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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0001108
                                                              14-DEC-2017
                                                              08:44 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          MICKEY A. MADDOX,
                  Petitioner/Petitioner-Appellant,

                                    vs.

                          STATE OF HAWAII,
                   Respondent/Respondent-Appellee.


                            SCWC-14-0001108

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-14-0001108; CAAP-14-0001109;
            SPECIAL PROCEEDING PRISONER NO. 13-1-0004
             (CRIMINAL NOS. 07-1-0139 and 09-1-0284))

                           DECEMBER 14, 2017

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

                OPINION OF THE COURT BY POLLACK, J.

          A defendant’s constitutional right to effective

assistance of counsel requires a defense attorney to proceed

with competence and diligence throughout the proceedings of a

case.   This case presents the question of whether a post-
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conviction petition raises colorable claims for relief when the

petitioner alleges that his stated desire to appeal the order

dismissing his case without prejudice was not effectuated by his

trial counsel and further alleges that his counsel wholly

abandoned him following the court’s oral ruling of dismissal.

Under the circumstances of this case, we hold that the

petitioner has raised colorable claims for post-conviction

relief based upon grounds of ineffective assistance of counsel

and abandonment of representation by defense counsel.

                        I.    PROCEDURAL HISTORY

         A.    Circuit Court Proceedings in the 2007 Case

          On March 19, 2007, the State filed an indictment

charging Mickey A. Maddox with attempted escape in the second

degree and promoting prison contraband in the first degree (2007

case).   Maddox was arraigned several months later on July 31,

2007 in the Circuit Court of the Second Circuit (circuit court),

and he entered a plea of not guilty to both charges.           The trial

was delayed almost two years due to multiple motions to continue

trial and motions to withdraw and substitute counsel.            During

much of this time, Maddox waived his rights to a speedy trial

under the state and federal constitutions and Hawaii Rules of




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Penal Procedure (HRPP) Rule 48.1          On December 23, 2008, the

circuit court granted Maddox’s motion to substitute defense

counsel, issuing an order that appointed “legal counsel for the

Defendant at all stages of proceedings, including appeal, if

any,” pursuant to Hawaii Revised Statutes (HRS) § 802-5(a)

(2010).2   On April 8, 2009, Maddox’s counsel (hereafter “trial

counsel”) filed a motion to dismiss the indictment asserting

violation of Maddox’s right to a speedy trial under the federal

and state constitutions and HRPP Rule 48.3          A hearing was held on

the motion to dismiss on May 14-15, 2009.4          The circuit court

found that after taking into account excluded periods, trial was

scheduled to commence 200 days after indictment.            The court

     1
           HRPP Rule 48(b) (2000) provides in relevant part as follows:

           Except in the case of traffic offenses that are not
           punishable by imprisonment, the court shall, on motion of
           the defendant, dismiss the charge, with or without
           prejudice in its discretion, if trial is not commenced
           within 6 months.
     2
           HRS § 802-5(a) states in relevant part as follows:

           [W]hen 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. If conflicting interests exist, or if the
           interests of justice require, the court may appoint private
           counsel[.]
     3
            The motion to dismiss, although filed by trial counsel, was a
handwritten document prepared by Maddox. The motion also raised other
grounds not relevant to this appeal.
     4
            The Honorable Joseph E. Cardoza presided over the circuit court
proceedings related to the 2007 case.




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concluded that this delay violated HRPP Rule 48, and after

applying the factors set forth in State v. Estencion, 63 Hawaii

264, 269, 625 P.2d 1040, 1044 (1981),5 the court orally ruled

that the indictment should be dismissed without prejudice.

           On May 29, 2009, two weeks after the 2007 case’s oral

dismissal, Maddox was re-indicted on charges identical to those

that had been dismissed (2009 case).         That same day, Maddox

filed a pro-se “Second Notice of Appeal” of the 2007 case,6 along

with a “Motion for New Counsel” and a “Motion for Assistance of

Counsel on Appeal.”      In the motions, Maddox informed the circuit

court that he intended to appeal the order dismissing the 2007

case without prejudice and asked for new counsel because he was

claiming ineffective assistance of counsel against his trial

counsel in the 2007 case.       Maddox subsequently withdrew the

notice of appeal on June 3, 2009, because he had moved to

dismiss the 2009 case with prejudice the day before.            Maddox


      5
            The court, relying on Estencion, stated “in determining whether
to dismiss a case with or without prejudice, the court shall consider, among
others, each of the following factors: the seriousness of the offense, the
facts and the circumstances of the case that led to the dismissal, and the
impact of a reprosecution on the administration of HRPP, Rule 48, and the
administration of justice.”
     6
            In his “Second Notice of Appeal,” Maddox stated that the “[f]irst
notice of appeal was given orally at [the] hearing on May 15, 2009 by the
Defendant-Appellant[.]” A transcript of the May 15, 2009 proceeding was not
included in the record on appeal, and the electronic record of the transcript
appears to have been corrupted.




