Professional Documents
Culture Documents
Electronically Filed
Supreme Court
SCWC-15-0000111
09-DEC-2020
08:00 AM
Dkt. 18 OP
---o0o---
vs.
STATE OF HAWAIʻI,
Respondent/Respondent-Appellee/Cross-Appellant.
SCWC-15-0000111
DECEMBER 9, 2020
I. INTRODUCTION
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State v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020), a criminal
II. BACKGROUND
years in prison. 2
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Villados, No. 30442 (App. Nov. 28, 2011). The ICA issued its
informed him that she would not do so, however, because after
reading the ICA’s ruling, she could not find any basis to apply
59(b) (Supp. 2011). 4 She said, “[A]t this time, I do not see
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also told him she would “review the ICA decision again” before
told Villados that, in effect, she changed her mind and had
she found “at least one point in the ICA’s opinion that bothers
[her],” and she “hope[d] to file” his application “by the end of
[him]” at the prison but had to leave a message with a woman who
had not yet called her back. She told Villados that she would
“keep trying” to call him and that he should try calling her,
meetings or in court.
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informed Villados that she had not applied for certiorari review
and that the deadline for doing so had passed. She stated that
decided, after reviewing the SDO once again, that she “could not
filed, I have not filed one and will not be filing one.”
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[circuit court]” and that she would “see that [his] files are
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stated as follows:
“fall[] squarely under the reasoning of” our cases that had
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B. Rule 40 Proceedings
1. Circuit Court Proceedings
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that appellate counsel fully briefed the issues before the ICA,
writ of certiorari.
Villados. She stated that she did not file an application for
ICA’s SDO, she determined that she “did not see grave errors of
law or fact” that would “meet the criteria” under the statute.
she did not seek an extension of the filing deadline after the
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sending Villados the January 20, 2012 letter indicating that she
would file the application, she tried to call Villados “on the
21st or 22nd” to inform him that she in fact would not file an
out she did not follow the usual procedure for arranging a call
also testified that she did not write to Villados to inform him
that she would not file an application until after the window
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State, 74 Haw. 442, 467, 848 P.2d 966, 978 (1993), he was
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requested by [Villados].”
2. ICA Proceedings
141 Hawaiʻi 196, 203, 407 P.3d 152, 159 (2017), the ICA
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the ICA noted that this court “expressed that the defendant’s
juncture[.]” 141 Hawaiʻi at 208, 407 P.3d at 164. Per the ICA,
However, like the circuit court, it did not have the power to
petition.
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III. DISCUSSION
Because the State did not appeal the ICA’s decision as to its
only with the question of the proper remedy. We agree with the
76, 464 P.3d at 864. Uchima arose in the same context that
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merits as well.
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30, 31 (Ga. 2003); see Ezell v. State, 548 S.E.2d 852, 854 (S.C.
(“Because remanding for a new appeal would further delay any new
trial, and because the district court found the mistrial claim
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was utterly denied his right to appeal “need not demonstrate any
P.2d 101, 104 (1980)). But absent at least some inquiry into
Ex parte Miller, 330 S.W.3d 610, 626 (Tex. Crim. App. 2009); see
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State v. Gross, 760 A.2d 725, 742 (Md. Ct. Spec. App. 2000)
Alexandria G., 834 N.W.2d 432, 437 (Wisc. Ct. App. 2013)
789 F.3d 303, 320 (2d Cir. 2015); see Martin v. United States,
81 F.3d 1083, 1084 (11th Cir. 1996) (per curiam) (“Because [the
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States v. Shedrick, 493 F.3d 292, 303 (3d Cir. 2007), the United
States Court of Appeals for the Third Circuit held that when
so that there can be a timely appeal” because this would put the
does no more than restore the status quo that existed before
did in Uchima, 147 Hawaiʻi at 73, 464 P.3d at 861, courts that do
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the Kansas Supreme Court for review, and denial of that right
opportunity to re-petition).
had not been rendered. Maddox, 141 Hawaiʻi at 208, 407 P.3d at
164.
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(HRAP) Procedure.
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appeal. 11
V. CONCLUSION
11 The trial court’s order and judgment on the HRPP Rule 40 petition
would be subject to appeal in the normal course before taking final effect.
HRPP Rule 40(h) (“Any party may appeal from a judgment entered in the
proceeding in accordance with Rule 4(b) of the [HRAP].”). Accordingly, the
subsequent motion to vacate and reenter the judgment brought before the ICA
would not, absent unusual circumstances, present the opportunity to
relitigate whether appellate counsel had been ineffective.
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