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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              19-MAY-2020
                                                              07:54 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                           STATE OF HAWAIʻI,
                    Respondent/Plaintiff-Appellee,

                                    vs.

                            JASON K. UCHIMA,
                    Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-01965)

                              MAY 19, 2020

   McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN PART AND DISSENTING IN PART, AND CONCURRING IN THE
  JUDGMENT, AND WITH NAKAYAMA, J., DISSENTING FROM THE JUDGMENT

                  OPINION OF THE COURT BY POLLACK, J.

            In Hawaiʻi, a defendant in a criminal case has a

statutory right to appeal from a district or circuit court

judgment.    In situations when defense counsel has inexcusably or

ineffectively failed to timely file the notice of appeal, we
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have determined that not allowing the appeal to proceed would

result in the deprivation of the defendant’s due process rights.

          Defendants in criminal cases also have a statutory

right to seek review of an Intermediate Court of Appeals’ (ICA)

judgment on appeal by filing an application for writ of

certiorari to this court.      The effect of counsel’s failure to

timely file a certiorari application is no different than

counsel’s failure to timely file a notice of appeal--the

defendant has forfeited a statutory right and been deprived of

the effective assistance of counsel.        Upon review of applicable

precedent, we hold that certiorari review is a critical stage of

the criminal proceedings during which a defendant has the

constitutional right to effective assistance of counsel, which

includes counsel’s procedural compliance with the steps required

to timely file an application for a writ of certiorari.

          In this case the application for writ of certiorari

was untimely filed due to an error of defense counsel or as a

result of a computer system error.        Regardless of the source of

the error, defense counsel failed to ensure the timely filing of

the certiorari application, which counsel has acknowledged.                As

a result, the defendant was deprived of the constitutional right

to the effective assistance of counsel on discretionary review.

Under these circumstances, we may consider the merits of the

issues raised in the certiorari application, and we elect to do

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so here.   Based upon our review of the certiorari application,

we affirm the ICA’s judgment on appeal.

                     I.    BACKGROUND AND TRIAL

           On May 31, 2016, the State of Hawaiʻi charged Jason K.

Uchima by complaint in the District Court of the First Circuit

(district court) with operating a vehicle under the influence of

an intoxicant (OVUII) in violation of HRS § 291E-61(a)(1)1 and/or

(a)(3).2   Uchima pleaded not guilty to the charge.

           Prior to trial, Uchima filed a motion to suppress

evidence seized or information obtained by the Honolulu Police

Department (HPD) after he was arrested, including all statements

made by him to law enforcement.        Uchima argued that he was in

custody when he was instructed by HPD Officer Richard Townsend

to exit his vehicle and asked to participate in a field sobriety

test (FST) as he “was clearly not free to leave,” and that he

     1
           HRS § 291E-61(a)(1) (Supp. 2015) provides as follows:

           (a) A person commits the offense of operating a vehicle
           under the influence of an intoxicant if the person operates
           or assumes actual physical control of a vehicle:

                  (1) While under the influence of alcohol in an amount
                  sufficient to impair the person’s normal mental
                  faculties or ability to care for the person and guard
                  against casualty[.]
     2
            HRS § 291E-61(a)(3) (Supp. 2015) provides as follows: “A person
commits the offense of operating a vehicle under the influence of an
intoxicant if the person operates or assumes actual physical control of a
vehicle: . . . . With .08 or more grams of alcohol per two hundred ten liters
of breath[.]” The State’s motion to strike this portion of the charge was
granted prior to the commencement of trial.




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was subject to interrogation when Officer Townsend asked him

“medical rule out” questions3 because such questions are likely

to elicit an incriminating response.          Uchima maintained that the

police’s failure to provide him with Miranda warnings prior to

custodial interrogation violated his rights under the federal

and state constitutions and required the suppression of his

statements to law enforcement.

             The parties stipulated to consolidate the evidentiary

hearing on the motion to suppress with the trial of the OVUII

charge.4   A bench trial was held on November 4, 2016, and January

24, 2017.5    The State presented the testimony of one witness,

Officer Townsend.

             Officer Townsend testified that, on May 14, 2016,

around 12:45 a.m., he stopped Uchima’s vehicle after he observed

it crossing over the broken white lines of the road for

approximately 30 to 40 yards along Beretania Street before the

Punchbowl intersection.        Officer Townsend stated that, when he



      3
            Uchima contended that medical rule-out questions include the
following: whether the person has any physical defects or speech impediments,
whether the person is taking any medication, and whether the person is under
the care of a physician, a dentist, or an optometrist.
      4
            We recently held in State v. Chang, 144 Hawaiʻi 535, 556, 445 P.3d
116, 137 (2019), that courts may not consolidate a motion to suppress hearing
with trial. However, Chang’s holding was prospective and does not affect the
determination of issues before us. See id.
      5
             The Honorable James H. Ashford presided.




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pulled the vehicle over, Uchima was in the driver’s seat and had

the odor of alcohol, slurred speech, red and watery eyes, and

his face was flushed.     The officer testified that he explained

to Uchima why he had pulled him over and asked for Uchima’s

driver’s license.    Officer Townsend said that he had to ask

Uchima questions “a couple of times” because he could not

understand what Uchima was saying.

          Based on his observations, Officer Townsend testified,

he asked Uchima if he would participate in an FST, and Uchima

consented.   According to the officer, Uchima appeared unsteady

on his feet as he exited his vehicle.        Officer Townsend stated

that he explained the three tests consisting of the FST--the

horizontal gaze nystagmus test, the walk-and-turn test, and the

one-leg stand test--to Uchima before proceeding with the tests.

Officer Townsend related that, during administration of the FST,

Uchima stated that he understood the instructions to each of the

tests.

          With regard to the horizontal gaze nystagmus test,

Officer Townsend testified that Uchima was instructed to keep

his head still and follow the officer’s pen only with his eyes

but that Uchima could not keep his head still despite being

repeatedly told do so.     As to the walk-and-turn test, Officer

Townsend testified that he instructed Uchima to take nine “heel-

to-toe” steps using an imaginary line, turn, then return nine

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heel-to-toe steps back, and to count aloud the number of steps

he took.   According to Officer Townsend, Uchima did not count

out loud, took ten steps instead of nine on each pass, did not

touch his heel to his toe during his steps, stepped off line on

each step, had his hands raised, paused once for several seconds

to keep balance, and swayed as he walked.         On the one-leg stand

test, Officer Townsend testified that Uchima’s performance

deviated from the instructions: he had difficulty balancing

while his right leg was raised, his arms were raised to about

mid-torso rather than at his sides, and he hopped on his planted

foot during the last ten seconds of the test.

           Officer Townsend stated that following the conclusion

of the three tests he informed another officer of Uchima’s

performance, and the second officer placed Uchima under arrest.

           In response to defense counsel’s questions, Officer

Townsend testified that he went over the medical rule-out

questions with Uchima prior to conducting the FST.           Officer

Townsend explained that he asked Uchima whether he was under the

care of a doctor or dentist, whether he was taking any

medication, whether he was diabetic or epileptic, and whether he

had any physical disabilities.       Uchima responded in the negative

to the questions, Officer Townsend testified.

           After the conclusion of the evidence, the district

court ruled upon the motion to suppress.         The district court

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determined that Uchima was not subjugated to the will of the

examiner and that the situation only became “custodial” at the

conclusion of the third test.        As to whether an interrogation

occurred, the court concluded that the questions asked of Uchima

when he was in the car were not likely to yield incriminating

information and that the same was true with questions as to

whether Uchima would like to exit the car, whether he was

willing to participate in an FST, and whether he understood the

instructions provided during each of the three tests.             The court

also determined that the answers to the medical rule-out

questions “would have no probative value, no inculpatory or

exculpatory value.”      The district court accordingly denied

Uchima’s motion to suppress.6

            The district court thereupon found Uchima guilty of

the OVUII charge and sentenced him to community service, fine,

and a one-year license revocation.7         Uchima appealed from the

district court’s January 24, 2017 Notice of Entry of Judgment

and/or Order and Plea/Judgment, and its February 23, 2017 Notice

of Entry of Judgment and/or Order and Plea/Judgment entered

(collectively, Judgment).


     6
            The district court incorporated its findings and conclusions from
the motion to suppress into its findings with respect to the OVUII charge.
     7
            The court imposed the community service and fine on January 24,
2017, and the license revocation on February 23, 2017.



