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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-JUN-2019
08:56 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
CHRIS GRINDLING, Respondent/Petitioner-Appellee,
vs.
STATE OF HAWAII, Petitioner/Respondent-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 12-1-0007(3); CR. NO. 07-1-0533(2))
JUNE 13, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
In this case, Christopher Grindling brought a petition
for post-conviction relief contending that the trial court
violated his constitutional right to have each element of an
offense proven beyond a reasonable doubt, when the court
accepted a stipulation to elements of the charged offenses
without engaging him in a colloquy to obtain his consent.
Grindling also argued that he received ineffective assistance of
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trial and appellate counsel relating to the trial court’s error
in accepting the stipulation. The circuit court granted
Grindling’s petition, concluding that the trial court’s failure
to conduct a colloquy with Grindling was plain error and that
Grindling had received ineffective assistance both at trial and
on appeal.
On appeal, the Intermediate Court of Appeals (ICA)
held that plain error review was improper in a post-conviction
proceeding. The ICA vacated the circuit court decision and
remanded the case to afford Grindling’s trial and appellate
counsel an opportunity to address the ineffective assistance
claims.
On review, we reaffirm that it is the duty of the
trial court to conduct a colloquy with the defendant to obtain a
knowing and voluntary waiver of the constitutional right to have
each element of the charged offenses proven beyond a reasonable
doubt; therefore, a court’s failure to comply with this duty is
not grounds for finding ineffective assistance of trial counsel.
We further hold that plain error review applies to post-
conviction proceedings, and the circuit court correctly noticed
plain error in this case. We therefore vacate the ICA’s
judgment on appeal and affirm the circuit court decision on this
ground.
2
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I. FACTS AND PROCEDURAL HISTORY
A. Background
After law enforcement recovered suspected
methamphetamine and drug paraphernalia from his residence and
vehicle while executing two search warrants, Christopher
Grindling was charged on August 31, 2007 with promoting a
dangerous drug in the third degree in violation of § 712-1243(1)
(1993)1 of the Hawaii Revised Statutes (HRS) and prohibited acts
related to drug paraphernalia in violation of HRS § 329-43.5(a)
(1993).2
In September 2007, Grindling appeared for arraignment
in the Circuit Court of the Second Circuit (trial court or
circuit court as specified3) and entered pleas of not guilty. In
the months that followed, Grindling filed numerous pro se
motions, including a motion to dismiss his counsel, Cary Virtue,
1
HRS § 712-1243(1) provides in relevant part that “[a] person
commits the offense of promoting a dangerous drug in the third degree if the
person knowingly possesses any dangerous drug in any amount.”
2
HRS § 329-43.5(a) stated in relevant part,
It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled
substance in violation of this chapter.
3
In this opinion, “trial court” refers to the court that presided
over the trial and remand proceedings in Grindling’s case, and “circuit
court” refers to the court that presided over the post-conviction
proceedings.
3
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Esq., which was denied, and a subsequent motion to waive
counsel.4
At a hearing in March 2008, Grindling clarified that
he did not really want to waive counsel but did not wish to be
represented by Virtue. After the court determined that
Grindling had not made a showing that justified appointing
replacement counsel, the trial court granted Grindling’s motion
to waive counsel and appointed Virtue as standby counsel. At a
later hearing, the court reconsidered its determination,
discharged Virtue, and appointed substitute counsel. In June
2008, substitute counsel moved to withdraw, and the trial court
appointed Steven Songstad, Esq., as counsel and indicated that
Songstad would be Grindling’s last court-appointed counsel.
Jury trial commenced on August 4, 2008. During trial,
the State informed the court that the parties had entered into a
stipulation establishing the chain of custody and receipt into
evidence of four packets and a pipe recovered in the search of
Grindling’s residence and vehicle, and that the results of
chemical testing of the packets’ contents and the pipe residue
identified the presence of methamphetamine. The trial court did
4
The Honorable Shackley F. Raffetto presided over the trial and
remand proceedings.
4
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not address Grindling regarding the stipulation, and the State
read the stipulation to the jury.
The jury convicted Grindling on both charges, and the
court sentenced Grindling to five years in prison on each count,
with the terms to run consecutively (judgment of conviction).
Grindling was also required to pay a $105 Crime Victim
Compensation fee in each count.
