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                                                                  Electronically Filed
                                                                  Supreme Court
                                                                  SCWC-30559
                                                                  22-JAN-2014
                                                                  09:26 AM




               IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                                ---o0o---
    ________________________________________________________________

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

                                        vs.

              JOSEPH PITTS, Petitioner/Defendant-Appellant.
    ________________________________________________________________

                                   SCWC-30559

              CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                    (ICA NO. 30559; CR. NO. 09-1-0097)

                                January 22, 2014

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

                    OPINION OF THE COURT BY MCKENNA, J.

I.      Introduction

        This court accepted Petitioner/Defendant-Appellant Joseph

Pitts' Application for Writ of Certiorari1 and ordered

1
      We did not accept certiorari for the purpose of addressing Pitts'
question presented, as the record does not support Pitts' allegation of error.
We accepted certiorari for the purpose of addressing the question posed to the
parties for supplemental briefing.
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supplemental briefing addressing whether the circuit court erred

in not appointing substitute counsel for Pitts for post-verdict

motions and sentencing.        We hold that the circuit court2 erred by

not appointing substitute counsel for Pitts' post-verdict motions

because post-verdict proceedings are critical stages in the

prosecution.      We also hold that the circuit court erred by not

appointing Pitts substitute counsel for sentencing.

II.    Background

       Pitts was tried for attempted murder in the second degree.

Pitts was alleged to have stabbed his close friend.

       After opening statements, Pitts expressed a desire to

represent himself.       John Schum ("Schum"), Pitts' fourth court-

appointed attorney (appointed after Pitts had developed personal

conflicts with his three preceding court-appointed attorneys),

who represented Pitts at that point, stated the problem was Pitts

believed "he knows the case better than [Schum] do[es] and that

the truth will set him free."          The circuit court asked Pitts to

think about his decision over the weekend.            The following Monday,

before trial resumed, Pitts informed the circuit court that he

would "push [his] stubbornness aside" and have Schum continue

representing him.




2
        The Honorable Glenn J. Kim presided.


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     Later, during a break in the State's case, Pitts again

announced his intention to fire Schum.         After giving Pitts a day

to think about his decision, the circuit court colloquied Pitts

regarding his right to counsel, Pitts waived his right to

counsel, and Schum was assigned as standby counsel.           There were

no express limits on the time frame for which Schum would act as

standby counsel (i.e., through trial, through post-trial motions,

through sentencing, through appeal, etc.).

     As the State's case progressed, Pitts expressed to the court

(outside the presence of the jury) that he wanted Schum to resume

representing him because he (Pitts) was overwhelmed.            Schum

stated that he was not sure he could resume representation

because of the ethical problem caused by Pitts' accusation that

Schum and the prosecutor "shar[ed] privileged information and

attempt[ed] to sell [Pitts out]."        The circuit court denied

Pitts' request to have Schum resume representation for two

reasons:   first, because of Schum's perceived ethical problem,

and second, because "the bottom line is . . . that [Pitts] waived

[his] right to counsel."      For the rest of the trial, Pitts was

pro se.

     On March 10, 2010, the jury returned a guilty verdict.

     On March 17, 2010, Schum filed a timely Motion to Withdraw

as Stand-by Counsel, Appoint Substitute Counsel and Declare



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Mistrial.    In his declaration attached to the motion, Schum

explained that Pitts had asked for Schum's help in requesting a

new trial, preparing for the sentencing hearing, and starting

work on an appeal.      According to Schum, he told Pitts resuming

representation was not possible because Pitts had waived his

right to counsel and accused Schum of ethical violations.             Schum

contacted the Office of Disciplinary Counsel, who advised him

that it would be possible for Schum to file the instant motion so

long as Pitts concurred so that Pitts' "full rights both post-

trial and on appeal would be preserved. . . ."           Pitts concurred.

Thus, the motion requested that Schum be allowed to withdraw as

standby counsel, that substitute counsel be appointed to assist

Pitts post-trial and on appeal, and that a mistrial be declared

because Pitts' waiver of the right to counsel was involuntary.