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                         II.   UCHIMA’S APPEAL

                           A. ICA Proceedings

          On appeal to the ICA, Uchima contended that the

district court erred in denying the motion to suppress, arguing

that his right to remain silent under article I, section 10 of

the Hawaiʻi Constitution was violated because he was never

advised of his Miranda rights and that his verbal statements and

non-verbal communicative acts were the product of custodial

interrogations.     (Citing State v. Tsujimura, 140 Hawaiʻi 299, 400

P.3d 500 (2017).)     Uchima also argued that the officer’s medical

rule-out questions and questions as to whether he understood the

instructions on the FST were likely to evoke an incriminating

response regardless of how he answered, and that his actual

performance on the FST was a communicative response.            Uchima

asserted that the district court’s error was not harmless beyond

a reasonable doubt and that without the officer’s erroneously

admitted testimony, there was not substantial evidence to

support his conviction.     The State responded that the district

court did not err and the Judgment should be affirmed.

          In a summary disposition order, the ICA concluded that

the admission of Uchima’s performance on the FST did not violate

his right against self-incrimination because performance on an

FST is neither communication nor testimony.          And, the ICA held,

Uchima’s right to remain silent was not violated when he

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provided answers to the medical rule-out questions because

Tsujimura concerned whether pre-arrest silence could be used as

substantive evidence against the defendant and did not involve a

defendant’s statements to police.        The ICA accordingly held that

the district court did not err in admitting Officer Townsend’s

observations of Uchima’s driving, Uchima’s answers to the

medical rule-out questions, and Uchima’s performance on the FST.

The ICA also concluded that there was substantial evidence to

support Uchima’s conviction.      The ICA thus affirmed the

Judgment.

            B. Uchima’s Application for Writ of Certiorari

            The ICA judgment on appeal was filed on March 19,

2018.   On March 27, 2018, Uchima’s motion for an extension of

time to file an application for a writ of certiorari

(Application) was granted, and the deadline was extended to May

18, 2018.    Six days after the extended due date, Uchima filed

his Application along with his counsel’s motion to accept the

untimely Application.

            In the motion to accept, Uchima argues that this court

should consider his Application on the merits despite its

ostensible untimeliness because the failure to file within the

deadline resulted entirely from either computer system error or

his counsel’s mistake.     In a declaration attached to the motion,

counsel for Uchima avers that he “finished drafting the

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Application and believed that he properly efiled it” on May 18,

2018.     Counsel states that he would not have sought an extension

of time to file the Application if he had not intended to file

it.   Counsel adds that he “had no reason to suspect that there

was any issue in creating Uchima’s case.”

            Upon receiving notice on May 24, 2018, that the State

had filed a motion to execute Uchima’s sentence in district

court, counsel states that he checked the Judiciary Electronic

Filing and Service System and was unable to locate a case for

Uchima’s Application.8       Counsel explains that he also “checked

his emails” and discovered that he had never received an email

confirming that a case for Uchima’s Application had been created

on May 18, 2018.      Counsel indicates that after seeking advice,

he filed the motion to accept along with the Application.

Counsel declares that he is unsure as to why the Application was

not filed, surmising that it was due to user or computer system

error on that particular occasion and that he has filed numerous

certiorari applications in the past using the same procedure

without any issues.       The State did not file an opposition to the

motion to accept or a response to Uchima’s Application.




      8
            The Judiciary Electronic Filing and Service System allows for the
electronic filing of court documents.



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                    III. STANDARDS OF REVIEW

                           A. Jurisdiction

          The existence of jurisdiction is a question of law and

is reviewed de novo under the right/wrong standard.           Lingle v.

Hawaii Gov’t Empls. Ass’n, AFSCME, Local 152, 107 Hawaiʻi 178,

182, 111 P.3d 587, 591 (2005).

                        B. Motion to Suppress

          We review a trial court’s ruling on a motion to

suppress evidence de novo to determine whether the ruling was

“right” or “wrong.”     State v. Estabillio, 121 Hawaiʻi 261, 269,

218 P.3d 749, 757 (2009); State v. Jenkins, 93 Hawaiʻi 87, 100,

997 P.2d 13, 26 (2000).

                    C. Sufficiency of the Evidence

          The sufficiency of the evidence is reviewed on appeal

by this court as follows:

          [E]vidence adduced in the trial court must be considered in
          the strongest light for the prosecution when the appellate
          court passes on the legal sufficiency of such evidence to
          support a conviction; the same standard applies whether the
          case was before a judge or jury. The test on appeal is not
          whether guilt is established beyond a reasonable doubt, but
          whether there was substantial evidence to support the
          conclusion of the trier of fact.

State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998)

(alteration in original) (quoting State v. Quitog, 85 Hawaiʻi

128, 145, 938 P.2d 559, 576 (1997)).        “‘Substantial evidence’ as

to every material element of the offense charged is credible

evidence which is of sufficient quality and probative value to

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enable a person of reasonable caution to support a conclusion.’”

State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(quoting Richie, 88 Hawaiʻi at 33, 960 P.2d at 1241).

                            IV.   DISCUSSION
  A.       This Court Has Jurisdiction To Review the Late Filing of
                      the Application in This Case.

             HRS § 602-59 grants a party the right to petition this

court for discretionary review of an ICA judgment or dismissal

order by submitting an application for writ of certiorari no

later than thirty days after the filing of the ICA’s judgment or

dismissal order.9       A party may extend the time for filing the


       9
             HRS § 602-59 (2016) provides in part the following:

             (a) After issuance of the intermediate appellate court’s
             judgment or dismissal order, a party may seek review of the
             intermediate appellate court’s decision and judgment or
             dismissal order only by application to the supreme court
             for a writ of certiorari, the acceptance or rejection of
             which shall be discretionary upon the supreme court.

             (b) The application for writ of certiorari shall tersely
             state its grounds, which shall include:

                  (1) Grave errors of law or of fact; or

                  (2) Obvious inconsistencies in the decision of the
                   intermediate appellate court with that of the supreme
                   court, federal decisions, or its own decision,

             and the magnitude of those errors or inconsistencies
             dictating the need for further appeal.

             (c) An application for a writ of certiorari may be filed
             with the supreme court no later than thirty days after the
             filing of the judgment or dismissal order of the
             intermediate appellate court. Upon a written request filed
             prior to the expiration of the thirty-day period, a party
             may extend the time for filing an application for a writ of

                                                               (continued . . .)

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certiorari application for an additional thirty days if the

party files a written request prior to the expiration of the

thirty-day period.      HRS § 602-59(c).

            In this case, Uchima requested an extension of time to

file his Application.      However, Uchima’s counsel avers that

either as a result of the judiciary’s computer system or user

error, the Application was not filed until six days after the

extended deadline of May 18, 2018.         These circumstances require

us to determine whether we have jurisdiction to review the

merits of Uchima’s Application.

  1. The Hawaiʻi Revised Statutes Confer a Right To Appeal and a
         Right To Petition This Court for Certiorari Review.

            In Hawaiʻi, every defendant in a criminal case who is

aggrieved by a district or circuit court judgment is guaranteed

a statutory right to appeal.        Briones v. State, 74 Haw. 442,

460, 848 P.2d 966, 975 (1993) (citing HRS §§ 641-11 (Supp. 1991)

and 641-12 (1985)).      Specifically, pursuant to HRS § 641-12(a),10


(. . . continued)

            certiorari for no more than an additional thirty
            days. . . .
      10
            HRS § 641-12(a) (2016) provides the following:

            Appeals upon the record shall be allowed from all final
            decisions and final judgments of district courts in all
            criminal matters. Such appeals may be made to the
            intermediate appellate court, subject to chapter 602,
            whenever the party appealing shall file notice of the
            party’s appeal within thirty days, or such other time as
            may be provided by the rules of the court.




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a defendant has a right to appeal from “all final decisions and

final judgments of district courts in all criminal matters” to

the ICA, subject to chapter 602.         Similarly, HRS § 641-11 allows

appeals from circuit court judgments to the ICA in criminal

matters, subject to chapter 602.11        Included within chapter 602,

HRS § 602-59(a) gives a party the right to seek review of the

ICA’s judgment on appeal or dismissal order “by application to

the supreme court for a writ of certiorari.”            While acceptance

of an application for a writ of certiorari is discretionary with

this court, HRS § 602-59(a) expressly provides defendants in

criminal cases with a statutory right to seek review of the

ICA’s judgment on appeal or dismissal order.

2. A Defendant in a Criminal Case Has the Constitutional Right to
      the Effective Assistance of Counsel During the Certiorari
                   Stage of a Criminal Proceeding.

          “Article I, section 14 of the Hawaiʻi Constitution

guarantees a defendant in a criminal prosecution the right ‘to

have the assistance of counsel for the accused’s defense.’”