B. Appeal
Cynthia Kagiwada, Esq., replaced Songstad as
Grindling’s counsel on appeal after Songstad moved to withdraw
as counsel. After the filing of the opening brief in the
Intermediate Court of Appeals (ICA), Grindling filed a pro se
pleading entitled “Ex Parte Objection to Court Appointed
Counsel,” and later, a supplement to the opening brief.5 Neither
the opening brief nor Grindling’s supplement to the opening
brief raised any points of error concerning the trial court’s
acceptance of the evidentiary stipulation.
Thereafter, the ICA granted a motion by Kagiwada to
remand the case to the trial court for consideration of a motion
to withdraw as counsel. During the remand hearing, the trial
court allowed Kagiwada to withdraw from representing Grindling.
5
The State filed an ex parte motion to strike the supplement to
opening brief, which the ICA granted over Grindling’s opposition.
5
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The court then entered into a discussion with Grindling
regarding his lack of counsel. Grindling stated that he wanted
a lawyer but expressed his frustration with his previous court-
appointed attorneys. This led to the following exchange:
THE COURT: All right. Well, what do you want to do about a
lawyer, you gonna represent yourself or what?
THE DEFENDANT: I want an attorney, but I don’t want []
another one that does nothing, therefore I have no choice
but to represent myself.
THE COURT: That’s–-if you–-
THE DEFENDANT: I am forced into it due [to] the fact that
these attorneys don’t want to do anything.
. . . .
THE COURT: . . . You know, we’ve had these discussions
several times about what a bad idea that is; you remember
all that?
THE DEFENDANT: And yeah, and I agree with you. It is a bad
idea, but I am forced into it. . . .
. . . .
THE COURT: I just want to know quite clearly that you–-you
want to represent yourself. If that is what you want to
do, then that’s fine. I just want to make sure that you
are clear about that.
THE DEFENDANT: Yeah. I–-I-–I–-we are clear about that.
Like I said, I-–I have no choice. . . .
The trial court at this point determined Grindling had waived
his right to appointed counsel “based on [his] collective
behavior with [his] five previous counsel” and that he would
represent himself on appeal.6
6
Grindling, pro se, filed a motion to effectively reinstate his
supplement to the opening Brief, which the ICA granted. The State filed a
supplemental answering brief to which Grindling filed a reply.
6
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On March 19, 2010, the ICA issued a Summary
Disposition Order (SDO) in which it determined that the trial
court should have held an evidentiary hearing to establish
Grindling’s objections on the record to ascertain the bases for
his request for replacement of Virtue as his trial counsel.7 The
ICA also concluded that although Grindling moved to waive his
right to counsel, “he really wanted substitute counsel.” The
ICA found, however, that these errors were harmless beyond a
reasonable doubt because Grindling was without counsel for only
about one week, approximately four months before trial began.
Accordingly, the ICA affirmed the judgment of conviction.
C. HRPP Rule 40 Proceedings
On April 4, 2012, Grindling filed a “Petition to
Vacate, Set Aside, or Correct Judgment or to Release
Petitioner From Custody” (Petition8) in the circuit court
pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 40,
alleging that he had not been given access to correctional
programs, which resulted in his being denied parole.9
7
The ICA’s SDO can be found at State v. Grindling, No. 29307, 2010
WL 1020355 (App. Mar. 19, 2010).
8
The Petition was amended and supplemented with additional claims.
The term “Petition” refers collectively to these supplemental filings as
well.
9
HRPP Rule 40(a) provides in relevant part:
(continued . . .)
7
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Grindling later filed amendments to the Petition in May
2012, alleging eight grounds. The circuit court issued an
order, finding that Grindling’s Petition raised potentially
colorable claims that had not been waived or previously
ruled upon with regard to, inter alia, his assertions of
ineffective assistance of appellate counsel and denial of
counsel on appeal.10
In 2016, Grindling, now represented by counsel, filed
a motion to supplement the Petition, which the circuit court
granted. The supplemental ground asserted that Grindling’s
state and federal constitutional rights to a fair trial were
violated when the circuit court, prior to accepting the
stipulation, failed to conduct an on-the-record colloquy with
him regarding his waiver of the right to proof of an element of
a charge. Grindling also contended that that his federal and
(. . . continued)
(a) Proceedings and Grounds. The post-conviction
proceeding established by this rule shall encompass all
common law and statutory procedures for the same purpose,
including habeas corpus and coram nobis; provided that the
foregoing shall not be construed to limit the availability
of remedies in the trial court or on direct appeal. Said
proceeding shall be applicable to judgments of conviction
and to custody based on judgments of conviction . . . .
