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State v. Vares11/26/1990
!--REF-->477 P.2d 630, 633 (1970). To determine whether a waiver was voluntarily and intelligently undertaken, this court will look to the totality of facts and circumstances of each particular case. State v. Dicks , 57 Haw. at 48, 549 P.2d at 729.
In Carvalho v. Olim , 55 Haw. 336, 342-43, 519 P.2d 892, 897 (1974), this court quoted from Von Moltke v. Gillies , 332 U.S. 708, 724 (1948):
The fact that an accused may tell him [the judge] that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
This court in Carvalho v. Olim, supra , granted the petitioner's writ of habeas corpus on the ground that the State failed to show that waiver of counsel was voluntarily and intelligently undertaken when petitioner earlier entered a plea of guilty to a murder charge. Prior to entering his plea, the petitioner had originally asked for an attorney, but changed his mind after a recess. The prosecuting attorneys tried to persuade him not to plead guilty and reminded him that he was entitled to a court-appointed attorney. The judge repeated the advice, but the petitioner twice responded that he did not want an attorney. Despite this colloquy, this court pointed out that
the testimony does not indicate that the trial judge made an effort to explain what his rejection of counsel really entailed. Without a proper showing that an effort in this regard was made, we cannot find that the petitioner voluntarily and intelligently waived his right to counsel[.]
Carvalho v. Olim , 55 Haw. at 342-43, 519 P.2d at 897 (footnote omitted).
Voluntary and intelligent waivers of counsel were found in State v. Dicks, supra . The trial judge in that case questioned the two defendants extensively about their waivers, and inquired into the ages, educational backgrounds and experience in court. The trial judge determined that the defendants possessed superior ability and were capable of thinking and deciding for themselves.
The facts and circumstances in this case fall far short of the standards for waiver enunciated in Dicks and Carvalho . The trial
judge in this case did not address Vares personally and individually about waiving his right to counsel. There was no inquiry into Vares' background, no explanation of the ramifications of the rejection of counsel, and no determination that Vares clearly understood his right to counsel but intelligently and voluntarily waived it.
We hold that under such circumstances, the 1985 DUI conviction amounted to an uncounseled conviction. It cannot, therefore, be utilized to sustain the enhanced sentence imposed. Vares' sentence is vacated and this case is remanded to the trial court for resentencing of Vares as a second-time offender under HRS § 291-4(b).
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