State v. Vares, 14412

• Decision Date: 26 November 1990
• Docket Number: No. 14412,14412
• Citation: 71 Haw. 617,801 P.2d 555
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Carl VARES, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 555

801 P.2d 555

71 Haw. 617

STATE of Hawaii, Plaintiff-Appellee, v. Carl VARES, Defendant-Appellant.

No. 14412.

Supreme Court of Hawai'i.

Nov. 26, 1990.

Syllabus by the Court

1. An uncounseled conviction cannot be used collaterally to support an enhanced sentence where such enhanced sentence includes a term of imprisonment.

2. Courts are most solicitous to assure an accused adequate legal representation and guardingly indulge in a strong presumption against waiver of this fundamental right.

3. To determine whether a waiver of counsel was voluntarily and intelligently undertaken, this court will look to the totality of facts and circumstances of each particular case.

4. The fact that an accused may tell the court that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

5. Where the trial judge failed to address the accused personally and individually about the accused's right to counsel and waiver thereof, it cannot be said that the waiver of counsel was intelligently and voluntarily undertaken.

Debra K. Loy, Deputy Public Defender, on the brief, Honolulu, for defendant-appellant.

Gregory N. Dolton, Deputy Pros. Atty., on the brief, Wailuku, for plaintiff-appellee.

Before LUM, C.J., HAYASHI, WAKATSUKI, and MOON, JJ., and Intermediate Court of Appeals Associate Judge TANAKA, in place of PADGETT, J., Recused.

WAKATSUKI, Justice.

Carl Vares was convicted of driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4 for an incident which occurred on November 20, 1988. Upon sentencing for that offense, the trial court determined that Vares was a third time offender and sentenced Vares accordingly. ¹ The court imposed a $1,000 fine, revoked Vares' driver's license for a period of three years, assessed eight traffic points, and imposed a jail term of 180 days, but suspended all but 15 days of that term subject to certain conditions.

On appeal Vares contends that the trial court erred in sentencing him as a third time offender. He argues that a 1985 DUI conviction cannot be used to support the enhanced sentence which was imposed. We agree.

A.

On July 25, 1985, Vares was arraigned in the district court of the second circuit for DUI and other traffic violations. Prior to proceeding with the calendar of arraignments and pleas, the district court explained to all of the defendants present the procedure to be followed. As part of this preliminary briefing, the court advised all the defendants that although not mandatory, they had the right to consult with an attorney prior to entering a plea. The court also advised those charged with DUI that they were entitled to a court-appointed attorney if unable to afford one. The court concluded by stating:

The last thing I want to tell you is that if you have any questions about anything that goes on this morning, you don't understand the procedure or don't understand the charge or your rights, I will expect you to indicate to me there is something you don't understand. You have to ask a question. If you don't then I'm going to assume that you understand the procedures and your rights pertaining to these charges.

When Vares was arraigned, the court asked if Vares had been present during the court's opening statement. Vares responded that he was and that he understood the charges and penalties. He entered a plea of no contest to the DUI charge. Vares did not ask any questions nor did he indicate that he did not understand his rights. Nonetheless, he now argues that this record of the 1985 proceeding is insufficient to show that he voluntarily and intelligently waived his right to counsel.

B.

An uncounseled conviction cannot be used collaterally to support an enhanced sentence where such enhanced sentence includes a term of imprisonment. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976). Compare State v. Hoglund, 71 Haw. 147, 785 P.2d 1311 (1990) (uncounseled conviction valid to support enhanced sentence where imprisonment not imposed).

Vares' enhanced sentence as a third-time DUI offender included a term of imprisonment. It is undisputed that when Vares was convicted in 1985 he was not represented by counsel. Thus, the 1985 conviction cannot be used to support the enhanced sentence he received unless Vares voluntarily and intelligently chose to proceed without counsel. State v. Dicks, 57 Haw. 46, 549 P.2d 727 (1976).

"Courts are most solicitous to assure an accused adequate legal representation and guardingly indulge in a strong presumption against waiver of this fundamental right." Wong v. Among, 52 Haw. 420, 424, 477 P.2d 630, 633 (1970). To determine whether a waiver was voluntarily and intelligently undertaken, this court will look to the totality of facts and circumstances of each particular case. State v. Dicks, 57 Haw. at 48, 549 P.2d at 729.

In Carvalho v. Olim, 55 Haw. 336, 342-43, 519 P.2d 892, 897 (1974), this court quoted from Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948):

The fact that an accused may tell him [the judge] that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

This court in Carvalho v. Olim, supra, granted the petitioner's writ of habeas corpus on the ground that the State failed to show that waiver of counsel was voluntarily and intelligently undertaken when petitioner earlier entered a plea of guilty to a murder charge. Prior to entering his plea, the petitioner had originally asked for an attorney, but changed his mind after a recess. The prosecuting attorneys tried to persuade him not to plead guilty and reminded him that he was entitled to a court-appointed...