CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. (CAAP-11-0000686; CASE NO. 3P810-0184).
Mauna Kea Trask, for petitioner.
Vladimir Devens, for respondent.
James S. Tabefor
Linda L. Waltonfor
RECKTENWALD, C.J., McKENNA, AND POLLACK, JJ., WITH, NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM CIRCUIT JUDGE OCHIAI, IN PLACE OF ACOBA, J., RECUSED, JOINS.
[135 Hawai'i 506]
This case concerns the right of a defendant to be represented by counsel during criminal proceedings and the importance of ensuring that a waiver of this right is made knowingly, intelligently, and voluntarily. Han Kamakani Phua attended his sentencing hearing without his lawyer, and after a brief colloquy with Phua, the district court found that he validly waived his right to counsel and imposed sentence. The Intermediate Court of Appeals (ICA) affirmed the finding of the district court that Phua waived his right to counsel and upheld Phua's sentence. We conclude that the record does not support a finding that Phua's waiver of counsel was knowingly and intelligently made, and therefore Phua's sentence must be vacated and the case remanded for a new sentencing hearing.
On July 28, 2010, the complainant and others entered the property where Phua lives and works. Phua confronted the group believing they were trespassing, and a non-violent quarrel ensued between Phua and the complainant. Phua was arrested and charged with the offense of harassment. At arraignment and plea, Phua appeared with counsel in the District Court of the Third Circuit (district court), entered a not guilty plea to the charge, and trial was scheduled for July 1, 2011.
A. Motion to Continue
When Phua's Mandarin interpreter did not appear at trial, his counsel requested a continuance because English is Phua's second language. Defense counsel explained that when dealing with " legal issues that are very much terms of art, there need[ed] to be an interpretation" for Phua to fully understand. The State opposed the continuance, and two State witnesses and two defense witnesses testified regarding the motion to continue.
The State's first witness--Phua's coworker and the complainant's daughter--testified that though Phua was a stock boy at Walmart who usually worked the night shift, Phua communicated and provided customer service to patrons in English. Additionally, Henry Ivy, a police officer who interacted with Phua on the day of his arrest, testified that he spoke with Phua in English, although he noted that Phua spoke with a slight accent. Officer Ivy stated that Phua expressed in English his understanding of his rights and that he signed a waiver of rights in English without any difficulty. Neither State witness knew that Phua was born in Singapore or whether Phua had any formalized education in English.
Phua's mother April Haunani Lui Phua, testified to the following: (1) Phua was born in Singapore where he was raised by his paternal grandmother who spoke no English; (2) his native languages are Chinese and Malay; (3) he was not " given English instruction in school because he did not pass the streaming exam of the country to be proficient in his native language of the country as well as English" ; (4) he was considered a " special education" student because he did not pass any elementary grade levels after the first grade and repeated the sixth grade three times; (5) he suffered from " heavy dyslexia" ; (6) when he worked at Walmart, he worked in the stock room with other native Chinese speakers and did not work at a counter collecting cash from customers in English; and (7) Phua, who was thirty-one years old at the time of trial, had [135 Hawai'i 507] only lived in Hawai'i for approximately six years.
Shelley Stephens, who previously helped Phua with legal documents in English, testified that she observed Phua was unable to understand the meaning of certain unfamiliar legal terms or phrases without assistance. She also testified that Chinese is Phua's primary language and that Phua usually had others present to help him with legal matters.
The court denied the motion to continue the trial to a later date. The court determined that Phua had " some knowledge of English and is reasonably able to converse in English." The court explained that, although an English interpreter was perhaps preferable, it was " not necessary" for Phua's criminal trial. If Phua had trouble understanding any issue, the court would provide him the opportunity to " speak with his attorney to clarify any information that might be presented in court."  In response to defense counsel's request that Phua be allowed to confer with his mother during breaks if there were any comprehension difficulties, the court responded that Phua could talk to whomever he wanted during breaks. The case then proceeded to trial.
Phua testified that when he heard the complainant on the property, he went down to check the pump house as there had been damage and vandalism to it in the past. When he arrived at the pump house, he found the complainant and those in her group nearby. Phua previously had contact with the complainant and her family over alleged trespassing incidents on the property, which was at the time legally disputed in civil proceedings.
