State v. Burns

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-FEB-2025
07:58 AM
Dkt. 41 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NICHOLAS BURNS, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Nicholas Donald Burns appeals from the April 1, 2024
Second Order of Resentencing entered by the Circuit Court of the
Third Circuit.1 We vacate and remand for further proceedings.
Burns has, he admits, "a long history of interaction
with the Court for an array of criminal proceedings." The
interaction here began when Burns was charged in Hilo with Theft
in the Third Degree, Promoting a Dangerous Drug in the Third
Degree, and Prohibited Acts Related to Drug Paraphernalia. On
December 10, 2019, he pleaded no contest to Theft in the Third
Degree and Promoting a Dangerous Drug in the Third Degree under a
plea agreement. The State agreed to dismiss count 3 for drug
paraphernalia. A Judgment of Conviction and Probation Sentence

1
The Honorable Wendy M. DeWeese presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

was entered on December 12, 2019. Burns was sentenced to
probation for four years, subject to various conditions.
On April 9, 2020, the State moved to revoke probation
and resentence Burns. The motion was based on Burns's conviction
and sentence on March 6, 2020, for Habitual Property Crime in
Judiciary Information Management System (JIMS) case
no. 3CPC-XX-XXXXXXX (Kona Case 1), and on March 6, 2020, for
Habitual Property Crime in JIMS case no. 3CPC-XX-XXXXXXX (Kona
Case 2). The State withdrew its motion on June 3, 2021, because
the circuit court in the Kona Cases had granted Burns's motions
for reduction of sentence and resentenced Burns to probation
subject to conditions.
Much happened in this case and the Kona Cases after
June 3, 2021, that is not material to this appeal. On January 9,
2024, the State moved to revoke Burns's probation and resentence
him in all three cases. Burns was represented in the underlying
Hilo case by court-appointed counsel Ivan Van Leer and in the
Kona Cases by court-appointed counsel William Reece. The motions
were consolidated and heard on January 29, 2024. Reece entered
his appearance for Burns in the Kona Cases, and made "a special
appearance for Mr. Van Leer" in this case. Burns then stated:

THE DEFENDANT: Good morning, Your Honor; Nicholas
Burns. Before we proceed with anything else I would like
[to] dismiss counsel in [Kona Case 1] and [Kona Case 2].
THE COURT: Okay. Your request is denied.[2]

Mr. Reece, how does Mr. Burns wish to proceed with the
motions to revoke?

THE DEFENDANT: Mr. Reece is not authorized to
represent me anymore.
THE COURT: Mr. Reece, how does Mr. Burns wish to
proceed? Does he wish to have a hearing?
MR. REECE: He doesn't --

2
The circuit court had previously denied Burns's November 19, 2019
request that Reece withdraw from representing him in Kona Case 1.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

THE DEFENDANT: I haven't talked to him. There's no
communication. If there's no communication there's no defense.
THE COURT: Oh, okay. [To the deputy prosecuting
attorney:] Mr. Frye, we'll proceed with the hearing. Okay.

After hearing evidence, the circuit court found that
Burns intentionally violated substantial terms or conditions of
his probation. The court orally granted the motions. The
resentencing hearing in all three cases was held on April 1,
2024. An order revoking Burns's probation and resentencing him
was entered in each case on April 1, 2024. This appeal
followed.3
Burns states two points of error: (1) the circuit court
erred by finding he inexcusably violated conditions of probation;
and (2) the circuit court erred by denying his request to
discharge Reece. The second point is dispositive.

Although there is no absolute right, constitutional or
otherwise, for an indigent to have the court order a change
in court-appointed counsel, 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.

State v. Harter, 134 Hawai#i 308, 323, 340 P.3d 440, 455 (2014)
(cleaned up). The examination must be "sufficient to enable the
court to determine if there is 'good cause' to warrant
substitution of counsel." Id. The circuit court did not conduct
a Harter examination in this case.
The State argues this point of error is waived because
Burns "never objected to Reece's special appearance in this case
or requested to continue the hearing for Van Leer to appear."
The State's argument is not persuasive because Burns said
"Mr. Reece is not authorized to represent me anymore" and "I
haven't talked to him. There's no communication. If there's no
communication there's no defense." Burns thus objected to Reece

3
Burns did not appeal from the orders entered in the Kona Cases.

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

representing him in the consolidated hearing in this case and in
the Kona Cases.
The State argues, "[d]efendants cannot 'impede the
course of justice or divert or blockade the orderly flow of
business in our court system,' by attempting to fire appointed
counsel at the last minute" (quoting State v. Torres, 54 Haw.
502, 505, 510 P.2d 494, 496 (1973)). An indigent defendant
cannot dismiss court-appointed counsel by simply moving to
dismiss. See State v. Hirano, 8 Haw. App. 330, 333-34, 802 P.2d
482, 484 (1990) (noting that "[a] defendant does not have a
constitutional right to choreograph special appearances by
counsel"). But failure to conduct a Harter examination is a
structural error. Cf. State v. Cramer, 129 Hawai#i 296, 303, 299
P.3d 756, 763 (2013) (holding denial of a continuance to appoint
new counsel was a "structural error"); State v. Reed, 135 Hawai#i
381, 386, 351 P.3d 1147, 1152 (2015) (holding the "denial of the
right to retained counsel of choice" is a structural error);
State v. Loher, 140 Hawai#i 205, 222, 398 P.3d 794, 811 (2017)
(noting an appellate court would need to "engage in pure
speculation" to determine the impact alternate counsel might have
in a hearing).
The circuit court's April 1, 2024 Second Order of
Resentencing is vacated, and this case is remanded for further
proceedings consistent with this summary disposition order.
DATED: Honolulu, Hawai#i, February 18, 2025.

On the briefs:
/s/ Keith K. Hiraoka
Ivan L. Van Leer, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Charles E. Murray III, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee Associate Judge
State of Hawai#i.

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