OPINION OF THE COURT BY
RICHARDSON, C.J.
Defendants-appellants Ian Balfour Dicks (hereinafter, Dicks) and Desiree Anne Hedgepeth (hereinafter, Hedge[47]*47peth), were arrested shortly aftei midnight on February 5, 1974 at the Landing Restaurant. Kahului, Maui, and were thereafter charged with Burglary irt the Second Degree.1 In the afternoon of the same day, they appeared before a trial judge of the second circuit for plea and arraignment. At that hearing each defendant waived counsel and waived indictment. Each acknowledged his/her previously signed “Defendant’s Written Plea of Guilty" and each entered a guilty plea. After their guilty pleas had been accepted by the court, Dicks stated that he entered the restaurant because he “was pretty hungry” and Hedgepeth stated she went into the restaurant “for food.” A pre-sentence report was ordered and a date for sentencing was set.
Prior to sentencing, Dicks and Hedgepeth, through counsel, moved for an order vacating acceptance of their respective pleas of guilty. After a hearing upon such motion (hereinafter, motion hearing), the motion was denied by the trial judge. The defendants were subsequently sentenced.
Two questions are raised on appeal: (1) Whether the trial judge erred in accepting the defendants’ waivers of counsel and (2) whether the trial judge abused his discretion in denying the defendants’ motion to withdraw their guilty pleas.
I. THE TRIAL JUDGE DID NOT ERR IN DETERMINING THAT THE PETITIONERS VOLUNTARILY AND INTELLIGENTLY WAIVED THEIR RIGHTS TO APPOINTED COUNSEL
The Sixth Amendment of the U.S. Constitution guarantees the right to counsel for a criminal defendant. This right is one “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319 (1937). and applicable to the states through the due process clause of the Fourteenth Amendment. Article I, Section 11 of the Hawaii State Constitution likewise guarantees an accused the right to counsel.
[48]*48The right to counsel is waivable when it is voluntarily and intelligently undertaken. Johnson v. Zerbst, 304 U.S. 458 (1938). Courts do not presume acquiescence in the loss of fundamental rights and such a presumption in the light of a silent record is not constitutionally permissible. Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970); Carvalho v. Olim, 55 Haw. 336, 519 P.2d 892 (1974).
Whether an accused has effectively waived his right to counsel depends largely on the facts and circumstances of the particular case. Johnson v. Zerbst, supra; Carpentier v. Lainson, 248 Iowa 1275, 84 N.W.2d 32 (1957). Among the probative factors bearing on the question are the age, education, and mental capacity of the defendant, his background and experience, and his conduct at the time of the alleged waiver. 21 Am. Jur.2d § 317 at 346, Johnson v. Zerbst, supra; Carpentier v. Lainson, supra.
Both defendants indicated in court that they wished to waive their rights to a lawyer and proceed. The trial judge questioned them extensively about their waivers. He asked whether they had a lawyer or wished to have a lawyer, and whether they understood they had a right to a lawyer. He informed them that if they wanted a lawyer and could not afford one, that one would be provided. He asked them whether they were absolutely certain that they wished to proceed without a lawyer. In assessing their competency to waive counsel, he asked about their ages, educational backgrounds, and experience in court. Dicks said that he was 20 years of age, a graduate of Vanderbilt University, and had never been in court before. Hedgepeth said that she was 18 years of age, a student at Maui Community College, and had. never been in court. The defendants impressed the trial judge as having “superior ability” and “apparently able to think and decide things for [themselves].”
The defendants said that they understood the information that had been read to them, the charge, the maximum sentence and fine which could be imposed, and that sentencing was entirely up to the court. There was no indication that they had been pressured or misled in any way.
[49]*49In determining the legal adequacy of waiver of counsel, the question is whether, considering the totality of the circumstances, the waiver was voluntarily and intelligently undertaken. In view of the above and the record as a whole, the trial judge did not err in determining that the defendants voluntarily and intelligently waived their rights to counsel and in accepting their waivers.
II. THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING THE DEFENDANTS' MOTION TO WITHDRAW THEIR GUILTY PLEAS
The defendants assert that the trial judge erred in denying their motions for withdrawal of their guilty pleas because such pleas were not knowingly and understandingly entered. When a defendant has pleaded guilty in a criminal case, it is within the discretion of the trial court to permit the plea to be withdrawn and in the absence of a clear abuse of that discretion, the appellate court will not interfere. 20 A.L.R. 1445, 66 A.L.R. 628, and supplementing cases; Knaub v. State, 443 P.2d 44 (Alas. 1968); State v. Defoy, 109 Ariz. 159, 506 P.2d 1053 (1973); In re Brown, 108 Cal. Rptr. 801, 511 P.2d 1153 (1973); State v. Dunham, 213 Kan. 469, 517 P.2d 150 (1972); Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958); Lauen v. State, 515 P.2d 578 (Okl. Cr. 1973); State v. Burnett, 228 Or. 556, 365 P.2d 1060 (1961).