The Honorable Joseph E. Cardoza presided over the Rule 40 proceedings.
10
In May 2014, Grindling filed an amended petition, pro se, in
which he raised six grounds, several of which reiterated claims that the
circuit court had previously found colorable.
8
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state constitutional rights to effective assistance of trial and
appellate counsel were violated by his trial counsel’s inaction
and appellate counsel’s failure to raise the trial court’s error
on appeal.
In response to the claims raised in the supplemental
ground, the State argued that Grindling waived these claims when
he represented himself pro se on direct appeal, engaged in
conduct that demonstrated his desire to reject counsel, and
failed to raise the issue in a separate HRPP Rule 40 petition
that he had filed in 2015 (2015 Petition), which had been
assigned to a different circuit court judge and denied.
At a hearing held on the Petition, the State conceded
that the trial court erred when it did not enter into a colloquy
with Grindling with regard to the stipulation, but the State
argued that the trial court’s omission was not plain error. The
circuit court disagreed, finding that the stipulation
“established proof of an element to the offenses charged, i.e.
the presence of methamphetamine,” and concluding that the trial
court’s failure to conduct the colloquy was plain error. In
addition, the circuit court found that Grindling was denied his
constitutional right to the effective assistance of trial
counsel when Songstad did not request a colloquy or object to
the trial court’s omission, as well as his constitutional right
to the effective assistance of appellate counsel when Kagiwada
9
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failed to raise the trial court’s error on appeal. On June 14,
2016, the circuit court issued “Findings of Fact, Conclusions of
Law, and Order Granting Supplemental Ground to Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
from Custody” (Order Granting Petition) and ordered that a new
trial be held. The State timely appealed.
D. ICA Proceedings
Before the ICA, the State argued that Grindling could
have raised the supplemental claims on direct appeal or in the
2015 Petition and thus those claims were waived. The State also
contended that Grindling should be judicially estopped from
raising a claim based on ineffective assistance of appellate
counsel because he represented himself on direct appeal and that
the circuit court applied the wrong standard with respect to
Grindling’s ineffective assistance of counsel claims.
The ICA issued an SDO on April 5, 2018.11 The ICA held
that the circuit court did not err in ruling that there was no
waiver of Grindling’s supplemental claims, pointing to the
circuit court’s unchallenged finding that Grindling “has
consistently requested the assistance of counsel” through all
stages of this case. However, the ICA concluded that the
11
The ICA’s SDO can be found at Grindling v. State, No. CAAP-16-
0000474, 2018 WL 1633820 (App. April 5, 2018).
10
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“circuit court’s application of a plain error standard of review
to Grindling’s collateral attack on his conviction was
improper.” Quoting United States v. Frady, 456 U.S. 152 (1982),
the ICA noted that there is a “well-settled principle that to
obtain collateral relief a prisoner must clear a significantly
higher hurdle than would exist on direct appeal,” and held that
the circuit court therefore should only have applied the
standard for ineffective assistance of trial and appellate
counsel. (Quoting 456 U.S. at 164-66.)
The ICA thus ruled that the circuit court erred by
applying a plain error standard of review to Grindling’s
“collateral attack on his convictions” rather than the standard
for ineffective assistance of trial and appellate counsel. And,
because the record did not indicate that Songstad or Kagiwada
had an opportunity to address Grindling’s claim that they were
constitutionally ineffective as required by HRPP Rule 40(f),12
12
HRPP Rule 40(f) states in relevant part as follows:
Where the petition alleges the ineffective assistance of
counsel as a ground upon which the requested relief should
be granted, the petitioner shall serve written notice of
the hearing upon the counsel whose assistance is alleged to
have been ineffective and said counsel shall have an
opportunity to be heard.
