State v. Krstoth.

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Electronically Filed
Supreme Court
SCWC-14-0001143
09-AUG-2016
09:27 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---oOo---
________________________________________________________________

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,

vs.

TAKSON KRSTOTH, Petitioner/Defendant-Appellant.
________________________________________________________________

SCWC-14-0001143

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001143; CR. NO. 11-1-1293)

AUGUST 9, 2016

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

Takson Krstoth (“Krstoth”)entered a plea of guilty to one

count of Murder in the Second Degree, in violation of Hawai‘i

Revised Statutes (“HRS”) § 707-701.5 (2014).1 Before sentencing,

1
As it stated at the time of the offense, HRS § 707-701.5 provides
in relevant part that “a person commits the offense of murder in the second
degree if the person intentionally or knowingly causes the death of another
person.”
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Krstoth requested that the court allow him to withdraw his plea

and go to trial, then filed a motion requesting the same,

asserting that his plea was not entered knowingly,

intelligently, or voluntarily, and that he felt pressured by his

public defender and interpreter to plead guilty. The circuit

court denied the motion and sentenced him to life imprisonment

with the possibility of parole.

Krstoth raises the following question on certiorari:

“Whether the ICA gravely erred in holding that the Circuit Court

did not abuse its discretion in denying Krstoth’s Motion to

Withdraw Plea?”

“[A] more liberal approach is to be taken” when a

defendant moves to withdraw his or her plea prior to sentencing

such that “the motion should be granted if the defendant has

presented a fair and just reason for his request and the State

has not relied upon the guilty plea to its substantial

prejudice.” State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 523

(1978). Moreover, “[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. Phua, 135 Hawai‘i 504, 513, 353 P.3d

1046, 1055 (2015) (quoting State v. Gomez-Lobato, 130 Hawai‘i

465, 471, 312 P.3d 897, 903 (2013)).

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In this case, the circuit court’s colloquy does not

establish that Krstoth voluntarily, intelligently, and knowingly

entered his plea with an understanding of the nature of the

charge against him and the consequences of his plea. We

therefore vacate the Judgment of Conviction and Sentence, and

remand the case to the circuit court for further proceedings

consistent with this opinion.

II. Background
A. Circuit Court Proceedings
On September 15, 2011, Krstoth was charged by grand jury

indictment with one count of Murder in the Second Degree.

Deputy Public Defender Edward Harada (“Harada”) was appointed to

represent Krstoth.

On April 16, 2013, Krstoth, present with Harada and court-

appointed Chuukese interpreter Kachusy Silander (“Silander”),

entered a plea of guilty to the charged offense pursuant to a

plea agreement with the State. At the outset, the colloquy

revealed that Krstoth was twenty-two years old, had a tenth

grade education, and did not read or write any English. After

the circuit court accepted Krstoth’s guilty plea, sentencing was

scheduled for July 23, 2013.

On June 25, 2013, however, the circuit court received a

handwritten, ex parte letter from Krstoth, written by someone

for him, which stated:

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To the Honorable Judge Mr. Lee. Hi my name is ____, and I’m
writing in regards to a plea bargain that I agree upon due to
being basically scared to death by my attorney Mr. Edward Harada,
stating to me that if I did in fact even think of taking my case
to trial and lost, that I would spend the rest of my life behind
prison bars or close to it. Laying in my bed at night and
thinking of my children and their future truly rips my heart to
pieces, that I cant [sic] be thier [sic] to guide, love, support,
and share their joy as a father. I’m aware that I’ve signed a
Rule (11) . . . Would you please give me the oppertunity [sic] to
recant my guilty plea so, I can have a fair day in trial? On
July 23, 2013 I will be in your courtroom for my sentencing day.
Your Honor please consider my request. Thank you and God bless.

Sincerely
Mr. T. Krstoth

The circuit court forwarded the letter to Harada.

