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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

MICKEY A. MADDOX,

Petitioner/Petitioner-Appellant,

vs.

STATE OF HAWAII,

Respondent/Respondent-Appellee.

SCWC-14-0001108

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-14-0001108; CAAP-14-0001109;

SPECIAL PROCEEDING PRISONER NO. 13-1-0004

(CRIMINAL NOS. 07-1-0139 and 09-1-0284))

DECEMBER 14, 2017

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

A defendant’s constitutional right to effective 

assistance of counsel requires a defense attorney to proceed 

with competence and diligence throughout the proceedings of a 

case. This case presents the question of whether a postElectronically Filed

Supreme Court

SCWC-14-0001108

14-DEC-2017

08:44 AM
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conviction petition raises colorable claims for relief when the 

petitioner alleges that his stated desire to appeal the order 

dismissing his case without prejudice was not effectuated by his 

trial counsel and further alleges that his counsel wholly 

abandoned him following the court’s oral ruling of dismissal. 

Under the circumstances of this case, we hold that the 

petitioner has raised colorable claims for post-conviction 

relief based upon grounds of ineffective assistance of counsel 

and abandonment of representation by defense counsel.

I. PROCEDURAL HISTORY

A. Circuit Court Proceedings in the 2007 Case

On March 19, 2007, the State filed an indictment 

charging Mickey A. Maddox with attempted escape in the second 

degree and promoting prison contraband in the first degree (2007 

case). Maddox was arraigned several months later on July 31, 

2007 in the Circuit Court of the Second Circuit (circuit court), 

and he entered a plea of not guilty to both charges. The trial 

was delayed almost two years due to multiple motions to continue 

trial and motions to withdraw and substitute counsel. During 

much of this time, Maddox waived his rights to a speedy trial 

under the state and federal constitutions and Hawaii Rules of 
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Penal Procedure (HRPP) Rule 48.1 On December 23, 2008, the 

circuit court granted Maddox’s motion to substitute defense 

counsel, issuing an order that appointed “legal counsel for the 

Defendant at all stages of proceedings, including appeal, if 

any,” pursuant to Hawaii Revised Statutes (HRS) § 802-5(a) 

(2010).2 On April 8, 2009, Maddox’s counsel (hereafter “trial 

counsel”) filed a motion to dismiss the indictment asserting 

violation of Maddox’s right to a speedy trial under the federal 

and state constitutions and HRPP Rule 48.3 A hearing was held on 

the motion to dismiss on May 14-15, 2009.4 The circuit court 

found that after taking into account excluded periods, trial was 

scheduled to commence 200 days after indictment. The court 

 

1 HRPP Rule 48(b) (2000) provides in relevant part as follows:

Except in the case of traffic offenses that are not 

punishable by imprisonment, the court shall, on motion of 

the defendant, dismiss the charge, with or without 

prejudice in its discretion, if trial is not commenced 

within 6 months.

2 HRS § 802-5(a) states in relevant part as follows:

[W]hen it shall appear to a judge that a person requesting 

the appointment of counsel satisfies the requirements of 

this chapter, the judge shall appoint counsel to represent 

the person at all stages of the proceedings, including 

appeal, if any. If conflicting interests exist, or if the 

interests of justice require, the court may appoint private 

counsel[.]

3 The motion to dismiss, although filed by trial counsel, was a 

handwritten document prepared by Maddox. The motion also raised other

grounds not relevant to this appeal. 

4 The Honorable Joseph E. Cardoza presided over the circuit court 

proceedings related to the 2007 case.
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concluded that this delay violated HRPP Rule 48, and after 

applying the factors set forth in State v. Estencion, 63 Hawaii

264, 269, 625 P.2d 1040, 1044 (1981),5 the court orally ruled 

that the indictment should be dismissed without prejudice. 

On May 29, 2009, two weeks after the 2007 case’s oral 

dismissal, Maddox was re-indicted on charges identical to those

that had been dismissed (2009 case). That same day, Maddox 

filed a pro-se “Second Notice of Appeal” of the 2007 case,

6 along 

with a “Motion for New Counsel” and a “Motion for Assistance of 

Counsel on Appeal.” In the motions, Maddox informed the circuit 

court that he intended to appeal the order dismissing the 2007 

case without prejudice and asked for new counsel because he was 

claiming ineffective assistance of counsel against his trial 

counsel in the 2007 case. Maddox subsequently withdrew the 

notice of appeal on June 3, 2009, because he had moved to 

dismiss the 2009 case with prejudice the day before. Maddox 

 

5 The court, relying on Estencion, stated “in determining whether 

to dismiss a case with or without prejudice, the court shall consider, among 

others, each of the following factors: the seriousness of the offense, the 

facts and the circumstances of the case that led to the dismissal, and the 

impact of a reprosecution on the administration of HRPP, Rule 48, and the

administration of justice.” 

6 In his “Second Notice of Appeal,” Maddox stated that the “[f]irst 

notice of appeal was given orally at [the] hearing on May 15, 2009 by the 

Defendant-Appellant[.]” A transcript of the May 15, 2009 proceeding was not 

included in the record on appeal, and the electronic record of the transcript 

appears to have been corrupted. 
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explained that his appeal would be moot if the circuit court 

granted his motion. Later, on June 9, 2009, Maddox filed a prose “Third Notice of Appeal,” again informing the court that he 

was appealing the dismissal without prejudice of the 2007 case.

