    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000686
                                                              30-JUN-2015
                                                              10:31 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI.
                   Respondent/Plaintiff-Appellee,

                                    vs.

                          HAN KAMAKANI PHUA,
                   Petitioner/Defendant-Appellant.


                            SCWC-11-0000686

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-11-0000686; CASE NO. 3P810-0184)

                              June 30, 2015

  RECKTENWALD, C.J., McKENNA, AND POLLACK, JJ., WITH, NAKAYAMA,
 J., CONCURRING AND DISSENTING, WITH WHOM CIRCUIT JUDGE OCHIAI,
              IN PLACE OF ACOBA, J., RECUSED, JOINS

                OPINION OF THE COURT BY POLLACK, J.

          This case concerns the right of a defendant to be

represented by counsel during criminal proceedings and the

importance of ensuring that a waiver of this right is made

knowingly, intelligently, and voluntarily.         Han Kamakani Phua

attended his sentencing hearing without his lawyer, and after a
brief colloquy with Phua, the district court found that he

validly waived his right to counsel and imposed sentence.             The

Intermediate Court of Appeals (ICA) affirmed the finding of the

district court that Phua waived his right to counsel and upheld

Phua’s sentence.     We conclude that the record does not support a

finding that Phua’s waiver of counsel was knowingly and

intelligently made, and therefore Phua’s sentence must be

vacated and the case remanded for a new sentencing hearing.

                               I. BACKGROUND

            On July 28, 2010, the complainant and others entered

the property where Phua lives and works.          Phua confronted the

group believing they were trespassing, and a non-violent quarrel

ensued between Phua and the complainant.          Phua was arrested and

charged with the offense of harassment.1          At arraignment and



      1
            The Amended Complaint, included language from the following
subsections of HRS § 711-1106(1) (1993 & Supp. 2009):

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

            . . .
            (b) Insults, taunts, or challenges another person in
            a manner likely to provoke an immediate violent
            response or that would cause the other person to
            reasonably believe that the actor intends to cause
            bodily injury to the recipient or another or damage
            to the property of the recipient or another;

            . . .
            or (f) Makes a communication using offensively coarse
            language that would cause the recipient to reasonably
            believe that the actor intends to cause bodily injury
                                                              (. . .continued)
                                    - 2 -
 
plea, Phua appeared with counsel in the District Court of the

Third Circuit (district court), entered a not guilty plea to the

charge, and trial was scheduled for July 1, 2011.2

                          A. Motion to Continue

            When Phua’s Mandarin interpreter did not appear at

trial, his counsel requested a continuance because English is

Phua’s second language.      Defense counsel explained that when

dealing with “legal issues that are very much terms of art,

there need[ed] to be an interpretation” for Phua to fully

understand.    The State opposed the continuance, and two State

witnesses and two defense witnesses testified regarding the

motion to continue.

            The State’s first witness--Phua’s coworker and the

complainant’s daughter--testified that though Phua was a stock

boy at Walmart who usually worked the night shift, Phua

communicated and provided customer service to patrons in

English.   Additionally, Henry Ivy, a police officer who

interacted with Phua on the day of his arrest, testified that he

spoke with Phua in English, although he noted that Phua spoke



            (. . .continued)
            to the recipient or another or damage to the property
            of the recipient or another.
      2
            The Honorable Joseph P. Florendo, Jr. presided over the
proceedings in this case.


                                    - 3 -
 
with a slight accent.   Officer Ivy stated that Phua expressed in

English his understanding of his rights and that he signed a

waiver of rights in English without any difficulty.   Neither

State witness knew that Phua was born in Singapore or whether

Phua had any formalized education in English.

          Phua’s mother April Haunani Lui Phua, testified to the

following: (1) Phua was born in Singapore where he was raised by

his paternal grandmother who spoke no English; (2) his native

languages are Chinese and Malay; (3) he was not “given English

instruction in school because he did not pass the streaming exam

of the country to be proficient in his native language of the

country as well as English”; (4) he was considered a “special

education” student because he did not pass any elementary grade

levels after the first grade and repeated the sixth grade three

times; (5) he suffered from “heavy dyslexia”; (6) when he worked

at Walmart, he worked in the stock room with other native

Chinese speakers and did not work at a counter collecting cash

from customers in English; and (7) Phua, who was thirty-one

years old at the time of trial, had only lived in Hawaiʻi for

approximately six years.

          Shelley Stephens, who previously helped Phua with

legal documents in English, testified that she observed Phua was

unable to understand the meaning of certain unfamiliar legal

                               - 4 -
 
terms or phrases without assistance.         She also testified that

Chinese is Phua’s primary language and that Phua usually had

others present to help him with legal matters.

            The court denied the motion to continue the trial to a

later date.    The court determined that Phua had “some knowledge

of English and is reasonably able to converse in English.”             The

court explained that, although an English interpreter was

perhaps preferable, it was “not necessary” for Phua’s criminal

trial.    If Phua had trouble understanding any issue, the court

would provide him the opportunity to “speak with his attorney to

clarify any information that might be presented in court.”3             In

response to defense counsel’s request that Phua be allowed to

confer with his mother during breaks if there were any

comprehension difficulties, the court responded that Phua could

talk to whomever he wanted during breaks.          The case then

proceeded to trial.

