TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001143; CR.
William Li for petitioner.
J. Thomas for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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). Before sentencing, 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.
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
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)).
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.
Background A. Circuit Court Proceedings
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.
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.
25, 2013, however, the circuit court received a handwritten,
ex parte letter from Krstoth, written by someone for him,
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.
Mr. T. Krstoth
circuit court forwarded the letter to Harada.
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
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."
September 9, 2013, the circuit court granted the motion to
withdraw as counsel and substitute counsel was appointed to
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.
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." The circuit court concluded, in
relevant part, as follows:
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 ...