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explained that his appeal would be moot if the circuit court

granted his motion.      Later, on June 9, 2009, Maddox filed a pro-

se “Third Notice of Appeal,” again informing the court that he

was appealing the dismissal without prejudice of the 2007 case.7

            The record does not reflect a motion by trial counsel

to withdraw, nor does the record indicate that trial counsel

continued to act as counsel for Maddox after the May 15, 2009

hearing.    Other than trial counsel’s motion for compensation in

excess of the statutory maximum for court-appointed counsel

under HRS § 802-5, filed July 15, 2009, all subsequent filings

pertaining to the 2007 case were handwritten, pro se submissions

by Maddox.8

            On August 25, 2009, the Intermediate Court of Appeals

(ICA) dismissed Maddox’s appeal of the 2007 case for lack of

appellate jurisdiction.       In its order of dismissal, the ICA

stated, “[f]or reasons that are not clear, the circuit court has

not yet entered a written order of dismissal without prejudice.”


     7
            The record does not show that the circuit court ever ruled on the
pro se motions for new counsel and assistance of counsel on appeal.
      8
            In addition to Maddox’s “Motion for New Counsel,” “Motion for
Assistance of Counsel on Appeal,” and “̔Second’ Notice of Appeal,” filed on
May 29, 2009, Maddox’s other pro se filings included the following:
“Temporary Withdrawal of Notice of Appeal”; “(Third) Notice of Appeal”;
“Motion to Dismiss”; “Addendum to Motion to Dismiss”; “Affidavit in Support
of Motion to Dismiss”; and “Motion to Release and Discharge from Custody;
Dismiss With Prejudice.”




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The ICA concluded that even if an order had been entered, it

would not be appealable under HRS § 641-11 (2010) because no

sentence had been imposed.9       On January 7, 2010, almost eight

months after the 2007 case was orally dismissed, the circuit

court entered its order dismissing the 2007 case without

prejudice based on the HRPP Rule 48 violation.10

          B.    Circuit Court Proceedings in the 2009 Case

           As stated, Maddox was re-indicted in 2009 on the same

charges dismissed in the 2007 case.         The Office of the Public

Defender, which was initially appointed to represent Maddox in

the 2009 case, made a motion to withdraw as counsel.            At the

scheduled arraignment on June 4, 2009, the circuit court also

heard the motion to withdraw as counsel, and the court asked

Maddox if trial counsel in the 2007 case was still representing




     9
           HRS § 641-11 provides the following:

           Any party aggrieved by the judgment of a circuit court in a
           criminal matter may appeal to the intermediate appellate
           court, subject to chapter 602, in the manner and within the
           time provided by the rules of court. The sentence of the
           court in a criminal case shall be the judgment. All
           appeals shall be filed with the clerk of the supreme court
           and shall be subject to one filing fee.
     10
            In its January 7, 2010 order dismissing the 2007 case without
prejudice, the circuit court stated in a footnote that the court had
instructed the State to prepare an appropriate order at the time of the oral
ruling on May 15, 2009, but no proposed order was ever submitted despite
follow-up requests from the court staff.




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him.11       Maddox replied that he would be claiming ineffective

assistance of counsel because he had to “put in all [his] own

motions before,” asserting also that trial counsel had lied to

him.        Subsequently, on June 28, 2010, pursuant to a plea

agreement with the State, Maddox entered no contest pleas to

both counts in the 2009 case and to a separate charge of

terroristic threatening in the second degree.             The cases

referenced in the plea agreement form are the 2009 case and the

charge of terroristic threatening.           The plea agreement and plea

form did not reference the 2007 case.

               Consistent with the plea agreement, Maddox was

sentenced on August 27, 2010, to probation for five years in the

2009 case and one year probation for the terroristic threatening

offense, terms to be served concurrently.            Maddox was later

arrested for probation violations.           At a probation revocation

hearing on February 19, 2013, Maddox agreed to a second plea

agreement in the 2009 case, in which he admitted to violating

the terms and conditions of his probation and entered no contest

pleas in two other unrelated cases that were pending.               Pursuant

to the second plea agreement, Maddox was sentenced to concurrent

terms of imprisonment of ten years and five years in the 2009

       11
            The Honorable Richard T. Bissen, Jr., presided over the
proceedings related to the 2009 case.




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case and concurrent one-year prison terms for the unrelated

offenses.

                             C.    Rule 40 Petition

              On April 26, 2013, Maddox filed a Petition for Post-

Conviction Relief pursuant to HRPP Rule 40 (Petition) in which

he set forth thirteen grounds for relief.12             In the Petition,

Maddox asserts, inter alia, that he was denied effective counsel

on appeal in the 2007 case and that his trial attorney had

“abandoned all representation of his client and left him without

any representation,” despite Maddox being ordered to remain in

custody.      In particular, Maddox states that he gave oral notice

of appeal following the circuit court’s oral dismissal of the

2007 case on May 15, 2009.13          Maddox also asserts in his Petition

that after the hearing but while still in court, his trial

counsel told him that “he could not represent [him] on appeal[],

nor could he represent him in any manner since the case had been

dismissed and his representation terminated at that time.”

              On August 21, 2014, the circuit court entered its

order denying the Petition without a hearing (Order Denying


      12
            Maddox’s Petition references, in its caption and content, both
the 2007 and 2009 cases.
        13
              As stated, the record contains no hearing transcript for May 15,
2009.    See supra note 6.




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Petition).    The court concluded that the grounds for relief were

previously ruled upon in the 2009 case, and that the substance

of the issues were also raised by Maddox prior to his entering

into a plea agreement with the prosecution in the 2009 case.

