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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                11-APR-2019
                                                                12:17 PM
                              SCWC-XX-XXXXXXX

            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
  ________________________________________________________________

                            STATE OF HAWAIʻI,
                     Respondent/Plaintiff-Appellee,

                                      vs.

                         RONALD S. FUJIYOSHI,
                   Petitioner/Defendant-Appellant.
  ________________________________________________________________

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                  (CAAP-XX-XXXXXXX; 3DCW-XX-XXXXXXX)

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

            Petitioner/Defendant-Appellant Ronald S. Fujiyoshi

 (“Fujiyoshi”) seeks review of the Intermediate Court of Appeals’

 (“ICA”) September 28, 2018 Judgment on Appeal, entered pursuant

 to its August 31, 2018 Memorandum Opinion, which affirmed the

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

 Judgment and Notice of Entry of Judgment entered on November 5,

 2015.1



      1
            The Honorable Barbara K. Takase presided.
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           Fujiyoshi proceeded pro se before the district court.

The record on appeal does not indicate a valid waiver of

counsel.   We therefore vacate the district court’s judgment and

remand for further proceedings consistent with this summary

disposition order.

                             II.   Background

     A.    District Court Proceedings

           On April 2, 2015, Fujiyoshi participated in a

demonstration on Mauna Kea Access Road with approximately fifty

to eighty other individuals who opposed construction of the

Thirty Meter Telescope.     Respondent/Plaintiff-Appellee State of

Hawaiʻi (“State”) charged Fujiyoshi with obstructing a highway or

public passage in violation of Hawaiʻi Revised Statutes (“HRS”) §

711-1105(1)(a) and (5) (2014). 2

           At Fujiyoshi’s May 7, 2015 plea hearing, the district

court conducted a gallery advisory.        The court informed the

present defendants, including Fujiyoshi, of their constitutional


     2
           HRS § 711-1105 provides in relevant part:

                 (1)   A person commits the offense of obstructing if,
           whether alone or with others and having no legal privilege
           to do so, the person knowingly or recklessly:
                 (a)   Obstructs any highway or public passage; or
                 (b)   Provides less than thirty-six inches of space
                       for passage on any paved public sidewalk.
           . . . .

                 (5)   Obstructing is a petty misdemeanor if the
           person persists in the conduct specified in subsection (1)
           after a warning by a law enforcement officer; otherwise it
           is a violation.

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right to counsel and the general disadvantages of self-

representation:

                  THE COURT:   Good morning, everyone.

                Before we begin I just want to give you some
          advisements and inform you of your rights. I believe
          everyone who is left on the calendar will have the right to
          have an attorney. If you cannot afford one I will appoint
          one free of charge.

                For those of you who want to waive your right to an
          attorney that is also possible. If you do, I’m going to
          give you a form to fill out waiving your right to an
          attorney. Let me explain to you that if you choose to
          represent yourself you understand the Court cannot help
          yourself -- cannot help you in any way.

                That if you cannot afford an attorney I will appoint
          one free of charge so that you have a constitutional right
          to have an attorney. You have the right also to hire your
          own attorney to represent you.

                In a trial, if you asked for a trial, the State is
          required to prove every element of the offense beyond a
          reasonable doubt. Proof beyond a reasonable doubt means
          that you are presumed to be innocent of the charge unless
          and until the State proves beyond a reasonable doubt that
          you are guilty.

                Reasonable doubt is a doubt in a person’s mind about
          a defendant’s guilt which arises from the evidence
          presented or from the lack of evidence and which is based
          upon reason and common sense. This means that you cannot
          be found guilty upon mere suspicion or upon evidence which
          only shows that you are probably guilty.

                If you represent yourself you will be expected to
          understand and follow the Hawaii Rules of Evidence, the
          Hawaii Rules of Penal Procedure, and the law, and that you
          are going to be required to understand and follow those
          rules. Trial proceedings are often complicated and legally
          technical. Participating in a trial is often difficult
          even for the most experienced lawyer.

                Because you have no formal training      in the law, if
          you choose to represent yourself the task      of representing
          yourself will be extremely difficult. If       you do not
          effectively represent yourself you cannot      later complain
          that you didn’t have effective assistance      of counsel. So

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           if you choose to waive your right to an attorney I will ask
           you if you understood those rights and I will ask you to
           also fill out a waiver of right to an attorney.

Fujiyoshi signed a form waiving his right to counsel.               The court

engaged in the following colloquy with Fujiyoshi later in the

morning:

           THE COURT: Alright.     Mr. Fujiyoshi, is your mind clear
           this morning?

           THE DEFENDANT:   Yes.

           THE COURT:   Do you understand everything that’s going on in
           court?

           THE DEFENDANT:   Yes, I am.

           THE COURT:   How many years of schooling have you had?

           THE DEFENDANT:   Um, 22.

           THE COURT: Okay. And you understand all of those rights
           that I previously explained to you?

           THE DEFENDANT:   Yes, I did.

           THE COURT: Is it your choice to waive or give up your
           right to an attorney?

