State v. Uchima. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
19-MAY-2020
07:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
JASON K. UCHIMA,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-01965)
MAY 19, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN PART AND DISSENTING IN PART, AND CONCURRING IN THE
JUDGMENT, AND WITH NAKAYAMA, J., DISSENTING FROM THE JUDGMENT
OPINION OF THE COURT BY POLLACK, J.
In Hawaiʻi, a defendant in a criminal case has a
statutory right to appeal from a district or circuit court
judgment. In situations when defense counsel has inexcusably or
ineffectively failed to timely file the notice of appeal, we
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have determined that not allowing the appeal to proceed would
result in the deprivation of the defendant’s due process rights.
Defendants in criminal cases also have a statutory
right to seek review of an Intermediate Court of Appeals’ (ICA)
judgment on appeal by filing an application for writ of
certiorari to this court. The effect of counsel’s failure to
timely file a certiorari application is no different than
counsel’s failure to timely file a notice of appeal--the
defendant has forfeited a statutory right and been deprived of
the effective assistance of counsel. Upon review of applicable
precedent, we hold that certiorari review is a critical stage of
the criminal proceedings during which a defendant has the
constitutional right to effective assistance of counsel, which
includes counsel’s procedural compliance with the steps required
to timely file an application for a writ of certiorari.
In this case the application for writ of certiorari
was untimely filed due to an error of defense counsel or as a
result of a computer system error. Regardless of the source of
the error, defense counsel failed to ensure the timely filing of
the certiorari application, which counsel has acknowledged. As
a result, the defendant was deprived of the constitutional right
to the effective assistance of counsel on discretionary review.
Under these circumstances, we may consider the merits of the
issues raised in the certiorari application, and we elect to do
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so here. Based upon our review of the certiorari application,
we affirm the ICA’s judgment on appeal.
I. BACKGROUND AND TRIAL
On May 31, 2016, the State of Hawaiʻi charged Jason K.
Uchima by complaint in the District Court of the First Circuit
(district court) with operating a vehicle under the influence of
an intoxicant (OVUII) in violation of HRS § 291E-61(a)(1)1 and/or
(a)(3).2 Uchima pleaded not guilty to the charge.
Prior to trial, Uchima filed a motion to suppress
evidence seized or information obtained by the Honolulu Police
Department (HPD) after he was arrested, including all statements
made by him to law enforcement. Uchima argued that he was in
custody when he was instructed by HPD Officer Richard Townsend
to exit his vehicle and asked to participate in a field sobriety
test (FST) as he “was clearly not free to leave,” and that he
1
HRS § 291E-61(a)(1) (Supp. 2015) provides as follows:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental
faculties or ability to care for the person and guard
against casualty[.]
2
HRS § 291E-61(a)(3) (Supp. 2015) provides as follows: “A person
commits the offense of operating a vehicle under the influence of an
intoxicant if the person operates or assumes actual physical control of a
vehicle: . . . . With .08 or more grams of alcohol per two hundred ten liters
of breath[.]” The State’s motion to strike this portion of the charge was
granted prior to the commencement of trial.
3
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was subject to interrogation when Officer Townsend asked him
“medical rule out” questions3 because such questions are likely
to elicit an incriminating response. Uchima maintained that the
police’s failure to provide him with Miranda warnings prior to
custodial interrogation violated his rights under the federal
and state constitutions and required the suppression of his
statements to law enforcement.
The parties stipulated to consolidate the evidentiary
hearing on the motion to suppress with the trial of the OVUII
charge.4 A bench trial was held on November 4, 2016, and January
24, 2017.5 The State presented the testimony of one witness,
Officer Townsend.
Officer Townsend testified that, on May 14, 2016,
around 12:45 a.m., he stopped Uchima’s vehicle after he observed
it crossing over the broken white lines of the road for
approximately 30 to 40 yards along Beretania Street before the
Punchbowl intersection. Officer Townsend stated that, when he
3
Uchima contended that medical rule-out questions include the
following: whether the person has any physical defects or speech impediments,
whether the person is taking any medication, and whether the person is under
the care of a physician, a dentist, or an optometrist.
4
We recently held in State v. Chang, 144 Hawaiʻi 535, 556, 445 P.3d
116, 137 (2019), that courts may not consolidate a motion to suppress hearing
with trial. However, Chang’s holding was prospective and does not affect the
determination of issues before us. See id.5
The Honorable James H. Ashford presided.
4
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pulled the vehicle over, Uchima was in the driver’s seat and had
the odor of alcohol, slurred speech, red and watery eyes, and
his face was flushed. The officer testified that he explained
to Uchima why he had pulled him over and asked for Uchima’s
driver’s license. Officer Townsend said that he had to ask
Uchima questions “a couple of times” because he could not
understand what Uchima was saying.
Based on his observations, Officer Townsend testified,
he asked Uchima if he would participate in an FST, and Uchima
consented. According to the officer, Uchima appeared unsteady
on his feet as he exited his vehicle. Officer Townsend stated
that he explained the three tests consisting of the FST--the
horizontal gaze nystagmus test, the walk-and-turn test, and the
one-leg stand test--to Uchima before proceeding with the tests.
Officer Townsend related that, during administration of the FST,
Uchima stated that he understood the instructions to each of the
tests.
With regard to the horizontal gaze nystagmus test,
Officer Townsend testified that Uchima was instructed to keep
his head still and follow the officer’s pen only with his eyes
but that Uchima could not keep his head still despite being
repeatedly told do so. As to the walk-and-turn test, Officer
Townsend testified that he instructed Uchima to take nine “heel-
to-toe” steps using an imaginary line, turn, then return nine
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heel-to-toe steps back, and to count aloud the number of steps
he took. According to Officer Townsend, Uchima did not count
out loud, took ten steps instead of nine on each pass, did not
touch his heel to his toe during his steps, stepped off line on
each step, had his hands raised, paused once for several seconds
to keep balance, and swayed as he walked. On the one-leg stand
test, Officer Townsend testified that Uchima’s performance
deviated from the instructions: he had difficulty balancing
while his right leg was raised, his arms were raised to about
mid-torso rather than at his sides, and he hopped on his planted
foot during the last ten seconds of the test.
Officer Townsend stated that following the conclusion
of the three tests he informed another officer of Uchima’s
performance, and the second officer placed Uchima under arrest.
In response to defense counsel’s questions, Officer
Townsend testified that he went over the medical rule-out
questions with Uchima prior to conducting the FST. Officer
Townsend explained that he asked Uchima whether he was under the
care of a doctor or dentist, whether he was taking any
medication, whether he was diabetic or epileptic, and whether he
had any physical disabilities. Uchima responded in the negative
to the questions, Officer Townsend testified.
After the conclusion of the evidence, the district
court ruled upon the motion to suppress. The district court
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determined that Uchima was not subjugated to the will of the
examiner and that the situation only became “custodial” at the
conclusion of the third test. As to whether an interrogation
occurred, the court concluded that the questions asked of Uchima
when he was in the car were not likely to yield incriminating
information and that the same was true with questions as to
whether Uchima would like to exit the car, whether he was
willing to participate in an FST, and whether he understood the
instructions provided during each of the three tests. The court
also determined that the answers to the medical rule-out
questions “would have no probative value, no inculpatory or
exculpatory value.” The district court accordingly denied
Uchima’s motion to suppress.6
The district court thereupon found Uchima guilty of
the OVUII charge and sentenced him to community service, fine,
and a one-year license revocation.7 Uchima appealed from the
district court’s January 24, 2017 Notice of Entry of Judgment
and/or Order and Plea/Judgment, and its February 23, 2017 Notice
of Entry of Judgment and/or Order and Plea/Judgment entered
(collectively, Judgment).
6
The district court incorporated its findings and conclusions from
the motion to suppress into its findings with respect to the OVUII charge.
7
The court imposed the community service and fine on January 24,
2017, and the license revocation on February 23, 2017.