The court further found that “[a]lthough several attorneys have

withdrawn as counsel for Petitioner in [the 2007 and 2009

cases], Petitioner has been represented by counsel throughout

the proceedings in said cases.”           Because there was still a

hearing pending in the 2009 case related to a motion for

reconsideration of sentencing regarding credit for time served,

the circuit court denied the Petition without prejudice.

                       D.    Appellate Proceedings

           On September 8, 2014, Maddox filed a notice of appeal

from the circuit court’s denial of the Petition, asserting

thirteen questions on appeal and seventeen statements of error.14

On March 31, 2016, the ICA entered its Summary Disposition Order

in which it affirmed the circuit court’s Order Denying

Petition.15   The ICA in its ruling did not address Maddox’s

claims individually, stating that upon “a thorough review of the

      14
            In its Summary Disposition Order affirming the circuit court’s
denial of Maddox’s Petition, the Intermediate Court of Appeals rephrased
Maddox’s thirteen “Questions on Appeal” and seventeen “Statements of Error”
in a combined and renumbered list of thirty points of error.
     15
            The ICA’s Summary Disposition Order can be found at Maddox v.
State, No. CAAP–14–0001108, 2016 WL 1600699 (Haw. App. Mar. 31, 2016).




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record, which include[d] the records in [the 2007 case] and [the

2009 case],” post-conviction relief was not available to Maddox

because all the claims for relief raised by Maddox in his

Petition “have been previously ruled upon or have been waived.”

           Maddox filed a pro se application for a writ of

certiorari setting forth fourteen questions for review.              Maddox

asserts that he was “wrongfully denied initial appeal” in the

2007 case, and that he was denied his right to counsel on appeal

as he was abandoned by trial counsel.16         These claims for relief

are encompassed by ground G of Maddox’s Petition, which asserts

that trial counsel “failed in his duty of representing his

client” and “abandoned all representation of his client and left

him without any representation.”17        We address the asserted



     16
            The other thirteen questions presented by Maddox on certiorari
are addressed infra, note 34.
     17
            Among the points of error identified by the ICA that Maddox
raised in his appeal were the following:

           (2) Maddox was entitled to assistance of counsel on his
           appeal in [the 2007 case];

           (3) the circuit court committed structural error in not
           providing Maddox with assistance of counsel on his appeal
           in [the 2007 case];

           (7)   Maddox’s attorney was ineffective;

           (12) Maddox was entitled to assistance of counsel until
           the termination of [the 2007 case];

           (21) Maddox’s counsel was ineffective, committed illegal
           acts and lied to Maddox in violation of the Sixth Amendment

                                                             (continued . . .)



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claims as follows: (1) Maddox did not receive effective

assistance of counsel following the court’s oral dismissal

without prejudice of the 2007 case; and (2) Maddox was abandoned

by trial counsel prior to the termination of the 2007 case.

                         II.     STANDARD OF REVIEW

            Whether the “trial court erred in denying a Rule 40

petition without a hearing based on no showing of a colorable

claim is reviewed de novo; thus, the right/wrong standard of

review is applicable.”         Dan v. State, 76 Hawaiʻi 423, 427, 879

P.2d 528, 532 (1994) (holding that to determine whether a Rule

40 petition raises a colorable claim, “the appellate court steps

into the trial court’s position, reviews the same trial record,

and redecides the issue”).

                                III. DISCUSSION

            HRPP Rule 40(f) (2006) provides that a court must

grant an evidentiary hearing on a petition for post-conviction

relief if a petitioner “alleges facts that if proven would

entitle the petitioner to relief.”         Thus, in reviewing on appeal

the denial of a Rule 40 petition without a hearing, the question

is whether the record indicates that the petitioner made “a

(. . . continued)

            of the United States Constitution and Article I, section 14
            of the Hawaii Constitution[.]




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showing of a colorable claim as to require a hearing before the

lower court.”   Dan v. State, 76 Hawaii 423, 427, 879 P.2d 528,

532 (1994).

          Accordingly, we evaluate Maddox’s claims to determine

whether they present a colorable claim for post-conviction

relief such that a Rule 40 hearing was required.           We first

address Maddox’s contention that he did not receive effective

assistance of counsel with regard to the appeal of the 2007

case.   Next, we consider Maddox’s claim that he was entitled to

assistance of counsel until his case was terminated.

          A. Ineffective Assistance of Counsel on Appeal

          Article I, section 14 of the Hawaii Constitution

guarantees a defendant in a criminal prosecution the right “to

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

Const. art. I, § 14.     This court regards a defendant’s

constitutional right to the assistance of counsel as a

“fundamental component” of our criminal justice system.            State

v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 499 (1986).            It is

well settled that “[t]he constitutional right to the assistance

of counsel in a criminal case is satisfied only when such

assistance is ‘effective.’”      State v. Kahalewai, 54 Haw. 28, 30,

501 P.2d 977, 979 (1972); accord State v. Tetu, 139 Hawaii 207,




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215, 386 P.3d 844, 852 (2016); State v. Pacheco, 96 Hawaii 83,

93, 26 P.3d 572, 582 (2001).