           THE DEFENDANT:   It is my choice.

           THE COURT:   You understand this is a very serious decision?

           THE DEFENDANT:   Yes, I do.

           THE COURT:   Alright.   Is anyone forcing you to give up this
           right?

           THE DEFENDANT:   No.

           THE COURT: Are you doing it knowingly, voluntarily, and
           intelligently?

           THE DEFENDANT:   Yes.

           THE COURT: Alright. Court’s going to find a knowing,
           voluntary, intelligent waiver of right to counsel. And he
           is going to acknowledge this a second time. Okay.

Fujiyoshi pled not guilty and the case was set for trial.




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            At the conclusion of the bench trial held several

months later, the district court found Fujiyoshi guilty as

charged and sentenced him to five days in jail and six months of

probation with a special condition that prohibited Fujiyoshi

from visiting Mauna Kea Access Road for the duration of the

probation.3    The court entered judgment pursuant to its findings

on November 5, 2015.

      B.    Appeal to ICA

            On appeal to the ICA, Fujiyoshi alleged:          (1) the

evidence presented at trial is insufficient to sustain the

conviction; (2) the dismissal of cases of similarly-situated

defendants violates Fujiyoshi’s right to due process under the

Fourteenth Amendment to the United States Constitution; and (3)

the complaint is defective because it fails to allege an element

of the offense.

            In its Memorandum Opinion, the ICA affirmed the

district court’s judgment, holding that the complaint was

sufficient, the conviction was supported by sufficient evidence,

and the arrest did not violate Fujiyoshi’s constitutional due

process rights.     State v. Fujiyoshi, CAAP-XX-XXXXXXX (App. Aug.

31, 2018) (mem.).




      3
            The court credited Fujiyoshi with one day served and stayed the
remaining four days pending the successful completion of six months’
probation.

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                        III. Standard of Review

            Hawaiʻi Rules of Penal Procedure Rule 52(b) states that

“[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the

court.”    Therefore, an appellate court “may recognize plain

error when the error committed affects substantial rights of the

defendant.”    State v. Staley, 91 Hawaiʻi 275, 282, 982 P.2d 904,

911 (1999) (internal quotation marks omitted) (quoting State v.

Cullen, 86 Hawaiʻi 1, 8, 946 P.2d 955, 962 (1997)).

            The appellate court “will apply the plain error

standard of review to correct errors which seriously affect the

fairness, integrity, or public reputation of judicial

proceedings, to serve the ends of justice, and to prevent the

denial of fundamental rights.”       State v. Nichols, 111 Hawaiʻi

327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88

Hawaiʻi 325, 330, 966 P.2d 637, 642 (1998)).

                            IV.    Discussion

            On certiorari, Fujiyoshi argues that the ICA’s

affirmance of the district court’s judgment was erroneous

because:    (1) the complaint was defective; (2) insufficient

evidence was introduced at trial to support the conviction; and

(3) his request for the ICA to take judicial notice of the cases

of similarly-situated defendants was valid.



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            We review as plain error whether Fujiyoshi’s

constitutional right to counsel was validly waived. 4

      A.    Requirements for a Valid Waiver of Right to Counsel

            The Sixth Amendment to the United States Constitution,

made applicable to the states through the Fourteenth Amendment,

and article I, section 14 of the Hawaiʻi Constitution guarantee

every person accused of a crime “the right to be represented by

counsel at every critical state of the prosecution.”            State v.

Phua, 135 Hawaiʻi 504, 512, 353 P.3d 1046, 1054 (2015) (internal

quotation marks omitted) (quoting Reponte v. State, 57 Haw. 354,

361, 556 P.2d 577, 582 (1976)); see also State v. Dickson, 4

Haw. App. 614, 618, 673 P.2d 1036, 1041 (1983).           A “critical

stage” is “any stage where potential substantial prejudice to

[a] defendant’s rights inheres,” such as trial.           Phua, 135

Hawaiʻi at 512, 353 P.3d at 1054 (internal quotation marks and

citation omitted).     If a defendant proceeds pro se during a

critical stage of the prosecution, (1) the defendant must make a

knowing and intelligent waiver of his or her right to counsel

and (2) the record must adequately reflect the defendant’s

waiver.    Id.

            In Phua, this court described the analytical framework

applied to ensure that a waiver is knowing and intelligent.                Id.


      4
            We do not address Fujiyoshi’s arguments, except to note that
there was sufficient evidence adduced to support the conviction.

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at 512-13, 353 P.3d at 1054-55.       We explained that the trial

court should focus its inquiry on three main factors:            “(1) the

particular facts and circumstances relating to the defendant

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

defendant’s awareness of the risks of self-representation; and

(3) the defendant’s awareness of the disadvantages of self-

representation.”    Id. at 512, 353 P.3d at 1054 (citing Dickson,

4 Haw. App. at 619-20, 673 P.2d at 1041-42).          “The extent and

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

third factors should respond to the court’s perception of the

defendant’s level of understanding.”        Id. at 514, 353 P.3d at

1056.    “While courts are not required to strictly adhere to

[this] analytical framework, it provides an important tool to

ensure waivers are made knowingly and intelligently in addition

to establishing a complete record for appellate review.”            Id. at

513, 353 P.3d at 1055.