Maddox v. State, 141 Hawaiʻi 196, 202, 407 P.3d 152, 158 (2017)

     11
          HRS § 641-11 (2016) provides the following:

          Any party aggrieved by the judgment of a circuit court in a
          criminal matter may appeal to the intermediate appellate
          court, subject to chapter 602, in the manner and within the
          time provided by the rules of court. The sentence of the
          court in a criminal case shall be the judgment. All
          appeals shall be filed with the clerk of the supreme court
          and shall be subject to one filing fee.




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(quoting Haw. Const. art. I, § 14).        This right is deemed so

fundamental that it is specifically provided to indigent

defendants in our state constitution.        Haw. Const. art. I, § 14

(“The State shall provide counsel for an indigent defendant

charged with an offense punishable by imprisonment.”).

          We have emphasized that the “right to counsel is an

essential component of a fair trial” secured by article I,

section 14 of the Hawaiʻi State Constitution.          State v. Pitts,

131 Hawaiʻi 537, 541, 319 P.3d 456, 460 (2014); see also State v.

Tarumoto, 62 Haw. 298, 299, 614 P.2d 397, 398 (1980).

Accordingly, the constitutional right to be represented by

counsel is guaranteed to the accused at every critical stage of

the prosecution.    Pitts, 131 Hawaiʻi at 541, 319 P.3d at 460

(citing Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577, 582

(1976)); Haw. Const. art I, § 14.        A “critical stage” of a

prosecution is “any stage where potential substantial prejudice

to defendant’s rights inheres.”       Pitts, 131 Hawaiʻi at 541-42,

319 P.3d at 460-61 (internal quotations omitted) (quoting State

v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022 (1981)).

          We have held that critical stages of a criminal

proceeding include trial, post-verdict motions, sentencing,

effectuating an appeal, and minimum term hearings conducted by

the Hawaiʻi Paroling Authority (HPA).        Akau v. State, 144 Hawaiʻi

159, 161, 439 P.3d 111, 113 (2019) (trial); Pitts, 131 Hawaiʻi at
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542-44, 319 P.3d at 461-63 (post-verdict motions and

sentencing); Maddox, 141 Hawaiʻi at 207, 407 P.3d at 163

(effectuating an appeal); De La Garza v. State, 129 Hawaiʻi 429,

439, 302 P.3d 697, 707 (2013) (minimum term hearings).            Our

decisions have highlighted the importance of counsel’s

assistance at these stages of the criminal proceedings.            In

State v. Akau, for example, we stated that “the right to counsel

is ‘fundamental and essential to a fair trial.’”           144 Hawaiʻi at

161, 439 P.3d at 113 (brackets omitted) (quoting Gideon v.

Wainwright, 372 U.S. 335, 342-44 (1963)).         In State v. Pitts, we

sua sponte raised the issue of a defendant’s right to counsel

during post-verdict motions and held that the trial court erred

by denying the defendant substitute counsel during this stage of

the proceedings.    131 Hawaiʻi at 542, 319 P.3d at 461 (“In order

to prevent similar future deprivations, we hold that the post-

trial motion stage is a critical stage of the prosecution during

which the right to counsel attaches[.]”).         We have also

recognized that counsel plays a pivotal role in ensuring a fair

sentencing procedure by assisting a defendant in navigating the

intricacies of the criminal process and protecting a defendant’s

substantial rights.     State v. Phua, 135 Hawaiʻi 504, 512, 353

P.3d 1046, 1054 (2015) (stating that the assistance of counsel

is of “paramount importance” during sentencing because it is an

“oftentimes complicated part of the criminal process” that

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contains subtleties “beyond the appreciation of the average

layperson”).

          Counsel’s assistance is also essential in preserving

arguments for appeal, preparing the defendant for any

proceedings that may come after conviction, and taking whatever

steps are necessary to protect the right to appeal.           Maddox, 141

Hawaiʻi at 204-07, 407 P.3d at 160-63 (“It logically follows that

the steps to effectuate an appeal constitute a critical stage in

the proceeding during which a defendant is entitled to

counsel.”).    Additionally, we have held that the assistance of

counsel is crucial during post-conviction administrative

proceedings before the HPA.      De La Garza, 129 Hawaiʻi at 441, 302

P.3d at 709 (“[A] convicted person is constitutionally entitled

to be represented at the hearing by counsel who can ensure that

the minimum sentence imposed by the HPA is not predicated on

misinformation or misreading of court records, which is a

requirement of fair play.” (quoting D’Ambrosio v. State, 112

Hawaiʻi 446, 464, 146 P.3d 606, 624 (App. 2006))); D’Ambrosio,

112 Hawaiʻi at 464-65, 146 P.3d at 624-25 (holding that HPA

minimum term determinations “undoubtedly” affects a person’s

substantial rights); see also Pitts, 131 Hawaiʻi at 544, 319 P.3d

at 463 (observing the defendant would have benefited by having

substitute counsel’s guidance in preparation for proceedings

before the HPA “even if there were no other sentence available

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. . . but a life term of imprisonment with the possibility of

parole”).

              The Hawaiʻi Supreme Court is the court of last resort

in our state, and it is the ultimate interpreter of Hawaiʻi’s

constitutional and statutory law.           State v. Santiago, 53 Haw.

254, 265, 492 P.2d 657, 664 (1971) (“[T]his court is the final

arbiter of the meaning of the provisions of the Hawaii

Constitution.”); AlohaCare v. Dep’t of Human Servs., 127 Hawaiʻi

76, 87, 276 P.3d 645, 656 (2012) (stating that the Hawaiʻi

Supreme Court is the “final arbiter” of Hawaiʻi statutory law).

In the vast majority of criminal appeals, certiorari review

provides the last pathway to ensure that the defendant’s

substantial rights were observed during the trial and sentencing

phases of the proceedings.12         Cf. Briones, 74 Haw. at 465, 848

P.2d at 977 (“The appellate court’s purpose is to ensure [a]

defendant’s right to a fair trial.”).           And much like pretrial

and trial proceedings, post-verdict motions, sentencing, and

minimum term hearings, certiorari review is an “oftentimes

complicated part of the criminal process” such that not

providing a defendant the assistance of counsel would restrict

the defendant’s ability to be meaningfully heard.              Phua, 135


      12
              Court rules impose significant restrictions on post-conviction
challenges.    See Hawaiʻi Rules of Penal Procedure Rule 40.



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Hawaiʻi at 512, 353 P.3d at 1054; see State v. Mundon, 121

Hawaiʻi 339, 367, 219 P.3d 1126, 1154 (2009) (“[T]he right to be

heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel[.]” (second

alteration in original) (quoting Geders v. United States, 425

U.S. 80, 88-89 (1976))).

          Initiating the certiorari review process requires a

defendant to be able to understand the legal bases for the ICA’s

decision and have sufficient knowledge of legal principles and

caselaw to challenge that decision.        See HRS § 602-59(b)

(requiring certiorari applications to state grave errors of law

or fact, or obvious inconsistencies in the ICA’s decision with

state or federal caselaw).      A defendant must also be aware of

and comply with procedural requirements, including filing

deadlines and the prescribed contents of a certiorari

application.   See HRS § 602-59(c) (concerning filing deadlines);

Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 40.1 (2017)

(specifying sections of a certiorari application).           This

knowledge of law and procedure is almost uniformly beyond the

ability of unrepresented defendants, and compliance with

procedural requirements presents additional obstacles to

incarcerated defendants.      See D’Ambrosio, 112 Hawaiʻi at 465, 146

P.3d at 625 (“Moreover, the HPA Guidelines set forth rather

complex criteria . . . .”); cf. Briones, 74 Haw. at 465, 848

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P.2d at 977 (“[I]t is counsel’s responsibility [on appeal], in

the limited time and space allowed, to present issues that may

have influenced the trial court’s decision adversely to [their]

client.”).     Thus, the assistance of counsel is a virtual

necessity to effectively petition this court for certiorari

review.13

            We thus conclude that the right to seek certiorari

review to this court is a critical stage of the criminal

proceedings.    Unquestionably, providing the right to counsel

during this stage of the proceedings enhances the criminal

justice process and provides greater assurance that the

proceedings have comported with due process.14          See Mundon, 121


     13
            As is evident from the many cases this court reviews in which a
petitioner or respondent is represented by appointed counsel, counsel’s
obligations do not terminate after the ICA issues a judgment on appeal;
certiorari review in this court may thus be considered a “stage[] of the
proceedings” and part of the “appeal” for which counsel is appointed and
receives compensation as provided by statute and rule. See HRS § 802-5
(2014) (providing for reasonable compensation to appointed counsel for
representation at all stages of the proceeding, including appeal); HRAP Rule
2.1(b) (2010) (“‘[A]ppeal’ includes every proceeding in the Hawaiʻi appellate
courts other than an original action[.]”); HRAP Rule 39(d)(1) (2016)
(“Requests for indigent fees and necessary expenses . . . shall be
accompanied by a copy of the order appointing counsel” which is generally the
order issued pursuant to HRS § 802-5); see also Kargus v. State, 169 P.3d
307, 313 (Kan. 2007) (treating a petition for review to the state supreme
court as a “level[] of the state appellate process” in a defendant’s direct
appeal of a felony conviction); Am. Bar Ass’n, Criminal Justice Standards for
the Defense Function, Standard 4-9.2(h) (4th ed. 2017) (“[A]ppellate counsel
should ordinarily continue to represent the client through all stages of a
direct appeal, including review in the United States Supreme Court.”). It is
not necessary, however, to resolve whether the certiorari process should be
considered a step of the direct appeal.