          This court set forth the standard by which we evaluate

claims of ineffective assistance of counsel under the Hawaii

Constitution in State v. Antone, 62 Haw. 346, 348-49, 615 P.2d

101, 104 (1980).    “General claims of ineffectiveness are

insufficient” to establish that the assistance a defendant

received was constitutionally ineffective.         Dan, 76 Hawaii at

427, 879 P.2d at 532 (quoting Briones v. State, 74 Haw. 442,

462-63, 848 P.2d 966, 976 (1993)).        Rather, a defendant must

show: (1) “specific errors or omissions of defense counsel

reflecting counsel’s lack of skill, judgment[,] or diligence”;

and that (2) “those errors or omissions resulted in the

withdrawal or substantial impairment of a potentially

meritorious defense.”     Antone, 62 Haw. at 348-49, 615 P.2d at

104 (internal citations omitted).        Thus, to be entitled to a

Rule 40 hearing on the basis of ineffective assistance of

counsel, Maddox must first allege facts identifying a specific

error or wrongful omission made by his counsel.

          Maddox asserts that, notwithstanding his repeated

communications to trial counsel regarding his desire to appeal,

trial counsel informed Maddox at the May 14-15 hearing that

counsel’s representation of Maddox terminated when the court



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orally dismissed the 2007 case without prejudice.           However, our

statutes, precedents, and court rules, as well as widely

accepted legal standards, all make clear that trial counsel had

an ongoing obligation to Maddox that included pursuing an appeal

if Maddox chose this course.

          Hawaii statutorily guarantees every defendant in a

criminal case aggrieved by a circuit court judgment or final

order the right to appeal.      HRS § 641–11 (2016); State v. Nicol,

140 Hawaii 482, 491, 403 P.3d 259, 266 (2017).          When such an

appeal of right exists, the equal protection and due process

clauses of the Hawaii and United States Constitutions grant the

defendant a right to effective counsel during the appeal.

Briones, 74 Haw. at 460, 848 P.2d at 975; Douglas v. California,

372 U.S. 353 (1963).     This ongoing right to counsel is reflected

in Hawaii statutory law, which is unambiguous regarding the

extent of a court-appointed counsel’s responsibility to an

indigent client:




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           [W]hen 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. If conflicting interests exist, or if the
           interests of justice require, the court may appoint private
           counsel[.]

HRS § 802-5(a) (2010) (emphasis added).18

           The right to counsel on appeal encompasses not only

the appeal itself, but also the procedural steps necessary to

bring about the appeal.       “An indigent criminal defendant is

entitled, on his first appeal, to court-appointed counsel who

may not deprive him of his appeal by electing to forego

compliance with procedural rules.”         State v. Erwin, 57 Haw. 268,

270, 554 P.2d 236, 238 (1976) (emphasis added) (citing

Entsminger v. Iowa, 386 U.S. 748 (1966)).          “It has been said

that failure by appointed counsel to ‘commence the simple steps

for appeal is a blatant denial of due process.’”            Id. (quoting

Blanchard v. Brewer, 429 F.2d 89, 90 (8th Cir. 1970)).

           HRS § 802-5(a) therefore imposes a duty on court-

appointed counsel to consult with a defendant following a final

order or judgment to determine whether the defendant wishes to

appeal, as well as a duty to diligently fulfill the procedural

requirements of appeal if the defendant elects to appeal.              These
     18
            The circuit court’s order appointing trial counsel to represent
Maddox in the 2007 case was equally clear as to the extent of trial counsel’s
responsibility to Maddox: “IT IS FURTHER ORDERED that [trial counsel] is
appointed legal counsel for the Defendant at all stages of proceedings,
including appeal, if any.” (Emphasis added.)




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principles are also reflected in the American Bar Association

(ABA) Standards, which we have often looked to for “guidance”

regarding the duties of officers of the court, including for

“determining which decisions must be made by the defendant and

which decisions are the province of counsel.”           State v. Richie,

88 Hawaiʻi 19, 39, 960 P.2d 1227, 1247 (1998).19          The ABA

Standards state that

           defense counsel should explain to the defendant the meaning
           and consequences of the court’s judgment and defendant’s
           right of appeal. Defense counsel should give the defendant
           his or her professional judgment as to whether there are
           meritorious grounds for appeal and as to the probable
           results of an appeal. Defense counsel should also explain
           to the defendant the advantages and disadvantages of an
           appeal.

ABA Standards for Criminal Justice: Prosecution and Defense

Function, Standard 4-8.2(a) (3d ed. 1993) [hereinafter ABA

Defense Function Standards].        The duty of defense counsel in a

criminal case to explain to the defendant the meaning and

consequences of the court’s judgment and the client’s right to



     19
             See also, e.g., State v. Kim, 140 Hawaii 421, 431-32, 402 P.3d
497, 507-08 (2017) (citing ABA Standards for Criminal Justice: Special
Functions of the Trial Judge (3d ed. 2000) in providing guidance regarding a
trial judge’s responsibility to safeguard the rights of the accused); Tetu,
139 Hawaiʻi at 215, 386 P.3d at 852 (referencing ABA Criminal Justice
Standards for the Defense Function (4th ed. 2015) as part of this court’s
analysis that a defendant’s right to access a crime scene inheres within the
constitutional right to effective assistance of counsel); State v. Rogan, 91
Hawaii 405, 412, 984 P.2d 1231, 1238 (1999) (quoting ABA Standards for
Criminal Justice: Prosecution and Defense Function (3d ed. 1993) to support
the proposition that “[t]he duty of the prosecutor is to seek justice, not
merely to convict” (alteration in original)).




