Graham v. Hawai'i Paroling Authority

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-NOV-2025
08:00 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

GARRETH A. GRAHAM, Petitioner-Appellant,
v.
HAWAIʻI PAROLING AUTHORITY; STATE OF HAWAIʻI,
Respondents-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPN-XX-XXXXXXX (1PC940001048))

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Self-represented Petitioner-Appellant Garreth A.

Graham appeals from the Circuit Court of the First Circuit's

January 28, 2022 "Order Dismissing [Graham's] Hawaii Rules of

Penal Procedure Rule 40 Petition, Filed November 22, 2019,

Without a Hearing" (Rule 40 Order), and November 28, 2023 "Order

Denying [Graham's] Motion for Reconsideration Filed January 4,

2023" (Reconsideration Order). 1 We dismiss for lack of

1 The Honorable Rowena A. Somerville presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

jurisdiction Graham's appeal as to the Rule 40 Order, and we

vacate the Reconsideration Order.

Graham is currently serving a sentence of life with

the possibility of parole at Saguaro Correctional Center in

Eloy, Arizona, for Murder in the Second Degree. Representing

himself, Graham challenged his minimum term of imprisonment, as

set by Respondent-Appellee Hawai‘i Paroling Authority, through

Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 post-conviction

proceedings.

The record reflects the following relevant events:

• November 22, 2019: Graham filed his "Petition to
Vacate Illegal Sentence, Set Aside Minimum Term Order
or to Release Petitioner from Custody" (Rule 40
Petition).

• June 26, 2020: Graham filed his "Motion to Amend
Petition to Vacate Illegal Sentence, Set Aside Minimum
Term Order or to Release Petitioner from Custody"
(Motion to Amend) and "First Amended Petition to
Vacate Illegal Sentence, Set Aside Minimum Term Order
or to Release Petitioner from Custody" (First Amended
Petition).

• January 28, 2022: The circuit court entered its
Rule 40 Order.

• February 10, 2022: Graham filed his "Motion for Leave
to Amend First Amended Petition to Vacate Illegal
Sentence, Set Aside Minimum Term Order or to Release
Petitioner from Custody" (Motion for Leave to Amend).

• February 14, 2022: The circuit court entered its
"Order Denying Garreth A. Graham's Motion for Leave to
Amend First Amended Petition to Vacate Illegal
Sentence, Set Aside Minimum Term Order or to Release
Petitioner from Custody" (Order Denying Leave to
Amend).

2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

• June 23, 2022: Graham allegedly received the
February 14, 2022 Order Denying Leave to Amend.

• November 30, 2022: Graham allegedly received the
January 28, 2022 Rule 40 Order.

• January 4, 2023: Graham filed his "Motion for
Reconsideration" of the Order Denying Leave to Amend.

• November 28, 2023: The circuit court entered its
Reconsideration Order.

• December 19, 2023: Graham filed his Notice of Appeal.

The record also reflects numerous other filings, including

requests by Graham for status updates on his case as well as

attempts to preserve issues for appeal.

On appeal, Graham challenges the circuit court's

Rule 40 Order and Reconsideration Order, raising five points of

error. 2

2 The five points of error are:

(A) Did the Circuit Court Commit Abuse of discretion
by failing to follow Court Rules and Principles in
violation of Appellant's Due Process and the Fifth and
Fourteenth Amendments of the United States Constitution and
Article I Section 5 and 14 of the Hawaii Constitution?

(B) Did the Circuit Court Commit Abuse of discretion
when it Denied Appellant's Motion for Reconsideration in
violation of Appellant's Due Process and the Fifth and
Fourteenth Amendments of the United States Constitution and
Article I Section 5 and 14 of the Hawaii Constitution?

(C) Did the Circuit Court and the Hawaii Paroling
Authority (HPA) commit abuse of discretion in violation of
the Fifth and Fourteenth Amendment of the United States
Constitution and Article I Section 5 and 14 of the Hawaii
Constitution by not allowing appellant access to his pre-
sentence investigation report (PSI) which contained adverse
information?

(continued . . .)

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below.

(1) We first consider Graham's challenges to the

circuit court's Rule 40 Order. Because this court lacks

jurisdiction over an appeal from the Rule 40 Order, we dismiss

the appeal as to the Rule 40 Order.

"The existence of appellate jurisdiction is a question

of law and is reviewed de novo under the right/wrong standard."

State v. James, 153 Hawai‘i 503, 510, 541 P.3d 1266, 1273 (2024)

(brackets omitted) (quoting State v. Uchima, 147 Hawai‘i 64, 72,

464 P.3d 852, 860 (2020)).

(. . . continued)

(D) Did the circuit court commit Abuse it's
Discretion in violation of the Fifth and Fourteenth
Amendment of the United States Constitution and Article 1
Section 5 and l4 of the Hawaii Constitution by Dismissing
Appellants claim that [Hawai‘i Revised Statutes (HRS)]
§ 706-656(2) is Overly Broad and Unconstitutionally Vague?