                                  B. Trial

            Phua testified that when he heard the complainant on

the property, he went down to check the pump house as there had

been damage and vandalism to it in the past.           When he arrived at

the pump house, he found the complainant and those in her group


      3
            The district court noted that Phua had interpreters at the last
civil trial over which he presided.


                                    - 5 -
 
nearby.   Phua previously had contact with the complainant and

her family over alleged trespassing incidents on the property,

which was at the time legally disputed in civil proceedings.4

            Phua believed that the complaining witness and her

group were trespassing at the pump house.          He pointed out to the

complainant the “No Trespassing” sign posted on the pump house.

Phua testified that he did not ask for paperwork proving the

complainant’s Public Access Shoreline Hawaiʻi (PASH) rights,

which would permit access to the property.          The complainant and

members of her group, however, testified that Phua demanded her

PASH paperwork and that she showed it to him.           After this brief

interaction, a loud disagreement erupted.          Both Phua and the

complainant testified that they feared for their lives due to

the other’s actions, although no physical contact was involved

in the incident.     In defense to the harassment charge, Phua




      4
            The disputed property in this case was also the subject of
separate civil ejectment actions against Phua and several other individuals,
who allegedly occupied the land as trespassers. The Honorable Joseph P.
Florendo, Jr. also presided over these civil cases and granted summary
judgment in both cases. The complaining witness involved in this case was
found to have Public Access Shoreline Hawaiʻi (PASH) rights for recreational
purposes on the parcel where the incident occurred. In both of these cases,
Phua appeared pro se and was deemed to have no rights in the disputed
property.

            When this case commenced, one of the cases involving the
complainant’s PASH rights had already been decided, and the other commenced
in state court after the date of the alleged harassment but prior to trial.
There was also a pending federal court case.


                                    - 6 -
 
asserted self-defense, defense of others, and defense of

property.

            At the end of the bench trial, the district court

found Phua guilty of the charge.        Phua’s counsel requested a

Pre-Sentence Investigation Report (PSI), and preparation of the

PSI was referred to Adult Probation Services.           Sentencing was

scheduled for August 29, 2011.

                   C. Declaration of Phua’s Counsel

            Prior to sentencing, on August 23, 2011, Phua filed a

pro se “Motion to Ammend/Writ of Error” (sic) (Motion to Amend)

seeking to notify the court of the attempted removal or transfer

of a state civil matter to federal court.5

            Two days later, on August 25, 2011, Phua’s attorney

filed a “Declaration of Counsel” (Declaration).           The Declaration

stated counsel planned to seek a continuance of the sentencing

hearing because he was required to be at a trial on another

matter in Hilo on the scheduled hearing date.6           Counsel stated he

did not file a formal motion to continue the sentencing date

because Phua indicated that he wanted to be present on the




      5
            For a description of the civil proceedings, see supra, note 4.
      6
            Counsel indicated he would be available the week following the
scheduled hearing date.


                                    - 7 -
 
scheduled date and time, even if that meant appearing without

counsel.

           The Declaration presented two scenarios for the court

to consider based on whether or not Phua wished counsel to be

present at sentencing:     “If on his appearance [Phua] wishes

counsel present, [then] please consider this a motion for

continuance.   Otherwise, if Mr. Phua wishes to waive counsel for

sentencing [then] please refer to the Presentence Investigation

Report and this counsel’s submission to same which I understand

is contained therein.”

           Accordingly, if Phua wished to waive counsel at

sentencing, counsel asked the court to refer to the PSI, and

argued for leniency in sentencing, noting Phua was caught in a

stressful situation related to civil matters.          He also

recommended no jail or one day, already served, as Phua had no

other criminal record:

           This counsel strongly notes that the fact that [Phua]
           has no other criminal record. He felt provoked in a
           stressful situation that appears to be a civil matter
           that is being addressed through the civil courts.
           Defense Counsel recommends that no jail or 1 day as
           already served be considered, as the process has been
           sufficiently educational.

(Emphases added).

           Counsel pointed out in the Declaration that as of

August 25, 2011, he had not received the PSI but that he had

contacted probation services to fax it to him.          Counsel
                                   - 8 -
 
indicated that he would email and mail a copy to Phua when he

received it.   However, the record does not indicate whether

defense counsel received the PSI from probation services or

whether he forwarded it to Phua before the sentencing date.

                          D. Sentencing Hearing

          Four days later, on August 29, 2011, Phua appeared at

the sentencing hearing without counsel.           The district court did

not calendar the Declaration as a motion to continue or note it

in any other way in the minutes for the day.            The court also did

not mention the Declaration during the proceedings or ask Phua

if he wished to continue the hearing to a later date with

counsel present.      Rather, the court initially asked whether Phua

intended to proceed without counsel:

          THE COURT: Okay. Do you want to proceed with this
          case without your attorney?

          MR. PHUA: I have let my attorney go, and that’s why
          I have filed this document right in front of me that
          I have submitted to the Court. Last Thursday I filed
          it.

          THE COURT:    Okay.   So you have fired your attorney?

          MR. PHUA:    Yes.

          The court did not inquire as to why Phua had fired his

counsel; there is no indication of any problems between Phua and

counsel other than counsel’s unavailability for the scheduled

sentencing hearing.      The court continued its colloquy with Phua:

          THE COURT: Okay. Do you want to proceed and
          represent yourself?

                                     - 9 -
 
            MR. PHUA:    Yes, your Honor.

            THE COURT: You want to give up your right to an
            attorney for this hearing today?

            MR. PHUA:    Yes.

            THE COURT: Okay. Do you understand that you’re
            entitled to have an attorney represent you and if you
            cannot afford one, the Court can appoint one for you?
            Can I see the file?

            MR. PHUA:    No, I was not aware of that but –

            THE COURT:    Do you still wish to proceed without an
            attorney?