7 

The record does not reflect a motion by trial counsel 

to withdraw, nor does the record indicate that trial counsel 

continued to act as counsel for Maddox after the May 15, 2009 

hearing. Other than trial counsel’s motion for compensation in 

excess of the statutory maximum for court-appointed counsel 

under HRS § 802-5, filed July 15, 2009, all subsequent filings 

pertaining to the 2007 case were handwritten, pro se submissions 

by Maddox.8

On August 25, 2009, the Intermediate Court of Appeals 

(ICA) dismissed Maddox’s appeal of the 2007 case for lack of 

appellate jurisdiction. In its order of dismissal, the ICA 

stated, “[f]or reasons that are not clear, the circuit court has 

not yet entered a written order of dismissal without prejudice.” 

 

7 The record does not show that the circuit court ever ruled on the 

pro se motions for new counsel and assistance of counsel on appeal.

8 In addition to Maddox’s “Motion for New Counsel,” “Motion for 

Assistance of Counsel on Appeal,” and “̔Second’ Notice of Appeal,” filed on 

May 29, 2009, Maddox’s other pro se filings included the following: 

“Temporary Withdrawal of Notice of Appeal”; “(Third) Notice of Appeal”; 

“Motion to Dismiss”; “Addendum to Motion to Dismiss”; “Affidavit in Support 

of Motion to Dismiss”; and “Motion to Release and Discharge from Custody; 

Dismiss With Prejudice.”
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The ICA concluded that even if an order had been entered, it 

would not be appealable under HRS § 641-11 (2010) because no 

sentence had been imposed.

9 On January 7, 2010, almost eight 

months after the 2007 case was orally dismissed, the circuit 

court entered its order dismissing the 2007 case without 

prejudice based on the HRPP Rule 48 violation.10 

B. Circuit Court Proceedings in the 2009 Case

As stated, Maddox was re-indicted in 2009 on the same 

charges dismissed in the 2007 case. The Office of the Public 

Defender, which was initially appointed to represent Maddox in 

the 2009 case, made a motion to withdraw as counsel. At the 

scheduled arraignment on June 4, 2009, the circuit court also 

heard the motion to withdraw as counsel, and the court asked 

Maddox if trial counsel in the 2007 case was still representing 

 

9 HRS § 641-11 provides the following:

Any party aggrieved by the judgment of a circuit court in a 

criminal matter may appeal to the intermediate appellate 

court, subject to chapter 602, in the manner and within the 

time provided by the rules of court. The sentence of the 

court in a criminal case shall be the judgment. All 

appeals shall be filed with the clerk of the supreme court 

and shall be subject to one filing fee.

10 In its January 7, 2010 order dismissing the 2007 case without 

prejudice, the circuit court stated in a footnote that the court had 

instructed the State to prepare an appropriate order at the time of the oral 

ruling on May 15, 2009, but no proposed order was ever submitted despite 

follow-up requests from the court staff. 
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him.11 Maddox replied that he would be claiming ineffective 

assistance of counsel because he had to “put in all [his] own 

motions before,” asserting also that trial counsel had lied to 

him. Subsequently, on June 28, 2010, pursuant to a plea 

agreement with the State, Maddox entered no contest pleas to 

both counts in the 2009 case and to a separate charge of 

terroristic threatening in the second degree. The cases 

referenced in the plea agreement form are the 2009 case and the 

charge of terroristic threatening. The plea agreement and plea 

form did not reference the 2007 case. 

Consistent with the plea agreement, Maddox was 

sentenced on August 27, 2010, to probation for five years in the 

2009 case and one year probation for the terroristic threatening 

offense, terms to be served concurrently. Maddox was later 

arrested for probation violations. At a probation revocation 

hearing on February 19, 2013, Maddox agreed to a second plea 

agreement in the 2009 case, in which he admitted to violating 

the terms and conditions of his probation and entered no contest 

pleas in two other unrelated cases that were pending. Pursuant 

to the second plea agreement, Maddox was sentenced to concurrent 

terms of imprisonment of ten years and five years in the 2009 

 

11 The Honorable Richard T. Bissen, Jr., presided over the 

proceedings related to the 2009 case.
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case and concurrent one-year prison terms for the unrelated 

offenses. 

C. Rule 40 Petition

On April 26, 2013, Maddox filed a Petition for PostConviction Relief pursuant to HRPP Rule 40 (Petition) in which 

he set forth thirteen grounds for relief.12 In the Petition, 

Maddox asserts, inter alia, that he was denied effective counsel 

on appeal in the 2007 case and that his trial attorney had 

“abandoned all representation of his client and left him without 

any representation,” despite Maddox being ordered to remain in 

custody. In particular, Maddox states that he gave oral notice 

of appeal following the circuit court’s oral dismissal of the 

2007 case on May 15, 2009.13 Maddox also asserts in his Petition 

that after the hearing but while still in court, his trial 

counsel told him that “he could not represent [him] on appeal[], 

nor could he represent him in any manner since the case had been 

dismissed and his representation terminated at that time.” 

On August 21, 2014, the circuit court entered its 

order denying the Petition without a hearing (Order Denying 

 

12 Maddox’s Petition references, in its caption and content, both 

the 2007 and 2009 cases.

13 As stated, the record contains no hearing transcript for May 15, 

2009. See supra note 6.
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Petition). The court concluded that the grounds for relief were 

previously ruled upon in the 2009 case, and that the substance 

of the issues were also raised by Maddox prior to his entering 

into a plea agreement with the prosecution in the 2009 case. 

