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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 05-JUN-2025 09:25 AM Dkt. 23 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
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STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
vs.
WAISER WALTER, Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1PC161001629)
June 5, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J. I. INTRODUCTION
This appeal arises from an incident in which
Petitioner Waiser Walter stabbed his adoptive sister, Imaculata
Roke, and his four-year-old nephew, J.R. Roke was taken to the
hospital in critical condition and was eventually released.
J.R. died as a result of his stab wounds. After entering guilty *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
pleas pursuant to a plea agreement, the Circuit Court of the
First Circuit (circuit court) convicted Walter of murder in the
second degree and attempted murder in the second degree. He was
sentenced to life imprisonment with the possibility of parole.
The Intermediate Court of Appeals (ICA) affirmed Walter’s
conviction.
Walter asks this court to vacate his conviction,
arguing (1) the circuit court failed to engage him in a colloquy
to ascertain the basis for his request for new court-appointed
counsel, (2) the relationship between the circuit court and one
of the State’s witnesses, his former deputy public defender,
gave rise to an appearance of impropriety, (3) his public
defenders provided ineffective assistance of counsel, and (4)
the circuit court erred in denying his motion to withdraw his
guilty plea.
As set forth below, we hold that “fair and just
reason[s]” warranted withdrawal of Walter’s guilty plea. The
circumstances underlying Walter’s change of plea – particularly
Walter’s consistent assertion that he lacked penal
responsibility and the lack of a colloquy to determine the basis
for his request for new counsel – weigh in favor of plea
withdrawal.
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However, we reject Walter’s suggestion that there was
an apperance of impropriety raised by the circuit court’s
relationship with one of the State’s witnesses.
Accordingly, we (1) vacate the ICA’s June 21, 2024
Judgment on Appeal, (2) vacate the circuit court’s August 10,
2022 Judgment of Conviction and Sentence, and (3) remand to the
circuit court for further proceedings.
II. BACKGROUND
A. Circuit Court Proceedings
Three days after the October 10, 2016 incident, on
October 13, 2016, Walter was indicted on three counts: (1)
attempted murder in the first degree, (2) murder in the second
degree, and (3) attempted murder in the second degree. Deputy
Public Defender Crystal K. Glendon (DPD Glendon) was appointed
to represent Walter. From the outset of the case, Walter
maintained he was guided by demons or God and pursued the
affirmative defense of mental or physical disease, disorder or
defect excluding criminal responsibility under Hawaiʻi Revised
Statutes (HRS) chapter 704 (2014). 1 Walter has remained in
custody since October 14, 2016.
1 Pursuant to HRS § 704-400(1) (2014):
A person is not responsible, under [the Hawaiʻi Penal] Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the (. . . continued)
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1. Medical examiners’ penal responsibility findings
After Walter’s September 11, 2017 motion for a mental
evaluation was granted on October 16, 2017, Walter was examined
by a court-appointed panel of three medical examiners. The
panel was generally favorable to Walter’s lack of penal
responsibility defense. Two of the three examiners submitted
mixed findings, but ultimately concluded that Walter lacked
penal responsibility. The third examiner was unable to reach a
conclusion.
Initially mistaking the victim J.R.’s toxicology
report for Walter’s, Dr. Alex Lichton, Ph.D. noted the presence
of beta phenethylamine indicated Walter’s voluntary
intoxication. In an addendum, however, Dr. Lichton corrected
the factual error and concluded that Walter was not penally
responsible because absent beta phenethylamine, Walter’s “use of
alcohol, antihistamines and marijuana [was] not sufficient to
account for Mr. Walter’s psychotic symptoms at the time of the
alleged offenses.”
After reviewing Walter’s toxicology report that found
no amphetamine in Walter’s bloodstream, Dr. Martin Blinder, M.D.
(continued . . .) wrongfulness of the person’s conduct or to conform the person’s conduct to the requirements of the law.
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concluded Walter was suffering from an amphetamine induced
psychosis from prior use when the incident occurred and thus
lacked penal responsibility. The third medical examiner, Dr.
John Compton, Ph.D., was unable to offer a definite conclusion
as to Walter’s penal responsibility.