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appeal, as set forth in the ABA Standards, applies equally to

appointed or retained counsel.

          The ABA Defense Function Standards further clarify

that “[t]he decision whether to appeal must be the defendant’s

own choice”--and not that of counsel.        Id.; see also ABA Defense

Function Standards, Standard 4-5.2(v) (listing “whether to

appeal” among the decisions that are to be made “by the accused

after full consultation with counsel”).         Defense counsel should

take “whatever steps are necessary” to protect the client’s

right to appeal, even “if the client decides to proceed with the

appeal against the advice of counsel.”         ABA Defense Function

Standards, Standards 4-8.2(b), 4-8.3(c).         Counsel should be

“diligent in perfecting appeals and expediting their prompt

submission” to the appropriate appellate court.          ABA Defense

Function Standards, Standard 4-8.4(a).

          The Fourth Edition of the ABA Criminal Justice

Standards for the Defense Function, released since the circuit

court proceedings in the 2007 case, reaffirms the responsibility

of defense counsel in a criminal case to consult with a client

regarding an appeal and to undertake the procedural steps to

effectuate the appeal upon the client’s request.           See ABA

Criminal Justice Standards for the Defense Function, Standard 4-




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9.1 (4th ed. 2015).20     We now specifically adopt these

requirements as a component of effective assistance of counsel

under article I, section 14 and due process under article I,

section 5 of the Hawaii Constitution.

            In addition, appointed counsel has a duty to pursue an

appeal if a defendant in a criminal case so chooses even when

counsel believes the appeal is wholly frivolous.            In In re

Attorney’s Fees of Mohr, 97 Hawaii 1, 32 P.3d 647 (2001), this

court overruled Carvalho v. State, 81 Hawaii 185, 192, 914 P.2d

1378, 1385 (App. 1996), in which the ICA had intimated that

appointed counsel could avoid prosecuting a meritless appeal by

filing so-called “Anders briefs.”21        We rejected the practice,

instead enunciating the “better policy” of “requir[ing] counsel

to remain an advocate for the client.”          Mohr, 97 Hawaii at 7, 32

P.3d at 653.



     20
             We note that, although both versions of the ABA Standards
reference court judgments, the Standards would apply with equal force to
final orders, which are appealable under our precedent. See Nicol, 140
Hawaii at 491, 403 P.3d at 266.
     21
            In Anders v. California, the United States Supreme Court held
that jurisdictions may permit appointed counsel to request permission to
withdraw when he or she finds an appeal to be “wholly frivolous.” 386 U.S.
738, 744 (1967). Such a request must be accompanied by “a brief referring to
anything in the record that might arguably support the appeal,” leaving it to
the court, rather than counsel, to determine if a case is “wholly frivolous.”
Id. In jurisdictions that permit this practice, such briefs are frequently
referred to as “Anders briefs.”




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           Lastly, it is noted that a defense attorney, “in

common with all members of the bar, is subject to standards of

conduct stated in statutes, rules, decisions of courts, and

codes, canons or other standards of professional conduct.”              ABA

Defense Function Standards, Standard 4-1.2(e).22           In keeping with

that directive, trial counsel in this case was subject to the

Hawaii Rules of Professional Conduct (HRPC),23 which state that

“[a] lawyer should pursue a matter on behalf of a client despite

opposition, obstruction, or personal inconvenience to the

lawyer[.]”    HRPC Rule 1.3 cmt. [1].

           Given that the clear weight of authority supports an

obligation on the part of defense counsel to take the procedural

steps necessary to pursue an appeal when requested by the

defendant, a failure by Maddox’s trial counsel to do so would

amount to an “omission[] of defense counsel reflecting counsel’s

lack of skill, judgment[,] or diligence.”24          Antone, 62 Haw. at


      22
            See also ABA Criminal Justice Standards for the Defense Function,
Standard 4-1.1(b) (4th ed. 2015) (“[A] lawyer should always read and comply
with the rules of professional conduct and other authorities that are binding
in the specific jurisdiction.”).
     23
            An order amending and reissuing the HRPC was adopted and
promulgated by this court in 2013, becoming effective on January 1, 2014.
All portions of the HRPC cited herein remain substantively the same as the
versions in effect during the circuit court proceedings in the 2007 case.
     24
            Although defense counsel must consult with the client and ensure
steps are taken to preserve the client’s right to appeal, we do not suggest
that counsel at trial is required to continue representation as appellate
counsel. See ABA Criminal Justice Standards for the Defense Function,

                                                             (continued . . .)



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348-49, 615 P.2d at 104.       However, to be entitled to a Rule 40

hearing on the basis of ineffective assistance of counsel,

Maddox must also allege facts demonstrating that the omission

“resulted in either the withdrawal or substantial impairment of

a potentially meritorious defense.”         Id.

            When evaluating whether defense counsel’s omission

deprived a defendant of a potentially meritorious defense, we

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

error.   Wilton v. State, 116 Hawaii 106, 119, 170 P.3d 357, 370

(2007) (quoting Briones, 74 Haw. at 464, 848 P.2d at 977).