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II. UCHIMA’S APPEAL
A. ICA Proceedings
On appeal to the ICA, Uchima contended that the
district court erred in denying the motion to suppress, arguing
that his right to remain silent under article I, section 10 of
the Hawaiʻi Constitution was violated because he was never
advised of his Miranda rights and that his verbal statements and
non-verbal communicative acts were the product of custodial
interrogations. (Citing State v. Tsujimura, 140 Hawaiʻi 299, 400
P.3d 500 (2017).) Uchima also argued that the officer’s medical
rule-out questions and questions as to whether he understood the
instructions on the FST were likely to evoke an incriminating
response regardless of how he answered, and that his actual
performance on the FST was a communicative response. Uchima
asserted that the district court’s error was not harmless beyond
a reasonable doubt and that without the officer’s erroneously
admitted testimony, there was not substantial evidence to
support his conviction. The State responded that the district
court did not err and the Judgment should be affirmed.
In a summary disposition order, the ICA concluded that
the admission of Uchima’s performance on the FST did not violate
his right against self-incrimination because performance on an
FST is neither communication nor testimony. And, the ICA held,
Uchima’s right to remain silent was not violated when he
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provided answers to the medical rule-out questions because
Tsujimura concerned whether pre-arrest silence could be used as
substantive evidence against the defendant and did not involve a
defendant’s statements to police. The ICA accordingly held that
the district court did not err in admitting Officer Townsend’s
observations of Uchima’s driving, Uchima’s answers to the
medical rule-out questions, and Uchima’s performance on the FST.
The ICA also concluded that there was substantial evidence to
support Uchima’s conviction. The ICA thus affirmed the
Judgment.
B. Uchima’s Application for Writ of Certiorari
The ICA judgment on appeal was filed on March 19,
2018. On March 27, 2018, Uchima’s motion for an extension of
time to file an application for a writ of certiorari
(Application) was granted, and the deadline was extended to May
18, 2018. Six days after the extended due date, Uchima filed
his Application along with his counsel’s motion to accept the
untimely Application.
In the motion to accept, Uchima argues that this court
should consider his Application on the merits despite its
ostensible untimeliness because the failure to file within the
deadline resulted entirely from either computer system error or
his counsel’s mistake. In a declaration attached to the motion,
counsel for Uchima avers that he “finished drafting the
9
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Application and believed that he properly efiled it” on May 18,
2018. Counsel states that he would not have sought an extension
of time to file the Application if he had not intended to file
it. Counsel adds that he “had no reason to suspect that there
was any issue in creating Uchima’s case.”
Upon receiving notice on May 24, 2018, that the State
had filed a motion to execute Uchima’s sentence in district
court, counsel states that he checked the Judiciary Electronic
Filing and Service System and was unable to locate a case for
Uchima’s Application.8 Counsel explains that he also “checked
his emails” and discovered that he had never received an email
confirming that a case for Uchima’s Application had been created
on May 18, 2018. Counsel indicates that after seeking advice,
he filed the motion to accept along with the Application.
Counsel declares that he is unsure as to why the Application was
not filed, surmising that it was due to user or computer system
error on that particular occasion and that he has filed numerous
certiorari applications in the past using the same procedure
without any issues. The State did not file an opposition to the
motion to accept or a response to Uchima’s Application.
8
The Judiciary Electronic Filing and Service System allows for the
electronic filing of court documents.
10
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III. STANDARDS OF REVIEW
A. Jurisdiction
The existence of jurisdiction is a question of law and
is reviewed de novo under the right/wrong standard. Lingle v.
Hawaii Gov’t Empls. Ass’n, AFSCME, Local 152, 107 Hawaiʻi 178,
182, 111 P.3d 587, 591 (2005).
B. Motion to Suppress
We review a trial court’s ruling on a motion to
suppress evidence de novo to determine whether the ruling was
“right” or “wrong.” State v. Estabillio, 121 Hawaiʻi 261, 269,
218 P.3d 749, 757 (2009); State v. Jenkins, 93 Hawaiʻi 87, 100,
997 P.2d 13, 26 (2000).
C. Sufficiency of the Evidence
The sufficiency of the evidence is reviewed on appeal
by this court as follows:
[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998)
(alteration in original) (quoting State v. Quitog, 85 Hawaiʻi
128, 145, 938 P.2d 559, 576 (1997)). “‘Substantial evidence’ as
to every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to
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enable a person of reasonable caution to support a conclusion.’”
State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)
(quoting Richie, 88 Hawaiʻi at 33, 960 P.2d at 1241).
IV. DISCUSSION
A. This Court Has Jurisdiction To Review the Late Filing of
the Application in This Case.
HRS § 602-59 grants a party the right to petition this
court for discretionary review of an ICA judgment or dismissal
order by submitting an application for writ of certiorari no
later than thirty days after the filing of the ICA’s judgment or
dismissal order.9 A party may extend the time for filing the
9
HRS § 602-59 (2016) provides in part the following:
(a) After issuance of the intermediate appellate court’s
judgment or dismissal order, a party may seek review of the
intermediate appellate court’s decision and judgment or
dismissal order only by application to the supreme court
for a writ of certiorari, the acceptance or rejection of
which shall be discretionary upon the supreme court.
(b) The application for writ of certiorari shall tersely
state its grounds, which shall include:
(1) Grave errors of law or of fact; or
(2) Obvious inconsistencies in the decision of the
intermediate appellate court with that of the supreme
court, federal decisions, or its own decision,
and the magnitude of those errors or inconsistencies
dictating the need for further appeal.
(c) An application for a writ of certiorari may be filed
with the supreme court no later than thirty days after the
filing of the judgment or dismissal order of the
intermediate appellate court. Upon a written request filed
prior to the expiration of the thirty-day period, a party
may extend the time for filing an application for a writ of
(continued . . .)
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certiorari application for an additional thirty days if the
party files a written request prior to the expiration of the
thirty-day period. HRS § 602-59(c).
In this case, Uchima requested an extension of time to
file his Application. However, Uchima’s counsel avers that
either as a result of the judiciary’s computer system or user
error, the Application was not filed until six days after the
extended deadline of May 18, 2018. These circumstances require
us to determine whether we have jurisdiction to review the
merits of Uchima’s Application.
1. The Hawaiʻi Revised Statutes Confer a Right To Appeal and a
Right To Petition This Court for Certiorari Review.
In Hawaiʻi, every defendant in a criminal case who is
aggrieved by a district or circuit court judgment is guaranteed
a statutory right to appeal. Briones v. State, 74 Haw. 442,
460, 848 P.2d 966, 975 (1993) (citing HRS §§ 641-11 (Supp. 1991)
and 641-12 (1985)). Specifically, pursuant to HRS § 641-12(a),10
(. . . continued)
certiorari for no more than an additional thirty
days. . . .
10
HRS § 641-12(a) (2016) provides the following:
Appeals upon the record shall be allowed from all final
decisions and final judgments of district courts in all
criminal matters. Such appeals may be made to the
intermediate appellate court, subject to chapter 602,
whenever the party appealing shall file notice of the
party’s appeal within thirty days, or such other time as
may be provided by the rules of the court.
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a defendant has a right to appeal from “all final decisions and
final judgments of district courts in all criminal matters” to
the ICA, subject to chapter 602. Similarly, HRS § 641-11 allows
appeals from circuit court judgments to the ICA in criminal
matters, subject to chapter 602.11 Included within chapter 602,
HRS § 602-59(a) gives a party the right to seek review of the
ICA’s judgment on appeal or dismissal order “by application to
the supreme court for a writ of certiorari.” While acceptance
of an application for a writ of certiorari is discretionary with
this court, HRS § 602-59(a) expressly provides defendants in
criminal cases with a statutory right to seek review of the
ICA’s judgment on appeal or dismissal order.
2. A Defendant in a Criminal Case Has the Constitutional Right to
the Effective Assistance of Counsel During the Certiorari
Stage of a Criminal Proceeding.
“Article I, section 14 of the Hawaiʻi Constitution
guarantees a defendant in a criminal prosecution the right ‘to
have the assistance of counsel for the accused’s defense.’”
Maddox v. State, 141 Hawaiʻi 196, 202, 407 P.3d 152, 158 (2017)
11
HRS § 641-11 (2016) provides the following:
Any party aggrieved by the judgment of a circuit court in a
criminal matter may appeal to the intermediate appellate
court, subject to chapter 602, in the manner and within the
time provided by the rules of court. The sentence of the
court in a criminal case shall be the judgment. All
appeals shall be filed with the clerk of the supreme court
and shall be subject to one filing fee.
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(quoting Haw. Const. art. I, § 14). This right is deemed so
fundamental that it is specifically provided to indigent
defendants in our state constitution. Haw. Const. art. I, § 14
(“The State shall provide counsel for an indigent defendant
charged with an offense punishable by imprisonment.”).