The court further found that “[a]lthough several attorneys have 

withdrawn as counsel for Petitioner in [the 2007 and 2009 

cases], Petitioner has been represented by counsel throughout 

the proceedings in said cases.” Because there was still a 

hearing pending in the 2009 case related to a motion for 

reconsideration of sentencing regarding credit for time served, 

the circuit court denied the Petition without prejudice. 

D. Appellate Proceedings

On September 8, 2014, Maddox filed a notice of appeal 

from the circuit court’s denial of the Petition, asserting

thirteen questions on appeal and seventeen statements of error.14 

On March 31, 2016, the ICA entered its Summary Disposition Order

in which it affirmed the circuit court’s Order Denying 

Petition.15 The ICA in its ruling did not address Maddox’s 

claims individually, stating that upon “a thorough review of the 

 

14 In its Summary Disposition Order affirming the circuit court’s 

denial of Maddox’s Petition, the Intermediate Court of Appeals rephrased 

Maddox’s thirteen “Questions on Appeal” and seventeen “Statements of Error” 

in a combined and renumbered list of thirty points of error. 

15 The ICA’s Summary Disposition Order can be found at Maddox v. 

State, No. CAAP–14–0001108, 2016 WL 1600699 (Haw. App. Mar. 31, 2016).
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record, which include[d] the records in [the 2007 case] and [the 

2009 case],” post-conviction relief was not available to Maddox 

because all the claims for relief raised by Maddox in his 

Petition “have been previously ruled upon or have been waived.” 

Maddox filed a pro se application for a writ of 

certiorari setting forth fourteen questions for review. Maddox 

asserts that he was “wrongfully denied initial appeal” in the 

2007 case, and that he was denied his right to counsel on appeal

as he was abandoned by trial counsel.16 These claims for relief

are encompassed by ground G of Maddox’s Petition, which asserts 

that trial counsel “failed in his duty of representing his 

client” and “abandoned all representation of his client and left

him without any representation.”

17 We address the asserted 

 

16 The other thirteen questions presented by Maddox on certiorari 

are addressed infra, note 34.

17 Among the points of error identified by the ICA that Maddox 

raised in his appeal were the following:

(2) Maddox was entitled to assistance of counsel on his 

appeal in [the 2007 case];

(3) the circuit court committed structural error in not 

providing Maddox with assistance of counsel on his appeal 

in [the 2007 case];

(7) Maddox’s attorney was ineffective;

(12) Maddox was entitled to assistance of counsel until 

the termination of [the 2007 case];

(21) Maddox’s counsel was ineffective, committed illegal 

acts and lied to Maddox in violation of the Sixth Amendment 

(continued . . .)
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claims as follows: (1) Maddox did not receive effective 

assistance of counsel following the court’s oral dismissal 

without prejudice of the 2007 case; and (2) Maddox was abandoned 

by trial counsel prior to the termination of the 2007 case.

II. STANDARD OF REVIEW

Whether the “trial court erred in denying a Rule 40 

petition without a hearing based on no showing of a colorable 

claim is reviewed de novo; thus, the right/wrong standard of 

review is applicable.” Dan v. State, 76 Hawaiʻi 423, 427, 879 

P.2d 528, 532 (1994) (holding that to determine whether a Rule 

40 petition raises a colorable claim, “the appellate court steps 

into the trial court’s position, reviews the same trial record, 

and redecides the issue”).

III. DISCUSSION

HRPP Rule 40(f) (2006) provides that a court must 

grant an evidentiary hearing on a petition for post-conviction 

relief if a petitioner “alleges facts that if proven would 

entitle the petitioner to relief.” Thus, in reviewing on appeal 

the denial of a Rule 40 petition without a hearing, the question

is whether the record indicates that the petitioner made “a 

 

(. . . continued)

of the United States Constitution and Article I, section 14 

of the Hawaii Constitution[.]
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showing of a colorable claim as to require a hearing before the 

lower court.” Dan v. State, 76 Hawaii 423, 427, 879 P.2d 528, 

532 (1994).

Accordingly, we evaluate Maddox’s claims to determine 

whether they present a colorable claim for post-conviction 

relief such that a Rule 40 hearing was required. We first 

address Maddox’s contention that he did not receive effective 

assistance of counsel with regard to the appeal of the 2007 

case. Next, we consider Maddox’s claim that he was entitled to 

assistance of counsel until his case was terminated.

A. Ineffective Assistance of Counsel on Appeal

Article I, section 14 of the Hawaii Constitution 

guarantees a defendant in a criminal prosecution the right “to 

have the assistance of counsel for the accused’s defense.” Haw. 

Const. art. I, § 14. This court regards a defendant’s 

constitutional right to the assistance of counsel as a 

“fundamental component” of our criminal justice system. State 

v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 499 (1986). It is 

well settled that “[t]he constitutional right to the assistance 

of counsel in a criminal case is satisfied only when such

assistance is ‘effective.’” State v. Kahalewai, 54 Haw. 28, 30, 

501 P.2d 977, 979 (1972); accord State v. Tetu, 139 Hawaii 207, 
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215, 386 P.3d 844, 852 (2016); State v. Pacheco, 96 Hawaii 83, 

93, 26 P.3d 572, 582 (2001).