After the court-appointed examiners submitted their
reports, the State sought to retain two additional medical
examiners, Dr. Sharon Tisza, M.D., and Dr. Leonard Jacobs, M.D.,
to assess Walter’s penal responsibility. At a July 24, 2018
hearing, the State orally moved to allow Drs. Tisza and Jacobs
to examine Walter and inspect the same materials the court-
appointed panel reviewed. The circuit court asked DPD Glendon
if she had any objection, to which DPD Glendon stated a “record
objection” to Dr. Tisza for “the delays it would cause” to the
proceedings.
With only a “record objection,” the circuit court 2
granted the State’s motions and allowed Drs. Tisza and Jacobs to
examine Walter and review pertinent records. Both examiners
concluded Walter was penally responsible. Dr. Jacobs’s report
noted that Walter was “intoxicated on alcohol, cannabis, and
2 The Honorable Rom A. Trader presided over the case until December 2018. The Honorable Catherine H. Remigio presided over this case beginning January 2019.
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dextromethorphan [an active ingredient in cough syrup]”
according to his Oʻahu Community Correctional Center (OCCC)
records. Dr. Jacobs pointed to Walter’s admission that he “used
Coricidin [an over-the-counter cough and cold syrup] with cough
suppressant (dextromethorphan) not prescribed for him” and that
he was “drunk” when the incident occurred. Dr. Tisza likewise
concluded, “[b]ut for voluntary intoxication of multiple
substances (Coricidin, Cannabis and Alcohol) on the day of the
offenses Mr. Walter would have been able to appreciate the
wrongfulness of his conduct (cognitive capacity) and to conform
his conduct to the requirements of the law (volitional
capacity).”
2. Motion to withdraw as counsel
Despite multiple continuances and defense counsel’s
efforts to retain a sixth medical examiner, no additional
medical examiner was hired. In early June 2019, Deputy Public
Defender Earl Edward Aquino (DPD Aquino) was assigned Walter’s
case after DPD Glendon left the Office of the Public Defender.
Walter grew frustrated with his counsel and asked that DPD
Aquino file a motion to withdraw. At the October 22, 2019
hearing on the motion to withdraw, another deputy public
defender appeared for DPD Aquino, who was not present. The
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circuit court did not question Walter about why he requested his
court-appointed counsel withdraw. Instead, the circuit court
orally denied the DPD’s motion, stating Walter “does not have a
right to an attorney he likes.”
3. Change of plea
On the same day the circuit court denied DPD Aquino’s
motion to withdraw, the State offered a plea deal to Walter.
The State offered to nolle prosequi count 1, attempted murder in
the first degree, in exchange for Walter’s guilty plea on counts
2 and 3, murder in the second degree and attempted murder in the
second degree. The plea offer also required the defense and
State to jointly recommend to the Hawaiʻi Paroling Authority that
Walter serve a mandatory minimum of 35 years, but the State
agreed that it would not seek extended or consecutive term
sentencing.
Walter later testified that he felt “hopeless” and
“angry” he was stuck with an attorney that, from Walter’s point
of view, gave him the option of either taking his chances at
trial and likely losing or accepting a plea deal offered by the
State for mandatory 35 years in prison before the possibility of
parole. Walter decided to take the deal and change his plea.
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On February 3, 2020, the parties presented the plea
agreement to the circuit court where Walter pleaded guilty to
counts 2 and 3, murder in the second degree and attempted murder
in the second degree. The circuit court asked Walter questions
about his background, English language proficiency, reading and
writing comprehension, his review of the plea agreement with DPD
Aquino, his understanding of the penalties associated with each
charged offense, his current state of mind, and the
constitutional rights he was waiving by changing his plea.
During the plea change colloquy, the circuit court and Walter
had the following exchange:
Q. [Circuit Court]: You know that once I sentence you, you cannot change your mind and ask for a trial, it will be too late by then; correct?
A. [Walter]: Yes.
Q. Now, we've gone over the plea agreement, do you have any questions about the plea agreement?
A. Mm, no, Your Honor.
Q. And you believe that you understand everything that's in the plea agreement?
A. Yes, Your Honor.
Q. Page 2 of the change of plea form, No. 7 says: I plead guilty because after discussing all of the evidence and receiving advice on the law from my lawyer, I believe that I am guilty. Is that a true statement?
Q. And could you tell me why you believe you're guilty.
A. Because I know that I did it.
. . . .
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Q. But is anyone pressuring you or making promises or threatening you to get you to plead in this case?
