CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000474; S.P.P. NO. 12-1-0007(3); CR. NO.
A. Hanano for petitioner.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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.
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
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.
FACTS AND PROCEDURAL HISTORY
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) of the Hawaii Revised Statutes (HRS) and
prohibited acts related to drug paraphernalia in violation of
HRS § 329-43.5(a) (1993) .
September 2007, Grindling appeared for arraignment in the
Circuit Court of the Second Circuit (trial court or circuit
court as specified) 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
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.
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.
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.
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. 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.
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
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. . . .
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.
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. 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.
HRPP Rule 40 Proceedings
April 4, 2012, Grindling filed a "Petition to Vacate,
Set Aside, or Correct Judgment or to Release Petitioner From
Custody" (Petition) 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. 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
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.
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 ...