State v. Montibon

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JUL-2024
08:00 AM
Dkt. 107 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

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

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(WAHIAWA DIVISION)
(CASE NO. 1DCW-XX-XXXXXXX)

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

Defendant-Appellant Nicholas Montibon (Montibon)

appeals from the November 2, 2017 Notice of Entry of Judgment

and/or Order (Judgment), entered by the District Court of the

First Circuit, Wahiawâ Division (District Court).1 On November

1, 2016, the State of Hawai#i (State) charged Montibon by

Complaint with one count of Sexual Assault in the Fourth Degree

in violation of Hawaii Revised Statutes (HRS) § 707-733(1)(a)

(Supp. 2023), and two counts of Attempted Sexual Assault in the

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The Honorable Maura M. Okamoto presided over the November 17, 2016
pretrial proceedings. The Honorable Patricia A. McManaman presided at trial.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Fourth Degree in violation of HRS §§ 705-500(1)(b) (2014) and

707-733(1)(a).

Montibon raises two points of error on appeal

contending that: (1) Montibon's waiver of a jury trial was not

valid because the District Court failed to conduct a proper

colloquy; and (2) the flawed procedural history of this case

rendered the District Court's Tachibana colloquy illogical and
meaningless, particularly with respect to Montibon's right not to

testify.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Montibon's points of error as follows:

(1) Montibon argues that the waiver of his right to a

jury trial was not valid because the District Court failed to

ensure that it was the product of a knowing and voluntary

decision.

It is well-established that:
When a criminal defendant has the right to a jury
trial, the trial court is required to "inform the defendant
of the right to jury trial in the circuit court[,] and that
the defendant may elect to be tried without a jury in the
district court." Hawai#i Rules of Penal Procedure ("HRPP")
Rule 5(b)(1) (2014). This serves several purposes: "(1) it
more effectively insures voluntary, knowing, and intelligent
waivers[;] (2) it promotes judicial economy by avoiding
challenges to the validity of waivers on appeal[;] and (3)
it emphasizes to the defendant the seriousness of the
decision[.]" State v. Friedman, 93 Hawai#i 63, 68, 996 P.2d
268, 273 (2000) (quoting United States v. Cochran, 770 F.2d
850, 851-52 (9th Cir. 1985)).

A defendant may waive the right to trial by jury
either orally or in writing, provided that such waiver is
knowing and voluntary, and comes directly from the
defendant. State v. Ibuos, 75 Hawai#i 118, 121, 857 P.2d

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576, 578 (1993). But, even where the defendant executes a
written waiver form, "the court should also engage in an
oral colloquy with the defendant to establish that the
waiver was knowing, intelligent, and voluntary." [State v.
Gomez-Lobato, 130 Hawai#i 465, 469, 312 P.3d 867, 901
(2013)]. The validity of a defendant's waiver of the right
to a jury trial is reviewed "under the totality of the
circumstances surrounding the case, taking into account the
defendant's background, experience, and conduct." Friedman,
93 Hawai#i at 70, 996 P.2d at 275 (citation omitted).

State v. Ernes, 147 Hawai#i 316, 320-21, 465 P.3d 763, 767-68

(2020).

On November 17, 2016, when Montibon's case was called,
Montibon's attorney waived reading of the charges, stated

Montibon was entering a not guilty plea, and requested a trial

setting. The District Court asked, "do we need to do a waiver or

demand?" Counsel informed the court, "he's going to waive." The

District Court told counsel there was a form for that. The

District Court then stated that it would pass the case "for a

minute," and "I'm going to let you just talk to your client real

briefly. He needs to read through that. Make sure he

understands. Then as soon as you're ready, we'll call you back
up."