On September 3, 2013, Harada filed a “Motion to Withdraw as

Counsel and Have Substitute Counsel Appointed” (“motion to

withdraw as counsel”). The attached declaration of counsel by

Harada stated, in relevant part, as follows:

7. On August 27, 2013, I visited Takson Krstoth at
OCCC and had [an interpreter] present to provide
information.

8. I discussed the letter with Mr. Krstoth, and he
made it clear that the words expressed in the letter are
his true words and feelings, but that someone else assisted
him in writing the words out on paper. Mr. Krstoth
affirmed the words and feelings he expressed in his letter
and made several things clear: (a) that he felt pressured
by me to accept the plea bargain offered by the State and
plead “guilty” to the charged offense; (b) that he did not
understand all of his rights he had, including the right to
a trial, because I did not make things clear to him; and
(c) that he does in fact want to withdraw his previously
entered “guilty” plea and have a trial to contest the
charge against him.”

On September 9, 2013, the circuit court granted the motion to

withdraw as counsel and substitute counsel was appointed to

represent Krstoth.

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On April 14, 2014, through his new attorney, Krstoth filed

a “Motion to Withdraw Plea” (“motion to withdraw plea”),

asserting that he was unaware during the change of plea hearing

that he was changing his plea to guilty, the interpreter was not

interpreting what was being said and was merely telling him to

“say yes” or “say no,” he was not informed of the details of the

plea agreement, and he did not authorize his initial counsel

Harada to agree to the plea agreement. On June 10, 2014, the

State filed its memorandum in opposition to Krstoth’s motion.

The State argued that there was nothing in the record to

indicate that Krstoth did not understand the colloquy with the

court or that he was unable to make an intelligent decision at

his change of plea hearing.

At a hearing on the motion to withdraw plea, the circuit

court heard testimony from Krstoth, Silander, and Harada. On

June 17, 2014, the circuit court issued its “Findings of Fact,

Conclusions of Law, and Order Denying Defendant’s Motion to

Withdraw Plea.”2 The circuit court concluded, in relevant part,

as follows:

2
The circuit court actually made few relevant findings, as most of
the “findings” were recitations of testimony, such as finding of fact number
37, which states, “Mr. Silander testified that the Defendant understood his
translations and that he specifically went over the change of plea for line
by line with the Defendant.” This recitation of testimony is not a finding
by the circuit court that Krstoth understood the interpreter’s sight
translations. Dep’t Envtl. Serv. v. Land Use Comm’n, 127 Hawai‘i 5, 15, n.12,
275 P.3d 809, 819, n.12 (2012) (explaining that a recitation of testimony is
not a finding of fact).

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15. The Court finds that the Defendant presented
contradictory testimony evidence and failed to present any
credible evidence establishing plausible and legitimate
grounds for the withdrawal of his guilty pleas.

16. Here, although the Defendant claims that his
plea was not entered knowingly or intelligently since the
interpreter was merely telling the Defendant to “say yes”
or “say no” and that his attorney and the interpreter had
pressured him to plead guilty, the Court finds and
concludes that, based on its examination and consideration
of the entire record in this case, the Defendant knowingly,
intelligently, and voluntarily entered his guilty plea.

17. At the hearing on the Motion, the Defendant
testified to the following: that Mr. Harada and Mr.
Silander discussed the guilty plea form and plea agreement
with him, he knew that he had a choice to plead guilty, and
that no one was pressuring him to change his plea. The
Defendant’s testimony contradicted the claims raised in his
Motion.

18. The transcript of the proceedings shows no
reluctance or hesitancy by the Defendant to enter his plea.
The Defendant answered each question appropriately, never
refused to answer any of the questions, never requested to
stop the proceedings, and never indicated that he did not
understand the proceedings.

19. More importantly, during the Court’s questioning
of the Defendant, the Defendant was asked numerous times
whether he understood what was being told to him and if he
had any questions.

20. The Court finds and concludes that the Defendant
did understand what was being asked on [sic] him since he
did ask the Court a question about the presentence report.

21. The Court further finds and concludes that the
Defendant was aware of his rights, the nature of the
charges against him and the consequences of his pleas
[sic].

