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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-15-0000131
                                                                19-MAY-2017
                                                                09:36 AM

                              SCWC-15-0000131

          IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________

           STATE OF HAWAII, Respondent/Plaintiff-Appellee,

                                      vs.

      THEODORICO ERUM, JR., Petitioner/Defendant-Appellant.
  _____________________________________________________________

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-15-0000131; CASE NO. 5DCC-14-0000212)

                        SUMMARY DISPOSITION ORDER
(By:    Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

                             I.    Introduction

       Theodorico Erum, Jr. (“Erum”) seeks review of the

Intermediate Court of Appeals’ (“ICA”) July 21, 2016 Judgment on

Appeal (“ICA judgment on appeal”), entered pursuant to its June

22, 2016 Summary Disposition Order (“SDO”), which affirmed the

District Court of the Fifth Circuit’s (“district court”)

Judgment/Order and Notice of Entry of Judgment/Order entered on

November 13, 2014.

       Erum has proceeded pro se at every stage of this case.               The

record on appeal, which was supplemented by order of this court
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with the audio recordings of the arraignment held August 6, 2014

and the bench trial held November 13, 2014,1 does not indicate a

valid waiver of counsel.           We therefore vacate the district

court’s judgment and remand for further proceedings consistent

with this summary disposition order.

                                  II.   Background

A.        District Court Proceedings

          After an incident relating to a property dispute between

Erum and the complaining witness, the State of Hawai‘i (“State”)

charged Erum with two offenses: Simple Trespass, in violation of

Hawai‘i Revised Statutes (“HRS”) § 708–815 (1993)2, and

Harassment, in violation of HRS § 711–1106 (2014)3.


1
      This court ordered that the record be supplemented in the certiorari
proceedings pursuant to Rule 10(e)(2)(C) of the Hawai‘i Rules of Appellate
Procedure, which states:

                If anything material to any party is omitted from the
                record by error or accident or is misstated therein,
                corrections or modifications may be as follows:
                . . . .
                (C) by direction of the appellate court before which the
                case is pending, on proper suggestion or its own initiative
                . . . .
2
      HRS § 708-815 provides, “A person commits the offense of simple
trespass if the person knowingly enters or remains unlawfully in or upon
premises.”
3
          HRS § 711-1106 provides in relevant part:

                (1) A person commits the offense of harassment if, with
                intent to harass, annoy, or alarm any other person, that
                person:

                (a) Strikes, shoves, kicks, or otherwise touches another
                person in an offensive manner or subjects the other person
                to offensive physical contact[.]


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       At Erum’s August 6, 2014 arraignment, the following

exchange took place:

            Court: Mr. Erum if you’ll take a look at the amended
            complaint, would you like those two charges read out loud
            in court this morning?

            Erum: Uh if you give me a moment, your honor, I’ll read it
            and then I’ll waive my reading out loud.

            Court:    Okay.

            Erum:    I read the complaint, your honor.

            Court: Alright, are you waiving public reading of the
            charges?

            Erum:    Yes, your honor.

            Court: Defendant waives reading of the charges. Count I,
            the harassment count, is a jailable offense. Normally when
            a defendant is charged with a jailable offense, what the
            court normally does is enter not guilty pleas and then we
            refer you to the Office of the Public Defender if you wish
            to apply for services. In the alternative, if you wanted
            to hire private counsel, you can make those arrangements on
            your own. So we normally enter a not guilty plea, and
            rather than set a trial date immediately, we set a kind of
            a status date, so you can receive discovery and if you have
            an attorney, you can discuss your case with your attorney.
            Would you like us to do that or are you requesting that I
            actually set a trial date already?

            Erum:    Um I would like the trial date to be set.

            Court: Okay. So not guilty pleas are entered. Rule 48
            please.
            . . . .
            Now um do you intend to apply for attorney’s services at
            the Office of the Public Defender or to consult with
            private counsel?

            Erum: I’ll take that into consideration, your honor.    I
            don’t --

            Court: I just want to let you know because [the State is]
            not going be communicating directly with you unless and
            until there’s a waiver of your right to counsel, and I
            don’t want you to waive counsel until you’ve actually made
            that decision and it’s knowing. So --

            Erum:    I understand, your honor.

            Court: You can go to the Public Defender’s office this
            morning with your paperwork and fill out an application.

