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Electronically Filed
Supreme Court
SCWC-11-0000085
29-APR-2013
11:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
STEPHEN CRAMER, JR., Petitioner/Defendant-Appellant.
SCWC-11-0000085
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000085; CR. NO. 07-1-0679(2))
APRIL 29, 2013
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH
ACOBA, J., CONCURRING SEPARATELY, WITH WHOM POLLACK, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
Stephen Cramer, Jr. was found guilty of several drug-
related offenses following his termination from the Drug Court
program. At his sentencing hearing approximately two months
later, Cramer was represented by a court-appointed deputy public
defender. Privately retained counsel also appeared on behalf of
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Cramer, and sought to substitute for the deputy public defender
“provided that [he was] given the opportunity to properly
prepare.” Cramer’s privately retained counsel requested a three
week continuance to prepare.
The Circuit Court for the Second Circuit denied
Cramer’s motion for substitution of counsel and a continuance as
untimely.1 The deputy public defender represented Cramer for the
duration of the hearing. The circuit court eventually continued
the sentencing hearing for five days, apparently to obtain
additional information with regard to whether Cramer was eligible
for a sentence of probation under Hawai#i Revised Statutes (HRS)
§ 706-622.5, quoted infra.
At the continued sentencing hearing, Cramer was again
represented by the deputy public defender. The circuit court
determined that Cramer was not entitled to sentencing pursuant to
HRS § 706-622.5. The circuit court then sentenced Cramer to a
ten-year indeterminate term of incarceration for Promoting a
Dangerous Drug in the Second Degree, a five-year term for
Prohibited Acts Related to Drug Paraphernalia, and a thirty-day
term for Promoting a Detrimental Drug in the Third Degree, all
terms to run concurrently.
Cramer’s privately retained counsel was subsequently
permitted to substitute for the deputy public defender. Cramer
1
The Honorable Shackley F. Raffetto presided.
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appealed the circuit court’s judgment of conviction and sentence,
arguing, inter alia, that the circuit court violated his
constitutional right to counsel of his choice when it denied his
motion for substitution of counsel and a continuance of the
sentencing hearing. The ICA determined that the circuit court
did not abuse its discretion in denying Cramer’s motion, and
accordingly affirmed the circuit court’s judgment. State v.
Cramer, No. CAAP-11-0000085, 2012 WL 1560671, at *2 (App. May 3,
2012) (Summary Disposition Order).
In his application to this court, Cramer again argues
that the circuit court violated his constitutional right to
counsel of his choice when it denied his motion. We agree that
Cramer was denied his right to privately retained counsel of his
choice under article I, section 14 of the Hawai#i constitution.
We also hold that the circuit court abused its discretion in
denying the motion for substitution of counsel and continuance of
the hearing. Specifically, the circuit court relied only on the
timeliness of the request, and the record does not reflect that
the circuit court properly balanced Cramer’s right to counsel of
his choice against countervailing government interests.
Accordingly, we vacate the ICA’s June 1, 2012 judgment and the
circuit court’s January 11, 2011 judgment, and remand to the
circuit court for resentencing.
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I. Background
The following factual background is taken from the
record on appeal.
A. Circuit Court Proceedings
On November 9, 2007, Cramer was charged with Promoting
a Dangerous Drug in the Second Degree, in violation of HRS § 712-
1242(1)(b)(i)2 (Count One), Prohibited Acts Related to Drug
Paraphernalia, in violation of HRS § 329-43.5(a)3 (Count Two),
and Promoting a Detrimental Drug in the Third Degree, in
violation of HRS § 712-1249(1)4 (Count Three), in relation to an
2
HRS § 712-1242(1)(b)(i) (Supp. 2007) provides:
A person commits the offense of promoting a dangerous
drug in the second degree if the person
knowingly . . . [p]ossesses one or more preparations,
compounds, mixtures, or substances of an aggregate
weight of . . . [o]ne-eighth ounce or more,
containing methamphetamine, heroin, morphine, or
cocaine or any of their respective salts, isomers,
and salts of isomers[.]