22. Moreover, the evidence presented at the hearing
established that on April 9, 2013, Mr. Harada, through Mr.
Silander, went over the change of plea form line by line
with the Defendant at the Oahu Community Correctional
Center (“OCCC”).

23. Since this Court did not hear the Defendant’s
change of plea until April 16, 2013, the Court finds and
concludes that if the Defendant had any serious concerns
and/or questions regarding the plea agreement, he had both
the time and opportunity to raise them with counsel.

. . . .

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25. []Mr. Harada testified that he insisted upon the
use of an interpreter even though the Defendant could
understand some English. Mr. Harada further testified that
he answered all of the Defendant’s questions to the best of
his ability, and that the Defendant at no time informed him
of his desire to reject the plea agreement and proceed to
trial.

26. Therefore, based on the examination and
consideration of the entire record in this case and
considering the testimony presented at the hearing on the
Motion, the Court finds and concludes that the Defendant’s
Motion to Withdraw Plea lacks merit and is hereby denied.

On August 1, 2014, the circuit court issued its Judgment of

Conviction and Sentence, finding Krstoth guilty of Murder in the

Second Degree and sentencing him pursuant to the terms of the

plea agreement to life imprisonment with the possibility of

parole, with credit for time served. On September 29, 2014,

Krstoth appealed the circuit court’s Judgment of Conviction and

Sentence to the ICA.

B. Appeal to the ICA

In his Opening Brief, Krstoth argued that the circuit court

abused its discretion in denying his motion to withdraw plea

because his testimony that he felt pressured by his attorney and

interpreter to plead guilty and did not understand why he was

pleading guilty constitutes plausible and legitimate grounds for

the withdrawal of his guilty plea.

In its Answering Brief, the State contended that Krstoth

failed to present fair and just reasons to support the motion,

and that the record, including the change of plea colloquy and

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the change of plea form, supports the court’s finding that

Defendant’s plea was knowing, voluntary, and intelligent.

On July 30, 2015, the ICA issued its Summary Disposition

Order, affirming the circuit court’s August 1, 2014 Judgment of

Conviction and Sentence. State v. Krstoth, CAAP-14-1143, at 1

(App. July 30, 2015) (SDO). The ICA first discussed the April

16, 2013 change of plea colloquy, and stated, “There is no

indication that Krstoth was confused or reluctant to enter a

changed plea to the charge.” Krstoth, SDO at 2. The ICA noted,

inter alia, Krstoth’s statements that Harada reviewed the plea

form with him and he did not have any questions, as well as the

circuit court’s explanation of the terms of the plea agreement

and the rights Krstoth would be giving up by pleading guilty.

Krstoth, SDO at 3. The ICA further stated,

Krstoth did question the circuit court as to the meaning of
a ‘pre-sentence diagnosis and report,’ thus indicating that
he knew to ask the court for an explanation when he did not
understand something. The court explained the process and
the report at length to Krstoth. Krstoth appeared
satisfied with the circuit court’s explanation and had no
other questions about the report when asked.

Id.

The ICA also noted Krstoth’s acknowledgement and subsequent

“reaffirm[ation] that no one was threatening him, forcing him or

pressuring him to plead guilty and that he was pleading guilty

of his own free will. Krstoth affirmed that there were no other

promises in return for his guilty plea and that he was satisfied

with his lawyer.” Krstoth, SDO at 4.
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With regard to the June 10, 2014 change of plea hearing,

the ICA stated that “Krstoth’s former attorney and interpreter

both testified that they did not pressure Krstoth to plead

guilty and that it appeared Krstoth understood why he was

pleading guilty.” Id. The ICA then held, “The record in this

case does not support Krstoth’s contention that the circuit

court abused its discretion in denying his ‘Motion to Withdraw

Plea.’” Id.

On September 9, 2015, the ICA issued its Judgment on

Appeal.

III. Standard of Review

The denial of a Hawai‘i Rules of Penal Procedure

(“HRPP”) Rule 32(d) motion to withdraw a plea prior to the

imposition of sentence is reviewed for abuse of discretion.