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                My recommendation is that you do that sooner rather than
                later. If you do that and ultimately for whatever reason
                you decide you want to be a pro se defendant, you can
                always stop having counsel but at least you’ll be able to
                consult with counsel and have someone representing you and
                then get discovery from the prosecutor’s office.

                Erum:   Okay, thank you.

          The bench trial was held on November 13, 2014.4           The

district court addressed Erum’s right to counsel in the

following exchange:

                Court: You do have one of these as a petty misdemeanor
                which carries a sentence of up to thirty days in jail, you
                understand that you -- weren’t you referred to the Public
                Defender’s office?

                Erum:   Uh is that a question to me, your honor?

                Court: Yes.

                Erum: Yes, your honor. Judge, uh, judge referred me to
                the Public Defender’s office.

                Court: And you chose not to go?

                Erum: No, I didn’t choose not to go, it’s just that I’m
                not an indigent person.

                Court: Ok. And you don’t choose to hire your own attorney
                in this case?

                Erum: Uh yes, in this short space of time I was not able
                to get an attorney.

                Court: If you wanted additional time in which to hire an
                attorney, I would grant you additional time.

                Erum: At this point, uh, at this point of the proceedings,
                your honor, and my discussions with the State of Hawai’i
                prosecuting attorney, leads me to believe that we should go
                forward today.

                Court: Okay. But it’s not just your discussions, what I’m
                saying is notwithstanding your discussions with the
                prosecuting attorney, if you felt like you needed time to
                hire your own attorney, I would grant that time to you. Do
                you understand that?

                Erum:   I understand.

4
          The Honorable Joe P. Moss presided.

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            Court: Knowing that you wish to go forward?

            Erum:   I wish to go forward.

       At the conclusion of the bench trial, the district court

found Erum guilty as charged, and ordered him to pay fines and a

fee totaling $330.00.

B.     Appeal to the ICA

       On appeal to the ICA, Erum alleged the district court: (1)

erred in failing to enter findings of fact and conclusions of

law that sufficiently demonstrated that each element of the

criminal charges was proved beyond a reasonable doubt; (2)

lacked authority to determine whether the complaining witness

was the owner of the property on which the trespass allegedly

occurred; and (3) erred in denying Erum’s motion for a new

trial.

       In its SDO, the ICA affirmed the district court judgment.

As to Erum’s first point of error, the ICA concluded, “Erum does

not explain how the District Court’s failure to enter findings

or conclusions equates with the State’s failure to prove every

element of the offense or the offender’s alleged state of mind,

so that argument fails.”        As to Erum’s second point of error,

the ICA determined that, without a transcript, there was no

basis upon which to rule on the merits of his claim.             As to

Erum’s third point of error, the ICA concluded that absent the

bench trial transcript and the transcript of the hearing on

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Erum’s motion for a new trial, it was “unable to determine

whether the trial court abused its discretion[.]”

                         III. Standards of Review

A.     Waiver of Counsel

            When a defendant elects to proceed pro se, the record must
            indicate that the defendant was offered counsel, but he or
            she ‘voluntarily, knowingly, and intelligently rejected the
            offer and waived that right.’ The trial court must ensure
            two requirements are met: first, the waiver of counsel is
            ‘knowingly and intelligently’ made, and second, ‘the record
            is complete so as to reflect that waiver.’

State v. Phua, 135 Hawai‘i 504, 512, 353 P.3d 1046, 1054

(2015) (quoting State v. Dickson, 4 Haw. App. 614, 619, 673

P.2d 1036, 1041 (1983)).

B.     Plain Error Review

       “Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of

the court.”     Hawai‘i Rules of Penal Procedure (“HRPP”) Rule 52(b)

(2000).    This court has the inherent power to notice plain error

sua sponte.     State v. Fields, 115 Hawai‘i 503, 528, 168 P.3d 955,

980 (2007), as amended on denial of reconsideration (Oct. 10,

2007).

       If a defendant’s substantial rights have been adversely

affected, the error will be deemed plain error.            State v.

Nichols, 111 Hawai‘i 327, 334, 141 P.3d 974, 981 (2006).

Substantial rights include constitutional rights.             See State v.