It is a constitutional requirement that a trial judge ensure that a guilty plea be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238 (1969); Carvalho v. Olim, supra; Wong v. Among, supra. Rule 11 of the Hawaii Rules of Criminal Procedure likewise mandates that the trial court “shall not accept the [guilty] plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.” It is error when a court does not fulfill these requirements and a clear abuse of discretion when a trial court refuses to allow the withdrawal of pleas tainted by such error. On the other hand, if the accused, with full knowledge of the charge against him and,of his rights and the consequences of a plea of guilty, enters^such a plea under[50]*50standingly and voluntarily, the court may, without abusing its discretion, refuse to permit him to withdraw the plea. ..
The defendants do not contend that their pleas were made without knowledge of the consequences of their pleas or involuntarily. The record does disclose that the trial court informed the defendants of the constitutional rights waived by a guilty plea and the maximum sentence and fine which the court could impose. The record also indicates that the trial judge was solicitous in assuring the voluntariness of their pleas.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT BY
RICHARDSON, C.J.
Defendants-appellants Ian Balfour Dicks (hereinafter, Dicks) and Desiree Anne Hedgepeth (hereinafter, Hedge[47]*47peth), were arrested shortly aftei midnight on February 5, 1974 at the Landing Restaurant. Kahului, Maui, and were thereafter charged with Burglary irt the Second Degree.1 In the afternoon of the same day, they appeared before a trial judge of the second circuit for plea and arraignment. At that hearing each defendant waived counsel and waived indictment. Each acknowledged his/her previously signed “Defendant’s Written Plea of Guilty" and each entered a guilty plea. After their guilty pleas had been accepted by the court, Dicks stated that he entered the restaurant because he “was pretty hungry” and Hedgepeth stated she went into the restaurant “for food.” A pre-sentence report was ordered and a date for sentencing was set.
Prior to sentencing, Dicks and Hedgepeth, through counsel, moved for an order vacating acceptance of their respective pleas of guilty. After a hearing upon such motion (hereinafter, motion hearing), the motion was denied by the trial judge. The defendants were subsequently sentenced.
Two questions are raised on appeal: (1) Whether the trial judge erred in accepting the defendants’ waivers of counsel and (2) whether the trial judge abused his discretion in denying the defendants’ motion to withdraw their guilty pleas.
I. THE TRIAL JUDGE DID NOT ERR IN DETERMINING THAT THE PETITIONERS VOLUNTARILY AND INTELLIGENTLY WAIVED THEIR RIGHTS TO APPOINTED COUNSEL
The Sixth Amendment of the U.S. Constitution guarantees the right to counsel for a criminal defendant. This right is one “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319 (1937). and applicable to the states through the due process clause of the Fourteenth Amendment. Article I, Section 11 of the Hawaii State Constitution likewise guarantees an accused the right to counsel.
[48]*48The right to counsel is waivable when it is voluntarily and intelligently undertaken. Johnson v. Zerbst, 304 U.S. 458 (1938). Courts do not presume acquiescence in the loss of fundamental rights and such a presumption in the light of a silent record is not constitutionally permissible. Wong v. Among, 52 Haw. 420, 477 P.2d 630 (1970); Carvalho v. Olim, 55 Haw. 336, 519 P.2d 892 (1974).
Whether an accused has effectively waived his right to counsel depends largely on the facts and circumstances of the particular case. Johnson v. Zerbst, supra; Carpentier v. Lainson, 248 Iowa 1275, 84 N.W.2d 32 (1957). Among the probative factors bearing on the question are the age, education, and mental capacity of the defendant, his background and experience, and his conduct at the time of the alleged waiver. 21 Am. Jur.2d § 317 at 346, Johnson v. Zerbst, supra; Carpentier v. Lainson, supra.