Montibon signed and filed a Waiver of Jury Trial form,

which states:
I, the undersigned, have read completely this waiver
form and understand that by signing it, I am now and forever
voluntarily waiving and giving up my right to trial by jury
on the present charges.
I further understand that I have the right to be tried
by a jury of not less than twelve (12) citizens drawn from
the community and that all of those twelve jurors would have
to unanimously agree that the evidence introduced against me
at trial proved my guilt beyond a reasonable doubt before I
could be convicted of the charges against me. If any one of
those twelve should find the evidence not persuasive beyond
a reasonable doubt, a conviction could not be entered.
Further, I would have an opportunity to help select which

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members of the community might serve on the jury and to ask
questions of prospective jurors.
By giving up my right to trial by jury I understand
that the evidence at any trial will be considered and all
decisions regarding my guilt or innocence will be made by a
single Judge of the District Court.
I am not under the influence of any drugs or alcohol
at this time, and my mind is clear.
I fully understand the nature of my right to trial by
jury and that the decision to give up the right is entirely
up to me. If I do not give up the right to trial by jury at
this time, I understand that my case will be sent to the
Circuit Court for a jury trial.

I HEREBY WAIVE AND GIVE UP MY RIGHT TO BE TRIED BY A
JURY AND AGREE THAT MY CASE MAY BE TRIED BY A SINGLE JUDGE.

When the case was recalled, the colloquy proceeded as

follows:
[Montibon's Attorney]: And, Your Honor, we -- we did
complete the waiver of jury trial, Judge. (Indiscernible)
deputy prosecuting attorney (indiscernible).

THE COURT: Thank you.

So, sir, and you went over this form with your
attorney?

[Montibon]: Yes.
THE COURT: Okay. And what you have decided to do is
give up your right to have a trial by jury; is that correct?

[Montibon]: Correct.
THE COURT: And tell me, what is a trial by jury? Who
makes the decision?

[Montibon]: The jury, 12 people.
THE COURT: Yeah. And they have to come to a
unanimous decision.
You're saying, I give up that right, and I will let a
single judge decide this matter if it goes to trial; yeah?
Okay.

So then I find that you have waived your right to a
jury trial, and the waiver was knowingly, intelligently, and
voluntarily made.
So, now, we're going to set this matter for trial.

As stated above, the validity of Montibon's waiver of

the right to a jury trial is reviewed under the totality of the

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circumstances. No argument is made concerning Montibon's

background, experience, and conduct, and he appeared to respond

appropriately in English to the District Court's scant questions.

However, the District Court's colloquy was wholly insufficient.

The only questions posed to Montibon were whether he went over

the form with his attorney, whether he decided to give up his

right to have a trial by jury, and who makes the decision in a
jury trial. The record reflects that Montibon understood that a

jury decides a jury trial and is made up of 12 people. Nothing

more. The District Court did not even establish that the waiver

was voluntarily made by Montibon himself. The District Court did

not advise Montibon that the decision was entirely up to him, to

be made with advice of counsel. The District Court did not ask

Montibon whether he read and understood the waiver form or

whether he had any questions regarding his right to a jury trial.

While this jurisdiction has not required strict adherence to

particular questions, we note that the District Court did not

establish whether Montibon's mind was clear, whether he was under

the influence of drugs or alcohol, whether he understood he could

participate in the selection of jurors, and that a jury verdict

must be unanimous. Although the District Court stated that a

single judge would decide the matter, this was done as an

announcement in conjunction with the court's finding of a waiver,

not as part of a true colloquy as to Montibon's understanding of

his right to a jury trial.

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Based on the foregoing, inter alia, we conclude that

the District Court failed to ensure that Montibon's waiver of his

constitutional right to a jury trial was a knowing, intelligent,

and voluntary waiver.

(2) In light of our disposition of Montibon's first

point of error, we need not reach the issue of whether his

Tachibana colloquy was insufficient as well.
Accordingly, the District Court's November 2, 2017

Judgment is vacated, and this case is remanded to the District

Court for further proceedings.

DATED: Honolulu, Hawai#i, July 26, 2024.

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

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