***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-11-0000686
30-JUN-2015
10:31 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI.
Respondent/Plaintiff-Appellee,
vs.
HAN KAMAKANI PHUA,
Petitioner/Defendant-Appellant.
SCWC-11-0000686
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000686; CASE NO. 3P810-0184)
June 30, 2015
RECKTENWALD, C.J., McKENNA, AND POLLACK, JJ., WITH, NAKAYAMA,
J., CONCURRING AND DISSENTING, WITH WHOM CIRCUIT JUDGE OCHIAI,
IN PLACE OF ACOBA, J., RECUSED, JOINS
OPINION OF THE COURT BY POLLACK, J.
This case concerns the right of a defendant to be
represented by counsel during criminal proceedings and the
importance of ensuring that a waiver of this right is made
knowingly, intelligently, and voluntarily. Han Kamakani Phua
attended his sentencing hearing without his lawyer, and after a
brief colloquy with Phua, the district court found that he
validly waived his right to counsel and imposed sentence. The
Intermediate Court of Appeals (ICA) affirmed the finding of the
district court that Phua waived his right to counsel and upheld
Phua’s sentence. We conclude that the record does not support a
finding that Phua’s waiver of counsel was knowingly and
intelligently made, and therefore Phua’s sentence must be
vacated and the case remanded for a new sentencing hearing.
I. BACKGROUND
On July 28, 2010, the complainant and others entered
the property where Phua lives and works. Phua confronted the
group believing they were trespassing, and a non-violent quarrel
ensued between Phua and the complainant. Phua was arrested and
charged with the offense of harassment.1 At arraignment and
1
The Amended Complaint, included language from the following
subsections of HRS § 711-1106(1) (1993 & Supp. 2009):
(1) A person commits the offense of harassment if,
with intent to harass, annoy, or alarm any other
person, that person:
. . .
(b) Insults, taunts, or challenges another person in
a manner likely to provoke an immediate violent
response or that would cause the other person to
reasonably believe that the actor intends to cause
bodily injury to the recipient or another or damage
to the property of the recipient or another;
. . .
or (f) Makes a communication using offensively coarse
language that would cause the recipient to reasonably
believe that the actor intends to cause bodily injury
(. . .continued)
- 2 -
plea, Phua appeared with counsel in the District Court of the
Third Circuit (district court), entered a not guilty plea to the
charge, and trial was scheduled for July 1, 2011.2
A. Motion to Continue
When Phua’s Mandarin interpreter did not appear at
trial, his counsel requested a continuance because English is
Phua’s second language. Defense counsel explained that when
dealing with “legal issues that are very much terms of art,
there need[ed] to be an interpretation” for Phua to fully
understand. The State opposed the continuance, and two State
witnesses and two defense witnesses testified regarding the
motion to continue.
The State’s first witness--Phua’s coworker and the
complainant’s daughter--testified that though Phua was a stock
boy at Walmart who usually worked the night shift, Phua
communicated and provided customer service to patrons in
English. Additionally, Henry Ivy, a police officer who
interacted with Phua on the day of his arrest, testified that he
spoke with Phua in English, although he noted that Phua spoke
(. . .continued)
to the recipient or another or damage to the property
of the recipient or another.
2
The Honorable Joseph P. Florendo, Jr. presided over the
proceedings in this case.
- 3 -
with a slight accent. Officer Ivy stated that Phua expressed in
English his understanding of his rights and that he signed a
waiver of rights in English without any difficulty. Neither
State witness knew that Phua was born in Singapore or whether
Phua had any formalized education in English.
Phua’s mother April Haunani Lui Phua, testified to the
following: (1) Phua was born in Singapore where he was raised by
his paternal grandmother who spoke no English; (2) his native
languages are Chinese and Malay; (3) he was not “given English
instruction in school because he did not pass the streaming exam
of the country to be proficient in his native language of the
country as well as English”; (4) he was considered a “special
education” student because he did not pass any elementary grade
levels after the first grade and repeated the sixth grade three
times; (5) he suffered from “heavy dyslexia”; (6) when he worked
at Walmart, he worked in the stock room with other native
Chinese speakers and did not work at a counter collecting cash
from customers in English; and (7) Phua, who was thirty-one
years old at the time of trial, had only lived in Hawaiʻi for
approximately six years.
Shelley Stephens, who previously helped Phua with
legal documents in English, testified that she observed Phua was
unable to understand the meaning of certain unfamiliar legal
- 4 -
terms or phrases without assistance. She also testified that
Chinese is Phua’s primary language and that Phua usually had
others present to help him with legal matters.
The court denied the motion to continue the trial to a
later date. The court determined that Phua had “some knowledge
of English and is reasonably able to converse in English.” The
court explained that, although an English interpreter was
perhaps preferable, it was “not necessary” for Phua’s criminal
trial. If Phua had trouble understanding any issue, the court
would provide him the opportunity to “speak with his attorney to
clarify any information that might be presented in court.”3 In
response to defense counsel’s request that Phua be allowed to
confer with his mother during breaks if there were any
comprehension difficulties, the court responded that Phua could
talk to whomever he wanted during breaks. The case then
proceeded to trial.
B. Trial
Phua testified that when he heard the complainant on
the property, he went down to check the pump house as there had
been damage and vandalism to it in the past. When he arrived at
the pump house, he found the complainant and those in her group
3
The district court noted that Phua had interpreters at the last
civil trial over which he presided.
