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Electronically Filed
Supreme Court
SCWC-30559
22-JAN-2014
09:26 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
________________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
JOSEPH PITTS, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-30559
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30559; CR. NO. 09-1-0097)
January 22, 2014
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY MCKENNA, J.
I. Introduction
This court accepted Petitioner/Defendant-Appellant Joseph
Pitts' Application for Writ of Certiorari1 and ordered
1
We did not accept certiorari for the purpose of addressing Pitts'
question presented, as the record does not support Pitts' allegation of error.
We accepted certiorari for the purpose of addressing the question posed to the
parties for supplemental briefing.
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supplemental briefing addressing whether the circuit court erred
in not appointing substitute counsel for Pitts for post-verdict
motions and sentencing. We hold that the circuit court2 erred by
not appointing substitute counsel for Pitts' post-verdict motions
because post-verdict proceedings are critical stages in the
prosecution. We also hold that the circuit court erred by not
appointing Pitts substitute counsel for sentencing.
II. Background
Pitts was tried for attempted murder in the second degree.
Pitts was alleged to have stabbed his close friend.
After opening statements, Pitts expressed a desire to
represent himself. John Schum ("Schum"), Pitts' fourth court-
appointed attorney (appointed after Pitts had developed personal
conflicts with his three preceding court-appointed attorneys),
who represented Pitts at that point, stated the problem was Pitts
believed "he knows the case better than [Schum] do[es] and that
the truth will set him free." The circuit court asked Pitts to
think about his decision over the weekend. The following Monday,
before trial resumed, Pitts informed the circuit court that he
would "push [his] stubbornness aside" and have Schum continue
representing him.
2
The Honorable Glenn J. Kim presided.
2
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Later, during a break in the State's case, Pitts again
announced his intention to fire Schum. After giving Pitts a day
to think about his decision, the circuit court colloquied Pitts
regarding his right to counsel, Pitts waived his right to
counsel, and Schum was assigned as standby counsel. There were
no express limits on the time frame for which Schum would act as
standby counsel (i.e., through trial, through post-trial motions,
through sentencing, through appeal, etc.).
As the State's case progressed, Pitts expressed to the court
(outside the presence of the jury) that he wanted Schum to resume
representing him because he (Pitts) was overwhelmed. Schum
stated that he was not sure he could resume representation
because of the ethical problem caused by Pitts' accusation that
Schum and the prosecutor "shar[ed] privileged information and
attempt[ed] to sell [Pitts out]." The circuit court denied
Pitts' request to have Schum resume representation for two
reasons: first, because of Schum's perceived ethical problem,
and second, because "the bottom line is . . . that [Pitts] waived
[his] right to counsel." For the rest of the trial, Pitts was
pro se.
On March 10, 2010, the jury returned a guilty verdict.
On March 17, 2010, Schum filed a timely Motion to Withdraw
as Stand-by Counsel, Appoint Substitute Counsel and Declare
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Mistrial. In his declaration attached to the motion, Schum
explained that Pitts had asked for Schum's help in requesting a
new trial, preparing for the sentencing hearing, and starting
work on an appeal. According to Schum, he told Pitts resuming
representation was not possible because Pitts had waived his
right to counsel and accused Schum of ethical violations. Schum
contacted the Office of Disciplinary Counsel, who advised him
that it would be possible for Schum to file the instant motion so
long as Pitts concurred so that Pitts' "full rights both post-
trial and on appeal would be preserved. . . ." Pitts concurred.
Thus, the motion requested that Schum be allowed to withdraw as
standby counsel, that substitute counsel be appointed to assist
Pitts post-trial and on appeal, and that a mistrial be declared
because Pitts' waiver of the right to counsel was involuntary.
The State filed its Opposition on April 5, 2010, arguing that
Pitts made a knowing and voluntary waiver of his right to
counsel.
On April 7, 2010, the circuit court heard the motion.