            MR. PHUA:    Yes.

(Emphases added).        Phua’s response that he “was not aware” of

the right to appointed counsel is not further clarified.7

            Next, the court informed Phua generally about

counsel’s role, determined Phua’s age and level of education,

and confirmed that no one was forcing him to proceed without

counsel:

            THE COURT: Now, an attorney can provide you with
            information and advice, can represent you at all
            stages of these proceedings, and can speak for you in
            court. Do you understand?

            MR. PHUA:    Yes.

            THE COURT: And if you represent yourself, you will
            be opposed by a prosecuting attorney who is more
            experienced at trial, and you would be at a
            disadvantage in terms of knowledge and understanding
            of court practice and procedure.

            MR. PHUA:    Yes.

            THE COURT:    How old are you?

      7
            Phua was not represented by court-appointed counsel during the
proceedings.


                                     - 10 -
 
          MR. PHUA:    Thirty-one.

          THE COURT:   How many years of education have you
          received?

          Mr. PHUA:    High school.

          THE COURT:   And anyone forcing you to represent
          yourself?

          MR. PHUA:    No.

          THE COURT: Okay. All right. The Court would find
          that you have knowingly and voluntarily waived your
          right to an attorney with an understanding of the
          nature and elements of the charge. This is for
          sentencing, so you’ve heard all of the evidence.

          MR. PHUA:    But –

          THE COURT: And does the state have any comments with
          regard to sentencing?

          The record does not reflect any further inquiry by the

court into Phua’s decision to proceed without counsel, including

whether Phua understood the maximum penalties that could be

imposed for the offense of which he had been convicted.

          The court then proceeded directly to sentencing.           Phua

was not asked if he had received a copy of the PSI, and

consequently, there was no inquiry as to whether Phua had any

corrections or additions to the PSI.           When the State was asked

for its sentencing recommendation, the prosecutor referred to

the contents of the PSI.       Phua interrupted the prosecutor asking

for a “motion to strike because that is hearsay.”

          After the State’s argument, the court asked Phua if he

wanted to make “any statement,” without specifically referring

                                      - 11 -
 
to sentencing.     Phua responded with statements about his Motion

to Amend:

            THE COURT: Okay.   And, Mr. Phua, do you want to make
            any statement?

            MR. PHUA: Yes, your Honor. On August 23rd, I had
            filed a motion to amend and slash writ of error that
            my attorney at the time, Gary Zamber – I had told him
            that these two cases before me in this document, 195
            and 131, were pertinent subject matter to this
            harassment charge. And I told him to remove the case
            to the federal court, to consolidate it, and at that
            time he had told me that I had no such right.

            THE COURT:   Well, he’s right.   He’s right.

            MR. PHUA: I haven’t finished, your Honor. And that
            the case 195 and 131, that the case has been removed
            to the federal court and that by allowing this case
            to go forward would only affect judgment due to
            defense of property.

            And due to my sovereign rights, I feel that the
            Article I court, which is this court that I’m in
            right now, does not have the rights or jurisdiction
            over me, the sovereign; that only Article III, a
            competent court of the federal court in Honolulu, the
            Hawaiʻi District Court of the United States, has
            jurisdiction to try me.

(Emphases added).

            The Court asked Phua why a federal court would have

jurisdiction over his case but not a state court.            Phua

explained that he was a “sovereign” and that he was choosing a

court to “fit [his] needs.”        Phua then explained why he had

filed his writ of error:

            And that’s why I filed a writ of error because it’s
            judgmental because the defense – well, the prosecutor
            had attached the summary judgment and had my case
            into a land issue that there was a witness called
            representing the county, and I feel that I was not
            fairly recognizing the case as I told my attorney
            that I wanted to file a removal.

                                    - 12 -
 
            Whether or not if that was granted, at that time I
            did not sen[d] my paper to the federal court, which
            my – I have attached on June 20th. Chief Justice
            Susan Mollway[8] stamped approval for my case to be
            removed to the federal court. But because I had
            trust my attorney to represent me at the time, that
            he would look out for my interests and only my
            interests, and I feel that he has failed to represent
            me fairly.

The court then denied Phua’s Motion to Amend, which was “in the

file” and sentenced Phua to the maximum five-day jail term

allowed for a term of probation for the harassment offense:

            THE COURT: Okay. So I see that there is a motion to
            amend in file, and if what you just told me is the
            basis of that motion, I will deny it. I don’t find
            any good cause to grant that request. This is a
            state case. This Court has jurisdiction over the
            charge and over you, and the Court has already
            rendered a decision at a trial. So your request to
            amend, if I understand you correctly, to transfer
            this case to the federal district court has no basis
            in fact or law, and I will deny it.

            With regard to sentencing, the Court has considered
            the presentence investigation and the provision in
            Sections 706-606 and 706-621. I will place you on
            probation for a period of six months. I will order
            you to abide by the terms and conditions – general
            terms and conditions of probation, order you to pay a
            criminal injury fee of $30 and a probation fee of
            $75. I will order you to serve a sentence of jail of
            five days. I’ll allow credit for one day.[9]

During the proceeding, Phua did not make a statement regarding

sentencing for the offense, or address any mitigating factors

      8
            Chief Judge Susan Mollway is a federal district judge of the
United States District Court for the District of Hawaiʻi.
      9
            Harassment is a petty misdemeanor offense. HRS § 711-1106(2).
For a petty misdemeanor, the court may sentence a person to a jail term not
exceeding thirty days. HRS § 706-663 (1993). Alternatively, a court may
impose a term of probation of up to six months and up to one year with a
finding of good cause. HRS § 706-623(1)(d) (1993 & Supp. 2009). As a
condition of probation in petty misdemeanor cases, the court may also impose
a jail term not exceeding five days. HRS § 706-624(2)(a) (1993 & Supp. 2006).