Uyesugi, 100 Hawai‘i 442, 449, 60 P.3d 843, 850 (2002) (noting


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that a substantial right under plain error review includes

constitutional rights, such as the right to trial).             “[T]his

[c]ourt will apply the plain error standard of review to correct

errors which seriously affect the fairness, integrity, or public

reputation of judicial proceedings, to serve the ends of

justice, and to prevent the denial of fundamental rights.”

State v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998).

                               IV. Discussion

       On certiorari, Erum argues that the ICA’s affirmance of the

district court’s judgment was erroneous because: (1) the

district court failed to enter findings of fact or conclusions

of law; (2) the district court determined that the complaining

witness was the owner of the property; and (3) the district

court denied Erum’s motion for a new trial while his civil case

regarding the property was on appeal.

       The record on appeal to the ICA did not contain any

transcripts; therefore, the ICA did not err with respect to its

determination of the issues Erum raised on appeal.             In general,

it is the appellant’s burden to provide the appellate court with

the record on appeal.       However, because Erum has never been

represented by counsel in this case, we engage in a plain error

review only to determine whether Erum’s constitutional right to

counsel may have been affected.



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A.     Requirements for a Valid Waiver of Right to Counsel

       The Sixth Amendment to the United States Constitution, as

applied to the states through the Fourteenth Amendment, and

article I, section 14 of the Hawai‘i Constitution guarantee a

person accused of a crime the right to counsel at every critical

stage of prosecution.       State v. Merino, 81 Hawai‘i 198, 219, 915

P.2d 672, 693 (1996).       A “critical stage” of prosecution

includes “any stage where potential substantial prejudice to [a]

defendant’s rights inheres[.]”         Phua, 135 Hawai‘i at 512, 353

P.3d at 1054 (internal citation omitted).

       There are two general requirements for a valid waiver of

counsel: first, the waiver of counsel must be “knowingly and

intelligently” made, and second, “the record [must be] complete

so as to reflect that waiver.”         Id. at 512, 353 P.3d at 1054

(internal citation omitted).        The latter requirement enables

appellate courts to determine from the record whether there was

an unequivocal waiver, which was voluntarily and freely made.

Id.

       “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.”     State v. Dicks, 57 Haw. 46, 49, 549 P.2d 727, 730

(1976).    There are “three areas of ‘specific waiver inquiry’

factors to assist trial courts: (1) the particular facts and

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circumstances relating to the defendant that indicate the

defendant’s level of comprehension; (2) the defendant’s

awareness of the risks of self-representation; and (3) the

defendant’s awareness of the disadvantages of self-

representation.”      Phua, 135 Hawai‘i at 512, 353 P.3d at 1054

(citing Dickson, 4 Haw. App. at 618, 673 P.2d at 1041).              “The

extent and depth of the court’s inquiry and explanation of the

second and third factors should respond to the court’s

perception of the defendant’s level of understanding.”              Id. at

514, 353 P.3d at 1056.       “While courts are not required to

strictly adhere to Dickson’s analytical framework, it provides

an important tool to ensure waivers are made knowingly and

intelligently in addition to establishing a complete record for

appellate review.”      Id. at 513, 353 P.3d at 1055.

B.     There was No Valid Waiver of Counsel

       In this case, there was no written waiver of counsel in the

record on appeal.      Thus, we review the recordings of the

district court’s oral colloquies, as outlined above, to

ascertain whether there was a valid waiver of counsel.

       1.   Defendant’s Level of Comprehension

       The first prong of the Phua test recommends the court

“explore facts and circumstances pertaining to the defendant

that will allow the court to determine the defendant’s level of

comprehension.      Such circumstances include age, education,

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English language skills, mental capacity, employment background,

and prior experience with the criminal justice system.”                 Id. at

513, 353 P.3d at 1055.          Ascertaining the defendant’s level of

comprehension is necessary for the court to know the extent to

which it must warn the defendant of the risks of self-

representation and the potential disadvantages of choosing to

proceed pro se.         Id.

          Here, the recordings reveal the court did not inquire about

Erum’s background.         The record does not contain any evidence

that prior to the arraignment, the district court was privy to

any information regarding Erum’s mental capacity, employment

background or prior experience with the criminal justice system-

-all factors that would be necessary to determine Erum’s level

of comprehension and thus his ability to intelligently and

knowingly waive his right to counsel.5             The district court,

therefore, did not meet the first prong of the test discussed in

Phua.