- 5 -
nearby. Phua previously had contact with the complainant and
her family over alleged trespassing incidents on the property,
which was at the time legally disputed in civil proceedings.4
Phua believed that the complaining witness and her
group were trespassing at the pump house. He pointed out to the
complainant the “No Trespassing” sign posted on the pump house.
Phua testified that he did not ask for paperwork proving the
complainant’s Public Access Shoreline Hawaiʻi (PASH) rights,
which would permit access to the property. The complainant and
members of her group, however, testified that Phua demanded her
PASH paperwork and that she showed it to him. After this brief
interaction, a loud disagreement erupted. Both Phua and the
complainant testified that they feared for their lives due to
the other’s actions, although no physical contact was involved
in the incident. In defense to the harassment charge, Phua
4
The disputed property in this case was also the subject of
separate civil ejectment actions against Phua and several other individuals,
who allegedly occupied the land as trespassers. The Honorable Joseph P.
Florendo, Jr. also presided over these civil cases and granted summary
judgment in both cases. The complaining witness involved in this case was
found to have Public Access Shoreline Hawaiʻi (PASH) rights for recreational
purposes on the parcel where the incident occurred. In both of these cases,
Phua appeared pro se and was deemed to have no rights in the disputed
property.
When this case commenced, one of the cases involving the
complainant’s PASH rights had already been decided, and the other commenced
in state court after the date of the alleged harassment but prior to trial.
There was also a pending federal court case.
- 6 -
asserted self-defense, defense of others, and defense of
property.
At the end of the bench trial, the district court
found Phua guilty of the charge. Phua’s counsel requested a
Pre-Sentence Investigation Report (PSI), and preparation of the
PSI was referred to Adult Probation Services. Sentencing was
scheduled for August 29, 2011.
C. Declaration of Phua’s Counsel
Prior to sentencing, on August 23, 2011, Phua filed a
pro se “Motion to Ammend/Writ of Error” (sic) (Motion to Amend)
seeking to notify the court of the attempted removal or transfer
of a state civil matter to federal court.5
Two days later, on August 25, 2011, Phua’s attorney
filed a “Declaration of Counsel” (Declaration). The Declaration
stated counsel planned to seek a continuance of the sentencing
hearing because he was required to be at a trial on another
matter in Hilo on the scheduled hearing date.6 Counsel stated he
did not file a formal motion to continue the sentencing date
because Phua indicated that he wanted to be present on the
5
For a description of the civil proceedings, see supra, note 4.
6
Counsel indicated he would be available the week following the
scheduled hearing date.
- 7 -
scheduled date and time, even if that meant appearing without
counsel.
The Declaration presented two scenarios for the court
to consider based on whether or not Phua wished counsel to be
present at sentencing: “If on his appearance [Phua] wishes
counsel present, [then] please consider this a motion for
continuance. Otherwise, if Mr. Phua wishes to waive counsel for
sentencing [then] please refer to the Presentence Investigation
Report and this counsel’s submission to same which I understand
is contained therein.”
Accordingly, if Phua wished to waive counsel at
sentencing, counsel asked the court to refer to the PSI, and
argued for leniency in sentencing, noting Phua was caught in a
stressful situation related to civil matters. He also
recommended no jail or one day, already served, as Phua had no
other criminal record:
This counsel strongly notes that the fact that [Phua]
has no other criminal record. He felt provoked in a
stressful situation that appears to be a civil matter
that is being addressed through the civil courts.
Defense Counsel recommends that no jail or 1 day as
already served be considered, as the process has been
sufficiently educational.
(Emphases added).
Counsel pointed out in the Declaration that as of
August 25, 2011, he had not received the PSI but that he had
contacted probation services to fax it to him. Counsel
- 8 -
indicated that he would email and mail a copy to Phua when he
received it. However, the record does not indicate whether
defense counsel received the PSI from probation services or
whether he forwarded it to Phua before the sentencing date.
D. Sentencing Hearing
Four days later, on August 29, 2011, Phua appeared at
the sentencing hearing without counsel. The district court did
not calendar the Declaration as a motion to continue or note it
in any other way in the minutes for the day. The court also did
not mention the Declaration during the proceedings or ask Phua
if he wished to continue the hearing to a later date with
counsel present. Rather, the court initially asked whether Phua
intended to proceed without counsel:
THE COURT: Okay. Do you want to proceed with this
case without your attorney?
MR. PHUA: I have 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. Last Thursday I filed
it.
THE COURT: Okay. So you have fired your attorney?
MR. PHUA: Yes.
The court did not inquire as to why Phua had fired his
counsel; there is no indication of any problems between Phua and
counsel other than counsel’s unavailability for the scheduled
sentencing hearing. The court continued its colloquy with Phua:
THE COURT: Okay. Do you want to proceed and
represent yourself?
- 9 -
MR. PHUA: Yes, your Honor.
THE COURT: You want to give up your right to an
attorney for this hearing today?
MR. PHUA: Yes.
THE COURT: Okay. Do you understand that you’re
entitled to have an attorney represent you and if you
cannot afford one, the Court can appoint one for you?
Can I see the file?
MR. PHUA: No, I was not aware of that but –
THE COURT: Do you still wish to proceed without an
attorney?
MR. PHUA: Yes.
(Emphases added). Phua’s response that he “was not aware” of
the right to appointed counsel is not further clarified.7
Next, the court informed Phua generally about
counsel’s role, determined Phua’s age and level of education,
and confirmed that no one was forcing him to proceed without
counsel:
THE COURT: Now, an attorney can provide you with
information and advice, can represent you at all
stages of these proceedings, and can speak for you in
court. Do you understand?