                                   - 13 -
 
regarding the incident, his lack of a criminal record, or the

possible sentencing dispositions.

                 E. Intermediate Court of Appeals

           On September 16, 2011, Phua filed a Notice of Appeal

to the Intermediate Court of Appeals (ICA).   Phua asserted on

appeal that the district court erred in concluding that he

knowingly and intelligently waived his constitutional right to

counsel.

           Phua contended the district court’s overall

examination was “woefully deficient.”   He highlighted that the

court should have inquired into primary factors affecting his

ability to comprehend--including his education, work history,

and experience with the criminal justice system--before

informing him of the risks of self-representation because the

information elicited would have put the court on notice that a

more in-depth examination of waiver of counsel was necessary.

At the very least, Phua asserted that the court should have made

him aware of the maximum possible punishment and any other facts

essential to a broad understanding of the charges against him.

           Phua also argued that the district court erred by

ignoring his response that he was not aware of the right to

court-appointed counsel and in failing to further inform him of

that right if he could not afford representation.   Phua

                              - 14 -
 
contended that he was unable to understand the consequences of

his actions when he decided to appear pro se at sentencing and

that there was nothing to show his familiarity with the legal

system.

           The State countered that the court did not violate

Phua’s right to counsel at sentencing because Phua effectively

waived his right by firing his counsel, by failing to seek

replacement counsel, and by not seeking a continuance of his

sentencing hearing.   The State also maintained the district

court sufficiently advised Phua of his right to court-appointed

counsel and gave him enough time to request counsel or seek new

counsel.   The State contended “it was not necessary to establish

that [Phua] had prior experience representing himself in a

criminal trial” to allow him to proceed pro se because he had

already been found guilty at trial.

           Moreover, the State argued that Phua failed to show

any “substantial detriment” resulting from self-representation.

The State asserted that Phua’s refusal to take “court warnings

about self-representation seriously enough to obtain counsel

does not mean that the State or complainants should suffer the

consequences of [Phua’s] stubborn attitude and reckless manner

by being deprived of the finality of a conviction and sentence.”



                              - 15 -
 
          In its November 19, 2013 Summary Disposition Order

(SDO), the ICA concluded that the district court’s inquiry and

explanation of Phua’s waiver of counsel was adequate because

“the record need not reflect a discussion between the court and

a defendant illuminating every [Dickson] factor.”   The ICA also

found the district court sufficiently informed Phua of his right

to court-appointed counsel if he could not afford one, “albeit

in the form of a question rather than a statement.”

          Further, the ICA found that Phua “articulated no

reason why the District Court’s inquiry about his education,

work history, and experience after warning him of the possible

punishment and advising him of the risks of self-representation

was prejudicial.”   The ICA noted that the record demonstrated

that Phua was “adequately informed of the risks of self-

representation, the right to private or appointed counsel, and

that the waiver was made knowingly and voluntarily.”   The ICA

concluded the district court “did not plainly err by finding

that Phua waived his right to counsel during sentencing.”

              F. Application for Writ of Certiorari

          Phua presents the following questions in his

Application for Writ of Certiorari (Application): (1) whether

the ICA gravely erred in holding that the district court did not

plainly err when it found Phua knowingly and intelligently

                              - 16 -
 
waived his right to counsel for sentencing; and (2) whether the

district court erred by failing to personally address Phua

regarding his right to pre-sentence allocution.

          With regard to the first question presented, Phua

advances similar arguments raised before the ICA.   He asserts

that the record reflects the district court’s examination was

insufficient to establish a knowing and intelligent waiver of

counsel and to assure his awareness of the risks of self-

representation.   Phua further suggests his ability to “defend

his interests on a level playing field was substantially

affected by the lack of counsel during sentencing.”   Phua also

argues that the district court erred in failing to inform him of

the dangers and disadvantages of self-representation and that

this affected the outcome of the sentence and therefore “was not

harmless beyond a reasonable doubt.”

          Concerning the second question presented, Phua

contends the district court erred when it failed to personally

address him regarding pre-sentence allocution because when the

court asked for “any statement,” Phua referenced his pro se

Motion to Amend and did not assert his right to allocution.

Phua contends the court denied his Motion to Amend and proceeded

directly to sentencing without “further affording [him] an

opportunity to make a statement regarding sentencing and to

                              - 17 -
 
present any information in mitigation of his punishment.”

Although Phua acknowledges he did not raise this issue on appeal

before the ICA, he urges this Court to notice plain error

pursuant to Rule 28(b)(4) of the Hawaiʻi Rules of Appellate

Procedure (HRAP) (2010).10

            The State did not respond to Phua’s Application.

                         II. STANDARD OF REVIEW

            We review questions of constitutional law by

exercising our own independent constitutional judgment based on

the facts of the case.      E.g., State v. Rogan, 91 Hawaiʻi 405,

411, 984 P.2d 1231, 1237 (1999).        Therefore, we review questions

of constitutional law under the right/wrong standard.            E.g.,

State v. Mallan, 86 Hawaiʻi 440, 443, 950 P.2d 178, 181 (1998).

