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Electronically Filed
Supreme Court
SCWC-15-0000131
19-MAY-2017
09:36 AM
SCWC-15-0000131
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
THEODORICO ERUM, JR., Petitioner/Defendant-Appellant.
_____________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000131; CASE NO. 5DCC-14-0000212)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
I. Introduction
Theodorico Erum, Jr. (“Erum”) seeks review of the
Intermediate Court of Appeals’ (“ICA”) July 21, 2016 Judgment on
Appeal (“ICA judgment on appeal”), entered pursuant to its June
22, 2016 Summary Disposition Order (“SDO”), which affirmed the
District Court of the Fifth Circuit’s (“district court”)
Judgment/Order and Notice of Entry of Judgment/Order entered on
November 13, 2014.
Erum has proceeded pro se at every stage of this case. The
record on appeal, which was supplemented by order of this court
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with the audio recordings of the arraignment held August 6, 2014
and the bench trial held November 13, 2014,1 does not indicate a
valid waiver of counsel. We therefore vacate the district
court’s judgment and remand for further proceedings consistent
with this summary disposition order.
II. Background
A. District Court Proceedings
After an incident relating to a property dispute between
Erum and the complaining witness, the State of Hawai‘i (“State”)
charged Erum with two offenses: Simple Trespass, in violation of
Hawai‘i Revised Statutes (“HRS”) § 708–815 (1993)2, and
Harassment, in violation of HRS § 711–1106 (2014)3.
1
This court ordered that the record be supplemented in the certiorari
proceedings pursuant to Rule 10(e)(2)(C) of the Hawai‘i Rules of Appellate
Procedure, which states:
If anything material to any party is omitted from the
record by error or accident or is misstated therein,
corrections or modifications may be as follows:
. . . .
(C) by direction of the appellate court before which the
case is pending, on proper suggestion or its own initiative
. . . .
2
HRS § 708-815 provides, “A person commits the offense of simple
trespass if the person knowingly enters or remains unlawfully in or upon
premises.”
3
HRS § 711-1106 provides in relevant part:
(1) A person commits the offense of harassment if, with
intent to harass, annoy, or alarm any other person, that
person:
(a) Strikes, shoves, kicks, or otherwise touches another
person in an offensive manner or subjects the other person
to offensive physical contact[.]
2
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At Erum’s August 6, 2014 arraignment, the following
exchange took place:
Court: Mr. Erum if you’ll take a look at the amended
complaint, would you like those two charges read out loud
in court this morning?
Erum: Uh if you give me a moment, your honor, I’ll read it
and then I’ll waive my reading out loud.
Court: Okay.
Erum: I read the complaint, your honor.
Court: Alright, are you waiving public reading of the
charges?
Erum: Yes, your honor.
Court: Defendant waives reading of the charges. Count I,
the harassment count, is a jailable offense. Normally when
a defendant is charged with a jailable offense, what the
court normally does is enter not guilty pleas and then we
refer you to the Office of the Public Defender if you wish
to apply for services. In the alternative, if you wanted
to hire private counsel, you can make those arrangements on
your own. So we normally enter a not guilty plea, and
rather than set a trial date immediately, we set a kind of
a status date, so you can receive discovery and if you have
an attorney, you can discuss your case with your attorney.
Would you like us to do that or are you requesting that I
actually set a trial date already?
Erum: Um I would like the trial date to be set.
Court: Okay. So not guilty pleas are entered. Rule 48
please.
. . . .
Now um do you intend to apply for attorney’s services at
the Office of the Public Defender or to consult with
private counsel?
Erum: I’ll take that into consideration, your honor. I
don’t --
Court: I just want to let you know because [the State is]
not going be communicating directly with you unless and
until there’s a waiver of your right to counsel, and I
don’t want you to waive counsel until you’ve actually made
that decision and it’s knowing. So --
Erum: I understand, your honor.
Court: You can go to the Public Defender’s office this
morning with your paperwork and fill out an application.
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My recommendation is that you do that sooner rather than
later. If you do that and ultimately for whatever reason
you decide you want to be a pro se defendant, you can
always stop having counsel but at least you’ll be able to
consult with counsel and have someone representing you and
then get discovery from the prosecutor’s office.
Erum: Okay, thank you.
The bench trial was held on November 13, 2014.4 The
district court addressed Erum’s right to counsel in the
following exchange:
Court: You do have one of these as a petty misdemeanor
which carries a sentence of up to thirty days in jail, you
understand that you -- weren’t you referred to the Public
Defender’s office?
Erum: Uh is that a question to me, your honor?
Court: Yes.
Erum: Yes, your honor. Judge, uh, judge referred me to
the Public Defender’s office.
Court: And you chose not to go?
Erum: No, I didn’t choose not to go, it’s just that I’m
not an indigent person.
Court: Ok. And you don’t choose to hire your own attorney
in this case?
Erum: Uh yes, in this short space of time I was not able
to get an attorney.
Court: If you wanted additional time in which to hire an
attorney, I would grant you additional time.