The State filed its Opposition on April 5, 2010, arguing that

Pitts made a knowing and voluntary waiver of his right to

counsel.

     On April 7, 2010, the circuit court heard the motion.

Addressing Schum, the circuit court stated that Schum's services

as standby counsel ended when the jury rendered its verdict:

            First of all, I don't think it was required of you to file a
            motion to withdraw as standby counsel. You no longer
            represent Mr. Pitts. The very fact that I asked you to be
            standby counsel at trial tells us that. Mr. Pitts waived
            his right to counsel very clearly, as [the State] said. To
            this day, he's still representing himself. The trial is
            over. I think we'd all agree on that. So you're no longer


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            standby counsel. I don't think you need to file a motion to
            withdraw as standby counsel.

The circuit court also opined that Schum might not have standing

to file a motion to appoint substitute counsel.           In any event,

the circuit court denied the motion for a mistrial (construed as

a motion for a new trial), both on the merits, stating, "Mr.

Pitts waived his right to counsel very clearly," and because it

"[did not] think [Schum had] standing to bring [the motion]."

     The circuit court then directed Pitts to file any post-trial

motions pro se.     The circuit court stated that it would consider

any motion for a new trial filed by Pitts to be timely, even

though filed beyond ten days after the jury delivered its

verdict.3   Pitts expressed a desire to be represented by counsel

for sentencing and appeal, and the circuit court directed him to

make those requests in his own motions.

     The day after the hearing, Pitts filed five post-verdict

motions pro se:     (1) Motion to Set A[s]ide Verdict and Enter

[Judgment] of Acquittal Hawaii Rules of Penal Procedure Rule

29(c) or in the Alternative Grant Defendant New Trial HRPP Rule
3
      The circuit court was not authorized to extend Pitts' deadline for a
motion for a new trial in this way. Hawai#i Rules of Penal Procedure ("HRPP")
Rule 45(b) (2010) states, "[T]he court may not extend the time for taking any
action under [Rule] 33. . . except and under the conditions stated in [it.]"
Under HRPP Rule 33 (2010), a motion for a new trial "shall be made within 10
days after verdict or finding of guilty or within such further time as the
court may fix during the 10-day period." The jury rendered its verdict on
March 10, 2010. The hearing on April 7, 2010 took place 28 days after the
verdict. Therefore, the circuit court violated HRPP Rule 45(b) by allowing
Pitts to file a pro se motion for new trial beyond the ten-day deadline set
forth in HRPP Rule 33.


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33 HRS § 635-56; (2) Motion for New Trial or in the Alternative

Motion for Mistrial; (3) Motion to be Appointed Counsel for

Sentencing and Appeal; (4) Motion for Psychiatric Evaluation 3

Panel; and (5) Request for Continuance.          On May 12, 2010, the

circuit court held a hearing on Pitts' motions.           The circuit

court reiterated that Schum "has nothing to do with [Pitts'] case

at this point.     [Pitts is] pro se.       [Pitts] waived counsel."        At

this hearing, Pitts repeatedly implored the circuit court for an

attorney.

     First, the following exchange took place after the circuit

court asked if Pitts had anything to add to his Motion to Set

Aside Verdict and Enter Judgment of Acquittal:

            MR. PITTS: Your Honor, first I would like to say I would
            like an attorney, but if I can't –- I can't do this by
            myself. I really need an attorney.

            THE COURT: We'll get to that motion. I'm not going to give
            you an attorney for your sentencing today nor for these
            motions. You filed them pro se. You've been pro se. It's
            your motion.

Second, the following exchange took place after the circuit court

asked if Pitts had anything to add to his Motion for New Trial,

or in the alternative, Motion for Mistrial:

            MR. PITTS: Your Honor, again, as you can see you've just
            denied all my motions. I can't do this. I need an attorney
            to help me, and the more you dismiss things, the more it
            shows me that I need an attorney.

            THE COURT: Mr. Pitts, we're going to get to your motion for
            an attorney.

            MR. PITTS:   I mean like now.



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             THE COURT: No. No. You've waived counsel and you're pro
             se, and you didn't make a motion for the appointment of
             another attorney, and I'm not sure I would have granted it
             anyway.