11
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the ICA vacated the circuit court’s Order Granting Petition and
remanded the case to the circuit court for further proceedings.13
II. STANDARDS OF REVIEW
We consider a court’s conclusions of law regarding a
petition for post-conviction relief de novo, including its
determination of whether a claim is waived under HRPP Rule
40(a)(3). Fragiao v. State, 95 Hawai‘i 9, 15, 18 P.3d 871, 877
(2001). A court’s findings of fact in connection with a
petition for post-conviction relief are reviewable under the
clearly erroneous standard. Wilton v. State, 116 Hawai‘i 106,
110 n.7, 170 P.3d 357, 361 n.7 (2007).
III. DISCUSSION
In its application for writ of certiorari, the State
contends that the ICA gravely erred when it upheld the circuit
court’s determination that Grindling did not waive his
supplemental claims in the Petition.14
13
The State also maintained on appeal that the circuit court
erroneously allowed Grindling to re-litigate and obtain discovery, inter
alia, on previously ruled upon claims. The ICA did not address the merits of
this challenge.
14
The State also argues that the circuit court erred when it
disregarded its argument regarding Grindling’s re-litigation of his discovery
claims. The State maintains that upon remand, Grindling will continue to
attempt to re-litigate pre-trial discovery issues that have been previously
ruled upon. Accordingly, the State requests that this Court provide guidance
on this point.
12
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A. Grindling Did Not Waive His Right to Counsel by Conduct
Because He Was Not Presented with a Clear Choice to Continue
with Present Counsel.
Waiver in a HRPP Rule 40 proceeding is governed by
HRPP Rule 40(a)(3), which provides that “an issue is waived if
the petitioner knowingly and understandingly failed to raise
it,” when it could have been raised previously, unless the
petitioner is able to show the existence of extraordinary
circumstances to justify the petitioner’s failure to raise the
issue.15 There is a rebuttable presumption that a petitioner’s
failure to appeal a ruling or to raise a potential issue in a
prior proceeding is a knowing and understanding failure. HRPP
Rule 40(a)(3).
The State argues that both the circuit court and the
ICA erred in concluding that Grindling did not waive his
supplemental claims when they were not raised in the supplement
15
HRPP Rule 40(a)(3) provides as follows:
(3) INAPPLICABILITY. Rule 40 proceedings shall not be
available and relief thereunder shall not be granted where
the issues sought to be raised have been previously ruled
upon or were waived. Except for a claim of illegal
sentence, an issue is waived if the petitioner knowingly
and understandingly failed to raise it and it could have
been raised before the trial, at the trial, on appeal, in a
habeas corpus proceeding or any other proceeding actually
conducted, or in a prior proceeding actually initiated
under this rule, and the petitioner is unable to prove the
existence of extraordinary circumstances to justify the
petitioner's failure to raise the issue. There is a
rebuttable presumption that a failure to appeal a ruling or
to raise an issue is a knowing and understanding failure.
13
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to his opening brief on direct appeal. The State points to the
trial court’s determination on remand that Grindling had waived
his right to appellate counsel “based on [his] collective
behavior with [his] five previous counsel.”
This court has long held that a defendant’s waiver of
the right to counsel must be voluntarily, knowingly, and
intelligently made. See State v. Tarumoto, 62 Haw. 298, 300,
614 P.2d 397, 399 (1980). “[A]lthough a waiver must be knowing
and intentional, it ‘may be expressed or implied,’ meaning ‘it
may be established by express statement or agreement, or by acts
and conduct from which an intention to waive may be reasonably
inferred.’” In re Contested Case Hearing on Water Use Permit
Application Originally Filed by Kukui (Molokai), Inc., 143
Hawaii 434, 441, 431 P.3d 807, 814 (2018), (quoting Coon v. City
& Cty. of Honolulu, 98 Hawaii 233, 261, 47 P.3d 348, 376
(2002)). With regard to a waiver of the right to counsel by
conduct, a “[w]aiver may be shown by conduct of an unequivocal
nature.” Tarumoto, 62 Haw. at 300, 614 P.2d at 399.
In State v. Char, the ICA considered the circumstances
under which a defendant may waive the right to counsel by
repeatedly rejecting court-appointed representation. 80 Hawaii
262, 264, 909 P.2d 590, 592 (App. 1995). Upon granting the
defendant’s fourth request for substitute counsel, the trial
14
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court cautioned the defendant that this would be his last court-
appointed attorney. Id. at 265, 909 P.2d at 593. Subsequently,
the defendant again requested substitute counsel, prompting the
court to grant counsel’s motion to withdraw and determine that
the defendant had waived his right to counsel. Id. The
defendant represented himself at trial and, following his
conviction, appealed to the ICA, arguing that his right to
court-appointed counsel had been violated. Id. at 264-66, 909
P.2d at 592-94.