We have emphasized that the “right to counsel is an
essential component of a fair trial” secured by article I,
section 14 of the Hawaiʻi State Constitution. State v. Pitts,
131 Hawaiʻi 537, 541, 319 P.3d 456, 460 (2014); see also State v.
Tarumoto, 62 Haw. 298, 299, 614 P.2d 397, 398 (1980).
Accordingly, the constitutional right to be represented by
counsel is guaranteed to the accused at every critical stage of
the prosecution. Pitts, 131 Hawaiʻi at 541, 319 P.3d at 460
(citing Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577, 582
(1976)); Haw. Const. art I, § 14. A “critical stage” of a
prosecution is “any stage where potential substantial prejudice
to defendant’s rights inheres.” Pitts, 131 Hawaiʻi at 541-42,
319 P.3d at 460-61 (internal quotations omitted) (quoting State
v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022 (1981)).
We have held that critical stages of a criminal
proceeding include trial, post-verdict motions, sentencing,
effectuating an appeal, and minimum term hearings conducted by
the Hawaiʻi Paroling Authority (HPA). Akau v. State, 144 Hawaiʻi
159, 161, 439 P.3d 111, 113 (2019) (trial); Pitts, 131 Hawaiʻi at
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542-44, 319 P.3d at 461-63 (post-verdict motions and
sentencing); Maddox, 141 Hawaiʻi at 207, 407 P.3d at 163
(effectuating an appeal); De La Garza v. State, 129 Hawaiʻi 429,
439, 302 P.3d 697, 707 (2013) (minimum term hearings). Our
decisions have highlighted the importance of counsel’s
assistance at these stages of the criminal proceedings. In
State v. Akau, for example, we stated that “the right to counsel
is ‘fundamental and essential to a fair trial.’” 144 Hawaiʻi at
161, 439 P.3d at 113 (brackets omitted) (quoting Gideon v.
Wainwright, 372 U.S. 335, 342-44 (1963)). In State v. Pitts, we
sua sponte raised the issue of a defendant’s right to counsel
during post-verdict motions and held that the trial court erred
by denying the defendant substitute counsel during this stage of
the proceedings. 131 Hawaiʻi at 542, 319 P.3d at 461 (“In order
to prevent similar future deprivations, we hold that the post-
trial motion stage is a critical stage of the prosecution during
which the right to counsel attaches[.]”). We have also
recognized that counsel plays a pivotal role in ensuring a fair
sentencing procedure by assisting a defendant in navigating the
intricacies of the criminal process and protecting a defendant’s
substantial rights. State v. Phua, 135 Hawaiʻi 504, 512, 353
P.3d 1046, 1054 (2015) (stating that the assistance of counsel
is of “paramount importance” during sentencing because it is an
“oftentimes complicated part of the criminal process” that
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contains subtleties “beyond the appreciation of the average
layperson”).
Counsel’s assistance is also essential in preserving
arguments for appeal, preparing the defendant for any
proceedings that may come after conviction, and taking whatever
steps are necessary to protect the right to appeal. Maddox, 141
Hawaiʻi at 204-07, 407 P.3d at 160-63 (“It logically follows that
the steps to effectuate an appeal constitute a critical stage in
the proceeding during which a defendant is entitled to
counsel.”). Additionally, we have held that the assistance of
counsel is crucial during post-conviction administrative
proceedings before the HPA. De La Garza, 129 Hawaiʻi at 441, 302
P.3d at 709 (“[A] convicted person is constitutionally entitled
to be represented at the hearing by counsel who can ensure that
the minimum sentence imposed by the HPA is not predicated on
misinformation or misreading of court records, which is a
requirement of fair play.” (quoting D’Ambrosio v. State, 112
Hawaiʻi 446, 464, 146 P.3d 606, 624 (App. 2006))); D’Ambrosio,
112 Hawaiʻi at 464-65, 146 P.3d at 624-25 (holding that HPA
minimum term determinations “undoubtedly” affects a person’s
substantial rights); see also Pitts, 131 Hawaiʻi at 544, 319 P.3d
at 463 (observing the defendant would have benefited by having
substitute counsel’s guidance in preparation for proceedings
before the HPA “even if there were no other sentence available
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. . . but a life term of imprisonment with the possibility of
parole”).
The Hawaiʻi Supreme Court is the court of last resort
in our state, and it is the ultimate interpreter of Hawaiʻi’s
constitutional and statutory law. State v. Santiago, 53 Haw.
254, 265, 492 P.2d 657, 664 (1971) (“[T]his court is the final
arbiter of the meaning of the provisions of the Hawaii
Constitution.”); AlohaCare v. Dep’t of Human Servs., 127 Hawaiʻi
76, 87, 276 P.3d 645, 656 (2012) (stating that the Hawaiʻi
Supreme Court is the “final arbiter” of Hawaiʻi statutory law).
In the vast majority of criminal appeals, certiorari review
provides the last pathway to ensure that the defendant’s
substantial rights were observed during the trial and sentencing
phases of the proceedings.12 Cf. Briones, 74 Haw. at 465, 848
P.2d at 977 (“The appellate court’s purpose is to ensure [a]
defendant’s right to a fair trial.”). And much like pretrial
and trial proceedings, post-verdict motions, sentencing, and
minimum term hearings, certiorari review is an “oftentimes
complicated part of the criminal process” such that not
providing a defendant the assistance of counsel would restrict
the defendant’s ability to be meaningfully heard. Phua, 135
12
Court rules impose significant restrictions on post-conviction
challenges. See Hawaiʻi Rules of Penal Procedure Rule 40.
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Hawaiʻi at 512, 353 P.3d at 1054; see State v. Mundon, 121
Hawaiʻi 339, 367, 219 P.3d 1126, 1154 (2009) (“[T]he right to be
heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel[.]” (second
alteration in original) (quoting Geders v. United States, 425
U.S. 80, 88-89 (1976))).
Initiating the certiorari review process requires a
defendant to be able to understand the legal bases for the ICA’s
decision and have sufficient knowledge of legal principles and
caselaw to challenge that decision. See HRS § 602-59(b)
(requiring certiorari applications to state grave errors of law
or fact, or obvious inconsistencies in the ICA’s decision with
state or federal caselaw). A defendant must also be aware of
and comply with procedural requirements, including filing
deadlines and the prescribed contents of a certiorari
application. See HRS § 602-59(c) (concerning filing deadlines);
Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 40.1 (2017)
(specifying sections of a certiorari application). This
knowledge of law and procedure is almost uniformly beyond the
ability of unrepresented defendants, and compliance with
procedural requirements presents additional obstacles to
incarcerated defendants. See D’Ambrosio, 112 Hawaiʻi at 465, 146
P.3d at 625 (“Moreover, the HPA Guidelines set forth rather
complex criteria . . . .”); cf. Briones, 74 Haw. at 465, 848
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P.2d at 977 (“[I]t is counsel’s responsibility [on appeal], in
the limited time and space allowed, to present issues that may
have influenced the trial court’s decision adversely to [their]
client.”). Thus, the assistance of counsel is a virtual
necessity to effectively petition this court for certiorari
review.13
We thus conclude that the right to seek certiorari
review to this court is a critical stage of the criminal
proceedings. Unquestionably, providing the right to counsel
during this stage of the proceedings enhances the criminal
justice process and provides greater assurance that the
proceedings have comported with due process.14 See Mundon, 121
13
As is evident from the many cases this court reviews in which a
petitioner or respondent is represented by appointed counsel, counsel’s
obligations do not terminate after the ICA issues a judgment on appeal;
certiorari review in this court may thus be considered a “stage[] of the
proceedings” and part of the “appeal” for which counsel is appointed and
receives compensation as provided by statute and rule. See HRS § 802-5
(2014) (providing for reasonable compensation to appointed counsel for
representation at all stages of the proceeding, including appeal); HRAP Rule
2.1(b) (2010) (“‘[A]ppeal’ includes every proceeding in the Hawaiʻi appellate
courts other than an original action[.]”); HRAP Rule 39(d)(1) (2016)
(“Requests for indigent fees and necessary expenses . . . shall be
accompanied by a copy of the order appointing counsel” which is generally the
order issued pursuant to HRS § 802-5); see also Kargus v. State, 169 P.3d
307, 313 (Kan. 2007) (treating a petition for review to the state supreme
court as a “level[] of the state appellate process” in a defendant’s direct
appeal of a felony conviction); Am. Bar Ass’n, Criminal Justice Standards for
the Defense Function, Standard 4-9.2(h) (4th ed. 2017) (“[A]ppellate counsel
should ordinarily continue to represent the client through all stages of a
direct appeal, including review in the United States Supreme Court.”). It is
not necessary, however, to resolve whether the certiorari process should be
considered a step of the direct appeal.