Lastly, Pitts made the following remark after the circuit court

asked if Pitts had anything to add to his Motion for Psychiatric

Evaluation or a 3 Panel:        "All right, I made [a motion for a 3

panel] which you're gonna probably dismiss, so I need an

attorney."

       The circuit court did grant Pitts' motion for appointment of

appellate counsel.       The circuit court entered its Judgment of

Conviction and Sentence on May 12, 2010.           Pitts, represented by

appellate counsel, timely appealed.          The ICA concluded that

Pitts' appeal was without merit and affirmed his conviction.

III.    Discussion

       A.   The Parties' Supplemental Briefing

       Pitts argues, "Appointment of counsel for an indigent is

required at every stage of a criminal proceeding where

substantial rights of a criminal accused may be affected."                In

support of his argument, he cites D'Ambrosio v. State, 112

Hawai#i 446, 146 P.3d 606 (App. 2006).          He continues, without

citation, "The circuit court ignored the 'critical' stage of the

post-verdict to sentencing part of the criminal proceedings

against Pitts."      He continues, without citation, "The post-

verdict and sentencing time is still a critical part of the


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proceedings and hence Pitts was entitled to have counsel

appointed."

      The State argues that the circuit court did not err by not

appointing substitute counsel post-verdict.           The State cites to a

federal habeas corpus case that ostensibly favors Pitts'

position: Rodgers v. Marshall, 678 F.3d 1149, 1163 (9th Cir.

2012)("It is 'clearly established federal law' that the post-

trial motion for new trial is a 'critical stage' that implicates

the right to counsel, as is a defendant's right to re-assert the

right to counsel during post-trial proceedings.")4            The State

cited to Rodgers for the requirement that a defendant must make a

timely request for representation.         See Rodgers, 678 F.3d at 1163

("[T]rial courts cannot deny a defendant's timely request for

representation without a sufficient reason.") (emphasis added).

The State goes on to argue that Pitts' request for counsel for

his post-verdict motions was untimely, having been made on the

day those motions were heard, on May 12, 2010.           Further, the

State argues that Pitts "made abundantly clear that no attorney


4
      The United States Supreme Court reversed the Ninth Circuit on the
"clearly established federal law" holding only. See Marshall v. Rodgers, 133
S.Ct. 1446, 1451 (2013)(per curiam)(holding that the Ninth Circuit may not
canvas other circuits' precedent to presume that a particular rule of law
would be clearly established Federal law if it were to be presented to the
Supreme Court of the United States). For purposes of proceeding with its
analysis, the United States Supreme Court "assumed, without so holding" that
"after a defendant's valid waiver of his right to trial counsel under Faretta
[v. California, 422 U.S. 806 (1975)], a post-trial, pre[-]appeal motion for a
new trial is a critical stage of the prosecution." Id. at 1449.


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would suffice," pointing out that Pitts had been through four

court-appointed attorneys for trial.        The State summed up Pitts

behavior as "manipulative and abusive . . . amounting to bad

faith."

     The State concluded that the circuit court did not err by

not appointing substitute counsel for Pitts for post-verdict

motions and sentencing because Pitts waived his right to counsel

during trial; the circuit court considered the timing of Pitts'

request for counsel; the circuit court had no discretion in

sentencing Pitts; and because the circuit court was aware of

Pitts' behavior towards his attorneys.         Alternatively, the State

argued that if this court should hold that Pitts should have been

appointed counsel for his post-verdict motions, "a remand for

appointment of counsel should be limited to re-litigating Pitts'

post-verdict motions and for sentencing."         In support of this

form of relief, the State cites Rodgers, 678 F.3d at 1164

(citation omitted):     "Regarding the right to counsel, we

previously held that a habeas remedy should put the defendant

back in the position he would have been in if the Sixth Amendment

violation never occurred."

     At oral argument, however, the State agreed that its

position was that a motion for a new trial was a critical stage

in the prosecution.     See



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http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc3

0559.html.

     B.   The Right to Counsel for Post-Verdict Proceedings

     We sua sponte raise the issue of the right to counsel for

post-verdict motions, as Pitts did not raise the issue in his

certiorari application.     We do so, however, because the "right to

counsel is an essential component of a fair trial[.]"            State v.

