81 Hawai'i 198, State v. Merino

• Decision Date: 11 April 1996
• Docket Number: No. 15995,15995
• Citation: 81 Hawaii 198,915 P.2d 672
• Parties: 81 Hawai'i 198 STATE of Hawai'i, Plaintiff-Appellee, v. William MERINO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 672

915 P.2d 672

81 Hawai'i 198

STATE of Hawai'i, Plaintiff-Appellee, v. William MERINO, Defendant-Appellant.

No. 15995.

Supreme Court of Hawai'i.

April 11, 1996.

[81 Hawai'i 201] Appeal from the First Circuit Court (Cr. No. 88-1485).

Dana S. Ishibashi, on the briefs, Honolulu, for defendant-appellant William Merino.

Charlotte J. Duarte, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawai'i.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The defendant-appellant William Merino appeals the March 12, 1992 judgment of the first circuit court convicting him, following the entry of a plea of no contest, ¹ of criminal conspiracy in violation of Hawai'i Revised Statutes (HRS) § 705-520 (1993). In substance, Merino raises two points of error on appeal, namely, that the circuit court: (1) erred in allowing him to plead no contest in the first place because (a) the complaint charging him with criminal conspiracy was fatally defective, giving rise to plain error, because it "fail[ed] to sufficiently allege the elements of conspiracy," (b) the factual basis proffered by the prosecution prior to the entry of his no contest plea was insufficient to support the complaint, and (c) he had not validly waived his right to counsel, likewise giving rise to plain error; and (2) committed an abuse of discretion in denying his motion to withdraw his no contest plea. We disagree and affirm Merino's conviction.

I. BACKGROUND

A. The No Contest Plea

On August 25, 1988, Merino appeared pro se before Judge Donald K. Tsukiyama of the first circuit court in Cr. No. 86-0990, in In an obvious abundance of caution, however, Judge Tsukiyama engaged in the following colloquy with Merino after determining that Merino was fifty-five years of age, had an eleventh grade education, and could read, write, and understand the English language:

                [81 Hawai'i 202] which Merino was charged with extortion in the first degree, a class B felony, in violation of HRS § 707-765 (1985). 2  Also present was deputy prosecuting attorney Peter Carlisle.  After obtaining confirmation from Merino that he was the defendant in the pending matter, Judge Tsukiyama noted Merino's pro se status and elicited Merino's acknowledgment that, in an earlier appearance in the matter, another circuit court judge, Judge Daniel Heely, had explained to Merino his right to the assistance of counsel--including court-appointed counsel--in his defense.  Judge Tsukiyama further established that Merino had decided not to apply for court-appointed counsel, but rather to represent himself
                

THE COURT: ... [I]n relation to this matter, ... I understand that you have made several appearances in court; is that correct?

MR. MERINO: Yes, sir.

THE COURT: And in each of these appearances you have represented yourself, is that correct?

MR. MERINO: Yes, sir.

THE COURT: Okay. Now, I went over this briefly with you previously, but I do want to review once again what the Court considers to be very important considerations in relation to your decision as to whether you want to represent yourself or have the assistance of counsel.

Now, do you understand that by not having a lawyer represent you that could be very detrimental to your cause?

MR. MERINO: Yes, sir.

THE COURT: And you understand that unless you are trained in the law you might have difficulty representing yourself because this whole proceeding, this trial, will be governed by the law, including what we refer to as the Rules of Evidence. You understand that?

MR. MERINO: Yes, sir.

THE COURT: And do you understand that your lack of knowledge of the law and the Rules of Evidence could work against you and, that is, you may lose some valuable substantive rights because you don't know what the law is?

MR. MERINO: Yes, sir.

THE COURT: All right. And you understand that during the course of the trial the Court cannot assist you in this regard? That is, the Court cannot act as your legal advisor and tell you what the law is or what the Rules of Evidence are. Do you understand that?

MR. MERINO: Yes, sir. Yes, I do, sir.

THE COURT: So if there is indeed evidence presented which is objectionable and may be highly prejudicial, but you MR. MERINO: Yes, sir.

[81 Hawai'i 203] don't know what it is because you don't understand the law, you don't object to it, so that evidence is considered by the Court or by a jury, you will, as a result, or could, as a result, suffer because of your lack of knowledge regarding the Rules of Evidence [or] the law. You understand that?

THE COURT: Okay. And later on you will not be permitted to come back and say, well, I want a new trial with a lawyer at this time because I did not understand the law or the Rules of Evidence. Do you understand that?

MR. MERINO: Yes, sir.

THE COURT: Okay. All right. Knowing that self-representation in this case by you could seriously work to your disadvantage, do you still want to proceed without counsel?