State v. Merino, 81 Hawai‘i 198, 223, 915 P.2d 672, 697 (1996).

“An abuse of discretion occurs if the trial court has clearly

exceeded the bounds of reason or has disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant.” Id. (citation omitted).

IV. Discussion

A trial judge is constitutionally required to ensure that a

guilty plea is voluntarily and knowingly entered. State v.

Solomon, 107 Hawaiʻi 117, 127, 111 P.3d 12, 22 (2005). “In

determining the voluntariness of a defendant’s proffered guilty

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plea, the trial court ‘should make an affirmative showing by an

on-the-record colloquy between the court and the defendant

wherein the defendant is shown to have a full understanding of

what the plea of guilty connotes and its consequences.’” Id.

(quoting State v. Vaitogi, 59 Haw. 592, 602, 585 P.2d 1259, 1265

(1978)).

It is plain error for a trial judge to accept a defendant’s

guilty plea without an affirmative showing that it was

intelligent and voluntary. Vaitogi, 59 Haw. at 601–02, 585 P.2d

at 1264–65. Further, the validity of a guilty plea must be

explicitly shown on the record. Jim, 59 Haw. at 602, 585 P.2d

at 1265. Because a guilty plea involves the waiver of several

important constitutional rights, including the privilege against

self-incrimination, the right to trial by jury, and the right to

confront one’s accusers, the record must also explicitly

establish a valid waiver of these constitutional rights.

Solomon, 107 Hawai‘i at 127, 111 P.3d at 22.3

3
HRPP Rule 11 (2013) also mandates that the trial court, prior to
accepting any plea, first address the defendant personally in open court and
then determine that the plea is voluntary:

(c) Advice to defendant. The court shall not accept a plea
of guilty or no contest without first addressing the
defendant personally in open court and determining that the
defendant understands the following:

(1) the nature of the charge to which the plea is
offered; and

(2) the maximum penalty provided by law, and the
maximum sentence of extended term of imprisonment,
(continued. . .)
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After a change of plea, “[a] defendant does not have an

absolute right to withdraw his guilty plea[.]” Jim, 58 Haw. at

575, 574 P.2d at 522. Where a motion to withdraw plea under

HRPP Rule 32(d) (2012)4 is presented prior to the imposition of

sentence, however, this court has observed that a “liberal

approach is to be taken, and the motion should be granted if the

defendant has presented a fair and just reason for his request

and the State has not relied upon the guilty plea to its

substantial prejudice.” 58 Haw. at 576, 574 P.2d at 523. This

(. . .continued)
which may be imposed for the offense to which the
plea is offered; and

(3) that the defendant has the right to plead not
guilty, or to persist in that plea if it has
already been made; and

(4) that if the defendant pleads guilty or no contest
there will not be a further trial of any kind, so
that by pleading guilty or no contest the right to
a trial is waived.

. . . .

(e) Insuring that the plea is voluntary. The court shall
not accept a plea of guilty or no contest without first
addressing the defendant personally in open court and
determining that the plea is voluntary and not the result
of force or threats or of promises apart from a plea
agreement. The court shall also inquire as to whether the
defendant’s willingness to plead guilty or no contest
results from any plea agreement.
4
HRPP Rule 32(d) governs the withdrawal of guilty pleas, and
provides, in relevant part, as follows:

A motion to withdraw a plea of guilty or of nolo contendere
may be made before sentence is imposed or imposition of
sentence is suspended; provided that, to correct manifest
injustice the court, upon a party’s motion submitted no
later than ten (10) days after imposition of sentence,
shall set aside the judgment of conviction and permit the
defendant to withdraw the plea.

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court has stated “two fundamental bases of demonstrating ‘fair

and just reasons’ for granting withdrawal of a plea: (1) the

defendant did not knowingly, intelligently or voluntarily waive

his or her rights; or (2) changed circumstances or new

information justify withdrawal of the plea.” State v. Gomes, 79

Hawaiʻi 32, 37, 897 P.2d 959, 964 (1995).

