CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000666; FC-CR NO. 10-1-0329K)
James S. Tabe for petitioner
Linda L. Walton for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.
Kaolino Richard Baker (Baker) was charged with one count of Abuse of Family or Household Member in relation to an incident involving his former girlfriend. During a pre-trial hearing, Baker, represented by a deputy public defender, stated that he had executed a "Waiver of Jury Trial" form. On the form, Baker provided his initials next to all of the relevant paragraphs, except the paragraph stating that he was entering the waiver of his own free will and that no promises or threats had been made to him in order to induce his waiver of his right to a jury trial. During a brief exchange, the family court asked Baker several questions, none of which addressed the voluntariness of his waiver.
Following a bench trial, Baker was convicted of the charged offense. Baker appealed to the Intermediate Court of Appeals (ICA) and argued, inter alia, that the family court erred in failing to ensure that he had "fully" waived his right to a jury trial. The ICA, however, affirmed his conviction and determined that under the totality of the circumstances, Baker validly waived his right to a jury trial.
In his application for writ of certiorari, Baker raises the following questions: (1) whether he validly waived his right to a jury trial; (2) whether the family court erred in considering a written police report not admitted into evidence in determining his guilt; (3) whether the family court erred in considering the same police report during sentencing; and (4) whether the ICA erred in suggesting that Baker seek relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure (HRPP) with respect to the family court's purported consideration of the police report. Based on the record before us, we conclude that the family court failed to ensure that Baker's waiver of his right to a jury trial was voluntary. We therefore vacate both the ICA's judgment and the family court's judgment and remand the case for a new trial. Given this disposition, we do not address Baker's arguments relating to the police report, and the ICA's suggestion that Baker seek relief pursuant to HRPP Rule 40.
The following factual background is taken from the record on appeal.
A. Family court proceedings
Baker was charged with Abuse of Family or Household Member, in violation of Hawai'i Revised Statutes (HRS) § 709-906(1)  At a February 23, 2011 Entry of Plea hearing, Baker, represented by a deputy public defender (DPD), pled not guilty.The DPD then stated that Baker had executed a "Waiver of Jury Trial" form. The form provided as follows:
1. I waive my right to a jury trial in the following charge(s):
PLEASE PLACE YOUR INITIALS IN THE SPACES PROVIDED IF YOU UNDERSTAND AND AGREE WITH THE FOLLOWING STATEMENTS
2. __ I understand that I have the constitutional right to a jury trial. Furthermore, I unde[rstand] that a jury trial is a trial in the Circuit Court before a judge and a jury and that I can partic[ipate] in the process of selecting a jury of twelve (12) citizens from the Third Circuit. This jury w[ould hear] the evidence in my case and then decide if I am guilty or not guilty. Finally I understand [in] order for me to be convicted by a jury, their vote must be unanimous.
3. __ I know that if I give up my right to a jury trial, the trial will be held in this Court be[fore a] judge who alone would decide if I am guilty or not guilty. I request that my case be tried [before a] judge.
4b. __ I am satisfied with my attorney, and am entering this waiver with his her advice.
5. __ I know that the punishment cannot be increased merely because I want a jury trial.
6. __ I am entering this waiver of my own free will after careful consideration. No promises or threats have been made to me to induce me to waive my right to a jury trial. 
Baker's initials appear in the spaces next to paragraphs 2, 3, 4b, and 5, but do not appear in the space next to paragraph 6. Baker signed his name below paragraph 6. Below Baker's signature, the form included the following language:
CERTIFICATE OF COUNSEL
As counsel for defendant and as an officer of the Court, I certify that I have read and explained fully the foregoing, that I believe that the defendant understands the document in its entirety, that the statements contained therein are in conformity with my understanding of the defendant's position, that I believe that the defendant's waiver is made voluntarily and with intelligent understanding of the nature of the charge and possible consequences, and that the defendant signed this form in my presence.
Baker's counsel signed below this paragraph. During the entry of plea hearing, the following exchange occurred:
THE COURT: You're Kaolino Baker?
MR. BAKER: Yes.
THE COURT: I'm looking at a document, and showing it to you, entitled "Waiver of Jury Trial." It's two pages. Is that your signature on the back?
MR. BAKER: Yes.
THE COURT: And you signed this on February 23, 2011?
MR. BAKER: Yes.
THE COURT: Do you have any questions about ...