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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              13-JUN-2019
                                                              08:56 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


         CHRIS GRINDLING, Respondent/Petitioner-Appellee,

                                    vs.

        STATE OF HAWAII, Petitioner/Respondent-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; S.P.P. NO. 12-1-0007(3); CR. NO. 07-1-0533(2))

                              JUNE 13, 2019

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

                OPINION OF THE COURT BY POLLACK, J.

          In this case, Christopher Grindling brought a petition

for post-conviction relief contending that the trial court

violated his constitutional right to have each element of an

offense proven beyond a reasonable doubt, when the court

accepted a stipulation to elements of the charged offenses

without engaging him in a colloquy to obtain his consent.

Grindling also argued that he received ineffective assistance of
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trial and appellate counsel relating to the trial court’s error

in accepting the stipulation.       The circuit court granted

Grindling’s petition, concluding that the trial court’s failure

to conduct a colloquy with Grindling was plain error and that

Grindling had received ineffective assistance both at trial and

on appeal.

          On appeal, the Intermediate Court of Appeals (ICA)

held that plain error review was improper in a post-conviction

proceeding.   The ICA vacated the circuit court decision and

remanded the case to afford Grindling’s trial and appellate

counsel an opportunity to address the ineffective assistance

claims.

          On review, we reaffirm that it is the duty of the

trial court to conduct a colloquy with the defendant to obtain a

knowing and voluntary waiver of the constitutional right to have

each element of the charged offenses proven beyond a reasonable

doubt; therefore, a court’s failure to comply with this duty is

not grounds for finding ineffective assistance of trial counsel.

We further hold that plain error review applies to post-

conviction proceedings, and the circuit court correctly noticed

plain error in this case.      We therefore vacate the ICA’s

judgment on appeal and affirm the circuit court decision on this

ground.




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                   I.    FACTS AND PROCEDURAL HISTORY

                              A.    Background

            After law enforcement recovered suspected

methamphetamine and drug paraphernalia from his residence and

vehicle while executing two search warrants, Christopher

Grindling was charged on August 31, 2007 with promoting a

dangerous drug in the third degree in violation of § 712-1243(1)

(1993)1 of the Hawaii Revised Statutes (HRS) and prohibited acts

related to drug paraphernalia in violation of HRS § 329-43.5(a)

(1993).2

            In September 2007, Grindling appeared for arraignment

in the Circuit Court of the Second Circuit (trial court or

circuit court as specified3) and entered pleas of not guilty.               In

the months that followed, Grindling filed numerous pro se

motions, including a motion to dismiss his counsel, Cary Virtue,

      1
            HRS § 712-1243(1) provides in relevant part that “[a] person
commits the offense of promoting a dangerous drug in the third degree if the
person knowingly possesses any dangerous drug in any amount.”
      2
            HRS § 329-43.5(a) stated in relevant part,

            It is unlawful for any person to use, or to possess with
            intent to use, drug paraphernalia to plant, propagate,
            cultivate, grow, harvest, manufacture, compound, convert,
            produce, process, prepare, test, analyze, pack, repack,
            store, contain, conceal, inject, ingest, inhale, or
            otherwise introduce into the human body a controlled
            substance in violation of this chapter.
      3
             In this opinion, “trial court” refers to the court that presided
over the trial and remand proceedings in Grindling’s case, and “circuit
court” refers to the court that presided over the post-conviction
proceedings.




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Esq., which was denied, and a subsequent motion to waive

counsel.4

            At a hearing in March 2008, Grindling clarified that

he did not really want to waive counsel but did not wish to be

represented by Virtue.      After the court determined that

Grindling had not made a showing that justified appointing

replacement counsel, the trial court granted Grindling’s motion

to waive counsel and appointed Virtue as standby counsel.              At a

later hearing, the court reconsidered its determination,

discharged Virtue, and appointed substitute counsel.            In June

2008, substitute counsel moved to withdraw, and the trial court

appointed Steven Songstad, Esq., as counsel and indicated that

Songstad would be Grindling’s last court-appointed counsel.

            Jury trial commenced on August 4, 2008.          During trial,

the State informed the court that the parties had entered into a

stipulation establishing the chain of custody and receipt into

evidence of four packets and a pipe recovered in the search of

Grindling’s residence and vehicle, and that the results of

chemical testing of the packets’ contents and the pipe residue

identified the presence of methamphetamine.           The trial court did




     4
            The Honorable Shackley F. Raffetto presided over the trial and
remand proceedings.




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not address Grindling regarding the stipulation, and the State

read the stipulation to the jury.