3
HRS § 329-43.5(a) (1993) provides:
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. Any person who violates this section is
guilty of a class C felony and upon conviction may be
imprisoned pursuant to section 706-660 and, if
appropriate as provided in section 706-641, fined
pursuant to section 706-640.
4
HRS § 712-1249(1) (1993) provides:
A person commits the offense of promoting a
detrimental drug in the third degree if the person
knowingly possesses any marijuana or any Schedule V
substance in any amount.
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incident on September 19, 2007, when officers executed a search
warrant on Cramer’s vehicle and discovered crystal
methamphetamine and other drug paraphernalia.
On February 25, 2009, Cramer filed a Petition for
Admission to Drug Court and Waiver of Rights; Admission Agreement
(Petition), in which he admitted to the charged offenses. He
acknowledged that the State would prosecute him if he did not
successfully complete the Drug Court Program, and that he would
be tried without a jury. At a February 25, 2009 hearing, the
circuit court granted Cramer’s Petition and admitted him into the
Drug Court program.5
On July 21, 2010, the State filed a motion to terminate
Cramer’s participation in the Maui Drug Court Program because
Cramer failed to comply with the terms and conditions of the
program, specifically conditions A and B of the Drug Court
Program Admission Agreement.6
5
Cramer was represented at the hearing by privately retained
counsel Christopher Dunn. It appears that Dunn was permitted to withdraw as
Cramer’s counsel at a July 14, 2010 hearing, and the Office of the Public
Defender was appointed to represent Cramer.
6
Conditions A and B of the Maui Drug Court Program Admission
Agreement, which Cramer agreed to, provided:
A. I will commit myself to full participation in
the Maui Drug Court Program (“Drug Court”)
toward the goal of remaining clean and sober for
the rest of my life.
B. I will give truthful answers to any questions
asked by the Drug Court Judge (“Court”) and the
Drug Court staff including any treatment
providers to whom I am referred by the Drug
Court staff. Honesty is of critical importance,
and my truthful answers may help determine the
(continued...)
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A hearing was held on the State’s motion, with Cramer
represented by Deputy Public Defender (DPD) Danielle Sears, and
on September 3, 2010, the circuit court filed an order granting
the State’s motion to terminate Cramer’s participation in Drug
Court. On November 4, 2010, the circuit court held a stipulated
facts trial. The circuit court admitted Cramer’s Petition into
evidence, found Cramer guilty as charged on all three counts, and
set sentencing for January 6, 2011. In the interim, Cramer was
free on $100,000 bail.
At the start of the scheduled January 6, 2011
sentencing hearing, the following exchange occurred:
[DPD] SEARS: Good morning, Your Honor. Danielle
Sears, Deputy Public Defender on
behalf of [] Cramer.
THE COURT: Good morning.
[DPD] SEARS: There has been a development.
[] ALULI: Good morning, Your Honor. Hayden
Aluli on behalf of [] Cramer. If I
may, Your Honor, I would move to
substitute for [DPD] Danielle Sears
provided that I’m given the
opportunity to effectively prepare.
And I’m asking for three weeks
continuance of these proceedings,
Your Honor. I’ve spoken with the
prosecution. And if there needs to
be discussion, we can approach the
bar.
THE COURT: No. We can do it on record. What
is your position on it?
[DPA]: Your Honor, the State is ready for
sentencing today.
THE COURT: All right. We’re going to go ahead
today. So I’ll deny your motion.
Thank you. It’s untimely. Thank
you.
6
(...continued)
type of treatment that is best for me.
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DPD Sears then informed the circuit court that she had
received a presentence investigation report and a Substance Abuse
Assessment of Cramer, and wanted to know whether the court had
also received the Substance Abuse Assessment. The circuit court
stated it did not receive the Substance Abuse Assessment, but
wanted to review it to assess whether Cramer qualified for
sentencing under “Act 44.”7 The circuit court also noted that
Cramer had a protective order entered against him in 2008 and
convictions for violations of temporary restraining orders, and
stated that it needed more information about those incidents
before it made a determination as to whether Cramer was
nonviolent and therefore qualified for sentencing under Act 44.