     14
            Hawaiʻi’s statutory law provides an indigent defendant in a
criminal case the statutory right to counsel on appeal, including proceedings

                                                             (continued . . .)

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Hawaiʻi at 367-68, 219 P.3d at 1154-55 (denying the defendant the

right to confer with counsel during a routine 15-minute recess

improperly restricted the defendant’s opportunity to be heard

during the trial); Pitts, 131 Hawaiʻi at 544, 319 P.3d at 463

(denial of right to counsel affects defendants’ ability to

defend their “interests on a level playing field”).            We

therefore hold that a defendant has a constitutional right to

the assistance of counsel during proceedings on certiorari

review.15   Cf. Akau, 144 Hawaiʻi at 161, 439 P.3d at 113; Pitts,


(. . . continued)

in this court. HRS § 802-5(a) (“[T]he judge shall appoint counsel to
represent the [indigent] person at all stages of the proceedings, including
appeal, if any.” (emphasis added)). Thus, HRS § 802-5 provides an indigent
defendant in a criminal case with the right to appointed counsel on
certiorari review. The record, however, appears to indicate that Uchima is
represented by privately retained counsel. Nevertheless, as the Chief
Justice aptly observes, “it would be fundamentally unfair to extend the
remedy of ineffective assistance of counsel only to the indigent” and deny it
to the non-indigent because they can afford counsel. Recktenwald, C.J.,
Concurring and Dissenting at 3 n.2. While we agree with this conclusion, the
Chief Justice reasons therefrom that the constitutional question of the right
to counsel should be avoided because “Uchima is entitled to identical relief
whether his right to effective counsel stems from statute or the
constitution.” Id. at 5. But it is the due process clause of article I,
section 5 of the Hawaiʻi Constitution and the Fourteenth Amendment to the
United States Constitution that imposes the “standards necessary to ensure
that judicial proceedings are fundamentally fair.” Lassiter v. Dep’t of Soc.
Servs. of Durham Cty., 452 U.S. 18, 24, 33 (1981) (due process “expresses the
requirement of ‘fundamental fairness’”). Thus, because the question of the
right to counsel for non-indigent defendants in criminal cases is not merely
a statutory question, the constitutional issue of the right to counsel on
certiorari review cannot be avoided.
      15
            It would be illogical to conclude that the defendant’s right to
counsel granted by the Hawaiʻi Constitution ends before the defendant’s
opportunity to be heard before the highest court of this state, yet resumes
during an administrative proceeding before the HPA, or that it protects a
defendant’s rights during a routine 15-minute recess to a greater extent than
proceedings before the state court of last resort, whose duty it is to
interpret and enforce the Hawaiʻi Constitution. See Mundon, 121 Hawaiʻi at

                                                             (continued . . .)

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131 Hawaiʻi at 541-42, 319 P.3d at 460-61; Maddox, 141 Hawaiʻi at

207, 407 P.3d at 163; De La Garza, 129 Hawaiʻi at 439, 302 P.3d

at 707.

            The right to assistance of counsel during certiorari

review, however, “cannot be satisfied by mere formal

appointment.”       State v. Smith, 68 Haw. 304, 309, 712 P.2d 496,

499 (1986) (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)).

Rather, the constitution of the State of Hawaiʻi requires more

than mere assistance.       It is well settled that the

constitutional right to the assistance of counsel in a criminal

case is satisfied only when such assistance is effective.

Maddox, 141 Hawaiʻi at 203, 407 P.3d at 159; State v. Tetu, 139

Hawai‘i 207, 215, 386 P.3d 844, 852 (2016); Briones, 74 Haw. at

460, 848 P.2d at 975.       Indeed, a primary reason that a defendant

is guaranteed the effective assistance of counsel is to ensure

that the defendant is not denied due process.           Maddox, 141

Hawaiʻi at 206, 407 P.3d at 162 (citing Tetu, 139 Hawaiʻi at 219,

386 P.3d at 856).

            Although we have not previously held that there is a

right to effective assistance of counsel on certiorari review,

(. . . continued)

368, 219 P.3d at 1155; State v. Viglielmo, 105 Hawaiʻi 197, 211, 95 P.3d 952,
966 (2004) (stating that the Hawaiʻi Supreme Court is the ultimate judicial
tribunal with final, unreviewable authority to interpret and enforce the
Hawaiʻi Constitution).



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it is clear that not providing this right would undermine the

constitutional right to assistance of counsel on such review and

violate due process.     See Tetu, 139 Hawaiʻi at 215, 386 P.3d at

852 (“The constitutional right to the assistance of counsel is

satisfied only when such assistance is effective.” (internal

quotations omitted) (quoting State v. Kahalewai, 54 Haw. 28, 30,

501 P.2d 977, 979 (1972)); Maddox, 141 Hawaiʻi at 203, 407 P.3d

at 159.    The Hawaiʻi Constitution therefore guarantees a

defendant in a criminal case the right to the effective

assistance of counsel on certiorari review in the same manner

that it does during all other critical stages of the criminal

proceedings.

  3. A Defendant’s Right to the Effective Assistance of Counsel
         Includes Compliance by Counsel with the Procedural
       Requirements To Timely File an Application for Writ of
                             Certiorari.

            This court has previously stated that, “[a]s a general

rule, compliance with the requirement of timely filing of a

notice of appeal is jurisdictional, and we must dismiss an

appeal on our motion if we lack jurisdiction.”          State v. Knight,

80 Hawaiʻi 318, 323, 909 P.2d 1133, 1138 (1996) (quoting

Grattafiori v. State, 79 Hawaiʻi 10, 13, 897 P.2d 937, 940

(1995)).    While the rule in isolation appears inflexible, this

court has allowed untimely appeals when “defense counsel has




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inexcusably or ineffectively failed to pursue a defendant’s

appeal from a criminal conviction in the first instance.”             Id.

            In State v. Knight, the defendant filed the notice of

appeal from the trial court’s judgment of conviction twenty-four

days after the filing deadline.       80 Hawaiʻi at 323, 909 P.2d at

1138.   In an affidavit attached to the statement of

jurisdiction, counsel for the defendant averred that he prepared

and signed the notice of appeal prior to the due date, but

counsel discovered that the notice of appeal had not been filed

when he returned from a business trip.         Id.   We held that the

defendant was entitled to the effective assistance of counsel

who may not deprive the defendant of an appeal by failing to

comply with established deadlines.        Id. at 323-24, 909 P.2d at

1138-39.    Finding that it was in the interest of justice to

address the merits of the defendant’s appeal, this court

declined to dismiss the appeal.       Id. at 324, 909 P.2d at 1139.

            In State v. Caraballo, the defendant withdrew his

appeal based on advice from counsel.        62 Haw. 309, 310, 615 P.2d

91, 93 (1980).    After the period for filing the notice of appeal

expired, the defendant learned that counsel’s advice was

erroneous and thereafter filed a notice of appeal and a motion

for leave to appeal in forma pauperis.         Id. at 310-11, 615 P.2d

at 93-94.    In deciding to consider the case, this court noted

that, while the “time requirement for filing the notice of

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appeal has been termed ‘mandatory and jurisdictional,’” several

federal and state courts had “relaxed” the timeliness

requirement for filing a notice of appeal when counsel for the

defendant was at fault.     Id. at 312-15, 615 P.2d at 94-96.

Reasoning that the untimely nature of the appeal was due to

counsel’s erroneous advice, we considered the defendant’s appeal

on the merits.    Id. at 316, 615 P.2d at 96.