Both defendants indicated in court that they wished to waive their rights to a lawyer and proceed. The trial judge questioned them extensively about their waivers. He asked whether they had a lawyer or wished to have a lawyer, and whether they understood they had a right to a lawyer. He informed them that if they wanted a lawyer and could not afford one, that one would be provided. He asked them whether they were absolutely certain that they wished to proceed without a lawyer. In assessing their competency to waive counsel, he asked about their ages, educational backgrounds, and experience in court. Dicks said that he was 20 years of age, a graduate of Vanderbilt University, and had never been in court before. Hedgepeth said that she was 18 years of age, a student at Maui Community College, and had. never been in court. The defendants impressed the trial judge as having “superior ability” and “apparently able to think and decide things for [themselves].”
The defendants said that they understood the information that had been read to them, the charge, the maximum sentence and fine which could be imposed, and that sentencing was entirely up to the court. There was no indication that they had been pressured or misled in any way.
[49]*49In determining the legal adequacy of waiver of counsel, the question is whether, considering the totality of the circumstances, the waiver was voluntarily and intelligently undertaken. In view of the above and the record as a whole, the trial judge did not err in determining that the defendants voluntarily and intelligently waived their rights to counsel and in accepting their waivers.
II. THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING THE DEFENDANTS' MOTION TO WITHDRAW THEIR GUILTY PLEAS
The defendants assert that the trial judge erred in denying their motions for withdrawal of their guilty pleas because such pleas were not knowingly and understandingly entered. When a defendant has pleaded guilty in a criminal case, it is within the discretion of the trial court to permit the plea to be withdrawn and in the absence of a clear abuse of that discretion, the appellate court will not interfere. 20 A.L.R. 1445, 66 A.L.R. 628, and supplementing cases; Knaub v. State, 443 P.2d 44 (Alas. 1968); State v. Defoy, 109 Ariz. 159, 506 P.2d 1053 (1973); In re Brown, 108 Cal. Rptr. 801, 511 P.2d 1153 (1973); State v. Dunham, 213 Kan. 469, 517 P.2d 150 (1972); Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958); Lauen v. State, 515 P.2d 578 (Okl. Cr. 1973); State v. Burnett, 228 Or. 556, 365 P.2d 1060 (1961).
It is a constitutional requirement that a trial judge ensure that a guilty plea be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238 (1969); Carvalho v. Olim, supra; Wong v. Among, supra. Rule 11 of the Hawaii Rules of Criminal Procedure likewise mandates that the trial court “shall not accept the [guilty] plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.” It is error when a court does not fulfill these requirements and a clear abuse of discretion when a trial court refuses to allow the withdrawal of pleas tainted by such error. On the other hand, if the accused, with full knowledge of the charge against him and,of his rights and the consequences of a plea of guilty, enters^such a plea under[50]*50standingly and voluntarily, the court may, without abusing its discretion, refuse to permit him to withdraw the plea. ..
The defendants do not contend that their pleas were made without knowledge of the consequences of their pleas or involuntarily. The record does disclose that the trial court informed the defendants of the constitutional rights waived by a guilty plea and the maximum sentence and fine which the court could impose. The record also indicates that the trial judge was solicitous in assuring the voluntariness of their pleas.
The defendants, at the motion hearing and on appeal, complain that they did not understand the nature of the charge when they entered their guilty pleas. More specifically, they allege that they did not understand the specific intent element of the burglary charge.
At arraignment, the information was read to each of the defendants. The informations charged:
That on or about the 5th day of February, 1974 at Kahului, ... [the accused] did intentionally enter or remain unlawfully in a building, to wit, the Landing Restaurant, with intent to commit therein a crime against property rights, thereby committing the offense of Burglary in the Second Degree ....
After the reading of the information, to Dicks, the trial court questioned him:
“Q Mr. Dicks, do you have a copy of this charge — this information?
. “A Yes, I do.
“Q Did you understand what was read to you right now?
“A Yes, sir.
“Q You understand that basically you are being charged with entering the building — the Landing Restaurant on or about February 5, 1974, in Kahului, with intention to commit a crime against property rights there?
“A Yes, sir.
“Q And that this constitutes burglary, a charge of Burglary in the Second Degree.
[51]*51“A Yes, sir.”
After the information respecting Hedgepeth was read, the trial judge addressed her:
“Q Miss Hedgepeth, did you understand the charge now?
“A Yes.
“Q Did you understand basically that the charge is Second Degree Burglary, and that you are to be charged that on or about February 5th, 1974, at Kahului, for entering the restaurant called ‘The Landing Restaurant’ with intent to commit a crime against property rights; you understand that?
“A Yes.”
