State v. Ui

663 P.2d 630 (1983)

STATE of Hawaii, Plaintiff-Appellee,
v.
Aliielua UI, Defendant-Appellant.

No. 8820.

Supreme Court of Hawaii.

May 4, 1983. Reconsideration Denied May 31, 1983.

Earle A. Partington, Honolulu (Schweigert & Associates, Honolulu, of counsel), on briefs, for defendant-appellant.

Jean K. Chiogioji, Deputy Atty. Gen., Honolulu, on brief, for plaintiff-appellee.

Before LUM, C.J., NAKAMURA, PADGETT and HAYASHI, JJ., and ACOBA, Circuit Judge, assigned by reason of vacancy.

HAYASHI, Justice.

Defendant-appellant Allielua Ui appeals from an order approving fees totaling $4,000 for his court-appointed attorney, $1,553.50 less than the amount requested; appellant contends the authorization of only part of the fees requested was the result of the trial court's misinterpretation of the excess payment provision of Hawaii Revised Statutes (HRS) § 802-5(b) (Supp. 1982). The State, while supporting the lower court's interpretation of the statute, questions this court's jurisdiction to entertain this appeal under HRS § 641-11, the provision relied upon by appellant. We agree that we lack jurisdiction under HRS § 641-11, and although this court has supervisory jurisdiction over inferior courts pursuant to HRS § 602-4, "to prevent and correct errors and abuses therein where no other remedy is expressly provided for by law," we decline to exercise such jurisdiction in this case because we believe the circuit court properly interpreted and applied the statute.

I.

Appellant was charged with three class A felonies.^[1] The circuit court, pursuant to a recommendation by the public defender, appointed private counsel to represent appellant.

Following a mistrial of the case, appellant's court-appointed counsel moved for approval of attorneys fees totaling $5,553.50 pursuant to HRS § 802-5(b). Although the court found the requested fees justified, it concluded HRS § 802-5(b) limited the amount of fees allowable for this type of case to $4,000; thus, a fee of only $4,000 was approved. Appellant appealed. The indictment against appellant has been dismissed with prejudice.

II.

Appellant contends HRS § 641-11 affords him the right to appeal; the statute provides in pertinent part:

Any party deeming himself aggrieved by the judgment of a circuit court in a criminal matter, may appeal to the supreme court, subject to chapter 602 in the manner and within the time provided by the Hawaii Rules of Criminal Procedure. The sentence of the court in a criminal case shall be the judgment.

Thus, the statute affords a party, deeming himself aggrieved by the judgment of a circuit court, the right to appeal.

Initially, it should be noted that although the attorney appears to be the one aggrieved by the order of the court, the appeal was brought in the name of his client, defendant-appellant; this is probably because the language of § 641-11 purports to only allow a party the right to appeal from an adverse judgment.

The appeal in the instant case is from an order granting part of the attorney fees requested. The State contends the order is not an appealable order under the statute, citing State v. Johnston, 63 Haw. 9, 619 P.2d 1076 (1980) for the proposition that an appeal may only be had from a sentence of the circuit court. In Johnston, this court dismissed an appeal brought from an order denying a motion to dismiss an indictment, holding that "such order [was] interlocutory and [was] not a final order or judgment. It [was] therefore not one that [was] appealable under HRS sec. 641-11." Id. at 11, 619 P.2d at 1077. (emphasis added). Thus, Johnston did not definitively rule that an appeal under HRS § 641-11 must be from a sentence in a criminal case. It could be read to imply an appeal may also be brought from an order deemed to be final. An order awarding attorneys fees under the Criminal Justice Act to counsel appointed for indigent defendants has been ruled as being a final order within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). Matter of Baker, 693 F.2d 925, 926 (9th Cir.1982). Thus, the viability of this appeal may depend in part upon whether the judgment appealed from must be a sentence; however, since we conclude appellant lacks standing to bring this appeal, we do not need to decide this issue.

The State also challenges appellant's standing to bring this appeal since appellant is allegedly not aggrieved by the order. An aggrieved party is "[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment." Black's Law Dictionary 60 (5th ed. 1979). Similarly, this court has held an "aggrieved party" in the civil context is "one who is affected or prejudiced by an appealable order." Montalvo v. Chang, 64 Haw. 345, 351, 641 P.2d 1321, 1326 (1982).

Appellant does not aver that he is in any way affected or prejudiced by the order but rather than he "has an interest in seeing that his court appointed attorney is properly compensated both for his fees and expenses." (Defendant-appellant's Reply Brief at 1).

The only thing we can surmise from the case^[2] cited by appellant for the proposition that he has a protectable interest in this appeal is "inadequately" compensated counsel impaired his right to effective assistance of counsel guaranteed by the Federal and State Constitutions.