The ICA held that to determine whether a defendant had
validly waived his right to counsel by conduct, six-factors had
to be satisfied:
(1) the defendant requested a substitute court-appointed
counsel; (2) the defendant was afforded a reasonable
opportunity to show good cause for a substitute court-
appointed counsel; (3) the trial court did not abuse its
discretion when it decided that a substitute court-
appointed counsel was not warranted; (4) the requirements
of State v. Dickson, 4 Haw. App. 614, 619–20, 673 P.2d
1036, 1041 (1983)[16], were satisfied; (5) the defendant was
given a clear choice of either continuing with present
counsel or being deemed to have waived by conduct his or
her right to counsel; and (6) the defendant refused to
continue with present counsel.
Id. at 268-69, 909 P.2d at 596-97 (internal references omitted).
The ICA concluded in Char that the lower court’s failure to give
16
“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.” State v. Phua, 135 Hawaii 504, 512, 353 P.3d 1046,
1054 (2015).
15
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the defendant a reasonable opportunity to show good cause for a
substitute court-appointed counsel was sufficient to find that
the defendant had not validly waived his right to counsel
through his conduct.17 Id. The ICA thus vacated the defendant’s
conviction and ordered a new trial. Id. at 269, 909 P.2d at
597.
Factor (5) of the Char framework requires that the
court give the defendant a “clear choice” of either (1)
continuing with present counsel or (2) being deemed to have
waived the right to counsel by conduct. In this case, the trial
court allowed Kagiwada to withdraw as appellate counsel before
addressing Grindling about what “he was going to do about a
lawyer,” ultimately concluding that Grindling wanted to
represent himself and that he had waived counsel by his
“collective behavior with [his] five previous counsel.” Because
the trial court allowed Kagiwada to withdraw as counsel before
addressing Grindling, he was not given a “clear choice” between
continuing with his present counsel or being deemed to have
waived by conduct his right to counsel as required by factor (5)
of the Char framework.
17
Because the ICA concluded that factor (2) had not been met, the
ICA did not discuss factors (3) through (6). See Char, 80 Hawaii at 269, 909
P.2d at 597. We do not address whether satisfaction of the six factors
identified by the ICA would necessarily result in a valid waiver of counsel.
16
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Further, the record does not establish that Grindling
unequivocally waived his right to counsel. During Grindling’s
interaction with the trial court on remand, Grindling expressly
stated that he still wanted a lawyer but that he had no choice
but to represent himself. He agreed that it was a bad idea to
represent himself but that he was “forced into it.” When asked
to clarify whether he wanted to represent himself, Grindling
again stated that he “ha[d] no choice.”
Grindling’s conduct did not constitute a valid waiver
of his right to appellate counsel, and he was thus denied his
right to counsel on appeal. Grindling therefore could not
“knowingly and understandably fail[] to raise” the circuit
court’s failure to engage him in the required Murray colloquy18
or the claim of ineffective assistance of trial counsel on
direct appeal.19
18
As discussed infra, Section III.D, this court held in Murray that
“the trial court must conduct a colloquy [with the defendant] regarding
waiver of proof of an element of the offense.” State v. Murray, 116 Hawaii
3, 12, 169 P.3d 955, 964 (2007).
19
Grindling is therefore also not judicially estopped from claiming
ineffective assistance of appellate counsel because of the flawed nature of
the purported waiver of counsel. The State alternatively argues that the
supplemental claims are waived because Grindling could have raised them in
the 2015 Petition. HRPP Rule 40(a)(3) states that claims may be waived if
they are not brought “in a prior proceeding actually initiated under this
rule.” (Emphasis added.) The filing of the Petition predated the filing of
the 2015 Petition. Therefore, Grindling’s failure to include the
supplemental claims in the 2015 Petition did not constitute a waiver under
HRRP Rule 40(a)(3).
17
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B. The Merits of Grindling’s Ineffective Assistance of Trial
Counsel Claim.