14
Hawaiʻi’s statutory law provides an indigent defendant in a
criminal case the statutory right to counsel on appeal, including proceedings
(continued . . .)
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Hawaiʻi at 367-68, 219 P.3d at 1154-55 (denying the defendant the
right to confer with counsel during a routine 15-minute recess
improperly restricted the defendant’s opportunity to be heard
during the trial); Pitts, 131 Hawaiʻi at 544, 319 P.3d at 463
(denial of right to counsel affects defendants’ ability to
defend their “interests on a level playing field”). We
therefore hold that a defendant has a constitutional right to
the assistance of counsel during proceedings on certiorari
review.15 Cf. Akau, 144 Hawaiʻi at 161, 439 P.3d at 113; Pitts,
(. . . continued)
in this court. HRS § 802-5(a) (“[T]he judge shall appoint counsel to
represent the [indigent] person at all stages of the proceedings, including
appeal, if any.” (emphasis added)). Thus, HRS § 802-5 provides an indigent
defendant in a criminal case with the right to appointed counsel on
certiorari review. The record, however, appears to indicate that Uchima is
represented by privately retained counsel. Nevertheless, as the Chief
Justice aptly observes, “it would be fundamentally unfair to extend the
remedy of ineffective assistance of counsel only to the indigent” and deny it
to the non-indigent because they can afford counsel. Recktenwald, C.J.,
Concurring and Dissenting at 3 n.2. While we agree with this conclusion, the
Chief Justice reasons therefrom that the constitutional question of the right
to counsel should be avoided because “Uchima is entitled to identical relief
whether his right to effective counsel stems from statute or the
constitution.” Id. at 5. But it is the due process clause of article I,
section 5 of the Hawaiʻi Constitution and the Fourteenth Amendment to the
United States Constitution that imposes the “standards necessary to ensure
that judicial proceedings are fundamentally fair.” Lassiter v. Dep’t of Soc.
Servs. of Durham Cty., 452 U.S. 18, 24, 33 (1981) (due process “expresses the
requirement of ‘fundamental fairness’”). Thus, because the question of the
right to counsel for non-indigent defendants in criminal cases is not merely
a statutory question, the constitutional issue of the right to counsel on
certiorari review cannot be avoided.
15
It would be illogical to conclude that the defendant’s right to
counsel granted by the Hawaiʻi Constitution ends before the defendant’s
opportunity to be heard before the highest court of this state, yet resumes
during an administrative proceeding before the HPA, or that it protects a
defendant’s rights during a routine 15-minute recess to a greater extent than
proceedings before the state court of last resort, whose duty it is to
interpret and enforce the Hawaiʻi Constitution. See Mundon, 121 Hawaiʻi at
(continued . . .)
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131 Hawaiʻi at 541-42, 319 P.3d at 460-61; Maddox, 141 Hawaiʻi at
207, 407 P.3d at 163; De La Garza, 129 Hawaiʻi at 439, 302 P.3d
at 707.
The right to assistance of counsel during certiorari
review, however, “cannot be satisfied by mere formal
appointment.” State v. Smith, 68 Haw. 304, 309, 712 P.2d 496,
499 (1986) (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)).
Rather, the constitution of the State of Hawaiʻi requires more
than mere assistance. It is well settled that the
constitutional right to the assistance of counsel in a criminal
case is satisfied only when such assistance is effective.
Maddox, 141 Hawaiʻi at 203, 407 P.3d at 159; State v. Tetu, 139
Hawai‘i 207, 215, 386 P.3d 844, 852 (2016); Briones, 74 Haw. at
460, 848 P.2d at 975. Indeed, a primary reason that a defendant
is guaranteed the effective assistance of counsel is to ensure
that the defendant is not denied due process. Maddox, 141
Hawaiʻi at 206, 407 P.3d at 162 (citing Tetu, 139 Hawaiʻi at 219,
386 P.3d at 856).
Although we have not previously held that there is a
right to effective assistance of counsel on certiorari review,
(. . . continued)
368, 219 P.3d at 1155; State v. Viglielmo, 105 Hawaiʻi 197, 211, 95 P.3d 952,
966 (2004) (stating that the Hawaiʻi Supreme Court is the ultimate judicial
tribunal with final, unreviewable authority to interpret and enforce the
Hawaiʻi Constitution).
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it is clear that not providing this right would undermine the
constitutional right to assistance of counsel on such review and
violate due process. See Tetu, 139 Hawaiʻi at 215, 386 P.3d at
852 (“The constitutional right to the assistance of counsel is
satisfied only when such assistance is effective.” (internal
quotations omitted) (quoting State v. Kahalewai, 54 Haw. 28, 30,
501 P.2d 977, 979 (1972)); Maddox, 141 Hawaiʻi at 203, 407 P.3d
at 159. The Hawaiʻi Constitution therefore guarantees a
defendant in a criminal case the right to the effective
assistance of counsel on certiorari review in the same manner
that it does during all other critical stages of the criminal
proceedings.
3. A Defendant’s Right to the Effective Assistance of Counsel
Includes Compliance by Counsel with the Procedural
Requirements To Timely File an Application for Writ of
Certiorari.
This court has previously stated that, “[a]s a general
rule, compliance with the requirement of timely filing of a
notice of appeal is jurisdictional, and we must dismiss an
appeal on our motion if we lack jurisdiction.” State v. Knight,
80 Hawaiʻi 318, 323, 909 P.2d 1133, 1138 (1996) (quoting
Grattafiori v. State, 79 Hawaiʻi 10, 13, 897 P.2d 937, 940
(1995)). While the rule in isolation appears inflexible, this
court has allowed untimely appeals when “defense counsel has
23
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inexcusably or ineffectively failed to pursue a defendant’s
appeal from a criminal conviction in the first instance.” Id.In State v. Knight, the defendant filed the notice of
appeal from the trial court’s judgment of conviction twenty-four
days after the filing deadline. 80 Hawaiʻi at 323, 909 P.2d at
1138. In an affidavit attached to the statement of
jurisdiction, counsel for the defendant averred that he prepared
and signed the notice of appeal prior to the due date, but
counsel discovered that the notice of appeal had not been filed
when he returned from a business trip. Id. We held that the
defendant was entitled to the effective assistance of counsel
who may not deprive the defendant of an appeal by failing to
comply with established deadlines. Id. at 323-24, 909 P.2d at
1138-39. Finding that it was in the interest of justice to
address the merits of the defendant’s appeal, this court
declined to dismiss the appeal. Id. at 324, 909 P.2d at 1139.
In State v. Caraballo, the defendant withdrew his
appeal based on advice from counsel. 62 Haw. 309, 310, 615 P.2d
91, 93 (1980). After the period for filing the notice of appeal
expired, the defendant learned that counsel’s advice was
erroneous and thereafter filed a notice of appeal and a motion
for leave to appeal in forma pauperis. Id. at 310-11, 615 P.2d
at 93-94. In deciding to consider the case, this court noted
that, while the “time requirement for filing the notice of
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appeal has been termed ‘mandatory and jurisdictional,’” several
federal and state courts had “relaxed” the timeliness
requirement for filing a notice of appeal when counsel for the
defendant was at fault. Id. at 312-15, 615 P.2d at 94-96.
Reasoning that the untimely nature of the appeal was due to
counsel’s erroneous advice, we considered the defendant’s appeal
on the merits. Id. at 316, 615 P.2d at 96.
While our cases permitting untimely appeals have
previously involved counsel’s failure to timely perfect a notice
of appeal, the statutes granting a defendant the right to appeal
to the ICA and the statute providing the right to seek this
court’s discretionary review of the ICA’s disposition are
analogous in providing a statutory right to appellate review.
