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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000124
                                                               30-DEC-2015
                                                               11:00 AM




                              SCWC-12-0000124


          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

________________________________________________________________

                            STATE OF HAWAIʻI, 

                     Respondent/Plaintiff-Appellee,


                                     vs.


                         MICHAEL DEMING, 

                Petitioner/Defendant-Appellant.

________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0000124; CASE NO. 1P1120000029)

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

            Petitioner/Defendant-Appellant Michael Deming (Deming)

was convicted for entering or remaining in a public park during

posted closure hours in violation of Revised Ordinances of

Honolulu (ROH) § 10-1.2(a)(12) (1990).1          The Intermediate Court


      1
            ROH § 10-1.2(a)(12) provides:

                  Sec. 10-1.2 Park rules and regulations.
                                                            (continued . . . )
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of Appeals (ICA) affirmed Deming’s conviction.             Although not

raised on appeal, our review of the record establishes that

Deming’s waiver of his right to counsel was not knowingly and

intelligently made, and accordingly, Deming’s conviction must be

vacated and the case remanded for a new trial.2

            During arraignment and plea before the District Court

of the First Circuit (district court), Deming was informed of


(. . . continued)

                        (a)	   Within the limits of any public park, it is
                               unlawful for any person to:

                        . . . .

                               (12) 	 Enter or remain in any public park during
                                      the night hours that the park is closed,
                                      provided that signs are posted indicating
                                      the hours that the park is closed, except
                                      that a person may traverse a public beach
                                      park using the most direct route during
                                      park closure hours for the purpose of
                                      reaching the shoreline[.]

            ROH § 10-1.1 (1990) provides in relevant part: “‘Public park’
means any park, park roadway, playground, athletic field, beach, beach right-
of-way, tennis court, golf course, swimming pool, or other recreation area or
facility under the control, maintenance and management of the department of
parks and recreation.”
      2
            We raise this issue sua sponte because of the paramount
importance of a defendant’s right to counsel. See State v. Pitts, 131 Hawaiʻi
537, 541, 319 P.3d 456, 460 (2014) (raising the issue of the right to counsel
for post-verdict motions sua sponte on certiorari “because the right to
counsel is an essential component of a fair trial” (citation omitted)
(internal quotation marks omitted)); cf. State v. Staley, 91 Hawaiʻi 275, 286,
982 P.2d 904, 915 (1999) (“Although not raised by [the defendant] on appeal,
our review of the record establishes that [the defendant’s] right to testify,
as set forth in Tachibana v. State, 79 Hawaiʻi 226, 900 P.2d 1293 (1995), was
violated.”); State v. Hirayasu, 71 Haw. 587, 589-90, 801 P.2d 25, 26 (1990)
(raising issue of sufficiency of evidence sua sponte on appeal and noting
“the power to sua sponte notice plain errors or defects affecting substantial
rights clearly resides in this court” (citation omitted) (internal quotation
marks omitted)).
            We do not address the issues raised in Deming’s application for
certiorari as the record does not support his allegations of error.


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the charge against him, and the court recommended that he

consult with the public defender’s office.             Deming apparently

consulted with the public defender’s office, and after doing so,

informed the court that he “waive[d]” the “involvement” of the

“public [d]efender.”        The district court recommended that Deming

obtain counsel and set a trial date.

              Deming appeared for trial3 on February 23, 2012,

without counsel.       The court asked Deming if he would be

interested in a plea agreement, and the State noted for the

record that “the offer would be Simple Trespass with a fine of

$25.”     Deming elected to proceed to trial, and the State re-

arraigned him.       Deming indicated that he understood the charge

and plead not guilty.        The record does not reflect that the

court engaged Deming in a colloquy regarding his decision to

proceed without counsel.4

              The right to counsel for an individual accused of a

crime is guaranteed under both the Hawaiʻi Constitution and the

United States Constitution.          State v. Phua, 135 Hawaii 504, 512,

353 P.3d 1046, 1054 (2015).          A defendant also has the right to

proceed pro se, but when he or she chooses to do so, “the record


      3
              The Honorable Dean E. Ochiai presided.
      4
            Twice during the trial, the district court referenced Deming’s
waiver of his right to counsel and Deming acknowledged that he had been
offered an attorney but elected to proceed pro se. However, the court did
not engage in a sufficient waiver inquiry, as discussed herein.


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must indicate that the defendant was offered counsel, but he or

she ‘voluntarily, knowingly, and intelligently rejected the

offer and waived that right.’”        Id. (quoting State v. Dickson, 4

Haw. App. 614, 619, 673 P.2d 1036, 1041 (1983)).            In such

situations the trial court must ensure that: 1) “the waiver of

counsel is knowingly and intelligently made”; and 2) “the record

is complete so as to reflect that waiver.”           Id. (citation

omitted) (internal quotation marks omitted).           “The latter

requirement arises because appellate courts are charged with

determining from the record whether there was an unequivocal

waiver, which was voluntarily and freely made.”            Id.

            In State v. Phua, we held that the defendant’s waiver

of his right to counsel during the sentencing stage of his case

was invalid, because the “record           . . . [was] critically

deficient to support a finding that Phua’s waiver of his right

to counsel was intelligently and knowingly made.”            Id. at 517,

353 P.3d at 1059.     We explained that—pursuant to the ICA’s

opinion in State v. Dickson—the trial court should focus its

waiver inquiry on three principle 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.”     Phua, 135 Hawaii at 512, 353 P.3d at 1054.

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            In the instant case, the record does not establish

that Deming knowingly and intelligently waived his right to

counsel.    While the district court in passing addressed some of

the issues discussed in Phua that are relevant to a waiver

inquiry, it did not do so in connection with a formal colloquy

prior to Deming waiving his right to counsel.           To the contrary,

on the day of trial, the district court failed to conduct an

inquiry regarding Deming’s waiver of his right to counsel, and

instead accepted that Deming was proceeding pro se as a foregone

conclusion.    Because the “record does not support a finding that

[Deming’s] waiver of counsel was knowingly and intelligently

made,” id. at 506, 353 P.3d at 1048, we vacate the conviction

and remand the case to the district court for a new trial.

            IT IS HEREBY ORDERED that the the ICA’s April 2, 2015

Judgment on Appeal and the district court’s March 12, 2012

Notice of Entry of Judgment and/or Order are vacated, and this

case is remanded to the district court for a new trial.

            DATED: Honolulu, Hawaiʻi, December 30, 2015.

Michael Deming                      /s/ Mark E. Recktenwald
petitioner pro se
                                    /s/ Paula A. Nakayama

Brian R. Vincent                    /s/ Sabrina S. McKenna
for respondent
                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson



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