“Accordingly, no showing of actual prejudice is required to

prove ineffective assistance of counsel.”          Id. (internal

quotation marks omitted).       We therefore do not inquire into

whether Maddox’s appeal would succeed on the merits, but instead

we address whether trial counsel’s failure to fulfill the steps

necessary to pursue an appeal possibly impaired Maddox’s

defense.

            Notwithstanding trial counsel’s failure to provide

assistance, Maddox filed his own handwritten notice of appeal

following the circuit court’s oral dismissal of the 2007 case

(. . . continued)

Standard 4-9.1(d) (4th ed. 2015). However, formal withdrawal procedures are
required to be undertaken in penal proceedings to obtain the approval of the
court. See HRPP Rule 57 (2000).




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without prejudice.     The ICA on August 25, 2009, dismissed

Maddox’s notice of appeal in part because no order dismissing

the 2007 case without prejudice was entered by the circuit court

prior to or during the pendency of the appeal.25           The order was

not filed until January 7, 2010--nearly eight months after the

court’s oral dismissal.26      Hawaii Rules of Appellate Procedure

(HRAP) require the filing of a notice of appeal “within 30 days

after entry of the judgment or order appealed from.”            HRAP Rule

4(b)(1) (2015).     Thus, a notice of appeal from the order

dismissing the 2007 case would have been duly filed after the

entry of the order on January 7, 2010.          Yet no new notice of

appeal was filed in the 2007 case following the filing of the

circuit court’s order.

           With the assistance of counsel, Maddox might have been

able to urge the circuit court to issue an appealable order more

expeditiously, or at minimum, timely file a notice of appeal
     25
             It is noted that the ICA’s alternative holding--that it lacked
appellate jurisdiction over the appeal because a circuit court dismissal
without prejudice of criminal charges lacks a sentence--was incorrect. This
court recently held in Nicol that under HRS § 641-11, a defendant may appeal
from an order of the circuit court dismissing proceedings without prejudice.
140 Hawaii at 491, 403 P.3d at 266. We determined in Nicol that the
legislative history of § 641-11 and our jurisdiction’s caselaw indicate that
the finality of the circuit court’s decision, rather than simply whether a
“sentence” was rendered, is the determinative factor in whether jurisdiction
exists over the appeal. Id.
     26
            As explained supra, note 10, the circuit court’s order stated
that the court made follow-up requests to the State for the submission of
proposed findings of fact, conclusions of law, and order. Apparently, when
none were forthcoming, the court entered its own.




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following the entry of the order dismissing the 2007 case.             The

failure to fulfill procedural requirements resulted in the loss

of Maddox’s right to appeal the circuit court’s order.            If the

facts are as Maddox alleges, this forfeiture can be attributed

to trial counsel’s wrongful refusal or omission to undertake the

steps to initiate an appeal.

          Although we have long held that courts may permit an

untimely appeal when “defense counsel has inexcusably or

ineffectively failed to pursue a defendant’s appeal from a

criminal conviction,” State v. Knight, 80 Hawaii 318, 323, 909

P.2d 1133, 1138 (1996), this court has not before addressed the

complete denial of a criminal appeal as it relates to an

ineffective assistance of counsel claim under the Antone

framework.     Cf. In re RGB, 123 Hawaii 1, 54, 229 P.3d 1066, 1119

(2010) (Acoba, J., dissenting) (arguing that counsel’s wrongful

omission that resulted in forfeiture of appeal in a civil case

involving termination of parental rights warranted post-judgment

relief under Antone).     However, this court has definitively

stated that “failure by appointed counsel ‘to commence the

simple steps for appeal is a blatant denial of due process.’”

Erwin, 57 Haw. at 270, 554 P.2d at 238 (quoting Blanchard, 429

F.2d at 90).     A primary reason that a defendant is guaranteed

effective assistance of counsel is to ensure that the defendant




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is not denied due process.       Tetu, 139 Hawaii at 219, 386 P.3d at

856 (“The Constitution guarantees a fair trial through the Due

Process Clauses, but it defines the basic elements of a fair

trial largely through the several provisions of the [s]ixth

[a]mendment, including the [c]ounsel [c]lause.”).            Consequently,

we hold that when a defendant is denied an appeal because of a

failure or omission of defense counsel, a defendant need not

demonstrate any additional possibility of impairment to

establish that counsel was ineffective under article I, sections

5 and 14 of the Hawaii Constitution.

           Maddox has thus alleged facts demonstrating a wrongful

omission by trial counsel that resulted in the substantial

impairment of a potentially meritorious defense, which would

establish that his trial counsel provided ineffective assistance

under the Hawaii Constitution.27         Because these facts, if true,

would entitle Maddox to pursue an appeal of the order dismissing

the 2007 case without prejudice, he has raised a colorable claim

for post-conviction relief and is entitled to an evidentiary


     27
            Because we find that Maddox has alleged facts establishing a
colorable claim for ineffective assistance of counsel under the Hawaii
Constitution, we do not address whether the facts would also give rise to a
federal ineffective assistance of counsel claim. We note, however, that the
United States Supreme Court has held that the failure of counsel to institute
an appeal when so instructed or to consult with a defendant who has indicated
interest in appealing amounts to “professionally unreasonable” behavior. Roe
v. Flores-Ortega, 528 U.S. 470, 477, 480 (2000).




