State v. Hernandez.

***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
21-DEC-2018
08:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
PIERRE HERNANDEZ,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX)
DECEMBER 21, 2018
McKENNA, POLLACK, and WILSON, JJ.,
WITH NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM
RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
In this appeal, Pierre Hernandez challenges the
validity of his no contest plea and the sentence imposed, both
of which occurred after the trial court found that Hernandez had
waived his presence at the court proceeding by the filing of a
document signed by Hernandez and a declaration by his counsel.
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
We first conclude that Hernandez’s challenge to his sentence was
not precluded by his plea of no contest. We also hold that
Hernandez’s right of allocution, which is protected by the
Hawaii Revised Statutes and the Hawaii Constitution, was
violated when the district court did not afford him the
opportunity to be heard prior to being sentenced. Lastly, we
conclude that the district court’s acceptance of Hernandez’s no
contest plea without an on-the-record colloquy was plain error.
We thus vacate Hernandez’s conviction and remand the case to the
district court for further proceedings consistent with this
opinion.
I. FACTS AND PROCEDURAL HISTORY
On November 6, 2014, the State of Hawaii charged
Pierre Hernandez by complaint in the District Court of the First
Circuit (district court) with harassment by stalking in
violation of Hawaii Revised Statutes (HRS) § 711-1106.5.1
1
HRS § 711-1106.5 (1993 & Supp. 2013) provides the following:
(1) A person commits the offense of harassment by stalking
if, with intent to harass, annoy, or alarm another person,
or in reckless disregard of the risk thereof, that person
engages in a course of conduct involving pursuit,
surveillance, or nonconsensual contact upon the other
person on more than one occasion without legitimate
purpose.
(2) A person convicted under this section may be required
to undergo a counseling program as ordered by the court.
(continued . . .)
2
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
On January 6, 2015, Hernandez through counsel filed a
“Rule 43 Plea by Mail” (“plea by mail document” or “the
document”) pursuant to Rule 43 of the Hawaii Rules of Penal
Procedure (HRPP).2 The document indicated that Hernandez was
(. . . continued)
(3) For purposes of this section, “nonconsensual contact”
means any contact that occurs without that individual’s
consent or in disregard of that person’s express desire
that the contact be avoided or discontinued. Nonconsensual
contact includes direct personal visual or oral contact and
contact via telephone, facsimile, or any form of electronic
communication, as defined in section 711-1111(2), including
electronic mail transmission.
(4) Harassment by stalking is a misdemeanor.
2
HRPP Rule 43 (2012) provides in relevant part as follows:
(a) Presence required. The defendant shall be present at
the arraignment, at the time of the plea, at evidentiary
pretrial hearings, at every stage of the trial including
the impaneling of the jury and the return of the verdict,
and at the imposition of sentence, except as otherwise
provided by this Rule.
. . . .
(d) Presence may be waived for non-felony offenses. In
prosecutions for offenses other than a felony, the court
may:
. . . .
(2) conduct an arraignment in the defendant’s absence, if
the defendant’s residence is out-of-state or on another
island, the defendant consents in writing, and a plea of
guilty or no contest is
(A) accepted and sentence is imposed; or
(B) offered and acceptance is deferred. Except for
the requirement of addressing the defendant
personally in open court, the court shall otherwise
comply with the requirements of Rule 11 and Rule 32
of these Rules.
3
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
pleading no contest to the charged offense of harassment by
stalking. It also stated that Hernandez understood that (1) he
had the right to be present at various proceedings, including
arraignment, the entry of plea, and sentencing; (2) he was
voluntarily waiving his right to be present at these proceedings
and to be questioned in open court; and (3) he was authorizing
his lawyer to represent him at the proceedings.
In addition, the plea by mail document stated that
Hernandez was consenting to the court’s imposition of a sentence
in his absence and that he understood “that non-compliance with
the court’s judgment or order will result in the issuance of a
bench warrant, subjecting [him] to being arrested and having to
appear in court.” Further, the document included a declaration
by counsel, stating that Hernandez represented to him that he
did not wish to be present and wished for the proceedings to be
conducted in his absence; that counsel read and explained the
plea by mail document to Hernandez; and that the statements in
the document were consistent with counsel’s understanding of
Hernandez’s position.3
3
The plea by mail document also contained language conforming to
many of the requirements set forth in HRPP Rule 11. The document stated that
Hernandez understood the following: the charge against him; that he was
giving up the right to a trial by jury or the court; the maximum penalty,
which the document states was one year in jail and a fine of $2,000; and the
potential effect of a conviction on the immigration and naturalization rights
of non-U.S. citizens. However, the document did not describe the conduct
underlying the charge or that Hernandez understood that he had the right to
(continued . . .)
4
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
At a hearing on January 7, 2015,4 counsel for Hernandez
indicated that Hernandez, who was not present, was residing in
another state and had requested deferred acceptance of his no
contest plea. The district court stated that it was in receipt
of the plea by mail document submitted by counsel that indicated
Hernandez had completed twelve years of education, was aware of
the charge against him, and understood his possible defenses, as
well as the maximum possible penalties and any potential
citizenship issues a conviction might raise. Although Hernandez
was not physically present and there was no established
communication with him at the hearing, the court accepted the no
contest plea, ruling that the plea was made knowingly,
intelligently, and voluntarily. The court further concluded
that Hernandez knowingly, intelligently, and voluntarily waived
his right to a jury trial based on a waiver of jury trial form
also submitted by defense counsel. The court then found
Hernandez guilty as charged and proceeded to sentencing.
Before the court imposed sentence, the complainant
provided a statement to the court in which she objected to the
(. . . continued)
plead not guilty, as required by HRPP Rule 11(c). The document also made no
reference to Hernandez’s right to allocution prior to sentencing.
4
The Honorable Lono J. Lee presided.
5
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
granting of a deferral and stated, inter alia, that another
complainant had filed a restraining order against Hernandez and
that the court should impose jail time. The court thereupon
denied Hernandez’s motion for deferral of acceptance of the no
contest plea and restated that Hernandez had signed all the
waiver documents; that his no contest plea was made knowingly,
intelligently, and voluntarily; and that the court had found him
guilty. The district court sentenced Hernandez to a
probationary term of eighteen months conditioned on Hernandez
serving thirty days in jail and two hundred hours of community
service and also imposed fees totaling $130. The court stated
that, if Hernandez was not returning to Hawaii, a mittimus was
to issue forthwith. After counsel for Hernandez indicated that
he would send the paperwork to Hernandez and inform him that the
court was ordering him to appear on February 9, 2015, the court
delayed the mittimus until that date.5
Hernandez appealed to the Intermediate Court of
Appeals (ICA) from the district court’s judgment entered on
January 7, 2015,6 “and all trial and pre-trial motions filed or
made by Defendant, that were denied by the Court.”7
5
On February 9, 2015, the court continued the stay of the mittimus
pending appeal.