Erum: At this point, uh, at this point of the proceedings,
your honor, and my discussions with the State of Hawai’i
prosecuting attorney, leads me to believe that we should go
forward today.
Court: Okay. But it’s not just your discussions, what I’m
saying is notwithstanding your discussions with the
prosecuting attorney, if you felt like you needed time to
hire your own attorney, I would grant that time to you. Do
you understand that?
Erum: I understand.
4
The Honorable Joe P. Moss presided.
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Court: Knowing that you wish to go forward?
Erum: I wish to go forward.
At the conclusion of the bench trial, the district court
found Erum guilty as charged, and ordered him to pay fines and a
fee totaling $330.00.
B. Appeal to the ICA
On appeal to the ICA, Erum alleged the district court: (1)
erred in failing to enter findings of fact and conclusions of
law that sufficiently demonstrated that each element of the
criminal charges was proved beyond a reasonable doubt; (2)
lacked authority to determine whether the complaining witness
was the owner of the property on which the trespass allegedly
occurred; and (3) erred in denying Erum’s motion for a new
trial.
In its SDO, the ICA affirmed the district court judgment.
As to Erum’s first point of error, the ICA concluded, “Erum does
not explain how the District Court’s failure to enter findings
or conclusions equates with the State’s failure to prove every
element of the offense or the offender’s alleged state of mind,
so that argument fails.” As to Erum’s second point of error,
the ICA determined that, without a transcript, there was no
basis upon which to rule on the merits of his claim. As to
Erum’s third point of error, the ICA concluded that absent the
bench trial transcript and the transcript of the hearing on
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Erum’s motion for a new trial, it was “unable to determine
whether the trial court abused its discretion[.]”
III. Standards of Review
A. Waiver of Counsel
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.’ The trial court must 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.’
State v. Phua, 135 Hawai‘i 504, 512, 353 P.3d 1046, 1054
(2015) (quoting State v. Dickson, 4 Haw. App. 614, 619, 673
P.2d 1036, 1041 (1983)).
B. Plain Error Review
“Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of
the court.” Hawai‘i Rules of Penal Procedure (“HRPP”) Rule 52(b)
(2000). This court has the inherent power to notice plain error
sua sponte. State v. Fields, 115 Hawai‘i 503, 528, 168 P.3d 955,
980 (2007), as amended on denial of reconsideration (Oct. 10,
2007).
If a defendant’s substantial rights have been adversely
affected, the error will be deemed plain error. State v.
Nichols, 111 Hawai‘i 327, 334, 141 P.3d 974, 981 (2006).
Substantial rights include constitutional rights. See State v.
Uyesugi, 100 Hawai‘i 442, 449, 60 P.3d 843, 850 (2002) (noting
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that a substantial right under plain error review includes
constitutional rights, such as the right to trial). “[T]his
[c]ourt will apply the plain error standard of review to correct
errors which seriously affect the fairness, integrity, or public
reputation of judicial proceedings, to serve the ends of
justice, and to prevent the denial of fundamental rights.”
State v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998).
IV. Discussion
On certiorari, Erum argues that the ICA’s affirmance of the
district court’s judgment was erroneous because: (1) the
district court failed to enter findings of fact or conclusions
of law; (2) the district court determined that the complaining
witness was the owner of the property; and (3) the district
court denied Erum’s motion for a new trial while his civil case
regarding the property was on appeal.
The record on appeal to the ICA did not contain any
transcripts; therefore, the ICA did not err with respect to its
determination of the issues Erum raised on appeal. In general,
it is the appellant’s burden to provide the appellate court with
the record on appeal. However, because Erum has never been
represented by counsel in this case, we engage in a plain error
review only to determine whether Erum’s constitutional right to
counsel may have been affected.
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A. Requirements for a Valid Waiver of Right to Counsel
The Sixth Amendment to the United States Constitution, as
applied to the states through the Fourteenth Amendment, and
article I, section 14 of the Hawai‘i Constitution guarantee a
person accused of a crime the right to counsel at every critical
stage of prosecution. State v. Merino, 81 Hawai‘i 198, 219, 915
P.2d 672, 693 (1996). A “critical stage” of prosecution
includes “any stage where potential substantial prejudice to [a]
defendant’s rights inheres[.]” Phua, 135 Hawai‘i at 512, 353
P.3d at 1054 (internal citation omitted).
There are two general requirements for a valid waiver of
counsel: first, the waiver of counsel must be “knowingly and
intelligently” made, and second, “the record [must be] complete
so as to reflect that waiver.” Id. at 512, 353 P.3d at 1054
(internal citation omitted). The latter requirement enables
appellate courts to determine from the record whether there was
an unequivocal waiver, which was voluntarily and freely made.
Id.
