State v. Krstoth

• Decision Date: 09 August 2016
• Docket Number: No. SCWC–14–0001143.,SCWC–14–0001143.
• Citation: 378 P.3d 984,138 Hawai'i 268
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Takson KRSTOTH, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

138 Hawai'i 268

378 P.3d 984

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

v.Takson KRSTOTH, Petitioner/Defendant–Appellant.

No. SCWC–14–0001143.

Supreme Court of Hawai‘i.

Aug. 9, 2016.

William Li, for petitioner.

Loren J. Thomas, Honolulu, for respondent.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, and WILSON, JJ.

Opinion of the Court by McKENNA, J.

I. Introduction

Takson Krstoth ("Krstoth") entered a plea of guilty to one count of Murder in the Second Degree, in violation of Hawai‘i Revised Statutes ("HRS") § 707–701.5 (2014).¹ Before sentencing, Krstoth requested that the court allow him to withdraw his plea and go to trial, then filed a motion requesting the same, asserting that his plea was not entered knowingly, intelligently, or voluntarily, and that he felt pressured by his public defender and interpreter to plead guilty. The circuit court denied the motion and sentenced him to life imprisonment with the possibility of parole.

Krstoth raises the following question on certiorari: "Whether the ICA gravely erred in holding that the Circuit Court did not abuse its discretion in denying Krstoth's Motion to Withdraw Plea?"

"[A] more liberal approach is to be taken" when a defendant moves to withdraw his or her plea prior to sentencing such that "the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice." State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 523 (1978). Moreover, "[a] ‘language barrier’ between the defendant and the court is a ‘salient fact’ that puts the trial court on notice that a defendant's waiver may be ‘less than knowing and intelligent.’ " State v. Phua, 135 Hawai‘i 504, 513, 353 P.3d 1046, 1055 (2015) (quoting State v. Gomez–Lobato, 130 Hawai‘i 465, 471, 312 P.3d 897, 903 (2013) ).

In this case, the circuit court's colloquy does not establish that Krstoth voluntarily, intelligently, and knowingly entered his plea with an understanding of the nature of the charge against him and the consequences of his plea. We therefore vacate the Judgment of Conviction and Sentence, and remand the case to the circuit court for further proceedings consistent with this opinion.

II. Background

A. Circuit Court Proceedings

On September 15, 2011, Krstoth was charged by grand jury indictment with one count of Murder in the Second Degree. Deputy Public Defender Edward Harada ("Harada") was appointed to represent Krstoth.

On April 16, 2013, Krstoth, present with Harada and court-appointed Chuukese interpreter Kachusy Silander ("Silander"), entered a plea of guilty to the charged offense pursuant to a plea agreement with the State. At the outset, the colloquy revealed that Krstoth was twenty-two years old, had a tenth grade education, and did not read or write any English. After the circuit court accepted Krstoth's guilty plea, sentencing was scheduled for July 23, 2013.

On June 25, 2013, however, the circuit court received a handwritten, ex parte letter from Krstoth, written by someone for him, which stated:

To the Honorable Judge Mr. Lee. Hi my name is ____, and I'm writing in regards to a plea bargain that I agree upon due to being basically scared to death by my attorney Mr. Edward Harada, stating to me that if I did in fact even think of taking my case to trial and lost, that I would spend the rest of my life behind prison bars or close to it. Laying in my bed at night and thinking of my children and their future truly rips my heart to pieces, that I cant [sic] be thier [sic] to guide, love, support, and share their joy as a father. I'm aware that I've signed a Rule (11) ... Would you please give me the oppertunity [sic] to recant my guilty plea so, I can have a fair day in trial? On July 23, 2013 I will be in your courtroom for my sentencing day. Your Honor please consider my request. Thank you and God bless.

Sincerely

Mr. T. Krstoth

The circuit court forwarded the letter to Harada.

On September 3, 2013, Harada filed a "Motion to Withdraw as Counsel and Have Substitute Counsel Appointed" ("motion to withdraw as counsel"). The attached declaration of counsel by Harada stated, in relevant part, as follows:

7. On August 27, 2013, I visited Takson Krstoth at OCCC and had [an interpreter] present to provide information.

8. I discussed the letter with Mr. Krstoth, and he made it clear that the words expressed in the letter are his true words and feelings, but that someone else assisted him in writing the words out on paper. Mr. Krstoth affirmed the words and feelings he expressed in his letter and made several things clear: (a) that he felt pressured by me to accept the plea bargain offered by the State and plead "guilty" to the charged offense; (b) that he did not understand all of his rights he had, including the right to a trial, because I did not make things clear to him; and (c) that he does in fact want to withdraw his previously entered "guilty" plea and have a trial to contest the charge against him."

