State v. Kong

• Decision Date: 10 December 2013
• Docket Number: No. SCWC–11–0000393.,SCWC–11–0000393.
• Citation: 315 P.3d 720,131 Hawai'i 94
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Stanley S.L. KONG, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

131 Hawai'i 94

315 P.3d 720

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Stanley S.L. KONG, Petitioner/Defendant–Appellant.

No. SCWC–11–0000393.

Supreme Court of Hawai‘i.

Dec. 10, 2013.

Samuel G. MacRoberts, for petitioner.

Renee Ishikawa Delizo, for respondent.

RECKTENWALD, C.J., NAKAYAMA, J., and Circuit Judge AYABE, in place of POLLACK, J., recused, with ACOBA, J., dissenting separately, with whom McKENNA, J., joins.

Opinion of the Court by RECKTENWALD, C.J.

Stanley S.L. Kong was charged with Promoting a Dangerous Drug in the Second Degree and Prohibited Acts Related to Drug Paraphernalia. He was admitted into the Maui Drug Court program, but subsequently self-terminated from the program. The Circuit Court of the Second Circuit then found Kong guilty as charged, and sentenced him to a ten year indeterminate term of imprisonment and a five year indeterminate term of imprisonment, respectively.¹ The circuit court ordered that the terms run consecutively, for a total of 15 years, due to Kong's history of "extensive criminality."

In his application, Kong argues that the circuit court's statement regarding his "extensive criminality" was insufficient to justify his consecutive sentence based on the requirements set forth in State v. Hussein, 122 Hawai‘i 495, 229 P.3d 313 (2010). He also argues that his sentence constitutes plain error because it was based on crimes he did not commit. Finally, Kong argues that the colloquy conducted by the circuit court regarding his self-termination from the Drug Court program was insufficient to establish that he knowingly, voluntarily, and intelligently waived his right to a termination hearing.

For the reasons set forth below, we reject each of Kong's arguments. We affirm the judgment of the Intermediate Court of Appeals, which affirmed the circuit court's judgment of conviction and sentence.

I. Background

The following factual background is taken from the record on appeal.

A. Circuit Court Proceedings

Kong was charged with Promoting a Dangerous Drug in the Second Degree in violation of Hawai‘i Revised Statutes (HRS) § 712–1242,² and Prohibited Acts Related to Drug Paraphernalia in violation of HRS § 329–43.5.³

Kong subsequently petitioned for admission into the Maui Drug Court program. Kong signed a petition for admission, in which he waived his right to a trial, confirmed his understanding that the charges against him would be dismissed if he successfully completed the program, and confirmed his understanding that he would proceed to a stipulated facts trial if he was unsuccessful in the program. He also admitted to the charges against him.

That same day, the circuit court held a hearing, in which it orally informed Kong of the legal rights that he would surrender if he chose to enter the Drug Court program. The circuit court also reviewed the petition with Kong and explained to Kong that he would be terminated from the program if he violated any of the rules set forth in the Drug Court Program Admission Agreement, which Kong also had signed. The circuit court conducted a detailed colloquy with Kong regarding the rights he was waiving by agreeing to enter the program, including his right to a trial on the charges and the rights associated with a public trial. The circuit court confirmed that Kong admitted to the charges and wanted to proceed. The circuit court found that Kong voluntarily, knowingly, and intelligently waived his rights as indicated in the petition, and admitted Kong into the program.

Kong subsequently attended numerous status hearings over a period of approximately six months. However, at a January 26, 2011 status hearing,⁴ Kong's counsel, a Deputy Public Defender (DPD) indicated her understanding that the Drug Court program was recommending that Kong be terminated from the program. The DPD stated that Kong instead wanted to self-terminate from the program. Kong's Drug Court treatment team confirmed that Kong had failed to appear for a urinalysis, treatment group, and scheduled status hearing, and recommended that the court set a termination hearing. The circuit court addressed Kong:

[Mr. Kong], although the treatment team has recommended a termination hearing, I'm going to take you through some questions that ... are similar to the questions I asked of someone else who indicated they wanted to terminate, or that person wanted to terminate.

You have the right to have a hearing on that. Just because someone recommends termination, it doesn't mean it's automatic. And at that hearing the Government would basically have to present an appropriate basis for terminating you from the drug court program. If the Court determines that that's not the appropriate course, then you can remain in the program and participate in the program. If, on the other hand, it is determined that termination is the appropriate result, then you would be terminated from the program.