           While our cases permitting untimely appeals have

previously involved counsel’s failure to timely perfect a notice

of appeal, the statutes granting a defendant the right to appeal

to the ICA and the statute providing the right to seek this

court’s discretionary review of the ICA’s disposition are

analogous in providing a statutory right to appellate review.

           HRS § 641-12(a) requires that “the party appealing [a

district court judgment] shall file notice of the party’s appeal

within thirty days, or such other time as may be provided by the

rules of the court.”     See also HRS § 641-11 (specifying that a

defendant may appeal to the ICA from a circuit court judgment

“in the manner and within the time provided by the rules of

court”).   In comparison, “[a]n application for a writ of

certiorari may be filed with the supreme court no later than

thirty days after the filing of the judgment or dismissal order

of the intermediate appellate court.”        HRS § 602-59(c); see also



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HRAP Rule 40.1(a)(1) (“The application shall be filed within 30

days . . . .”).

           Although the statutes governing a notice of appeal may

appear to be less absolute in their terms than the statute

concerning the timing for filing a certiorari application,

closer examination reveals that they are essentially equivalent.

The statutes permitting a notice of appeal to be filed in

accordance with the timing requirements prescribed by court

rules do not contain an explicit exception for ineffective

assistance or due process.16       See HRAP Rule 4(b)(1) (2016) (“In a

criminal case, the notice of appeal shall be filed within 30

days after entry of the judgment or order appealed from.”).

Notwithstanding HRS § 641-12’s seeming rigidity, our caselaw, as

discussed supra, has allowed an appeal to proceed despite an

untimely filing of a notice of appeal when defense counsel has

inexcusably or ineffectively failed to perfect an appeal.

           Our decisions allowing for review of the merits of an

untimely appeal also illustrate that “[t]he right to counsel on

appeal encompasses not only the appeal itself, but also the

procedural steps necessary to bring about the appeal.”             Maddox,

141 Hawaiʻi at 203, 407 P.3d at 159.         In State v. Erwin, the

      16
            While HRAP Rule 2 (2000) permits an appellate court to suspend
the operation of the court rules for good cause, there is no indication that
this rule has been invoked to allow for a late filing of a notice of appeal.




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defendant’s appointed counsel filed the notice of appeal

thirteen days late.      57 Haw. 268, 268-69, 554 P.2d 236, 237-38

(1976) (per curiam).      Recognizing that an indigent defendant in

a criminal case is entitled to court-appointed counsel who may

not deprive the defendant of an appeal by electing to forego

compliance with procedural rules, we concluded that counsel’s

failure to “commence the simple steps for appeal is a blatant

denial of due process.”       Id. (first citing Entsminger v. Iowa,

386 U.S. 748 (1966); then quoting Blanchard v. Brewer, 429 F.2d

89 (8th Cir. 1970)).      We therefore denied the State’s motion to

dismiss the appeal on the basis that the appeal was untimely

filed.   Id.; see also State v. Aplaca, 96 Hawaiʻi 17, 23, 25 P.3d

792, 798 (2001) (retaining jurisdiction over defendant’s appeal

“in the interests of justice,” notwithstanding counsel’s failure

to timely file a notice of appeal); Knight, 80 Hawaiʻi at 323-24,

909 P.2d at 1138-39 (applying Erwin to a criminal case without

reference to whether the defendant was “indigent”).17


      17
            While our cases permitting untimely appeals have involved what
the appellate court characterized as a “first appeal,” our statutes, rules,
and caselaw indicate the appeal process includes proceedings in this court as
being a stage in the appeal. For example, HRAP Rule 2.1(b), the definitional
provision for the appellate rules, provides that an “‘appeal’ includes every
proceeding in the Hawaiʻi appellate courts other than an original action.”
(Emphasis added). This unitary nature is also reflected in the statutory
provision providing for the right to counsel through all steps of an
“appeal.” See HRS § 802–5(a) (requiring the appointment of counsel to
indigent defendants “at all stages of the proceedings, including appeal, if
any” (emphasis added)); Rapozo v. Better Hearing of Hawaii, LLC, 120 Hawaiʻi
257, 262-63, 204 P.3d 476, 481-82 (2009) (“[T]he appellate process is not a

                                                             (continued . . .)

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            Likewise, it follows that counsel’s failure to

“commence the simple steps” to file an application for writ of

certiorari--a critical stage of the proceedings in the review of

a criminal conviction--constitutes ineffective assistance of

counsel.    Cf. Maddox, 141 Hawaiʻi at 203, 407 P.3d at 159

(quoting Erwin, 57 Haw. at 270, 554 P.2d at 238).            The

constitutional due process concerns underpinning this court’s

decisions permitting a defendant to pursue an untimely appeal


(. . . continued)

series of discrete actions, but a continuation of the proceedings initiated
before lower courts.”).
            Additionally, both the ICA’s jurisdiction and the finality of its
judgments are subject to review by this court upon the acceptance of an
application for certiorari review. By statute, the ICA has jurisdiction to
determine appeals from any court or agency when appeals are allowed by law.
HRS § 602-57(1) (2016). However, the ICA’s judgment on appeal does not
become effective until the thirty-first day after entry or upon expiration of
an extended deadline if the time for filing an application for writ of
certiorari is extended. HRAP Rule 36(c)(1) (2016). If an application for
writ of certiorari is filed, the ICA’s judgment on appeal only becomes
effective upon entry of the supreme court’s order dismissing or rejecting the
application or upon entry of the supreme court’s order or other disposition
affirming in whole the ICA’s judgment. HRAP Rule 36(c)(2) (2016). And,
pursuant to HRAP Rule 41 (2012), acceptance of an application “stays finality
of the [ICA’s] judgment on appeal unless otherwise ordered by the supreme
court.” That is, this court’s acceptance of an application stays the
operation of the ICA decision--which only becomes operative if the decision
is wholly affirmed--demonstrating the continuing nature of the “first
appeal.” See HRAP Rules 36(d)(2) (2016), 41.
            Accordingly, an application to this court may be considered as a
part of the “first appeal” because it amounts to a direct continuation of the
initial proceedings in a defendant’s direct appeal, which have not yet
terminated. See HRAP Rule 41; see also State v. Garcia, 96 Hawaiʻi 200, 214,
29 P.3d 919, 933 (2001) (“By final we mean where the judgment of conviction
was rendered, the availability of appeal exhausted, and the time for petition
for certiorari ha[s] elapsed . . . .”); HRS § 602-57 (giving the ICA
jurisdiction to hear appeals from “any court or agency when appeals are
allowed by law” subject to “transfer . . . or review on application for a
writ of certiorari” to the supreme court). However, because it is
unnecessary for resolution of this case, we do not resolve whether the “first
appeal” is limited to the initial review by an appellate court.



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when counsel provides ineffective assistance are equally present

in circumstances when counsel fails to comply with the

procedural requirements to file a certiorari application.             And,

counsel’s failure to timely file a certiorari application should

similarly not result in the forfeiture of a defendant’s

statutory right to petition the supreme court for discretionary

review.   See HRS § 602-59(a); cf. Aplaca, 96 Hawaiʻi at 23, 25

P.3d at 798 (“[F]ailure of [the defendant’s] counsel to timely

file the notice of appeal does not divest [the defendant] of

[the] right to appeal . . . .”).

           Justice Nakayama’s opinion dissenting from the

judgment recognizes that under our caselaw, “we have permitted

the review of untimely initial notices of appeal to the ICA in

limited circumstances” but does not acknowledge the interrelated

nature of the constitutional and statutory rights underlying

these decisions.    Nakayama, J., Dissenting from the Judgment

(Dissent) at 5.    Instead, the dissent focuses on the difference

between the ICA’s mandatory review pursuant to HRS §§ 641-11 and

641-12 and discretionary review to this court under HRS § 602-

59, thus overlooking the analogous procedures required to

effectuate review in either court, and in turn, the resulting

constitutional violation.

           Under HRS §§ 641-11 and 641-12, the ICA’s review is

only mandatory if a notice of appeal is timely filed.

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Similarly, discretionary review under HRS § 602-59 is dependent

on the timely filing of an application for writ of certiorari.

Under either statute, a defendant may elect not to seek

appellate review.    However, when a defendant chooses to seek

review, counsel’s failure to follow the procedural requirements

under these statutes constitutes ineffective assistance of

counsel on appeal regardless of whether review would have been

mandatory or discretionary in the appellate court.           That is, the

constitutional violation is occasioned by the same procedural

error of counsel.