6
On the same day he filed the notice of appeal to the ICA, counsel
for Hernandez filed a motion to withdraw as counsel, in which he stated that
(continued . . .)
6
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
II. ICA PROCEEDINGS
In his opening brief, Hernandez argued that the
district court committed plain error when it violated his
constitutional and statutory right of allocution, which he had
not waived, by failing to give him an opportunity to make a
statement prior to being sentenced. This court, Hernandez
contended, has previously questioned whether the denial of
presentence allocution constitutes harmless error and has stated
that the remedy under such circumstances is a remand for
resentencing. In addition, Hernandez asserted that the district
court did not personally address him, whereas the complainant
was permitted to provide a lengthy statement, which included an
objection to a possible deferral, an entreaty to impose jail
time, and a reference to a separate restraining order against
Hernandez. Hernandez concluded that the denial of his right to
(. . . continued)
his agreement with Hernandez ended at sentencing and that he filed the notice
of appeal to preserve Hernandez’s right to appeal because of the impending
expiration of the thirty-day deadline for filing the appeal. The district
court granted the motion on February 9, 2015, and referred Hernandez to the
Office of the Public Defender, which filed a notice of appearance on April
23, 2015.
7
Although the quoted language appears in the notice of appeal, the
record indicates that there were no “trial and pre-trial motions” by
Hernandez other than the motion for deferred acceptance of the no contest
plea.
7
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
allocution deprived him of his constitutional right to due
process under article I, section 5 of the Hawaii Constitution.8
In its answering brief, the State argued that the ICA
lacked appellate jurisdiction because Hernandez asserted
nonjurisdictional claims, which were precluded by the entry of
an intelligent and voluntary guilty plea. Because Hernandez did
not file a motion to withdraw his plea and his plea was not made
on the condition that he may appeal certain rulings, the State
submitted that the case should be dismissed.
Alternatively, the State contended that Hernandez’s no
contest plea complied with HRPP Rule 11, adding that the
district court ensured that his plea was voluntary and not the
product of threats or promises. As to Hernandez’s argument
regarding his right of allocution, the State maintained that
HRPP Rule 43(d)(2) does not require the court to address the
defendant, and in any event, Hernandez voluntarily waived his
right to be present at all proceedings, including sentencing,
authorized his counsel to represent him at sentencing, and
waived his right to be questioned in open court. Thus, the
8
Hernandez also argued that the district court committed plain
error when it accepted his no contest plea without administering the
advisement concerning alien status prior to the entry of a plea of nolo
contendere pursuant to HRS § 802E-2. Inasmuch as this argument is not raised
on certiorari, it is not further addressed.
8
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
State argued, Hernandez’s no contest plea was valid under HRPP
Rule 32 (2012).9
In his reply, Hernandez contended that the State’s
argument regarding jurisdiction lacked merit because an
appellate court may review an invalid no contest plea under
plain error, as in this case. Although his counsel informed the
court that he would enter a no contest plea, Hernandez asserted,
“it was nonetheless incumbent on the court to address the
defendant personally.” Hernandez maintained that the court in
accepting a guilty plea cannot rely solely on counsel’s presence
and representations, concluding that an on-the-record colloquy
was, at a minimum, required to show that he had full
understanding of the no contest plea and its consequences.
On March 17, 2017, the ICA entered a summary
disposition order affirming the district court’s judgment.10 The
ICA rejected Hernandez’s contention that the district court
plainly erred by not personally addressing him regarding his
9
HRPP Rule 32(a) provides in relevant part as follows:
After adjudication of guilt, sentence shall be imposed
without unreasonable delay. Pending sentence, the court
may commit the defendant or continue or alter bail, subject
to applicable provisions of law. Before suspending or
imposing sentence, the court shall address the defendant
personally and afford a fair opportunity to the defendant
and defendant’s counsel, if any, to make a statement and
present any information in mitigation of punishment.
10
The ICA’s summary disposition order can be found at State v.
Hernandez, NO. CAAP-XX-XXXXXXX, 2017 WL 1034487 (Haw. App. Mar. 17, 2017).
9
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
right of allocution prior to imposing sentence. The ICA
concluded that Hernandez’s claims were not jurisdictional, that
he did not file a motion to withdraw his no contest plea, and
that his plea was not conditional. The ICA thus concluded that
Hernandez was “precluded from ‘later asserting any
nonjurisdictional claims [to his no contest plea], including
constitutional challenges to the pretrial proceedings.’”
(Quoting State v. Morin, 71 Haw. 159, 162-63, 785 P.2d 1316,
1318-19 (1990).)
III. STANDARD OF REVIEW
We review questions of law under the right/wrong
standard. State v. Gomez-Lobato, 130 Hawaii 465, 469, 312 P.3d
897, 901 (2013) (citing State v. Friedman, 93 Hawaii 63, 67, 996
P.2d 268, 272 (2000)).
IV. DISCUSSION
On certiorari, Hernandez presents two questions for
review: (1) whether the ICA erred in rejecting his appeal of the
district court’s denial of his right of allocution at sentencing
on the basis that the challenge was precluded by his no contest
plea and (2) whether the district court plainly erred in
accepting his no contest plea when it was not made knowingly,
intelligently, and voluntarily. The first question consists of
two subparts: (a) whether Hernandez was barred from challenging
the manner in which his sentence was imposed because he pleaded
10
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
no contest to the charge and (b) whether the district court’s
failure to personally address Hernandez prior to imposing
sentence violated his right of allocution. We consider these
issues below.
A. Hernandez’s Challenge to the Legality of His Sentence
1. The ICA Erred in Rejecting Hernandez’s Claim on the Basis
that It Was Nonjurisdictional.
Hernandez contends that the ICA erred in concluding
that he was barred from asserting that the district court
deprived him of his right of allocution because it was a
nonjurisdictional claim. Hernandez reasons that allocution
arises during sentencing--after the plea has been accepted--and
Hawaii courts have distinguished between challenges made to
events that occur before the plea and those that occur after the
plea.
We have held that “[g]enerally, a guilty plea made
voluntarily and intelligently precludes a defendant from later
asserting any nonjurisdictional claims, including constitutional
challenges to the pretrial proceedings.” State v. Morin, 71
Haw. 159, 162, 785 P.2d 1316, 1318 (1990) (citing Brady v.
United States, 397 U.S. 742 (1970)). A no contest plea is
equivalent to a guilty plea in terms of waiving alleged
nonjurisdictional claims. Id.
11
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Pretrial nonjurisdictional defects--such as unlawfully
obtained evidence and illegal detention by law enforcement--are
pretrial errors that do not deprive a trial court of its legal
authority to hear and decide a case, and challenges to such
errors generally will not survive a validly entered plea of
guilty or nolo contendere. See Schwartz v. State, 136 Hawaii
258, 281, 361 P.3d 1161, 1184 (2015); Morin, 71 Haw. at 162, 785
P.2d at 1318. In State v. Morin, for example, the defendants
were charged with various drug and firearm-related offenses. 71
Haw. at 160, 785 P.2d at 1317. The defendants filed a motion to
suppress all evidence obtained by law enforcement. Id. at 161,
785 P.2d at 1318. Following the district court’s denial of the
motion to suppress, the defendants entered no contest pleas in
exchange for a reduction and dismissal of charges against them.
Id. On appeal, the defendants challenged the district court’s
denial of their motion to suppress; they did not challenge the
validity of their no contest pleas. Id. at 162, 785 P.2d at
1318. This court held that the defendants’ pleas precluded them
from challenging any nonjurisdictional issues. Id. at 163, 785
P.2d at 1319. We stated,
To allow the Defendants to plead no contest in exchange for
the reduction and dismissal of charges against them, and
then to permit them to attack the remaining convictions
achieved by those pleas, where those pleas were not
conditioned upon the right to appeal, would jeopardize the
integrity of the plea bargaining process.
12
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Id. Thus, based on Morin, a defendant who validly pleads guilty
or no contest to a charged offense is generally barred from
raising nonjurisdictional claims related to pretrial proceedings
when the plea is not expressly conditioned upon the right to
appeal specific rulings. Id. at 162, 785 P.2d at 1319. But
Morin’s holding applies to only pretrial errors occurring before
the valid entry of a plea, and--unless a sentencing agreement
establishes the details of the defendant’s sentence before the
plea is entered--it does not extend to matters related to
sentencing. See State v. Dudoit, 90 Hawaii 262, 265 n.2, 978
P.2d 700, 703 n.2 (1999).
This court has in fact expressly stated that, absent a
prior sentencing agreement between the defendant and the State,
a defendant is not barred by a guilty or no contest plea from
raising nonjurisdictional claims related to sentencing on
appeal. In State v. Dudoit, the defendant pleaded no contest to
two counts of abuse of a family or household member. Id. at
264-65, 978 P.2d at 702-03. After accepting the defendant’s no
contest pleas, the family court proceeded to sentencing, at
which the parties disputed the applicability of a statutory
repeat offender provision. Id. at 265, 978 P.2d at 703. The
family court concluded that the provision did apply and
sentenced the defendant accordingly. Id.
13
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
On appeal, the defendant solely challenged his
sentence. Id. at 263, 978 P.2d at 701. This court found that
there was no indication in the record that the defendant agreed
upon the sentence to be imposed. Id. at 265 n.2, 978 P.2d at
703 n.2. We stated that a “sentence is determined after a plea
is accepted, and (absent a prior agreement between the parties)
a defendant cannot know what sentence will be imposed.” Id. We
thus held that the defendant’s no contest pleas did not preclude
him from challenging his sentence, and we therefore considered
the merits of the defendant’s appeal. Id. at 265 n.2, 267-75,
978 P.2d at 703 n.2, 705-13; see also State v. Rauch, 94 Hawaii
315, 323, 13 P.3d 324, 332 (2000) (holding that the defendant’s
challenge to the legality of her sentence was not foreclosed by
a no contest plea).
In concluding that Hernandez’s claims were barred by
his no contest plea, the ICA determined that Hernandez did not
file a motion to withdraw his plea and that the “no contest plea
was not conditional.” As stated, however, a defendant’s
challenge to the legality of a sentence, including the manner in
which the sentence was imposed, is not barred by a guilty or no
contest plea absent a prior sentencing agreement between the
defendant and the State. The record in this case lacks any
indication that Hernandez entered into an agreement with the
State as to the sentence to be imposed. Rather, the plea by
14
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
mail document stated only that Hernandez was waiving his right
to be present at sentencing and to be questioned in open court.
Thus, Hernandez was not required to file a motion to withdraw
his plea in order to assert nonjurisdictional claims related to
sentencing on appeal. See Rauch, 94 Hawaii at 323, 13 P.3d at
332 (considering the merits of an appeal of sentence without
regard to whether the defendant had filed a motion to withdraw a
no contest plea); Dudoit, 90 Hawaii at 265-75, 978 P.2d at 703-
13 (same).
Further, the ICA’s alternative ground for concluding
that it lacked jurisdiction to consider the appeal in this case-
-that Hernandez’s no contest plea was not conditional--is
inapposite. A conditional plea is employed when the defendant
seeks to challenge on appeal a ruling involving a pretrial
motion, which is a circumstance that is not present in this
case. HRPP Rule 11(a)(2) (2014) states in relevant part, “With
the approval of the court and the consent of the State, a
defendant may enter a conditional plea of guilty or no contest,
reserving in writing the right, on appeal from the judgment, to
seek review of the adverse determination of any specific
pretrial motion.” (Emphases added.) Hernandez does not seek
review of an “adverse determination of any specific pretrial
motion,” but rather, the manner in which his sentence was
15
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
imposed following the district court’s acceptance of his no
contest plea.
Consequently, the ICA erred in concluding that
Hernandez’s assertion of nonjurisdictional claims regarding his
sentencing on appeal was barred by his no contest plea.
2. The District Court Erred in Denying Hernandez the Right of
Allocution.
HRPP Rule 43(d)(2)(A) (2012) permits a court to
conduct an arraignment in the absence of a defendant who pleads
guilty or no contest to non-felony offenses if the defendant
resides out of state or on another island, the defendant
consents in writing, and the plea is accepted and sentence is
imposed. Under such circumstances, the penal rule allows a
court to dispense with the requirement of addressing the
defendant personally in open court. See HRPP Rule 43(d)(2)(B)
(cross-referencing HRPP Rule 32(a) (2012)). On certiorari,
Hernandez contends that, while he waived his right to be present
at sentencing, he did not waive his right of allocution and was
denied this right when he was not afforded an opportunity to
speak prior to the imposition of sentence.
“Allocution is ‘the defendant’s right to speak before
sentence is imposed[.]’” State v. Chow, 77 Hawaii 241, 246, 883
P.2d 663, 668 (App. 1994) (alteration in original) (quoting R.