(E) Did the circuit court commit Abuse it's
Discretion in violation of the Fifth and Fourteenth
Amendment of the United States Constitution and Article 1
Section 5 and 14 of the Hawaii Constitution by Dismissing
Appellants claim that HRS § 706-669(8) is Overly Broad and
Unconstitutionally Vague?

(Formatting altered.) As discussed below, we do not have jurisdiction over
the Rule 40 Order, but we have jurisdiction over the Reconsideration Order.
Thus, we address Graham's points of error to the extent they relate to his
challenge of the Reconsideration Order.

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"The right of appeal in a criminal case is purely

statutory and exists only when given by some constitutional or

statutory provision." Id. at 513, 541 P.3d at 1276 (internal

quotation marks omitted) (quoting State v. Bohannon, 102 Hawai‘i

228, 236, 74 P.3d 980, 988 (2003)). The Hawai‘i Supreme Court

has held that "compliance with the requirement of the timely

filing of a notice of appeal is jurisdictional and we must

dismiss an appeal on our motion if we lack jurisdiction."

Grattafiori v. State, 79 Hawai‘i 10, 13, 897 P.2d 937, 940 (1995)

(citation modified) (quoting State v. Brandimart, 68 Haw. 495,

497, 720 P.2d 1009, 1010 (1986) and State v. Johnston, 63 Haw.

9, 11, 619 P.2d 1076, 1077 (1980)).

Pursuant to Hawai‘i Revised Statutes (HRS) § 641-11

(2016) and HRPP Rule 40(h), "appeals from proceedings for post-

conviction relief may be made from a judgment entered in the

proceeding and must be taken in accordance with Rule 4(b) of the

Hawai‘i Rules of Appellate Procedure (HRAP)." Id. (citation

modified). HRAP Rule 4(b), which governs appeals in criminal

cases, requires a notice of appeal to be filed within thirty

days after the judgment or order appealed from:

TIME FOR FILING. In a criminal case, the notice of
appeal shall be filed within 30 days after entry of the
judgment or order appealed from. However, if the notice of
appeal is mailed, the notice of appeal shall be deemed
timely filed if the mailing is postmarked within the time
fixed for filing and is received by the clerk no later than
5 days after the postmarked date. For the purposes of
calculating other deadlines in these Rules, the date of
filing under this Rule shall be the date the document is
received by the clerk.
5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

HRAP Rule 4(b)(1) (formatting altered) (emphasis added).

However, the court has allowed substantive review of untimely

appeals "when (1) defense counsel has inexcusably or

ineffectively failed to pursue a defendant's appeal from a

criminal conviction in the first instance, or (2) the lower

court's decision was unannounced and no notice of the entry of

judgment was ever provided." Grattafiori, 79 Hawai‘i at 13-14,

897 P.2d at 940-41 (emphasis added) (citing State v. Caraballo,

62 Haw. 309, 315-16, 615 P.2d 91, 96 (1980)).

Here, Graham's December 19, 2023 Notice of Appeal

seeks appellate review of the circuit court's January 28, 2022

Rule 40 Order. Thus, Graham filed his Notice of Appeal 690 days

after entry of the Rule 40 Order, well beyond HRAP Rule 4(b)'s

thirty-day requirement.

Graham maintains that he did not receive notice of the

Rule 40 Order dismissing his Rule 40 Petition until the circuit

court denied his February 10, 2022 Motion for Leave to Amend his

First Amended Petition. 3 Graham further maintains that he did

not receive a copy of the Rule 40 Order until November 30, 2022.

Even if this court were to calculate from November 30,

2022, the date Graham avers in a sworn declaration that he

ultimately received the Rule 40 Order, under the second

3 In a letter to the "Clerk Of The Court," postmarked July 27, 2022,
and docketed August 2, 2022, Graham alleged he did not receive the
February 14, 2022 Order Denying Leave to Amend until June 23, 2022.

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Grattafiori exception (unannounced decision), the Notice of

Appeal was untimely because it was not submitted until almost a

year (355 days) after the appeals period had elapsed under HRAP

Rule 4(b). See Grattafiori, 79 Hawai‘i at 13-14, 897 P.2d at

940-41.

Further, Graham's January 4, 2023 Motion for

Reconsideration of the Rule 40 Order did not extend the period

to file a notice of appeal under HRAP Rule 4(b), because motions

for reconsideration are not tolling motions under HRAP

Rule 4(b). 4 See Brandimart, 68 Haw. at 496, 720 P.2d at 1010

(explaining "HRAP and HRPP are silent as to whether that

particular motion tolls the thirty (30) day period for filing a

notice of appeal" and holding motion for reconsideration was not

a tolling motion "[i]n the absence of an express statement to

the contrary").