          Further, courts allowing an untimely notice of appeal

were cognizant of the fact that “[t]imely filing of a notice of

appeal has been held to be a jurisdictional requirement,” but

the courts nonetheless reasoned that counsel’s failure to comply

with procedural requirements deprived a defendant of due process

such that review of the untimely appeal was warranted.            Erwin,

57 Haw. at 269, 554 P.2d at 238; see Aplaca, 96 Hawaiʻi at 23, 25

P.3d at 798; Knight, 80 Hawaiʻi at 323-24, 909 P.2d at 1138-39.

Thus, the constitutional principle driving our decisions that

avoid a due process violation of a defendant’s rights when a

notice of appeal is untimely filed applies equally to the

untimely filing of an application for writ of certiorari.

          Accordingly, we hold that a defendant in a criminal

case has the right to effective assistance of counsel during all

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stages of an appeal, which includes procedural compliance with

the statutory requirements for filing an application for writ of

certiorari.   See HRAP Rule 2.1(b) (“‘[A]ppeal’ includes every

proceeding in the Hawaiʻi appellate courts other than an original

action[.]”); Maddox, 141 Hawaiʻi at 203, 407 P.3d at 159 (holding

that effective assistance of counsel includes compliance with

procedural rules).

 4. This Court May Address the Merits of an Application for Writ
    of Certiorari When the Ineffective Assistance of Counsel Is
                       Plain from the Record.

          “[W]hen a defendant is denied an appeal because of a

failure or omission of defense counsel, a defendant need not

demonstrate any additional possibility of impairment to

establish that counsel was ineffective under article I, sections

5 and 14 of the Hawaiʻi Constitution.”        Maddox, 141 Hawaiʻi at

206, 407 P.3d at 162.     In State v. Silva, we held that “in some

instances, the ineffective assistance of counsel may be so

obvious from the record that a [Hawaiʻi Rules of Penal Procedure

(HRPP)] Rule 40 proceeding would serve no purpose except to

delay the inevitable and expend resources unnecessarily.”18            75



     18
          HRPP Rule 40 (2006) states in relevant part as follows:

          (a) Proceedings and Grounds. The post-conviction
          proceeding established by this rule shall encompass all
          common law and statutory procedures for the same purpose,
          including habeas corpus and coram nobis; provided that the

                                                            (continued . . .)

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Haw. 419, 438-39, 864 P.2d 583, 592 (1993) (citing State v.

Aplaca, 74 Haw. 54, 837 P.2d 1298 (1993)); accord State v.

Pacheco, 96 Hawaiʻi 83, 102, 26 P.3d 572, 591 (2001) (holding

that “the record on appeal conclusively establishe[d]” that

counsel rendered ineffective assistance, providing an

alternative basis for vacating defendant’s conviction).

            Additionally, an HRPP Rule 40 post-conviction

proceeding may take several years to reach a final resolution.

In Villados v. State, the petitioner filed an untimely pro se

application for writ of certiorari in the underlying case,

contending that his court-appointed attorney was at fault for

the application’s untimeliness.19         No. CAAP-XX-XXXXXXX, at 2,

2018 WL 4520933 (App. Sept. 21, 2018) (SDO).           This court

dismissed the application as untimely.          Id.   Thereafter, the


(. . . continued)

            foregoing shall not be construed to limit the availability
            of remedies in the trial court or on direct appeal. . . .

            . . . .

            (b) Institution of proceedings. A proceeding for post-
            conviction relief shall be instituted by filing a petition
            with the clerk of the court in which the conviction took
            place. The clerk shall then docket the petition as a
            special proceeding, and in cases of pro se petitions,
            promptly advise the court of the petition.
      19
            In an appended affidavit, the petitioner averred that counsel
initially indicated that she would file an application for writ of certiorari
but later informed petitioner after the deadline had passed that she would
not do so. State v. Villados, No. SCWC-30442, at 2-3, 2012 WL 3262752 (Haw.
July 20, 2012) (order dismissing application for writ of certiorari) (Acoba,
J., dissenting).



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petitioner initiated an HRPP Rule 40 proceeding in the Circuit

Court of the Second Circuit (circuit court), contending that he

had received ineffective assistance of counsel because of

counsel’s failure to file the certiorari application and

requesting, inter alia, that his conviction be vacated.            Id.

The circuit court determined that certiorari counsel was

ineffective for failing to file the application, but it

concluded that the appropriate relief was to permit the

petitioner to seek review from the supreme court, which the

court found that it could not grant and thus denied the

petition.   Id. at 2.    Similarly, the ICA determined on appeal

that though counsel provided ineffective assistance under our

decision in Maddox, the appropriate remedy “would be to allow

the petitioner to proceed with the appeal that was precluded by

the ineffective counsel”--which relief the ICA determined must

be obtained from this court.      Id. at 3-6.     Subsequently, in

February 2019, more than six years after the original

application was dismissed as untimely, the petitioner’s

certiorari application challenging the circuit court’s and the

ICA’s denials of his HRPP Rule 40 petition was accepted by this

court.   Villados v. State, No. SCWC-XX-XXXXXXX, 2019 WL 845543




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(Haw. Feb. 4, 2019) (order accepting application for writ of

certiorari).20

            As illustrated by Villados, requiring a defendant to

initiate an HRPP Rule 40 proceeding in situations when it is

clear from the record that counsel has inexcusably or

ineffectively failed to pursue certiorari review is likely to be

an inefficient use of judicial resources.          Further, “[t]he fact

that [the defendant] may have an opportunity to assert

ineffective assistance of counsel in a future HRPP Rule 40

petition does not cure the fact that error has already occurred

and [defendant’s] substantial rights have been adversely

affected.”    State v. Villados, No. SCWC-30442, at 10, 2012 WL

3262752 (Haw. July 20, 2012) (order dismissing application for

writ of certiorari) (Acoba, J., dissenting) (citing Silva, 75

Haw. at 438-39, 864 P.2d at 592).

            Post-conviction proceedings also may be deficient in

being able to provide the appropriate relief to remedy counsel’s

ineffectiveness without returning the case to this court.

Additionally, the delay caused by requiring an HRPP Rule 40

proceeding in circumstances when counsel concedes fault for a

certiorari application’s untimeliness--or the fault is otherwise

plainly apparent from the record--is unnecessarily exacerbated.

     20
            At the time this opinion was issued, the case was still pending
before this court.



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By proceeding instead to the merits of a certiorari application

when the failure to timely file the application results from the

ineffective assistance of counsel, we avoid depriving a

defendant of due process and prevent unnecessary delay to the

defendant whose rights have been adversely affected.21            Indeed,

HRPP Rule 40(a) specifically provides that the establishment by

rule of post-conviction proceedings “shall not be construed to

limit the availability of remedies in the trial court or on

direct appeal.”     HRPP Rule 40(a) thus specifically authorizes a

defendant to seek an available remedy on direct appeal even if

relief would also be obtainable in a post-conviction proceeding.

See Silva, 75 Haw. at 438–39, 864 P.2d at 592 (refusing to adopt

the prosecution’s suggested general rule that a defendant may



      21
            The dissent’s insistence that an HRPP Rule 40 proceeding is the
“only legally permissible procedure,” dissent at 9, does not sufficiently
consider the importance of preserving a defendant’s constitutional rights and
the analogous caselaw applicable to the untimely filing of a notice of
appeal. The legislature has granted a defendant in a criminal case the right
to appeal to the ICA and the right to seek this court’s discretionary review.
See HRS §§ 641-11, 641-12, 602-59. The dissent does not provide an adequate
explanation as to why this court should treat the forfeiture of either
statutory right, arising out of the same procedural error by counsel,
differently. Instead, the dissent would require a defendant to proceed with
an HRPP Rule 40 petition and a likely appeal to remedy the constitutional
violation in situations when the due process violation is clear from the
record and this court is capable of remedying it in the first instance. See
Silva, 75 Haw. at 438-39, 864 P.2d at 592. It is not efficient for our court
system to require that a defendant initiate an HRPP Rule 40 proceeding that
may take several years to resolve, in contrast to an immediate discretionary
determination by this court as to whether the certiorari application should
be accepted. See, e.g., Villados, No. SCWC-XX-XXXXXXX; Villados, No. CAAP-
XX-XXXXXXX (as of the date of this opinion, the case initiated over six years
earlier under HRPP Rule 40 as a result of counsel’s admitted failure to
timely file the certiorari application was still pending in this court).



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only assert ineffective assistance of counsel in a post-

conviction proceeding under HRPP Rule 40).

          Justice Nakayama’s dissent contends that our opinion

“opens the door” to requiring this court to review all

certiorari applications regardless of their timeliness,

rendering procedural requirements for filing applications in

criminal cases “moot.”     Dissent at 7-9.      The dissent broadly

overstates the limited impact of allowing this court to review

applications that but for counsel’s procedural error would

otherwise have been timely filed.