The judge also questioned each defendant about his “Defendant’s Written Plea of Guilty,” which stated, in part:
“1. I plead guilty to the charge of burglary in the second degree.
“2. I have a copy of the information in this case.
“3. I have read it carefully or I have had it read to me. “4. I understand the charges against me.”
Each defendant indicated that there was nothing in the written plea which they did not understand. Once the guilty pleas had been accepted, a factual basis for the pleas was ascertained when Dicks volunteered that he had entered the restaurant because he was “pretty hungry” and Hedgepeth indicated that her entry was “for food.”
The defendants argue that the mere reading of the information and the trial judge’s explanation, which they characterize as a brief paraphrasing of the charge, were inadequate to assure that the defendants understood the charge against them.
The Constitution and our Rules of Criminal Procedure do not prescribe any litany or ritual to which trial judges must comply. They do require that this court find on review that the defendants understood the nature of the charge against them. A record that discloses that the elements of the crime charged were clearly outlined by the trial court in indisputably understandable terms would, of course, facilitate our review since [52]*52an appeal under such circumstances would be clearly frivolous.2 When, as in the instant case, the elements of the charge are stated in statutory terms with which a layman may or may not be familiar, we must undertake a more rigorous examination of the record in order to determine whether the defendants in fact understood the nature of the charge.
We have scrutinized the record and have determined that it supports a finding that the defendants understood the charges against them, consistent with their representations in their written pleas and at arraignment.
The record is clear as to defendant Hedgepeth. At the motion hearing, while repudiating her former testimony that they entered the Landing for food, Hedgepeth indicated that she understood the burglary charge and its intent element. On cross-examination by the prosecuting attorney, the following exchange occurred:
“Q At the time that you entered the plea of guilty to Burglary in the Second Degree, did you know what burglary meant?
“A Yes.
“Q So when you entered a plea of guilty to Burglary in the Second Degree, you in fact knew that we were charging you with having stolen something, or intending to have taken something; right?
. “A No. I told everybody what happened, and there wasn’t an intent to take anything.
“Q I am not asking you whether there was an intent at the time. I am asking you if you understand what burglary was, period.
“A Yes. .
“Q Okay. And it was your understanding that that meant an intent to take something?
“A Yes.
Unlike defendant Hedgepeth, defendant Dicks did not admit that he understood the charge at the motion hearing. [53]*53However, his testimony at that time, in conjunction with his earlier representations at the arraignment, support the determination that he understood the charge.
The following admissions by Dicks at the motion hearing permit the inference that at the arraignment Dicks understood the charge to mean entry with an intent to take or steal food. He admitted that he told the arresting officers that he had entered the Landing because he was hungry and wanted something to eat. He admitted knowing that, at the time of charging, the police and prosecutor accordingly believed that he had entered with an intent to steal food. He admitted to trusting the prosecutor to fit the charge to what they did.
Moreover, on both direct and cross-examination, Dicks admitted that, prior to arraignment, he had asked the prosecuting attorney if the burglary charge could be reduced to breaking and entering.
Finally, the general tenor of Dicks’ testimony at the motion hearing may well have raised doubts in the trial judge’s mind about the trustworthiness of the defendant’s representation that he did not understand the charge. In his cross-examination of Dicks, the prosecutor elicited testimony inconsistent with Dicks’ direct testimony and successfully impeached his testimony in certain respects. Many of Dicks’ responses on cross-examination may have appeared evasive to the trial judge, an example of which occurred during an exchange between the prosecuting attorney and Dicks:
“Q You thought you were being charged with a petty crime, right?
“A Yeah.5
“Q But you never asked what that, crime was?
“A Uh, yeah. We were told that it was Burglary in the Second Degree, and what you just read me [the information], just that.
[54]*54Philip Lowenthal, Deputy Public Defender (Donald K. Tsukiyama, Public Defender, with him on the briefs), for defendants-appellants.
Steven R. Scott, Deputy County Attorney (/.irthur T. Ueoka, County Attorney, with him on the brief), for plaintiffappellee.
“Q And it is your sworn testimony that I did not ask, or did not tell you that time we were at the police station on our second meeting that a crime against property rights meant that stealing food in this particular case?
“A I am not saying that you didn’t say that. I am saying that I don’t remember. I don’t remember that — registering that in my mind.”
In light of the foregoing, we are of the opinion that the trial judge did not err in determining that the defendants understood the charge against them at the time they entered their guilty pleas and therefore did not abuse his discretion in denying their motion to withdraw their pleas.
Affirmed.