Dickson, 4 Haw. App. 614, 618, 673 P.2d 1036, 1041 (1983).             "The

Sixth and Fourteenth Amendments to the United States Constitution

guarantee to a person accused by the state of committing an

offense the right to be represented by counsel at every critical

stage of the prosecution."      Reponte v. State, 57 Haw. 354, 361,

556 P.2d 577, 582 (1976)(citing United States v. Ash, 413 U.S.

300 (1973)).   Article I, Section 14 of the Hawai#i Constitution

also guarantees the accused the right to counsel.           See id. ("In

all criminal prosecutions, the accused shall enjoy the right to

. . . have the assistance of counsel for the accused's defense.")

A "critical stage" of the prosecution is any stage where

"potential substantial prejudice to defendant's rights inheres."

State v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022

(1981)(citing United States v. Wade, 388 U.S. 218, 227 (1967)).

     In this appeal, two right to counsel principles have come to

a head:   the right to counsel versus the right to serve as one's


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own counsel.    The United States Supreme Court has recently

observed:

            It is beyond dispute that "[t]he Sixth Amendment safeguards
            to an accused who faces incarceration the right to counsel
            at all critical stages of the criminal process." It is just
            as well settled, however, that a defendant also has the
            right to "proceed without counsel when he voluntarily and
            intelligently elects to do so." There can be some tension
            in these two principles.

Marshall, 133 S.Ct. at 1449 (citations omitted).           In this case,

the circuit court erred in refusing to appoint substitute counsel

for Pitts for post-verdict motions.        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, notwithstanding a defendant's earlier mid-trial

waiver of the right to counsel.

     In this appeal, the circuit court insisted upon enforcing

Pitts' right to self-representation, even though it had become

apparent at the post-verdict and sentencing stages of the

prosecution that Pitts no longer desired to proceed pro se and

had reasserted his right to counsel.         A defendant's exercise of

the right to self-representation, however, is not irreversible;

the right is subject to termination.         See State v. Hutch, 75 Haw.

307, 320, 861 P.2d 11, 21 (1993)(citing Faretta, 422 U.S. at 835

n.46 (observing that the right to self-representation is not

offended when counsel is made "available to represent the

[defendant] in the event that termination of the defendant's


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self-representation is necessary.'")(emphasis added).            In

McKaskle v. Wiggins, 465 U.S. 168, 182 (1984), the United States

Supreme Court held that the right to self-representation

terminates when a self-represented defendant either expressly

approves of, or impliedly invites through acquiescence, counsel's

participation in his defense.

     In this case, Pitts expressly requested counsel for his

post-verdict motions, again demonstrating his intention to

terminate self-representation.       See McKaskle, 465 U.S. at 182.

Therefore, under McKaskle and Hutch, the circuit court would not

have violated Pitts' right to self-representation had he

appointed counsel for Pitts for post-verdict motions and

sentencing.   Hence, the circuit court erred in insisting that

Pitts' earlier mid-trial waiver of counsel carried through post-

verdict.

     The State argues that Pitts' requests for appointment of

counsel post-verdict were "untimely" because they were raised on

May 12, 2010, upon the hearing of those post-verdict motions.

Pitts does not dispute that he requested post-verdict counsel on

May 12, 2010.   It is unlikely, however, that Pitts could have

requested counsel any earlier than he did.         At the April 7, 2010

hearing on Schum's motion, the circuit court had orally ruled




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that Schum "lacked standing" to act as Pitts' standby counsel and

that Pitts was pro se after the verdict.5

      The consequence of the circuit court's ruling that Schum's

role as standby counsel ended at the close of trial was that

Pitts then had to file his pro se post-verdict motions as soon as

possible, because sentencing was set for May 12, 2010, a month

away.    At the May 12, 2010 hearing, it became apparent to Pitts

that the circuit court was about to deny his motions and that he

was ill equipped to handle his own representation at that point.

Therefore, Pitts requested post-verdict counsel then, which the

circuit court refused because Pitts had waived counsel during

trial.