The deputy prosecuting attorney then stated, “Can we
ask for a continuance.” The circuit court responded, “I would
like to continue this, but not more than a week.” The circuit
court also reiterated that it did not receive the Substance Abuse
Assessment, which was a “critical determination in this case.”
The circuit court continued the sentencing until January 11,
2011.
7
HRS § 706-622.5 (Supp. 2007), commonly referred to as Act 44,
provides, inter alia, that persons convicted for the first time for certain
specified drug offenses may be sentenced to probation if the court determines
that the person is nonviolent, has been assessed by a certified substance
abuse counselor to be in need of substance abuse treatment, and has presented
a proposal to receive substance abuse treatment. 2004 Haw. Sess. Laws Act 44,
§ 11 at 214. Pursuant to HRS § 706-622.5(4), if a defendant successfully
completes the substance abuse treatment program and complies with other terms
and conditions of probation, then the court “shall issue a court order to
expunge the record of conviction for that particular offense.”
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DPD Sears appeared on behalf of Cramer at the
January 11, 2011 sentencing hearing. The circuit court denied
probation under Act 44, and sentenced Cramer to incarceration for
ten years on count one, five years on count two, and thirty days
on count three, all terms to run concurrently. The circuit court
filed its Judgment of Conviction and Sentence on January 11,
2011.
On February 3, 2011, the circuit court approved the
withdrawal of DPD Sears and the substitution of Aluli as Cramer’s
counsel. Cramer, through Aluli, filed a notice of appeal.
On March 21, 2011, Cramer, through Aluli, filed in the
circuit court a Motion to Reduce Sentence pursuant to Hawai#i
Rules of Penal Procedure (HRPP) Rule 35(b).8 On April 7, 2011,
at a hearing on Cramer’s motion to reduce sentence, the circuit
court concluded that Cramer “needs to have the consequences of
his behavior to finally understand that he needs to change.”
Accordingly, the circuit court denied Cramer’s motion to reduce
sentence.
B. ICA Appeal
In his opening brief, Cramer asserted that the trial
court committed reversible error in denying his motion for
substitution of counsel and for a continuance of the sentencing
8
HRPP Rule 35(b) (2011) provides in relevant part: “The filing of a
notice of appeal shall not deprive the court of jurisdiction to entertain a
timely motion to reduce a sentence.”
-8-
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proceeding, in violation of his constitutional right to counsel
of his choice. Although Cramer acknowledged that trial courts
are given “wide discretion” in determining whether to grant a
continuance, he contended that the circuit court abused its
discretion because it “simply said that the motion was untimely
and failed to engage in weighing Cramer’s constitutional right to
a reasonable delay of sentencing against the needs of fairness
and the demands of its calendar.” (Citing United States v.
Gonzalez-Lopez, 548 U.S. 140 (2006)).9
In its answering brief, the State argued that the
circuit court properly exercised its discretion in denying
Cramer’s motion because the request for substitution of counsel
was “tentative and conditional” upon the granting of a three-week
continuance. In addition, the State asserted that Cramer “made
no representation that he was dissatisfied or had lost confidence
in [DPD Sears] or that he had discharged present counsel, and
that he wanted or had retained [] Aluli as his new counsel.” The
State, citing State v. Torres, 54 Haw. 502, 510 P.2d 494
9
Cramer also asserted that the circuit court abused its discretion
in failing to sentence him to probation as a first-time drug offender under
HRS § 706-622.5. The ICA concluded: “Based on the family court’s finding that
Cramer had engaged in family violence, the circuit court determined it could
not conclude that Cramer was nonviolent as required under HRS § 706-622.5.
Because Cramer was not eligible to be sentenced to probation, the circuit
court did not err in refusing to sentence Cramer under HRS § 706-622.5.”