A. No, Your Honor.
Q. Whose decision is it to plead in this case?
A. Mine.
Q. And are you comfortable with that decision, as comfortable as you could be given the gravity of the situation?
Q. Have you weighed all of your options?
Q. And do you believe that this is in your best interest?
Q. And did you and Mr. Aquino discuss strategy, such as what your defenses might have been if you wanted to fight these charges and go to trial?
Q. And did Mr. Aquino give you some legal advice?
A. Yes.
Q. And, in fact, he secured this plea agreement for you?
Q. Are you satisfied with the help he’s given to you?
The circuit court found that Walter “voluntarily
and intelligently entered his plea with a full
understanding of the nature of the charges against him, as
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well as the possible consequences.” Sentencing was
scheduled for April 13, 2020 with instructions for the
Adult Client Services Branch to conduct a pre-sentence
investigation and report.
4. Pre-sentencing motion to withdraw guilty plea
Three days after changing his plea, Walter retained
counsel Keith S. Shigetomi (new counsel). In the following
months, the COVID-19 lockdown unfolded. Four months after
entering the guilty plea, Walter’s new counsel indicated
Walter’s intent to withdraw his guilty plea and sought to
continue sentencing to retain a medical examiner to assess
whether Walter knowingly entered his guilty plea.
A week later, on June 25, 2020, Walter filed a motion
to withdraw his guilty plea. Over the course of six months, the
circuit court reviewed multiple memoranda in support and in
opposition to Walter’s motion to withdraw his guilty plea and
heard hours of testimony from Walter, his former counsel DPDs
Glendon and Aquino, and a criminal defense expert. 3
The motion asserted DPD Glendon and Aquino’s
ineffective assistance of counsel was a “fair and just reason”
3 The circuit court held six hearings on Walter’s motion to withdraw guilty plea. The hearings took place on July 15, 2020, July 30, 2020, July 31, 2020, October 15, 2020, December 10, 2020, and September 15, 2021.
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for the guilty plea withdrawal because it “caused [Walter] to
believe that he had no choice or alternative but to plea[d]
guilty, thus rendering his guilty plea not intelligently,
knowingly and voluntarily entered.” In particular, the motion
highlighted (1) DPD Glendon’s failure to lodge more than a
“record objection” to the State’s two additional medical
examiners, and (2) DPDs Glendon and Aquino’s failure to retain a
defense mental examiner demonstrated “a lack of skill, judgment
or diligence” that caused Walter to lose confidence in his
counsel.
The circuit court denied the motion on January 26,
2022. Applying the multi-factor framework outlined in State v.
Pedro, 149 Hawaiʻi 256, 275, 488 P.3d 1235, 1254 (2021), the
circuit court found no “fair and just reason” warranted pre-
sentencing plea withdrawal. As to Walter’s assertion of
innocence, the circuit court recounted its plea change colloquy
and noted that when Walter pleaded guilty, he “understood that
he was giving up his insanity defense [and] believed doing so by
pleading guilty was in his best interest.” As to the second
factor, the timing between Walter’s change of plea and
withdrawal motion, the circuit court noted that for four months,
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Walter’s new counsel did not obtain a medical expert or further
explain why it sought to continue sentencing.
Considering the third factor, circumstances underlying
the plea change, the circuit court emphasized that Walter had
discussed his case with both DPDs Glendon and Aquino and
received more than three years of legal representation before
entering the change of plea. The circuit court also considered
the “gravamen of [Walter]’s plea agreement,” and observed that
the “most obvious consequence of a plea withdrawal is that
[Walter] would face the possibility of life without parole if he
were convicted of Count 1, or Counts 2 and/or 3 and sentenced to
an extended term.”
Fourth, turning to Walter’s background, the circuit
court found Walter “had no problems reading and writing
English[,]” “did not need an interpreter[,]” and “spoke to his
attorneys in English and without an interpreter.” Fifth, the
circuit court also found the State would suffer potential
prejudice due to the passage of time since the incident (5 years
at the time of the circuit court’s order), the retirement of
eight police witnesses, and the relocation of the former medical
examiner investigator to the mainland should Walter’s plea
withdrawal be granted.
In sum, the circuit court concluded Walter had not
established a fair and just reason to withdraw his guilty pleas.