Krstoth argues that the ICA gravely erred in holding that

the record does not support his contention that the circuit

court abused its discretion in denying his motion to withdraw

plea. He contends that his guilty plea was not made knowingly,

intelligently, or voluntarily, and that his testimony provided

fair and just reasons for the withdrawal of his guilty plea.

In this case, the record fails to establish a voluntary,

knowing, and intelligent change of plea. With respect to

Krstoth’s right to a trial, the circuit court engaged in the

following colloquy:

Q Do you understand that you have a right to plead
not guilty and ask for a trial?

A Yes.

Q Do you understand by pleading guilty you’ll be
giving up some rights?

A Yes.

Q I need you to listen up. You have a right to file
motions to challenge the charge. You have a right to a
public and speedy trial which means the prosecutor must
present its case against you as quickly as possible. You
have a right to a jury trial. And what a jury trial is is
twelve people from the community are randomly selected.
They sit in those orange chairs there. They listen to the
evidence, and the jury decides if the evidence is
sufficient to find you guilty.
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You have the right to have the government bring the
witnesses into court to testify in front of you. And
through Mr. Harada you get to question the witnesses. You
have a right to testify in your own behalf or have Mr.
Harada bring witnesses for you to testify for you. And
finally if there was a trial and if you were found guilty,
you have a right to take an appeal to a higher court to see
if there was any mistakes made by this court.

Now those are your rights as you stand there this
morning. Do you understand that?

A Yes.

Q Do you understand by pleading guilty you give up
those rights?

A Yes.

Q Do you understand by pleading guilty I’m going to
find you guilty and sentence you without a trial?

A Yes.

Q Do you understand that after you are sentenced you
cannot change your mind and say that I didn’t like the
sentence so therefore I want my trial?

A Yes.

This record does not establish a valid waiver of Krstoth’s

constitutional right to trial by jury, as required by Solomon.

107 Hawai‘i at 128, 111 P.3d at 23. The validity of the waiver

of a right to a jury trial is reviewed “under the totality of

the circumstances surrounding the case, taking into account the

defendant’s background, experience, and conduct.” Gomez-Lobato,

130 Hawai‘i at 470, 312 P.3d at 902 (citation and emphasis

omitted). In this case, Krstoth has a tenth grade education and

has limited English proficiency. In the change of plea

colloquy, the circuit court merely stated, “You have a right to

a jury trial. And what a jury trial is is twelve people from

the community are randomly selected. They sit in those orange
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chairs there. They listen to the evidence, and the jury decides

if the evidence is sufficient to find you guilty.”

Granted, we have held that a court is not required to give

the full United States v. Duarte–Higareda, 113 F.3d 1000 (9th

Cir. 1997) colloquy in every case, namely, that “(1) twelve

members of the community compose a jury, (2) the defendant may

take part in jury selection, (3) a jury verdict must be

unanimous, and (4) the court alone decides [whether a defendant

is ]guilt[y or not guilty] [] if the defendant waives a jury

trial.” State v. Friedman, 93 Hawai‘i 63, 69, 996 P.2d 268, 274

(2000) (quoting 113 F.3d at 1002). In this case, however, the

record of the change of plea colloquy only mentions the first

factor. The record does not touch on the second, namely,

Krstoth’s right to take part in jury selection. The circuit

court’s statement that the twelve jurors are “randomly selected”

does not mention that the defense, the court and the State are

all involved in selecting a jury. Likewise, the colloquy does

not touch on the third factor, that a jury verdict must be

unanimous. With respect to the fourth factor, that the court

alone decides whether a defendant is guilty or not guilty if the

defendant waives a jury trial, the circuit court informed

Krstoth that he has a right to jury trial, but did not even

mention that he could opt for a bench trial. Especially

considering Krstoth’s education and limited English proficiency,
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this advisement regarding his right to jury trial was clearly

deficient, and does not establish on the record an intelligent,

knowing, and voluntary waiver of his right to jury trial, as

required by Solomon. Thus, the record of the change of plea

colloquy does not establish Krstoth’s waiver of his

constitutional right to a jury trial.