          First, attorneys in Hawaiʻi are subject to Rule 1.3

(2014) of the Hawaiʻi Rules of Professional Conduct (HRPC), which

requires that, “A lawyer shall act with reasonable diligence and

promptness in representing a client.”        As such, attorneys have a

duty to comply with procedural requirements including statutory

deadlines.   Because counsel is required to “keep the client

reasonably informed about the status of the matter,” HRPC Rule

1.4(a)(3) (2014), and because a defendant in a criminal appeal

is generally focused on the status of the appeal, it is unlikely

that counsel’s ineffectiveness in not timely filing a certiorari

application would go undiscovered until years later as the




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dissent portends.22     Dissent at 7.     Even assuming such a

discovery were to occur years later, this court has

discretionary authority to dismiss the application as untimely

and require the defendant to proceed under HRPP Rule 40.

            Second, because counsel’s ineffectiveness must be

clear from the record, counsel will be required to admit

responsibility for the late filing, unless it is apparent from

the record that counsel is at fault for the application’s

untimeliness.     In circumstances when the record is unclear, the

court may dismiss the application so that a proceeding may be

commenced in the trial court pursuant to HRPP Rule 40(f).              See

HRPP Rule 40(f) (providing for an opportunity for counsel to be

heard regarding allegations of ineffective assistance).             The

dissent thus incorrectly assumes that an untimely application

will necessarily demonstrate counsel’s noncompliance with

procedural requirements when this is unequivocally not the case.

Dissent at 7-8.

            Further, our decision today will affect significantly

fewer cases than what our law already allows when a notice of

appeal is not timely filed in a criminal case.           This is because

the number of potential criminal cases in which a certiorari

application is not timely filed is a much smaller pool than all

     22
            In this case, counsel filed the untimely application six days
after the application’s deadline.



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criminal cases in which an appeal may be taken.           Additionally,

counsel’s ineffectiveness must be clear from the record in order

for this court to consider an untimely filed application.23

Finally, the proposition that “[s]ignificantly more judicial

resources will be depleted attempting to meet these additional

demands,” dissent at 10, is plainly refuted by the avoidance of

an unnecessary HRPP Rule 40 proceeding, the hearing on the

petition, and subsequent appeals, when the untimely application

is reviewed on its merits--as it would have been but for

counsel’s admitted error.24

           Therefore, we hold that this court may decline to

dismiss an application for writ of certiorari as untimely and

proceed to review its merits when it is plain from the record

that defense counsel failed to comply with the procedural

requirements for filing the application.          Cf. Knight, 80 Hawaiʻi



      23
            Nor is there any concern that attorneys would falsely accept
responsibility for filing an untimely certiorari application as doing so
would violate the HRPC, render an attorney subject to disciplinary action,
and affect the counsel’s professional reputation. See HRPC Rule 3.3(a)(1)
(2014) (“A lawyer shall not knowingly . . . make a false statement of
material fact or law to a tribunal[.]”); HRPC Rule 8.4(c) (2014) (“It is
professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit or misrepresentation[.]”); HRPC Rule 8.4 cmt. [1]
(2014) (stating lawyers are subject to discipline for violating the HRPC).
     24
            For instance, in Villados, the defendant’s HRPP Rule 40 petition-
-based solely on the claim that counsel ineffectively failed to file an
application for certiorari review in the defendant’s initial appeal--was
subject to proceedings in both the circuit court and the ICA prior to
reaching this court. Villados, No. CAAP-XX-XXXXXXX.




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at 324, 909 P.2d at 1139 (declining to dismiss defendant’s

appeal in the interest of justice notwithstanding counsel’s

failure to timely file a notice of appeal).           This authority to

proceed to the merits of an untimely application may be

exercised when it is necessary to prevent a violation of due

process or is in the interests of justice.25          See Aplaca, 96

Hawaiʻi at 23, 25 P.3d at 798 (“[F]ailure of [the defendant’s]

counsel to timely file the notice of appeal does not divest [the

defendant] of his right to appeal, and, therefore, in the

interests of justice, we decline to dismiss [the defendant’s]

appeal and retain jurisdiction over it.”).

5. The Circumstances of This Case Merit Consideration of Uchima’s
                            Application.

           Turning to the present case, in the motion to accept,

counsel averred that he intended to file Uchima’s Application

for certiorari review and thought that he had done so, but

counsel later discovered that the Application had not been


     25
            Justice Nakayama’s dissent is mistaken that our decision
“attempts to derive a new right of a criminal defendant to appeal the ICA’s
judgment that does not exist,” dissent at 7, because our opinion only allows
a defendant’s application for writ of certiorari to proceed as if the
constitutional violation had not occurred. Our decision does not affect this
court’s ability to reject a certiorari application on its merits or dismiss
it as untimely. Instead, this opinion harmonizes and preserves the
constitutional right to the effective assistance of counsel on appeal and the
statutory right to petition this court for review of the ICA’s decision. Cf.
Pitts, 131 Hawaiʻi at 544 n.6, 319 P.3d at 463 n.6 (stating that the court’s
remand order “seeks only to place Pitts in the position he would have been in
had the constitutional violation never occurred” notwithstanding the deadline
to file a motion for new trial).




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properly filed.    If the failure to timely file the Application

was the result of counsel’s error, then counsel’s “failure to

fulfill procedural requirements resulted in the loss of

[Uchima’s] right” to petition this court for review.            Maddox,

141 Hawaiʻi at 205, 407 P.3d at 161.        Even if the failure to

perfect Uchima’s Application was the result of computer system

error, counsel acknowledges that he did not receive an email

confirming that a case for Uchima’s Application was created.

Counsel thus omitted to confirm that Uchima’s Application was

successfully filed.     See id. (“[W]e hold that when a defendant

is denied an appeal because of a failure or omission of defense

counsel, a defendant need not demonstrate any additional

possibility of impairment to establish that counsel was

ineffective . . . .”); Knight, 80 Hawaiʻi at 323, 909 P.2d at

1138 (declining to dismiss untimely notice of appeal when

counsel indicated that he prepared and signed a notice of appeal

but did not discover that it had not been filed until returning

from a business trip).

          Hence, Uchima did not receive effective assistance of

counsel with regard to the timely filing of his Application.

Although Uchima may assert an ineffectiveness assistance claim

through the initiation of an HRPP Rule 40 proceeding, the record

is clear that Uchima’s counsel intended to file the Application

and that but for counsel’s error or omission the Application

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would have been timely filed.       This court has previously ruled

on ineffective assistance claims without requiring a post-

conviction proceeding when the ineffective assistance of counsel

was plain from the record.      See, e.g., Pacheco, 96 Hawaiʻi at

102, 26 P.3d at 591 (holding that the record on appeal

conclusively established that counsel was ineffective); Aplaca,

74 Haw. at 72, 837 P.2d at 1307-08 (concluding counsel provided

ineffective assistance based on a review of the record).

Requiring Uchima to proceed with an HRPP Rule 40 petition under

the facts of this case would only unnecessarily prolong final

determination of Uchima’s appeal and result in an inefficient

use of judicial resources.      Silva, 75 Haw. at 438-39, 864 P.2d

at 592 (“[I]n some instances, the ineffective assistance of

counsel may be so obvious from the record that [an HRPP] Rule 40

proceeding would serve no purpose except to delay the inevitable

and expend resources unnecessarily.”).

          Therefore, to avoid the due process violation that

would otherwise occur in this case, we decline to dismiss

Uchima’s Application “[i]n the interest of justice” and thus

proceed to consider its merits.       Knight, 80 Hawaiʻi at 324, 909

P.2d at 1139 (holding that it was in the “interest of justice”

to address the merits of the defendant’s appeal notwithstanding

the untimely filing of the notice of appeal).



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    B. The ICA Did Not Err in Affirming the District Court’s
                             Judgment.

          In his application, Uchima presents two questions for

review: (1) whether the ICA gravely erred in affirming the

district court’s denial of Uchima’s motion to suppress his

answers to the medical rule-out questions and his verbal

statements and non-verbal communicative actions on the FST; and

(2) whether the ICA gravely erred in holding that there was

substantial evidence to support his conviction.

    1. Tsujimura Is Not Applicable to the Facts of This Case.

          Uchima first contends that he had a pre-arrest right

to remain silent pursuant to State v. Tsujimura, 140 Hawaiʻi 299,

400 P.3d 500 (2017), that his verbal and non-verbal responses

were obtained in violation of this right, and that his responses

should therefore have been suppressed.