      The United States Court of Appeals for the Ninth Circuit has

addressed a question similar to the one at bar:             "[I]s a

criminal defendant entitled to the assistance of an attorney at a

post-trial hearing when prior to trial he waived the right to


5
      On this score, Hawai#i Revised Statutes ("HRS") § 802-5 (1993), which
governs indigent defendants, states, in relevant part, "When it shall appear
to a judge that a person requesting the appointment of counsel satisfies the
requirements of this chapter, the judge shall appoint counsel to represent the
person at all stages of the proceedings, including appeal, if any." (Emphasis
added). The circuit court, in appointing Schum (then assigning him as standby
counsel), appointed him for "all stages of the proceedings" and did not
exclude post-trial motions as part of Schum's role. If that was the circuit
court's intent, that should have been communicated to Pitts and Schum when
Schum was assigned as standby counsel. See, e.g., People v. Lindsey, 308
N.E.2d 111, 117 (Ill.App.3d 1974)("We are of the opinion that it was
prejudicial to tell the defendant he could represent himself, with a court-
designated lawyer to assist him, and then, at crucial phases of his trial,
when he made reasonable requests for assistance, prevent the lawyer from
assisting him.").


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counsel and chose to represent himself?"          Menefield v. Borg, 881

F.2d 696, 698 (9th Cir. 1989).       The Ninth Circuit answered the

question in the affirmative, holding that the motion for a new

trial is a "critical stage" in the prosecution, at which the

right to counsel attaches.      881 F.2d at 699.      The Ninth Circuit

continued, "[A]lthough we recognize the right to counsel –- once

waived –- is no longer absolute, we start with the strong

presumption that a defendant's post-trial request for the

assistance of an attorney should not be refused."           881 F.2d at

700.

       The Menefield court also held that "at least in the absence

of extraordinary circumstances, an accused who requests an

attorney at the time of a motion for a new trial is entitled to

have one appointed, unless the government can show that the

request is made for a bad faith purpose."         881 F.2d at 701.      The

Ninth Circuit rejected as insufficient the government's argument

that the defendant's "pretrial dismissal of two attorneys proves

his bad faith."    Id.   It reasoned, "While repeated firings of

counsel may in some circumstances evidence an improper motive,

pretrial dismissals should ordinarily have little influence on

the determination of whether a post-conviction motion for

appointment of counsel is improper."        Id.   This was because "the

unsettling experience of trial, as well as its unsatisfactory



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result, will be the source of a defendant's discontent with his

own services and, consequently, the basis for his post-trial

motion for the assistance of counsel."         Id.

     We agree that, in the absence of extraordinary

circumstances, a defendant who has exercised the right to self-

representation at trial, but expressly requests counsel for post-

verdict motions or for sentencing has a right to counsel.             The

State argues that Pitts' track record of firing four court-

appointed attorneys pre-trial was a circumstance to be considered

in denying the appointment of counsel for post-verdict motions

(and sentencing).    However, Pitts requested counsel post-verdict

due to his "discontent with his own services" with regard to the

post-verdict motions.     Thus, under the circumstances of this

case, Pitts' pre-trial track record of firing counsel is

insufficient to establish that his post-verdict request for

counsel was made in bad faith.       There is also no other evidence

of bad faith on Pitts' part in his request for counsel.

     The United States Supreme Court has not considered whether a

criminal defendant has a Sixth Amendment right to counsel for

post-verdict motions.     See Marshall, 133 S.Ct. at 1451.

Nevertheless, "[w]e have long recognized . . . that 'as the

ultimate judicial tribunal with final, unreviewable authority to

interpret and enforce the Hawai#i Constitution, we are free to


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give broader protection under the Hawai#i Constitution than that

given by the federal constitution."        State v. Viglielmo, 105

Hawai#i 197, 210-11, 95 P.3d 952, 965-66 (2004)(citations

omitted).   Therefore, we hold that, under Article I, Section 14

of the Hawai#i Constitution, a defendant who expressly requests

counsel for post-verdict motions has a right to counsel,

notwithstanding a prior waiver of counsel during trial.