The circuit court concluded that Grindling was denied
his constitutional right to the effective assistance of trial
counsel when his counsel did not request an on-the-record
colloquy by the trial court and did not object to the trial
court’s failure to conduct a colloquy before the stipulation to
elements of the charged offenses was accepted. In addressing
the State’s challenge to this ruling, the ICA concluded that it
did not appear that Songstad had an opportunity to address
Grindling’s claim of ineffective assistance of counsel at the
hearing on the Petition and remanded the case to the circuit
court to afford such an opportunity.
To demonstrate that trial counsel is constitutionally
ineffective, a defendant must demonstrate “1) that there were
specific errors or omissions reflecting counsel’s lack of skill,
judgment, or diligence; and 2) that such errors or omissions
resulted in either the withdrawal or substantial impairment of a
potentially meritorious defense.” State v. Silva, 75 Hawai‘i
419, 440, 864 P.2d 583, 593 (1993) (quoting State v. Aplaca, 74
Haw. 54, 66-67, 837 P.2d 1298, 1305 (1993)). Thus, to succeed
on the claim of ineffective assistance of trial counsel,
Grindling is initially required to show that Songstad’s failure
to bring the colloquy requirement to the trial court’s attention
18
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was an omission reflecting a lack of skill, judgment, or
diligence.
Our precedents make clear, however, that it is the
duty of the trial court to conduct a colloquy to ensure a
defendant’s waiver of a fundamental right is undertaken
knowingly, intelligently, and voluntarily--and not that of
defense counsel. In State v. Murray--which set forth the
mandatory colloquy requirement to a defendant’s stipulation to
an element of a charged offense--we stated that
a knowing and voluntary waiver of a defendant’s fundamental
right must come directly from the defendant, and requires
the court to engage in a colloquy with the defendant. . . .
. . . .
Tachibana determined that the trial court must engage in an
on-the-record colloquy to ensure that the defendant
knowingly and voluntarily waived his constitutional right .
. . .
116 Hawai‘i 3, 11, 169 P.3d 955, 963 (2007) (emphases added)
(citing State v. Ibuos, 75 Hawai‘i 118, 121, 857 P.2d 576, 578
(1993); Tachibana v. State, 79 Hawai‘i 226, 235, 900 P.2d 1293,
1302 (1995)). Similarly, in State v. Ui, we noted that “it is
necessary for a trial court to engage a defendant in an on-the-
record colloquy before accepting a waiver of any of the rights
we have held to be fundamental.” 142 Hawai‘i 287, 293, 418 P.3d
628, 634 (2018).
The failure of defense counsel to realize that a court
neglected to fulfill its constitutional duty to conduct a
19
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colloquy as to a stipulation to an element of a charged offense,
or to take action to correct the court’s oversight, or to
request a colloquy as a matter of due course are not omissions
reflecting counsel’s lack of skill, judgment, or diligence. We
thus need not consider whether any such omission by the defense
counsel would result in the withdrawal or substantial impairment
of a potentially meritorious defense.
In sum, a trial court’s constitutional duty to engage
the defendant in a colloquy prior to accepting a stipulation to
an element of a charged offense does not devolve upon defense
counsel when the court does not fulfill its responsibility.20
Accordingly, Grindling’s claim for relief based on the
ineffectiveness of trial counsel is without merit. Thus, the
ICA erred in remanding the case to the circuit court to allow
Songstad an opportunity to address Grindling’s claim of
ineffective assistance of trial counsel.21
20
Nevertheless, a prosecutor or defense counsel may certainly
assist the court by reminding it of the required colloquy or pointing out an
omission when it occurs.
21
The ICA’s SDO also instructed the circuit court to allow Kagiwada
the opportunity to address Grindling’s claim of ineffective assistance of
appellate counsel with regard to the failure to raise the trial court’s error
on appeal. As discussed infra, the circuit court correctly concluded that
the trial court’s failure to engage in a colloquy with Grindling was plain
error and ordered that Grindling receive a new trial. Because a new trial
renders moot Grindling’s ineffective assistance of appellate counsel claim,
which was based on an appeal of the original trial court decision, we need
not address the merits of Grindling’s ineffective assistance of appellate
counsel claim or the ICA’s disposition thereof. See State v. Cordeiro, 99
Hawai‘i 390, 428, 56 P.3d 692, 730 (2002) (noting that “a decision on other
(continued . . .)