This court set forth the standard by which we evaluate 

claims of ineffective assistance of counsel under the Hawaii

Constitution in State v. Antone, 62 Haw. 346, 348-49, 615 P.2d 

101, 104 (1980). “General claims of ineffectiveness are 

insufficient” to establish that the assistance a defendant 

received was constitutionally ineffective. Dan, 76 Hawaii at

427, 879 P.2d at 532 (quoting Briones v. State, 74 Haw. 442, 

462-63, 848 P.2d 966, 976 (1993)). Rather, a defendant must 

show: (1) “specific errors or omissions of defense counsel 

reflecting counsel’s lack of skill, judgment[,] or diligence”; 

and that (2) “those errors or omissions resulted in the 

withdrawal or substantial impairment of a potentially 

meritorious defense.” Antone, 62 Haw. at 348-49, 615 P.2d at

104 (internal citations omitted). Thus, to be entitled to a 

Rule 40 hearing on the basis of ineffective assistance of 

counsel, Maddox must first allege facts identifying a specific 

error or wrongful omission made by his counsel.

Maddox asserts that, notwithstanding his repeated 

communications to trial counsel regarding his desire to appeal, 

trial counsel informed Maddox at the May 14-15 hearing that 

counsel’s representation of Maddox terminated when the court 
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orally dismissed the 2007 case without prejudice. However, our 

statutes, precedents, and court rules, as well as widely 

accepted legal standards, all make clear that trial counsel had 

an ongoing obligation to Maddox that included pursuing an appeal 

if Maddox chose this course.

Hawaii statutorily guarantees every defendant in a 

criminal case aggrieved by a circuit court judgment or final 

order the right to appeal. HRS § 641–11 (2016); State v. Nicol, 

140 Hawaii 482, 491, 403 P.3d 259, 266 (2017). When such an 

appeal of right exists, the equal protection and due process 

clauses of the Hawaii and United States Constitutions grant the 

defendant a right to effective counsel during the appeal. 

Briones, 74 Haw. at 460, 848 P.2d at 975; Douglas v. California, 

372 U.S. 353 (1963). This ongoing right to counsel is reflected 

in Hawaii statutory law, which is unambiguous regarding the 

extent of a court-appointed counsel’s responsibility to an 

indigent client:
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[W]hen it shall appear to a judge that a person requesting 

the appointment of counsel satisfies the requirements of 

this chapter, the judge shall appoint counsel to represent 

the person at all stages of the proceedings, including 

appeal, if any. If conflicting interests exist, or if the 

interests of justice require, the court may appoint private 

counsel[.]

HRS § 802-5(a) (2010) (emphasis added).18

The right to counsel on appeal encompasses not only 

the appeal itself, but also the procedural steps necessary to 

bring about the appeal. “An indigent criminal defendant is 

entitled, on his first appeal, to court-appointed counsel who 

may not deprive him of his appeal by electing to forego 

compliance with procedural rules.” State v. Erwin, 57 Haw. 268, 

270, 554 P.2d 236, 238 (1976) (emphasis added) (citing 

Entsminger v. Iowa, 386 U.S. 748 (1966)). “It has been said

that failure by appointed counsel to ‘commence the simple steps 

for appeal is a blatant denial of due process.’” Id. (quoting 

Blanchard v. Brewer, 429 F.2d 89, 90 (8th Cir. 1970)).

HRS § 802-5(a) therefore imposes a duty on courtappointed counsel to consult with a defendant following a final

order or judgment to determine whether the defendant wishes to 

appeal, as well as a duty to diligently fulfill the procedural 

requirements of appeal if the defendant elects to appeal. These

 

18 The circuit court’s order appointing trial counsel to represent 

Maddox in the 2007 case was equally clear as to the extent of trial counsel’s 

responsibility to Maddox: “IT IS FURTHER ORDERED that [trial counsel] is 

appointed legal counsel for the Defendant at all stages of proceedings, 

including appeal, if any.” (Emphasis added.) 
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principles are also reflected in the American Bar Association 

(ABA) Standards, which we have often looked to for “guidance” 

regarding the duties of officers of the court, including for 

“determining which decisions must be made by the defendant and 

which decisions are the province of counsel.” State v. Richie, 

88 Hawaiʻi 19, 39, 960 P.2d 1227, 1247 (1998).

19 The ABA 

Standards state that 

defense counsel should explain to the defendant the meaning 

and consequences of the court’s judgment and defendant’s 

right of appeal. Defense counsel should give the defendant 

his or her professional judgment as to whether there are 

meritorious grounds for appeal and as to the probable 

results of an appeal. Defense counsel should also explain 

to the defendant the advantages and disadvantages of an 

appeal. 

ABA Standards for Criminal Justice: Prosecution and Defense 

Function, Standard 4-8.2(a) (3d ed. 1993) [hereinafter ABA 

Defense Function Standards]. The duty of defense counsel in a 

criminal case to explain to the defendant the meaning and 

consequences of the court’s judgment and the client’s right to 

 

19 See also, e.g., State v. Kim, 140 Hawaii 421, 431-32, 402 P.3d 

497, 507-08 (2017) (citing ABA Standards for Criminal Justice: Special 

Functions of the Trial Judge (3d ed. 2000) in providing guidance regarding a 

trial judge’s responsibility to safeguard the rights of the accused); Tetu, 

139 Hawaiʻi at 215, 386 P.3d at 852 (referencing ABA Criminal Justice

Standards for the Defense Function (4th ed. 2015) as part of this court’s 

analysis that a defendant’s right to access a crime scene inheres within the 

constitutional right to effective assistance of counsel); State v. Rogan, 91 

Hawaii 405, 412, 984 P.2d 1231, 1238 (1999) (quoting ABA Standards for 

Criminal Justice: Prosecution and Defense Function (3d ed. 1993) to support 

the proposition that “[t]he duty of the prosecutor is to seek justice, not 

merely to convict” (alteration in original)).
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appeal, as set forth in the ABA Standards, applies equally to 

appointed or retained counsel.