            The jury convicted Grindling on both charges, and the

court sentenced Grindling to five years in prison on each count,

with the terms to run consecutively (judgment of conviction).

Grindling was also required to pay a $105 Crime Victim

Compensation fee in each count.

                                B.    Appeal

            Cynthia Kagiwada, Esq., replaced Songstad as

Grindling’s counsel on appeal after Songstad moved to withdraw

as counsel.    After the filing of the opening brief in the

Intermediate Court of Appeals (ICA), Grindling filed a pro se

pleading entitled “Ex Parte Objection to Court Appointed

Counsel,” and later, a supplement to the opening brief.5             Neither

the opening brief nor Grindling’s supplement to the opening

brief raised any points of error concerning the trial court’s

acceptance of the evidentiary stipulation.

            Thereafter, the ICA granted a motion by Kagiwada to

remand the case to the trial court for consideration of a motion

to withdraw as counsel.       During the remand hearing, the trial

court allowed Kagiwada to withdraw from representing Grindling.


     5
            The State filed an ex parte motion to strike the supplement to
opening brief, which the ICA granted over Grindling’s opposition.




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The court then entered into a discussion with Grindling

regarding his lack of counsel.        Grindling stated that he wanted

a lawyer but expressed his frustration with his previous court-

appointed attorneys.      This led to the following exchange:

           THE COURT: All right. Well, what do you want to do about a
           lawyer, you gonna represent yourself or what?

           THE DEFENDANT: I want an attorney, but I don’t want []
           another one that does nothing, therefore I have no choice
           but to represent myself.

           THE COURT: That’s–-if you–-

           THE DEFENDANT: I am forced into it due [to] the fact that
           these attorneys don’t want to do anything.

           . . . .

           THE COURT: . . . You know, we’ve had these discussions
           several times about what a bad idea that is; you remember
           all that?

           THE DEFENDANT: And yeah, and I agree with you.   It is a bad
           idea, but I am forced into it. . . .

           . . . .

           THE COURT: I just want to know quite clearly that you–-you
           want to represent yourself. If that is what you want to
           do, then that’s fine. I just want to make sure that you
           are clear about that.

           THE DEFENDANT: Yeah. I–-I-–I–-we are clear about that.
           Like I said, I-–I have no choice. . . .

The trial court at this point determined Grindling had waived

his right to appointed counsel “based on [his] collective

behavior with [his] five previous counsel” and that he would

represent himself on appeal.6

     6
            Grindling, pro se, filed a motion to effectively reinstate his
supplement to the opening Brief, which the ICA granted. The State filed a
supplemental answering brief to which Grindling filed a reply.




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           On March 19, 2010, the ICA issued a Summary

Disposition Order (SDO) in which it determined that the trial

court should have held an evidentiary hearing to establish

Grindling’s objections on the record to ascertain the bases for

his request for replacement of Virtue as his trial counsel.7                The

ICA also concluded that although Grindling moved to waive his

right to counsel, “he really wanted substitute counsel.”             The

ICA found, however, that these errors were harmless beyond a

reasonable doubt because Grindling was without counsel for only

about one week, approximately four months before trial began.

Accordingly, the ICA affirmed the judgment of conviction.

                     C.    HRPP Rule 40 Proceedings

           On April 4, 2012, Grindling filed a “Petition to

Vacate, Set Aside, or Correct Judgment or to Release

Petitioner From Custody” (Petition8) in the circuit court

pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 40,

alleging that he had not been given access to correctional

programs, which resulted in his being denied parole.9



     7
            The ICA’s SDO can be found at State v. Grindling, No. 29307, 2010
WL 1020355 (App. Mar. 19, 2010).
     8
            The Petition was amended and supplemented with additional claims.
The term “Petition” refers collectively to these supplemental filings as
well.
     9
           HRPP Rule 40(a) provides in relevant part:


                                                           (continued . . .)