                              III. DISCUSSION

                      A. Waiver of Counsel Inquiry

            Both the Hawaiʻi Constitution and the United States

Constitution guarantee a person accused of a crime the right to

be represented by counsel “at every critical stage of the

prosecution.”    Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577,

582 (1976) (citing United States v. Ash, 413 U.S. 300 (1973)).

A “critical stage” of the prosecution includes “any stage where
      10
            HRAP 28(b)(4) states that any point of error not presented on
appeal in accordance with Rule 28 “will be disregarded, except that the
appellate court, at its option, may notice a plain error not presented.”


                                   - 18 -
 
potential substantial prejudice to [a] defendant’s rights

inheres,” and it has long been settled that this includes

sentencing.    State v. Pitts, 131 Hawaiʻi 537, 544, 319 P.3d 456,

460-61 463 (2014) (quoting State v. Masaniai, 63 Haw. 354, 359,

628 P.2d 1018, 1022 (1981)).       The assistance of counsel at

sentencing is of paramount importance because it is an

“oftentimes complicated part of the criminal process that

contains subtleties which may be beyond the appreciation of the

average layperson seeking to represent him/herself.”           D’Ambrosio

v. State, 112 Hawaiʻi 446, 464, 146 P.3d 606, 624 (2006) (quoting

United States v. Salemo, 61 F.3d 214, 220 (3d Cir. 1995)).

           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.”       State v. Dickson, 4 Haw. App.

614, 619, 673 P.2d 1036, 1041 (1983).11        The trial court must


     11
            The minority quotes a portion from Iowa v. Tovar, 541 U.S. 77
(2004), for the proposition that Miranda warnings “adequately inform[] the
defendant of his [or her] Sixth Amendment right to counsel.” See minority at
3 (alterations in original) (quoting Tovar, 541 U.S. at 90). In doing so,
the minority misapplies Justice Ginsburg’s opinion in Tovar. The passage
cited by the minority was addressing Patterson v. Illinois, 487 U.S. 285
(1988), and stated as follows:

           Patterson concerned postindictment questioning by police
           and prosecutor. At that stage of the case, we held, the
           warnings required by Miranda v. Arizona, 384 U.S. 436
           (1966), adequately informed the defendant not only of his
           Fifth Amendment rights, but of his Sixth Amendment right to
           counsel as well. Miranda warnings, we said, effectively
                                                             (. . .continued)
                                   - 19 -
 
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.”         Id.   The latter

requirement arises because appellate courts are charged with

determining from the record whether there was an unequivocal

waiver, which was voluntarily and freely made.          Id. at 621, 673

P.2d at 1042.

           Dickson set forth three areas of “specific waiver

inquiry” factors to assist trial courts:         (1) the particular

facts and 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.     Id. at 619-20, 673 P.2d at 1041-42.        Under



           (. . .continued)
           convey to a defendant his right to have counsel present
           during questioning.

Tovar, 541 U.S. at 89. Thus, the Court in Tovar noted that Miranda warnings
were adequate to inform a defendant of his Sixth Amendment right to counsel
at the stage of postindictment questioning by police and prosecutor. 541
U.S. at 89. This case involves a defendant waiving the right to counsel
during a sentencing proceeding. We apply Article 1 section 14 of the Hawaiʻi
Constitution, which guarantees the assistance of counsel for an accused’s
defense in criminal prosecutions and court-appointed counsel for an indigent
defendant. See Haw. Const. art. I, § 14; State v. Merino, 81 Haw. 198, 219,
915 P.2d 672, 693 (1996). “In an appeal involving the question of whether
one has been deprived of the right to counsel,” our task is to determine
whether the record reflects that “there was an unequivocal waiver, which was
voluntarily and freely made, and based upon an intelligent awareness of the
benefits associated with representation by counsel and the dangers and
disadvantages of self-representation.” 4 Haw. App. at 622, 673 P.2d at 1042.


                                   - 20 -
 
Dickson, the first factor dictates the level and depth of the

court’s inquiry regarding the second and third factors.       Id. at,

619, 673 P.2d at 1041.

              Thus, Dickson indicates that a “trial court should

first examine” the facts and circumstances particular to the

defendant that will assist the court in assessing the

defendant’s level of comprehension.       Id.   Once this initial

inquiry is complete, the trial court may tailor its colloquy

with the defendant to ensure that the court adequately conveys

the risks and disadvantages of self-representation in a manner

that the defendant will be able to understand.       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.

    1.   Background and Comprehension of the Defendant

              Once the defendant expresses an interest in proceeding

pro se, Dickson recommends that the court first 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, English language

skills, mental capacity, employment background, and prior

experience with the criminal justice system.       This examination

                                 - 21 -
 
of the “particular facts and circumstances relating to the

defendant . . . is necessary to allow the trial court to

determine the level and depth to which its explanation and

inquiry must extend.”   Dickson, 4 Haw. App. at 619, 673 P.2d at

1041.

          In this case, the district court’s inquiry into Phua’s

particular circumstances was limited.    The court questioned Phua

about his age and whether he attended high school.    However,

there was other information before the court that suggested a

further inquiry into Phua’s background was necessary.    As to his

education, Phua’s mother testified at trial that he was

considered a “special education” student, he did not pass any

elementary grade levels after the first grade, and he repeated

the sixth grade three times.   The court’s inquiry did not

address these matters and further inquiry as to where Phua was

educated and whether he received a high school diploma may have

benefited the court’s analysis.