Dawson, Sentencing 52 n.83 (1969)). We have stated that
16
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
allocution is a due process right guaranteed under article I,
section 5 of the Hawaii Constitution.11 State v. Davia, 87
Hawaii 249, 255, 953 P.2d 1347, 1353 (1998) (citing Chow, 77
Hawaii at 246-47, 883 P.2d at 668-69). In addition, HRS § 706-
604(1) (2014) provides, “Before imposing sentence, the court
shall afford a fair opportunity to the defendant to be heard on
the issue of the defendant’s disposition.” (Emphasis added.)
Similarly, HRPP Rule 32(a) requires that the court, prior to
imposing sentence, “address the defendant personally and afford
a fair opportunity to the defendant and defendant’s counsel, if
any, to make a statement and present any information in
mitigation of punishment.” (Emphases added.)
It is undisputed that, after accepting Hernandez’s no
contest plea and finding him guilty, the district court in this
case did not address Hernandez personally and afford him an
opportunity to make a statement and present information in
mitigation of punishment before proceeding to sentencing. The
court heard from the complainant, reiterated that it had already
found Hernandez guilty, and imposed sentence. In its answering
11
Article I, section 5 of the Hawaii Constitution provides as
follows: “No person shall be deprived of life, liberty or property without
due process of law, nor be denied the equal protection of the laws, nor be
denied the enjoyment of the person’s civil rights or be discriminated against
in the exercise thereof because of race, religion, sex or ancestry.”
17
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
brief, however, the State contended that the court was not
required to address Hernandez personally because he had waived
his right to be present at sentencing pursuant to HRPP Rule 43.
While HRPP Rule 43 permits a defendant who pleads
guilty or no contest to non-felony offenses to waive the right
to be present at sentencing and allows the court to forego the
requirement of HRPP Rule 32(a) that it personally address the
defendant,12 nothing in the plea by mail document signed by
Hernandez evinces that he was informed or otherwise knew of his
right of allocution. “A waiver is ordinarily an intentional
relinquishment or abandonment of a known right or privilege.”
Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577, 583 (1976)
(emphasis added) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)); accord State v. Friedman, 93 Hawaii 63, 68, 996 P.2d
268, 273 (2000) (“A waiver is the knowing, intelligent, and
voluntary relinquishment of a known right.” (emphasis added));
State v. Barros, 105 Hawaii 160, 168, 95 P.3d 14, 22 (App. 2004)
(same). Because the record lacks any indication that Hernandez
knew of his “right to speak before sentence is imposed,” Chow,
77 Hawaii at 246, 883 P.2d at 668 (quoting Dawson, supra, at 52
12
As previously set forth, HRPP Rule 43(d)(2)(B) provides in
relevant part as follows: “Except for the requirement of addressing the
defendant personally in open court, the court shall otherwise comply with the
requirements of Rule 11 and Rule 32 of these Rules.”
18
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
n.83), it follows then that Hernandez could not have waived this
right.13
But even if HRPP Rule 43 is deemed to have excused the
court from the allocution requirement of HRPP Rule 32(a), HRS §
706-604(1) separately requires that the court afford the
defendant an opportunity to be heard prior to sentencing.14 As
noted, HRS § 706-604(1) states, “Before imposing sentence, the
court shall afford a fair opportunity to the defendant to be
13
Citing various portions of the plea by mail document purporting
to be waivers of Hernandez’s right to be present and right to be questioned
in open court, the dissent argues that Hernandez knowingly relinquished his
right “to engage with the court in-person at both sentencing and plea-entry,”
which it views as encompassing the right to allocution. Dissent at 15. But
the dissent identifies nothing in the record evincing that Hernandez
understood he would have been afforded the right to allocution if he were
present at sentencing, and it is axiomatic that Hernandez could not knowingly
waive a right he was unaware he possessed. See Friedman, 93 Hawai‘i at 68,
996 P.2d at 273 (“A waiver is the knowing, intelligent, and voluntary
relinquishment of a known right.” (emphasis added)). The dissent also points
to the declaration of Hernandez’s counsel stating that he (the counsel) had
explained the right to be present and the plea by mail document to Hernandez.
Yet this declaration, too, has no specific reference to the right of
allocution, and, as discussed infra, this court has stated that it will not
rely on the representations of counsel or speculate about the substance of
off-the-record, privileged communications to establish a knowing and
voluntary waiver. See State v. Ui, 142 Hawai‘i 287, 299, 418 P.3d 628, 640
(2018) (citing State v. Eduwensuyi, 141 Hawai‘i 328, 336, 409 P.3d 732, 740
(2018)). Thus, even were we to hold that a waiver of all rights related to
in-person engagement with the court could be accomplished through the
submission of a waiver document or other filing without any interaction
between the defendant and the court--which would be fundamentally at odds
with our longstanding precedents, see infra note 16 and Section IV.B--the
filings in this case would be facially inadequate to establish such a waiver.
14
It is self-evident that while a court rule may provide an
exception to another court rule, this exception would have no effect upon the
statutory or constitutional right of allocution. See In re Doe Children, 94
Hawaii 485, 486, 17 P.3d 217, 218 (2001) (stating that when there is a
conflict between a court rule and a statute, the statute is controlling).
19
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
heard on the issue of the defendant’s disposition.” (Emphasis
added.)
In addition to this statutory mandate, allocution is a
significant right to which the Hawaii Constitution affords
protection. We have stated that the right of allocution is
guaranteed under the due process clause of the Hawaii
Constitution. Davia, 87 Hawaii at 255, 953 P.2d at 1353 (citing
Chow, 77 Hawaii at 246-47, 883 P.2d at 668-69). That is, a
trial court is constitutionally required to accord a defendant
the right to be heard prior to imposing sentence. Id.; State v.
Carvalho, 90 Hawaii 280, 286, 978 P.2d 718, 724 (1999); Schutter
v. Soong, 76 Hawaii 187, 208, 873 P.2d 66, 87 (1994).
The importance of allocution is underscored by the
multiple purposes it serves. Allocution is the defendant’s
“opportunity to affect the totality of the trial court’s
sentencing determination.” Carvalho, 90 Hawaii at 286, 978 P.2d
at 724. “A prime reason for allowing a defendant the right of
allocution is to provide the defendant an opportunity to plead
for mitigation of the sentence.” Id. (internal quotation marks
omitted). “But allocution today serves purposes beyond that of
sentence mitigation.” Chow, 77 Hawaii at 250, 883 P.2d at 672.