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Grindling later filed amendments to the Petition in May

2012, alleging eight grounds.        The circuit court issued an

order, finding that Grindling’s Petition raised potentially

colorable claims that had not been waived or previously

ruled upon with regard to, inter alia, his assertions of

ineffective assistance of appellate counsel and denial of

counsel on appeal.10

            In 2016, Grindling, now represented by counsel, filed

a motion to supplement the Petition, which the circuit court

granted.    The supplemental ground asserted that Grindling’s

state and federal constitutional rights to a fair trial were

violated when the circuit court, prior to accepting the

stipulation, failed to conduct an on-the-record colloquy with

him regarding his waiver of the right to proof of an element of

a charge.    Grindling also contended that that his federal and



(. . . continued)

            (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
            foregoing shall not be construed to limit the availability
            of remedies in the trial court or on direct appeal. Said
            proceeding shall be applicable to judgments of conviction
            and to custody based on judgments of conviction . . . .

The Honorable Joseph E. Cardoza presided over the Rule 40 proceedings.
     10
            In May 2014, Grindling filed an amended petition, pro se, in
which he raised six grounds, several of which reiterated claims that the
circuit court had previously found colorable.




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state constitutional rights to effective assistance of trial and

appellate counsel were violated by his trial counsel’s inaction

and appellate counsel’s failure to raise the trial court’s error

on appeal.

          In response to the claims raised in the supplemental

ground, the State argued that Grindling waived these claims when

he represented himself pro se on direct appeal, engaged in

conduct that demonstrated his desire to reject counsel, and

failed to raise the issue in a separate HRPP Rule 40 petition

that he had filed in 2015 (2015 Petition), which had been

assigned to a different circuit court judge and denied.

          At a hearing held on the Petition, the State conceded

that the trial court erred when it did not enter into a colloquy

with Grindling with regard to the stipulation, but the State

argued that the trial court’s omission was not plain error.                The

circuit court disagreed, finding that the stipulation

“established proof of an element to the offenses charged, i.e.

the presence of methamphetamine,” and concluding that the trial

court’s failure to conduct the colloquy was plain error.            In

addition, the circuit court found that Grindling was denied his

constitutional right to the effective assistance of trial

counsel when Songstad did not request a colloquy or object to

the trial court’s omission, as well as his constitutional right

to the effective assistance of appellate counsel when Kagiwada


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failed to raise the trial court’s error on appeal.            On June 14,

2016, the circuit court issued “Findings of Fact, Conclusions of

Law, and Order Granting Supplemental Ground to Petition to

Vacate, Set Aside, or Correct Judgment or to Release Petitioner

from Custody” (Order Granting Petition) and ordered that a new

trial be held.     The State timely appealed.

                           D.    ICA Proceedings

           Before the ICA, the State argued that Grindling could

have raised the supplemental claims on direct appeal or in the

2015 Petition and thus those claims were waived.            The State also

contended that Grindling should be judicially estopped from

raising a claim based on ineffective assistance of appellate

counsel because he represented himself on direct appeal and that

the circuit court applied the wrong standard with respect to

Grindling’s ineffective assistance of counsel claims.

           The ICA issued an SDO on April 5, 2018.11          The ICA held

that the circuit court did not err in ruling that there was no

waiver of Grindling’s supplemental claims, pointing to the

circuit court’s unchallenged finding that Grindling “has

consistently requested the assistance of counsel” through all

stages of this case.      However, the ICA concluded that the


     11
            The ICA’s SDO can be found at Grindling v. State, No. CAAP-16-
0000474, 2018 WL 1633820 (App. April 5, 2018).




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“circuit court’s application of a plain error standard of review

to Grindling’s collateral attack on his conviction was

improper.”   Quoting United States v. Frady, 456 U.S. 152 (1982),

the ICA noted that there is a “well-settled principle that to

obtain collateral relief a prisoner must clear a significantly

higher hurdle than would exist on direct appeal,” and held that

the circuit court therefore should only have applied the

standard for ineffective assistance of trial and appellate

counsel.   (Quoting 456 U.S. at 164-66.)

           The ICA thus ruled that the circuit court erred by

applying a plain error standard of review to Grindling’s

“collateral attack on his convictions” rather than the standard

for ineffective assistance of trial and appellate counsel.               And,

because the record did not indicate that Songstad or Kagiwada

had an opportunity to address Grindling’s claim that they were

constitutionally ineffective as required by HRPP Rule 40(f),12




     12
           HRPP Rule 40(f) states in relevant part as follows:

           Where the petition alleges the ineffective assistance of
           counsel as a ground upon which the requested relief should
           be granted, the petitioner shall serve written notice of
           the hearing upon the counsel whose assistance is alleged to
           have been ineffective and said counsel shall have an
           opportunity to be heard.




