State v. Walter

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
01-MAY-2024
07:59 AM
Dkt. 105 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC161001629)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)

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.

1
The Honorable Catherine H. Remigio presided.
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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

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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. Soares, 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. Matsuyoshi, 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

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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. Guity, 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 1'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)

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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 1'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

2
The victim was Walter's nephew.

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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 raised in Walter's supplemental
memorandum. It was raised in Walter's second supplemental
memorandum, filed on December 20, 2020 — after DPD 1 and DPD 2
testified in the evidentiary hearing. DPD 1 and DPD 2 were not
asked whether they informed Walter that if he was sentenced to
life in prison without the possibility of parole — the sentence
for attempted murder in the first degree, or for murder in the
second degree or attempted murder in the second degree if an
extended term were imposed. DPD 1 and DPD 2 were not asked
whether they advised Walter that the governor could deny an
application to commute his sentence, in which case he would be
imprisoned for life without possibility of parole. DPD 1 and
DPD 2 were not asked whether they advised Walter that even if the
governor granted the application, the paroling authority could
still set his minimum term at 30 or 35 years, or more. DPD 1 and
DPD 2 were not asked whether they advised Walter if or how HRS
§ 706-656 would apply if he was sentenced to consecutive terms of
life without possibility of parole.
The circuit court concluded that Walter "failed to meet
his burden to demonstrate that his attorneys' performance, in
light of all the known circumstances, [was] not objectively
reasonable." We review de novo.

[T]he test for ineffective assistance is applied in the
first instance by a reviewing court. A court considering
whether ineffective assistance occurred does not consider
the rulings or actions of the trial court but rather the
conduct of counsel.

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Grindling v. State, 144 Hawai#i 444, 453, 445 P.3d 25, 34 (2019).
There is insufficient evidence for us to decide this issue. We
decline to conclude that counsel was ineffective, without
prejudice to Walter seeking relief under Hawai#i Rules of Penal
Procedure (HRPP) Rule 40.
(b) Walter also argues he should have been allowed to
withdraw his guilty plea under Pedro, 149 Hawai#i 256, 488 P.3d
1235. In Pedro the supreme court introduced a non-exclusive
five-factor test for trial courts to evaluate whether a fair and
just reason supports a pre-sentence request for plea withdrawal.
The factors are: (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. Id. at 274-75 & nn.19 & 20, 488 P.3d
at 1253-54 & nn.19 & 20.
Walter never denied committing the acts alleged in the
indictment. According to DPD 1, Walter said "God had been -- and
a demon had been telling him that if he didn't kill his nephew in
a -- in a certain time period, then the entire world would come
to an end." After his insanity defense could not be supported by
experts, he changed his plea. When asked, during the change-of-
plea hearing, why he believed he was guilty, Walter replied,
"Because I know that I did it." The first factor weighs against
Walter.
Walter hired private counsel three days after he
pleaded guilty. His sentencing was continued multiple times. On
June 17, 2020, Walter moved to continue sentencing to hire a
mental health expert. At that hearing the court cautioned
Walter's counsel, "Be very careful when you tell me that there is
case law on point for this issue because I will expect that to be
provided to the court and I expect it to be on point." The court
gave Walter 48 hours to brief whether "a sentencing court has the
authority to further continue sentencing to allow the defense to

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obtain an expert to examine defendant on his cognitive ability to
understand and proceed through an otherwise voluntarily,
knowingly, and intelligent guilty plea[.]" The motion to
withdraw guilty plea was filed the next day, without an expert
declaration or report. The second factor weighs against Walter.
Walter did not change his plea on the spur of the
moment, as did the defendant in Pedro. He discussed his case
extensively with DPD 1 and DPD 2. DPD 2 sent a plea letter to
the State. The State rejected the offer and made a counteroffer.
Walter instructed DPD 2 to move to reinstate and reduce bail
before he would consider the counteroffer. The motion was filed
and denied. DPD 2 explained the State's counteroffer and
Walter's options to him on many occasions, and did not pressure
him for a decision. Walter ultimately accepted the State's
counteroffer. The third factor weighs against Walter.
In Pedro the supreme court stated that "[a] youthful
defendant, or a defendant with limited mental faculties,
education, or English-language proficiency may be poorly equipped
to thoughtfully consider a plea's implications." 149 Hawai#i
at 280, 488 P.3d at 1259 (citation omitted). Walter was 29 years
old when he changed his plea. He was born in Chuuk, moved to
Hawai#i in 2002, and went to middle and high school on O#ahu until
the 11th grade. All of his classes were in English, he had no
problems reading and writing English, did not need an
interpreter, and spoke to his attorneys in English without an
interpreter. He testified he understood everything that took
place during his change of plea hearing and did not need an
interpreter to understand the change of plea form. The fourth
factor weighs against Walter.
The State argues it would be prejudiced by withdrawal
of Walter's guilty plea because eight police officers had retired
and the medical examiner's investigator moved. But "[t]he mere
fact that the passage of time might make it even more difficult
for the prosecution to locate a prosecution witness" does not
mean that a plea withdrawal would prejudice the State. Pedro,

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149 Hawai#i at 281, 488 P.3d at 1260 (cleaned up). Only the
fifth factor favors Walter. Walter argues no other factors.
Under these circumstances we cannot say that the circuit court
abused its discretion by denying Walter's motion to withdraw his
guilty plea.
For the reasons discussed above, we affirm the
"Judgment of Conviction and Sentence" entered on August 10, 2022,
without prejudice to Walter seeking relief under HRPP Rule 40
based on his claim of ineffective assistance of counsel.
DATED: Honolulu, Hawai#i, May 1, 2024.

On the briefs:
/s/ Katherine G. Leonard
Dwight C.H. Lum, Acting Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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