the police. he argued that while in custody he was ordered to get out of his vehicle and participate in field sobriety tests. This constituted a custodial interrogation and he should have been apprised of his Miranda warnings. The motion was denied and he was found guilty. Uchima appealed and the ICA affirmed.

The ICA’s judgment on appeal as issued on March 19, 2018. After requesting an extension, the deadline to file the application for petition of a writ of certiorari became May 18, 2018. Uchima filed his application six days after the deadline along with a motion to accept the untimely application. In the motion Uchima explained that he failed to correctly calendar to the deadline. It was either a “computer system error or his counsel’s mistake.”

Counsel’s declaration reads like an attorney’s nightmare. Counsel averred that he finished the application and thought he properly filed it within the deadline. It was not until May 24, when he learned about the prosecution’s motion to execute Uchima’s sentence, when he checked the Judiciary Electronic Filing and Service System (JEFS) and could not find the application. Counsel then “checked his emails” and found no confirmation that a case had been made in the Hawai'i Supreme Court. The State filed no response to either the application or the motion.

The Hawai'i Supreme Court has the Power to Hear an Untimely Application for Writ of Certiorari. “After issuance of the [ICA’s] judgment or dismissal order, a party may seek review of the . . . decision or judgment or dismissal order only by application to the supreme court for a writ of certiorari, the acceptance or rejection of which shall be discretionary upon the supreme court.” HRS § 602-59(a). The application must be filed within thirty days after the filing of the judgment or order. HRS § 602-59(c). An additional thirty-day extension is granted when a written request is made before the expiration of the 30-day period. Id. There is no question that the application is untimely. The only issue is whether the HSC has the power to review it anyway.

The Right to Counsel in Criminal Cases Extends to Petitions for Review to the Hawai'i Supreme Court. “Article I, section 14 of the Hawai'i Constitution guarantees a defendant in a criminal prosecution the right to have the assistance of counsel for the accused’s defense.” Maddox v. State, 141 Hawai'i 196, 202, 407 P.3d 152, 158 (2017). See also Haw. Const. Art. I, Sec. 14 (“The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment.”). This right to counsel is guaranteed to the accused at every “critical stage” of the case. State v. Pitts, 131 Hawai'i 537, 541, 319 P.3d 456, 460 (2014). A “critical stage” is “any stage where potential substantial prejudice to defendant’s rights inheres.” Id. at 541-542, 319 P.3d at 460-461.

The HSC has held that trial, post-verdict motions, sentencing, effectuating the appeal, and minimum term hearings before the parole board are all “critical stages” requiring counsel. Akau v. State, 144 Hawai'i 159, 161, 439 P.3d 111, 113 (2019) (trial); Pitts, 131 Hawai'i at 542-544, 319 P.3d at 461-463 (post-verdict); Maddox, 141 Hawai'i at 207, 407 P.3d at 163 (effectuating the appeal); De La Garza v. State, 129 Hawai'i 429, 439, 302 P.3d 697, 707 (2013) (minimum term hearings). Given the complexities in keeping track of deadlines, an understanding of the legal issues and standards, and the fact that the Hawai'i Supreme Court is the court of last resort in Hawai'i and ultimate interpreter of the Hawai'i constitution and its statutes, see State v. Santiago, 53 Haw. 254, 265, 492 P.2d 657, 664 (1971), the HSC held that the proceedings on certiorari review constitute a “critical stage” in criminal proceedings. Therefore, the right to counsel is guaranteed here. The HSC explained that affording the right to counsel here “enhances the criminal justice process and provides greater assurance that the proceedings have comported with due process.”

The Right to Counsel Means Effective Counsel. Having counsel is not enough. The right to assistance of counsel during certiorari review “cannot be satisfied by mere formal appointment.” State v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 499 (1986). Thus, the Hawai'i Constitution guarantees a defendant in a criminal case the right to effective assistance of counsel in the same way it does at all other “critical stages” in a criminal case.