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the ICA vacated the circuit court’s Order Granting Petition and

remanded the case to the circuit court for further proceedings.13

                         II. STANDARDS OF REVIEW

            We consider a court’s conclusions of law regarding a

petition for post-conviction relief de novo, including its

determination of whether a claim is waived under HRPP Rule

40(a)(3).    Fragiao v. State, 95 Hawai‘i 9, 15, 18 P.3d 871, 877

(2001).   A court’s findings of fact in connection with a

petition for post-conviction relief are reviewable under the

clearly erroneous standard.       Wilton v. State, 116 Hawai‘i 106,

110 n.7, 170 P.3d 357, 361 n.7 (2007).

                              III. DISCUSSION

            In its application for writ of certiorari, the State

contends that the ICA gravely erred when it upheld the circuit

court’s determination that Grindling did not waive his

supplemental claims in the Petition.14




     13
            The State also maintained on appeal that the circuit court
erroneously allowed Grindling to re-litigate and obtain discovery, inter
alia, on previously ruled upon claims. The ICA did not address the merits of
this challenge.
     14
            The State also argues that the circuit court erred when it
disregarded its argument regarding Grindling’s re-litigation of his discovery
claims. The State maintains that upon remand, Grindling will continue to
attempt to re-litigate pre-trial discovery issues that have been previously
ruled upon. Accordingly, the State requests that this Court provide guidance
on this point.




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    A. Grindling Did Not Waive His Right to Counsel by Conduct
    Because He Was Not Presented with a Clear Choice to Continue
                        with Present Counsel.

           Waiver in a HRPP Rule 40 proceeding is governed by

HRPP Rule 40(a)(3), which provides that “an issue is waived if

the petitioner knowingly and understandingly failed to raise

it,” when it could have been raised previously, unless the

petitioner is able to show the existence of extraordinary

circumstances to justify the petitioner’s failure to raise the

issue.15   There is a rebuttable presumption that a petitioner’s

failure to appeal a ruling or to raise a potential issue in a

prior proceeding is a knowing and understanding failure.            HRPP

Rule 40(a)(3).

           The State argues that both the circuit court and the

ICA erred in concluding that Grindling did not waive his

supplemental claims when they were not raised in the supplement



     15
           HRPP Rule 40(a)(3) provides as follows:

           (3) INAPPLICABILITY. Rule 40 proceedings shall not be
           available and relief thereunder shall not be granted where
           the issues sought to be raised have been previously ruled
           upon or were waived. Except for a claim of illegal
           sentence, an issue is waived if the petitioner knowingly
           and understandingly failed to raise it and it could have
           been raised before the trial, at the trial, on appeal, in a
           habeas corpus proceeding or any other proceeding actually
           conducted, or in a prior proceeding actually initiated
           under this rule, and the petitioner is unable to prove the
           existence of extraordinary circumstances to justify the
           petitioner's failure to raise the issue. There is a
           rebuttable presumption that a failure to appeal a ruling or
           to raise an issue is a knowing and understanding failure.




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to his opening brief on direct appeal.         The State points to the

trial court’s determination on remand that Grindling had waived

his right to appellate counsel “based on [his] collective

behavior with [his] five previous counsel.”

           This court has long held that a defendant’s waiver of

the right to counsel must be voluntarily, knowingly, and

intelligently made.     See State v. Tarumoto, 62 Haw. 298, 300,

614 P.2d 397, 399 (1980).      “[A]lthough a waiver must be knowing

and intentional, it ‘may be expressed or implied,’ meaning ‘it

may be established by express statement or agreement, or by acts

and conduct from which an intention to waive may be reasonably

inferred.’”   In re Contested Case Hearing on Water Use Permit

Application Originally Filed by Kukui (Molokai), Inc., 143

Hawaii 434, 441, 431 P.3d 807, 814 (2018), (quoting Coon v. City

& Cty. of Honolulu, 98 Hawaii 233, 261, 47 P.3d 348, 376

(2002)).   With regard to a waiver of the right to counsel by

conduct, a “[w]aiver may be shown by conduct of an unequivocal

nature.”   Tarumoto, 62 Haw. at 300, 614 P.2d at 399.