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5. Motion to disqualify judge
During the October 15, 2020 hearing on Walter’s plea
withdrawal, the court disclosed that about six years prior, she
asked one of the State’s witnesses - Walter’s former counsel,
DPD Glendon – to organize a baby shower for a mutual friend. At
the time, “[e]vent planning was a fun hobby” for DPD Glendon,
who was given $100 by the circuit court judge to cover costs but
was not otherwise paid for her services. DPD Glendon and the
circuit court judge also both attended two birthday parties, one
in 2012 and the other in 2017, but did not otherwise socialize
with each other.
Walter moved to disqualify the circuit court judge,
arguing her prior relationship with DPD Glendon caused the court
to favor the State and gave rise to an “appearance of
impropriety.” The circuit court denied the motion to
disqualify, explaining:
[T]here was no financial gain. There was no socializing at that party. It was six years ago. And it was basically a favor to the mutual friend and to make sure that – that party was done correctly. And so when I look at the entire record, including the credibility of Ms. Glendon, and I look at the requirements that – that are left, which is the appearance of impropriety, I do not find that it fairly, the circumstances, fairly give rise to an appearance of impropriety or cast reasonable suspicion on my impartiality. And so the motion is denied.
6. Conviction and sentence
On August 10, 2022, pursuant to the February 3, 2020
plea agreement, the circuit court found Walter guilty of murder
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in the second degree and attempted murder in the second degree.
Walter was sentenced to life with the possibility of parole with
a mandatory minimum sentence of 15 years. Pursuant to the plea
agreement, the State and defense jointly agreed to recommend to
the Hawaiʻi Paroling Authority that Walter serve a minimum
sentence of 35 years. The State did not seek extended or
consecutive term sentencing.
B. ICA Summary Disposition Order
In his appeal to the ICA, Walter argued that the
circuit court erred in denying (1) his motion to withdraw guilty
plea, (2) DPD Aquino’s motion to withdraw, and (3) his motion to
disqualify judge. The ICA disagreed and affirmed Walter’s
conviction in a Summary Disposition Order.
The ICA held that the circuit court did not abuse its
discretion when it denied Walter’s pre-sentence motion to
withdraw guilty plea. Applying the Pedro multi-factor
framework, the ICA concluded that four of the five factors
weighed against plea withdrawal. The ICA explained that the
first factor, the defendant’s assertion of innocence, weighed
against plea withdrawal because Walter “never denied committing
the acts alleged in the indictment.” The ICA noted that the
second factor, the time between the guilty plea and withdrawal
motion, constituted an undue delay because during the four-month
period between Walter’s guilty plea and plea withdrawal,
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Walter’s new counsel failed to produce a medical examiner within
the time frame given by the circuit court and instead filed a
motion to withdraw Walter’s guilty plea. Third, weighing the
circumstances underlying the plea, the ICA noted that Walter
accepted the State’s plea offer after considerable deliberation
with his counsel. Fourth, considering Walter’s background, the
ICA concluded Walter’s English language proficiency weighed
against withdrawing Walter’s guilty plea. Finally, the ICA
concluded that there was no prejudice against the State –
marking only one of the five Pedro factors in favor of Walter’s
plea withdrawal.
As to the denial of the motion to withdraw as counsel,
the ICA agreed with the circuit court that Walter did not “have
a right to an attorney that he likes,” but only a “right to an
attorney that is capable and competent,” of which DPD Aquino was
both. In response to Walter’s claim that the circuit court
failed to engage in a meaningful colloquy when it heard the
motion to withdraw, the ICA noted that engaging in a colloquy
with a criminal defendant seeking new counsel “‘is not an end
unto itself’ but ‘merely a means to an end . . . to protect the
defendant’s right to effective representation of counsel[.]’”
(Quoting State v. Kossman, 101 Hawaiʻi 112, 119, 63 P.3d 420, 427
(App. 2003)). It pointed out that although Walter “much later”
argued his former counsel was ineffective, he told the circuit
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court during his change of plea hearing that he was satisfied
with the help he received from DPD Aquino. The ICA concluded
that under these circumstances, there was no abuse of
discretion.
The ICA also held the circuit court did not abuse its
discretion when it denied Walter’s motion to disqualify the
circuit court judge. It concluded that a disclosed past
relationship between the judge and State’s witness “would not
cause ‘an objective, disinterested observer . . . [to] entertain
significant doubt that justice would be done absent recusal[.]’”