MR. PHUA: Yes.
THE COURT: And if you represent yourself, you will
be opposed by a prosecuting attorney who is more
experienced at trial, and you would be at a
disadvantage in terms of knowledge and understanding
of court practice and procedure.
MR. PHUA: Yes.
THE COURT: How old are you?
7
Phua was not represented by court-appointed counsel during the
proceedings.
- 10 -
MR. PHUA: Thirty-one.
THE COURT: How many years of education have you
received?
Mr. PHUA: High school.
THE COURT: And anyone forcing you to represent
yourself?
MR. PHUA: No.
THE COURT: Okay. All right. The Court would find
that you have knowingly and voluntarily waived your
right to an attorney with an understanding of the
nature and elements of the charge. This is for
sentencing, so you’ve heard all of the evidence.
MR. PHUA: But –
THE COURT: And does the state have any comments with
regard to sentencing?
The record does not reflect any further inquiry by the
court into Phua’s decision to proceed without counsel, including
whether Phua understood the maximum penalties that could be
imposed for the offense of which he had been convicted.
The court then proceeded directly to sentencing. Phua
was not asked if he had received a copy of the PSI, and
consequently, there was no inquiry as to whether Phua had any
corrections or additions to the PSI. When the State was asked
for its sentencing recommendation, the prosecutor referred to
the contents of the PSI. Phua interrupted the prosecutor asking
for a “motion to strike because that is hearsay.”
After the State’s argument, the court asked Phua if he
wanted to make “any statement,” without specifically referring
- 11 -
to sentencing. Phua responded with statements about his Motion
to Amend:
THE COURT: Okay. And, Mr. Phua, do you want to make
any statement?
MR. PHUA: Yes, your Honor. On August 23rd, I had
filed a motion to amend and slash writ of error that
my attorney at the time, Gary Zamber – I had told him
that these two cases before me in this document, 195
and 131, were pertinent subject matter to this
harassment charge. And I told him to remove the case
to the federal court, to consolidate it, and at that
time he had told me that I had no such right.
THE COURT: Well, he’s right. He’s right.
MR. PHUA: I haven’t finished, your Honor. And that
the case 195 and 131, that the case has been removed
to the federal court and that by allowing this case
to go forward would only affect judgment due to
defense of property.
And due to my sovereign rights, I feel that the
Article I court, which is this court that I’m in
right now, does not have the rights or jurisdiction
over me, the sovereign; that only Article III, a
competent court of the federal court in Honolulu, the
Hawaiʻi District Court of the United States, has
jurisdiction to try me.
(Emphases added).
The Court asked Phua why a federal court would have
jurisdiction over his case but not a state court. Phua
explained that he was a “sovereign” and that he was choosing a
court to “fit [his] needs.” Phua then explained why he had
filed his writ of error:
And that’s why I filed a writ of error because it’s
judgmental because the defense – well, the prosecutor
had attached the summary judgment and had my case
into a land issue that there was a witness called
representing the county, and I feel that I was not
fairly recognizing the case as I told my attorney
that I wanted to file a removal.
- 12 -
Whether or not if that was granted, at that time I
did not sen[d] my paper to the federal court, which
my – I have attached on June 20th. Chief Justice
Susan Mollway[8] stamped approval for my case to be
removed to the federal court. But because I had
trust my attorney to represent me at the time, that
he would look out for my interests and only my
interests, and I feel that he has failed to represent
me fairly.
The court then denied Phua’s Motion to Amend, which was “in the
file” and sentenced Phua to the maximum five-day jail term
allowed for a term of probation for the harassment offense:
THE COURT: Okay. So I see that there is a motion to
amend in file, and if what you just told me is the
basis of that motion, I will deny it. I don’t find
any good cause to grant that request. This is a
state case. This Court has jurisdiction over the
charge and over you, and the Court has already
rendered a decision at a trial. So your request to
amend, if I understand you correctly, to transfer
this case to the federal district court has no basis
in fact or law, and I will deny it.
With regard to sentencing, the Court has considered
the presentence investigation and the provision in
Sections 706-606 and 706-621. I will place you on
probation for a period of six months. I will order
you to abide by the terms and conditions – general
terms and conditions of probation, order you to pay a
criminal injury fee of $30 and a probation fee of
$75. I will order you to serve a sentence of jail of
five days. I’ll allow credit for one day.[9]
During the proceeding, Phua did not make a statement regarding
sentencing for the offense, or address any mitigating factors
8
Chief Judge Susan Mollway is a federal district judge of the
United States District Court for the District of Hawaiʻi.
9
Harassment is a petty misdemeanor offense. HRS § 711-1106(2).
For a petty misdemeanor, the court may sentence a person to a jail term not
exceeding thirty days. HRS § 706-663 (1993). Alternatively, a court may
impose a term of probation of up to six months and up to one year with a
finding of good cause. HRS § 706-623(1)(d) (1993 & Supp. 2009). As a
condition of probation in petty misdemeanor cases, the court may also impose
a jail term not exceeding five days. HRS § 706-624(2)(a) (1993 & Supp. 2006).
- 13 -
regarding the incident, his lack of a criminal record, or the
possible sentencing dispositions.