Phua believed that the complaining witness and her group were trespassing at the pump house. He pointed out to the complainant the " No Trespassing" sign posted on the pump house. Phua testified that he did not ask for paperwork proving the complainant's Public Access Shoreline Hawai'i (PASH) rights, which would permit access to the property. The complainant and members of her group, however, testified that Phua demanded her PASH paperwork and that she showed it to him. After this brief interaction, a loud disagreement erupted. Both Phua and the complainant testified that they feared for their lives due to the other's actions, although no physical contact was involved in the incident. In defense to the harassment charge, Phua asserted self-defense, defense of others, and defense of property.
At the end of the bench trial, the district court found Phua guilty of the charge. Phua's counsel requested a Pre-Sentence Investigation Report (PSI), and preparation of the PSI was referred to Adult Probation Services. Sentencing was scheduled for August 29, 2011.
C. Declaration of Phua's Counsel
Prior to sentencing, on August 23, 2011, Phua filed a pro se " Motion to Ammend/Writ of Error" (sic) (Motion to Amend) seeking to notify the court of the attempted removal or transfer of a state civil matter to federal court.
Two days later, on August 25, 2011, Phua's attorney filed a " Declaration of Counsel" (Declaration). The Declaration stated counsel [135 Hawai'i 508] planned to seek a continuance of the sentencing hearing because he was required to be at a trial on another matter in Hilo on the scheduled hearing date. Counsel stated he did not file a formal motion to continue the sentencing date because Phua indicated that he wanted to be present on the scheduled date and time, even if that meant appearing without counsel.
The Declaration presented two scenarios for the court to consider based on whether or not Phua wished counsel to be present at sentencing: " If on his appearance [Phua] wishes counsel present, [then] please consider this a motion for continuance. Otherwise, if Mr. Phua wishes to waive counsel for sentencing [then] please refer to the Presentence Investigation Report and this counsel's submission to same which I understand is contained therein."
Accordingly, if Phua wished to waive counsel at sentencing, counsel asked the court to refer to the PSI, and argued for leniency in sentencing, noting Phua was caught in a stressful situation related to civil matters. He also recommended no jail or one day, already served, as Phua had no other criminal record:
This counsel strongly notes that the fact that [Phua] has no other criminal record. He felt provoked in a stressful situation that appears to be a civil matter that is being addressed through the civil courts. Defense Counsel recommends that no jail or 1 day as already served be considered, as the process has been sufficiently educational.
Counsel pointed out in the Declaration that as of August 25, 2011, he had not received the PSI but that he had contacted probation services to fax it to him. Counsel indicated that he would email and mail a copy to Phua when he received it. However, the record does not indicate whether defense counsel received the PSI from probation services or whether he forwarded it to Phua before the sentencing date.
D. Sentencing Hearing
Four days later, on August 29, 2011, Phua appeared at the sentencing hearing without counsel. The district court did not calendar the Declaration as a motion to continue or note it in any other way in the minutes for the day. The court also did not mention the Declaration during the proceedings or ask Phua if he wished to continue the hearing to a later date with counsel present. Rather, the court initially asked whether Phua intended to proceed without counsel:
THE COURT: Okay. Do you want to proceed with this case without your attorney?
MR. PHUA: I have let my attorney go, and that's why I have filed this document right in front of me that I have submitted to the Court. Last Thursday I filed it.
THE COURT: Okay. So you have fired your attorney? MR. PHUA: Yes.
The court did not inquire as to why Phua had fired his counsel; there is no indication of any problems between Phua and counsel other than counsel's unavailability for the scheduled sentencing hearing. The court continued its colloquy with Phua:
THE COURT: Okay. Do you want to proceed and represent yourself?
MR. PHUA: Yes, your Honor.
THE COURT: You want to give up your right to an attorney for this hearing today?
MR. PHUA: Yes.
THE COURT: Okay. Do you understand that you're entitled to have an attorney represent you and if you cannot afford one, the Court can ...