HRS § 641-12(a) requires that “the party appealing [a
district court judgment] shall file notice of the party’s appeal
within thirty days, or such other time as may be provided by the
rules of the court.” See also HRS § 641-11 (specifying that a
defendant may appeal to the ICA from a circuit court judgment
“in the manner and within the time provided by the rules of
court”). In comparison, “[a]n application for a writ of
certiorari may be filed with the supreme court no later than
thirty days after the filing of the judgment or dismissal order
of the intermediate appellate court.” HRS § 602-59(c); see also
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HRAP Rule 40.1(a)(1) (“The application shall be filed within 30
days . . . .”).
Although the statutes governing a notice of appeal may
appear to be less absolute in their terms than the statute
concerning the timing for filing a certiorari application,
closer examination reveals that they are essentially equivalent.
The statutes permitting a notice of appeal to be filed in
accordance with the timing requirements prescribed by court
rules do not contain an explicit exception for ineffective
assistance or due process.16 See HRAP Rule 4(b)(1) (2016) (“In a
criminal case, the notice of appeal shall be filed within 30
days after entry of the judgment or order appealed from.”).
Notwithstanding HRS § 641-12’s seeming rigidity, our caselaw, as
discussed supra, has allowed an appeal to proceed despite an
untimely filing of a notice of appeal when defense counsel has
inexcusably or ineffectively failed to perfect an appeal.
Our decisions allowing for review of the merits of an
untimely appeal also illustrate that “[t]he right to counsel on
appeal encompasses not only the appeal itself, but also the
procedural steps necessary to bring about the appeal.” Maddox,
141 Hawaiʻi at 203, 407 P.3d at 159. In State v. Erwin, the
16
While HRAP Rule 2 (2000) permits an appellate court to suspend
the operation of the court rules for good cause, there is no indication that
this rule has been invoked to allow for a late filing of a notice of appeal.
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defendant’s appointed counsel filed the notice of appeal
thirteen days late. 57 Haw. 268, 268-69, 554 P.2d 236, 237-38
(1976) (per curiam). Recognizing that an indigent defendant in
a criminal case is entitled to court-appointed counsel who may
not deprive the defendant of an appeal by electing to forego
compliance with procedural rules, we concluded that counsel’s
failure to “commence the simple steps for appeal is a blatant
denial of due process.” Id. (first citing Entsminger v. Iowa,
386 U.S. 748 (1966); then quoting Blanchard v. Brewer, 429 F.2d
89 (8th Cir. 1970)). We therefore denied the State’s motion to
dismiss the appeal on the basis that the appeal was untimely
filed. Id.; see also State v. Aplaca, 96 Hawaiʻi 17, 23, 25 P.3d
792, 798 (2001) (retaining jurisdiction over defendant’s appeal
“in the interests of justice,” notwithstanding counsel’s failure
to timely file a notice of appeal); Knight, 80 Hawaiʻi at 323-24,
909 P.2d at 1138-39 (applying Erwin to a criminal case without
reference to whether the defendant was “indigent”).17
17
While our cases permitting untimely appeals have involved what
the appellate court characterized as a “first appeal,” our statutes, rules,
and caselaw indicate the appeal process includes proceedings in this court as
being a stage in the appeal. For example, HRAP Rule 2.1(b), the definitional
provision for the appellate rules, provides that an “‘appeal’ includes every
proceeding in the Hawaiʻi appellate courts other than an original action.”
(Emphasis added). This unitary nature is also reflected in the statutory
provision providing for the right to counsel through all steps of an
“appeal.” See HRS § 802–5(a) (requiring the appointment of counsel to
indigent defendants “at all stages of the proceedings, including appeal, if
any” (emphasis added)); Rapozo v. Better Hearing of Hawaii, LLC, 120 Hawaiʻi
257, 262-63, 204 P.3d 476, 481-82 (2009) (“[T]he appellate process is not a
(continued . . .)
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Likewise, it follows that counsel’s failure to
“commence the simple steps” to file an application for writ of
certiorari--a critical stage of the proceedings in the review of
a criminal conviction--constitutes ineffective assistance of
counsel. Cf. Maddox, 141 Hawaiʻi at 203, 407 P.3d at 159
(quoting Erwin, 57 Haw. at 270, 554 P.2d at 238). The
constitutional due process concerns underpinning this court’s
decisions permitting a defendant to pursue an untimely appeal
(. . . continued)
series of discrete actions, but a continuation of the proceedings initiated
before lower courts.”).
Additionally, both the ICA’s jurisdiction and the finality of its
judgments are subject to review by this court upon the acceptance of an
application for certiorari review. By statute, the ICA has jurisdiction to
determine appeals from any court or agency when appeals are allowed by law.
HRS § 602-57(1) (2016). However, the ICA’s judgment on appeal does not
become effective until the thirty-first day after entry or upon expiration of
an extended deadline if the time for filing an application for writ of
certiorari is extended. HRAP Rule 36(c)(1) (2016). If an application for
writ of certiorari is filed, the ICA’s judgment on appeal only becomes
effective upon entry of the supreme court’s order dismissing or rejecting the
application or upon entry of the supreme court’s order or other disposition
affirming in whole the ICA’s judgment. HRAP Rule 36(c)(2) (2016). And,
pursuant to HRAP Rule 41 (2012), acceptance of an application “stays finality
of the [ICA’s] judgment on appeal unless otherwise ordered by the supreme
court.” That is, this court’s acceptance of an application stays the
operation of the ICA decision--which only becomes operative if the decision
is wholly affirmed--demonstrating the continuing nature of the “first
appeal.” See HRAP Rules 36(d)(2) (2016), 41.
Accordingly, an application to this court may be considered as a
part of the “first appeal” because it amounts to a direct continuation of the
initial proceedings in a defendant’s direct appeal, which have not yet
terminated. See HRAP Rule 41; see also State v. Garcia, 96 Hawaiʻi 200, 214,
29 P.3d 919, 933 (2001) (“By final we mean where the judgment of conviction
was rendered, the availability of appeal exhausted, and the time for petition
for certiorari ha[s] elapsed . . . .”); HRS § 602-57 (giving the ICA
jurisdiction to hear appeals from “any court or agency when appeals are
allowed by law” subject to “transfer . . . or review on application for a
writ of certiorari” to the supreme court). However, because it is
unnecessary for resolution of this case, we do not resolve whether the “first
appeal” is limited to the initial review by an appellate court.
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when counsel provides ineffective assistance are equally present
in circumstances when counsel fails to comply with the
procedural requirements to file a certiorari application. And,
counsel’s failure to timely file a certiorari application should
similarly not result in the forfeiture of a defendant’s
statutory right to petition the supreme court for discretionary
review. See HRS § 602-59(a); cf. Aplaca, 96 Hawaiʻi at 23, 25
P.3d at 798 (“[F]ailure of [the defendant’s] counsel to timely
file the notice of appeal does not divest [the defendant] of
[the] right to appeal . . . .”).
Justice Nakayama’s opinion dissenting from the
judgment recognizes that under our caselaw, “we have permitted
the review of untimely initial notices of appeal to the ICA in
limited circumstances” but does not acknowledge the interrelated
nature of the constitutional and statutory rights underlying
these decisions. Nakayama, J., Dissenting from the Judgment
(Dissent) at 5. Instead, the dissent focuses on the difference
between the ICA’s mandatory review pursuant to HRS §§ 641-11 and
641-12 and discretionary review to this court under HRS § 602-
59, thus overlooking the analogous procedures required to
effectuate review in either court, and in turn, the resulting
constitutional violation.
Under HRS §§ 641-11 and 641-12, the ICA’s review is
only mandatory if a notice of appeal is timely filed.
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Similarly, discretionary review under HRS § 602-59 is dependent
on the timely filing of an application for writ of certiorari.
Under either statute, a defendant may elect not to seek
appellate review. However, when a defendant chooses to seek
review, counsel’s failure to follow the procedural requirements
under these statutes constitutes ineffective assistance of
counsel on appeal regardless of whether review would have been
mandatory or discretionary in the appellate court. That is, the
constitutional violation is occasioned by the same procedural
error of counsel.
Further, courts allowing an untimely notice of appeal
were cognizant of the fact that “[t]imely filing of a notice of
appeal has been held to be a jurisdictional requirement,” but
the courts nonetheless reasoned that counsel’s failure to comply
with procedural requirements deprived a defendant of due process
such that review of the untimely appeal was warranted. Erwin,
57 Haw. at 269, 554 P.2d at 238; see Aplaca, 96 Hawaiʻi at 23, 25
P.3d at 798; Knight, 80 Hawaiʻi at 323-24, 909 P.2d at 1138-39.