(Quoting Kondaur Cap. Corp. v. Matsuyoshi, 150 Hawaiʻi 1, 11-12,
496 P.3d 479, 489-90 (App. 2021)). Walter timely filed his
application for writ of certiorari.
III. STANDARDS OF REVIEW
A. Pre-Sentencing Plea Withdrawal
We review a trial court’s denial of a Hawaiʻi Rules of
Penal Procedure (HRPP) Rule 32(d) motion to withdraw a plea made
prior to sentencing for abuse of discretion. State v. Garcia,
135 Hawaiʻi 361, 368, 351 P.3d 588, 595 (2015).
[W]here the motion [to withdraw guilty plea] is presented to the trial court before the imposition of sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice.
State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 522-23 (1978).
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B. Substitution of Counsel
We review a lower court’s denial of a motion to
substitute court-appointed counsel for abuse of discretion.
Kossman, 101 Hawaiʻi at 119, 63 P.3d at 427; see State v. Harter,
134 Hawaiʻi 308, 328, 340 P.3d 440, 460 (2014). “[T]he trial
court’s decision will not be overturned on appeal unless ‘there
was an abuse of discretion that prejudiced the defendant by
amounting to an unconstitutional denial of the right to
effective assistance of counsel.’” Kossman, 101 Hawaiʻi at 119,
63 P.3d at 427 (quoting State v. Torres, 54 Haw. 502, 505, 510
P.2d 494, 496 (1973)) (emphasis omitted).
C. Motion for Disqualification
A lower court’s denial of a litigant’s motion to
disqualify the judge is reviewed for abuse of discretion.
Arquette v. State, 128 Hawaiʻi 423, 447, 290 P.3d 493, 517
(2012). “Decisions on recusal or disqualification present
perhaps the ultimate test of judicial discretion and should thus
lie undisturbed absent a showing of abuse of that discretion.”
State v. Ross, 89 Hawaiʻi 371, 375, 974 P.2d 11, 15 (1998).
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IV. DISCUSSION
A. Fair and Just Reasons Warranted Walter’s Pre-Sentencing Guilty Plea Withdrawal
We first consider whether the circuit court erred when
it denied Walter’s motion to withdraw his guilty plea. We
conclude it did.
Criminal defendants do not have an absolute right to
withdraw a guilty plea. Jim, 58 Haw. at 575, 574 P.2d at 522.
“But where the motion [to withdraw guilty plea] is presented to
the trial court before the imposition of sentence, a more
liberal approach is to be taken, and the motion should be
granted if the defendant has presented a fair and just reason
for his request[.]” Id. at 576, 574 P.2d at 522-23. In Pedro
we introduced a multi-factor framework to guide courts’ analysis
in determining whether “fair and just reason[s]” justify pre-
sentence plea withdrawal:
Courts evaluating an HRPP Rule 32(d) motion to withdraw a knowing and voluntary plea before sentencing should consider: (1) whether the defendant has asserted and maintained innocence; (2) the timing of the request for the plea withdrawal and the reasons for any delay; (3) the circumstances underlying the plea; (4) the defendant’s nature and background; and (5) the potential prejudice to the prosecution caused by reliance on the plea.
149 Hawaiʻi at 275, 488 P.3d at 1254.
The multi-factor framework requires courts to
“examine[] the totality of the circumstances to determine
whether there was any fair and just reason justifying [the
defendant]’s plea withdrawal.” Id. at 274, 488 P.3d at 1253
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(emphasis in original). Pedro also clarified that State v.
Gomes, 79 Hawaiʻi 32, 897 P.2d 959 (1995), merely outlined “one
set of circumstances in which a trial court must grant a pre-
sentence motion for plea withdrawal,” imposing “a floor, not a
curb, on trial courts’ discretion to grant a pre-sentence motion
for plea withdrawal.” 149 Hawaiʻi at 272-73, 488 P.3d at 1251-52
(emphasis in original).
Applying Pedro’s multi-factor framework to the
circumstances here, we hold there were “fair and just reason[s]”
for Walter to withdraw his guilty plea. Because Walter’s plea
withdrawal is warranted under the “more flexible and permissive”
fair and just reason standard, we do not reach Walter’s
ineffective assistance of counsel claims. In light of our
holding, we similarly do not reach Walter’s arguments related to
DPD Aquino’s motion to withdraw as counsel.
