State v. Dicks
| Decision Date | 30 April 1976 |
| Docket Number | 5652,Nos. 5651,s. 5651 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Lan DLCKS, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Desiree Anne HEDGEPETH, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Whether an accused has effectively waived his right to counsel depends largely on the facts and circumstances of the particular case. Among the probative factors bearing on the question are the age, education, and mental capacity of the defendant, his background and experience, and his conduct at the time of the alleged waiver.
2. In determining the legal adequacy of waiver of counsel, the question is whether, considering the totality of the circumstances, the waiver was voluntarily and intelligently undertaken.
3. When a defendant has pleaded guilty in a criminal case, it is within the discretion of the trial court to permit the plea to be withdrawn and in the absence of clear abuse of that discretion, the appellate court will not interfere.
4. If the accused, with full knowledge of the charge against him, his rights, and the consequences of a guilty plea, voluntarily and understandingly enters such Philip H. Lowenthal, Deputy Public Defender, Wailuku, Donald K. Tsukiyama, Public Defender, Honolulu, for defendant-appellant.
a plea, the court, may without abusing its discretion, refuse to permit him to withdraw the plea.
Steven R. Scott, Deputy County Atty., Arthur T. Ueoka, County Atty., Wailuku, for plaintiff-appellee.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA and MENOR, JJ., and SODETANI, Circuit Judge, assigned by reason of vacancy.
Defendants-appellants Ian Balfour Dicks (hereinafter, Dicks) and Desiree Anne Hedgepeth (hereinafter, Hedgepeth), were arrested shortly after midnight on February 5, 1974 at the Landing Restaurant, Kahului, Maui, and were thereafter charged with Burglary in the Second Degree. 1 In the afternoon of the same day, they appeared before a trial judge of the second circuit for plea and arraignment. At that hearing each defendant waived counsel and waived indictment. Each acknowledged his/her previously signed 'Defendant's Written Plea of Guilty' and each entered a guilty plea. After their guilty pleas had been accepted by the court, Dicks stated that he entered the restaurant because he 'was pretty hungry' and Hedgepeth stated she went into the restaurant 'for food.' A pre-sentence report was ordered and a date for sentencing was set.
Prior to sentencing, Dicks and Hedgepeth, through counsel, moved for an order vacating acceptance of their respective pleas of guilty. After a hearing upon such motion (hereinafter, motion hearing), the motion was denied by the trial judge. The defendants were subsequently sentenced.
Two questions are raised on appeal: (1) Whether the trial judge erred in accepting the defendants' waivers of counsel and (2) whether the trial judge abused his discretiin in denying the defendants' motion to withdraw their guilty pleas.
The Sixth Amendment of the U.S. Constitution guarantees the right to counsel for a criminal defendant. This right is one 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed.2d 288 (1937), and applicable to the states through the due process clause of the Fourteenth Amendment. Article I, Section 11 of the Hawaii State Constitution likewise guarantees an accused the right to counsel.
The right to counsel is waivable when it is voluntarily and intelligently undertaken. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Courts do not presume acquiescence in the loss of fundamental rights and such a presumption in the light of a silent record is not constitutionally permissible. Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970); Carvalho v. Olim, 55 Haw. 336, 519 P.2d 892 (1974).
Whether an accused has effectively waived his right to counsel depends largely on the facts and circumstances of the particular case. Johnson v. Zerbst, supra; Carpentier v. Lainson, 248 Iowa 1275, 84 N.W.2d 32 (1957). Among the probative Both defendants indicated in court that they wished to waive their rights to a lawyer and proceed. The trial judge questioned each extensively about their waivers. He asked whether they had a lawyer or wished to have a lawyer, and whether they understood they had a right to a lawyer. He informed them that if they wanted a lawyer and could not afford one, that one would be provided. He asked them whether they were absolutely certain that they wished to proceed without a lawyer. In assessing their competency to waive counsel, he asked about their ages, educational backgrounds, and experience in court. Dicks said that he was 20 years of age, a graduate of Vanderbilt University, and had never been in court before. Hedgepeth said that she was 18 years of age, a student at Maui Community College, and had never been in court. The defendants impressed the trial judge as having 'superior ability' and 'apparently able to think and decide things for (themselves).'
factors bearing on the question are the age, education, and mental capacity of the defendant, his background and experience, and his conduct at the time of the alleged waiver. 21 Am.Jur.2d § 317 at 346, Johnson v. Zerbst, supra; Carpentier v. Lainson, supra.
