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Grindling v. State

Supreme Court of Hawaii

June 13, 2019

CHRIS GRINDLING, Respondent/Petitioner-Appellee,
STATE OF HAWAI'I, Petitioner/Respondent-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000474; S.P.P. NO. 12-1-0007(3); CR. NO. 07-1-0533(2))

          Peter A. Hanano for petitioner.



          POLLACK, J.

         In this case, Christopher Grindling brought a petition for post-conviction relief contending that the trial court violated his constitutional right to have each element of an offense proven beyond a reasonable doubt, when the court accepted a stipulation to elements of the charged offenses without engaging him in a colloquy to obtain his consent. Grindling also argued that he received ineffective assistance of trial and appellate counsel relating to the trial court's error in accepting the stipulation. The circuit court granted Grindling's petition, concluding that the trial court's failure to conduct a colloquy with Grindling was plain error and that Grindling had received ineffective assistance both at trial and on appeal.

         On appeal, the Intermediate Court of Appeals (ICA) held that plain error review was improper in a post-conviction proceeding. The ICA vacated the circuit court decision and remanded the case to afford Grindling's trial and appellate counsel an opportunity to address the ineffective assistance claims.

         On review, we reaffirm that it is the duty of the trial court to conduct a colloquy with the defendant to obtain a knowing and voluntary waiver of the constitutional right to have each element of the charged offenses proven beyond a reasonable doubt; therefore, a court's failure to comply with this duty is not grounds for finding ineffective assistance of trial counsel. We further hold that plain error review applies to postconviction proceedings, and the circuit court correctly noticed plain error in this case. We therefore vacate the ICA's judgment on appeal and affirm the circuit court decision on this ground.


         A. Background

         After law enforcement recovered suspected methamphetamine and drug paraphernalia from his residence and vehicle while executing two search warrants, Christopher Grindling was charged on August 31, 2007 with promoting a dangerous drug in the third degree in violation of § 712-1243(1) (1993)[1] of the Hawaii Revised Statutes (HRS) and prohibited acts related to drug paraphernalia in violation of HRS § 329-43.5(a) (1993) .[2]

         In September 2007, Grindling appeared for arraignment in the Circuit Court of the Second Circuit (trial court or circuit court as specified[3]) and entered pleas of not guilty. In the months that followed, Grindling filed numerous pro se motions, including a motion to dismiss his counsel, Cary Virtue, Esq., which was denied, and a subsequent motion to waive counsel.[4]

         At a hearing in March 2008, Grindling clarified that he did not really want to waive counsel but did not wish to be represented by Virtue. After the court determined that Grindling had not made a showing that justified appointing replacement counsel, the trial court granted Grindling's motion to waive counsel and appointed Virtue as standby counsel. At a later hearing, the court reconsidered its determination, discharged Virtue, and appointed substitute counsel. In June 2008, substitute counsel moved to withdraw, and the trial court appointed Steven Songstad, Esq., as counsel and indicated that Songstad would be Grindling's last court-appointed counsel.

         Jury trial commenced on August 4, 2008. During trial, the State informed the court that the parties had entered into a stipulation establishing the chain of custody and receipt into evidence of four packets and a pipe recovered in the search of Grindling's residence and vehicle, and that the results of chemical testing of the packets' contents and the pipe residue identified the presence of methamphetamine. The trial court did not address Grindling regarding the stipulation, and the State read the stipulation to the jury.

         The jury convicted Grindling on both charges, and the court sentenced Grindling to five years in prison on each count, with the terms to run consecutively (judgment of conviction). Grindling was also required to pay a $105 Crime Victim Compensation fee in each count.

         B. Appeal

         Cynthia Kagiwada, Esq., replaced Songstad as Grindling's counsel on appeal after Songstad moved to withdraw as counsel. After the filing of the opening brief in the Intermediate Court of Appeals (ICA), Grindling filed a pro se pleading entitled "Ex Parte Objection to Court Appointed Counsel," and later, a supplement to the opening brief.[5] Neither the opening brief nor Grindling's supplement to the opening brief raised any points of error concerning the trial court's acceptance of the evidentiary stipulation.

         Thereafter, the ICA granted a motion by Kagiwada to remand the case to the trial court for consideration of a motion to withdraw as counsel. During the remand hearing, the trial court allowed Kagiwada to withdraw from representing Grindling. The court then entered into a discussion with Grindling regarding his lack of counsel. Grindling stated that he wanted a lawyer but expressed his frustration with his previous court-appointed attorneys. This led to the following exchange:

THE COURT: All right. Well, what do you want to do about a lawyer, you gonna represent yourself or what?
THE DEFENDANT: I want an attorney, but I don't want [] another one that does nothing, therefore I have no choice but to represent myself.
THE COURT: That's-if you-
THE DEFENDANT: I am forced into it due [to] the fact that these attorneys don't want to do anything.
THE COURT: . . . You know, we've had these discussions several times about what a bad idea that is; you remember all that?
THE DEFENDANT: And yeah, and I agree with you. It is a bad idea, but I am forced into it. . . .
THE COURT: I just want to know quite clearly that you-you want to represent yourself. If that is what you want to do, then that's fine. I just want to make sure that you are clear about that.
THE DEFENDANT: Yeah. I-I-I-we are clear about that. Like I said, I--I have no choice. . . .

         The trial court at this point determined Grindling had waived his right to appointed counsel "based on [his] collective behavior with [his] five previous counsel" and that he would represent himself on appeal.[6]

         On March 19, 2010, the ICA issued a Summary Disposition Order (SDO) in which it determined that the trial court should have held an evidentiary hearing to establish Grindling's objections on the record to ascertain the bases for his request for replacement of Virtue as his trial counsel.[7] The ICA also concluded that although Grindling moved to waive his right to counsel, "he really wanted substitute counsel." The ICA found, however, that these errors were harmless beyond a reasonable doubt because Grindling was without counsel for only about one week, approximately four months before trial began. Accordingly, the ICA affirmed the judgment of conviction.

         C. HRPP Rule 40 Proceedings

         On April 4, 2012, Grindling filed a "Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody" (Petition[8]) in the circuit court pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40, alleging that he had not been given access to correctional programs, which resulted in his being denied parole.[9] Grindling later filed amendments to the Petition in May 2012, alleging eight grounds. The circuit court issued an order, finding that Grindling's Petition raised potentially colorable claims that had not been waived or previously ruled upon with regard to, inter alia, his assertions of ineffective assistance of appellate counsel and denial of counsel on appeal.[10]

         In 2016, Grindling, now represented by counsel, filed a motion to supplement the Petition, which the circuit court granted. The supplemental ground asserted that Grindling's state and federal constitutional rights to a fair trial were violated when the circuit court, prior to accepting the stipulation, failed to conduct an on-the-record colloquy with him regarding his waiver of the right to proof of an element of a charge. Grindling also contended that that his federal and state constitutional rights to effective assistance of trial and appellate counsel were violated by his trial counsel's inaction and appellate counsel's failure to raise the trial court's error on appeal.

         In response to the claims raised in the supplemental ground, the State argued that Grindling waived these claims when he represented himself pro se on direct appeal, engaged in conduct that demonstrated his desire to reject counsel, and failed to raise the issue in a separate HRPP Rule 40 petition that he had filed ...

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