1. Walter maintained his lack of penal responsibility
First, we assess “whether the defendant has asserted
and maintained innocence[.]” Id. at 275, 488 P.3d at 1254.
This factor is “context-dependent” and while “[c]ourts must look
favorably on requests for plea withdrawal from defendants who
have maintained their innocence and never admitted guilt, [] the
converse is not true.” Id. at 276 n.22, 488 P.3d at 1255 n.22.
Here, although Walter acknowledged he “did it” during the plea
colloquy, Walter consistently maintained he was “guided by
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demons trying to save the world” prior to his guilty plea.
Against the backdrop of Walter’s persistent assertion that he
was not penally responsible, his acknowledgment during the plea
colloquy that he “did it” does not, on its own, weigh against
Criminal defendants’ fundamental right to assert lack
of penal responsibility as a defense also weighs in favor of
plea withdrawal in Walter’s case. After the change of plea
hearing, but before the circuit court denied Walter’s plea
withdrawal, we prospectively held in State v. Glenn, “that if
the trial court receives notice that the defendant’s penal
responsibility is an issue in the case, the court must conduct a
colloquy with a defendant to ensure that a waiver of the defense
is intelligent, knowing, and voluntary.” 148 Hawaiʻi 112, 129,
468 P.3d 126, 143 (2020). Having notice that penal
responsibility would be an issue, the circuit court here did not
conduct any colloquy specific to Walter’s lack of penal
responsibility defense, but rather broadly asked whether Walter
discussed possible defenses with his counsel. Although Walter’s
change of plea colloquy predates Glenn’s prospective holding,
our longstanding recognition that “lack of penal responsibility
is a deeply rooted concept, not only in Anglo-American law, but
also in Hawaiʻi[,]” further weighs in favor of plea withdrawal.
See id. at 123, 468 P.3d at 137.
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2. There was no undue delay under the circumstances
Walter and the State dispute whether the four months
between Walter’s plea change and withdrawal motion constitute an
undue delay. The State argues four months was more than enough
time for defense counsel to file a motion to withdraw guilty
plea if Walter indeed had a “swift change of heart.” Walter, on
the other hand, points to the COVID-19 pandemic and his new
counsel’s stalled efforts to retain a medical examiner amidst
the lockdown.
We recognized in Pedro that “[t]he presence or absence
of undue delay impacts a defendant’s entitlement to pre-sentence
plea withdrawal.” 149 Hawaiʻi at 276, 488 P.3d at 1255. A
“swift change of heart” is a “strong indication that the plea
was entered in haste[,]” while an undue delay may not warrant
withdrawal. See id. (quoting United States v. Barker, 514 F.2d
208, 222 (D.C. Cir. 1975)). For example, the Pedro defendant
sought to withdraw his change of plea after four months. Id. at
264-65, 488 P.3d at 1243-44. We concluded there was no undue
delay on the bases that the defendant was advised his plea
change was “irreversible,” the trial court improperly speculated
about the defendant’s motivations, and the defendant was unable
to adequately explain to the court the reasons for any delay due
to a lack of colloquy between the court and the defendant. Id.
at 276, 488 P.3d at 1255.
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Under the specific circumstances of this case, we
similarly conclude four months was not an undue delay weighing
against plea withdrawal. Walter entered his change of plea on
February 3, 2020. Three days later, on February 6, 2020, new
counsel appeared in his case. That same week, Walter refused to
comply with the pre-sentence investigation under the advice of
his new counsel. Although a plea withdrawal motion was not
filed for four months, the swift appearance of new counsel,
Walter’s immediate refusal to cooperate with a pre-sentence
investigation, and the then-unfolding COVID-19 pandemic tip in
favor of Walter’s guilty plea withdrawal.
3. The underlying circumstances weigh in favor of plea withdrawal
The lack of any meaningful colloquy between the
circuit court and Walter during the hearing on DPD Aquino’s
motion to withdraw further weighs in favor of plea withdrawal.