Cramer, 2012 WL 1560671, at *2. Cramer does not challenge this determination
in his application. However, as discussed further below, we conclude that
Cramer can argue for any potentially applicable sentence (including sentencing
under Act 44) on remand, since the denial of counsel of choice at his original
hearing was structural error.
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(1973),10 argued that in denying Cramer’s motion, it was
“apparent that the [circuit] [c]ourt was concerned about the
orderly flow of business in the court system.”
Cramer filed a reply brief and argued, inter alia, that
the State provided no support for its contention that he needed
to justify his assertion of the right to private counsel of his
choice, and that Torres was distinguishable because it involved a
claim of ineffective assistance of counsel.
In its May 3, 2012 SDO, the ICA determined, inter alia:
Here, Cramer was represented by counsel from the
public defender’s office at the Drug Court termination
hearing on August 19, 2010 and the Stipulated Facts
trial on November 4, 2010. Not until the sentencing
hearing on January 6, 2011 did other counsel make an
appearance and request substitution, contingent on the
circuit court’s willingness to continue the hearing
for three weeks. Cramer provided no reason for the
request for new counsel and, on appeal, has not argued
he was prejudiced by the court’s denial of a
continuance to accommodate appointment of new counsel.
We conclude the circuit court did not abuse its
discretion in denying Cramer’s oral motion for
substitution of counsel and a continuance.
Cramer, 2012 WL 1560671, at *1.
Accordingly, the ICA affirmed the circuit court’s
Judgment of Conviction and Sentence and subsequently entered its
Judgment on Appeal on June 1, 2012. Cramer timely filed an
application for writ of certiorari and the State timely filed its
response.
10
As discussed further infra, in Torres, this court determined that
the trial court’s substitution of counsel on the eve of trial and subsequent
denial of a continuance did not deprive the defendant of his constitutional
right to the effective assistance of counsel. 54 Haw. at 503, 507, 510 P.2d
at 496-97. This court articulated a test to balance the need for counsel to
have adequate time to prepare with “due consideration for the orderly
administration of justice[.]” Id. at 505-06, 510 P.2d at 496-97.
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II. Standard of Review
With regard to a motion for substitution, this court
has stated that:
the right to counsel of choice is qualified, and can
be outweighed by countervailing governmental
interests. But in light of the right to counsel, and
in the absence of countervailing considerations, a
criminal defendant should have his, her, or its choice
of privately retained counsel. . . . Whether a change
in counsel should be permitted . . . rests in the
sound discretion of the trial court.
State v. Maddagan, 95 Hawai#i 177, 180, 19 P.3d 1289, 1292 (2001)
(citations and quotation marks omitted).
In addition, “a motion for continuance is addressed to
the sound discretion of the trial court, and the court’s ruling
will not be disturbed on appeal absent a showing of abuse of that
discretion.” State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279,
1281 (1993). “Generally, to constitute an abuse, it must appear
that the court clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” State v. Crisostomo,
94 Hawai#i 282, 287, 12 P.3d 873, 878 (2000) (internal quotation
marks, citation, and brackets omitted).
III. Discussion
A. The circuit court abused its discretion in denying Cramer’s
motion for substitution of counsel and a continuance of the
sentencing hearing
Cramer asserts that pursuant to the Sixth Amendment of
the United States Constitution and article I, section 14 of the
Hawai#i Constitution, he was entitled to privately retained
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counsel of his choice, and that the circuit court abused its
discretion in denying his motion for substitution of counsel and
a continuance. As explained below, we conclude that Cramer was
denied his right to privately retained counsel of his choice
under the Hawai#i constitution.
Article I, section 14 of the Hawai#i Constitution
provides, in relevant part, “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of
counsel for the accused’s defense.” We have interpreted this
provision to guarantee a criminal defendant’s right to privately
retained counsel of his or her choice. Maddagan, 95 Hawai#i at
180, 19 P.3d at 1292 (“On independent state constitutional
grounds, we also recognize that the right to counsel in article
I, section 14 of the Hawai#i Constitution encompasses a right to
privately retained counsel of choice.”).