MR. MERINO: Yes, I do, Your Honor.

THE COURT: Do you understand that the Court could sentence you to a term of imprisonment of 10 years in this case if you are convicted?

MR. MERINO: I understand that.

THE COURT: Knowing that, do you still wish to proceed without legal counsel?

MR. MERINO: Yes, sir.

THE COURT: All right. The Court is going to find and conclude, based upon its colloquy with Mr. Merino, that he has voluntarily waived his right to be represented by legal counsel in this proceeding with an intelligent waiver of the benefits associated with representation by counsel, and the dangers and disadvantages of self-representation, and with a full and complete understanding of the consequences of his waiver.

Accordingly, the Court further finds and concludes that the defendant is competent to proceed pro se.

Subsequent to the colloquy set forth above, Judge Tsukiyama set the matter for a jury-waived trial to commence on August 29, 1988. ³ Judge Tsukiyama noted for the record that he understood that plea negotiations were ongoing between Merino and the prosecution and concluded the hearing with the following prophylactic exchange:

THE COURT: ... Do you have any questions, Mr. Merino?

MR. MERINO: No, Your Honor, I don't.

THE COURT: Do you understand what has happened so far?

MR. MERINO: Yes, sir, I have.

THE COURT: Okay. Now, please keep in mind that at any time you're still entitled to seek and obtain the assistance of counsel. The fact that the Court has found that you're capable of representing yourself and that you have waived your right to be represented by legal counsel does not prevent you ... in any way from seeking the advice of legal counsel. You understand that?

MR. MERINO: Yes, I do, Your Honor.

On August 29, 1988, Merino appeared as scheduled before Judge Tsukiyama in Cr. No. 86-0990. At that time, Carlisle, on behalf of the prosecution, advised the court that the matter presently pending before it was to be resolved by a negotiated plea to the charge of criminal conspiracy, a class C felony in violation of HRS § 705-520 (1985), ⁴ in a Judge Tsukiyama then permitted the new complaint to be filed in open court and directed Carlisle to read it into the record. The new complaint, as read, charged that:

[81 Hawai'i 204] new matter--Cr. No. 88-1485--in connection with which the prosecution had prepared a complaint [hereinafter, the new complaint] to be filed in open court. Before allowing the new complaint to be filed, Judge Tsukiyama again advised Merino that he was entitled to be represented by counsel in relation to Cr. No. 88-1485 and elicited from Merino his assurances that he did not want to be represented by counsel and that he was willing to proceed without any legal consultation.

On or about the 1st day of February, 1978, to and including the 31st day of December, 1985, the exact dates being unknown to the City and County of Honolulu, State of [Hawai'i,] WILLIAM MERINO, and the following people herein named but not charged, NANCY MERINO, also known as Sister Nancy, Lufa, Cindy, and Connie, MARY ANN MERINO, also known as Sister Nancy, Lufa, Sister Lufa, Tina Merino and Lavonne, and ANNE MARY MERINO, also known as Sister Nancy, Carleen, Lucy Merino, and Christine Gaegos, TINA MERINO, also known as Sister Nancy, Sister Tina, Helen Merino, and Mama Tina, and DAVID MERINO, with the intent to promote or facilitate the commission of a crime, to wit, Theft in the First Degree, did agree with each other and others known and unknown, that they or one or more of them would engage in and solicit the conduct or would cause or solicit the result specified by the definition of Theft in the First Degree as defined by [HRS ss] 708-831(1)(b) ⁵ and 708-830(2).[ ⁶

1. It was part of said conspiracy that the Defendants and others would obtain or exert control over the property of various individuals by deception.

2. It was further a part of said conspiracy that the Defendants and others would conceal the existence of the conspiracy, would take steps designed to prevent disclosure of their activities, and would use deception to prevent or inhibit their victims from reporting their crimes to the proper authorities.

In furtherance of the conspiracy and to effect the objects thereof, the following overt acts, among others, were committed within the City and County of Honolulu, State of [Hawai'i]:

OVERT ACTS

1. On or about the 1st day of October, 1981, to and including the 28th day of February, 1983, the exact dates being unknown, Defendants MARY ANN MERINO, TINA MERINO, NANCY MERINO, ANNE MERINO, DAVID MERINO, and WILLIAM MERINO, did obtain or exert control over the property of Peter Pea, Jr., to wit, money and merchandise and services the value of which exceeds Two Hundred Dollars ($200.00), by deception, with intent to deprive the said Peter Pea, Jr., of the property.

2. WILLIAM MERINO did attempt to establish contacts and relationships with government agencies to...