        B.   There was No Valid Waiver of Counsel

             In this case, we review Fujiyoshi’s written waiver of

counsel and the district court’s transcripts to ascertain

whether there was a valid waiver of counsel.

             1.   Background and Comprehension of the Defendant

             The first prong of the framework in Phua suggests that

the court “explore facts and circumstances pertaining to the

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

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level of comprehension.     Such circumstances include age,

education, English language skills, mental capacity, employment

background, and prior experience with the criminal justice

system.”     Id.

             Here, the district court’s inquiry into Fujiyoshi’s

background was limited to one question—how many years he

attended school.     The court did not inquire into Fujiyoshi’s

age, employment background, or experience with the criminal

justice system.     These factors would have assisted in

determining Fujiyoshi’s level of comprehension and, accordingly,

his ability to waive his right to counsel intelligently and

knowingly.     The district court erroneously discussed the risks

and disadvantages of self-representation before it perceived

Fujiyoshi’s level of understanding.        Therefore, the district

court did not meet the first prong of the Phua analysis.

             2.   Defendant’s Awareness of the Risks of Self-
             Representation

             The second prong of Phua recommends that the court

“warn[] the defendant of the risks particular to the defendant

in proceeding without counsel[.]”        Id. at 514, 353 P.3d at 1056.

An adequate warning informs the defendant “of the nature of the

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

available, the punishments which may be imposed, and all other

facts essential to a broad understanding of the whole matter.”


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Id. at 515, 353 P.3d at 1057 (internal quotation marks omitted)

(quoting Dickson, 4 Haw. App. at 620, 673 P.2d at 1041).

Furthermore, “[t]he judge’s warnings must reflect more than

vague, general admonishments, without reference to specific

risks or disadvantages.”      Id. at 514, 353 P.3d at 1056 (internal

quotation marks and citation omitted).

          Here, the court provided a cursory overview of self-

representation, noting that it would be “extremely difficult,”

that trials are “complicated and legally technical,” that

Fujiyoshi would be expected to understand and follow the

applicable rules, and that he would be precluded from arguing

ineffective assistance of counsel on appeal.          The court did not

inform Fujiyoshi about possible pleas or defenses, or potential

punishments.   It provided vague warnings that failed to identify

the risks specific to Fujiyoshi’s decision to proceed without

counsel, including the maximum penalty for the offense.

Although Fujiyoshi marked on his waiver form that he had been

advised of the nature and elements of the charge against him,

the possible results of a guilty verdict, including the maximum

penalty for the offense, and applicable defenses, it is clear

from the record that he received no such advisement.

          In Phua, the trial court failed to inform the

defendant of the potential punishment that could be imposed.

Id. at 517, 353 P.3d at 1059.       We held that this error, alone,

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was “sufficient grounds for vacating the sentence.”           Id.     Here,

the district court failed to warn Fujiyoshi of the range of

eligible punishment.     Thus, the district court failed to satisfy

the second prong of Phua and this error, alone, is sufficient to

vacate the conviction.

          3.   Defendant’s Awareness of the Disadvantages of
          Self-Representation

          The third prong of the Phua analysis suggests that the

court “meaningfully inform” the defendant of the disadvantages

of self-representation before a waiver of the defendant’s right

to counsel is obtained.     Id. at 515, 353 P.3d at 1057.           This

information may be conveyed by asking:

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

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

Id. (footnote omitted).

          In this case, the district court conducted a gallery

advisory notifying all present defendants that they each had a

right to an attorney and an attorney would be appointed free of

charge if the defendant could not afford one, if a defendant

elects to proceed without an attorney, he or she is expected to

follow all applicable rules and the law, and a defendant that

waives his or her right to counsel is precluded from later


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claiming inadequate representation.        As noted, pursuant to the

first two factors of the Phua analysis, it is apparent Fujiyoshi

did not make a knowing and intelligent waiver of his right to

counsel.   Accordingly, it is unnecessary to consider under the

third factor whether the court “meaningfully inform[ed]”

Fujiyoshi of the disadvantages of self-representation.            Id.

                            V.     Conclusion

           Based on the totality of the circumstances, Fujiyoshi

did not provide an intelligent and knowing waiver of his right

to counsel.   We therefore vacate the ICA’s September 28, 2018

Judgment on Appeal and the district court’s November 5, 2015

Judgment and remand to the district court for further

proceedings consistent with this summary disposition order.

           DATED:   Honolulu, Hawaiʻi, April 11, 2019.

James M. Dombroski,                /s/ Mark E. Recktenwald
Hayden Aluli
for Petitioner                    /s/ Paula A. Nakayama

                                  /s/ Sabrina S. McKenna
Mitchell D. Roth,
E. Britt Bailey                   /s/ Richard W. Pollack
for Respondent
                                  /s/ Michael D. Wilson




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