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C. The Availability of Plain Error on Collateral Review.
The ICA held that the HRPP Rule 52(b) plain error
standard is unavailable on collateral review, citing United
States v. Frady, 456 U.S. 152, 164-66 (1982).22 In Frady, the
U.S. Supreme Court considered the application of the Federal
Rules of Criminal Procedure (FRCP) Rule 52(b)--which authorizes
federal courts to notice plain error in criminal proceedings--in
a collateral review proceeding authorized by a federal statute,
28 U.S.C. § 2255. 456 U.S. at 163-64. The section 2255
proceeding was not directly governed by the FRCP, but rather by
the section 2255 Rules, a set of federal procedural rules
promulgated for that specific purpose. See id. at 166 n.15.
The Court reasoned that FRCP Rule 52(b) plain error review was
not available in a section 2255 proceeding because under its
precedents there existed a “well-settled principle that to
obtain collateral relief a prisoner must clear a significantly
(. . . continued)
issues in the appellate court may effectively moot an ineffective assistance
claim” (quoting State v. Silva, 75 Haw. 419, 438, 864 P.2d 583, 592 (1993))).
We accordingly vacate the portion of the circuit court’s Order Granting
Petition as to Grindling’s ineffective assistance of appellate counsel claim.
22
The circuit court vacated the conviction both on grounds of
ineffective assistance of counsel and plain error. We therefore consider
whether the court’s ruling may be affirmed based upon its alternative plain
error ruling. State v. Pacquing, 139 Hawaii 302, 313 n.19, 389 P.3d 897, 908
n.19 (2016) (“[W]here the decision below is correct it must be affirmed by
the appellate court even though the lower tribunal gave the wrong reason for
its action.” (quoting State v. Taniguchi, 72 Haw. 235, 239, 815 P.2d 24, 26
(1991)).
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higher hurdle than would exist on direct appeal.” Id. at 166.
Instead, a petitioner was required to meet the “cause and actual
prejudice” standard to obtain relief in a section 2255
proceeding based on an unobjected-to error, which requires a
showing of “both (1) ‘cause’ excusing [the] double procedural
default, and (2) ‘actual prejudice’ resulting from the errors of
which he [or she] complains.” Id. at 167.
Relying on Frady, the ICA in this case held that the
supplemental claims should be governed exclusively by the
standards for ineffective assistance of trial and appellate
counsel and not the HRPP Rule 52(b) plain error standard.23 This
analysis is flawed for several reasons.
First, unlike in Frady, the collateral review in this
case was not authorized by a statute but instead by HRPP Rule
40. This court has not promulgated a separate set of procedural
rules for post-conviction proceedings analogous to the section
2255 Rules, and it is self-evident that the HRPP--including HRPP
Rule 52(b)--apply in a HRPP Rule 40 proceeding.
Second, the Court’s decision in Frady was predicated
on the “cause and actual prejudice” standard of review being a
23
HRPP Rule 52(b) provides as follows:
Plain Error. Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.
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“significantly higher hurdle than” the plain error standard of
review. Frady, 457 U.S. at 166. In contrast, the legal
standard for identifying ineffective assistance of counsel is
not a higher standard of review than plain error--indeed, it is
not a standard of review at all. Rather, the test for
ineffective assistance is applied in the first instance by a
reviewing court. A court considering whether ineffective
assistance occurred does not consider the rulings or actions of
the trial court but rather the conduct of counsel. And, to the
extent the two standards are comparable, plain error represents
the “higher hurdle” because it requires a proponent to
demonstrate an impairment of “substantial rights.” HRPP Rule
52(b). When evaluating a claim for ineffective assistance, we
consider “the possible, rather than the probable, effect” of
counsel’s error and “no showing of ‘actual’ prejudice is
required.” Wilton v. State, 116 Hawai‘i 106, 119, 170 P.3d 357,
370 (2007) (quoting Briones v. State, 74 Haw. 442, 464, 848 P.2d
966, 977 (1993)). Thus, the central logic underlying the United
States Supreme Court’s holding in Frady is inapplicable to the
ineffective assistance standard.