Allocution allows a defendant to acknowledge wrongful
conduct, which is “the first step towards satisfying the
20
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
sentencing objective of rehabilitation.” Id. The opportunity
to speak prior to sentencing may also have a therapeutic effect
on the defendant. Id. Further, allocution is “a significant
aspect of the fair treatment which should be accorded a
defendant in the sentencing process.” Id.
Consistent with these purposes, Hawaii caselaw has
strongly protected a defendant’s right of allocution. In Davia,
the State conceded and this court held that the district court
erred in failing to accord the defendant his right of
allocution. 87 Hawaii at 255, 953 P.2d at 1353. The Davia
court concluded that, if the defendant “is again convicted on
remand, the district court should insure that he is afforded an
opportunity to speak prior to sentencing.” Id.
Additionally, in Carvalho, the circuit court denied
the defendant’s request for sentencing under the Youthful
Offender Act without granting him the right of allocution. 90
Hawaii at 282-83, 978 P.2d at 720-21. On appeal, this court
held that, because a court’s consideration of the Youthful
Offender Act is an aspect of sentencing, the circuit court
violated the defendant’s right of allocution when it denied him
a fair opportunity to be heard on the potential application of
the youthful offender statute. Id. at 286, 978 P.2d at 724.
21
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Further, in Chow, the district court sentenced the
defendant without first affording him the right to be heard. 77
Hawaii at 243, 246, 883 P.2d at 665, 668. The ICA held that
“the defendant must be given the opportunity to be heard before
the court imposes sentence.” Id. at 247, 883 P.2d at 669.
Ruling that the denial of allocution constitutes error, the ICA
vacated the defendant’s sentences and remanded the case for
resentencing before a different judge. Id. at 251, 883 P.2d at
673. Indeed, the ICA expressed doubt that a court’s error in
denying a defendant the opportunity to speak prior to imposing
sentence could ever be harmless. Id.
Thus, a defendant has a right to be heard prior to
being sentenced, which “is constitutionally protected,
independent and apart from the mandates of statute . . . and
rule.” Id. at 246-47, 883 P.2d at 668-69. In this case, the
record lacks any indication that the court provided Hernandez
the opportunity to be heard prior to imposing sentence.15 Nor
does the record show that Hernandez made any waiver of his right
15
The fact that Hernandez was not physically present at sentencing
is of no consequence to the court’s duty to ensure that he is accorded the
right to be heard prior to the imposition of sentence. The availability of
real-time video communication may allow a defendant’s right of allocution at
sentencing in qualifying misdemeanor cases to be realized by means other than
physical presence. See HRPP Rule 43(e) (allowing for presence by video
conference).
22
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
of allocution voluntarily and with full understanding of the
consequences.
Consistent with the court’s constitutional obligation
to address the defendant as to the right of allocution, the
court has a duty to ensure that a defendant’s waiver of this
right is knowingly, intelligently, and voluntarily made. “It is
well settled in Hawaii law that a defendant relinquishes
fundamental rights only when a waiver is undertaken
intelligently, knowingly, and voluntarily.” State v. Ui, 142
Hawaii 287, 293, 418 P.3d 628, 634 (2018). “Reviewing courts
will not presume a defendant’s acquiescence in the loss of
fundamental rights on the basis of a silent record.”16 Id.
(citing Wong v. Among, 52 Haw. 420, 424, 477 P.2d 630, 633-34
(1970)).
In sum, because Hernandez was not provided the
opportunity to be heard, which is mandated by statute and the
Hawaii Constitution, and the record does not establish a
16
Because, as stated, the plea by mail document did not contain any
reference to Hernandez’s statutory and constitutional right of allocution, we
need not decide whether an effective waiver of the right may be established
through the submission of a waiver document or other filings without a
colloquy between the court and the defendant. As discussed infra, however, a
document that is filed without any direct interaction between the defendant
and the court is insufficient to establish a knowing, intelligent, and
voluntary waiver of a fundamental right under our precedents.
23
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
knowing, intelligent, and voluntary waiver of that opportunity,
his right of allocution was violated.17
B. The District Court’s Acceptance of Hernandez’s No Contest Plea
Without a Colloquy
This court will consider issues that have not been
preserved below and raised on appeal when necessary to serve the
ends of justice. State v. Ui, 142 Hawaii 287, 297, 418 P.3d
628, 638 (2018) (citing State v. Kahalewai, 56 Haw. 481, 491,
541 P.2d 1020, 1027 (1975)). In determining whether a lower
court’s plain error may be noticed, the relevant inquiry is
whether the error affected substantial rights. Id. (citing
State v. Miller, 122 Hawaii 92, 100, 223 P.3d 157, 165 (2010)).
Hernandez contends that the district court plainly erred in
accepting his no contest plea because it was not made knowingly,
voluntarily, and intelligently.18
17
The remedy for the denial of a defendant’s right of allocution is
resentencing. Chow, 77 Hawaii at 248, 883 P.2d at 670 (citing Schutter, 76
Hawaii at 208, 873 P.2d at 85). “For, if the right of allocution is
violated, it cannot be known whether the defendant would have said anything
that could have resulted in a different sentence.” Id. However, in light of
our disposition in this case, see infra, the remedy of resentencing is
unnecessary.
18
The dissent argues that we should not invoke plain error review
in this instance because it is a power to be used “sparingly and with
caution.” Dissent at 2 (quoting Miller, 122 Hawai‘i at 146, 223 P.3d at 211
(Nakayama, J., dissenting)). To the extent this is an argument that we
should not notice and correct errors affecting substantial rights, this court
has expressly rejected this position on multiple occasions. See Miller, 122
Hawai‘i at 117, 223 P.3d at 182 ("[T]he term ‘sparingly’ refers to the
limitation already in place in HRPP Rule 52(b) that the error must be one
‘affecting substantial rights.’ . . . [W]here plain error has been committed
(continued . . .)
24
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
HRPP Rule 43(d)(2) provides that a court need not
comply with the requirement in HRPP Rule 11 that it address the
defendant personally in open court when the defendant has waived
the right to be present at arraignment. On certiorari,
Hernandez contends that the district court erred in accepting
his no contest plea without ensuring that his plea was
knowingly, intelligently, and voluntarily made.19
It is well established “that a guilty plea ‘in itself
is a conviction and a simultaneous waiver of several important
(. . . continued)
and substantial rights have been affected thereby, the better part of
discretion is to invoke the plain error rule.” (some internal quotations and
alterations omitted) (quoting State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676
(1988)); Ui, 142 Hawai‘i at 298 n.19, 418 P.3d at 639 n.19 ("We reaffirm
Miller's holding that where plain error has been committed and substantial
rights have been affected thereby, the better part of discretion is to invoke
the plain error rule." (internal quotations omitted)); see also State v.