On September 9, 2013, the circuit court granted the motion to withdraw as counsel and substitute counsel was appointed to represent Krstoth.

On April 14, 2014, through his new attorney, Krstoth filed a "Motion to Withdraw Plea" ("motion to withdraw plea"), asserting that he was unaware during the change of plea hearing that he was changing his plea to guilty, the interpreter was not interpreting what was being said and was merely telling him to "say yes" or "say no," he was not informed of the details of the plea agreement, and he did not authorize his initial counsel Harada to agree to the plea agreement. On June 10, 2014, the State filed its memorandum in opposition to Krstoth's motion. The State argued that there was nothing in the record to indicate that Krstoth did not understand the colloquy with the court or that he was unable to make an intelligent decision at his change of plea hearing.

At a hearing on the motion to withdraw plea, the circuit court heard testimony from Krstoth, Silander, and Harada. On June 17, 2014, the circuit court issued its "Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Withdraw Plea."² The circuit court concluded, in relevant part, as follows:

15. The Court finds that the Defendant presented contradictory testimony evidence and failed to present any credible evidence establishing plausible and legitimate grounds for the withdrawal of his guilty pleas.

16. Here, although the Defendant claims that his plea was not entered knowingly or intelligently since the interpreter was merely telling the Defendant to "say yes" or "say no" and that his attorney and the interpreter had pressured him to plead guilty, the Court finds and concludes that, based on its examination and consideration of the entire record in this case, the Defendant knowingly, intelligently, and voluntarily entered his guilty plea.

17. At the hearing on the Motion, the Defendant testified to the following: that Mr. Harada and Mr. Silander discussed the guilty plea form and plea agreement with him, he knew that he had a choice to plead guilty, and that no one was pressuring him to change his plea. The Defendant's testimony contradicted the claims raised in his Motion.

18. The transcript of the proceedings shows no reluctance or hesitancy by the Defendant to enter his plea. The Defendant answered each question appropriately, never refused to answer any of the questions, never requested to stop the proceedings, and never indicated that he did not understand the proceedings.

19. More importantly, during the Court's questioning of the Defendant, the Defendant was asked numerous times whether he understood what was being told to him and if he had any questions.

20. The Court finds and concludes that the Defendant did understand what was being asked on [sic] him since he did ask the Court a question about the presentence report.

21. The Court further finds and concludes that the Defendant was aware of his rights, the nature of the charges against him and the consequences of his pleas [sic].

22. Moreover, the evidence presented at the hearing established that on April 9, 2013, Mr. Harada, through Mr. Silander, went over the change of plea form line by line with the Defendant at the Oahu Community Correctional Center ("OCCC").

23. Since this Court did not hear the Defendant's change of plea until April 16, 2013, the Court finds and concludes that if the Defendant had any serious concerns and/or questions regarding the plea agreement, he had both the time and opportunity to raise them with counsel.

....

25. [ ]Mr. Harada testified that he insisted upon the use of an interpreter even though the Defendant could understand some English. Mr. Harada further testified that he answered all of the Defendant's questions to the best of his ability, and that the Defendant at no time informed him of his desire to reject the plea agreement and proceed to trial.

26. Therefore, based on the examination and consideration of the entire record in this case and considering the testimony presented at the hearing on the Motion, the Court finds and concludes that the Defendant's Motion to Withdraw Plea lacks merit and is hereby denied.

On August 1, 2014, the circuit court issued its Judgment of Conviction and Sentence, finding Krstoth guilty of Murder in the Second Degree and sentencing him pursuant to the terms of the plea agreement to life imprisonment with the possibility of parole, with credit for time served. On September 29, 2014, Krstoth appealed the circuit court's Judgment of Conviction and Sentence to the ICA.

B. Appeal to the ICA

In his Opening Brief, Krstoth argued that the circuit court abused its discretion in denying his motion to withdraw plea because his testimony that he felt pressured by his attorney and interpreter to plead guilty and did not understand why he was pleading guilty constitutes plausible and legitimate grounds for the withdrawal of his guilty plea.

In its Answering Brief, the State contended that...