Thus, the constitutional principle driving our decisions that
avoid a due process violation of a defendant’s rights when a
notice of appeal is untimely filed applies equally to the
untimely filing of an application for writ of certiorari.
Accordingly, we hold that a defendant in a criminal
case has the right to effective assistance of counsel during all
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stages of an appeal, which includes procedural compliance with
the statutory requirements for filing an application for writ of
certiorari. See HRAP Rule 2.1(b) (“‘[A]ppeal’ includes every
proceeding in the Hawaiʻi appellate courts other than an original
action[.]”); Maddox, 141 Hawaiʻi at 203, 407 P.3d at 159 (holding
that effective assistance of counsel includes compliance with
procedural rules).
4. This Court May Address the Merits of an Application for Writ
of Certiorari When the Ineffective Assistance of Counsel Is
Plain from the Record.
“[W]hen a defendant is denied an appeal because of a
failure or omission of defense counsel, a defendant need not
demonstrate any additional possibility of impairment to
establish that counsel was ineffective under article I, sections
5 and 14 of the Hawaiʻi Constitution.” Maddox, 141 Hawaiʻi at
206, 407 P.3d at 162. In State v. Silva, we held that “in some
instances, the ineffective assistance of counsel may be so
obvious from the record that a [Hawaiʻi Rules of Penal Procedure
(HRPP)] Rule 40 proceeding would serve no purpose except to
delay the inevitable and expend resources unnecessarily.”18 75
18
HRPP Rule 40 (2006) states in relevant part as follows:
(a) Proceedings and Grounds. The post-conviction
proceeding established by this rule shall encompass all
common law and statutory procedures for the same purpose,
including habeas corpus and coram nobis; provided that the
(continued . . .)
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Haw. 419, 438-39, 864 P.2d 583, 592 (1993) (citing State v.
Aplaca, 74 Haw. 54, 837 P.2d 1298 (1993)); accord State v.
Pacheco, 96 Hawaiʻi 83, 102, 26 P.3d 572, 591 (2001) (holding
that “the record on appeal conclusively establishe[d]” that
counsel rendered ineffective assistance, providing an
alternative basis for vacating defendant’s conviction).
Additionally, an HRPP Rule 40 post-conviction
proceeding may take several years to reach a final resolution.
In Villados v. State, the petitioner filed an untimely pro se
application for writ of certiorari in the underlying case,
contending that his court-appointed attorney was at fault for
the application’s untimeliness.19 No. CAAP-XX-XXXXXXX, at 2,
2018 WL 4520933 (App. Sept. 21, 2018) (SDO). This court
dismissed the application as untimely. Id. Thereafter, the
(. . . continued)
foregoing shall not be construed to limit the availability
of remedies in the trial court or on direct appeal. . . .
. . . .
(b) Institution of proceedings. A proceeding for post-
conviction relief shall be instituted by filing a petition
with the clerk of the court in which the conviction took
place. The clerk shall then docket the petition as a
special proceeding, and in cases of pro se petitions,
promptly advise the court of the petition.
19
In an appended affidavit, the petitioner averred that counsel
initially indicated that she would file an application for writ of certiorari
but later informed petitioner after the deadline had passed that she would
not do so. State v. Villados, No. SCWC-30442, at 2-3, 2012 WL 3262752 (Haw.
July 20, 2012) (order dismissing application for writ of certiorari) (Acoba,
J., dissenting).
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petitioner initiated an HRPP Rule 40 proceeding in the Circuit
Court of the Second Circuit (circuit court), contending that he
had received ineffective assistance of counsel because of
counsel’s failure to file the certiorari application and
requesting, inter alia, that his conviction be vacated. Id.The circuit court determined that certiorari counsel was
ineffective for failing to file the application, but it
concluded that the appropriate relief was to permit the
petitioner to seek review from the supreme court, which the
court found that it could not grant and thus denied the
petition. Id. at 2. Similarly, the ICA determined on appeal
that though counsel provided ineffective assistance under our
decision in Maddox, the appropriate remedy “would be to allow
the petitioner to proceed with the appeal that was precluded by
the ineffective counsel”--which relief the ICA determined must
be obtained from this court. Id. at 3-6. Subsequently, in
February 2019, more than six years after the original
application was dismissed as untimely, the petitioner’s
certiorari application challenging the circuit court’s and the
ICA’s denials of his HRPP Rule 40 petition was accepted by this
court. Villados v. State, No. SCWC-XX-XXXXXXX, 2019 WL 84554333
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(Haw. Feb. 4, 2019) (order accepting application for writ of
certiorari).20
As illustrated by Villados, requiring a defendant to
initiate an HRPP Rule 40 proceeding in situations when it is
clear from the record that counsel has inexcusably or
ineffectively failed to pursue certiorari review is likely to be
an inefficient use of judicial resources. Further, “[t]he fact
that [the defendant] may have an opportunity to assert
ineffective assistance of counsel in a future HRPP Rule 40
petition does not cure the fact that error has already occurred
and [defendant’s] substantial rights have been adversely
affected.” State v. Villados, No. SCWC-30442, at 10, 2012 WL
3262752 (Haw. July 20, 2012) (order dismissing application for
writ of certiorari) (Acoba, J., dissenting) (citing Silva, 75
Haw. at 438-39, 864 P.2d at 592).
Post-conviction proceedings also may be deficient in
being able to provide the appropriate relief to remedy counsel’s
ineffectiveness without returning the case to this court.
Additionally, the delay caused by requiring an HRPP Rule 40
proceeding in circumstances when counsel concedes fault for a
certiorari application’s untimeliness--or the fault is otherwise
plainly apparent from the record--is unnecessarily exacerbated.
20
At the time this opinion was issued, the case was still pending
before this court.
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By proceeding instead to the merits of a certiorari application
when the failure to timely file the application results from the
ineffective assistance of counsel, we avoid depriving a
defendant of due process and prevent unnecessary delay to the
defendant whose rights have been adversely affected.21 Indeed,
HRPP Rule 40(a) specifically provides that the establishment by
rule of post-conviction proceedings “shall not be construed to
limit the availability of remedies in the trial court or on
direct appeal.” HRPP Rule 40(a) thus specifically authorizes a
defendant to seek an available remedy on direct appeal even if
relief would also be obtainable in a post-conviction proceeding.
See Silva, 75 Haw. at 438–39, 864 P.2d at 592 (refusing to adopt
the prosecution’s suggested general rule that a defendant may
21
The dissent’s insistence that an HRPP Rule 40 proceeding is the
“only legally permissible procedure,” dissent at 9, does not sufficiently
consider the importance of preserving a defendant’s constitutional rights and
the analogous caselaw applicable to the untimely filing of a notice of
appeal. The legislature has granted a defendant in a criminal case the right
to appeal to the ICA and the right to seek this court’s discretionary review.
See HRS §§ 641-11, 641-12, 602-59. The dissent does not provide an adequate
explanation as to why this court should treat the forfeiture of either
statutory right, arising out of the same procedural error by counsel,
differently. Instead, the dissent would require a defendant to proceed with
an HRPP Rule 40 petition and a likely appeal to remedy the constitutional
violation in situations when the due process violation is clear from the
record and this court is capable of remedying it in the first instance. See
Silva, 75 Haw. at 438-39, 864 P.2d at 592. It is not efficient for our court
system to require that a defendant initiate an HRPP Rule 40 proceeding that
may take several years to resolve, in contrast to an immediate discretionary
determination by this court as to whether the certiorari application should
be accepted. See, e.g., Villados, No. SCWC-XX-XXXXXXX; Villados, No. CAAP-
XX-XXXXXXX (as of the date of this opinion, the case initiated over six years
earlier under HRPP Rule 40 as a result of counsel’s admitted failure to
timely file the certiorari application was still pending in this court).
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only assert ineffective assistance of counsel in a post-
conviction proceeding under HRPP Rule 40).
Justice Nakayama’s dissent contends that our opinion
“opens the door” to requiring this court to review all
certiorari applications regardless of their timeliness,
rendering procedural requirements for filing applications in
criminal cases “moot.” Dissent at 7-9. The dissent broadly
overstates the limited impact of allowing this court to review
applications that but for counsel’s procedural error would
otherwise have been timely filed.