Lastly, this court has implicitly rejected Frady
repeatedly in the years since it was decided, by considering--
and in some instances applying--the plain error standard in the
context of collateral review. See, e.g., Raines v. State, 79
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Hawai‘i 219, 224-25, 900 P.2d 1286, 1291-92 (1995) (applying
plain error in a post-conviction proceeding based on incorrect
jury instruction); Dan v. State, 76 Hawai‘i 423, 429, 879 P.2d
528, 534 (1994) (considering the merits of defendant’s plain
error argument in a post-conviction proceeding); Briones, 74
Haw. at 460, 467 n.18, 848 P.2d at 975, 978 n.18 (noting the
availability of post-conviction plain error review when an error
on appeal does not satisfy the standard for ineffective
assistance of appellate counsel). The ICA therefore erred in
concluding that plain error was not the proper standard of
review.
D. The Circuit Court’s Plain Error Conclusion Was Correct.
We now turn to whether the circuit court’s application
of plain error in this case was proper. The relevant inquiry in
determining whether a lower court’s plain error may be noticed
is whether the error affected substantial rights. State v.
Hernandez, 143 Hawaii 501, 512, 431 P.3d 1274, 1285 (2018). As
this court made clear in State v. Murray, “[t]he defendant’s
right to have each element of an offense proven beyond a
reasonable doubt is a constitutionally and statutorily protected
right.” 116 Hawaii 3, 10, 169 P.3d 955, 962 (2007) (internal
references omitted). A knowing and voluntary waiver of such a
right must come from the defendant and requires the court to
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engage in a colloquy with the defendant. Id. at 11, 169 P.3d at
963. “[A] reviewing court has discretion to correct plain error
when the error is ‘not harmless beyond a reasonable doubt.’”
State v. Ui, 142 Hawaii 287, 297, 418 P.3d 628, 638 (2018)
(quoting State v. Nichols, 111 Hawaii 327, 335, 141 P.3d 974,
982 (2006)).
Grindling was charged with promoting a dangerous drug
in the third degree in violation of HRS § 712-1243(1) and
prohibited acts related to drug paraphernalia in violation of
HRS § 329-43.5(a). At trial, the court accepted the stipulation
establishing the chain of custody of several packets and a pipe
received into evidence and the results of chemical testing of
the evidence, which found the presence of methamphetamine. As
the circuit court correctly found, the stipulation “established
proof of an element to the offenses charged, i.e. the presence
of methamphetamine.” The trial court thus erred by not first
conducting an on-the-record colloquy with Grindling to obtain a
waiver of his right to have each element of the offenses against
him proven beyond a reasonable doubt. See Murray, 116 Hawaii at
14, 169 P.3d at 966 (holding that the family court committed
plain error when it, inter alia, accepted a stipulation without
engaging the defendant in a colloquy regarding waiving proof of
an element of the charge). Without the results confirming the
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presence of methamphetamine in this case, the jury could not
have found Grindling guilty of the charged crimes and the trial
court’s error was therefore not harmless. See Ui, 142 Hawaii at
298, 418 P.3d at 639 (holding that the “erroneously admitted
stipulation formed the only basis from which a trier of fact
could infer” the defendant’s specific blood alcohol content
exceeded the legal limit in a prosecution for operating a
vehicle under the influence of an intoxicant and concluding that
the district court’s plain error was not harmless).
The circuit court correctly concluded that the trial
court’s failure to conduct an on-the-record colloquy with
Grindling before accepting the stipulation establishing an
element of the charged offenses was plain error. Ui, 142 Hawaii
at 298, 418 P.3d at 639; Murray, 116 Hawaii at 14, 169 P.3d at
966. We thus affirm the circuit court’s Order Granting Petition
on plain error grounds.24
IV. CONCLUSION
Based on the foregoing, we vacate the ICA’s May 2,
2018 Judgment on Appeal, vacate that portion of the circuit
court’s Order Granting Petition as to ineffective assistance of
24
The State requests that this court review the circuit court’s
orders compelling discovery related to Grindling’s Petition. The State does
not allege any actual consequences of the discovery order in relation to this
case. Rather, the State asks only that this court “provide guidance,”
essentially requesting an advisory opinion. We decline to do so.
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trial and appellate counsel, and otherwise affirm the Order
Granting Petition.
Peter A. Hanano /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
27