Effective appellate counsel not only includes “the appeal itself, but also the procedural steps necessary to bring about the appeal.” Maddox, 141 Hawai'i at 203, 407 P.3d at 159. The HSC noted that counsel’s failure to “commence the simple steps” in filing the application constitutes ineffective assistance of counsel. See State v. Erwin, 57 Haw. 268, 268-269, 554 P.2d 236, 237-238 (1976) (per curiam). As with the failure to timely file a notice of appeal, counsel’s failings should not “result in the forfeiture of a defendant’s statutory right to petition the supreme court for discretionary review.” State v. Aplaca, 96 Hawai'i 17, 23, 25 P.3d 792, 798 (2001).

As with any ineffective assistance of counsel claim, the HSC held that it can take up an untimely application for writ of certiorari and review it on the merits “when it is plain from the record that defense counsel failed to comply with the procedural requirements for filing the application.” And that was the case here.

The Merits of the Case. The HSC quickly disposed of the merits of the case. Miranda warnings must be given when the defendant is under interrogation and in custody. State v. Kauhi, 86 Hawai'i 195, 204, 948 P.2d 1036, 1045 (1997). An interrogation includes not only express questioning, but words or actions by the police that are “likely to elicit an incriminating response.” State v. Trinque, 140 Hawai'i 269, 277, 400 P.3d 470, 478 (2017). The HSC held that asking Uchima if he would participate in the field sobriety tests, whether he understood the instructions, and whether he had questions did not arise to an “interrogation” requiring Miranda.

As for the medical rule-out questions, the trial court ruled that they had no probative value during the trial proceedings. In other words, the HSC held that the trial court granted the motion to suppress and did not use them to determine guilt at trial. Finally, the performances themselves did not constitute a “statement” or “interrogation.” State v. Wyatt, 67 Haw. 293, 303, 687 P.2d 544, 551 (1984). The HSC affirmed.

Chief Justice Recktenwald’s Concurrence. While he agreed that there is a right to appeal to the HSC and that defendants in criminal cases have the right to effective assistance of counsel during the certiorari review proceedings, the CJ wrote separately because there was no need to determine if the Hawai'i Constitution afforded this right. The CJ explained that HRS § 802-5 confers the statutory right to appointed counsel “at all stages of the proceedings, including appeal, if any.” The plain language of the statute was enough for the CJ to hold that criminal defendant shave the right to counsel on appeal to the HSC so long as Uchima was indigent. Just like the majority, the CJ wrote that when the right to counsel is conferred, even by statute, must be effective counsel. The CJ wrote because he would have avoided the constitutional questions. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 447 (1988).

The CJ also disagreed with the characterization that the application for a writ of certiorari is part of the “first appeal.” An “appeal,” he wrote, is limited to the court considering it. That means that the first appeal is with the ICA. Once review of the lower court’s decision is sought, a separate appeal begins.

Justice Nakayama’s Dissent. Justice Nakayama dissented. She believed that the HSC had no jurisdiction to hear the merits of the case. The language in HRS § 602-59(c) is unambiguous and the majority “impermissibly expands our jurisdiction.” For Justice Nakayama this was akin to a separation of powers problem.

“It is well established that the legislature has the power to set the subject matter jurisdiction of the courts.” Alaka‘i Na Keiki, Inc. v. Matayoshi, 127 Hawai'i 263, 278, 277 P.3d 988, 1003 (2012). Here, the legislature limited the HSC’s jurisdiction in HRS § 602-59(c). There can be no application after the deadline. Once that passes, the court loses jurisdiction to review the judgment. Without jurisdiction, “this court has no authority to act on the substantive issues posed by an appeal.” Korsak v. Hawaii Permanent Med. Grp., 94 Hawai'i 297, 303, 12 P.3d 1238, 1244 (2000). That’s what happened here and, according to Justice Nakayama, the HSC should have dismissed the case.

She was deeply concerned that the majority will set “a precedent that will require this court to review all [a]pplications irrespective of their compliance with deadlines or other procedural requirements. Significantly more judicial resources will be depleted attempting to meet these additional demands.”


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