          Additionally, the court did not inquire into Phua’s

English language skills even though the court was on notice that

English was Phua’s second language.     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. Gomez-Lobato, 130

                               - 22 -
 
Hawaiʻi 465, 471, 312 P.3d 897, 903 (2013) (quoting United States

v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997)).    In

this case, the court ruled at trial that Phua’s language ability

was adequate to proceed without an interpreter.   However, when

the court made this ruling, Phua had the assistance of counsel

to help him in understanding legal terms and the nature of the

proceedings.   In fact, the court specifically mentioned that if

Phua had trouble understanding any issue, the court would

provide Phua an opportunity to speak with his attorney for

clarification.   Given the potential language barrier, the

district court should have further questioned Phua in this

regard.

          Another important circumstance that should have been

addressed by the trial court is Phua’s prior experience or

familiarity with criminal trials.    A defendant’s experience, or

knowledge of, the court system may be a factor in determining

that a valid waiver was made.    See Dickson, 4 Haw. App. at 622-

23, 673 P.2d at 1040, 1043 (finding that the record did not

indicate a knowing and intelligent waiver of counsel where there

was nothing to show that the defendant had previously

represented himself, that he was familiar with a felony jury

trial situation, or that he was aware of the pitfalls of

proceeding pro se, even though the record indicated the

                                - 23 -
 
defendant had “many contacts with the legal system”).            While

Phua was involved in two prior civil cases,12 Phua’s counsel

indicated in his Declaration that Phua had no prior criminal

record.

           It is questionable whether Phua perceived the

distinction between criminal and civil actions. When given an

opportunity to make a statement regarding his sentence, Phua

instead expressed his desire to have the case removed to federal

court and consolidated with his civil cases.          Phua further

expressed that a federal court “might be able to fit [his]

needs” and that “Chief Justice Susan Mollway stamped approval

for [his] case to be removed to the federal court.”           Phua did

not address the State’s recommended sentence, nor did he make

any suggestion of what an appropriate sentence would be.

           The district court’s inquiry into Phua’s background

and understanding not only was lacking in depth, but it came at

the end of the court’s colloquy with Phua.          The court questioned

Phua concerning his age and education only at the end of the

waiver colloquy after briefly informing him of the pitfalls of


     12
            The district court took judicial notice of its judgments in two
cases involving possession of the land over which the dispute in this case
arose. Phua was a defendant in one of those civil cases, in which he
appeared pro se. The minutes reflect that Phua appeared at the hearing on
the motion for summary judgment with an interpreter. In the second case, in
which Phua was not a party, Phua was present with an interpreter at the
hearing on the plaintiff’s motion for summary judgment.

                                   - 24 -
 
self-representation.      Dickson indicates that the first area of

inquiry is “necessary to allow the trial court to determine the

level and depth to which its explanation and inquiry must

extend.”    Id. at 619, 673 P.2d at 1041.        Without this initial

examination, the trial court may lack the requisite information

to determine the defendant’s level of comprehension necessary in

order to ascertain whether the defendant understood the risks

and disadvantages of self-representation.          Here, given Phua’s

limited education, his potential language barrier with the

court, and his unfamiliarity with the criminal justice system,

further inquiry into Phua’s background should have been

conducted by the district court before proceeding to the court’s

warning of the risks and disadvantages of waiving counsel.13

2.    Defendant’s Level of Understanding of the Risks and
      Disadvantages of Self-Representation

            Dickson directs that once the court completes its

examination of the defendant’s background and level of

comprehension, the court may then move onto the second and third

areas of inquiry, which involve warning the defendant of the


      13
            We do not, as the minority indicates, find that the trial court
was constitutionally required to conduct further inquiry into Phua’s
background. See minority at 4. Rather, we adopt the recommendations of
Dickson, which suggests areas of inquiry to assist courts in obtaining a
valid waiver and has been the governing law in Hawai#i courts for over thirty
years. Given the record in this case, Phua’s proficiency in English may be
relevant to the court’s inquiry on remand.


                                   - 25 -
 
risks particular to the defendant in proceeding without counsel,

and then explaining to the defendant the inherent disadvantages

of self-representation.   See 4 Haw. App. at 619-20, 673 P.2d at

1041; Wayne R. LaFave et al., Criminal Procedure § 11.5(c).    The

record must reflect that the defendant understands what he or

she is doing and that the decision is made “with eyes open.”

Faretta v. California, 422 U.S. 806, 835 (1975)).

          Although the trial court “is not required to give the

defendant a short course in criminal law and procedure,” the

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

admonishments, without reference to specific” risks or

disadvantages.   Dickson, 4 Haw. App. at 620, 673 P.2d at 1042.

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.    The

purpose of the trial court in this regard is not simply to

mechanically provide the defendant with the information, but

rather, the court should engage the defendant to ensure that the

waiver is intelligently and voluntarily made.

          In some circumstances, it may be necessary for a trial

court to ask follow up questions to confirm the defendant’s

understanding of the court’s warnings of the risks of waiving



                              - 26 -
 
counsel and the disadvantages of self-representation.14            This is

particularly true in cases where there is a potential language

barrier between the defendant and the court--as there was in

this case.15    See Gomez-Lobato, 130 Hawaiʻi at 472, 312 P.3d at

904.    In Gomez-Lobato, this court found that a language barrier

between the court and the defendant “should have prompted the .

. . court to ask additional questions to verify that [the

defendant] understood the right he was waiving.”           Id. at 479,

312 P.3d at 912.

       a.   Risks of Self-Representation

            The second area of inquiry set forth in Dickson is

designed to “fully assure that the defendant is informed of the

risks of self-representation.”        4 Haw. App. at 619-20, 673 P.2d

at 1041.    The court should therefore make the defendant aware of

“the 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.”      Id. (citations omitted).       This

information is essential to a defendant’s understanding of the

personal risks of self-representation.         Id.

