Suitt v. State.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-NOV-2022
08:13 AM
Dkt. 10 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
BRYAN SUITT,
Petitioner/Petitioner-Appellant,
vs.
STATE OF HAWAIʻI,
Respondent/Respondent-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1PR161000011)
NOVEMBER 22, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY EDDINS, J.
The Intermediate Court of Appeals (ICA) dismissed post-
conviction relief petitioner Bryan Suitt’s appeal for lack of
jurisdiction.
We agree with the ICA that Suitt’s appeal was not properly
taken from a final order. But because the appeal’s procedural
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
defects stemmed from ineffective assistance of counsel, we hold
that the ICA has jurisdiction to review the merits of Suitt’s
appeal.
I.
In 2015, Suitt pled no contest to murder in the second
degree. The court sentenced him to life in prison with the
possibility of parole. Later, the Hawaiʻi Paroling Authority
(HPA) set Suitt’s minimum term at 45 years. Suitt did not
directly appeal his conviction, but six months later – on his
own – filed a Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40
petition for post-conviction relief. Suitt updated his hand-
written petition multiple times between 2016 and 2019. In its
final form, the petition claimed fifty-five grounds for relief.
These claims included ineffective assistance of counsel as well
as due process violations relating to the HPA minimum term
hearing.
Eventually, Suitt’s petition was heard in the Circuit Court
of the First Circuit. On March 16, 2020, the circuit court
found that while most of Suitt’s claims were “patently
frivolous” under HRPP Rule 40(g)(2), the claims relating to his
minimum term hearing were colorable under Lewi v. State, 145
Hawaiʻi 333, 348-49, 452 P.3d 330, 345-46 (2019) (holding that
“the HPA is required to set forth a written justification or
explanation (beyond simply an enumeration of any or all of the
2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
broad criteria considered) when it determines that the minimum
term of imprisonment for the felony offender is to be set at a
Level II or Level III punishment”). The court then scheduled an
evidentiary hearing on these claims for April 20, 2020. It also
appointed counsel for Suitt.
On April 13, 2020, the court amended its previous order to
address additional claims for relief added by Suitt – these were
denied. The amended order retained a footnote from the previous
order mentioning that if the HPA held a new minimum term
hearing, Suitt’s remaining claims would be mooted. 1
On May 12, 2020, Suitt’s counsel called Suitt and informed
him, apparently for the first time, that the circuit court had
denied all of his claims except for the ones relating to his
minimum term sentencing. He told Suitt that the next day was
the last day he could appeal, that is, if he wanted to appeal.
Suitt did. Over the phone, Suitt told his attorney to
appeal “any and all grounds the court denied.” Then he
1 The footnote stated:
In the event HPA agrees to conduct a new minimum term
hearing pursuant to State v. Lewi and appoints new
substitute counsel for Petitioner, this would obviate the
need for this court to conduct an evidentiary hearing on
all of these grounds -- 4-8, 24, 25, and 39, relating to
the HPA minimum term hearing Level 3 determination, and
Grounds 2-3, 9, 26, 31, and 43, related ineffective
assistance of counsel as to the HPA minimum term hearing.
If HPA agreed to conduct a new minimum term hearing with
new counsel, all of these claims would be rendered moot.
3
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
memorialized this request in a letter to his attorney. 2 The day
of the call, Suitt’s attorney submitted an appeal of the April
13 Order. 3 However the proceedings had not yet concluded in the
circuit court.
On May 14, 2020, the HPA responded to the April 13 Order.
The HPA represented that it had scheduled a new minimum term
hearing for Suitt, which mooted his remaining claims. 4 On May
20, 2020, the circuit court issued a new order. It dismissed
2 Suitt’s letter read in relevant part:
Greetings, in summary of our discussion on 5/12/2020, I
have the following understandings:
I was notified by you verbally that the court denied my
grounds in my HRPP Rule 40 Petition, except for those
relating to Levi vs State, and that 5/13/2020 was the last
day I could appeal. I expressed to you that I wanted to
Appeal any and all grounds the court denied, grounds 1-55
of record under my HRPP Rule 40 Petition SPP. NO. 16-1-
0011. I further had my brother Clayton text to you that I
wanted an Appeal for all denied grounds on 5/13/2020. I do
appreciate that you notified of my right to appeal; the
court denied the grounds without notification to me and I
was “surprised” when you informed me of the denied grounds
in my Rule 40. You are well aware of my intention to
exhaust state remedies and pursue Federal review of the
actions of the First Circuit Court and its officers in my
criminal case, as well as the procedures of the HPA which I
believe are in violation of Constitutional and U.S. Supreme
Court law.