E. Intermediate Court of Appeals
On September 16, 2011, Phua filed a Notice of Appeal
to the Intermediate Court of Appeals (ICA). Phua asserted on
appeal that the district court erred in concluding that he
knowingly and intelligently waived his constitutional right to
counsel.
Phua contended the district court’s overall
examination was “woefully deficient.” He highlighted that the
court should have inquired into primary factors affecting his
ability to comprehend--including his education, work history,
and experience with the criminal justice system--before
informing him of the risks of self-representation because the
information elicited would have put the court on notice that a
more in-depth examination of waiver of counsel was necessary.
At the very least, Phua asserted that the court should have made
him aware of the maximum possible punishment and any other facts
essential to a broad understanding of the charges against him.
Phua also argued that the district court erred by
ignoring his response that he was not aware of the right to
court-appointed counsel and in failing to further inform him of
that right if he could not afford representation. Phua
- 14 -
contended that he was unable to understand the consequences of
his actions when he decided to appear pro se at sentencing and
that there was nothing to show his familiarity with the legal
system.
The State countered that the court did not violate
Phua’s right to counsel at sentencing because Phua effectively
waived his right by firing his counsel, by failing to seek
replacement counsel, and by not seeking a continuance of his
sentencing hearing. The State also maintained the district
court sufficiently advised Phua of his right to court-appointed
counsel and gave him enough time to request counsel or seek new
counsel. The State contended “it was not necessary to establish
that [Phua] had prior experience representing himself in a
criminal trial” to allow him to proceed pro se because he had
already been found guilty at trial.
Moreover, the State argued that Phua failed to show
any “substantial detriment” resulting from self-representation.
The State asserted that Phua’s refusal to take “court warnings
about self-representation seriously enough to obtain counsel
does not mean that the State or complainants should suffer the
consequences of [Phua’s] stubborn attitude and reckless manner
by being deprived of the finality of a conviction and sentence.”
- 15 -
In its November 19, 2013 Summary Disposition Order
(SDO), the ICA concluded that the district court’s inquiry and
explanation of Phua’s waiver of counsel was adequate because
“the record need not reflect a discussion between the court and
a defendant illuminating every [Dickson] factor.” The ICA also
found the district court sufficiently informed Phua of his right
to court-appointed counsel if he could not afford one, “albeit
in the form of a question rather than a statement.”
Further, the ICA found that Phua “articulated no
reason why the District Court’s inquiry about his education,
work history, and experience after warning him of the possible
punishment and advising him of the risks of self-representation
was prejudicial.” The ICA noted that the record demonstrated
that Phua was “adequately informed of the risks of self-
representation, the right to private or appointed counsel, and
that the waiver was made knowingly and voluntarily.” The ICA
concluded the district court “did not plainly err by finding
that Phua waived his right to counsel during sentencing.”
F. Application for Writ of Certiorari
Phua presents the following questions in his
Application for Writ of Certiorari (Application): (1) whether
the ICA gravely erred in holding that the district court did not
plainly err when it found Phua knowingly and intelligently
- 16 -
waived his right to counsel for sentencing; and (2) whether the
district court erred by failing to personally address Phua
regarding his right to pre-sentence allocution.
With regard to the first question presented, Phua
advances similar arguments raised before the ICA. He asserts
that the record reflects the district court’s examination was
insufficient to establish a knowing and intelligent waiver of
counsel and to assure his awareness of the risks of self-
representation. Phua further suggests his ability to “defend
his interests on a level playing field was substantially
affected by the lack of counsel during sentencing.” Phua also
argues that the district court erred in failing to inform him of
the dangers and disadvantages of self-representation and that
this affected the outcome of the sentence and therefore “was not
harmless beyond a reasonable doubt.”
Concerning the second question presented, Phua
contends the district court erred when it failed to personally
address him regarding pre-sentence allocution because when the
court asked for “any statement,” Phua referenced his pro se
Motion to Amend and did not assert his right to allocution.
Phua contends the court denied his Motion to Amend and proceeded
directly to sentencing without “further affording [him] an
opportunity to make a statement regarding sentencing and to
- 17 -
present any information in mitigation of his punishment.”
Although Phua acknowledges he did not raise this issue on appeal
before the ICA, he urges this Court to notice plain error
pursuant to Rule 28(b)(4) of the Hawaiʻi Rules of Appellate
Procedure (HRAP) (2010).10
The State did not respond to Phua’s Application.
II. STANDARD OF REVIEW
We review questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. E.g., State v. Rogan, 91 Hawaiʻi 405,
411, 984 P.2d 1231, 1237 (1999). Therefore, we review questions
of constitutional law under the right/wrong standard. E.g.,
State v. Mallan, 86 Hawaiʻi 440, 443, 950 P.2d 178, 181 (1998).
III. DISCUSSION
A. Waiver of Counsel Inquiry
Both the Hawaiʻi Constitution and the United States
Constitution guarantee a person accused of a crime 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)).
A “critical stage” of the prosecution includes “any stage where
10
HRAP 28(b)(4) states that any point of error not presented on
appeal in accordance with Rule 28 “will be disregarded, except that the
appellate court, at its option, may notice a plain error not presented.”