           In State v. Char, the ICA considered the circumstances

under which a defendant may waive the right to counsel by

repeatedly rejecting court-appointed representation.           80 Hawaii

262, 264, 909 P.2d 590, 592 (App. 1995).         Upon granting the

defendant’s fourth request for substitute counsel, the trial




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court cautioned the defendant that this would be his last court-

appointed attorney.      Id. at 265, 909 P.2d at 593.        Subsequently,

the defendant again requested substitute counsel, prompting the

court to grant counsel’s motion to withdraw and determine that

the defendant had waived his right to counsel.           Id.   The

defendant represented himself at trial and, following his

conviction, appealed to the ICA, arguing that his right to

court-appointed counsel had been violated.          Id. at 264-66, 909

P.2d at 592-94.

           The ICA held that to determine whether a defendant had

validly waived his right to counsel by conduct, six-factors had

to be satisfied:

           (1) the defendant requested a substitute court-appointed
           counsel; (2) the defendant was afforded a reasonable
           opportunity to show good cause for a substitute court-
           appointed counsel; (3) the trial court did not abuse its
           discretion when it decided that a substitute court-
           appointed counsel was not warranted; (4) the requirements
           of State v. Dickson, 4 Haw. App. 614, 619–20, 673 P.2d
           1036, 1041 (1983)[16], were satisfied; (5) the defendant was
           given a clear choice of either continuing with present
           counsel or being deemed to have waived by conduct his or
           her right to counsel; and (6) the defendant refused to
           continue with present counsel.

Id. at 268-69, 909 P.2d at 596-97 (internal references omitted).

The ICA concluded in Char that the lower court’s failure to give

     16
             “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.” State v. Phua, 135 Hawaii 504, 512, 353 P.3d 1046,
1054 (2015).




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the defendant a reasonable opportunity to show good cause for a

substitute court-appointed counsel was sufficient to find that

the defendant had not validly waived his right to counsel

through his conduct.17       Id.   The ICA thus vacated the defendant’s

conviction and ordered a new trial.           Id. at 269, 909 P.2d at

597.

             Factor (5) of the Char framework requires that the

court give the defendant a “clear choice” of either (1)

continuing with present counsel or (2) being deemed to have

waived the right to counsel by conduct.            In this case, the trial

court allowed Kagiwada to withdraw as appellate counsel before

addressing Grindling about what “he was going to do about a

lawyer,” ultimately concluding that Grindling wanted to

represent himself and that he had waived counsel by his

“collective behavior with [his] five previous counsel.”               Because

the trial court allowed Kagiwada to withdraw as counsel before

addressing Grindling, he was not given a “clear choice” between

continuing with his present counsel or being deemed to have

waived by conduct his right to counsel as required by factor (5)

of the Char framework.


       17
            Because the ICA concluded that factor (2) had not been met, the
ICA did not discuss factors (3) through (6). See Char, 80 Hawaii at 269, 909
P.2d at 597. We do not address whether satisfaction of the six factors
identified by the ICA would necessarily result in a valid waiver of counsel.




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           Further, the record does not establish that Grindling

unequivocally waived his right to counsel.          During Grindling’s

interaction with the trial court on remand, Grindling expressly

stated that he still wanted a lawyer but that he had no choice

but to represent himself.       He agreed that it was a bad idea to

represent himself but that he was “forced into it.”            When asked

to clarify whether he wanted to represent himself, Grindling

again stated that he “ha[d] no choice.”

           Grindling’s conduct did not constitute a valid waiver

of his right to appellate counsel, and he was thus denied his

right to counsel on appeal.       Grindling therefore could not

“knowingly and understandably fail[] to raise” the circuit

court’s failure to engage him in the required Murray colloquy18

or the claim of ineffective assistance of trial counsel on

direct appeal.19



     18
            As discussed infra, Section III.D, this court held in Murray that
“the trial court must conduct a colloquy [with the defendant] regarding
waiver of proof of an element of the offense.” State v. Murray, 116 Hawaii
3, 12, 169 P.3d 955, 964 (2007).
      19
            Grindling is therefore also not judicially estopped from claiming
ineffective assistance of appellate counsel because of the flawed nature of
the purported waiver of counsel. The State alternatively argues that the
supplemental claims are waived because Grindling could have raised them in
the 2015 Petition. HRPP Rule 40(a)(3) states that claims may be waived if
they are not brought “in a prior proceeding actually initiated under this
rule.” (Emphasis added.) The filing of the Petition predated the filing of
the 2015 Petition. Therefore, Grindling’s failure to include the
supplemental claims in the 2015 Petition did not constitute a waiver under
HRRP Rule 40(a)(3).