But what I want to emphasize is that what's important here is that you understand that you have a right to have a hearing on that, and you have the right to have your attorney present and represent you during that hearing. So in addition to what the Prosecutor might do at the hearing and the burden that the Prosecution would carry, you have the right to have your attorney present whatever you would like your attorney to present during the termination hearing and have a fair hearing on that before that decision is made.

Kong acknowledged that he understood what the circuit court explained. The circuit court also explained to Kong the consequences of termination:

And, now, at a termination hearing, if you are terminated, you are a Track II participant, so what would happen is your—your case would proceed to what's called a stipulated facts trial, in other words, where the facts are agreed on. So if you get past the point of termination, for example, if you self-terminate, for example, or if it's determined that you should be terminated, then the stipulated facts trial is basically a very short trial. Because essentially what you will have done already is admitted to all of the parts of the charge. So that's presented and the trial doesn't even last a minute and you are found guilty as charged. You understand that?

Kong again acknowledged that he understood what the circuit court explained. The circuit court then stated, "And the reason I'm asking you that question is I want to make sure you understand ... what consequences flow from the decision to self-terminate." (Emphasis added). The circuit court again asked Kong if he understood the consequences of a decision to self-terminate from the Drug Court program, and Kong responded, "Yeah, I understand in part. Yes, I do." The circuit court then explained:

Okay. So, basically there's no hearing. You give up the right to a termination hearing, number one, if you self-terminate; number 2, you move onto a stipulated facts trial where it's almost virtually certain, unless your attorney files any constitutionally based motions on your behalf, it's virtually certain that you will be found guilty as charged. And if the motions are filed, if there are any motions that could be filed, then those are heard. But if those are not successful, then that leads to a stipulated facts trial and that would ... essentially result in a finding of guilty. Do you understand all of that?

Kong responded, "Yeah. Yeah." Kong then stated, "I want to self-terminate," but indicated that "just for the record" that "[u]p until this point the Public Defender's Office was, to my understanding, was never allowed to represent me in any felony cases because of conflict of interest in the past. They represented people who testified against me." The DPD stated:

I know [ ] Kong wanted to raise this to the Court today to preserve the issue, just to have it be on the record. And we did have this conversation about what appears to be a prior conflict with the Public Defender's Office with [ ] Kong as a juvenile in First Circuit on Oahu.

....

[I]n looking in our data base, closed and opened files, there was no such conflict, and we were never told of a conflict. And I did raise the issue, and we can continue to talk about whether [Kong] wants to file a motion to withdraw, and that would be fine. But further discussion can be had, and I do understand that [ ] Kong still wanted to proceed with this self-termination, but possibly maybe with a new attorney.

Kong then stated that he "wanted to state [the possible conflict] on the record, and then still proceed with the termination." The circuit court was hesitant to proceed with termination in light of Kong's desire to preserve for appeal the issue of a possible conflict of interest. Accordingly, the circuit court set a hearing for a motion to withdraw counsel for February 3, 2011, and a termination hearing for March 7, 2011.

Kong ultimately did not file a motion for withdrawal and substitution of counsel pertaining to any alleged conflict of interest in relation to the circuit court proceedings. At the February 3, 2011 hearing,⁵ the issue of withdrawal of counsel was not addressed. Instead, the following exchange occurred at the beginning of the hearing:

[DPD]: Good morning, your Honor. [The DPD] on behalf of [ ] Kong who is present, ready to self-terminate from the drug court program. Although he did benefit from the program and he would like to continue, he understands and would like to self-terminate in order to speed up the process.

THE COURT: Okay.

[Kong], is that right?

[Kong]: Yes, your Honor.

THE COURT: You want to self-terminate from the program?

[Kong]: Yes, your Honor.

THE COURT: Is you mind clear today about saying that?

[Kong]: Yes, it is.

THE COURT: Are you taking any medicines or drugs?

[Kong]: I'm not.

THE COURT: All right.

The Court finds the defendant voluntarily, knowingly, and intelligently terminates from the adult drug court program.

We can go ahead with the stip facts trial then[.]

The circuit court determined that Kong was guilty as charged on all counts.

A...