Nichols, 111 Hawai‘i 327, 335, 141 P.3d 974, 982 (2006) (holding that, where
the error is a failure to fulfill a constitutional duty placed upon the trial
court rather than the litigants, there is a “merger of the plain error and
harmless error standards of review”).
The dissent further contends that plain error review is
inappropriate because Hernandez has not specifically alleged that the trial
court’s error affected his substantial rights. Dissent at 11-12. But
Hernandez clearly argues in his application that “[t]he trial court plainly
erred in accepting Petitioner’s no contest plea as it was not knowingly,
voluntarily, and intelligently made.” (Emphasis added.) Hernandez thus
alleges that he was deprived of substantial rights, including the right to a
fair trial and all the constituent rights that a fair trial encompasses,
because he was convicted without validly waiving any of these rights. A
formalistic recitation of the phrase “substantial rights” is not required.
19
Although this argument was raised in the reply brief and is made
on certiorari to this court, it was not asserted in the opening brief to the
ICA. Nonetheless, because we conclude that the district court’s acceptance
of the no contest plea violated substantial rights of Hernandez, we need not
address whether the issue was otherwise adequately preserved.
25
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
constitutional guarantees[,]’ namely, the privilege against
compulsory self-incrimination, the right to a trial by jury, and
the right to confront one’s accusers.” State v. Solomon, 107
Hawaii 117, 127, 111 P.3d 12, 22 (2005) (alteration in original)
(quoting Wong v. Among, 52 Haw. 420, 425, 477 P.2d 630, 634
(1970)). Additional constitutional guarantees waived by a
guilty plea include the right to testify and the right to have
each element of the charged offense proven beyond a reasonable
doubt. See Tachibana v. State, 79 Hawaii 226, 231-32, 900 P.2d
1293, 1298-99 (1995); State v. Murray, 116 Hawaii 3, 10, 169
P.3d 955, 962 (2007). Thus, “the waiver of these guarantees ‘is
not constitutionally acceptable unless made voluntarily and with
full understanding of the consequences.’” Solomon, 107 Hawaii
at 127, 111 P.3d at 127 (quoting Wong, 52 Haw. at 425, 477 P.2d
at 634).
While HRPP Rule 43(d)(2) provides that the court need
not comply with the HRPP requirement of addressing the defendant
in open court when the defendant has waived the right to be
present at arraignment, our court rules must be construed to
conform with the dictates of our constitution when such an
interpretation is reasonably possible and to yield when there is
26
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
irreconcilable conflict.20 See Life of the Land, Inc. v. W.
Beach Dev. Corp., 63 Haw. 529, 531, 631 P.2d 588, 590 (1981);
supra note 14. We have stated that a trial court is
constitutionally obligated to ensure that a defendant’s guilty
plea is knowingly and voluntarily entered. State v. Williams,
68 Haw. 498, 499, 720 P.2d 1010, 1012 (1986). In determining
the voluntariness of a guilty plea, the trial court should, at a
minimum, “make an affirmative showing by an on-the-record
colloquy between the court and the defendant wherein the
defendant is shown to have a full understanding of what the plea
of guilty connotes and its consequences.” State v. Vaitogi, 59
Haw. 592, 601, 585 P.2d 1259, 1265 (1978). “Reviewing courts
will not presume a defendant’s acquiescence in the loss of
fundamental rights on the basis of a silent record.” Ui, 142
Hawaii at 293, 418 P.3d at 634 (citing Wong, 52 Haw. at 424, 477
P.2d at 633-34).
For example, in Williams, we held that the trial court
committed plain error when it accepted the defendant’s guilty
plea without informing the defendant of the penalties provided
by law or inquiring whether the defendant knew or understood the
20
By its own terms, HRPP Rule 43(d)(2) excuses the court from
complying with only the requirement of addressing the defendant in open court
established by HRPP Rule 11 (2014) and HRPP Rule 32. Thus, HRPP Rule
43(d)(2) does not--and indeed, could not--excuse the court from complying
with any obligations established by statute or the constitution.
27
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
penalties. 68 Haw. at 499, 720 P.2d at 1012. We stated that
the trial court violated its “constitutional obligation to
ensure that the guilty plea was voluntarily and knowingly
entered.” Id. Thus, we concluded the defendant’s guilty plea
and sentence were void and remanded the case for a new trial.
Id.
Similarly, in Solomon, the defendant asserted error in
the family court’s acceptance of his guilty plea without
establishing on the record that his plea was made knowingly and
voluntarily. 107 Hawaii at 127, 111 P.3d at 22. Although the
family court conducted a colloquy with the defendant, we held
that the colloquy was insufficient because the family court did
not inform the defendant that, by pleading guilty, he was giving
up “certain rights.” Id. at 128, 111 P.3d at 23. Thus, we
concluded that the defendant’s guilty plea was not made
knowingly, intelligently, and voluntarily. Id.
We have underscored the requirement of a colloquy
between the court and the defendant even where the penal rules
permit the defendant to waive fundamental rights. In State v.
Gomez-Lobato, the defendant submitted a waiver of jury trial
form. 130 Hawaii 465, 466-67, 312 P.3d 897, 898-99 (2013).
After the family court engaged in a brief conversation with the
defendant regarding the form, the court concluded that the
defendant knowingly, intelligently, and voluntarily waived his
28
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
right to a jury trial. Id. This court recognized that a
defendant is entitled under HRPP Rule 23(a) to waive the right
to a jury trial by oral or written consent. Id. at 469, 312
P.3d at 901. Nonetheless, we stated, the penal rule “does not
relieve the court of its obligation to ensure, through an
appropriate oral colloquy in court, that the waiver was
knowingly, intelligently, and voluntarily given.” Id. Because
the family court’s questions were not sufficient to establish a
valid waiver of the right to a jury trial, we concluded that the
family court erred in finding a knowing and voluntary waiver.
Id. at 471-73, 312 P.3d at 903-05.
Similarly, in State v. Baker, the defendant executed a
waiver of jury trial form, after which the family court engaged
in a brief exchange with the defendant. 132 Hawaii 1, 3-4, 319
P.3d 1009, 1011-12 (2014). On appeal, the defendant challenged
the family court’s colloquy as “woefully deficient.” Id. at 5,
319 P.3d at 1013. We stated that, “while the defendant may
execute a written waiver form, the court should also engage in
an appropriate oral colloquy with the defendant to establish
that the waiver was knowing, intelligent, and voluntary.” Id.
at 6, 319 P.3d at 1014. Finding that none of the family court’s
questions addressed the voluntariness of the defendant’s waiver,
we concluded that the family court failed to ensure that the
29
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
defendant’s waiver of the right to a jury trial was voluntary.