The ABA Defense Function Standards further clarify 

that “[t]he decision whether to appeal must be the defendant’s 

own choice”--and not that of counsel. Id.; see also ABA Defense 

Function Standards, Standard 4-5.2(v) (listing “whether to 

appeal” among the decisions that are to be made “by the accused

after full consultation with counsel”). Defense counsel should 

take “whatever steps are necessary” to protect the client’s 

right to appeal, even “if the client decides to proceed with the 

appeal against the advice of counsel.” ABA Defense Function 

Standards, Standards 4-8.2(b), 4-8.3(c). Counsel should be 

“diligent in perfecting appeals and expediting their prompt 

submission” to the appropriate appellate court. ABA Defense 

Function Standards, Standard 4-8.4(a). 

The Fourth Edition of the ABA Criminal Justice 

Standards for the Defense Function, released since the circuit 

court proceedings in the 2007 case, reaffirms the responsibility 

of defense counsel in a criminal case to consult with a client 

regarding an appeal and to undertake the procedural steps to 

effectuate the appeal upon the client’s request. See ABA 

Criminal Justice Standards for the Defense Function, Standard 4-
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9.1 (4th ed. 2015).20 We now specifically adopt these

requirements as a component of effective assistance of counsel 

under article I, section 14 and due process under article I, 

section 5 of the Hawaii Constitution.

In addition, appointed counsel has a duty to pursue an 

appeal if a defendant in a criminal case so chooses even when 

counsel believes the appeal is wholly frivolous. In In re 

Attorney’s Fees of Mohr, 97 Hawaii 1, 32 P.3d 647 (2001), this 

court overruled Carvalho v. State, 81 Hawaii 185, 192, 914 P.2d 

1378, 1385 (App. 1996), in which the ICA had intimated that 

appointed counsel could avoid prosecuting a meritless appeal by 

filing so-called “Anders briefs.”21 We rejected the practice, 

instead enunciating the “better policy” of “requir[ing] counsel 

to remain an advocate for the client.” Mohr, 97 Hawaii at 7, 32 

P.3d at 653.

 

20 We note that, although both versions of the ABA Standards 

reference court judgments, the Standards would apply with equal force to 

final orders, which are appealable under our precedent. See Nicol, 140 

Hawaii at 491, 403 P.3d at 266.

21 In Anders v. California, the United States Supreme Court held 

that jurisdictions may permit appointed counsel to request permission to 

withdraw when he or she finds an appeal to be “wholly frivolous.” 386 U.S. 

738, 744 (1967). Such a request must be accompanied by “a brief referring to 

anything in the record that might arguably support the appeal,” leaving it to 

the court, rather than counsel, to determine if a case is “wholly frivolous.” 

Id. In jurisdictions that permit this practice, such briefs are frequently 

referred to as “Anders briefs.”
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Lastly, it is noted that a defense attorney, “in 

common with all members of the bar, is subject to standards of 

conduct stated in statutes, rules, decisions of courts, and 

codes, canons or other standards of professional conduct.” ABA 

Defense Function Standards, Standard 4-1.2(e).22 In keeping with 

that directive, trial counsel in this case was subject to the 

Hawaii Rules of Professional Conduct (HRPC),23 which state that 

“[a] lawyer should pursue a matter on behalf of a client despite 

opposition, obstruction, or personal inconvenience to the 

lawyer[.]” HRPC Rule 1.3 cmt. [1]. 

Given that the clear weight of authority supports an 

obligation on the part of defense counsel to take the procedural 

steps necessary to pursue an appeal when requested by the

defendant, a failure by Maddox’s trial counsel to do so would 

amount to an “omission[] of defense counsel reflecting counsel’s 

lack of skill, judgment[,] or diligence.”24 Antone, 62 Haw. at 

 

22 See also ABA Criminal Justice Standards for the Defense Function, 

Standard 4-1.1(b) (4th ed. 2015) (“[A] lawyer should always read and comply 

with the rules of professional conduct and other authorities that are binding 

in the specific jurisdiction.”).

23 An order amending and reissuing the HRPC was adopted and 

promulgated by this court in 2013, becoming effective on January 1, 2014. 

All portions of the HRPC cited herein remain substantively the same as the 

versions in effect during the circuit court proceedings in the 2007 case.

24 Although defense counsel must consult with the client and ensure 

steps are taken to preserve the client’s right to appeal, we do not suggest 

that counsel at trial is required to continue representation as appellate 

counsel. See ABA Criminal Justice Standards for the Defense Function, 

(continued . . .)
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348-49, 615 P.2d at 104. However, to be entitled to a Rule 40 

hearing on the basis of ineffective assistance of counsel, 

Maddox must also allege facts demonstrating that the omission 

“resulted in either the withdrawal or substantial impairment of 

a potentially meritorious defense.” Id.

When evaluating whether defense counsel’s omission 

deprived a defendant of a potentially meritorious defense, we 

consider “the possible, rather than the probable, effect” of the 

error. Wilton v. State, 116 Hawaii 106, 119, 170 P.3d 357, 370 

(2007) (quoting Briones, 74 Haw. at 464, 848 P.2d at 977). 