Addressing Schum, the circuit court stated that Schum's services
as standby counsel ended when the jury rendered its verdict:
First of all, I don't think it was required of you to file a
motion to withdraw as standby counsel. You no longer
represent Mr. Pitts. The very fact that I asked you to be
standby counsel at trial tells us that. Mr. Pitts waived
his right to counsel very clearly, as [the State] said. To
this day, he's still representing himself. The trial is
over. I think we'd all agree on that. So you're no longer
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standby counsel. I don't think you need to file a motion to
withdraw as standby counsel.
The circuit court also opined that Schum might not have standing
to file a motion to appoint substitute counsel. In any event,
the circuit court denied the motion for a mistrial (construed as
a motion for a new trial), both on the merits, stating, "Mr.
Pitts waived his right to counsel very clearly," and because it
"[did not] think [Schum had] standing to bring [the motion]."
The circuit court then directed Pitts to file any post-trial
motions pro se. The circuit court stated that it would consider
any motion for a new trial filed by Pitts to be timely, even
though filed beyond ten days after the jury delivered its
verdict.3 Pitts expressed a desire to be represented by counsel
for sentencing and appeal, and the circuit court directed him to
make those requests in his own motions.
The day after the hearing, Pitts filed five post-verdict
motions pro se: (1) Motion to Set A[s]ide Verdict and Enter
[Judgment] of Acquittal Hawaii Rules of Penal Procedure Rule
29(c) or in the Alternative Grant Defendant New Trial HRPP Rule
3
The circuit court was not authorized to extend Pitts' deadline for a
motion for a new trial in this way. Hawai#i Rules of Penal Procedure ("HRPP")
Rule 45(b) (2010) states, "[T]he court may not extend the time for taking any
action under [Rule] 33. . . except and under the conditions stated in [it.]"
Under HRPP Rule 33 (2010), a motion for a new trial "shall be made within 10
days after verdict or finding of guilty or within such further time as the
court may fix during the 10-day period." The jury rendered its verdict on
March 10, 2010. The hearing on April 7, 2010 took place 28 days after the
verdict. Therefore, the circuit court violated HRPP Rule 45(b) by allowing
Pitts to file a pro se motion for new trial beyond the ten-day deadline set
forth in HRPP Rule 33.
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33 HRS § 635-56; (2) Motion for New Trial or in the Alternative
Motion for Mistrial; (3) Motion to be Appointed Counsel for
Sentencing and Appeal; (4) Motion for Psychiatric Evaluation 3
Panel; and (5) Request for Continuance. On May 12, 2010, the
circuit court held a hearing on Pitts' motions. The circuit
court reiterated that Schum "has nothing to do with [Pitts'] case
at this point. [Pitts is] pro se. [Pitts] waived counsel." At
this hearing, Pitts repeatedly implored the circuit court for an
attorney.
First, the following exchange took place after the circuit
court asked if Pitts had anything to add to his Motion to Set
Aside Verdict and Enter Judgment of Acquittal:
MR. PITTS: Your Honor, first I would like to say I would
like an attorney, but if I can't –- I can't do this by
myself. I really need an attorney.
THE COURT: We'll get to that motion. I'm not going to give
you an attorney for your sentencing today nor for these
motions. You filed them pro se. You've been pro se. It's
your motion.
Second, the following exchange took place after the circuit court
asked if Pitts had anything to add to his Motion for New Trial,
or in the alternative, Motion for Mistrial:
MR. PITTS: Your Honor, again, as you can see you've just
denied all my motions. I can't do this. I need an attorney
to help me, and the more you dismiss things, the more it
shows me that I need an attorney.
THE COURT: Mr. Pitts, we're going to get to your motion for
an attorney.
MR. PITTS: I mean like now.
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THE COURT: No. No. You've waived counsel and you're pro
se, and you didn't make a motion for the appointment of
another attorney, and I'm not sure I would have granted it
anyway.
Lastly, Pitts made the following remark after the circuit court
asked if Pitts had anything to add to his Motion for Psychiatric
Evaluation or a 3 Panel: "All right, I made [a motion for a 3
panel] which you're gonna probably dismiss, so I need an
attorney."