In Maddagan, the circuit court denied the defendant’s
motion to withdraw his guilty plea, made through new counsel,
because no motion to withdraw or substitute counsel was filed.
Id. at 178, 19 P.3d at 1290. Attached to defendant’s motion was
his affidavit that stated that he was authorizing his new
counsel, Earle A. Partington, to represent him on the motion.
Id. On appeal, this court recognized that article I, section 14
of the Hawai#i Constitution “encompasses a right to privately
retained counsel of choice[,]” but that “the right to counsel of
choice is qualified, and can be outweighed by countervailing
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governmental interests.” Id. at 180, 19 P.3d at 1292 (emphasis
added and citation omitted). This court determined that the
circuit court had discretion to allow the substitution of
Partington and that the defendant should have been given a
hearing to advocate for the substitution. Id. at 182, 19 P.3d at
1294.
It is clear from Maddagan that a criminal defendant has
a constitutional right under article I, section 14 of the Hawai#i
Constitution to privately retained counsel of his or her choice.
This right, however, must be balanced against countervailing
governmental interests. See Maddagan, 95 Hawai#i at 180, 19 P.3d
at 1292 (“[T]he right to counsel of choice is qualified, and can
be outweighed by countervailing governmental interests.”)
(citation omitted); cf. Wheat v. United States, 486 U.S. 153, 164
(1988) (holding that federal courts “must recognize a presumption
in favor of petitioner’s counsel of choice, but that presumption
may be overcome not only by a demonstration of actual conflict
[of interest] but by a showing of a serious potential for
conflict. The evaluation of the facts and circumstances of each
case under this standard must be left primarily to the informed
judgment of the trial court”) (emphasis added).
This court has not had occasion to examine the
countervailing governmental interests that should be balanced
against the right to counsel of choice. However, other
jurisdictions have identified several factors that can be
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relevant in making such a determination. See, e.g., People v.
Butcher, 79 Cal. Rptr. 618, 621 (Cal Ct. App. 1969) (in
considering motions to substitute counsel and to continue made on
the day of trial, the trial court should have considered: (1)
length of the continuance; (2) whether there was a dilatory
motive for the continuance; (3) whether the prosecution knew of
the motions beforehand and whether the prosecution objected; (4)
whether the delay would have inconvenienced the prosecution or
its witnesses; (5) whether current court-appointed counsel was
prepared to proceed; (6) whether the defendant had already
retained private counsel; and (7) whether the continuance would
interfere with the efficient administration of justice).
In State v. Prineas, 766 N.W.2d 206, 212 (Wis. Ct. App.
2009), the defendant in a sexual assault prosecution hired
privately retained counsel and filed a motion for his present
attorney to withdraw, to substitute counsel, and for a
continuance one week before the trial date. 766 N.W.2d at 210.
The court held a hearing in which the State argued that the
complaining witness and her family wanted the case to “be done so
she could get on with her life.” Id. The court stated that it
would not grant the request so close to trial unless it was given
“some extraordinary reason” other than a desire to change
counsel, but none was offered by defense counsel. Id. at 214-15.
Accordingly, the court denied the motion. Id. On appeal, the
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defendant argued, inter alia, that he was denied his right to
private counsel of his choice. Id. at 212.