          2.   Defendant’s awareness of the risks of self-
               representation

          The second prong of the Phua test recommends the court warn

the defendant of the risks particular to the defendant in

proceeding without counsel by making the defendant “aware of the

5
      On July 2, 2015, Erum filed a Motion For Relief From Default and For
Extension Of Time To File Jurisdictional Statement And Opening Brief. The
motion indicated that he was 82 years old and allegedly had a “poor memory
associated with [his] age.”


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nature of the charge, the elements of the offense, the pleas and

defenses available, the punishments which may be imposed, and

all other facts essential to a broad understanding of the whole

matter.”    Phua, 135 Hawai‘i at 514-15, 353 P.3d at 1056-57

(internal quotation marks and citations omitted).             “[T]he

judge’s warnings must reflect more than ‘vague, general

admonishments, without reference to specific risks or

disadvantages.’”      Id. at 514, 353 P.3d at 1056.

       In Dickson, the ICA determined that although “Defendant

made a clear and unequivocal demand to represent himself” and

“[t]he record also indicate[d] that Defendant’s decision was

freely and voluntarily made . . . the record [did] not show that

the trial judge sufficiently informed Defendant of the dangers

and disadvantages of proceeding pro se, or made sufficient

inquiry into his awareness thereof.”          Dickson, 4 Haw. App. at

622, 673 P.2d at 1043 (italics omitted).           The ICA concluded that

under these facts, “the record does not indicate that Defendant

made a knowing and intelligent waiver of counsel.”             Id. at 623,

673 P.2d at 1043.

       Although the district court informed Erum, “You do have one

of these [charges] as a petty misdemeanor that carries a

sentence of up to thirty days in jail,” it did not address the

other factors under this second prong.           Therefore, the second

Phua prong is also not satisfied.

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       3.   Defendant’s awareness of the disadvantage of self-
            representation

       The final prong of the Phua test is whether the court

informed the defendant of the disadvantages of self-

representation before a waiver of the right to counsel is

obtained.     Phua, 135 Hawai‘i at 515, 353 P.3d at 1057.          This

includes the requirement that the trial court “meaningfully

inform the defendant of his or her right to the assistance of

counsel.”     Id.   Such information may be conveyed by asking the

following questions:

            Because of the seriousness of the offense and the serious
            consequences of being found guilty, do you understand that
            you have a Constitutional right to be represented by an
            attorney at a sentencing hearing?

            Do you understand that if you cannot afford an attorney,
            you have the right to have free legal representation
            through the public defender’s office or a court appointed
            lawyer?

 Id. (footnote omitted).

       Furthermore, in addition to conveying this information to

the defendant,

            the trial court should inform the defendant: of his right
            to counsel, whether private or appointed . . . that self-
            representation is detrimental to himself; that he will be
            required to follow all technical rules and substantive,
            procedural, and evidentiary law; that the prosecution will
            be represented by able counsel; that a disruption of the
            trial could lead to vacation of the right to self-
            representation; and that if voluntary self-representation
            occurs, the defendant may not afterward claim that he had
            inadequate representation.

Dickson, 4 Haw. App. at 620, 673 P.2d at 1041–42 (internal

citation omitted).


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       At the start of the bench trial, the court asked Erum if he

was referred to the Public Defender’s office.            Erum stated he

“didn’t choose not to go [to the Public Defender’s office], it’s

just that [he was] not an indigent person.”            Erum also stated

that “in [the] short space of time [before the bench trial] [he]

was not able to get an attorney.”          The court informed Erum he

could have more time to find an attorney, but did not take any

steps to advise Erum of the potential risks involved in self-

representation.      Thus, the third prong of the Phua test is not

satisfied.

                                V. Conclusion

       Accordingly, based on the totality of circumstances, there

was no valid waiver of counsel in this case.            We therefore

vacate the ICA judgment on appeal as well as the district court

judgment and remand for further proceedings consistent with this

summary disposition order.

       DATED:   Honolulu, Hawaii, May 19, 2017.

Theodorico Erum, Jr.                /s/ Mark E. Recktenwald
petitioner pro se
                                    /s/ Paula A. Nakayama
Tracy Murakami
for respondent                      /s/ Sabrina S. McKenna

                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson




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