In Harter, we clarified the scope of a “penetrating and
comprehensive examination” required when indigent defendants
request appointed counsel be replaced. 134 Hawaiʻi at 323-31,
340 P.3d at 455-63. We held that a trial court’s inquiry must
be “the kind of inquiry that might ease the defendant’s
dissatisfaction, distrust, or concern” as well as one that
“enable[s] the court to determine if there is ‘good cause’ to
warrant substitution of counsel.” Id. at 323, 340 P.3d at 455
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(citations omitted). We also noted that typically, “good cause”
to grant a motion to withdraw and substitute counsel “exists
when there is a conflict of interest on the part of defense
counsel, a complete breakdown in communication between the
attorney and client, or an irreconcilable difference between the
attorney and client.” Id. at 323-24, 340 P.3d at 455-56
(internal quotation marks and citations omitted).
DPD Aquino’s motion to withdraw simply stated that
Walter “requested that [] counsel withdraw from his case and
requested that the instant motion be filed.” At the hearing on
the withdrawal motion, another deputy public defender appeared
on behalf of DPD Aquino. There, the circuit court and
substitute deputy public defender had the following exchange:
THE COURT: Anything further, Ms. Lum?
MS. LUM: Your Honor, I did speak with Mr. Walter in regards to whether or not he wants to proceed on this motion. The bottom line is, you know, Mr. Aquino took over this case from another attorney. He hasn’t ma[de] this decision frivolously. He cannot work with Mr. Aquino. He wants to have another attorney appointed to him. So we would leave it at that.
THE COURT: I agree that –
MS LUM: The Court may question him if it wants.
Without further questioning the substitute deputy
public defender or asking Walter about why he requested new
counsel, the circuit court orally denied the motion, explaining:
I agree [with the State] that the motion is insufficient. Simply not wanting to work with the attorney that’s assigned to you, who is actually from the same office as Ms. Glendon, who was his previous attorney, is
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insufficient. Mr. Walter does not have a right to an attorney that he likes. He has a right to an attorney that is capable and competent, and Mr. Aquino is both. So the motion is denied without prejudice.
Under these circumstances, the circuit court could
neither “ascertain the bases for [Walter]’s request,” nor
ascertain whether a conflict of interest, breakdown in
communication, or irreconcilable difference existed without
asking Walter about the “status and quality of [his] attorney-
client relationship.” See id. at 323, 329, 340 P.3d at 455, 461
(quotation marks and citations omitted). Had the circuit court
engaged in the required colloquy, it presumably would have
learned Walter “didn’t have confidence” in his counsel because
his public defenders never retained a medical expert.
Walter felt “angry” that his counsel did not hire a
medical examiner and that he was “stuck with this attorney who
kept telling me that if we go to court we’re going to lose.”
With no colloquy, Walter’s “dissatisfaction, distrust, or
concern” was not put at ease. See id. at 323, 340 P.3d at 455
(noting the colloquy “must be the kind of inquiry that might
ease the defendant’s dissatisfaction, distrust, or concern”)
(quotation marks and citations omitted). Instead, feeling like
his only options were to go to trial and lose or “take[] a deal
for 35 years,” Walter decided to take the deal. Under these
circumstances, the lack of any Harter colloquy weighs in favor
of plea withdrawal.
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4. Walter’s background is the only factor that weighs against plea withdrawal
A criminal defendant’s age, mental faculties,
education, and English-language proficiency are pertinent
considerations that may impact a defendant’s ability to
“thoughtfully consider a plea’s implications.” Pedro, 149
Hawaiʻi at 280, 488 P.3d at 1259. Walter was 29 years old when
he changed his plea to guilty. Although English was not his
first language, he moved to Oʻahu from Chuuk at 13 years old and
attended school instructed in English through the 11th grade.
The record contains numerous examples where Walter expressed a
preference for communicating in English. Although a Chuukese
interpreter was present at court proceedings early on in the
case, Walter repeatedly told the court, his counsel, and medical
examiners that he did not need an interpreter. This is the sole
factor that weighs against Walter’s plea withdrawal.
5. The withdrawal of Walter’s plea would not prejudice the prosecution
Finally, in evaluating whether there is a “fair and
just reason” for plea withdrawal, courts should also “weigh any
prejudice to the prosecution caused by reliance on the
defendant’s plea.” State v. Sanney, 141 Hawaiʻi 14, 22, 404 P.3d
280, 288 (2017) (quoting citation omitted). However, even when
the prosecution is substantially prejudiced, other factors
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favoring withdrawal may outweigh prejudice against the State.
Pedro, 149 Hawaiʻi at 281, 488 P.3d at 1260.
