When you’re ineffective in perfecting the appeal, there is still judicial review

 Suitt v. State (HSC November 22, 2022)

Background. Bryan Suitt pleaded no contest to murder in the second degree and was sentenced to life in prison with the possibility of parole. The Hawai'i Paroling Authority set his minimum term at 45 years. He did not appeal the conviction. He filed a petition to set aside the conviction pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 and updated it three times for a total of 45 claims, including a claim of ineffective assistance of counsel and due process violations at the HPA minimum term hearing.

 

The circuit court, with the Hon. Judge Karen T. Nakasone presiding, found most of the claims patently frivolous and dismissed them without a hearing. It did set an evidentiary hearing on the claims relating to the HPA and appointed counsel.

 

On April 13, 2020, the circuit court amended its order to address more claims added by Suitt. It denied the new claims and in a footnote stated that if the HPA held a new minimum term hearing, its remaining claims set for hearing would be moot. Suitt’s lawyer told Suitt that the circuit court denied all of the claims except for the ones about the minimum term hearing and that if he wanted to appeal, he could. Suitt did and asked his lawyer to appeal “any and all grounds the court denied.”

 

Suitt’s attorney filed a notice of appeal from the April 13 order that day. The conversation with Suitt was later memorialized in a letter. In the meantime, the HPA scheduled a new minimum term hearing and mooted the claims. The circuit court issued a new order on May 20, 2020 and dismissed the petition. Suitt did not appeal from the May 20, 2020 order.

 

Suitt’s lawyer did not file briefs in the April 13, 2020 order or ask for an extension. The ICA warned that the failure to timely file briefs could result in dismissal of the appeal. Suitt filed a motion for temporary remand so he could withdraw as counsel and sought an extension of time. The ICA granted the motion, remanded the case back to the circuit court, and a new lawyer was appointed.

 

The ICA dismissed the appeal for lack of appellate jurisdiction on the grounds that the April 13, 2020 order was not a final order. Suitt petitioned certiorari from the dismissal order.

 

The first order was not the final one . . . Defendants may appeal from judgments in post-conviction proceedings. HRPP Rule 40(h). An appeal must comply with the Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(b), which requires a final order or judgment. State v. Baranco, 77 Hawai'i 351, 353, 884 P.2d 729, 731 (1994); State v. Nicol, 140 Hawai'i 482, 489, 403 P.3d 259, 266 (2017).

 

An order is a final order when it ends “the proceedings, leaving nothing further to be accomplished.” Familian Northwest, Inc. v. Cent. Pac. Boilder & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936, 937 (1986); State v. Kalani, 87 Hawai'i 260, 261, 953 P.2d 1358, 1359 (1998). The order cannot be considered final when “the matter is retained for further action.” Familian Northwest, 68 Haw. at 370, 714 P.2d at 937.

 

The HSC agreed with the ICA that the April 13, 2020 order was not a final order because it did not end the proceedings. An evidentiary hearing was still scheduled on some of Suitt’s grounds for relief. The May 20, 2020 order dismissing the remaining claims was the final one that full resolved his claims.

 

And the HRAP 4(b)(4) exception did not apply . . . An exception to the final order rule arises when a notice of appeal is premature. That happens with the notice of appeal is “filed after the announcement of a decision, sentence or order but before entry of the judgment or order[.]” HRAP Rule 4(b)(4). When that happens, the notice of appeal is deemed timely filed. The classic example occurs when the judge on the bench gives its oral order and an notice of appeal is entered before the written order is issued. See, e.g., Shimabuku v. Montgomery Elevator Co., 79 Hawai'i 352, 356, 903 P.2d 48, 52 (1995). The HSC explained this exception is designed to prevent “technicality from displacing substance.” Once the final order is “clearly communicated by the court, parties should not be penalized for appealing before that order is formally entered.”

 

Despite the big hint to the HPA in the footnote, that is not what happened in the April 13, order. Just because the HPA could have mooted the remaining claims by setting a hearing, it did not have to do it. The HRAP 4(b)(4) exception does not apply and so the order was not final.

 

. . . but there’s still appellate jurisdiction. While the HSC did agree that the April 13, 2020 order was not a final one, it did find a different exception conferring appellate jurisdiction. Untimely appeals may be heard when counsel has acted inexcusably or was ineffective in perfecting the appeal. Grattafiori v. State, 79 Hawai'i 10, 14, 897 P.2d 937, 941 (1995). This is because the right to counsel—once conferred by statute on appeal—is a constitutional one. Maddox v. State, 141 Hawai'i 196, 203, 407 P.3d 152, 159 (2017). It means that counsel has the “duty to diligently fulfill the procedural requirements of appeal if the defendant elects to appeal.” Id. When counsel’s failings deprive the defendant of appellate review, the defendant “need not demonstrate any additional possibility of impairment to establish that counsel was ineffective.” Id. at 206, 407 P.3d at 162.

 

Here, Suitt made it clear to his lawyer that he wanted to appeal the dismissal of all of his Rule 40 claims. He told his lawyer over the phone and then put it in writing in a letter. The HSC held that Suitt’s lawyer failed to perfect his appeal by appealing from the wrong order. That should not prevent Suitt from getting judicial review of the dismissal of his claims. And so the ICA vacated the dismissal order and sent it back to the ICA to address the merits of the appeal.