Jones v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-FEB-2021
07:49 AM
Dkt. 48 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

WILLIE JAMES JONES, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 17-1-0012; CRIMINAL NO. 1PC950001384)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Petitioner-Appellant Willie James Jones (Jones) appeals

from the Order Denying Petitioner Willie Jones's Motion for

Relief Due to Late Mailing, filed on May 29, 2019 (Order Denying

Relief), in the Circuit Court of the First Circuit (Circuit

Court).1/

I. BACKGROUND

In the underlying criminal proceeding, on August 19,

1996, Jones was convicted of Sexual Assault in the First Degree

1/
The Honorable Edward H. Kubo, Jr. presided.
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and Kidnapping. On June 9, 1997, Jones's conviction was affirmed

by the Hawai#i Supreme Court in Appeal No. 20090.

Jones filed four prior proceedings for post-conviction

relief, in 2000, 2006, 2011, and 2014. In each of those prior

cases, relief was denied, and in the instances where Jones

appealed, the appealed-from orders were affirmed.

Relevant to this appeal, on July 6, 2017, Jones filed a

Petition to Vacate, Set Aside, or Correct Judgment or to Release

Petitioner from Custody (Fifth Petition), which was docketed in

S.P.P. No. 17-1-0012. On May 30, 2018, the Circuit Court issued

an Order Denying [Jones's Fifth] Petition for Post-Conviction

Relief Without a Hearing (Order Denying Fifth Petition). On June

30, 2018, Jones filed a Notice of Appeal from the Order Denying

Fifth Petition, which was docketed in CAAP-XX-XXXXXXX (Appeal

from Order Denying Fifth Petition). On December 19, 2018, this

court dismissed the Appeal from Order Denying Fifth Petition on

the grounds that it was not timely filed within 30 days from the

May 30, 2018 Order Denying Fifth Petition, as required by Rule

4(b)(1) of the Hawai#i Rules of Appellate Procedure (HRAP).2/

Jones did not file a petition for writ of certiorari from the

December 19, 2018 dismissal of the Appeal from Order Denying

Fifth Petition or otherwise timely seek reconsideration from this

court in CAAP-XX-XXXXXXX. Instead, many months later, on

2/
An Amended Order Dismissing Appeal for Lack of Jurisdiction was
filed on December 24, 2018.

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September 27, 2019, he filed in CAAP-XX-XXXXXXX, [Jones's] Motion

to Reinstate Appeal. On October 3, 2019, construing Jones's

motion as a motion for reconsideration, this court denied it

(Order Denying Reinstatement). On October 21, 2019, Jones filed

a petition for writ of certiorari, seeking relief from, inter

alia, the Order Denying Reinstatement. On November 25, 2019, in

SCWC-XX-XXXXXXX, the supreme court entered an Order Rejecting

Application for Writ of Certiorari.

In the meantime, in the Circuit Court, it appears that

some time on or after January 8, 2019, Jones filed a Motion for

Relief Due to Late Mailing (Motion for Relief) in S.P.P. No. 17-

1-0012, the case in which the Fifth Petition was filed. The

actual date of submission is unclear, as the Motion for Relief

was filed on August 21, 2019, and there is no "received" stamp or

other record of the date of submission. The Motion for Relief,

counsel's declaration in support, a blank notice of hearing, and

a certificate of service are all dated January 8, 2019. In the

Motion for Relief, Jones requested that the Circuit Court re-

enter the May 30, 2018 Order Denying Fifth Petition. Jones

argued that relief was warranted because the Order Denying Fifth

Petition was not mailed to Jones's attorney until June 26, 2018,

as evidenced by the postmark on the envelope addressed to counsel

and bearing the presiding judge's name, division number, and the

Circuit Court's address as the return address. On May 29, 2019,

the Circuit Court entered the Order Denying Relief.

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On June 20, 2019, Jones timely filed a notice of appeal

from the Order Denying Relief.