Moreover, the change of plea colloquy is deficient in

several additional ways, which also result in the record failing

to establish a voluntary, knowing, and intelligent change of

plea. The circuit court told Krstoth that if he had a jury

trial, the jury “listen[s] to the evidence, and the jury decides

if the evidence is sufficient to find you guilty.” This

suggests that Krstoth could be found guilty based on

“sufficient” evidence, not evidence proving him guilty beyond a

reasonable doubt. In addition, the colloquy suggests that the

only motions that could be filed on his behalf would be those to

“challenge the charge.” It states that a right to a public and

speedy trial “means the prosecutor must present its case [] as

quickly as possible.” This suggests that the trial itself must

be rushed, and not that the trial must commence within a certain

time frame. Finally, the circuit court actually told Krstoth

that he could not change his mind and ask for a trial after he

was sentenced. This implies that he could change his mind and

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withdraw his plea before he was sentenced, which is precisely

what he tried to do.

In addition, another major deficiency in the colloquy fails

to establish a voluntary, knowing, and intelligent change of

plea based on the record. The circuit court’s colloquy with

respect to Krstoth’s sentence reflects the following:

. . . Five, you’ll be sentenced to a life term of
imprisonment with the possibility of parole. That both you
and the State agree that you’ll serve 15 years as a minimum
sentence before you can be considered for parole.

. . .

Q In addition to the agreement, Mr. Krstoth, I have
told the attorneys that I believe that the minimum sentence
of 15 years is a sufficient amount of time in this case.

This colloquy fails to mention that it is the Hawai‘i

Paroling Authority, and not the circuit court, that

determines the actual minimum sentence that Krstoth would

have to serve before he could be considered for parole.

For those reasons, the record of the colloquy fails to

establish a valid voluntary, knowing, and intelligent

change of plea.5

We note that, overall, the manner in which the circuit

court questioned Krstoth also raises questions regarding whether

Krstoth voluntarily, intelligently, and knowingly entered his

plea with an understanding of the nature of the charge against

5
Having ruled based on these obvious deficiencies in the change of
plea colloquy, we do not address Krstoth’s assertion that he was pressured
into changing his plea.

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him and the consequences of his plea. Specifically, the circuit

court received one word responses from Krstoth and found that

these responses indicated his understanding that he had a choice

to plead guilty. “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.’” Phua, 135 Hawai‘i at 513, 353 P.3d at 1055

(quoting Gomez-Lobato, 130 Hawai‘i at 471, 312 P.3d at 903

(holding that questions asked during a colloquy about a jury-

waiver form were not sufficient to establish that a defendant

knowingly, voluntarily, and intelligently waived his right to a

jury trial where a language barrier existed and the court

elicited only one word “yes” or “no” responses rather than

determining whether the defendant clearly understood the

constitutional right he was giving up)). As we stated in Phua,

“[i]n some circumstances, it may be necessary for a trial court

to ask follow up questions to confirm the defendant’s

understanding of” rights he may be waiving. 135 Hawai‘i at 514,

353 P.3d at 1056.

In this case, the record does not establish that Krstoth

knowingly, intelligently and voluntarily waived his or her

rights by changing his plea, as required by law. Therefore,

“fair and just reasons” existed for granting a withdrawal of his

plea. Moreover, the State did not argue that it would be
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substantially prejudiced by the withdrawal of the plea.

Accordingly, the circuit court’s denial of Krstoth’s motion to

withdraw plea constituted an abuse of discretion, and the ICA

erred in affirming the circuit court’s Judgment of Conviction

and Sentence.

V. Conclusion
We therefore vacate the ICA’s September 9, 2015 Judgment on

Appeal and the circuit court’s August 1, 2014 Judgment of

Conviction and Sentence, and remand to the circuit court for

further proceedings consistent with this opinion.

William Li /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Loren J. Thomas
for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

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