“Accordingly, no showing of actual prejudice is required to 

prove ineffective assistance of counsel.” Id. (internal 

quotation marks omitted). We therefore do not inquire into 

whether Maddox’s appeal would succeed on the merits, but instead 

we address whether trial counsel’s failure to fulfill the steps 

necessary to pursue an appeal possibly impaired Maddox’s 

defense.

Notwithstanding trial counsel’s failure to provide 

assistance, Maddox filed his own handwritten notice of appeal 

following the circuit court’s oral dismissal of the 2007 case 

 

(. . . continued)

Standard 4-9.1(d) (4th ed. 2015). However, formal withdrawal procedures are 

required to be undertaken in penal proceedings to obtain the approval of the 

court. See HRPP Rule 57 (2000).
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without prejudice. The ICA on August 25, 2009, dismissed 

Maddox’s notice of appeal in part because no order dismissing 

the 2007 case without prejudice was entered by the circuit court 

prior to or during the pendency of the appeal.25 The order was 

not filed until January 7, 2010--nearly eight months after the 

court’s oral dismissal.

26 Hawaii Rules of Appellate Procedure 

(HRAP) require the filing of a notice of appeal “within 30 days 

after entry of the judgment or order appealed from.” HRAP Rule 

4(b)(1) (2015). Thus, a notice of appeal from the order 

dismissing the 2007 case would have been duly filed after the 

entry of the order on January 7, 2010. Yet no new notice of 

appeal was filed in the 2007 case following the filing of the 

circuit court’s order.

With the assistance of counsel, Maddox might have been 

able to urge the circuit court to issue an appealable order more 

expeditiously, or at minimum, timely file a notice of appeal 

 

25 It is noted that the ICA’s alternative holding--that it lacked 

appellate jurisdiction over the appeal because a circuit court dismissal 

without prejudice of criminal charges lacks a sentence--was incorrect. This 

court recently held in Nicol that under HRS § 641-11, a defendant may appeal 

from an order of the circuit court dismissing proceedings without prejudice. 

140 Hawaii at 491, 403 P.3d at 266. We determined in Nicol that the 

legislative history of § 641-11 and our jurisdiction’s caselaw indicate that 

the finality of the circuit court’s decision, rather than simply whether a 

“sentence” was rendered, is the determinative factor in whether jurisdiction 

exists over the appeal. Id.

26 As explained supra, note 10, the circuit court’s order stated 

that the court made follow-up requests to the State for the submission of 

proposed findings of fact, conclusions of law, and order. Apparently, when 

none were forthcoming, the court entered its own. 
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following the entry of the order dismissing the 2007 case. The

failure to fulfill procedural requirements resulted in the loss

of Maddox’s right to appeal the circuit court’s order. If the 

facts are as Maddox alleges, this forfeiture can be attributed 

to trial counsel’s wrongful refusal or omission to undertake the 

steps to initiate an appeal.

Although we have long held that courts may permit an 

untimely appeal when “defense counsel has inexcusably or 

ineffectively failed to pursue a defendant’s appeal from a 

criminal conviction,” State v. Knight, 80 Hawaii 318, 323, 909 

P.2d 1133, 1138 (1996), this court has not before addressed the 

complete denial of a criminal appeal as it relates to an 

ineffective assistance of counsel claim under the Antone

framework. Cf. In re RGB, 123 Hawaii 1, 54, 229 P.3d 1066, 1119 

(2010) (Acoba, J., dissenting) (arguing that counsel’s wrongful 

omission that resulted in forfeiture of appeal in a civil case 

involving termination of parental rights warranted post-judgment 

relief under Antone). However, this court has definitively 

stated that “failure by appointed counsel ‘to commence the 

simple steps for appeal is a blatant denial of due process.’”

Erwin, 57 Haw. at 270, 554 P.2d at 238 (quoting Blanchard, 429 

F.2d at 90). A primary reason that a defendant is guaranteed 

effective assistance of counsel is to ensure that the defendant 
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is not denied due process. Tetu, 139 Hawaii at 219, 386 P.3d at

856 (“The Constitution guarantees a fair trial through the Due 

Process Clauses, but it defines the basic elements of a fair 

trial largely through the several provisions of the [s]ixth 

[a]mendment, including the [c]ounsel [c]lause.”). Consequently, 

we hold that when a defendant is denied an appeal because of a 

failure or omission of defense counsel, a defendant need not 

demonstrate any additional possibility of impairment to 

establish that counsel was ineffective under article I, sections 

5 and 14 of the Hawaii Constitution.

Maddox has thus alleged facts demonstrating a wrongful 

omission by trial counsel that resulted in the substantial 

impairment of a potentially meritorious defense, which would 

establish that his trial counsel provided ineffective assistance 

under the Hawaii Constitution.

27 Because these facts, if true, 

would entitle Maddox to pursue an appeal of the order dismissing 

the 2007 case without prejudice, he has raised a colorable claim 

for post-conviction relief and is entitled to an evidentiary 

 

27 Because we find that Maddox has alleged facts establishing a 

colorable claim for ineffective assistance of counsel under the Hawaii 

Constitution, we do not address whether the facts would also give rise to a 

federal ineffective assistance of counsel claim. We note, however, that the 

United States Supreme Court has held that the failure of counsel to institute 

an appeal when so instructed or to consult with a defendant who has indicated 

interest in appealing amounts to “professionally unreasonable” behavior. Roe 

v. Flores-Ortega, 528 U.S. 470, 477, 480 (2000).
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hearing on ground G of his Petition as it relates to his 

ineffective assistance claim.

B. Abandonment by Defense Counsel

Maddox also contends that he was entitled to 

assistance of counsel until the termination of the 2007 case. 

The United States Supreme Court has recognized an “essential 

difference between a claim of attorney error, however egregious, 

and a claim that an attorney had essentially abandoned his 

client.” Maples v. Thomas, 565 U.S. 266, 282 (2012) (internal 

citations omitted). Federal courts consider a trial “unfair if 

the accused is denied counsel at a critical stage of his trial,” 

and “[n]o specific showing of prejudice [is] required” to 

establish a constitutional defect. United States v. Cronic, 466 

U.S. 648, 659 (1984). The Maples Court thus characterized an 

attorney’s abandonment of a client as an “extraordinary 

circumstance beyond [the client’s] control” that potentially 

entitles the client to post-conviction relief. 565 U.S. at 282-

83. Courts of last resort in other jurisdictions have likewise

addressed the issue of abandonment by counsel under varying 

circumstances, consistently regarding it as grounds for relief. 

See, e.g., Commonwealth v. Bennett, 593 Pa. 382, 399, (2007) 

(characterizing abandonment by counsel as a dereliction of 

“minimum norms” of counsel’s performance and the “functional 

equivalent of having no counsel at all,” entitling a petitioner 
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to remand for hearing of post-conviction relief claims); Amco 

Builders & Developers, Inc. v. Team Ace Joint Venture, 469 Mich. 

90, 96 (2003) (holding abandonment by counsel in a civil action 

to be sufficient ground for setting aside a default or default 

judgment); In re Sanders, 21 Cal. 4th 697, 708-09 (1999) 

(considering abandonment by counsel as good cause for delayed 

presentation of habeas corpus claims and equating abandonment by 

counsel with a complete lack of representation); People v. 

Berger, 9 N.Y.2d 692, 693 (1961) (reversing Appellate Division’s 

denial of coram nobis petition and remitting for trial of 

petitioner’s allegation of abandonment by counsel).

Under Hawaii law, withdrawal of counsel in penal 

proceedings is governed by HRPP Rule 57, which states as 

follows:

Withdrawal of counsel shall require the approval of the 

court and shall be subject to Rule 1.16 of the Hawaii Rules 

of Professional Conduct. Where the defendant is or may be 

indigent, substitution of counsel shall comply with the 

procedure established in Hawaii Revised Statutes, chapter 

802. Unless otherwise ordered, withdrawal of counsel shall 

not become effective until substitute counsel appears or is 

appointed, the defendant appears pro se or the defendant is 

deemed to have waived counsel.

HRPP Rule 57 (2000). Unless the attorney-client relationship is 

terminated by permission of the tribunal pursuant to this rule, 

the attorney is obligated to “carry through to conclusion all 

matters undertaken by the client,” the relationship terminating 

only when the matter has been resolved. HRPC Rule 1.3 cmt. [4]; 
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HRPC Rule 1.16(c).28 And even when the relationship is 

terminated by a court’s grant of a motion to withdraw, an 

attorney is expected to take steps to protect the client’s 

interests, such as giving reasonable notice to the client and 

allowing time for employment of other counsel. HRPC Rule 

1.16(d).29

Although our jurisdiction’s test for ineffective 

assistance of counsel is well settled, this court has not 

directly addressed the issue of abandonment by counsel. We now 

hold that, when appointed counsel wholly abandons professional 

duties to his or her client for the substantial duration of a 

critical stage of the proceeding without timely following the 

procedural steps to properly withdraw from representation, 

prejudice is presumed because it is “functional[ly] equivalent 

[to] having no counsel at all.” Bennett, 593 Pa. at 399. 

 

28 HRPC Rule 1.16(c) states in full, “A lawyer must comply with 

applicable law requiring notice to or permission of a tribunal when 

terminating a representation. When ordered to do so by a tribunal, a lawyer 

shall continue representation notwithstanding good cause for terminating the 

representation.”

29 HRPC Rule 1.16(d) states as follows:

Upon termination of representation, a lawyer shall take 

steps to the extent reasonably practicable to protect a 

client’s interests, such as giving reasonable notice to the 

client, allowing time for employment of other counsel, 

surrendering papers and property to which the client is 

entitled and refunding any advance payment of fee or 

expense that has not been earned or incurred.
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As discussed, we have held that the “failure by 

appointed counsel ‘to commence the simple steps for appeal is a 

blatant denial of due process.’” State v. Erwin, 57 Haw. 268,

269, 554 P.2d 236, 238 (1976) (quoting Blanchard v. Brewer, 429 

F.2d 89, 90 (8th Cir. 1970)). It logically follows that the 

steps to effectuate an appeal constitute a critical stage in the 

proceeding during which a defendant is entitled to counsel. An 

appointed counsel’s wrongful abandonment of professional duties

to a defendant for the substantial duration of this critical 

stage would therefore give rise to a presumption of prejudice.

Here, there is nothing in the record to indicate that 

trial counsel filed a motion to withdraw as counsel pursuant to 

HRPP Rule 57 following the oral dismissal without prejudice of 

the 2007 case. And, as noted above, all defense filings 

relating to the 2007 case following the court’s oral dismissal 

without prejudice were handwritten, pro se motions, with the 

sole exception of trial counsel’s motion for compensation in 

excess of the statutory maximum as allowed by HRS § 802-5(b).30 

Trial counsel’s alleged statement to Maddox following the May 

14-15, 2009 hearing that trial counsel could not continue to 

represent Maddox on appeal or in any manner also represents a 

 

30 Trial counsel’s motion for additional fees was denied by the 

circuit court. 
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rejection by trial counsel of the obligation to represent Maddox

through “all stages of proceedings, including appeal, if any[,]” 

as mandated by HRS § 802-5(a)31 and the circuit court’s order 

appointing trial counsel.

32

Taken as a whole, these alleged facts indicate that 

trial counsel effectively abandoned Maddox for the substantial 

duration or the entirety of a critical stage in the 2007 case.

We accordingly presume that this abandonment would be 

prejudicial.33 Because these facts, if true, would entitle 

Maddox to proceed with his appeal at this juncture, he has 

 

31 As previously noted, HRS § 802-5(a) provides in relevant part as 

follows: “when it shall appear to a judge that a person requesting the 

appointment of counsel satisfies the requirements of this chapter, the judge 

shall appoint counsel to represent the person at all stages of the 

proceedings, including appeal, if any.” (Emphasis added.) 

32 As discussed supra, note 18, the circuit court’s December 22, 

2008 order stated, “IT IS FURTHER ORDERED that [trial counsel] is appointed 

legal counsel for the Defendant at all stages of proceedings, including 

appeal, if any.” 

Although the circumstances of this case involve appointed 

counsel, to which HRS § 802-5(a) and the order of appointment apply, we note 

that HRPP Rule 57 and HRPC requirements as to terminating representation 

would be equally applicable to retained counsel in penal proceedings.

33 The circuit court’s Order Denying Petition includes the following 

Finding of Fact: “67. Although several attorneys have withdrawn as counsel 

for Petitioner in [the 2007 case] and [the 2009 case], Petitioner has been 

represented by counsel throughout the proceedings in said cases.” The 

circuit court’s belief that Maddox was represented “throughout the 

proceedings” is likely due to the fact that no motion to withdraw as counsel 

was filed by trial counsel following the May 14-15, 2009 hearing. The 

record, however, clearly indicates that Maddox was seeking to pursue 

appellate relief in the 2007 case, but it appears that he did not receive the 

assistance of court-appointed counsel. To the extent that the circuit 

court’s finding is contrary to our holding that Maddox alleged facts that 

would establish a colorable claim of abandonment by counsel, it is clearly 

erroneous. See Dan, 76 Hawaiʻi at 428, 879 P.2d at 533.
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raised a colorable claim for relief and is entitled to an 

evidentiary hearing on ground G of his Petition as it relates to 

his claim of abandonment by defense counsel.

34

IV. CONCLUSION

Maddox’s allegation that trial counsel failed to take 

the procedural steps to file an appeal of the 2007 case set 

forth facts that, if true, establish a colorable claim of 

ineffective assistance of counsel on appeal under article I, 

sections 5 and 14 of the Hawaii Constitution. Maddox has also 

alleged facts that, if true, raise a colorable claim that trial 

counsel abandoned his representation of Maddox for the duration 

 

34 Maddox’s thirteen remaining questions on certiorari, for which 

Maddox provides responses, are either waived or without merit. Question 1 

incorrectly assumes that our standard of review in this case should be abuse 

of discretion. See Dan, 76 Hawaiʻi at 427, 879 P.2d at 532. Question 3 

requests this court to resolve the issue of whether the circuit court erred 

in dismissing the 2007 case without prejudice. However, the propriety of the 

circuit court’s ruling is not properly before this court. Question 4 

incorrectly raises a double jeopardy violation based on disciplinary 

punishment experienced while imprisoned and Maddox’s indictment on the same 

charges in the 2007 and 2009 cases. See State v. Alvey, 67 Hawaiʻi 49, 50, 

678 P.2d 5, 6 (1984) (recognizing that to give collateral estoppel effect to 

prison disciplinary action would “frustrate the objectives of the criminal 

justice system”); HRS § 701-110 (1993). Question 5 erroneously challenges 

Judge Bissen’s authority to rule on a criminal matter while sitting as a 

family court judge. See Adams v. State, 103 Hawaiʻi 214, 223, 81 P.3d 394, 

403 (2003) (affirming the circuit court’s finding that a circuit court judge 

acting as a family court judge retains his or her authority as a circuit 

judge). Questions 6, 10, and 14 pertain to challenges regarding the 2009 

case; however, no appeal was taken from the conviction in that case, nor does 

Maddox provide any reason why these claims could not have been raised, and 

thus they are waived under HRPP Rule 40(a)(3). Question 7 incorrectly posits

that re-prosecution in the 2009 case was barred by HRS § 701-110(4) (2009). 

Questions 8, 9, 11, and 12 pose questions, but they do not involve legal 

claims for relief. Question 13 implies, without merit, that the circuit 

court lacked jurisdiction in the 2007 and 2009 cases. 
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of a critical stage of the 2007 case in violation of statutory 

law and article I, sections 5 and 14 of the Hawaii Constitution.

Because Maddox has presented colorable claims for 

post-conviction relief, he is entitled to a HRPP Rule 40 

evidentiary hearing. Accordingly, the ICA’s Judgment on Appeal

and the circuit court’s Order Denying Petition are vacated, and 

the case is remanded to the circuit court for a HRPP Rule 40 

evidentiary hearing on ground G of the Petition.

Mickey A. Maddox

pro se

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson