Tenis v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-MAY-2022
07:48 AM
Dkt. 70 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CHRISTOPHER TENIS, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee,
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR181000014)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Self-represented Petitioner-Appellant Christopher Tenis
appeals from the "Order Dismissing Christopher Tenis' [sic]
Hawaii [sic] Rules of Penal Procedure Rule 40 Petition, Filed
June 26, 2018, Without Hearing" entered by the Circuit Court of
the First Circuit on March 6, 2020.1 For the reasons explained
below, we affirm the Order.
A.
We must first address the statement contesting
jurisdiction filed by Respondent-Appellee State of Hawai#i.
Although the State did not move to dismiss, we have "an
independent obligation to ensure jurisdiction over each case."
State v. Smith, 149 Hawai#i 153, 163, 484 P.3d 166, 176 (App.
1
The Honorable Rowena A. Somerville presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2021) (cleaned up). The Order was entered on March 6, 2020.
Under Rule 4(b)(1) of the Hawai#i Rules of Appellate Procedure
(HRAP), a notice of appeal was due within 30 days, or by April 6,
2020.2 Tenis's notice of appeal was tendered to prison officials
on May 28, 2020. See Setala v. J.C. Penney Co., 97 Hawai#i 484,
485, 40 P.3d 886, 887 (2002) (holding that self-represented
prisoner's notice of appeal is deemed filed on the day it is
tendered to prison officials). However, the record indicates
that the Order was not mailed to the prison where Tenis was
incarcerated until May 4, 2020, and was received by the prison on
May 11, 2020. Under these circumstances, where Tenis's notice of
appeal is deemed filed within 30 days after he received notice of
the Order, his notice of appeal was timely. See Grattafiori v.
State, 79 Hawai#i 10, 13-14, 897 P.2d 937, 940-41 (1995) (noting
that belated appeals have been permitted when "the lower court's
decision was unannounced and no notice of the entry of judgment
was ever provided"). We have jurisdiction to consider Tenis's
appeal.
B.
On September 6, 2012, the grand jury indicted Tenis on
four counts of Sexual Assault in the First Degree in violation of
Hawaii Revised Statutes (HRS) § 707-730(l)(b) or (c), and seven
counts of Sexual Assault in the Third Degree in violation of HRS
§ 707-732(1)(b) or (c). Tenis pleaded not guilty. He later
entered into a plea agreement with the State by which he agreed
to plead guilty to four reduced charges of Sexual Assault in the
Second Degree in violation of HRS § 707-731(1)(a) and to the
seven charges of Sexual Assault in the Third Degree. He pleaded
guilty on November 26, 2012. On February 12, 2014, he was
sentenced to ten years on each count of sexual assault in the
2
The 30th day after March 6, 2020, was actually Sunday, April 5,
2020. See HRAP Rule 26(a).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
second degree and to five years on each count of sexual assault
in the third degree, all sentences to be served concurrently.
On June 26, 2018, a self-represented Tenis filed a 267-
page "Petition for Post-Conviction Relief" under Rule 40 of the
Hawai#i Rules of Penal Procedure (HRPP). The Petition stated
eight grounds for relief: (1) ineffective assistance of counsel;
(2) unlawfully induced plea; (3) prejudice by counsel; (4)
erroneous advice by counsel; (5) counsel failed to advocate for
defendant; (6) counsel failed to exercise discovery rights;
(7) failure of the State to provide evidence to defendant that
was favorable to defendant; and (8) prosecutorial misconduct;
breach of plea. The circuit court dismissed the Petition without
a hearing; the Order was entered on March 6, 2020. This appeal
followed.
C.
We review an order denying an HRPP Rule 40 petition de
novo. Rapozo v. State, 150 Hawai#i 66, 77-78, 497 P.3d 81, 92-93
(2021).
The only discernible argument made in Tenis's opening
brief is that the trial court failed to personally address him
about his right of allocution during his sentencing hearing.
Tenis's Petition raised eight issues; none of them concerned
allocution. The State's response to the Petition addressed all
eight issues raised; the State's response did not address
allocution. The circuit court's March 6, 2020 Order ruled on all
eight issues raised in the Petition; the Order did not rule on
allocution.3 Because "the general rule is that an issue which
was not raised in the lower court will not be considered on
appeal," we decline to address Tenis's claim that the trial court
failed to personally address him about his right of allocution
3
We take judicial notice, pursuant to Rule 201 of the Hawaii Rules
of Evidence (HRE), that Tenis filed a motion for reconsideration in the
circuit court on March 2, 2021. That motion raised the allocution issue. The
State's memorandum in opposition was filed on March 15, 2021. As of May 12,
2022, the circuit court has not ruled on the motion.
3
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during his sentencing hearing. See Stanley v. State, 76 Hawai#i
446, 451, 879 P.2d 551, 556 (1994) (cleaned up) (declining to
address issue raised for the first time on appeal from order
denying HRPP Rule 40 petition).4
D.
For the foregoing reasons, the "Order Dismissing
Christopher Tenis' [sic] Hawaii [sic] Rules of Penal Procedure
Rule 40 Petition, Filed June 26, 2018, Without Hearing" entered
by the circuit court on March 6, 2020, is affirmed, without
prejudice to the circuit court's pending disposition of Tenis's
motion for reconsideration below or his separately filed HRPP
Rule 40 petition or to any timely appeal arising therefrom.
DATED: Honolulu, Hawai#i, May 19, 2022.
On the briefs:
/s/ Katherine G. Leonard
Christopher Tenis, Presiding Judge
Self-represented Petitioner-
Appellant. /s/ Keith K. Hiraoka
Associate Judge
Sonja P. McCullen,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Respondent-Appellee.
4
We also take judicial notice, pursuant to HRE Rule 201, that Tenis
filed a separate HRPP Rule 40 petition with the circuit court on April 1,
2021, in which he raises a claim of illegal sentence based upon the trial
court's failure to personally address him about his right of allocution during
his sentencing hearing.
4