The State argues it is “potential[ly] prejudice[d]”
because its case “has weakened given the retirement of eight
police witnesses and the relocation of a former medical examiner
investigator.” This argument is unavailing because it is
speculative. “The mere fact that the passage of time might make
it even more difficult for the prosecution to locate” a witness
does not mean a plea withdrawal would substantially prejudice
the State. Id. (quoting Gomes, 79 Hawaiʻi at 40, 897 P.2d at
967) (internal quotation marks omitted). Moreover, the relevant
period to evaluate prejudice against the State is the time
between the guilty plea and motion to withdraw the guilty plea,
not the time between the underlying incident and the plea
withdrawal motion. It is unlikely that the now unavailable
witnesses all retired or relocated in the four-month period
between Walter’s guilty plea and motion to withdraw, thereby
causing additional prejudice to the prosecution. Thus, the
record does not show that any potential prejudice to the
prosecution to locate and call out-of-state or retired witnesses
is sufficient to weigh against plea withdrawal.
With four of the five Pedro factors tipping in favor
of plea withdrawal, we hold “fair and just reason[s]” call for
the withdrawal of Walter’s guilty plea. In particular, Walter’s
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persistent assertion that he lacked penal responsibility and the
lack of any Harter colloquy to ascertain the basis for Walter’s
request for new counsel are compelling “fair and just reason[s]”
that warrant plea withdrawal.
In light of this holding, we need not determine
whether the circuit court erred when it denied DPD Aquino’s
motion to withdraw as counsel. We reiterate, however, that
“when an indigent defendant requests that appointed counsel be
replaced, the trial court has a duty to conduct a penetrating
and comprehensive examination of the defendant on the record, in
order to ascertain the bases for the defendant’s request.”
Harter, 134 Hawaiʻi at 323, 340 P.3d at 455 (internal quotation
marks and citations omitted). Here, had a Harter colloquy taken
place, the circuit court may have been made aware of the “fair
and just reason[s]” that now warrant the withdrawal of Walter’s
B. The Circuit Court Did Not Abuse its Discretion in Denying Walter’s Motion to Disqualify
We now turn to whether the ICA erred in ruling the
circuit court did not abuse its discretion in denying Walter’s
motion to disqualify the presiding circuit court judge due to
her limited social relationship with the State’s witness, his
former counsel, DPD Glendon. We conclude the ICA did not err.
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Judges are disqualified when they “ha[ve] a personal
bias or prejudice either against the party or in favor of any
opposite party to the suit[.]” HRS § 601-7(b) (2016). Judges
may also be disqualified if “circumstances . . . fairly give
rise to an appearance of impropriety and . . . reasonably cast
suspicion on [the judge’s] impartiality.” State v. Brown, 70
Haw. 459, 467 n.3, 776 P.2d 1182, 1188 n.3 (1989) (emphases
omitted)). “[T]he test for disqualification due to the
‘appearance of impropriety’ is an objective one, based not on
the beliefs of the petitioner or the judge, but on the
assessment of a reasonable impartial onlooker apprised of all
the facts.” Ross, 89 Hawaiʻi at 380, 974 P.2d at 20.
Walter contends that in planning a baby shower for a
mutual friend more than six years prior to the instant
proceedings, the relationship between the presiding judge and
DPD Glendon is one where “[a]n impartial onlooker would have an
impression of impropriety.” We disagree. Reviewing the record
“through [an] objective lens,” it is unlikely “a reasonable
person, knowing all the facts, [would] conclude that the trial
judge’s impartiality could reasonably be questioned[.]” Ross,
89 Hawaiʻi at 380, 974 P.2d at 20 (quoting United States v.
Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)). We therefore hold
that the circuit court did not abuse its discretion in denying
the motion to disqualify.
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V. CONCLUSION
For the foregoing reasons, we (1) vacate the ICA’s
June 21, 2024 Judgment on Appeal, (2) vacate the Circuit Court
of the First Circuit’s Judgment of Conviction and Sentence,
entered on August 10, 2022, and (3) remand the case for further
proceedings consistent with this opinion.
Dwight C.H. Lum /s/ Mark E. Recktenwald for petitioner /s/ Sabrina S. McKenna Stephen K. Tsushima for respondent /s/ Todd W. Eddins
/s/ Lisa M. Ginoza
/s/ Vladimir P. Devens