3 Suitt’s counsel submitted an amended appeal on the next day, May 13.
The changes are irrelevant to this appeal. Counsel included the words
“court-appointed” and attached the order appointing him.
4 The HPA’s response stated:
In this case, the HPA has scheduled a new minimum term
hearing. The claims against the HPA in the instant
petition are therefore moot because this court can no
longer grant the effective relief. Accordingly, the
remaining claims against HPA should be dismissed, with the
corresponding evidentiary hearing set for May 26, 2020 for
these claims should be vacated.
4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
the remaining claims in the petition as moot and vacated the
scheduled evidentiary hearing.
Suitt’s counsel didn’t file a notice of appeal from the May
20 Order. And he didn’t file an opening brief for his appeal of
the April 13 Order. Nor did he ask the court for an extension.
On August 28, the ICA warned Suitt’s counsel that the time to
file the briefs had expired and that the appeal could be
dismissed under Hawaiʻi Rules of Appellate Procedure (HRAP) Rule
30. Almost a month later, on September 24, Suitt’s counsel
submitted a motion asking for a temporary remand to the circuit
court so that he could withdraw as counsel there. In the same
motion, Suitt’s counsel sought an extension of time on the
opening brief. The ICA construed this as a request for relief
from the defaulted opening brief and granted both parts of the
motion. On November 16, Suitt’s counsel filed a motion to
withdraw in the circuit court. The circuit court promptly
granted his motion and Suitt’s current counsel was appointed.
On May 31, 2022, the ICA dismissed Suitt’s appeal for lack
of appellate jurisdiction because the appeal had not been taken
from a final order. It found that neither HRAP Rule 4(b)(4)’s
Premature Notice exception nor the exceptions identified in
5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Grattafiori v. State, 79 Hawaiʻi 10, 13, 897 P.2d 937, 940 (1995)
for untimely appeals applied. 5
Suitt appealed. Suitt argues that the April 13 Order was
in fact a final order.
As a question of law, the existence of jurisdiction is
reviewed de novo under the right/wrong standard. See Lingle v.
Hawaiʻi Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO, 107
Hawaiʻi 178, 182, 111 P.3d 587, 591 (2005).
II.
The right of appeal derives from statute. See Chambers v.
Leavey, 60 Haw. 52, 56, 587 P.2d 807, 810 (1978). In this case,
HRPP Rule 40(h) authorizes defendants to appeal judgments
entered in post-conviction proceedings. Such appeals must
comply with HRAP Rule 4(b), and like all appeals, are subject to
a finality requirement. See State v. Baranco, 77 Hawaiʻi 351,
5 The ICA stated:
In an appeal from a circuit-court proceeding involving an
HRPP Rule 40 petition for post-conviction relief,
we have permitted belated appeals under two
sets of circumstances, namely, 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 Hawaiʻi at 13–14, 897 P.2d at 940–41
(citation omitted). However, neither exception
applies to the instant case.
6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
353, 884 P.2d 729, 731 (1994); State v. Nicol, 140 Hawaiʻi 482,
489, 403 P.3d 259, 266 (2017).
A final order “means an order ending the proceedings,
leaving nothing further to be accomplished.” Familian
Northwest, Inc. v. Cent. Pac. Boiler & Piping, Ltd., 68 Haw.
368, 370, 714 P.2d 936, 937 (1986); see also State v. Kalani, 87
Hawaiʻi 260, 261, 953 P.2d 1358, 1359 (1998) (assuming that
“final order” has the same meaning in the civil and criminal
context). An order is not final “if the matter is retained for
further action.” Familian Northwest, 68 Haw. at 370, 714 P.2d
at 937.
We agree with the ICA that the April 13 Order was not
final. The order did not end the Rule 40 proceeding; it
scheduled a further proceeding — an evidentiary hearing on
several of Suitt’s grounds for relief. It was not until the May
20, 2020 order, which vacated the hearing and dismissed the
remaining claims, that the court fully resolved Suitt’s claims
for the purpose of appeal.
Rule 4(b) does contain an exception. A notice of appeal
“filed after the announcement of a decision, sentence or order
but before entry of the judgment or order” is treated as if it
were filed after entry of the order. HRAP Rule 4(b)(4). In the
prototypical example, a judge delivers an oral order, with some
time elapsing before the order is formally entered. See, e.g.,
7
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Shimabuku v. Montgomery Elevator Co., 79 Hawaiʻi 352, 356, 903
P.2d 48, 52 (1995). The Premature Notice of Appeal exception
prevents technicality from displacing substance. If a final
order has been clearly communicated by the court, parties should
not be penalized for appealing before that order is formally
entered. This exception, though, does not remove the
requirement that the order announced be a final one. See
Grattafiori, 79 Hawaiʻi at 14, 897 P.2d at 941 (holding that HRAP
Rule 4(b)(4) does not apply when “the court has rendered no
decision whatsoever”); see also Wong v. Takeuchi, 83 Hawaiʻi 94,
101, 924 P.2d 588, 595 (App. 1996).
Here, no final order was announced prior to the May 20
Order. It is true that the April 13 Order foreshadows the
case’s ultimate disposition. Footnote 3 of the order notes that
the HPA could moot Suitt’s remaining claims by setting a new
hearing. This is precisely what the HPA did. But at the time
Suitt’s appeal was filed, he had no way of knowing what action
the HPA would take. And a court indicating what it would most
likely do, if one of the parties were to act in a certain way,
is too indefinite and conditional to constitute the announcement
of a final order.
Because the April 13 Order was not final and does not fall
within the HRAP Rule 4(b)(4) exception, the appeal did not give
rise to appellate jurisdiction.
8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
However, the April 13 Order’s lack of finality is not the
end of the story. Hawaiʻi appellate courts permit belated
appeals when defense counsel has acted inexcusably or
ineffectively in pursuing an appeal. See Grattafiori, 79 Hawaiʻi
at 14, 897 P.2d at 941. The ICA did not think this exception
applied to Suitt’s case, perhaps because Grattafiori appears to
confine the exception to appeals “in the first instance.” Id.While Suitt did not contest this point in his cert application,
we raise it due to its constitutional significance. See State
v. Pitts, 131 Hawaiʻi 537, 541, 319 P.3d 456, 460 (2014). Here,
we part ways with the ICA’s analysis.
Since Grattafiori, we have decided several key ineffective
assistance of counsel cases. These cases make clear that the
right to effective counsel goes further than appeals in the
first instance. See, e.g., State v. Uchima, 147 Hawaiʻi 64, 76,
464 P.3d 852, 864 (2020) (holding that a defendant has a right
to the effective assistance of counsel during certiorari
review).
Maddox v. State, 141 Hawaiʻi 196, 407 P.3d 152 (2017) is on
point. In Maddox, we considered an appeal rendered untimely by
the procedural lapses of defense counsel. We began with the
basic premise that defendants have a right to counsel under
article I, section 14 of the Hawaiʻi Constitution. To vindicate
this right, counsel have “an ongoing obligation to [the
9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
defendant] that include[s] pursuing an appeal if [the defendant]
chose this course.” Id. at 203, 407 P.3d at 159. This right to
counsel encompasses “the procedural steps necessary to bring
about the appeal.” Id. It follows that defense counsel have a
“duty to diligently fulfill the procedural requirements of
appeal if the defendant elects to appeal.” Id. When counsel’s
procedural failures deny the defendant an appeal, the defendant
“need not demonstrate any additional possibility of impairment
to establish that counsel was ineffective.” Id. at 206, 407
P.3d at 162.
Suitt made clear that he wanted to exercise his statutory
right to appeal the dismissal of his Rule 40 claims. Not
content to communicate this to his attorney over the phone, he
repeated his intent in writing. Of course, Suitt could not have
been expected to know that his attorney had given him inaccurate
information. May 13 was not the last day Suitt had to appeal —
rather, any appeal would lack jurisdiction until all the grounds
in the petition had been disposed of by the court.
We presume prejudice to Suitt from his counsel’s failure to
take the procedural steps necessary to kick-start an appeal that
Suitt clearly desired.
The appropriate remedy is consideration of the appeal on
its merits. See Uchima, 147 Hawaiʻi at 80-81, 464 P.3d at 868-69
(noting that proceeding to the merits when the failure to timely
10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
file results from the ineffective assistance of counsel prevents
“unnecessary delay to the defendant whose rights have been
adversely affected”). We also clarify that the exception
outlined in Grattafiori for untimely appeals based on
ineffective counsel is not confined to appeals in the first
instance. It covers any instance where ineffective counsel has
nullified a defendant’s statutory right of appeal.
III.
For the reasons stated above, we vacate the ICA’s May 31,
2022 Order and remand this case to the ICA to address the merits
of the appeal.
Kai Lawrence /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Donn Fudo /s/ Sabrina S. McKenna
(on the briefs)
/s/ Michael D. Wilson
for respondent State of Hawaiʻi
/s/ Todd W. Eddins
Laura K. Maeshiro and
Craig Y. Iha (on the briefs)
for respondent Hawaiʻi Paroling
Authority, State of Hawaiʻi
11