State v. Walter

1

STATE OF HAWAI'I, Plaintiff-Appellee, v. WAISER WALTER, Defendant-Appellant

No. CAAP-22-0000536

Intermediate Court of Appeals of Hawaii

May 1, 2024

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

Appeal from the Circuit Court of the First Circuit (Case No 1PC161001629)

On the briefs:

Dwight C.H. Lum, for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.

SUMMARY DISPOSITION ORDER

Waiser Walter was indicted on October 13, 2016, for attempted murder in the first degree, murder in the second degree, and attempted murder in the second degree. In a plea agreement he pleaded guilty to murder in the second degree and attempted murder in the second degree. The circuit court granted the State's motion to nolle prosequi the attempted murder in the first degree charge. The State agreed not to seek extended or consecutive term sentencing. Walter was sentenced to life imprisonment with the possibility of parole, with a mandatory minimum term of 15 years for Count 2 (murder in the second degree). The "Judgment of Conviction and Sentence" was entered on August 10, 2022.^[1] Walter appeals. We affirm.

Walter challenges the: (1) November 1, 2019 "Order Denying Motion to Withdraw and to Appoint Substitute Counsel Without Prejudice"; (2) December 21, 2020 "Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion for Disqualification of Judge"; and (3) January 26, 2022 "Order Denying Defendant's Motion to Withdraw Guilty Pleas."

(1) Walter was represented by the Office of the Public Defender (OPD). He was represented by DPD 1 until May 10, 2019, when DPD 1 left OPD. He was then represented by DPD 2. On October 9, 2019, DPD 2 moved to withdraw. The circuit court denied the motion without prejudice. We review for abuse of discretion. State v. Kossman, 101 Hawai'i 112, 119, 63 P.3d 420, 427 (App. 2003).

DPD 2's motion stated only that Walter asked for it to be filed. DPD 3 appeared at the hearing. DPD 3 explained that she spoke with Walter, and he said "[h]e cannot work with [DPD 2]. He wants to have another attorney appointed to him. So we would leave it at that." The court stated, "[s]imply not wanting to work with the attorney that's assigned to you ... is 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 [DPD 2] is both." The court was not wrong.

There is no absolute right, constitutional or otherwise, for an indigent to have the court order a change in court-appointed counsel. Certain restraints must be put on the reassignment of counsel lest the right be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. Hence, the 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 Hawai'i at 119, 63 P.3d at 427 (emphasis added) (cleaned up). The State objected because it had been three years since the indictment, and substitution of counsel would have further delayed resolution of the case. No evidence of a conflict of interest or other circumstances that would warrant withdrawal under the Hawai'i Rules of Professional Conduct was presented to the court.

Walter argues that the circuit court erred by not examining him as required by State v. Harter, 134 Hawai'i 308, 323-24, 340 P.3d 440, 455-56 (2014) (citing State v. Spares, 81 Hawai'i 332, 355, 916 P.2d 1233, 1256 (App. 1996), overruled on other grounds by State v. Janto, 92 Hawai'i 19, 986 P.2d 306 (1999)). A Soares/Harter examination "is not an end unto itself" but "merely a means to an end ... to protect the defendant's right to effective representation of counsel[.]" Kossman, 101 Hawai'i at 119, 63 P.3d at 427. Although Walter much later argued that DPD 2 was ineffective (discussed below), he told the court during his change of plea hearing he was satisfied with the help he'd received from DPD 2. We also note that during the evidentiary hearing on Walter's motion to withdraw guilty plea, DPD 2 testified that Walter asked him to move to withdraw because "his family was looking to hire" private counsel. Under these circumstances, we cannot say the circuit court abused its discretion by denying DPD 2's withdrawal.

(2) Walter's motion to disqualify the trial judge was based on the judge's disclosed past relationship with DPD 1. We review for abuse of discretion. Arquette v. State, 128 Hawai'i 423, 447, 290 P.3d 493, 517 (2012).