The Wisconsin Court of Appeals held that decisions
relating to substitution of counsel were within the sound
discretion of the trial court, and noted that when making its
determination to grant or deny a request for substitution of
counsel of choice, the trial court needed to balance the
defendant’s request against “the public’s interest in the prompt
and efficient administration of justice.” Id. The appellate
court listed several examples of factors that “assist the court
in balancing the relevant interests,” including: the length of
the delay requested, whether competent counsel was presently
available and prepared to try the case, whether prior
continuances have been requested and received by the defendant,
the inconvenience to the parties, witnesses and the court, and
whether the delay was for legitimate reasons or whether its
purpose was dilatory. Id. The appellate court determined that
the trial court properly balanced the request against the
“public’s interest in the prompt and efficient administration of
justice.” Id. at 215 (citation omitted). The appellate court
determined:
Several factors weigh in favor of the court’s exercise
of its discretion, for example: [the defendant] did
not specify the length of delay that would be
required; he did not dispute his current counsel’s
ability to try the case; the court considered the
inconvenience to the court and the concerns of the
victim; and [the defendant] provided no reason for
substitution and the accompanying delay.
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Id.
Accordingly, upon consideration of multiple factors,
the Wisconsin Court of Appeals affirmed the trial court’s denial
of the defendant’s request for substitution of counsel and a
continuance. Id. at 215, 219.
In the instant case, the circuit court merely
considered one factor –- timeliness of the request –- in making
its determination to deny the motion for substitution and a
continuance. The record does not reflect that the circuit court
considered, for example, the length of the delay requested, the
impact of the delay on the prosecution, witnesses or the court,
and whether the delay was for a dilatory purpose.
Consideration of those other factors supports the
conclusion that the circuit court abused its discretion in
denying the motion for substitution and a continuance. The State
took no position on the request and there was no apparent
prejudice to the State. The record does not establish that the
circuit court would have been inconvenienced by the request,
particularly given that it subsequently ordered a one-week
continuance of the sentencing hearing. The record also does not
establish that there were witnesses present at the initial
hearing who would be inconvenienced by a continuance.
Furthermore, there had been only one prior continuance in the
proceeding, which was a stipulated continuance of the trial from
September 16, 2010 to November 4, 2010. Under the circumstances,
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the court’s summary denial of the motion for substitution and a
continuance as untimely was an abuse of discretion.
Although the ICA relied on Torres in affirming Cramer’s
sentence in the instant case, Torres is distinguishable. There,
on the day before trial on a burglary charge, Richard Torres
asked the court for the appointment of new counsel. 54 Haw. at
502-03, 510 P.2d at 495. The circuit court dismissed the
original attorney and appointed Torres’s chosen attorney, Mr.
Hall. Id. Both Torres and Hall moved for a continuance so that
Hall could prepare for trial. Id. The circuit court denied the
motions because the jury was waiting to be impaneled and there
had been several continuances leading up to trial. Id. at 503,
510 P.2d at 495-96. Hall went to trial less than twenty-four
hours later. Id. at 504, 510 P.2d at 496.
On appeal to this court, Torres argued that he was
denied his constitutional right to the effective assistance of
counsel. Id. at 503, 510 P.2d at 495. This court held,
Generally, any request for continuance is to be
disposed of in the discretion of the trial judge. A
denial of a continuance is not per se a denial of the
constitutional right to counsel, but the appellate
court should scrupulously review the record to
determine whether, under all the circumstances, there
was an abuse of discretion that prejudiced the
defendant by amounting to an unconstitutional denial
of the right toi [sic] effective assistance of
counsel.
Id. at 504-05, 510 P.2d at 496.
This court determined that Torres was not denied the
effective assistance of counsel. Id. at 57, 510 P.2d at 498.
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This court found no deficiencies in Hall’s performance at trial,
Hall had complete access to notes from the prosecution’s and
Dwight’s files, and Torres did not request a change of counsel
until the very moment of trial and therefore was to blame for the
tardiness of the request for new counsel. Id. at 507, 510 P.2d
at 497-98.
Torres is distinguishable. Torres involved a claim of
ineffective assistance of counsel after the circuit court granted
a motion for substitution and after it denied Torres’s motion for
a continuance of trial. 54 Haw. at 503, 510 P.2d at 495. Here,
the issue is whether the circuit court violated the defendant’s
constitutional right to counsel of choice and thus, erred in
denying a motion to substitute counsel. Put another way, this
court need not analyze this case for ineffectiveness of counsel
because substitute counsel was not appointed.