Id. at 7, 319 P.3d at 1015.
The deficiency of the process is more pronounced when,
as in this case, the waiver document is submitted without any
direct interaction between the defendant and the court. Here,
the court appeared to accept defense counsel’s representations
that Hernandez understood the charges against him and the rights
he was waiving by pleading no contest. But we have held that “a
court may not rely upon an off-the-record discussion between
counsel and a defendant to establish a valid waiver of a
constitutional right.” State v. Eduwensuyi, 141 Hawai‘i 328,
336, 409 P.3d 732, 740 (2018). Indeed, “[o]ur precedents do not
permit a reviewing court to infer that a fundamental right was
knowingly, voluntarily, and intelligently relinquished by a
defendant simply because defense counsel suggested that the
right was so waived.” Ui, 142 Hawai‘i at 299, 418 P.3d at 640.
The dissent nonetheless relies on the plea by mail
document and counsel’s representations in arguing that plain
error review is inappropriate when context suggests “a defendant
initiated a procedural maneuver for his benefit” because the
failure of the court to conduct a colloquy in such circumstances
does not affect a defendant’s substantial rights. Dissent at 8.
This approach calls for speculation regarding what a defendant
would have done had the requisite information been provided.
30
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Alternatively, it may be an indirect decision on the merits of
whether the waiver at issue was knowing, intelligent, and
voluntary, which appears to be applied as a plain error
standard. In either event, we squarely rejected this position
in State v. Ui, 142 Hawai‘i at 299, 418 P.3d at 640. Prior to
invoking our authority to correct plain errors, we held that
there is no strategic decision exception to the constitutional
colloquy requirement because, inter alia, evaluating whether the
exception applied would require conjecture regarding privileged
communications and because the exception would be wholly
unadministrable, as virtually any waiver can be characterized as
having strategic benefits. Id. at 294-96, 418 P.3d at 635-37.
This holds true regardless of whether the argued-for exception
is characterized as a plain error standard, Dissent at 8-9, or a
method of evaluating a purported waiver in the first instance.21
Dissent at 13-15.
Additionally, the dissent’s position is at odds with
firmly established precedent. This court has consistently
21
The dissent alternately argues that, under the invited error
doctrine, the omission of the required colloquy is not grounds for vacating
Herandez’s conviction. We have stated, however, that the “general rule” that
invited errors are not reversible “is inapplicable where an invited error is
so prejudicial as to be plain error.” Nichols, 111 Hawai‘i at 339 n.7, 141
P.3d at 986 n.7. In other words, errors that affect substantial rights such
that plain error review is appropriate are not subject to the invited error
doctrine, and we need not consider whether the doctrine would otherwise
apply.
31
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
declined to find a valid waiver of a fundamental right based on
a filing or representations by counsel when the trial court
failed to engage the defendant in an on-the-record colloquy, and
we have often expressly invoked plain error review to do so--
including specifically when a defendant has executed a written
waiver pursuant to an HRPP Rule ostensibly authorizing the
procedure.22 See Gomez-Lobato, 130 Hawai‘i at 469 n.4, 312 P.3d
at 901 n.4 (holding that it was plain error for trial court to
accept defendant’s written waiver of a jury trial without
engaging defendant in a colloquy despite HRPP Rule 23(a)
permitting a waiver to be in writing); see also, e.g., Ui, 142
Hawai‘i at 299, 418 P.3d at 640 (holding that it was plain error
22
Further, the dissent faults Hernandez for failing to challenge
the district court’s acceptance of his plea at the district court stage.
Dissent at 6, 10. Our precedents make clear, however, that it is the duty of
the trial court to perform a colloquy to ensure a defendant’s waiver of a
fundamental right is undertaken knowingly, intelligently, and voluntarily--
not a defendant or defense counsel’s duty. See, e.g., Ui, 142 Hawai‘i at 293,
418 P.3d at 634 (“[I]t is necessary for a trial court to engage a defendant
in an on-the-record colloquy before accepting a waiver of any of the rights
we have held to be fundamental.” (emphasis added)); Murray, 116 Hawai‘i at 11,
169 P.3d at 963 (“[A] knowing and voluntary waiver of a defendant’s
fundamental right must come directly from the defendant, and requires the
court to engage in a colloquy with the defendant.” (emphasis added)). It is
certainly questionable whether a defendant can be faulted for a trial court’s
failure to fulfil the constitutional requirement of a colloquy. Cf. Nichols,
111 Hawai‘i at 335, 141 P.3d at 982 (holding that unobjected-to jury
instruction error was subject to harmless beyond a reasonable doubt review
because “the duty to properly instruct the jury ultimately lies with the
trial court”). Indeed, were we to hold that that defense counsel is under a
duty to notice the failure and bring it to the court’s attention, it would
follow that the failure of a prosecutor to do the same would amount to
prosecutorial misconduct. See State v. Maluia, 107 Hawai‘i 20, 25, 108 P.3d
974, 979 (2005) (“The term ‘prosecutorial misconduct’ is a legal term of art
that refers to any improper action committed by a prosecutor, however
harmless or unintentional.” (emphasis omitted)).
32
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
for trial court to accept stipulation to an element of the
charged offense without engaging defendant in a colloquy); State
v. Vaitogi, 59 Haw. 592, 593 n.4, 597, 585 P.2d 1259, 1260 n.4,
1262 (1978) (stating “(i)t was error, plain on the face of the
record, for the trial judge to accept (defendant’s) guilty plea
without” a colloquy (alterations in original) (quoting Boykin v.
Alabama, 395 U.S. 238, 242 (1969))); State v. Ichimura, SCWC-13-
0000396, 2017 WL 2590858, at *7 (Haw. June 15, 2017) (holding
that it was plain error for the trial court to fail to engage
defendant in a colloquy regarding defendant’s right to testify).
The dissent offers no justification for departing from these
precedents.
Thus, regardless of whether the defendant has executed
a document waiving the right to be present at a change of plea
proceeding pursuant to the HRPP, the trial court is required,
under the Hawaii Constitution, to ensure through an on-the-
record colloquy that a defendant’s guilty plea is knowingly and
voluntarily entered. Solomon, 107 Hawaii at 127, 111 P.3d at
22; Williams, 68 Haw. at 499, 720 P.2d at 1012.23
23
This principle is similarly true with regard to the waiver of
other fundamental rights. See Murray, 116 Hawaii at 12, 169 P.3d at 964
(holding that “the trial court must conduct a colloquy regarding waiver of
proof of an element of the offense”); Tachibana, 79 Hawaii at 235, 900 P.2d
at 1302 (holding that the trial court must engage in an on-the-record
colloquy to ensure that the defendant knowingly and voluntarily waived the
constitutional right to testify); State v. Ibuos, 75 Haw. 118, 121, 857 P.2d
(continued . . .)
33
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In this case, although Hernandez submitted a plea by
mail document indicating that he was waiving his right to be
present at arraignment and sentencing and pleading no contest to
harassment by stalking, the district court was constitutionally
obligated, prior to accepting his no contest plea, to ensure
through an on-the-record colloquy with Hernandez that his plea
was knowingly, intelligently, and voluntarily made. The record
lacks any showing that the court fulfilled this constitutional
obligation.24
(. . . continued)
576, 578 (1993) (holding that the record was silent as to any colloquy
between the court and the defendant and concluding that counsel’s waiver of
the defendant’s right to a trial by jury was invalid).
24
As with the right of allocution, a defendant’s written consent to
waive the right to be present at arraignment does not relieve the court of
its constitutional obligation to ensure that the guilty or no contest plea is
knowingly and voluntarily made. Cf. Gomez-Lobato, 130 Hawai‘i at 469, 312
P.3d at 901 (“In other words, while the defendant may execute a written
waiver form [pursuant to HRPP Rule 23(a)], the court should also engage in an
oral colloquy with the defendant to establish that the waiver was knowing,
intelligent, and voluntary.”). And contrary to the dissent’s contention, our
holding will not lead Hawai‘i judges to cease accepting Rule 43(d) pleas.
Dissent at 9 n.5. Like the right of allocution, the court’s colloquy
obligation in misdemeanor cases within the scope of HRPP Rule 43(d) may be
fulfilled through real-time electronic video communication. Such technology
has become easily accessible--indeed ubiquitous--in the modern age through
smartphones and other common consumer devices, dispelling any notion that
offenders who have departed from the island where the offense is alleged to
have been committed before their court date will be unable to appear
remotely. Further, the use of video conferencing for arraignments is
expressly authorized under the HRPP. See HRPP Rule 10(d) (2014)
(“Arraignment in the circuit court shall be conducted in open court or by
video conference when permitted by Rule 43.”); HRPP Rule 43(e)(1)-(2)(A)
(authorizing courts to conduct arraignment by video conference). Presence by
video conference is also permitted with the consent of the defendant at a
pre- or posttrial evidentiary hearing, a non-evidentiary proceeding, and a
sentencing hearing. See HRPP Rule 43(e)(2)(B)-(C), (e)(3).
(continued . . .)
34
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
(. . . continued)
Notwithstanding this specific authorization in multiple
situations, the dissent contends that appearing by video conference is not
“viable” when a defendant is not in an “institutional setting like a prison”
because “authentication, identification, and confidentiality issues” will
make it too difficult to develop an “accurate record.” Dissent at 9 n.5.
Yet it is not clear which of the assurances of a defendant’s identity that
are present when a defendant appears in person would be absent when the
defendant instead appears by video conferencing, nor why the lack of such
safeguards would undermine the memorialization of the record in the manner
employed in any other proceeding. Moreover, the alternative procedure argued
for by the dissent--under which courts would accept a defendant’s guilty or
no contest plea based on an out-of-court signature and submission of a
document--contains far fewer assurances of the defendant’s personal
involvement and willingness to relinquish fundamental rights than when a
court conducts a colloquy by video conference, and the alternative procedure
would thus be more susceptible to the subsequent legal challenges the dissent
appears to contemplate. To the extent the evidentiary concept of
authentication applies to a video conference, it has not presented a
significant enough obstacle to prevent our court rules from authorizing the
technique in a variety of contexts in a criminal case without conditioning
its use on the defendant’s institutionalization. The same conclusion applies
to the dissent’s concern with “identification[] and confidentiality issues,”
which have also not inhibited our broad endorsement of video conferencing
under HRPP Rule 43. Dissent at 9 n.5.
We note that the positive benefits of the colloquy requirement
are broadly recognized in seminal decisions by this and other courts across
the nation. Tachibana, 79 Haw. at 233, 900 P.2d at 1300 (“There are well-
documented benefits to the colloquy procedure.”); accord Boykin, 395 U.S. at
244 n.7 (“A majority of criminal convictions are obtained after a plea of
guilty. If these convictions are to be insulated from attack, the trial
court is best advised to conduct an on the record examination of the
defendant which should include, inter alia, an attempt to satisfy itself that
the defendant understands the nature of the charges, his right to a jury
trial, the acts sufficient to constitute the offenses for which he is charged
and the permissible range of sentences.” (quoting Commonwealth ex rel. West
v. Rundle, 428 Pa. 102, 105—106 (1968))).
Further, the misdemeanor offenses qualifying for an in-absentia
plea under HRPP Rule 43(d)(2) encompass a wide range of serious crimes. In
addition to harassment by stalking, with which Hernandez was charged,
qualifying offenses include such crimes as abuse of a family or household
members, HRS § 709-906 (2014), sexual assault in the fourth degree, HRS §
707-733 (2014), violation of privacy in the second degree, HRS § 711-1111
(2014), and unlawful imprisonment in the second degree, HRS § 707-722 (2014).
Not only may these offenses greatly impact the victims of the crimes--who are
denied an opportunity to directly address the offender when a defendant does
not participate in the sentencing proceeding--but a conviction of such an
offense may also have serious consequences for a defendant’s career,
reputation, and personal life. The decision to forego an opportunity to
contest such charges should not be treated as a technical formality effected
(continued . . .)
35
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Because the district court failed to ascertain whether
Hernandez’s no contest plea was made knowingly, intelligently
and voluntarily, the omission affected Hernandez’s substantial
rights. The district court therefore plainly erred in accepting
Hernandez’s plea of no contest.
V. CONCLUSION
Based on the foregoing, the ICA’s May 30, 2017
Judgment on Appeal and the district court’s January 7, 2015 and
February 9, 2015 Notices of Entry of Judgment and/or Order are
vacated, and the case is remanded to the district court for
further proceedings consistent with this opinion.
Reiko A. Bryant /s/ Sabrina S. McKenna
Audrey L. Stanley
for petitioner /s/ Richard W. Pollack
James M. Anderson /s/ Michael D. Wilson
Sonja P. McCullen
for respondent
(. . . continued)
solely through written waiver forms without the defendant’s direct
participation. See Gomez-Lobato, 130 Hawai‘i at 469, 312 P.3d at 901.
36