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hearing on ground G of his Petition as it relates to his

ineffective assistance claim.

                    B. Abandonment by Defense Counsel

            Maddox also contends that he was entitled to

assistance of counsel until the termination of the 2007 case.

The United States Supreme Court has recognized an “essential

difference between a claim of attorney error, however egregious,

and a claim that an attorney had essentially abandoned his

client.”    Maples v. Thomas, 565 U.S. 266, 282 (2012) (internal

citations omitted).       Federal courts consider a trial “unfair if

the accused is denied counsel at a critical stage of his trial,”

and “[n]o specific showing of prejudice [is] required” to

establish a constitutional defect.          United States v. Cronic, 466

U.S. 648, 659 (1984).       The Maples Court thus characterized an

attorney’s abandonment of a client as an “extraordinary

circumstance beyond [the client’s] control” that potentially

entitles the client to post-conviction relief.            565 U.S. at 282-

83.   Courts of last resort in other jurisdictions have likewise

addressed the issue of abandonment by counsel under varying

circumstances, consistently regarding it as grounds for relief.

See, e.g., Commonwealth v. Bennett, 593 Pa. 382, 399, (2007)

(characterizing abandonment by counsel as a dereliction of

“minimum norms” of counsel’s performance and the “functional

equivalent of having no counsel at all,” entitling a petitioner


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to remand for hearing of post-conviction relief claims); Amco

Builders & Developers, Inc. v. Team Ace Joint Venture, 469 Mich.

90, 96 (2003) (holding abandonment by counsel in a civil action

to be sufficient ground for setting aside a default or default

judgment); In re Sanders, 21 Cal. 4th 697, 708-09 (1999)

(considering abandonment by counsel as good cause for delayed

presentation of habeas corpus claims and equating abandonment by

counsel with a complete lack of representation); People v.

Berger, 9 N.Y.2d 692, 693 (1961) (reversing Appellate Division’s

denial of coram nobis petition and remitting for trial of

petitioner’s allegation of abandonment by counsel).

           Under Hawaii law, withdrawal of counsel in penal

proceedings is governed by HRPP Rule 57, which states as

follows:

           Withdrawal of counsel shall require the approval of the
           court and shall be subject to Rule 1.16 of the Hawaii Rules
           of Professional Conduct. Where the defendant is or may be
           indigent, substitution of counsel shall comply with the
           procedure established in Hawaii Revised Statutes, chapter
           802. Unless otherwise ordered, withdrawal of counsel shall
           not become effective until substitute counsel appears or is
           appointed, the defendant appears pro se or the defendant is
           deemed to have waived counsel.

HRPP Rule 57 (2000).     Unless the attorney-client relationship is

terminated by permission of the tribunal pursuant to this rule,

the attorney is obligated to “carry through to conclusion all

matters undertaken by the client,” the relationship terminating

only when the matter has been resolved.         HRPC Rule 1.3 cmt. [4];



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HRPC Rule 1.16(c).28      And even when the relationship is

terminated by a court’s grant of a motion to withdraw, an

attorney is expected to take steps to protect the client’s

interests, such as giving reasonable notice to the client and

allowing time for employment of other counsel.            HRPC Rule

1.16(d).29

             Although our jurisdiction’s test for ineffective

assistance of counsel is well settled, this court has not

directly addressed the issue of abandonment by counsel.               We now

hold that, when appointed counsel wholly abandons professional

duties to his or her client for the substantial duration of a

critical stage of the proceeding without timely following the

procedural steps to properly withdraw from representation,

prejudice is presumed because it is “functional[ly] equivalent

[to] having no counsel at all.”         Bennett, 593 Pa. at 399.


     28
            HRPC Rule 1.16(c) states in full, “A lawyer must comply with
applicable law requiring notice to or permission of a tribunal when
terminating a representation. When ordered to do so by a tribunal, a lawyer
shall continue representation notwithstanding good cause for terminating the
representation.”
     29
             HRPC Rule 1.16(d) states as follows:

             Upon termination of representation, a lawyer shall take
             steps to the extent reasonably practicable to protect a
             client’s interests, such as giving reasonable notice to the
             client, allowing time for employment of other counsel,
             surrendering papers and property to which the client is
             entitled and refunding any advance payment of fee or
             expense that has not been earned or incurred.




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            As discussed, we have held that the “failure by

appointed counsel ‘to commence the simple steps for appeal is a

blatant denial of due process.’”          State v. Erwin, 57 Haw. 268,

269, 554 P.2d 236, 238 (1976) (quoting Blanchard v. Brewer, 429

F.2d 89, 90 (8th Cir. 1970)).        It logically follows that the

steps to effectuate an appeal constitute a critical stage in the

proceeding during which a defendant is entitled to counsel.                 An

appointed counsel’s wrongful abandonment of professional duties

to a defendant for the substantial duration of this critical

stage would therefore give rise to a presumption of prejudice.