Cramer also asserts that the ICA’s determination that
“Cramer provided no reason for the request for new counsel and,
on appeal, has not argued he was prejudiced by the court’s denial
of a continuance to accommodate appointment of new counsel” was
inconsistent with Gonzalez-Lopez. Cramer, 2012 WL 1560671, at
*1. The ICA’s determination is indeed inconsistent with
Gonzalez-Lopez.
In Gonzalez-Lopez, the defendant, Cuauhtemoc Gonzalez-
Lopez, was charged in the Eastern District of Missouri with
conspiracy to distribute more than 100 kilograms of marijuana.
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548 U.S. at 142. His family hired an attorney to represent him.
Id. Gonzalez-Lopez later called a California attorney, Joseph
Low, to represent him. Id. Although the district court
initially permitted Low’s provisional entry of appearance, it
subsequently revoked the provisional acceptance and did not allow
participation or representation by Low, Gonzalez-Lopez’s counsel
of choice. Id.
On appeal, the issue before the Court was whether a
trial court’s erroneous deprivation of a criminal defendant’s
choice of counsel entitled him to reversal of his conviction.
Id. The prosecution did not dispute that Gonzalez-Lopez was
erroneously deprived of his counsel of choice. Id. at 144. The
Court determined that the erroneous deprivation of Gonzalez-
Lopez’s counsel of choice required reversal of the conviction.
Id. at 151-52. The Court determined that no additional showing
of prejudice was required when a defendant’s Sixth Amendment
right to counsel of his choice was violated: “[d]eprivation of
the right is ‘complete’ when the defendant is erroneously
prevented from being represented by the lawyer he wants,
regardless of the quality of the representation he received.”
Id. at 148. The Court reaffirmed its holding that the right to
counsel of choice was “limit[ed]” and needed to be “balanc[ed]”
“against the needs of fairness, and against the demands of [the
court’s] calendar,” but concluded that that consideration was not
relevant to Gonzalez-Lopez’s case because the prosecution
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“conceded that the [court] here erred when it denied [Gonzalez-
Lopez] his choice of counsel.” Id. at 151-52 (citations
omitted).
In addition, the Court held that the denial of the
right to counsel of choice was a “structural error” not subject
to a harmless error analysis.11 548 U.S. at 150. Furthermore,
the Court determined, “[i]t is impossible to know what different
choices the rejected counsel would have made, and then to
quantify the impact of those different choices on the outcome of
the proceedings.” Id. Similarly, requiring Cramer to argue that
he was “prejudiced” by the denial of the continuance to
accommodate the appointment of new counsel would require us to
speculate as to how Aluli would have represented Cramer at the
sentencing hearing, an inquiry that was rejected in Gonzalez-
Lopez. For the same reasons, Cramer is free to argue on remand
that he should be sentenced to probation pursuant to Act 44, or
any other potentially applicable sentence.
Accordingly, the circuit court abused its discretion in
denying the motion for substitution and a continuance.
11
Structural errors affect “the framework within which the trial
proceeds, rather than simply an error in the trial process itself.” State v.
Ortiz, 91 Hawai#i 181, 193, 981 P.2d 1127, 1139 (1999) (citing Arizona v.
Fulminante, 499 U.S. 279, 310 (1991)); State v. Swanson, 112 Hawai#i 343, 353,
145 P.3d 886, 896 (App. 2006). As the concurring opinion observes, there have
been criticisms of the decision in Fulminante. See Concurring Opinion at 12-
20. Respectfully, however, we need not resolve those concerns here because
they would not affect the result in the instant case. See Concurring Opinion
at 1.
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***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
IV. Conclusion
We hold that the circuit court abused its discretion in
denying the motion for substitution of counsel and continuance of
the hearing. Thus, we vacate the ICA’s June 1, 2012 judgment and
the circuit court’s January 11, 2011 judgment, and remand to the
circuit court for resentencing.
Hayden Aluli /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Artemio C. Baxa
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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