The defendants said that they understood the information that had been read to them, the charge, the maximum sentence and fine which could be imposed, and that sentencing was entirely up to the court. There was no indication that they had been pressured or misled in any way.
In determining the legal adequacy of waiver of counsel, the question is whether, considering the totality of the circumstances, the waiver was voluntarily and intelligently undertaken. In view of the above and the record as a whole, the trial judge did not err in determining that the defendants voluntarily and intelligently waived their rights to counsel and in accepting their waivers.
The defendants assert that the trial judge erred in denying their motions for withdrawal of their guilty pleas because such pleas were not knowingly and understandingly entered. When a defendant has pleaded guilty in a criminal case, it is within the discretion of the trial court to permit the plea to be withdrawn and in the absence of a clear abuse of that discretion, the appellate Court will not interfere. 20 A.L.R. 1445, 66 A.L.R. 628, and supplementing cases; Knaub v. State, 443 P.2d 44 (Alaska 1968); State v. Defoy, 109 Ariz. 159, 506 P.2d 1053 (1973); In re Brown, 9 Cal.3d 679, 108 Cal.Rptr. 801, 511 P.2d 1153 (1973); State v. Dunham, 213 Kan. 469, 517 P.2d 150 (1972); Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958); Lauen v. State, 515 P.2d 578 (Okl.Cr.1973); State v. Burnett, 228 Or. 556, 365 P.2d 1060 (1961).
It is a constitutional requirement that a trial judge ensure that a guilty plea be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carvalho v. Olim, supra; Wong v. Among, supra. Rule 11 of the Hawaii Rules of Criminal Procedure likewise mandates that the trial court 'shall not accept the (guilty) plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.' It is error when a court does not fulfill these requirements and a clear abuse of discretion when a trial court refuses to allow the withdrawal of pleas tainted by such error. On the other hand, if the accused, with full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, enters such a plea understandingly and voluntarily, the court may, without abusing its discretion, refuse to permit him to withdraw the plea.
The defendants do not contend that their pleas were made without knowledge of the consequences of their pleas or involuntarily. The record does disclose that the trial court informed the defendant of the constitutional rights waived by a guilty plea and the maximum sentence and fine which the court could impose. The record also indicates that the trial judge was solicitous in assuring the voluntariness of their pleas.
The defendants, at the motion hearing and on appeal, complain that they did not understand the nature of the charge when they entered their guilty pleas. More specifically, they allege that they did not understand the specific intent element of the burglary charge.
At arraignment, the information was read to each of the defendants. The informations charged:
That on or about the 5th day of February, 1974 at Kahului, . . . (the accused) did intentionally enter or remain unlawfully in a building, to wit, the Landing Restaurant, with intent to commit therein a crime against property rights, thereby committing the offense of Burglary in the Second Degree . . .
After the reading of the information to Dicks, the trial court questioned him:
'Q Mr. Dicks, do you have a copy of this charge-this Information?
'A Yes, I do.
'Q Did you understand what was read to you right now?
'A Yes, sir.
'Q You understand that basically you are being charged with entering the building-the Landing Restaurant on or about February 5, 1974, in Kahului, with intention to commit a crime against property rights there?
'A Yes, sir.
'Q And that this constitutes burglary, a charge of Burglary in the Second Degree.
'A Yes, sir.'
After the information respecting Hedgepeth was read, the trial judge addressed her:
'Q Miss Hedgepeth, did you understand the charge now?
'A Yes.
'Q Did you understand basically that the charge is Second Degree Burglary, and that you are to be charged that on or about February 5th, 1974, at...
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