“In determining the legal adequacy of waiver of counsel,
the question is whether, considering the totality of the
circumstances, the waiver was voluntarily and intelligently
undertaken.” State v. Dicks, 57 Haw. 46, 49, 549 P.2d 727, 730
(1976). There are “three areas of ‘specific waiver inquiry’
factors to assist trial courts: (1) the particular facts and
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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.” Phua, 135 Hawai‘i at 512, 353 P.3d at 1054
(citing Dickson, 4 Haw. App. at 618, 673 P.2d at 1041). “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.” Id. at
514, 353 P.3d at 1056. “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.” Id. at 513, 353 P.3d at 1055.
B. There was No Valid Waiver of Counsel
In this case, there was no written waiver of counsel in the
record on appeal. Thus, we review the recordings of the
district court’s oral colloquies, as outlined above, to
ascertain whether there was a valid waiver of counsel.
1. Defendant’s Level of Comprehension
The first prong of the Phua test recommends the court
“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,
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English language skills, mental capacity, employment background,
and prior experience with the criminal justice system.” Id. at
513, 353 P.3d at 1055. Ascertaining the defendant’s level of
comprehension is necessary for the court to know the extent to
which it must warn the defendant of the risks of self-
representation and the potential disadvantages of choosing to
proceed pro se. Id.
Here, the recordings reveal the court did not inquire about
Erum’s background. The record does not contain any evidence
that prior to the arraignment, the district court was privy to
any information regarding Erum’s mental capacity, employment
background or prior experience with the criminal justice system-
-all factors that would be necessary to determine Erum’s level
of comprehension and thus his ability to intelligently and
knowingly waive his right to counsel.5 The district court,
therefore, did not meet the first prong of the test discussed in
Phua.
2. Defendant’s awareness of the risks of self-
representation
The second prong of the Phua test recommends the court warn
the defendant of the risks particular to the defendant in
proceeding without counsel by making the defendant “aware of the
5
On July 2, 2015, Erum filed a Motion For Relief From Default and For
Extension Of Time To File Jurisdictional Statement And Opening Brief. The
motion indicated that he was 82 years old and allegedly had a “poor memory
associated with [his] age.”
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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.” Phua, 135 Hawai‘i at 514-15, 353 P.3d at 1056-57
(internal quotation marks and citations omitted). “[T]he
judge’s warnings must reflect more than ‘vague, general
admonishments, without reference to specific risks or
disadvantages.’” Id. at 514, 353 P.3d at 1056.
In Dickson, the ICA determined that although “Defendant
made a clear and unequivocal demand to represent himself” and
“[t]he record also indicate[d] that Defendant’s decision was
freely and voluntarily made . . . the record [did] not show that
the trial judge sufficiently informed Defendant of the dangers
and disadvantages of proceeding pro se, or made sufficient
inquiry into his awareness thereof.” Dickson, 4 Haw. App. at
622, 673 P.2d at 1043 (italics omitted). The ICA concluded that
under these facts, “the record does not indicate that Defendant
made a knowing and intelligent waiver of counsel.” Id. at 623,
673 P.2d at 1043.
Although the district court informed Erum, “You do have one
of these [charges] as a petty misdemeanor that carries a
sentence of up to thirty days in jail,” it did not address the
other factors under this second prong. Therefore, the second
Phua prong is also not satisfied.
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3. Defendant’s awareness of the disadvantage of self-
representation
The final prong of the Phua test is whether the court
informed the defendant of the disadvantages of self-
representation before a waiver of the right to counsel is
obtained. Phua, 135 Hawai‘i at 515, 353 P.3d at 1057. This
includes the requirement that the trial court “meaningfully
inform the defendant of his or her right to the assistance of
counsel.” Id. Such information may be conveyed by asking 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?
Id. (footnote omitted).
Furthermore, in addition to conveying this information to
the defendant,
the trial court should inform the defendant: of his right
to counsel, whether private or appointed . . . that self-
representation is detrimental to himself; that he will be
required to follow all technical rules and substantive,
procedural, and evidentiary law; that the prosecution will
be represented by able counsel; that a disruption of the
trial could lead to vacation of the right to self-
representation; and that if voluntary self-representation
occurs, the defendant may not afterward claim that he had
inadequate representation.
Dickson, 4 Haw. App. at 620, 673 P.2d at 1041–42 (internal
citation omitted).
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At the start of the bench trial, the court asked Erum if he
was referred to the Public Defender’s office. Erum stated he
“didn’t choose not to go [to the Public Defender’s office], it’s
just that [he was] not an indigent person.” Erum also stated
that “in [the] short space of time [before the bench trial] [he]
was not able to get an attorney.” The court informed Erum he
could have more time to find an attorney, but did not take any
steps to advise Erum of the potential risks involved in self-
representation. Thus, the third prong of the Phua test is not
satisfied.
V. Conclusion
Accordingly, based on the totality of circumstances, there
was no valid waiver of counsel in this case. We therefore
vacate the ICA judgment on appeal as well as the district court
judgment and remand for further proceedings consistent with this
summary disposition order.
DATED: Honolulu, Hawaii, May 19, 2017.
Theodorico Erum, Jr. /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Tracy Murakami
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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