Slavick v. State ( 2021 )

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JAN-2021
12:36 PM
Dkt. 64 ORD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CHRIS SLAVICK, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 1PR191000014 (CR. NO. 1PC041001534))
ORDER GRANTING MOTION FOR RECONSIDERATION
(By: Ginoza, Chief Judge and Leonard, J.1)
Upon consideration of self-represented Petitioner-
Appellant Chris Slavick's (Slavick) "Motion to Reinstate and
Voiding of Wrongful Dismissal Motion for a Protection Order,"
electronically filed January 4, 2021, which the court construes
as a motion for reconsideration (January 4, 2021 Motion for
Reconsideration), the papers in support, and the record, it
appears that:
(1) On October 29, 2020, the court dismissed this
appeal for failure to file the opening brief, and dismissed all
pending motions, including Slavick's September 23, 2020 "Motion
to Issue Order to Return the 3 CD's [sic]; Motion to Order
[Halawa Correctional Facility (Halawa)] and [Saguaro Correctional
Center (Saguaro)] Staff to Provide Video of Property and Turnover
[sic] Property" (September 23, 2020 Motion);
1
Associate Judge Derrick H.M. Chan, who was a member of the panel has
retired with his last day on the court being October 30, 2020.
(2) In the January 4, 2021 Motion for Reconsideration,
Slavick seeks reconsideration of the October 29, 2020 dismissal
order, because, he alleges, prison officials obstructed his legal
mail. Slavick states that officials at Saguaro confiscated his
legal and personal property on August 4, 2020, and he transferred
to Halawa on August 5, 2020, where he was quarantined without his
legal property until August 20, 2020. Meanwhile, the deadline to
file the opening brief in this appeal expired on August 17, 2020.
Slavick states that he received "some" of his legal property on
August 28, 2020, and that following an inmate grievance, Halawa
staff returned an additional "box of legal documents and legal
book" on November 16, 2020, after the court dismissed the appeal;
(3) A motion for reconsideration may be filed within
ten days after a dispositional order "unless by special leave
additional time is granted during such period by a judge or
justice of the appellate court involved." Hawai#i Rules of
Appellate Procedure (HRAP) Rule 40(a). In this case, a motion
for reconsideration of the October 29, 2020 dismissal order was
due on or before November 9, 2020. See HRAP Rules Rules 26(a) &
40(a);
(4) Under the mailbox rule, a document filed by a self-
represented prisoner is deemed filed on the day it is tendered to
prison officials. Setala v. J.C. Penney Co., 97 Hawai#i 484, 40
P.3d 886 (2002). It is not clear when Slavick delivered the
January 4, 2021 Motion for Reconsideration to prison officials.
Nonetheless, Slavick states "[Halawa] staff + mailrooms [sic]
Terri Yoshinaga held this for 9 days and returned this on
December 24, 2020. Yoshinaga + other identified [Halawa] staff
deliberately obstruct. This is re-deposited USPS mailbox 12/29 @
7PM." Slavick further states "this is a second filing as
Petitioner is unaware if this Supreme Court ever received the
first because [Halawa] staff and mailroom's Terri Yoshinaga are
criminally obstructing Petitioner's federal rights to send USPS
federal mail to Hawaii Courts, agencies, and attornies [sic]."
(Emphasis in original.) Slavick does not indicate when he
purportedly delivered the first motion to prison officials. Even
if Slavick originally submitted the January 4, 2021 Motion for
Reconsideration to prison officials nine days before December 24,
2020, which would have been December 15, 2020, the motion is
untimely;
(5) In addition, there is no indication that even
though Slavick was in quarantine and did not receive his legal
property from Saguaro until August 28, 2020, or November 16,
2020, he could not have filed a motion for extension of time for
the opening brief before the deadline expired, or a motion for
relief from default after the deadline expired and before the
court dismissed the appeal. Indeed, Slavick mailed from Halawa
two motions filed in this appeal on September 1, 2020, and
September 23, 2020, neither of which requested an extension of
time or relief from default of the opening brief. Further,
Slavick claims he did not receive his legal property that was
confiscated from him in Saguaro until August 28, 2020, and
November 16, 2020, but those materials would not have included
the September 24, 2020 default notice or the October 29, 2020
dismissal order, both of which the appellate clerk mailed to
Slavick at Halawa. Slavick does not indicate when he received
the September 24, 2020 default notice or the October 29, 2020
dismissal order or allege that prison officials interfered with
his receipt of those documents. Last, Slavick does not explain
why he waited nearly a month after he purportedly received
additional legal property on November 16, 2020, to mail the
January 4, 2021 Motion for Reconsideration to the court on
December 15, 2020;
(6) Slavick fails to demonstrate that prison officials
prohibited him from filing a timely motion for extension of time
or relief from default of the opening brief, or a timely motion
for reconsideration of the dismissal order. Slavick also fails
to demonstrate that the court overlooked or misapprehended any
point of law or fact when it entered the October 29, 2020 order.