The circuit court did grant Pitts' motion for appointment of
appellate counsel. The circuit court entered its Judgment of
Conviction and Sentence on May 12, 2010. Pitts, represented by
appellate counsel, timely appealed. The ICA concluded that
Pitts' appeal was without merit and affirmed his conviction.
III. Discussion
A. The Parties' Supplemental Briefing
Pitts argues, "Appointment of counsel for an indigent is
required at every stage of a criminal proceeding where
substantial rights of a criminal accused may be affected." In
support of his argument, he cites D'Ambrosio v. State, 112
Hawai#i 446, 146 P.3d 606 (App. 2006). He continues, without
citation, "The circuit court ignored the 'critical' stage of the
post-verdict to sentencing part of the criminal proceedings
against Pitts." He continues, without citation, "The post-
verdict and sentencing time is still a critical part of the
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proceedings and hence Pitts was entitled to have counsel
appointed."
The State argues that the circuit court did not err by not
appointing substitute counsel post-verdict. The State cites to a
federal habeas corpus case that ostensibly favors Pitts'
position: Rodgers v. Marshall, 678 F.3d 1149, 1163 (9th Cir.
2012)("It is 'clearly established federal law' that the post-
trial motion for new trial is a 'critical stage' that implicates
the right to counsel, as is a defendant's right to re-assert the
right to counsel during post-trial proceedings.")4 The State
cited to Rodgers for the requirement that a defendant must make a
timely request for representation. See Rodgers, 678 F.3d at 1163
("[T]rial courts cannot deny a defendant's timely request for
representation without a sufficient reason.") (emphasis added).
The State goes on to argue that Pitts' request for counsel for
his post-verdict motions was untimely, having been made on the
day those motions were heard, on May 12, 2010. Further, the
State argues that Pitts "made abundantly clear that no attorney
4
The United States Supreme Court reversed the Ninth Circuit on the
"clearly established federal law" holding only. See Marshall v. Rodgers, 133
S.Ct. 1446, 1451 (2013)(per curiam)(holding that the Ninth Circuit may not
canvas other circuits' precedent to presume that a particular rule of law
would be clearly established Federal law if it were to be presented to the
Supreme Court of the United States). For purposes of proceeding with its
analysis, the United States Supreme Court "assumed, without so holding" that
"after a defendant's valid waiver of his right to trial counsel under Faretta
[v. California, 422 U.S. 806 (1975)], a post-trial, pre[-]appeal motion for a
new trial is a critical stage of the prosecution." Id. at 1449.
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would suffice," pointing out that Pitts had been through four
court-appointed attorneys for trial. The State summed up Pitts
behavior as "manipulative and abusive . . . amounting to bad
faith."
The State concluded that the circuit court did not err by
not appointing substitute counsel for Pitts for post-verdict
motions and sentencing because Pitts waived his right to counsel
during trial; the circuit court considered the timing of Pitts'
request for counsel; the circuit court had no discretion in
sentencing Pitts; and because the circuit court was aware of
Pitts' behavior towards his attorneys. Alternatively, the State
argued that if this court should hold that Pitts should have been
appointed counsel for his post-verdict motions, "a remand for
appointment of counsel should be limited to re-litigating Pitts'
post-verdict motions and for sentencing." In support of this
form of relief, the State cites Rodgers, 678 F.3d at 1164
(citation omitted): "Regarding the right to counsel, we
previously held that a habeas remedy should put the defendant
back in the position he would have been in if the Sixth Amendment
violation never occurred."
At oral argument, however, the State agreed that its
position was that a motion for a new trial was a critical stage
in the prosecution. See
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http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc3
0559.html.
B. The Right to Counsel for Post-Verdict Proceedings
We sua sponte raise the issue of the right to counsel for
post-verdict motions, as Pitts did not raise the issue in his
certiorari application. We do so, however, because the "right to
counsel is an essential component of a fair trial[.]" State v.
Dickson, 4 Haw. App. 614, 618, 673 P.2d 1036, 1041 (1983). "The
Sixth and Fourteenth Amendments to the United States Constitution
guarantee to a person accused by the state of committing an
offense the right to be represented by counsel at every critical
stage of the prosecution." Reponte v. State, 57 Haw. 354, 361,
556 P.2d 577, 582 (1976)(citing United States v. Ash, 413 U.S.
300 (1973)). Article I, Section 14 of the Hawai#i Constitution
also guarantees the accused the right to counsel. See id. ("In
all criminal prosecutions, the accused shall enjoy the right to
. . . have the assistance of counsel for the accused's defense.")
A "critical stage" of the prosecution is any stage where
"potential substantial prejudice to defendant's rights inheres."
State v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022
(1981)(citing United States v. Wade, 388 U.S. 218, 227 (1967)).
In this appeal, two right to counsel principles have come to
a head: the right to counsel versus the right to serve as one's
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own counsel. The United States Supreme Court has recently
observed:
It is beyond dispute that "[t]he Sixth Amendment safeguards
to an accused who faces incarceration the right to counsel
at all critical stages of the criminal process." It is just
as well settled, however, that a defendant also has the
right to "proceed without counsel when he voluntarily and
intelligently elects to do so." There can be some tension
in these two principles.
Marshall, 133 S.Ct. at 1449 (citations omitted). In this case,
the circuit court erred in refusing to appoint substitute counsel
for Pitts for post-verdict motions. In order to prevent similar
future deprivations, we hold that the post-trial motion stage is
a critical stage of the prosecution during which the right to
counsel attaches, notwithstanding a defendant's earlier mid-trial
waiver of the right to counsel.
In this appeal, the circuit court insisted upon enforcing
Pitts' right to self-representation, even though it had become
apparent at the post-verdict and sentencing stages of the
prosecution that Pitts no longer desired to proceed pro se and
had reasserted his right to counsel. A defendant's exercise of
the right to self-representation, however, is not irreversible;
the right is subject to termination. See State v. Hutch, 75 Haw.
307, 320, 861 P.2d 11, 21 (1993)(citing Faretta, 422 U.S. at 835
n.46 (observing that the right to self-representation is not
offended when counsel is made "available to represent the
[defendant] in the event that termination of the defendant's
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self-representation is necessary.'")(emphasis added). In
McKaskle v. Wiggins, 465 U.S. 168, 182 (1984), the United States
Supreme Court held that the right to self-representation
terminates when a self-represented defendant either expressly
approves of, or impliedly invites through acquiescence, counsel's
participation in his defense.
In this case, Pitts expressly requested counsel for his
post-verdict motions, again demonstrating his intention to
terminate self-representation. See McKaskle, 465 U.S. at 182.
Therefore, under McKaskle and Hutch, the circuit court would not
have violated Pitts' right to self-representation had he
appointed counsel for Pitts for post-verdict motions and
sentencing. Hence, the circuit court erred in insisting that
Pitts' earlier mid-trial waiver of counsel carried through post-
verdict.
The State argues that Pitts' requests for appointment of
counsel post-verdict were "untimely" because they were raised on
May 12, 2010, upon the hearing of those post-verdict motions.
Pitts does not dispute that he requested post-verdict counsel on
May 12, 2010. It is unlikely, however, that Pitts could have
requested counsel any earlier than he did. At the April 7, 2010
hearing on Schum's motion, the circuit court had orally ruled
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that Schum "lacked standing" to act as Pitts' standby counsel and
that Pitts was pro se after the verdict.5
The consequence of the circuit court's ruling that Schum's
role as standby counsel ended at the close of trial was that
Pitts then had to file his pro se post-verdict motions as soon as
possible, because sentencing was set for May 12, 2010, a month
away. At the May 12, 2010 hearing, it became apparent to Pitts
that the circuit court was about to deny his motions and that he
was ill equipped to handle his own representation at that point.
Therefore, Pitts requested post-verdict counsel then, which the
circuit court refused because Pitts had waived counsel during
trial.
The United States Court of Appeals for the Ninth Circuit has
addressed a question similar to the one at bar: "[I]s a
criminal defendant entitled to the assistance of an attorney at a
post-trial hearing when prior to trial he waived the right to
5
On this score, Hawai#i Revised Statutes ("HRS") § 802-5 (1993), which
governs indigent defendants, states, in relevant part, "When it shall appear
to a judge that a person requesting the appointment of counsel satisfies the
requirements of this chapter, the judge shall appoint counsel to represent the
person at all stages of the proceedings, including appeal, if any." (Emphasis
added). The circuit court, in appointing Schum (then assigning him as standby
counsel), appointed him for "all stages of the proceedings" and did not
exclude post-trial motions as part of Schum's role. If that was the circuit
court's intent, that should have been communicated to Pitts and Schum when
Schum was assigned as standby counsel. See, e.g., People v. Lindsey, 308
N.E.2d 111, 117 (Ill.App.3d 1974)("We are of the opinion that it was
prejudicial to tell the defendant he could represent himself, with a court-
designated lawyer to assist him, and then, at crucial phases of his trial,
when he made reasonable requests for assistance, prevent the lawyer from
assisting him.").
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counsel and chose to represent himself?" Menefield v. Borg, 881
F.2d 696, 698 (9th Cir. 1989). The Ninth Circuit answered the
question in the affirmative, holding that the motion for a new
trial is a "critical stage" in the prosecution, at which the
right to counsel attaches. 881 F.2d at 699. The Ninth Circuit
continued, "[A]lthough we recognize the right to counsel –- once
waived –- is no longer absolute, we start with the strong
presumption that a defendant's post-trial request for the
assistance of an attorney should not be refused." 881 F.2d at
700.
The Menefield court also held that "at least in the absence
of extraordinary circumstances, an accused who requests an
attorney at the time of a motion for a new trial is entitled to
have one appointed, unless the government can show that the
request is made for a bad faith purpose." 881 F.2d at 701. The
Ninth Circuit rejected as insufficient the government's argument
that the defendant's "pretrial dismissal of two attorneys proves
his bad faith." Id. It reasoned, "While repeated firings of
counsel may in some circumstances evidence an improper motive,
pretrial dismissals should ordinarily have little influence on
the determination of whether a post-conviction motion for
appointment of counsel is improper." Id. This was because "the
unsettling experience of trial, as well as its unsatisfactory
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result, will be the source of a defendant's discontent with his
own services and, consequently, the basis for his post-trial
motion for the assistance of counsel." Id.
We agree that, in the absence of extraordinary
circumstances, a defendant who has exercised the right to self-
representation at trial, but expressly requests counsel for post-
verdict motions or for sentencing has a right to counsel. The
State argues that Pitts' track record of firing four court-
appointed attorneys pre-trial was a circumstance to be considered
in denying the appointment of counsel for post-verdict motions
(and sentencing). However, Pitts requested counsel post-verdict
due to his "discontent with his own services" with regard to the
post-verdict motions. Thus, under the circumstances of this
case, Pitts' pre-trial track record of firing counsel is
insufficient to establish that his post-verdict request for
counsel was made in bad faith. There is also no other evidence
of bad faith on Pitts' part in his request for counsel.
The United States Supreme Court has not considered whether a
criminal defendant has a Sixth Amendment right to counsel for
post-verdict motions. See Marshall, 133 S.Ct. at 1451.
Nevertheless, "[w]e have long recognized . . . that 'as the
ultimate judicial tribunal with final, unreviewable authority to
interpret and enforce the Hawai#i Constitution, we are free to
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give broader protection under the Hawai#i Constitution than that
given by the federal constitution." State v. Viglielmo, 105
Hawai#i 197, 210-11, 95 P.3d 952, 965-66 (2004)(citations
omitted). Therefore, we hold that, under Article I, Section 14
of the Hawai#i Constitution, a defendant who expressly requests
counsel for post-verdict motions has a right to counsel,
notwithstanding a prior waiver of counsel during trial.