II. POINTS OF ERROR

Jones raises three points of error on appeal,

contending that the Circuit Court: (1) erred in denying the

Motion for Relief; (2) (previously) erred in failing to enter a

judgment reflecting its ruling on the Fifth Petition; and (3)

erred in adjudicating the Motion for Relief without conducting a

hearing pursuant to Hawai#i Rules of Penal Procedure (HRPP) Rule

40(f). Subsequent to the completion of briefing, on December 25,

2020, Jones filed a letter, pursuant to HRAP Rule 28(j), noting

the supreme court's December 2, 2020 decision in Villados v.

State, 148 Hawai#i 386, 477 P.3d 826 (2020).

III. APPLICABLE STANDARD OF RELIEF

Jones asserts that this case should be reviewed as a

denial without hearing of a petition filed pursuant to HRPP Rule

40. Assuming, arguendo, that the Motion for Relief may be

considered as a Rule 40 petition, the supreme court has held that

"the issue 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 Hawai#i 423, 427, 879

P.2d 528, 532 (1994).

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IV. DISCUSSION

A. The Form of the Order Denying Relief

We begin with Jones's second point of error, in which

he asserts that a final judgment must yet be entered on the Order

Denying Fifth Petition.

This argument is flawed on many grounds, including that

the appeal from the Order Denying Fifth Petition is closed, and

any argument concerning a defect in the form of an order has been

disposed of or waived. Jones did not timely raise this argument

in, for example, a timely motion for reconsideration or petition

for writ of certiorari when this court dismissed Jones's appeal

from the Order Denying Fifth Petition in CAAP-XX-XXXXXXX.

Instead, in Jones's September 27, 2019 Motion to Reinstate

Appeal, Jones argued for the first time that, in the alternative

to his request that the appeal be reinstated, this court should

"clarify" that the appeal was dismissed as premature because no

final judgment had been entered with respect to the Fifth

Petition. Jones's motion was denied as this court lacked

jurisdiction. Jones raised the same issue in his petition for

writ of certiorari in SCWC-XX-XXXXXXX, and the supreme court

rejected his petition.

Moreover, in Grattafiori v. State, 79 Hawai#i 10, 11,

897 P.2d 937, 938 (1995), the supreme court clarified the rules

regarding timeliness of the filing of a notice of appeal pursuant

to HRPP Rule 40. That clarification included that an appeal from

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an order denying a petition for post-conviction relief pursuant

to HRPP Rule 40 must be filed within thirty days after the entry

of an order denying the petition. Id. at 13, 897 P.2d at 940.

The supreme court did not adopt a separate judgment mandate as

done by the court, in the prior year, with respect to orders and

judgments entered pursuant to the Hawai#i Rules of Civil

Procedure, which requires entry of a separate judgment. Cf.

Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai#i 115, 869

P.2d 1334 (1994).

We conclude that this point of error is without merit.

B. The Motion for Relief

In his first and third points of error, Jones argues

that the Circuit Court erred when it denied the Motion for Relief

without first holding a hearing pursuant to HRPP Rule 40(f) and

that the court otherwise erred in denying him the requested

relief. Jones argues primarily that relief should have been

granted because the Order Denying Fifth Petition was not put in

the mail until shortly before the due date for filing a notice of

appeal.3/

Jones relies on, inter alia, HRPP Rule 49(d), which

addresses relief upon failure to receive due notice or service of

the documents described in the preceding subsections, but fails

3/
Jones has never asserted that his attorney did not receive the
Order Denying Fifth Petition prior to the expiration of the period in which he
could have timely filed a notice of appeal.

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to mention HRPP Rule 49(e)(3), which specifically provides, in

relevant part:
Lack of notice of the entry by the clerk does not affect the
time to appeal or relieve or authorize the court to relieve
a party for failure to appeal within the time allowed,
except as permitted by Rule 4(b) of the Hawai #i Rules of
Appellate Procedure.

HRAP Rule 4(b) states, in relevant part:
(5) EXTENSIONS OF TIME TO FILE A NOTICE OF APPEAL.
Upon showing of good cause, the circuit, district, or family
court may, no later than 30 days after the time has expired,
on motion and notice, extend the time for filing a notice of
appeal for a period not to exceed 30 days from the
expiration of the time otherwise prescribed by this
subdivision (b). Any such motion that is filed before
expiration of the prescribed time may be ex parte unless the
court otherwise requires.

The supreme court has nevertheless held that a criminal

defendant is entitled, on his or her first appeal, to effective

counsel, who may not deprive the defendant of the right to appeal

by failing to timely file a notice of appeal. See State v.

Aplaca, 96 Hawai#i 17, 23, 25 P.3d 792, 798 (2001). In such

instances, the appellate courts have retained jurisdiction

despite untimely filing of a notice of appeal. Id. However,

Jones cites no authority supporting the proposition that a trial

court has the authority to grant relief under the circumstances

presented in this case, where Jones missed the deadline to file

an appeal from the denial of his fifth petition for post-

conviction relief, after perfecting appeals from his initial

conviction and sentence, as well as perfecting or waiving his

right to appeal the denial of each of his four prior post-

conviction petitions, and where Jones has already made identical

arguments for relief to both this court and the supreme court,
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and relief was denied by the appellate courts. See generally

Grattafiori, 79 Hawai#i at 13-14, 897 P.2d at 940-41 (dismissing

appeal from denial of HRPP Rule 40 petition for failing to timely

file notice of appeal).

We conclude that Jones's arguments that the Circuit

Court erred when it denied the Motion for Relief are without

merit.

We further conclude that Jones's arguments that the

Order Denying Relief should be vacated because the Circuit Court

failed to conduct a hearing pursuant to HRPP Rule 40(f) is also

without merit. Even assuming it applies in this case,4/ HRPP Rule

40(f) states, inter alia, that "the court may deny a hearing if

the petitioner's claim is patently frivolous and is without [a]

trace of support either in the record or from other evidence

submitted by the petitioner." Here, for the reasons set forth

above, we conclude that Jones's request for relief from the Order

Denying Fifth Petition was patently frivolous and without a trace

of support and the Circuit Court did not err in disposing of it

without a hearing.

4/
The Motion for Relief stated that it was being filed pursuant to,
inter alia, HRPP Rule 40(a)(1)(v). However, by its own terms, HRPP Rule 40(a)
is applicable to requests for relief from "judgments of conviction and to
custody based on judgments of conviction" and makes no mention of a proceeding
seeking to set aside a prior order disposing of a Rule 40 petition, let alone
a post-appeal proceeding of that nature. For the purpose of addressing
Jones's arguments, we assume, without deciding, that HRPP Rule 40 is
applicable to the Motion for Relief.

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C. Villados

Finally, Jones has pointed to Villados, 148 Hawai#i

386, 477 P.3d 826, in support of his appeal because "[t]he

decision related to the appropriate remedy to be applied where a

deadline for appeal or writ has not been met." Villados involved

the ineffective assistance of counsel arising from a missed

deadline to file an application for certiorari review of this

court's summary disposition order affirming the defendant's

conviction and sentence – in other words, the appellant's direct

appeal. Id. Villados is inapposite to Jones's request for

further review of the Order Denying Fifth Petition based on a

missed deadline to perfect appellate review, which disposed of

Jones's fifth petition for post-conviction relief, not any phase

of a direct appeal from a conviction and sentence.

V. CONCLUSION

For these reasons, the Circuit Court's May 29, 2019

Order Denying Relief is affirmed.

DATED: Honolulu, Hawai#i, February 19, 2021.

On the briefs:
/s/ Katherine G. Leonard
John Rapp, Presiding Judge
for Petitioner-Appellant.
/s/ Keith K. Hiraoka
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Respondent-Appellee. Associate Judge

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