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potential substantial prejudice to [a] defendant’s rights
inheres,” and it has long been settled that this includes
sentencing. State v. Pitts, 131 Hawaiʻi 537, 544, 319 P.3d 456,
460-61 463 (2014) (quoting State v. Masaniai, 63 Haw. 354, 359,
628 P.2d 1018, 1022 (1981)). The assistance of counsel at
sentencing is of paramount importance because it is an
“oftentimes complicated part of the criminal process that
contains subtleties which may be beyond the appreciation of the
average layperson seeking to represent him/herself.” D’Ambrosio
v. State, 112 Hawaiʻi 446, 464, 146 P.3d 606, 624 (2006) (quoting
United States v. Salemo, 61 F.3d 214, 220 (3d Cir. 1995)).
When a defendant elects to proceed pro se, the record
must indicate that the defendant was offered counsel, but he or
she “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).11 The trial court must
11
The minority quotes a portion from Iowa v. Tovar, 541 U.S. 77
(2004), for the proposition that Miranda warnings “adequately inform[] the
defendant of his [or her] Sixth Amendment right to counsel.” See minority at
3 (alterations in original) (quoting Tovar, 541 U.S. at 90). In doing so,
the minority misapplies Justice Ginsburg’s opinion in Tovar. The passage
cited by the minority was addressing Patterson v. Illinois, 487 U.S. 285
(1988), and stated as follows:
Patterson concerned postindictment questioning by police
and prosecutor. At that stage of the case, we held, the
warnings required by Miranda v. Arizona, 384 U.S. 436
(1966), adequately informed the defendant not only of his
Fifth Amendment rights, but of his Sixth Amendment right to
counsel as well. Miranda warnings, we said, effectively
(. . .continued)
- 19 -
ensure two requirements are met: first, the waiver of counsel is
“knowingly and intelligently” made, and second, “the record is
complete so as to reflect that waiver.” Id. The latter
requirement arises because appellate courts are charged with
determining from the record whether there was an unequivocal
waiver, which was voluntarily and freely made. Id. at 621, 673
P.2d at 1042.
Dickson set forth three areas of “specific waiver
inquiry” factors to assist trial courts: (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 619-20, 673 P.2d at 1041-42. Under
(. . .continued)
convey to a defendant his right to have counsel present
during questioning.
Tovar, 541 U.S. at 89. Thus, the Court in Tovar noted that Miranda warnings
were adequate to inform a defendant of his Sixth Amendment right to counsel
at the stage of postindictment questioning by police and prosecutor. 541
U.S. at 89. This case involves a defendant waiving the right to counsel
during a sentencing proceeding. We apply Article 1 section 14 of the Hawaiʻi
Constitution, which guarantees the assistance of counsel for an accused’s
defense in criminal prosecutions and court-appointed counsel for an indigent
defendant. See Haw. Const. art. I, § 14; State v. Merino, 81 Haw. 198, 219,
915 P.2d 672, 693 (1996). “In an appeal involving the question of whether
one has been deprived of the right to counsel,” our task is to determine
whether the record reflects that “there was an unequivocal waiver, which was
voluntarily and freely made, and based upon an intelligent awareness of the
benefits associated with representation by counsel and the dangers and
disadvantages of self-representation.” 4 Haw. App. at 622, 673 P.2d at 1042.
- 20 -
Dickson, the first factor dictates the level and depth of the
court’s inquiry regarding the second and third factors. Id. at,
619, 673 P.2d at 1041.
Thus, Dickson indicates that a “trial court should
first examine” the facts and circumstances particular to the
defendant that will assist the court in assessing the
defendant’s level of comprehension. Id. Once this initial
inquiry is complete, the trial court may tailor its colloquy
with the defendant to ensure that the court adequately conveys
the risks and disadvantages of self-representation in a manner
that the defendant will be able to understand. While courts are
not required to strictly adhere to Dickson’s analytical
framework, it provides an important tool to ensure waivers are
made knowingly and intelligently in addition to establishing a
complete record for appellate review.
1. Background and Comprehension of the Defendant
Once the defendant expresses an interest in proceeding
pro se, Dickson recommends that the court first explore facts
and circumstances pertaining to the defendant that will allow
the court to determine the defendant’s level of comprehension.
Such circumstances include age, education, English language
skills, mental capacity, employment background, and prior
experience with the criminal justice system. This examination
- 21 -
of the “particular facts and circumstances relating to the
defendant . . . is necessary to allow the trial court to
determine the level and depth to which its explanation and
inquiry must extend.” Dickson, 4 Haw. App. at 619, 673 P.2d at
1041.
In this case, the district court’s inquiry into Phua’s
particular circumstances was limited. The court questioned Phua
about his age and whether he attended high school. However,
there was other information before the court that suggested a
further inquiry into Phua’s background was necessary. As to his
education, Phua’s mother testified at trial that he was
considered a “special education” student, he did not pass any
elementary grade levels after the first grade, and he repeated
the sixth grade three times. The court’s inquiry did not
address these matters and further inquiry as to where Phua was
educated and whether he received a high school diploma may have
benefited the court’s analysis.
Additionally, the court did not inquire into Phua’s
English language skills even though the court was on notice that
English was Phua’s second language. A “language barrier”
between the defendant and the court is a “salient fact” that
puts the trial court on notice that a defendant’s waiver may be
“less than knowing and intelligent.” State v. Gomez-Lobato, 130
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Hawaiʻi 465, 471, 312 P.3d 897, 903 (2013) (quoting United States
v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997)). In
this case, the court ruled at trial that Phua’s language ability
was adequate to proceed without an interpreter. However, when
the court made this ruling, Phua had the assistance of counsel
to help him in understanding legal terms and the nature of the
proceedings. In fact, the court specifically mentioned that if
Phua had trouble understanding any issue, the court would
provide Phua an opportunity to speak with his attorney for
clarification. Given the potential language barrier, the
district court should have further questioned Phua in this
regard.
Another important circumstance that should have been
addressed by the trial court is Phua’s prior experience or
familiarity with criminal trials. A defendant’s experience, or
knowledge of, the court system may be a factor in determining
that a valid waiver was made. See Dickson, 4 Haw. App. at 622-
23, 673 P.2d at 1040, 1043 (finding that the record did not
indicate a knowing and intelligent waiver of counsel where there
was nothing to show that the defendant had previously
represented himself, that he was familiar with a felony jury
trial situation, or that he was aware of the pitfalls of
proceeding pro se, even though the record indicated the
- 23 -
defendant had “many contacts with the legal system”). While
Phua was involved in two prior civil cases,12 Phua’s counsel
indicated in his Declaration that Phua had no prior criminal
record.
It is questionable whether Phua perceived the
distinction between criminal and civil actions. When given an
opportunity to make a statement regarding his sentence, Phua
instead expressed his desire to have the case removed to federal
court and consolidated with his civil cases. Phua further
expressed that a federal court “might be able to fit [his]
needs” and that “Chief Justice Susan Mollway stamped approval
for [his] case to be removed to the federal court.” Phua did
not address the State’s recommended sentence, nor did he make
any suggestion of what an appropriate sentence would be.
The district court’s inquiry into Phua’s background
and understanding not only was lacking in depth, but it came at
the end of the court’s colloquy with Phua. The court questioned
Phua concerning his age and education only at the end of the
waiver colloquy after briefly informing him of the pitfalls of
12
The district court took judicial notice of its judgments in two
cases involving possession of the land over which the dispute in this case
arose. Phua was a defendant in one of those civil cases, in which he
appeared pro se. The minutes reflect that Phua appeared at the hearing on
the motion for summary judgment with an interpreter. In the second case, in
which Phua was not a party, Phua was present with an interpreter at the
hearing on the plaintiff’s motion for summary judgment.
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self-representation. Dickson indicates that the first area of
inquiry is “necessary to allow the trial court to determine the
level and depth to which its explanation and inquiry must
extend.” Id. at 619, 673 P.2d at 1041. Without this initial
examination, the trial court may lack the requisite information
to determine the defendant’s level of comprehension necessary in
order to ascertain whether the defendant understood the risks
and disadvantages of self-representation. Here, given Phua’s
limited education, his potential language barrier with the
court, and his unfamiliarity with the criminal justice system,
further inquiry into Phua’s background should have been
conducted by the district court before proceeding to the court’s
warning of the risks and disadvantages of waiving counsel.13
2. Defendant’s Level of Understanding of the Risks and
Disadvantages of Self-Representation
Dickson directs that once the court completes its
examination of the defendant’s background and level of
comprehension, the court may then move onto the second and third
areas of inquiry, which involve warning the defendant of the
13
We do not, as the minority indicates, find that the trial court
was constitutionally required to conduct further inquiry into Phua’s
background. See minority at 4. Rather, we adopt the recommendations of
Dickson, which suggests areas of inquiry to assist courts in obtaining a
valid waiver and has been the governing law in Hawai#i courts for over thirty
years. Given the record in this case, Phua’s proficiency in English may be
relevant to the court’s inquiry on remand.
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risks particular to the defendant in proceeding without counsel,
and then explaining to the defendant the inherent disadvantages
of self-representation. See 4 Haw. App. at 619-20, 673 P.2d at
1041; Wayne R. LaFave et al., Criminal Procedure § 11.5(c). The
record must reflect that the defendant understands what he or
she is doing and that the decision is made “with eyes open.”
Faretta v. California, 422 U.S. 806, 835 (1975)).
Although the trial court “is not required to give the
defendant a short course in criminal law and procedure,” the
judge’s warnings must reflect more than “vague, general
admonishments, without reference to specific” risks or
disadvantages. Dickson, 4 Haw. App. at 620, 673 P.2d at 1042.
The extent and depth of the court’s inquiry and explanation of
the second and third factors should respond to the court’s
perception of the defendant’s level of understanding. The
purpose of the trial court in this regard is not simply to
mechanically provide the defendant with the information, but
rather, the court should engage the defendant to ensure that the
waiver is intelligently and voluntarily made.
In some circumstances, it may be necessary for a trial
court to ask follow up questions to confirm the defendant’s
understanding of the court’s warnings of the risks of waiving
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counsel and the disadvantages of self-representation.14 This is
particularly true in cases where there is a potential language
barrier between the defendant and the court--as there was in
this case.15 See Gomez-Lobato, 130 Hawaiʻi at 472, 312 P.3d at
904. In Gomez-Lobato, this court found that a language barrier
between the court and the defendant “should have prompted the .
. . court to ask additional questions to verify that [the
defendant] understood the right he was waiving.” Id. at 479,
312 P.3d at 912.
a. Risks of Self-Representation
The second area of inquiry set forth in Dickson is
designed to “fully assure that the defendant is informed of the
risks of self-representation.” 4 Haw. App. at 619-20, 673 P.2d
at 1041. The court should therefore make the defendant aware of
“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.” Id. (citations omitted). This
information is essential to a defendant’s understanding of the
personal risks of self-representation. Id.
14
LaFave et al., supra note 11, § 11.5(c) suggests that trial court
follow up any reference to a risk or disadvantage with an inquiry designed to
reveal whether the defendant understands the court’s warning.
15
See supra Part III.A.
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In this case, the district court did not address the
potential risks of self-representation with Phua. Most
significantly, the court did not inform Phua of the potential
punishment that could be imposed at the sentencing proceeding.16
It is unlikely that a record could reflect a knowing and
intelligent waiver of counsel at sentencing without the
defendant being apprised of such basic information as the
maximum or range of punishment that may be imposed. See State
v. Hartman, 349 A.2d 223, 225 (Vt. 1975) (“If a defendant . . .
is unaware of the nature of the charges and the range of the
allowable punishment at the time of his decision to represent
himself, the waiver of his rights . . . is not made knowingly
and intelligently.”). This is particularly true in this case
where the record reflects that Phua had limited or no
familiarity with the criminal justice system.
Since information regarding the potential sentence is
fundamental to an understanding of the risks of waiving counsel,
trial courts should take care to ask questions that inform a
defendant of this critical information. The record shows no
16
The ICA misapprehended the record in this case: “Phua articulates
no reason why the District Court’s inquiry about his education, work history,
and experience after warning him of the possible punishment and advising him
of the risks of self-representation was prejudicial.” (Emphasis added). No
such warning regarding the possible punishment occurred in this case.
- 28 -
indication that Phua was informed of or understood the maximum
penalty that could be imposed at sentencing; consequently we
cannot find that his waiver of counsel was knowingly and
voluntarily made.
b. Disadvantages of Self-Representation
Finally, Dickson provides that a trial court must also
inform the defendant of the inherent disadvantages of self-
representation before a waiver of the right to counsel is
obtained. 4 Haw. App. at 620, 673 P.2d at 1042-43. An
essential obligation in this regard is to meaningfully inform
the defendant of his or her right to the assistance of counsel.
LaFave et al., supra, § 11.3(a). Such information may be
conveyed by the following questions:
Because of the seriousness of the offense and the serious
consequences of being found guilty, do you understand that
you have a Constitutional right to be represented by an
attorney at a sentencing hearing?
Do you understand that if you cannot afford an attorney,
you have the right to have free legal representation
through the public defender’s office or a court appointed
lawyer?[17]
The record demonstrates that Phua was not fully aware of his
right to court-appointed counsel. When asked whether he
understood his right to a court appointed attorney if he could
17
Under HRS § 802-2, “[i]n every criminal case or proceeding in
which a person entitled by law to representation by counsel appears without
counsel, the judge shall advise the person of the person’s right to
representation by counsel and also that if the person is financially unable
to obtain counsel, the court may appoint one at the cost to the State.”
- 29 -
not afford one, Phua responded, “No, I was not aware of that . .
. .” The court did not further discuss the right to court-
appointed counsel with Phua but instead asked him whether he
still wished to proceed without an attorney. We find that
Phua’s response that he was not aware of the right to a court-
appointed attorney required further explanation and inquiry.
See State v. Young, 73 Haw. 217, 220-21, 830 P.2d 512, 514
(1992) (noting that “waiver of a fundamental right is never
presumed” and finding that where record is unclear as to whether
defendant is waiving his right to jury trial, the court should
conclude the defendant is not waiving the right); see also State
v. Gomez-Lobato, 130 Hawaiʻi 465, 469, 312 P.3d 897, 901 (2013)
(“[T]he court should also engage in an oral colloquy with the
defendant to establish that the waiver was knowing, intelligent,
and voluntary.”); State v. Ibuos, 75 Haw. 118, 122, 857 P.2d
576, 578 (1993) (“The necessity for colloquy between the court
and a defendant is especially apparent in light of the
importance we place on the personal nature of a defendant's
right to a jury trial.”).18
18
In finding this exchange sufficient under Miranda (“No, I was not
aware of that . . . .”), the minority reduces the judge’s role to merely
notifying a defendant of his constitutional rights, without responsibility to
clarify when the defendant expresses confusion or lack of understanding
regarding the right that is being advised. See minority at 3-6.
(. . .continued)
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Once informed of the right to counsel or court-
appointed counsel, the “defendant’s relinquishment of that right
must be clear and unequivocal.” LaFave et al.,
supra, § 11.3(a); see also Young, 73 Haw. at 220, 830 P.2d at
514. Dickson summarizes the information that a trial court
should inform a defendant regarding the disadvantages of self-
representation:
[T]he 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; and that if
voluntary self-representation occurs, the defendant
may not afterward claim that he had inadequate self-
representation.
Dickson, 4 Haw. App. at 620, 673 P.2d at 1041-42 (emphasis
added) (citations omitted).
(. . .continued)
Additionally, the minority’s conclusion, which is premised on the
Miranda doctrine, is misplaced. “Miranda protects against the coercive
pressures of custodial interrogation.” Wayne R. LaFave et al., 2 Criminal
Procedure § 6.4(h) (3d ed.). On the other hand, the Sixth Amendment secures
the right to counsel in judicial proceedings. See State v. Luton, 83 Hawaiʻi
443, 448, 927 P.2d 844, 849 (1996) (“An individual has a right to counsel
under the sixth amendment to the United States Constitution and article I,
section 14 of the Hawaiʻi State Constitution which guarantees an accused the
right to assistance of counsel for his or her defense. This right “attaches
at critical stages of the criminal prosecution.” (alterations omitted)
(internal quotation marks and citations omitted) (quoting State v. Liulama, 9
Haw. App. 447, 453 n.5, 845 P.2d 1194, 1199 n.5 (1992); State v. Masaniai, 63
Haw. 354, 358, 628 P.2d 1018, 1022 (1981))). The distinction between these
two constitutional amendments does not render our decision “unprecedented.”