First, attorneys in Hawaiʻi are subject to Rule 1.3
(2014) of the Hawaiʻi Rules of Professional Conduct (HRPC), which
requires that, “A lawyer shall act with reasonable diligence and
promptness in representing a client.” As such, attorneys have a
duty to comply with procedural requirements including statutory
deadlines. Because counsel is required to “keep the client
reasonably informed about the status of the matter,” HRPC Rule
1.4(a)(3) (2014), and because a defendant in a criminal appeal
is generally focused on the status of the appeal, it is unlikely
that counsel’s ineffectiveness in not timely filing a certiorari
application would go undiscovered until years later as the
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dissent portends.22 Dissent at 7. Even assuming such a
discovery were to occur years later, this court has
discretionary authority to dismiss the application as untimely
and require the defendant to proceed under HRPP Rule 40.
Second, because counsel’s ineffectiveness must be
clear from the record, counsel will be required to admit
responsibility for the late filing, unless it is apparent from
the record that counsel is at fault for the application’s
untimeliness. In circumstances when the record is unclear, the
court may dismiss the application so that a proceeding may be
commenced in the trial court pursuant to HRPP Rule 40(f). See
HRPP Rule 40(f) (providing for an opportunity for counsel to be
heard regarding allegations of ineffective assistance). The
dissent thus incorrectly assumes that an untimely application
will necessarily demonstrate counsel’s noncompliance with
procedural requirements when this is unequivocally not the case.
Dissent at 7-8.
Further, our decision today will affect significantly
fewer cases than what our law already allows when a notice of
appeal is not timely filed in a criminal case. This is because
the number of potential criminal cases in which a certiorari
application is not timely filed is a much smaller pool than all
22
In this case, counsel filed the untimely application six days
after the application’s deadline.
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criminal cases in which an appeal may be taken. Additionally,
counsel’s ineffectiveness must be clear from the record in order
for this court to consider an untimely filed application.23
Finally, the proposition that “[s]ignificantly more judicial
resources will be depleted attempting to meet these additional
demands,” dissent at 10, is plainly refuted by the avoidance of
an unnecessary HRPP Rule 40 proceeding, the hearing on the
petition, and subsequent appeals, when the untimely application
is reviewed on its merits--as it would have been but for
counsel’s admitted error.24
Therefore, we hold that this court may decline to
dismiss an application for writ of certiorari as untimely and
proceed to review its merits when it is plain from the record
that defense counsel failed to comply with the procedural
requirements for filing the application. Cf. Knight, 80 Hawaiʻi
23
Nor is there any concern that attorneys would falsely accept
responsibility for filing an untimely certiorari application as doing so
would violate the HRPC, render an attorney subject to disciplinary action,
and affect the counsel’s professional reputation. See HRPC Rule 3.3(a)(1)
(2014) (“A lawyer shall not knowingly . . . make a false statement of
material fact or law to a tribunal[.]”); HRPC Rule 8.4(c) (2014) (“It is
professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit or misrepresentation[.]”); HRPC Rule 8.4 cmt. [1]
(2014) (stating lawyers are subject to discipline for violating the HRPC).
24
For instance, in Villados, the defendant’s HRPP Rule 40 petition-
-based solely on the claim that counsel ineffectively failed to file an
application for certiorari review in the defendant’s initial appeal--was
subject to proceedings in both the circuit court and the ICA prior to
reaching this court. Villados, No. CAAP-XX-XXXXXXX.
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at 324, 909 P.2d at 1139 (declining to dismiss defendant’s
appeal in the interest of justice notwithstanding counsel’s
failure to timely file a notice of appeal). This authority to
proceed to the merits of an untimely application may be
exercised when it is necessary to prevent a violation of due
process or is in the interests of justice.25 See Aplaca, 96
Hawaiʻi at 23, 25 P.3d at 798 (“[F]ailure of [the defendant’s]
counsel to timely file the notice of appeal does not divest [the
defendant] of his right to appeal, and, therefore, in the
interests of justice, we decline to dismiss [the defendant’s]
appeal and retain jurisdiction over it.”).
5. The Circumstances of This Case Merit Consideration of Uchima’s
Application.
Turning to the present case, in the motion to accept,
counsel averred that he intended to file Uchima’s Application
for certiorari review and thought that he had done so, but
counsel later discovered that the Application had not been
25
Justice Nakayama’s dissent is mistaken that our decision
“attempts to derive a new right of a criminal defendant to appeal the ICA’s
judgment that does not exist,” dissent at 7, because our opinion only allows
a defendant’s application for writ of certiorari to proceed as if the
constitutional violation had not occurred. Our decision does not affect this
court’s ability to reject a certiorari application on its merits or dismiss
it as untimely. Instead, this opinion harmonizes and preserves the
constitutional right to the effective assistance of counsel on appeal and the
statutory right to petition this court for review of the ICA’s decision. Cf.
Pitts, 131 Hawaiʻi at 544 n.6, 319 P.3d at 463 n.6 (stating that the court’s
remand order “seeks only to place Pitts in the position he would have been in
had the constitutional violation never occurred” notwithstanding the deadline
to file a motion for new trial).
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properly filed. If the failure to timely file the Application
was the result of counsel’s error, then counsel’s “failure to
fulfill procedural requirements resulted in the loss of
[Uchima’s] right” to petition this court for review. Maddox,
141 Hawaiʻi at 205, 407 P.3d at 161. Even if the failure to
perfect Uchima’s Application was the result of computer system
error, counsel acknowledges that he did not receive an email
confirming that a case for Uchima’s Application was created.
Counsel thus omitted to confirm that Uchima’s Application was
successfully filed. See id. (“[W]e hold that when a defendant
is denied an appeal because of a failure or omission of defense
counsel, a defendant need not demonstrate any additional
possibility of impairment to establish that counsel was
ineffective . . . .”); Knight, 80 Hawaiʻi at 323, 909 P.2d at
1138 (declining to dismiss untimely notice of appeal when
counsel indicated that he prepared and signed a notice of appeal
but did not discover that it had not been filed until returning
from a business trip).
Hence, Uchima did not receive effective assistance of
counsel with regard to the timely filing of his Application.
Although Uchima may assert an ineffectiveness assistance claim
through the initiation of an HRPP Rule 40 proceeding, the record
is clear that Uchima’s counsel intended to file the Application
and that but for counsel’s error or omission the Application
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would have been timely filed. This court has previously ruled
on ineffective assistance claims without requiring a post-
conviction proceeding when the ineffective assistance of counsel
was plain from the record. See, e.g., Pacheco, 96 Hawaiʻi at
102, 26 P.3d at 591 (holding that the record on appeal
conclusively established that counsel was ineffective); Aplaca,
74 Haw. at 72, 837 P.2d at 1307-08 (concluding counsel provided
ineffective assistance based on a review of the record).
Requiring Uchima to proceed with an HRPP Rule 40 petition under
the facts of this case would only unnecessarily prolong final
determination of Uchima’s appeal and result in an inefficient
use of judicial resources. Silva, 75 Haw. at 438-39, 864 P.2d
at 592 (“[I]n some instances, the ineffective assistance of
counsel may be so obvious from the record that [an HRPP] Rule 40
proceeding would serve no purpose except to delay the inevitable
and expend resources unnecessarily.”).
Therefore, to avoid the due process violation that
would otherwise occur in this case, we decline to dismiss
Uchima’s Application “[i]n the interest of justice” and thus
proceed to consider its merits. Knight, 80 Hawaiʻi at 324, 909
P.2d at 1139 (holding that it was in the “interest of justice”
to address the merits of the defendant’s appeal notwithstanding
the untimely filing of the notice of appeal).
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B. The ICA Did Not Err in Affirming the District Court’s
Judgment.
In his application, Uchima presents two questions for
review: (1) whether the ICA gravely erred in affirming the
district court’s denial of Uchima’s motion to suppress his
answers to the medical rule-out questions and his verbal
statements and non-verbal communicative actions on the FST; and
(2) whether the ICA gravely erred in holding that there was
substantial evidence to support his conviction.
1. Tsujimura Is Not Applicable to the Facts of This Case.
Uchima first contends that he had a pre-arrest right
to remain silent pursuant to State v. Tsujimura, 140 Hawaiʻi 299,
400 P.3d 500 (2017), that his verbal and non-verbal responses
were obtained in violation of this right, and that his responses
should therefore have been suppressed.