       14
            LaFave et al., supra note 11, § 11.5(c) suggests that trial court
follow up any reference to a risk or disadvantage with an inquiry designed to
reveal whether the defendant understands the court’s warning.
       15
            See supra Part III.A.


                                    - 27 -
 
            In this case, the district court did not address the

potential risks of self-representation with Phua.            Most

significantly, the court did not inform Phua of the potential

punishment that could be imposed at the sentencing proceeding.16

It is unlikely that a record could reflect a knowing and

intelligent waiver of counsel at sentencing without the

defendant being apprised of such basic information as the

maximum or range of punishment that may be imposed.            See State

v. Hartman, 349 A.2d 223, 225 (Vt. 1975) (“If a defendant . . .

is unaware of the nature of the charges and the range of the

allowable punishment at the time of his decision to represent

himself, the waiver of his rights . . . is not made knowingly

and intelligently.”).      This is particularly true in this case

where the record reflects that Phua had limited or no

familiarity with the criminal justice system.

            Since information regarding the potential sentence is

fundamental to an understanding of the risks of waiving counsel,

trial courts should take care to ask questions that inform a

defendant of this critical information.          The record shows no

      16
            The ICA misapprehended the record in this case: “Phua articulates
no reason why the District Court’s inquiry about his education, work history,
and experience after warning him of the possible punishment and advising him
of the risks of self-representation was prejudicial.” (Emphasis added). No
such warning regarding the possible punishment occurred in this case.




                                   - 28 -
 
indication that Phua was informed of or understood the maximum

penalty that could be imposed at sentencing; consequently we

cannot find that his waiver of counsel was knowingly and

voluntarily made.

      b.    Disadvantages of Self-Representation

            Finally, Dickson provides that a trial court must also

inform the defendant of the inherent disadvantages of self-

representation before a waiver of the right to counsel is

obtained.    4 Haw. App. at 620, 673 P.2d at 1042-43.          An

essential obligation in this regard is to meaningfully inform

the defendant of his or her right to the assistance of counsel.

LaFave et al., supra, § 11.3(a).        Such information may be

conveyed by 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?[17]

The record demonstrates that Phua was not fully aware of his

right to court-appointed counsel.        When asked whether he

understood his right to a court appointed attorney if he could

      17
            Under HRS § 802-2, “[i]n every criminal case or proceeding in
which a person entitled by law to representation by counsel appears without
counsel, the judge shall advise the person of the person’s right to
representation by counsel and also that if the person is financially unable
to obtain counsel, the court may appoint one at the cost to the State.”


                                   - 29 -
 
not afford one, Phua responded, “No, I was not aware of that . .

. .”   The court did not further discuss the right to court-

appointed counsel with Phua but instead asked him whether he

still wished to proceed without an attorney.           We find that

Phua’s response that he was not aware of the right to a court-

appointed attorney required further explanation and inquiry.

See State v. Young, 73 Haw. 217, 220-21, 830 P.2d 512, 514

(1992) (noting that “waiver of a fundamental right is never

presumed” and finding that where record is unclear as to whether

defendant is waiving his right to jury trial, the court should

conclude the defendant is not waiving the right); see also State

v. Gomez-Lobato, 130 Hawaiʻi 465, 469, 312 P.3d 897, 901 (2013)

(“[T]he court should also engage in an oral colloquy with the

defendant to establish that the waiver was knowing, intelligent,

and voluntary.”); State v. Ibuos, 75 Haw. 118, 122, 857 P.2d

576, 578 (1993) (“The necessity for colloquy between the court

and a defendant is especially apparent in light of the

importance we place on the personal nature of a defendant's

right to a jury trial.”).18



      18
            In finding this exchange sufficient under Miranda (“No, I was not
aware of that . . . .”), the minority reduces the judge’s role to merely
notifying a defendant of his constitutional rights, without responsibility to
clarify when the defendant expresses confusion or lack of understanding
regarding the right that is being advised. See minority at 3-6.

                                                              (. . .continued)
                                   - 30 -
 
            Once informed of the right to counsel or court-

appointed counsel, the “defendant’s relinquishment of that right

must be clear and unequivocal.”        LaFave et al.,

supra, § 11.3(a); see also Young, 73 Haw. at 220, 830 P.2d at

514.   Dickson summarizes the information that a trial court

should inform a defendant regarding the disadvantages of self-

representation:

            [T]he 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 self-
            representation.

Dickson, 4 Haw. App. at 620, 673 P.2d at 1041-42 (emphasis

added) (citations omitted).




            (. . .continued)
      Additionally, the minority’s conclusion, which is premised on the
Miranda doctrine, is misplaced. “Miranda protects against the coercive
pressures of custodial interrogation.” Wayne R. LaFave et al., 2 Criminal
Procedure § 6.4(h) (3d ed.). On the other hand, the Sixth Amendment secures
the right to counsel in judicial proceedings. See State v. Luton, 83 Hawaiʻi
443, 448, 927 P.2d 844, 849 (1996) (“An individual has a right to counsel
under the sixth amendment to the United States Constitution and article I,
section 14 of the Hawaiʻi State Constitution which guarantees an accused the
right to assistance of counsel for his or her defense. This right “attaches
at critical stages of the criminal prosecution.” (alterations omitted)
(internal quotation marks and citations omitted) (quoting State v. Liulama, 9
Haw. App. 447, 453 n.5, 845 P.2d 1194, 1199 n.5 (1992); State v. Masaniai, 63
Haw. 354, 358, 628 P.2d 1018, 1022 (1981))). The distinction between these
two constitutional amendments does not render our decision “unprecedented.”
See minority at 5.