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  B. The Merits of Grindling’s Ineffective Assistance of Trial
                           Counsel Claim.

          The circuit court concluded that Grindling was denied

his constitutional right to the effective assistance of trial

counsel when his counsel did not request an on-the-record

colloquy by the trial court and did not object to the trial

court’s failure to conduct a colloquy before the stipulation to

elements of the charged offenses was accepted.          In addressing

the State’s challenge to this ruling, the ICA concluded that it

did not appear that Songstad had an opportunity to address

Grindling’s claim of ineffective assistance of counsel at the

hearing on the Petition and remanded the case to the circuit

court to afford such an opportunity.

          To demonstrate that trial counsel is constitutionally

ineffective, a defendant must demonstrate “1) that there were

specific errors or omissions reflecting counsel’s lack of skill,

judgment, or diligence; and 2) that such errors or omissions

resulted in either the withdrawal or substantial impairment of a

potentially meritorious defense.”        State v. Silva, 75 Hawai‘i

419, 440, 864 P.2d 583, 593 (1993) (quoting State v. Aplaca, 74

Haw. 54, 66-67, 837 P.2d 1298, 1305 (1993)).          Thus, to succeed

on the claim of ineffective assistance of trial counsel,

Grindling is initially required to show that Songstad’s failure

to bring the colloquy requirement to the trial court’s attention



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was an omission reflecting a lack of skill, judgment, or

diligence.

          Our precedents make clear, however, that it is the

duty of the trial court to conduct a colloquy to ensure a

defendant’s waiver of a fundamental right is undertaken

knowingly, intelligently, and voluntarily--and not that of

defense counsel.    In State v. Murray--which set forth the

mandatory colloquy requirement to a defendant’s stipulation to

an element of a charged offense--we stated that

          a knowing and voluntary waiver of a defendant’s fundamental
          right must come directly from the defendant, and requires
          the court to engage in a colloquy with the defendant. . . .

          . . . .

          Tachibana determined that the trial court must engage in an
          on-the-record colloquy to ensure that the defendant
          knowingly and voluntarily waived his constitutional right .
          . . .

116 Hawai‘i 3, 11, 169 P.3d 955, 963 (2007) (emphases added)

(citing State v. Ibuos, 75 Hawai‘i 118, 121, 857 P.2d 576, 578

(1993); Tachibana v. State, 79 Hawai‘i 226, 235, 900 P.2d 1293,

1302 (1995)).   Similarly, in State v. Ui, we noted that “it is

necessary for a trial court to engage a defendant in an on-the-

record colloquy before accepting a waiver of any of the rights

we have held to be fundamental.”         142 Hawai‘i 287, 293, 418 P.3d

628, 634 (2018).

          The failure of defense counsel to realize that a court

neglected to fulfill its constitutional duty to conduct a



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colloquy as to a stipulation to an element of a charged offense,

or to take action to correct the court’s oversight, or to

request a colloquy as a matter of due course are not omissions

reflecting counsel’s lack of skill, judgment, or diligence.                 We

thus need not consider whether any such omission by the defense

counsel would result in the withdrawal or substantial impairment

of a potentially meritorious defense.

           In sum, a trial court’s constitutional duty to engage

the defendant in a colloquy prior to accepting a stipulation to

an element of a charged offense does not devolve upon defense

counsel when the court does not fulfill its responsibility.20

Accordingly, Grindling’s claim for relief based on the

ineffectiveness of trial counsel is without merit.            Thus, the

ICA erred in remanding the case to the circuit court to allow

Songstad an opportunity to address Grindling’s claim of

ineffective assistance of trial counsel.21


      20
            Nevertheless, a prosecutor or defense counsel may certainly
assist the court by reminding it of the required colloquy or pointing out an
omission when it occurs.
      21
            The ICA’s SDO also instructed the circuit court to allow Kagiwada
the opportunity to address Grindling’s claim of ineffective assistance of
appellate counsel with regard to the failure to raise the trial court’s error
on appeal. As discussed infra, the circuit court correctly concluded that
the trial court’s failure to engage in a colloquy with Grindling was plain
error and ordered that Grindling receive a new trial. Because a new trial
renders moot Grindling’s ineffective assistance of appellate counsel claim,
which was based on an appeal of the original trial court decision, we need
not address the merits of Grindling’s ineffective assistance of appellate
counsel claim or the ICA’s disposition thereof. See State v. Cordeiro, 99
Hawai‘i 390, 428, 56 P.3d 692, 730 (2002) (noting that “a decision on other

                                                           (continued . . .)