4 Graham brought his Motion for Reconsideration under Hawai‘i Rules of
Civil Procedure (HRCP) Rules 59(e) and 60(b), which are tolling motions under
HRAP Rule 4(a) governing appeals in civil cases if brought within thirty days
of the judgment for which reconsideration is sought. See Mālama Kakanilua v.
Dir. of Dep't of Pub. Works, 157 Hawai‘i 280, 293-94, 576 P.3d 793, 805-06
(2025) ("[F]or purposes of serving as a 'tolling motion,' an HRCP Rule 60(b)
motion extends the time in which to file a notice of appeal pursuant to HRAP
Rule 4(a)(3), if the motion for reconsideration is filed within thirty days
of the entry of judgment."); HRAP Rule 4(a)(3) ("If any party files a timely
motion . . . to reconsider . . . and court or agency rules specify the time
by which the motion shall be filed, then the time for filing the notice of
appeal is extended for all parties until 30 days after entry of an order
disposing of the motion.").

However, because appeals of HRPP Rule 40 petitions are expressly
governed by HRAP Rule 4(b) for appeals in criminal cases, the January 4, 2023
Motion for Reconsideration was not a tolling motion. See HRPP Rule 40(h)
("Any party may appeal from a judgment entered in the proceeding in
accordance with [HRAP] Rule 4(b)."); Brandimart, 68 Haw. at 496, 720 P.2d at
1010.

7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Because Graham's appeal of the Rule 40 Order was

untimely, this court lacks jurisdiction over the circuit court's

denial of Graham's Rule 40 Petition and the underlying merits of

the Rule 40 Petition. E.g., Grattafiori, 79 Hawai‘i at 13, 897

P.2d at 940.

(2) We turn now to Graham's challenge to the circuit

court's Reconsideration Order as Graham timely appealed that

order.

As the sole basis for his motion to reconsider the

Order Denying Leave to Amend, Graham argued that the circuit

court "mistakenly or inadvertently failed to take notice of" his

First Amended Petition.

HRPP Rule 40(e) provides in relevant part, "The court

may grant leave to amend or withdraw the petition at any time.

Amendment shall be freely allowed in order to achieve

substantial justice." Although the Hawai‘i Supreme Court has not

"had occasion to consider the standard of review of a court's

decision denying a motion to amend or withdraw a Rule 40

petition," the court suggested in an unpublished summary

disposition order that the abuse of discretion standard would

apply. Lindsey v. State, 149 Hawai‘i 338, 489 P.3d 442, SCWC-18-

0000656, 2021 WL 2655065, at *3 (Haw. June 28, 2021) (SDO).

Here, Graham filed his Motion to Amend and First

Amended Petition seven months after his Rule 40 Petition and

8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

nineteen months before the circuit court's Rule 40 Order. In

his First Amended Petition, Graham sought to add an additional

argument in support of his third ground (failure to provide

Graham with his presentencing investigation report) and a novel

fourth ground (ineffective assistance of counsel).

Although Graham's Motion to Amend was filed nineteen

months prior to the Rule 40 Order, the circuit court did not

rule on Graham's Motion to Amend before entering its Rule 40

Order. Also, the circuit court did not address in its Rule 40

Order the additional argument in support of Graham's third

ground or the added fourth ground.

About two weeks after the Rule 40 Order, Graham filed

his Motion for Leave to Amend. The circuit court denied the

Motion for Leave to Amend, concluding "[t]he court cannot grant

a 'Motion for Leave to Amend' after the Petition is dismissed."

Graham moved for reconsideration based on the circuit

court's failure to address his Motion to Amend and First Amended

Petition. In denying Graham's Motion for Reconsideration, the

circuit court acknowledged that Graham filed a Motion to Amend

but noted, "Petitioner did not file a Motion for Leave to Amend

the Rule 40 Petition pursuant to HRPP Rule 40(e), nor did the

court grant petitioner leave to amend the Rule 40 Petition.

Therefore, the court will not address the First Amended

Petition." (Emphases added.)

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Whether Graham styled his Motion to Amend as a "motion

for leave to amend" or not is not, in and of itself, grounds for

not ruling on the motion.

It is well-settled policy in Hawai‘i that self-

represented litigants' filings must be liberally construed to

promote meaningful access to justice. See Makila Land Co., LLC

v. Kapu, 152 Hawai‘i 112, 121, 522 P.3d 259, 268 (2022) ("Filings

prepared by a pro se litigant should be construed by courts in a

manner that will afford the pro se litigant equal access to

justice and an opportunity to be heard.").

To the extent the circuit court denied Graham's motion

for reconsideration on the basis that Graham failed to include

the word "leave" in the title of his Motion to Amend, it abused

its discretion. See id. ("Thus, a court abuses its discretion

if it construes a filing by a pro se litigant in a manner that

prevents the litigant from seeking relief 'if a reasonable,

liberal construction of the document would permit the litigant

to do so.'" (citation and brackets omitted)).

Based on the foregoing, we (1) dismiss Graham's appeal

from the circuit court's January 28, 2022 Rule 40 Order for lack

of jurisdiction and (2) vacate the circuit court's November 28,

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

2023 Reconsideration Order. We remand this case for further

proceedings consistent with this summary disposition order.

DATED: Honolulu, Hawaiʻi, November 24, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Garreth A. Graham,
Self-represented /s/ Keith K. Hiraoka
Petitioner-Appellant. Associate Judge

Ryan S. Endo, /s/ Sonja M.P. McCullen
Deputy Attorney General, Associate Judge
for Respondent-Appellee.

11