In Tsujimura, the defendant was charged by complaint
with OVUII. 140 Hawaiʻi at 302, 400 P.3d at 503. At trial, an
HPD officer testified that the defendant, prior to undergoing an
FST, stated that he had an old injury to his left knee. Id. at
303, 400 P.3d at 504. The State on redirect examination asked
the officer whether the defendant had explained while exiting
the car that he could not get out of the car because of a
previous leg injury. Id. at 304-05, 400 P.3d at 505-06. Over
defense counsel’s repeated objections, the officer responded
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that “[n]o statements were made.” Id. at 305, 400 P.3d at 506
(emphasis omitted). We held that the information regarding the
defendant’s pre-arrest silence was improperly admitted into
evidence as it violated the defendant’s right against self-
incrimination and was used as substantive proof of guilt. Id.
at 316-17, 400 P.3d at 517-18.
By contrast, this case does not involve the use of
Uchima’s silence against him. Here, Officer Townsend asked
Uchima questions, and Uchima provided responses. For example,
when asked whether he would participate in the FST, Uchima
consented and exited his vehicle. In addition, the State did
not seek to introduce and use evidence of Uchima’s silence
against him at trial. Thus, Tsujimura is not applicable to the
facts of this case.
2. The ICA Did Not Err in Affirming the District Court’s Ruling
on Uchima’s Motion to Suppress.
Uchima argues that he was subjected to custodial
interrogation and, because he was not given Miranda warnings,
his responses to Officer Townsend and the officer’s description
of his physical actions during the FST should have been
suppressed. Uchima also argues that the medical rule-out
questions were incriminating because they served to “rule in” a
direct cause of impairment or “rule out” any explanation other
than intoxication for deviations in a subject’s FST performance.
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Hence, Uchima contends that Officer Townsend’s testimony as to
his responses and performance during the FST must be suppressed
as the “fruit of the poisonous tree of the preceding
illegalities.”
Under the Fifth Amendment to the United States
Constitution and article I, section 10 of the Hawaiʻi
Constitution, a person in a criminal case cannot be compelled to
be a witness against oneself. This court has long held that
article I, section 10 of the Hawaiʻi Constitution provides an
independent source for the protections which the United States
Supreme Court enumerated in Miranda. State v. Kazanas, 138
Hawaiʻi 23, 34, 375 P.3d 1261, 1272 (2016); see State v.
Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971). Thus,
as a matter of state constitutional law, statements stemming
from custodial interrogation may not be used by the State unless
it “first demonstrate[s] the use of procedural safeguards
effective to secure the privilege against self-incrimination.”
Kazanas, 138 Hawaiʻi at 34, 375 P.3d at 1272 (quoting State v.
Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-84 (1985)).
“A critical safeguard is the Miranda warning[.]” Id.Our caselaw has stated that “[t]wo criteria are required before
Miranda rights must be given: (1) the defendant must be under
interrogation; and (2) the defendant must be in custody.” State
v. Kauhi, 86 Hawaiʻi 195, 204, 948 P.2d 1036, 1045 (1997)
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(quoting State v. Blanding, 69 Haw. 583, 586, 752 P.2d 99, 100
(1988)).
We have previously stated that “[i]nterrogation
encompasses not only express questioning, but also any words or
actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the
suspect.” State v. Trinque, 140 Hawaiʻi 269, 277, 400 P.3d 470,
478 (2017) (alterations and internal quotations omitted)
(quoting State v. Joseph, 109 Hawaiʻi 482, 495, 128 P.3d 795, 808
(2006)).
Here, Officer Townsend asked Uchima whether he would
participate in an FST, whether he understood the instructions of
the individual tests, and whether he had any questions. These
preliminary questions were not reasonably likely to lead to
incriminating responses because neither an affirmative or
negative response to these questions is incriminating. Rather,
the questions allow the officer to determine whether Uchima was
willing to undergo the FST and whether he understood the
officer’s instructions prior to performing the three tests
comprising the FST. Thus, these questions were not of such
nature that Officer Townsend should have known that they were
likely to elicit an incriminating response.
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With respect to the medical rule-out questions asked
by Officer Townsend and whether Uchima’s responses to these
questions should have been suppressed, the district court
specifically ruled at the conclusion of the suppression hearing
that the answers to the medical rule-out questions “would have
no probative value, no inculpatory or exculpatory value” in the
trial part of the proceeding. Thus, in essence, the district
court granted the defense’s motion to suppress as to the medical
rule-out questions when it determined that Uchima’s responses to
these questions would have no inculpatory or exculpatory value.
Uchima therefore can show no prejudice from Officer Townsend’s
testimony as to his responses to the medical rule-out questions.
Uchima’s performance on the FST does not constitute
incriminating statements. “[T]he privilege [against self-
incrimination] is a bar against compelling ‘communications’ or
‘testimony[.]’” State v. Wyatt, 67 Haw. 293, 303, 687 P.2d 544,
551 (1984) (quoting Schmerber v. California, 384 U.S. 757, 763-
64 (1966)). In Wyatt, this court held that when conducting an
FST the State does not seek “communications” or “testimony,” but
rather, “an exhibition of ‘physical characteristics of
coordination.’” Id. (quoting State v. Arsenault, 336 A.2d 244,
247 (N.H. 1975)). Here, Officer Townsend did not seek
“communications” or “testimony” from Uchima. Rather, in
conducting the FST, the officer sought “an exhibition of
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‘physical characteristics of coordination.’” Id.“Consequently, the field sobriety test was not rendered infirm
by the constitutionally guaranteed privilege against compulsory
self-incrimination.”26 Id.In sum, neither the questions asked by the officer
prior to and during the administration of the FST nor Uchima’s
performance on the FST constituted an interrogation requiring
Miranda warnings. Nor did Uchima suffer any prejudice from the
testimony of his answers to the medical rule-out questions as
the court accorded no evidentiary value to his responses to the
questions. The ICA therefore did not err in affirming the
denial of Uchima’s motion to suppress.27
3. There Was Substantial Evidence To Support Uchima’s Conviction.
Uchima was convicted of OVUII in violation of HRS
§ 291E-61(a)(1). Under HRS § 291E-61(a)(1),
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental
26
Uchima indicates in a footnote of his Application that the United
States Supreme Court, in Pennsylvania v. Muniz, noted that the officer’s
request in that case to count aloud during two tests of the FST were
“exceptions” to the Court’s rule concerning “carefully scripted
instructions.” (Citing 496 U.S. 582, 603 n.17 (1990).) As in that case,
Uchima does not argue that his failure to count during the walk-and-turn test
had any independent incriminating significance. See id. We therefore do not
further address this issue.
27
In light of our analysis, it is unnecessary to address whether
Uchima was in custody for purposes of requiring Miranda warnings.
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faculties or ability to care for the person and guard
against casualty[.]
In this case, Officer Townsend testified that he saw
Uchima’s vehicle crossing over the broken white lines on
Beretania Street for approximately 30 to 40 yards. The officer
testified that after approaching the vehicle following the
traffic stop, there was an odor of alcohol emitting from Uchima
and that Uchima had slurred speech, red and watery eyes, and
flushed skin. When Uchima exited his vehicle, Officer Townsend
testified, Uchima was “unsteady on his feet” and had to use his
hand to lean against the vehicle as support to keep his balance.
In addition, Officer Townsend’s testimony indicated
that Uchima demonstrated multiple clues suggesting intoxication
on each of the three tests administered, including the
following: on the horizontal nystagmus test--not keeping his
head still while following Officer Townsend’s pen with his eyes;
on the walk-and-turn test--pausing and missing his heel-to-toe
steps during the first nine steps, stepping off line on each
step, and raising his hands to keep balance; and on the one-leg
stand test--swaying in all directions, showing difficulty in
balancing, and putting his foot down and hopping at different
points during the test.
Viewing the evidence in the light most favorable to
the State, there was substantial evidence to support Uchima’s
conviction of OVUII under HRS § 291E-61(a)(1).
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V. CONCLUSION
Based on the foregoing, the ICA’s March 19, 2018 judgment
on appeal is affirmed.
Alen M. Kaneshiro /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Brian R. Vincent /s/ Michael D. Wilson
for respondent
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