See minority at 5.
- 31 -
Although the district court informed Phua of some of
the disadvantages of self-representation, the record does not
indicate clearly whether Phua understood the seriousness of his
decision to waive his right to counsel. The court might also
have warned Phua in simple terms that “self-representation is
detrimental to himself” and urged him to reconsider. Id.
In this case, the district court’s inquiry into the
disadvantages of self-representation is a series of yes or no
questions with little opportunity for Phua to express confusion
or ask questions. Additional questions, or varying the form of
the questions, may have assisted the district court to verify
that Phua understood the right he was waiving. See Gomez-
Lobato, 130 Hawaiʻi at 479, 312 P.3d at 912. Further, a trial
court may find it beneficial to conclude the inquiry with a
question seeking an affirmation of the defendant’s desire to
waive the right to counsel--e.g., “Understanding all that I have
explained to you, do you still wish to waive your right to be
represented by a lawyer and to represent yourself at trial?” Had
the court concluded its inquiry by asking Phua if he still
desired to waive his right to counsel, Phua would have had an
opportunity to confirm or change his mind in light of the
court’s warnings.
- 32 -
3. Validity of Phua’s Waiver
The record in this case is critically deficient to
support a finding that Phua’s waiver of his right to counsel was
intelligently and knowingly made. There were circumstances in
this case necessitating further inquiry into Phua’s background,
and the record does not reflect that Phua understood the risks
and disadvantages of waiving counsel. The fact that the trial
court did not warn Phua of the range of allowable punishment in
this case is alone sufficient grounds for vacating the
sentence.19 Accordingly, this case must be remanded to the
district court for a new sentencing proceeding.
B. Pre-Sentence Allocution
Phua also contends that the district court erred by
failing to personally address him regarding his right to pre-
sentence allocution. We do not address the merits of this
contention in light of our conclusion that Phua did not
knowingly and intelligently waive his right to counsel.
Nonetheless, we reiterate the importance of a defendant’s right
19
Since both this opinion and the minority conclude that the
district court’s failure to advise Phua of the potential punishment is
sufficient ground for vacating the sentence, it is unnecessary to determine
whether “sentencing may require a less stringent colloquy.” Minority at 14.
We note however that a sentencing proceeding may include extended term
sentencing, involving presenting of evidence, cross-examination, argument,
and submission of jury instructions. We therefore specifically decline to
address this issue.
- 33 -
to pre-sentence allocution under the Hawaiʻi Constitution and our
law.
State v. Chow recognized the fundamental importance of
a defendant’s right to pre-sentence allocution.20 77 Hawaiʻi 241,
246-47, 883 P.2d 663, 668-69 (App. 1994). Under Chow, trial
courts must ensure that its mandate is complied with during
sentencing proceedings, particularly as it is “essential to fair
treatment.” Id. at 250, 883 P.2d at 672. Accordingly, “[t]rial
judges before sentencing should, as a matter of good judicial
administration, unambiguously address themselves to the
defendant” providing a personal invitation to speak prior to
sentencing. Id. at 248, 883 P.2d at 670 (quoting Green v.
United States, 365 U.S. 301, 305 (1961)). The right is one
easily administered by the trial court by the following inquiry:
“Do you, . . . [(defendant’s name)], have anything to say before
I pass sentence?” Id. at 248, 883 P.2d at 670 (alterations in
original) (quoting Green v. United States, 365 U.S. 301, 305
(1961)).
20
See also HRS § 706-604(1) (1993 & Supp. 2006) (“Before imposing
sentence, the court shall afford a fair opportunity to the defendant to be
heard on the issue of the defendant’s disposition.”); Rule 32(a) of the
Hawaiʻi Rules of Penal Procedure (HRPP) (2006) (“Before suspending or imposing
sentence, the court shall address the defendant personally and afford a fair
opportunity to the defendant and defendant’s counsel, if any, to make a
statement and present any information in mitigation of punishment.”).
- 34 -
We observe the trial court has an especially important
role in affording the right to pre-sentence allocution to a
defendant appearing pro se at sentencing. When a pro se
defendant is not responsive to the court’s request for
allocution, the trial court may, as a matter of good judicial
administration, seek confirmation that the defendant understands
the right to address the court regarding sentencing before the
sentence is imposed.21
IV. CONCLUSION
Based on the foregoing, we vacate the ICA’s December
23, 2013 Judgment on Appeal and the district court’s August 29,
2011 Judgment of Conviction and Sentence and remand the case to
the district court for resentencing.
James S. Tabe /s/ Mark E. Recktenwald
for petitioner
/s/ Sabrina S. McKenna
Linda L. Walton
for respondent /s/ Richard W. Pollack
21
We note that the record in this case does not disclose whether
Phua received a copy of the PSI. When a defendant appears pro se at
sentencing, the trial court should confirm the defendant received a copy of
the PSI and had an opportunity to review it. HRS § 706-604(2) requires the
trial courts to furnish the parties with a copy of the PSI and “afford fair
opportunity” for the parties to “controvert or supplement” it. Thus, the
court may verify that the PSI has been received by a counseled or uncounseled
defendant, when it affords the parties the opportunity to correct or
supplement the PSI.
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