NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CRIMINAL NO. 11-1-139)
Steven D. Strauss Christopher P. Schlueter (Law Offices of Steven D. Strauss) for Defendant-Appellant.
Shannon M. Kagawa Deputy Prosecuting Attorney County of Hawai'i for Plaintiff-Appellee.
Foley, Presiding J., Fujise and Reifurth, JJ.
Defendant-Appellant Bong Agustin Onza (Onza) appeals from the October 8, 2012 "Findings of Fact, Conclusions of Law and Order Denying [Onza's] Motion to Withdraw Guilty Plea"(Denial Order) and the December 18, 2012 "Judgment of Conviction and Probation Sentence" (Judgment) both entered in the Circuit Court of the Third Circuit (circuit court).
On appeal, Onza contends (1) the circuit court erred by refusing to set aside his plea, and (2) that he was denied effective assistance of counsel.
On April 7, 2011, Onza was indicted for Terroristic Threatening in the First Degree, in violation of Hawaii Revised Statutes (HRS) §§ 707-715(1) (Supp. 2013) and 707-716(1)(e) (Supp. 2011) . On November 14, 2011, the State of Hawai'i (State) filed a "Complaint Superceding Indictment" adding a second count, Criminal Contempt of Court, HRS § 710-1077(1) (g) (1993) . Onza pled guilty to both counts the next day.
At the change of plea hearing on November 15, 2011, the circuit court extensively questioned Onza according to the mandates of Hawai'i Rules of Penal Procedure (HRPP) Rule 11. Onza testified he could speak, read, write, and understand English. Onza testified his lawyer explained the State's evidence against him. Onza confirmed his attorney explained the charges and defenses, and that he understood he was entitled to a jury trial. Onza also confirmed the factual basis of the charges. The circuit court subsequently found Onza knowingly, intelligently, and voluntarily entered his plea with the understanding of the consequences. Also on November 15, 2011, Onza signed a "Waiver of Indictment" which waived, in part, his right to obtain written transcripts of the grand jury proceeding under HRPP Rule 7(c). Onza confirmed he understood the waiver.
By March 16, 2012, Onza had informed his counsel that his guilty plea was not knowing, intelligent and voluntary because he was denied an interpreter, and Onza's counsel filed a "Motion to Withdraw as Counsel." On April 11, 2012, the circuit court filed the "Order Granting Motion to Withdraw as Counsel and for Appointment of Substitute Counsel" appointing Steve Strauss (Strauss) as substitute counsel. Before sentencing, on May 22, 2012, Onza filed a motion to withdraw his plea. The circuit court entered its Denial Order on October 8, 2012. The circuit court found:
FINDINGS OF FACT
1. On April 19, 2011, [Onza] appeared before the Honorable Greg K. Nakamura, with former Deputy Public Defender Mirtha Oliveros for an arraignment and plea.
2. On April 19, 2011, Ms. Oliveros requested an interpreter for future court appearances.
3. On April 19, 2011, Judge Nakamura also ordered [Onza] to appear for a June 21, 2011 at 4:00 p.m., pre-trial conference and a jury trial on August 2, 2011 at 9:00 a.m.
4. On June 21, 2011, [Onza] appeared before Judge Nakamura, without an interpreter, but with former Public Defender Neilani Graham and was ordered to meet with his attorney and appear at a pre-trial conference on July 13, 2011.
5. On June 21, 2011, no interpreter was requested by [Onza] or his Counsel.
6. On July 13, 2011, [Onza] appeared for his pre-trial conference and there was no interpreter present or requested.
7. On August 2, 2011, [Onza] failed to appear for his scheduled jury trial.
8. A Motion of Revocation of Release on Bail was filed on September 14, 2011.
9. [Onza] appeared before Judge Nakamura on October 25, 2011 and requested a hearing on the Motion and the Court scheduled a jury trial and hearing on November 22, 2011 at 9:00 a.m.
10. On October 25, 2011, [Onza] appeared with Melody Parker, Deputy Public Defender and did not have an interpreter, nor was one requested.
11. On November 15, 2011, [Onza] appeared before Judge Nakamura with Jennifer Wharton, Deputy Public Defender for a change of plea.
12. On November 15, 2011, no court interpreter was present or requested by [Onza].
13. On November 15, 2011, Judge Nakamura entered into a colloquy with the [Onza] and found that [Onza] knowingly, voluntarily, and intelligently waived his rights regarding (1) his constitutional right to require the State to establish probable cause before a felony prosecution can begin in circuit court (2) that the State must offer sufficient evidence to "lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion" that the [Onza] has committed the felony charged in order to establish probable cause (3) that if there is a grand jury indictment, then [Onza] has the right to obtain written transcripts of the grand jury proceedings (4) by waiving indictment, [Onza] gives up his right to a probable cause determination and his right to obtain written transcripts of grand jury proceedings.
14. On November 15, 2011, [Onza] entered a plea of guilty as to Terroristic Threatening in the First Degree and Criminal Contempt of Court.
15. At the change of plea hearing, Judge Nakamura went over the change of plea form with [Onza].
16. [Onza] understands both English and Ilocano.
17. The Court finds that [Onza] has a sufficient understanding and command of English to understand what is happening in his case and at court proceedings .
18. The evidence did not indicate that Judge Nakamura had any reason to doubt [Onza] had a sufficient understanding of English.
19. This Court also found that Deputy Public Defender, Jennifer Wharton, an experienced attorney has appeared before this Court on numerous occasions could ...