C. The Right to Counsel for Sentencing
The circuit court also erred in failing to appoint
substitute counsel for sentencing. The circuit court granted
Pitts' motion for appointment of counsel for his appeal, but
denied Pitts' motion for appointment of counsel for sentencing,
reasoning as follows: "[T]here's only one sentence that I can
give you, legally. . . . I don't think an attorney would do you
much good at this sentencing anyway because I don't have any
discretion whatsoever."
It is well settled that the sentencing phase is a critical
stage of the prosecution, during which the right to counsel
attaches. State v. Valera, 74 Haw. 424, 435, 848 P.2d 376, 381
(1993). The ICA quoted the rationale for this in D'Ambrosio as
follows: "[C]ounsel might not have changed the sentence, but he
could have taken steps to see that the conviction and sentence
were not predicated on misinformation or misreading of court
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records, a requirement of fair play which absence of counsel
withheld from this prisoner." 112 Hawai#i at 463, 146 P.3d at
623 (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)). The
sentencing hearing presented an important opportunity for the
defendant to be heard and to correct any misinformation or
misreading of court records:
Opportunity to be heard with respect to sentence; notice of
pre-sentence report; opportunity to controvert or
supplement; transmission of report to department. (1)
Before imposing sentence, the court shall afford a fair
opportunity to the defendant to be heard on the issue of the
defendant's disposition.
(2) The court shall furnish to the defendant or the
defendant's counsel and to the prosecuting attorney a copy
of the report of any pre-sentence diagnosis or
psychological, psychiatric, or other medical examination and
afford fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement them. The
court shall amend or order the amendment of the report upon
finding that any correction, modification, or addition is
needed and, where appropriate, shall require the prompt
preparation of an amended report in which material required
to be deleted is completely removed or other amendments,
including additions, are made. . . .
HRS § 706-604 (1993 & Supp. 2006). Substitute counsel could have
provided valuable assistance to Pitts in "controvert[ing] or
supplement[ing]" a presentence diagnosis report.
Further, even if there were no other sentence available to
Pitts but a life term of imprisonment with the possibility of
parole, Pitts would have benefited by having substitute counsel
guiding him through the exercise (or non-exercise) of his right
to allocution, preserving his arguments for appeal, and preparing
for the proceedings before the Hawai#i Paroling Authority. To
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the extent that Pitts' ability to defend his interests on a level
playing field was substantially affected by the denial of
substitute counsel for sentencing, the circuit court's decision
to force Pitts to proceed pro se during sentencing was error.
Pitts' right to counsel, as enshrined in Article I, Section 14 of
the Hawai#i Constitution, was violated when the circuit court
denied his motion for appointment of counsel for sentencing.
V. Conclusion
We hold that the circuit court erred by not appointing
substitute counsel for Pitts' post-verdict motions because post-
verdict proceedings are critical stages in the prosecution. The
circuit court also erred by not appointing substitute counsel for
Pitts' sentencing. We therefore vacate the ICA's judgment on
appeal and remand this case for further proceedings. __________
________________________________________________________________
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Specifically, this case is remanded to allow for the appointment
of substitute counsel for the purposes of filing a motion for new
trial6 and for resentencing.
DATED: Honolulu, Hawai#i, January 22, 2014.
Kevin O’Grady /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
6
The remand we order in this case remedies the constitutional violation.
As we observed in note 3, infra, ordinarily the deadline for a motion for new
trial cannot be extended under HRPP Rule 45(b). The remand we order seeks
only to place Pitts in the position he would have been in had the
constitutional violation never occurred. Cf. Rodgers, 678 F.3d at 1164
("Regarding the right to counsel, we previously held that a habeas remedy
should put the defendant back in the position he would have been in if the
Sixth Amendment violation never occurred.")(citation omitted).
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