          In Tsujimura, the defendant was charged by complaint

with OVUII.   140 Hawaiʻi at 302, 400 P.3d at 503.         At trial, an

HPD officer testified that the defendant, prior to undergoing an

FST, stated that he had an old injury to his left knee.            Id. at

303, 400 P.3d at 504.     The State on redirect examination asked

the officer whether the defendant had explained while exiting

the car that he could not get out of the car because of a

previous leg injury.     Id. at 304-05, 400 P.3d at 505-06.         Over

defense counsel’s repeated objections, the officer responded


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that “[n]o statements were made.”        Id. at 305, 400 P.3d at 506

(emphasis omitted).     We held that the information regarding the

defendant’s pre-arrest silence was improperly admitted into

evidence as it violated the defendant’s right against self-

incrimination and was used as substantive proof of guilt.             Id.

at 316-17, 400 P.3d at 517-18.

          By contrast, this case does not involve the use of

Uchima’s silence against him.       Here, Officer Townsend asked

Uchima questions, and Uchima provided responses.           For example,

when asked whether he would participate in the FST, Uchima

consented and exited his vehicle.        In addition, the State did

not seek to introduce and use evidence of Uchima’s silence

against him at trial.     Thus, Tsujimura is not applicable to the

facts of this case.

 2. The ICA Did Not Err in Affirming the District Court’s Ruling
                   on Uchima’s Motion to Suppress.

          Uchima argues that he was subjected to custodial

interrogation and, because he was not given Miranda warnings,

his responses to Officer Townsend and the officer’s description

of his physical actions during the FST should have been

suppressed.   Uchima also argues that the medical rule-out

questions were incriminating because they served to “rule in” a

direct cause of impairment or “rule out” any explanation other

than intoxication for deviations in a subject’s FST performance.


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Hence, Uchima contends that Officer Townsend’s testimony as to

his responses and performance during the FST must be suppressed

as the “fruit of the poisonous tree of the preceding

illegalities.”

          Under the Fifth Amendment to the United States

Constitution and article I, section 10 of the Hawaiʻi

Constitution, a person in a criminal case cannot be compelled to

be a witness against oneself.       This court has long held that

article I, section 10 of the Hawaiʻi Constitution provides an

independent source for the protections which the United States

Supreme Court enumerated in Miranda.        State v. Kazanas, 138

Hawaiʻi 23, 34, 375 P.3d 1261, 1272 (2016); see State v.

Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971).            Thus,

as a matter of state constitutional law, statements stemming

from custodial interrogation may not be used by the State unless

it “first demonstrate[s] the use of procedural safeguards

effective to secure the privilege against self-incrimination.”

Kazanas, 138 Hawaiʻi at 34, 375 P.3d at 1272 (quoting State v.

Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-84 (1985)).

          “A critical safeguard is the Miranda warning[.]”             Id.

Our caselaw has stated that “[t]wo criteria are required before

Miranda rights must be given: (1) the defendant must be under

interrogation; and (2) the defendant must be in custody.”             State

v. Kauhi, 86 Hawaiʻi 195, 204, 948 P.2d 1036, 1045 (1997)

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(quoting State v. Blanding, 69 Haw. 583, 586, 752 P.2d 99, 100

(1988)).

            We have previously stated that “[i]nterrogation

encompasses not only express questioning, but also any words or

actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the

suspect.”   State v. Trinque, 140 Hawaiʻi 269, 277, 400 P.3d 470,

478 (2017) (alterations and internal quotations omitted)

(quoting State v. Joseph, 109 Hawaiʻi 482, 495, 128 P.3d 795, 808

(2006)).

            Here, Officer Townsend asked Uchima whether he would

participate in an FST, whether he understood the instructions of

the individual tests, and whether he had any questions.            These

preliminary questions were not reasonably likely to lead to

incriminating responses because neither an affirmative or

negative response to these questions is incriminating.            Rather,

the questions allow the officer to determine whether Uchima was

willing to undergo the FST and whether he understood the

officer’s instructions prior to performing the three tests

comprising the FST.     Thus, these questions were not of such

nature that Officer Townsend should have known that they were

likely to elicit an incriminating response.



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          With respect to the medical rule-out questions asked

by Officer Townsend and whether Uchima’s responses to these

questions should have been suppressed, the district court

specifically ruled at the conclusion of the suppression hearing

that the answers to the medical rule-out questions “would have

no probative value, no inculpatory or exculpatory value” in the

trial part of the proceeding.       Thus, in essence, the district

court granted the defense’s motion to suppress as to the medical

rule-out questions when it determined that Uchima’s responses to

these questions would have no inculpatory or exculpatory value.

Uchima therefore can show no prejudice from Officer Townsend’s

testimony as to his responses to the medical rule-out questions.

          Uchima’s performance on the FST does not constitute

incriminating statements.      “[T]he privilege [against self-

incrimination] is a bar against compelling ‘communications’ or

‘testimony[.]’”    State v. Wyatt, 67 Haw. 293, 303, 687 P.2d 544,

551 (1984) (quoting Schmerber v. California, 384 U.S. 757, 763-

64 (1966)).   In Wyatt, this court held that when conducting an

FST the State does not seek “communications” or “testimony,” but

rather, “an exhibition of ‘physical characteristics of

coordination.’”    Id. (quoting State v. Arsenault, 336 A.2d 244,

247 (N.H. 1975)).    Here, Officer Townsend did not seek

“communications” or “testimony” from Uchima.          Rather, in

conducting the FST, the officer sought “an exhibition of

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‘physical characteristics of coordination.’”           Id.

“Consequently, the field sobriety test was not rendered infirm

by the constitutionally guaranteed privilege against compulsory

self-incrimination.”26      Id.

            In sum, neither the questions asked by the officer

prior to and during the administration of the FST nor Uchima’s

performance on the FST constituted an interrogation requiring

Miranda warnings.     Nor did Uchima suffer any prejudice from the

testimony of his answers to the medical rule-out questions as

the court accorded no evidentiary value to his responses to the

questions.    The ICA therefore did not err in affirming the

denial of Uchima’s motion to suppress.27

3. There Was Substantial Evidence To Support Uchima’s Conviction.

            Uchima was convicted of OVUII in violation of HRS

§ 291E-61(a)(1).     Under HRS § 291E-61(a)(1),

            (a) A person commits the offense of operating a vehicle
            under the influence of an intoxicant if the person operates
            or assumes actual physical control of a vehicle:

                  (1) While under the influence of alcohol in an amount
                  sufficient to impair the person’s normal mental


     26
            Uchima indicates in a footnote of his Application that the United
States Supreme Court, in Pennsylvania v. Muniz, noted that the officer’s
request in that case to count aloud during two tests of the FST were
“exceptions” to the Court’s rule concerning “carefully scripted
instructions.” (Citing 496 U.S. 582, 603 n.17 (1990).) As in that case,
Uchima does not argue that his failure to count during the walk-and-turn test
had any independent incriminating significance. See id. We therefore do not
further address this issue.
     27
            In light of our analysis, it is unnecessary to address whether
Uchima was in custody for purposes of requiring Miranda warnings.



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                faculties or ability to care for the person and guard
                against casualty[.]

          In this case, Officer Townsend testified that he saw

Uchima’s vehicle crossing over the broken white lines on

Beretania Street for approximately 30 to 40 yards.           The officer

testified that after approaching the vehicle following the

traffic stop, there was an odor of alcohol emitting from Uchima

and that Uchima had slurred speech, red and watery eyes, and

flushed skin.   When Uchima exited his vehicle, Officer Townsend

testified, Uchima was “unsteady on his feet” and had to use his

hand to lean against the vehicle as support to keep his balance.

          In addition, Officer Townsend’s testimony indicated

that Uchima demonstrated multiple clues suggesting intoxication

on each of the three tests administered, including the

following: on the horizontal nystagmus test--not keeping his

head still while following Officer Townsend’s pen with his eyes;

on the walk-and-turn test--pausing and missing his heel-to-toe

steps during the first nine steps, stepping off line on each

step, and raising his hands to keep balance; and on the one-leg

stand test--swaying in all directions, showing difficulty in

balancing, and putting his foot down and hopping at different

points during the test.

          Viewing the evidence in the light most favorable to

the State, there was substantial evidence to support Uchima’s

conviction of OVUII under HRS § 291E-61(a)(1).

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                            V.    CONCLUSION

    Based on the foregoing, the ICA’s March 19, 2018 judgment

on appeal is affirmed.



Alen M. Kaneshiro                        /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack

Brian R. Vincent                         /s/ Michael D. Wilson
for respondent




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