     C.   The Right to Counsel for Sentencing

     The circuit court also erred in failing to appoint

substitute counsel for sentencing.        The circuit court granted

Pitts' motion for appointment of counsel for his appeal, but

denied Pitts' motion for appointment of counsel for sentencing,

reasoning as follows: "[T]here's only one sentence that I can

give you, legally. . . .      I don't think an attorney would do you

much good at this sentencing anyway because I don't have any

discretion whatsoever."

     It is well settled that the sentencing phase is a critical

stage of the prosecution, during which the right to counsel

attaches.   State v. Valera, 74 Haw. 424, 435, 848 P.2d 376, 381

(1993).   The ICA quoted the rationale for this in D'Ambrosio as

follows: "[C]ounsel might not have changed the sentence, but he

could have taken steps to see that the conviction and sentence

were not predicated on misinformation or misreading of court


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records, a requirement of fair play which absence of counsel

withheld from this prisoner."       112 Hawai#i at 463, 146 P.3d at

623 (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)).             The

sentencing hearing presented an important opportunity for the

defendant to be heard and to correct any misinformation or

misreading of court records:

          Opportunity to be heard with respect to sentence; notice of
          pre-sentence report; opportunity to controvert or
          supplement; transmission of report to department. (1)
          Before imposing sentence, the court shall afford a fair
          opportunity to the defendant to be heard on the issue of the
          defendant's disposition.
               (2) The court shall furnish to the defendant or the
          defendant's counsel and to the prosecuting attorney a copy
          of the report of any pre-sentence diagnosis or
          psychological, psychiatric, or other medical examination and
          afford fair opportunity, if the defendant or the prosecuting
          attorney so requests, to controvert or supplement them. The
          court shall amend or order the amendment of the report upon
          finding that any correction, modification, or addition is
          needed and, where appropriate, shall require the prompt
          preparation of an amended report in which material required
          to be deleted is completely removed or other amendments,
          including additions, are made. . . .

HRS § 706-604 (1993 & Supp. 2006).        Substitute counsel could have

provided valuable assistance to Pitts in "controvert[ing] or

supplement[ing]" a presentence diagnosis report.

     Further, even if there were no other sentence available to

Pitts but a life term of imprisonment with the possibility of

parole, Pitts would have benefited by having substitute counsel

guiding him through the exercise (or non-exercise) of his right

to allocution, preserving his arguments for appeal, and preparing

for the proceedings before the Hawai#i Paroling Authority.            To


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the extent that Pitts' ability to defend his interests on a level

playing field was substantially affected by the denial of

substitute counsel for sentencing, the circuit court's decision

to force Pitts to proceed pro se during sentencing was error.

Pitts' right to counsel, as enshrined in Article I, Section 14 of

the Hawai#i Constitution, was violated when the circuit court

denied his motion for appointment of counsel for sentencing.

V.   Conclusion

      We hold that the circuit court erred by not appointing

substitute counsel for Pitts' post-verdict motions because post-

verdict proceedings are critical stages in the prosecution.               The

circuit court also erred by not appointing substitute counsel for

Pitts' sentencing.      We therefore vacate the ICA's judgment on

appeal and remand this case for further proceedings. __________




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Specifically, this case is remanded to allow for the appointment

of substitute counsel for the purposes of filing a motion for new

trial6 and for resentencing.

      DATED: Honolulu, Hawai#i, January 22, 2014.

Kevin O’Grady                 /s/ Mark E. Recktenwald
for petitioner
                              /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                /s/ Simeon R. Acoba, Jr.

                              /s/ Sabrina S. McKenna

                              /s/ Richard W. Pollack




6
      The remand we order in this case remedies the constitutional violation.
As we observed in note 3, infra, ordinarily the deadline for a motion for new
trial cannot be extended under HRPP Rule 45(b). The remand we order seeks
only to place Pitts in the position he would have been in had the
constitutional violation never occurred. Cf. Rodgers, 678 F.3d at 1164
("Regarding the right to counsel, we previously held that a habeas remedy
should put the defendant back in the position he would have been in if the
Sixth Amendment violation never occurred.")(citation omitted).


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