unequivocal waiver in Hawaii

2017According to State v. Phua, 135 Hawaii 504, 353 P.3d 1046 (2015), When a defendant elects to proceed pro se, the record must indicate that the defendant was offered counsel, but he or she “voluntarily, knowingly, and intelligently rejected the offer and waived that right.” The trial court must ensure two requirements are met: first, the waiver of counsel is “knowingly and intelligently” made, and second, “the record is complete so as to reflect that waiver.” The latter requirement arises because appellate courts are charged with determining from the record whether there was an unequivocal wai

2017According to State v. Phua, 135 Hawaii 504, 353 P.3d 1046 (2015), When a defendant elects to proceed pro se, the record must indicate that the defendant was offered counsel, but he or she “voluntarily, knowingly, and intelligently rejected the offer and waived that right.” The trial court must ensure two requirements are met: first, the waiver of counsel is “knowingly and intelligently” made, and second, “the record is complete so as to reflect that waiver.” The latter requirement arises because appellate courts are charged with determining from the record whether there was an unequivocal wai

1994However, the [prosecution] correctly points out that in State v. Guerrios, 7 Haw.App. 424 , 774 P.2d 246 (1989), we held that under HRS § 706-660.1(a) the finding that the defendant used a firearm in committing a felony did not have to be made by the jury; the finding could be made by the sentencing judge.

1992Estrada went beyond Apao and established an unequivocal rule: a defendant may not be given an enhanced sentence on account of aggravating circumstances pursuant to. a statute providing therefor unless the aggravating circumstances are alleged in the complaint or indictment, and the statute’s applicability has been determined by the trier of fact. *544 However, the State correctly points out that in State v. Guerrios, 7 Haw.

2008Thus, McCully cannot stand for the unequivocal rule advocated by the majority. 4 Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail, 75 Haw. at 46-51 , 856 P.2d at 1231-33 ; Treloar, 65 Haw. at 418-20 , 653 P.2d at 422-24 , or an administrative rule interpreting a statute, see Nelson, 97 Hawai'i at 387-88 , 38 P.3d at 106-07 ; Holi, 113 Hawai'i at 205-06 , 150 P.3d at 854-55 [,]” but inexplicably states that this is a “distinction without a difference.” Majority opinion at 122-23, 194 P.3d at 108

2008Thus, McCully cannot stand for the unequivocal rule advocated by the majority. 4 Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail, 75 Haw. at 46-51 , 856 P.2d at 1231-33 ; Treloar, 65 Haw. at 418-20 , 653 P.2d at 422-24 , or an administrative rule interpreting a statute, see Nelson, 97 Hawai'i at 387-88 , 38 P.3d at 106-07 ; Holi, 113 Hawai'i at 205-06 , 150 P.3d at 854-55 [,]” but inexplicably states that this is a “distinction without a difference.” Majority opinion at 122-23, 194 P.3d at 108

2008Thus, McCully cannot stand for the unequivocal rule advocated by the majority. 4 Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail, 75 Haw. at 46-51 , 856 P.2d at 1231-33 ; Treloar, 65 Haw. at 418-20 , 653 P.2d at 422-24 , or an administrative rule interpreting a statute, see Nelson, 97 Hawai'i at 387-88 , 38 P.3d at 106-07 ; Holi, 113 Hawai'i at 205-06 , 150 P.3d at 854-55 [,]” but inexplicably states that this is a “distinction without a difference.” Majority opinion at 122-23, 194 P.3d at 108

2008Thus, McCully cannot stand for the unequivocal rule advocated by the majority. 4 Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail, 75 Haw. at 46-51 , 856 P.2d at 1231-33 ; Treloar, 65 Haw. at 418-20 , 653 P.2d at 422-24 , or an administrative rule interpreting a statute, see Nelson, 97 Hawai'i at 387-88 , 38 P.3d at 106-07 ; Holi, 113 Hawai'i at 205-06 , 150 P.3d at 854-55 [,]” but inexplicably states that this is a “distinction without a difference.” Majority opinion at 122-23, 194 P.3d at 108

2008Thus, McCully cannot stand for the unequivocal rule advocated by the majority. 4 Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail, 75 Haw. at 46-51 , 856 P.2d at 1231-33 ; Treloar, 65 Haw. at 418-20 , 653 P.2d at 422-24 , or an administrative rule interpreting a statute, see Nelson, 97 Hawai'i at 387-88 , 38 P.3d at 106-07 ; Holi, 113 Hawai'i at 205-06 , 150 P.3d at 854-55 [,]” but inexplicably states that this is a “distinction without a difference.” Majority opinion at 122-23, 194 P.3d at 108

2008Thus, McCully cannot stand for the unequivocal rule advocated by the majority. 4 Indeed, the majority concedes that unlike this case, Vail, Treloar, Nelson, and Holi “involved either an appeal from an agency decision ..., see Vail, 75 Haw. at 46-51 , 856 P.2d at 1231-33 ; Treloar, 65 Haw. at 418-20 , 653 P.2d at 422-24 , or an administrative rule interpreting a statute, see Nelson, 97 Hawai'i at 387-88 , 38 P.3d at 106-07 ; Holi, 113 Hawai'i at 205-06 , 150 P.3d at 854-55 [,]” but inexplicably states that this is a “distinction without a difference.” Majority opinion at 122-23, 194 P.3d at 108

2007I must respectfully disagree with this unprecedented deviation from the unequivocal rule announced in State v. Cummings, 101 Hawai'i 139 , 63 P.3d 1109 (2003), requiring that the prosecution allege all of the essential elements of the offense charged.

2007I must respectfully disagree with this unprecedented deviation from the unequivocal rule announced in State v. Cummings, 101 Hawai`i 139, 63 P.3d 1109 (2003), requiring that the prosecution allege all of the essential elements of the offense charged.

2002This court stated: To be sure, we recently said[] “Once Miranda warnings are given, they need not be given again in the same interrogation even if other offenses materialize or become more appropriate.” [Ramones ], [ 69 Haw. at 406 ], 744 P.2d [at] 518 ... (citation omitted).

2002The State argued on appeal that the court should not have suppressed the defendant’s statements made on December 27 and thereafter because there was “actually no reason to ‘Mirandize’ the defendant!,] ... the questioning conducted on December 27th [being] a continuation of the earlier interrogation for which there was an unequivocal waiver of counsel.” Id.