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     C. The Availability of Plain Error on Collateral Review.

           The ICA held that the HRPP Rule 52(b) plain error

standard is unavailable on collateral review, citing United

States v. Frady, 456 U.S. 152, 164-66 (1982).22           In Frady, the

U.S. Supreme Court considered the application of the Federal

Rules of Criminal Procedure (FRCP) Rule 52(b)--which authorizes

federal courts to notice plain error in criminal proceedings--in

a collateral review proceeding authorized by a federal statute,

28 U.S.C. § 2255.     456 U.S. at 163-64.       The section 2255

proceeding was not directly governed by the FRCP, but rather by

the section 2255 Rules, a set of federal procedural rules

promulgated for that specific purpose.          See id. at 166 n.15.

The Court reasoned that FRCP Rule 52(b) plain error review was

not available in a section 2255 proceeding because under its

precedents there existed a “well-settled principle that to

obtain collateral relief a prisoner must clear a significantly

(. . . continued)

issues in the appellate court may effectively moot an ineffective assistance
claim” (quoting State v. Silva, 75 Haw. 419, 438, 864 P.2d 583, 592 (1993))).
We accordingly vacate the portion of the circuit court’s Order Granting
Petition as to Grindling’s ineffective assistance of appellate counsel claim.
     22
            The circuit court vacated the conviction both on grounds of
ineffective assistance of counsel and plain error. We therefore consider
whether the court’s ruling may be affirmed based upon its alternative plain
error ruling. State v. Pacquing, 139 Hawaii 302, 313 n.19, 389 P.3d 897, 908
n.19 (2016) (“[W]here the decision below is correct it must be affirmed by
the appellate court even though the lower tribunal gave the wrong reason for
its action.” (quoting State v. Taniguchi, 72 Haw. 235, 239, 815 P.2d 24, 26
(1991)).




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higher hurdle than would exist on direct appeal.”             Id. at 166.

Instead, a petitioner was required to meet the “cause and actual

prejudice” standard to obtain relief in a section 2255

proceeding based on an unobjected-to error, which requires a

showing of “both (1) ‘cause’ excusing [the] double procedural

default, and (2) ‘actual prejudice’ resulting from the errors of

which he [or she] complains.”         Id. at 167.

            Relying on Frady, the ICA in this case held that the

supplemental claims should be governed exclusively by the

standards for ineffective assistance of trial and appellate

counsel and not the HRPP Rule 52(b) plain error standard.23               This

analysis is flawed for several reasons.

            First, unlike in Frady, the collateral review in this

case was not authorized by a statute but instead by HRPP Rule

40.   This court has not promulgated a separate set of procedural

rules for post-conviction proceedings analogous to the section

2255 Rules, and it is self-evident that the HRPP--including HRPP

Rule 52(b)--apply in a HRPP Rule 40 proceeding.

            Second, the Court’s decision in Frady was predicated

on the “cause and actual prejudice” standard of review being a

      23
            HRPP Rule 52(b) provides as follows:

            Plain Error. Plain errors or defects affecting substantial
            rights may be noticed although they were not brought to the
            attention of the court.




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“significantly higher hurdle than” the plain error standard of

review.    Frady, 457 U.S. at 166.       In contrast, the legal

standard for identifying ineffective assistance of counsel is

not a higher standard of review than plain error--indeed, it is

not a standard of review at all.         Rather, the test for

ineffective assistance is applied in the first instance by a

reviewing court.    A court considering whether ineffective

assistance occurred does not consider the rulings or actions of

the trial court but rather the conduct of counsel.           And, to the

extent the two standards are comparable, plain error represents

the “higher hurdle” because it requires a proponent to

demonstrate an impairment of “substantial rights.”           HRPP Rule

52(b).    When evaluating a claim for ineffective assistance, we

consider “the possible, rather than the probable, effect” of

counsel’s error and “no showing of ‘actual’ prejudice is

required.”    Wilton v. State, 116 Hawai‘i 106, 119, 170 P.3d 357,

370 (2007) (quoting Briones v. State, 74 Haw. 442, 464, 848 P.2d

966, 977 (1993)).    Thus, the central logic underlying the United

States Supreme Court’s holding in Frady is inapplicable to the

ineffective assistance standard.