                                   - 31 -
 
          Although the district court informed Phua of some of

the disadvantages of self-representation, the record does not

indicate clearly whether Phua understood the seriousness of his

decision to waive his right to counsel.   The court might also

have warned Phua in simple terms that “self-representation is

detrimental to himself” and urged him to reconsider.    Id.

          In this case, the district court’s inquiry into the

disadvantages of self-representation is a series of yes or no

questions with little opportunity for Phua to express confusion

or ask questions.   Additional questions, or varying the form of

the questions, may have assisted the district court to verify

that Phua understood the right he was waiving.    See Gomez-

Lobato, 130 Hawaiʻi at 479, 312 P.3d at 912.     Further, a trial

court may find it beneficial to conclude the inquiry with a

question seeking an affirmation of the defendant’s desire to

waive the right to counsel--e.g., “Understanding all that I have

explained to you, do you still wish to waive your right to be

represented by a lawyer and to represent yourself at trial?” Had

the court concluded its inquiry by asking Phua if he still

desired to waive his right to counsel, Phua would have had an

opportunity to confirm or change his mind in light of the

court’s warnings.



                              - 32 -
 
3.    Validity of Phua’s Waiver

            The record in this case is critically deficient to

support a finding that Phua’s waiver of his right to counsel was

intelligently and knowingly made.        There were circumstances in

this case necessitating further inquiry into Phua’s background,

and the record does not reflect that Phua understood the risks

and disadvantages of waiving counsel.         The fact that the trial

court did not warn Phua of the range of allowable punishment in

this case is alone sufficient grounds for vacating the

sentence.19   Accordingly, this case must be remanded to the

district court for a new sentencing proceeding.

                       B. Pre-Sentence Allocution

            Phua also contends that the district court erred by

failing to personally address him regarding his right to pre-

sentence allocution.      We do not address the merits of this

contention in light of our conclusion that Phua did not

knowingly and intelligently waive his right to counsel.

Nonetheless, we reiterate the importance of a defendant’s right



      19
            Since both this opinion and the minority conclude that the
district court’s failure to advise Phua of the potential punishment is
sufficient ground for vacating the sentence, it is unnecessary to determine
whether “sentencing may require a less stringent colloquy.” Minority at 14.
We note however that a sentencing proceeding may include extended term
sentencing, involving presenting of evidence, cross-examination, argument,
and submission of jury instructions. We therefore specifically decline to
address this issue.


                                   - 33 -
 
to pre-sentence allocution under the Hawaiʻi Constitution and our

law.

            State v. Chow recognized the fundamental importance of

a defendant’s right to pre-sentence allocution.20           77 Hawaiʻi 241,

246-47, 883 P.2d 663, 668-69 (App. 1994).          Under Chow, trial

courts must ensure that its mandate is complied with during

sentencing proceedings, particularly as it is “essential to fair

treatment.”    Id. at 250, 883 P.2d at 672.        Accordingly, “[t]rial

judges before sentencing should, as a matter of good judicial

administration, unambiguously address themselves to the

defendant” providing a personal invitation to speak prior to

sentencing.    Id. at 248, 883 P.2d at 670 (quoting Green v.

United States, 365 U.S. 301, 305 (1961)).          The right is one

easily administered by the trial court by the following inquiry:

“Do you, . . . [(defendant’s name)], have anything to say before

I pass sentence?”     Id. at 248, 883 P.2d at 670 (alterations in

original) (quoting Green v. United States, 365 U.S. 301, 305

(1961)).



      20
            See also HRS § 706-604(1) (1993 & Supp. 2006) (“Before imposing
sentence, the court shall afford a fair opportunity to the defendant to be
heard on the issue of the defendant’s disposition.”); Rule 32(a) of the
Hawaiʻi Rules of Penal Procedure (HRPP) (2006) (“Before suspending or imposing
sentence, the court shall address the defendant personally and afford a fair
opportunity to the defendant and defendant’s counsel, if any, to make a
statement and present any information in mitigation of punishment.”).


                                   - 34 -
 
            We observe the trial court has an especially important

role in affording the right to pre-sentence allocution to a

defendant appearing pro se at sentencing.          When a pro se

defendant is not responsive to the court’s request for

allocution, the trial court may, as a matter of good judicial

administration, seek confirmation that the defendant understands

the right to address the court regarding sentencing before the

sentence is imposed.21

                              IV. CONCLUSION

            Based on the foregoing, we vacate the ICA’s December

23, 2013 Judgment on Appeal and the district court’s August 29,

2011 Judgment of Conviction and Sentence and remand the case to

the district court for resentencing.

James S. Tabe                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Sabrina S. McKenna
Linda L. Walton
for respondent                           /s/ Richard W. Pollack




      21
            We note that the record in this case does not disclose whether
Phua received a copy of the PSI. When a defendant appears pro se at
sentencing, the trial court should confirm the defendant received a copy of
the PSI and had an opportunity to review it. HRS § 706-604(2) requires the
trial courts to furnish the parties with a copy of the PSI and “afford fair
opportunity” for the parties to “controvert or supplement” it. Thus, the
court may verify that the PSI has been received by a counseled or uncounseled
defendant, when it affords the parties the opportunity to correct or
supplement the PSI.


                                   - 35 -
 