            Here, there is nothing in the record to indicate that

trial counsel filed a motion to withdraw as counsel pursuant to

HRPP Rule 57 following the oral dismissal without prejudice of

the 2007 case.     And, as noted above, all defense filings

relating to the 2007 case following the court’s oral dismissal

without prejudice were handwritten, pro se motions, with the

sole exception of trial counsel’s motion for compensation in

excess of the statutory maximum as allowed by HRS § 802-5(b).30

Trial counsel’s alleged statement to Maddox following the May

14-15, 2009 hearing that trial counsel could not continue to

represent Maddox on appeal or in any manner also represents a

     30
            Trial counsel’s motion for additional fees was denied by the
circuit court.




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rejection by trial counsel of the obligation to represent Maddox

through “all stages of proceedings, including appeal, if any[,]”

as mandated by HRS § 802-5(a)31 and the circuit court’s order

appointing trial counsel.32

            Taken as a whole, these alleged facts indicate that

trial counsel effectively abandoned Maddox for the substantial

duration or the entirety of a critical stage in the 2007 case.

We accordingly presume that this abandonment would be

prejudicial.33    Because these facts, if true, would entitle

Maddox to proceed with his appeal at this juncture, he has
     31
            As previously noted, HRS § 802-5(a) provides in relevant part as
follows: “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.)
     32
            As discussed supra, note 18, the circuit court’s December 22,
2008 order stated, “IT IS FURTHER ORDERED that [trial counsel] is appointed
legal counsel for the Defendant at all stages of proceedings, including
appeal, if any.”

            Although the circumstances of this case involve appointed
counsel, to which HRS § 802-5(a) and the order of appointment apply, we note
that HRPP Rule 57 and HRPC requirements as to terminating representation
would be equally applicable to retained counsel in penal proceedings.
     33
            The circuit court’s Order Denying Petition includes the following
Finding of Fact: “67. Although several attorneys have withdrawn as counsel
for Petitioner in [the 2007 case] and [the 2009 case], Petitioner has been
represented by counsel throughout the proceedings in said cases.” The
circuit court’s belief that Maddox was represented “throughout the
proceedings” is likely due to the fact that no motion to withdraw as counsel
was filed by trial counsel following the May 14-15, 2009 hearing. The
record, however, clearly indicates that Maddox was seeking to pursue
appellate relief in the 2007 case, but it appears that he did not receive the
assistance of court-appointed counsel. To the extent that the circuit
court’s finding is contrary to our holding that Maddox alleged facts that
would establish a colorable claim of abandonment by counsel, it is clearly
erroneous. See Dan, 76 Hawaiʻi at 428, 879 P.2d at 533.




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raised a colorable claim for relief and is entitled to an

evidentiary hearing on ground G of his Petition as it relates to

his claim of abandonment by defense counsel.34

                              IV.   CONCLUSION

           Maddox’s allegation that trial counsel failed to take

the procedural steps to file an appeal of the 2007 case set

forth facts that, if true, establish a colorable claim of

ineffective assistance of counsel on appeal under article I,

sections 5 and 14 of the Hawaii Constitution.           Maddox has also

alleged facts that, if true, raise a colorable claim that trial

counsel abandoned his representation of Maddox for the duration

     34
            Maddox’s thirteen remaining questions on certiorari, for which
Maddox provides responses, are either waived or without merit. Question 1
incorrectly assumes that our standard of review in this case should be abuse
of discretion. See Dan, 76 Hawaiʻi at 427, 879 P.2d at 532. Question 3
requests this court to resolve the issue of whether the circuit court erred
in dismissing the 2007 case without prejudice. However, the propriety of the
circuit court’s ruling is not properly before this court. Question 4
incorrectly raises a double jeopardy violation based on disciplinary
punishment experienced while imprisoned and Maddox’s indictment on the same
charges in the 2007 and 2009 cases. See State v. Alvey, 67 Hawaiʻi 49, 50,
678 P.2d 5, 6 (1984) (recognizing that to give collateral estoppel effect to
prison disciplinary action would “frustrate the objectives of the criminal
justice system”); HRS § 701-110 (1993). Question 5 erroneously challenges
Judge Bissen’s authority to rule on a criminal matter while sitting as a
family court judge. See Adams v. State, 103 Hawaiʻi 214, 223, 81 P.3d 394,
403 (2003) (affirming the circuit court’s finding that a circuit court judge
acting as a family court judge retains his or her authority as a circuit
judge). Questions 6, 10, and 14 pertain to challenges regarding the 2009
case; however, no appeal was taken from the conviction in that case, nor does
Maddox provide any reason why these claims could not have been raised, and
thus they are waived under HRPP Rule 40(a)(3). Question 7 incorrectly posits
that re-prosecution in the 2009 case was barred by HRS § 701-110(4) (2009).
Questions 8, 9, 11, and 12 pose questions, but they do not involve legal
claims for relief. Question 13 implies, without merit, that the circuit
court lacked jurisdiction in the 2007 and 2009 cases.




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of a critical stage of the 2007 case in violation of statutory

law and article I, sections 5 and 14 of the Hawaii Constitution.

          Because Maddox has presented colorable claims for

post-conviction relief, he is entitled to a HRPP Rule 40

evidentiary hearing.     Accordingly, the ICA’s Judgment on Appeal

and the circuit court’s Order Denying Petition are vacated, and

the case is remanded to the circuit court for a HRPP Rule 40

evidentiary hearing on ground G of the Petition.

Mickey A. Maddox                         /s/ Mark E. Recktenwald
pro se
                                         /s/ Paula A. Nakayama

                                         /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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