            Lastly, this court has implicitly rejected Frady

repeatedly in the years since it was decided, by considering--

and in some instances applying--the plain error standard in the

context of collateral review.       See, e.g., Raines v. State, 79


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Hawai‘i 219, 224-25, 900 P.2d 1286, 1291-92 (1995) (applying

plain error in a post-conviction proceeding based on incorrect

jury instruction); Dan v. State, 76 Hawai‘i 423, 429, 879 P.2d

528, 534 (1994) (considering the merits of defendant’s plain

error argument in a post-conviction proceeding); Briones, 74

Haw. at 460, 467 n.18, 848 P.2d at 975, 978 n.18 (noting the

availability of post-conviction plain error review when an error

on appeal does not satisfy the standard for ineffective

assistance of appellate counsel).        The ICA therefore erred in

concluding that plain error was not the proper standard of

review.

   D. The Circuit Court’s Plain Error Conclusion Was Correct.

           We now turn to whether the circuit court’s application

of plain error in this case was proper.         The relevant inquiry in

determining whether a lower court’s plain error may be noticed

is whether the error affected substantial rights.           State v.

Hernandez, 143 Hawaii 501, 512, 431 P.3d 1274, 1285 (2018).               As

this court made clear in State v. Murray, “[t]he defendant’s

right to have each element of an offense proven beyond a

reasonable doubt is a constitutionally and statutorily protected

right.”   116 Hawaii 3, 10, 169 P.3d 955, 962 (2007) (internal

references omitted).     A knowing and voluntary waiver of such a

right must come from the defendant and requires the court to




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engage in a colloquy with the defendant.            Id. at 11, 169 P.3d at

963.    “[A] reviewing court has discretion to correct plain error

when the error is ‘not harmless beyond a reasonable doubt.’”

State v. Ui, 142 Hawaii 287, 297, 418 P.3d 628, 638 (2018)

(quoting State v. Nichols, 111 Hawaii 327, 335, 141 P.3d 974,

982 (2006)).

             Grindling was charged with promoting a dangerous drug

in the third degree in violation of HRS § 712-1243(1) and

prohibited acts related to drug paraphernalia in violation of

HRS § 329-43.5(a).       At trial, the court accepted the stipulation

establishing the chain of custody of several packets and a pipe

received into evidence and the results of chemical testing of

the evidence, which found the presence of methamphetamine.                As

the circuit court correctly found, the stipulation “established

proof of an element to the offenses charged, i.e. the presence

of methamphetamine.”        The trial court thus erred by not first

conducting an on-the-record colloquy with Grindling to obtain a

waiver of his right to have each element of the offenses against

him proven beyond a reasonable doubt.           See Murray, 116 Hawaii at

14, 169 P.3d at 966 (holding that the family court committed

plain error when it, inter alia, accepted a stipulation without

engaging the defendant in a colloquy regarding waiving proof of

an element of the charge).         Without the results confirming the




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presence of methamphetamine in this case, the jury could not

have found Grindling guilty of the charged crimes and the trial

court’s error was therefore not harmless.            See Ui, 142 Hawaii at

298, 418 P.3d at 639 (holding that the “erroneously admitted

stipulation formed the only basis from which a trier of fact

could infer” the defendant’s specific blood alcohol content

exceeded the legal limit in a prosecution for operating a

vehicle under the influence of an intoxicant and concluding that

the district court’s plain error was not harmless).

             The circuit court correctly concluded that the trial

court’s failure to conduct an on-the-record colloquy with

Grindling before accepting the stipulation establishing an

element of the charged offenses was plain error.              Ui, 142 Hawaii

at 298, 418 P.3d at 639; Murray, 116 Hawaii at 14, 169 P.3d at

966.    We thus affirm the circuit court’s Order Granting Petition

on plain error grounds.24

                               IV.   CONCLUSION

             Based on the foregoing, we vacate the ICA’s May 2,

2018 Judgment on Appeal, vacate that portion of the circuit

court’s Order Granting Petition as to ineffective assistance of

       24
            The State requests that this court review the circuit court’s
orders compelling discovery related to Grindling’s Petition. The State does
not allege any actual consequences of the discovery order in relation to this
case. Rather, the State asks only that this court “provide guidance,”
essentially requesting an advisory opinion. We decline to do so.




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trial and appellate counsel, and otherwise affirm the Order

Granting Petition.


Peter A. Hanano                          /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama

                                         /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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