Walter argued that the past relationship between the trial judge and DPD 1 created an appearance of impropriety. Walter does not challenge the circuit court's findings of fact, which are binding. State v. Rodrigues, 145 Hawai'i 487, 494, 454 P.3d 428, 435 (2019). Those facts would not cause "an objective, disinterested observer . . . [to] entertain significant doubt that justice would be done absent recusal[.]" Kondaur Cap. Corp. v. Matsuvoshi, 150 Hawai'i 1, 11-12, 496 P.3d 479, 489-90 (App. 2021). Moreover, "a judge is duty-bound not to withdraw where the circumstances do not fairly give rise to an appearance of impropriety and do not reasonably cast suspicion on his or her impartiality." Id. at 22, 496 P.3d at 500 (cleaned up). The circuit court did not abuse its discretion by denying Walter's motion to disqualify.

(3) Walter moved to withdraw his guilty plea before he was sentenced. Before sentencing, a plea may be withdrawn "for any fair and just reason." State v. Pedro, 149 Hawai'i 256, 272, 488 P.3d 1235, 1251 (2021). Walter had the burden to show plausible and legitimate grounds to withdraw his plea. Id. at 270, 488 P.3d at 1249. We review for abuse of discretion. State v. Guitv, 144 Hawai'i 557, 560-61, 445 P.3d 138, 141-42 (2019) .

(a) Walter argues he did not knowingly, intelligently, or voluntarily plead guilty because he received ineffective assistance of counsel. We must determine whether the assistance was "within the range of competence demanded of attorneys in criminal cases." Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 976 (1993) (citation omitted). Walter must "show specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence, and that these errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." Id. (cleaned up). The possible effect of a defense on the decision maker determines whether it is potentially meritorious. Id. at 464, 848 P.2d at 977.

Walter argues DPD 1 was ineffective because she stipulated to let the State's expert witnesses examine him. The circuit court made extensive findings on this issue, which Walter has not challenged. DPD l's decision to stipulate to the State's motion to examine Walter was based on the lack of methamphetamine in the toxicology report, Walter's explanation that he was "guided by demons trying to save the world," and one doctor's opinion that Walter "was not penally responsible because he was not under the influence of anything that would make him intoxicated or psychotic (as supported by the toxicology report) and 'you don't kill a five year old^[2] if you're not psychotic.'" DPD 1 believed that lack of penal responsibility was Walter's only potential defense, and that the State's experts would support it. The State's experts' opinions that Walter was penally responsible were based on substance abuse that Walter never disclosed to DPD 1. The circuit court found the stipulation was a "strategic decision[.]" We decline to second-guess DPD l's judgment on strategy under the circumstances of this case. State v. DeLeon, 131 Hawai'i 463, 479, 319 P.3d 382, 398 (2014).

Walter also argues DPD 1 was ineffective because she didn't hire an expert witness. Five doctors examined Walter for penal responsibility. One could not form an opinion. One first found him responsible, but changed his opinion because Walter had not tested positive for amphetamine. Three found him penally responsible based on the presence of a chemical in the toxicology report that was a metabolite of an intoxicant. DPD 1 consulted with a pharmacologist, who could not support an insanity defense. DPD 2 discussed the pharmacologist's opinion with Walter, who agreed not to retain a pharmacologist. Under these circumstances, DPD 1 was not ineffective.

Walter's plea agreement provided: "The State and [Walter] shall jointly recommend to the Hawai'i Paroling Authority that [Walter] shall serve thirty-five (35) years of imprisonment before he is eligible for parole." Walter argues DPD 2 was ineffective because he did not tell Walter that even if he was convicted and sentenced to life imprisonment without possibility of parole, "the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment[.]" HRS § 706-656 (2014). The circuit court made extensive findings which Walter has not challenged. The court found that DPD 1 and DPD 2 informed Walter of the potential sentences he faced, including life with and without the possibility of parole and extended term and consecutive sentencing. DPD 1 told Walter the average minimum term for life with parole was 30 years. DPD 2 told Walter the average minimum term for life with parole was 35 years.

Walter's motion to withdraw guilty plea was filed after he hired private counsel. The HRS § 706-656 issue was not raised in the motion. Nor was it...