One of the reasons for requiring that assigned counsel be reasonably compensated is to assure quality representation for indigent defendants. 1 ABA Standards for Criminal Justice commentary to sec. 5-2.4. The concern for the quality of representation afforded an indigent defendant flows from the constitutional right to effective assistance of counsel. United States v. Bailey, 581 F.2d 984, 988-89 (D.C. 1978).

Although in a given case a defendant's right may be impaired if his court-appointed counsel is not adequately compensated, see People v. Randolph, 35 Ill. 2d 24, 219 N.E.2d 337 (1966), this does not seem to be such a case. In the instant case, the indictment against appellant has been dismissed with prejudice, no doubt, as a result of his counsel's diligent and able efforts. Moreover, that appellant is not challenging the effectiveness of his counsel's representation is further evidenced by the fact that the record on appeal consists only of the documents dealing with counsel's request for fees. We hold appellant lacks standing to appeal the order approving partial attorney fees.

Although this court lacks jurisdiction under HRS § 641-11, we could nevertheless invoke our supervisory powers under HRS § 602-4 to prevent and correct error and abuses where no other remedy is expressly provided for by law. However, we do not believe this is a proper case for us to exercise such jurisdiction since we feel, as stated below, the circuit court properly interpreted and applied the statutory provision at issue.

III.

The statutory provision in question is the last sentence of HRS § 802-5(b) which provides:

Payment in excess of any maximum provided for under paragraphs (1), (2), and (5), where extended or complex representation is needed, may be made for good cause shown on the record by the appointing judge, but shall not exceed an amount twice the maximum allowable fees for such representation.

Appellant contends this sentence means payment in excess shall not exceed twice the maximum. Since this was a class A felony case providing for a maximum fee of $2,000, the limit of the excess payment should be $4,000, thus, entitling counsel to a possible total fee of $6,000 ($2,000 maximum + $4,000 excess payment).

Conversely, the State argues the sentence means total payment shall not exceed twice the maximum, thus, payment to counsel could not exceed $4,000. The circuit court, agreeing with the State's interpretation, approved fees of only $4,000.

"[O]ur primary duty [in interpreting and applying statutes] is to ascertain the intention of the legislature and to implement that intention to the fullest degree." Keller v. Thompson, 56 Haw. 183, 189, 532 P.2d 664, 669 (1975). "The intention of the legislature is to be obtained primarily from the language contained in the statute itself." In re Hawaiian Telephone Co., 61 Haw. 572, 577, 608 P.2d 383, 387 (1980). However, "where the language of a statute is ambiguous or of doubtful meaning, ... judicial construction and interpretation are warranted," Id. at 578, 608 P.2d at 387, and "[c]ourts may take legislative history into consideration in construing a statute." Life of the Land v. City and County, 61 Haw. 390, 447, 606 P.2d 866, 899 (1980).

Appellant contends the language of the statute unambiguously limits the excess payment and not the total payment to an amount twice the maximum fees allowable under HRS § 802-5(b)(1) for a class A felony case. We feel that the statute lends itself to the interpretations proffered by both the appellant and the State. Moreover, this court has stated, "``[w]hen aid to construction of the meaning of words, as used in the statute is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination."'" Black Construction v. Agsalud, 64 Haw. 274, 283-84, 639 P.2d 1088, 1094 (1982); see 2A Sutherland, Statutory Construction § 48.01 (4th ed. 1973).

HRS § 802-5(b) was enacted during the legislature's 1981 special session. The Senate Committee Report provides in pertinent part:

The bill provides:

... .

(3) That payment in excess of and up to twice the amount in the schedule of fees is allowed when the case is extended or complex;

Sen.Stand.Comm.Rpt. No. 4, in 1981 Senate Journal Special Session, at 28; House Stand.Comm.Rpt. No. 24, in 1981 House Journal Special Session, at 43.

The above-quoted sentence illustrates that although the legislature intended to allow for payment in excess of the scheduled fees in certain cases, it only allowed for payment of up to twice the amount of the scheduled fees, as the circuit court correctly concluded.

Appeal is dismissed.

NOTES

[1] The only question raised on appeal by appellant is the proper construction of the excess payment provision of HRS § 802-5(b), thus, we do not deal with the question of whether each count could constitute a separate case for the purpose of calculating attorney fees.

[2] The case, State v. District Court, 85 Nev. 241, 453 P.2d 421 (1969), cited by appellant deals with an indigent defendant's constitutional right to have his counsel reimbursed for out-of-pocket expenses incidental to preparing defendant's defense, and, thus, is not applicable to the instant case. Although appellant's counsel had to pay the $50 filing fee for this appeal as his request to have costs waived on appeal was denied, the propriety of such denial has not been questioned by appellant.