See HRAP Rule 40(b). Nonetheless, in deference to Slavick's
self-represented status, see Waltrip v. TS Enters., Inc., 140
Hawai#i 226, 239, 398 P.3d 815, 828 (2016) (requiring courts to
construe pro se filings in a reasonable manner that enables them
to promote access to justice), because Hawaii's appellate courts
have "consistently adhered to the policy of affording litigants
the opportunity to have their cases heard on the merits, where
possible," Schefke v. Reliable Collection Agency, Ltd., 96
Hawai#i 408, 420, 32 P.3d 52, 64 (2001) (citation and quotation
marks omitted), and given the COVID-19 pandemic's unprecedented
impact and Slavick's attesting that he was quarantined without
his property on being transferred to Halawa, the court will
exercise its discretion under HRAP Rule 2 to accept Slavick's
late motion for reconsideration, and grant the requested relief
under HRAP Rule 40;
(7) Because the court will vacate the October 29, 2020
dismissal order, it must now consider the September 23, 2020
Motion. In that motion, Slavick asserts that on August 28, 2020,
Halawa staff "illegally and obstructively" confiscated from him
three CDs that contain "appellate case evidence" from CR No. 04-
1-1534, which he needs for his pending appeals; Halawa and
Saguaro staff "colluded and destroyed THOUSANDS of legal
documents" since August 4, 2020; and he received less than half
his documents in "smashed/torn open & taped cardboard boxes" at
Halawa on August 28, 2020. Slavick claims correctional staff at
Saguaro and Halawa video recorded the taking and return of his
property, respectively, and he requests the court to order staff
at both facilities to produce the videos and his property; and
(8) On September 23, 2020, Slavick filed identical
motions in his related appeals in this case, CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX. In CAAP-XX-XXXXXXX, the court dismissed the
motion because it had previously dismissed the appeal. On
October 2, 2020, the court in CAAP-XX-XXXXXXX denied the motion
without prejudice to Slavick seeking relief in the underlying
case, a trial court in a new case, or the Hawai#i Supreme Court
in a writ action. The court further ordered Halawa staff not to
dispose of the CDs confiscated from Slavick for ninety days from
the date of the order, and noted it was unclear whether Slavick
had requested relief under the Inmate Grievance Program or by
contacting the Ombudsman to address his claim regarding the CDs.
On November 6, 2020, Slavick filed a petition for writ of
mandamus in the Hawai#i Supreme Court, SCPW-XX-XXXXXXX, alleging
Halawa "administrative and mailroom staff (including mailroom
supervisor 'Terri')" interfered with his mail. On December 4,
2020, the supreme court denied the petition. From the January 4,
2021 Motion for Reconsideration, it appears that after the court
issued the October 2, 2020 order in CAAP-XX-XXXXXXX, Slavick
pursued an inmate grievance, which resulted in the return of an
additional "box of legal documents and legal book" on
November 16, 2020. Based on the foregoing, it is unclear whether
the relief requested in the September 23, 2020 Motion is moot.
In any event, similar to the October 2, 2020 order in CAAP-17-
0000834, the court will deny the September 23, 2020 Motion
without prejudice.
Therefore, IT IS HEREBY ORDERED that the January 4,
2021 Motion for Reconsideration is granted. The October 29, 2020
Order Dismissing Appeal is vacated and the appeal is reinstated.
The deadline to file the opening brief is extended to
February 18, 2021. Any further default of the opening brief may
result in sanctions authorized by HRAP Rule 30, including,
without limitation, the appeal being dismissed.
IT IS FURTHER ORDERED that the September 23, 2020
Motion is denied without prejudice to Slavick seeking relief in
the underlying case, a new case in the trial court, or by seeking
a writ in the Hawai#i Supreme Court.
DATED: Honolulu, Hawai#i, January 19, 2021.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge