State v. Grandinetti ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2020
09:59 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
FRANCIS A. GRANDINETTI, also known as ALBERT FERNANDEZ,
also known as FRANK MYERS, also known as FRANK IRANDINE,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PC930000141)
ORDER
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
AND
DISMISSING ALL PENDING MOTIONS AS MOOT
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over the non-conforming notice of appeal that
Defendant-Appellant Francis A. Grandinetti (Grandinetti) has
asserted, apparently from (1) the Honorable Greg K. Nakamura's
November 25, 2019 post-judgment order granting withdrawal of
counsel, and (2) a decision by the Hawai#i Paroling Authority
regarding the sentence that Grandinetti is currently serving for
his November 8, 1993 conviction in Circuit Court Criminal Case
Number 3PC930000141 for one count of forgery in the second degree
in violation of Hawaii Revised Statutes (HRS) § 708-852 (1993)
and three counts of theft in the second degree in violation of
HRS § 708-831 (1993).
"The right of appeal in a criminal case is purely
statutory[.]" State v. Nicol, 140 Hawai#i 482, 485, 403 P.3d
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
259, 262 (2017) (citation and internal quotation marks omitted).
In circuit court criminal cases, a defendant may appeal from a
judgment of conviction pursuant to HRS § 641-11 (2016), a
certified interlocutory order pursuant to HRS § 641-17 (1016),
"or from an interlocutory order denying a motion to dismiss based
on double jeopardy." State v. Kealaiki, 95 Hawai#i 309, 312, 22
P.3d 588, 591 (2001) (citation omitted). The November 25, 2019
post-judgment order granting withdrawal of counsel does not
appear to qualify as an appealable final order under any of these
statutes. In fact, the November 25, 2019 post-judgment order
also appoints the Office of the Public Defender as substitute
counsel, which indicates the existence of an ongoing proceeding
(e.g., perhaps the Hawai#i Paroling Authority proceeding) in
which the November 25, 2019 order is interlocutory in nature,
rather than final, and, thus, not independently appealable.1
The circuit court entered its judgment of conviction
against Grandinetti in this case multiple decades ago on
November 8, 1993, and, thus, it is clear that Grandinetti is not
appealing directly from his conviction in the first instance.
Nevertheless, even if one assumes that the November 25, 2019
post-judgment order granting withdrawal of counsel somehow
qualifies as an appealable final post-judgment order,
Grandinetti's appeal would still need to be timely as to the
November 25, 2019 post-judgment order, because the issue whether
an appellant "compli[ed] with the requirement of the timely
filing of a notice of appeal, as set forth in HRAP Rule 4(b)(1),
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For example, the Supreme Court of Hawai#i has held that an
analogous order granting a motion to disqualify counsel is not appealable
under the collateral order doctrine, because doing so would invite the delay
of piecemeal appeals. Chuck v. St. Paul Fire & Marine Ins. Co., 61 Haw. 552,
556-57, 606 P.2d 1320, 1323-24 (1980). Similarly, orders denying
disqualification are interlocutory and hence not appealable. Gomes v. Heirs
of Kauwe, 52 Haw. 126, 127, 472 P.2d 119, 120 (1970); Wong v. Fong, 60 Haw.
601, 604, 593 P.2d 386, 389 (1979). Instead of an interlocutory appeal, "a
petition for a writ of mandamus and/or prohibition is an appropriate vehicle
for reviewing an order of disqualification." Straub Clinic & Hosp. v. Kochi,
81 Hawai#i 410, 414, 917 P.2d 1284, 1288 (1996) (citation omitted). It seems
that the same rationale applies to an order allowing counsel to withdraw. The
November 25, 2019 order is a non-final order that is not independently
appealable.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
is jurisdictional." State v. Bohannon, 102 Hawai#i 228, 234, 74
P.3d 980, 986 (2003) (citations, internal quotation marks, and
original brackets omitted). On January 23, 2020, Grandinetti, as
a self-represented prisoner,2 tendered to prison officials, for
mailing, his notice of appeal for appellate court case number
CAAP-XX-XXXXXXX, but not within thirty days after entry of the
November 25, 2019 post-judgment order granting withdrawal of
counsel, as HRAP Rule 4(b)(1) required for a timely appeal.
Therefore, even if the November 25, 2019 post-judgment order was
somehow appealable, we would lack appellate jurisdiction to
review it.
With respect to Grandinetti's apparent attempt to
appeal from a decision by the Hawai#i Paroling Authority, the
statute that governs the Hawai#i Paroling Authority's procedure
for considering parole is HRS § 706-670 (2014), which does not
authorize an appeal from a Hawai#i Paroling Authority decision
directly to this court. The Supreme Court of Hawai#i and this
court have acknowledged that the appropriate means for a criminal
defendant to challenge the Hawai#i Paroling Authority's decision
to deny parole is by petitioning a circuit court for post-
conviction relief in a special proceeding pursuant to Rule 40 of
the Hawai#i Rules of Penal Procedure (HRPP). Williamson v.
Hawai#i Paroling Authority, 97 Hawai#i 183, 194-95, 35 P.3d 210,
221-22 (2001); Turner v. Hawai#i Paroling Authority, 93 Hawai#i
298, 307, 1 P.3d 768, 777 (App. 2000). After the circuit court
adjudicates the HRPP Rule 40 petition, the criminal defendant can
appeal from the circuit court's judgment directly to the Hawai#i
Intermediate Court of Appeals pursuant to HRS § 641-11 and
2
HRAP Rule 4(b)(1) provides that, "[i]n a criminal case, the notice
of appeal shall be filed within 30 days after entry of the judgment or order
appealed from." The Supreme Court of Hawai #i has held that, when a self-
represented prisoner attempts to assert an appeal from a civil case, the
"notice of appeal is deemed filed for purposes of Hawai #i Rules of Appellate
Procedure (HRAP) Rule 4(a) on the day it is tendered to prison officials by a
pro se prisoner." Setala v. J.C. Penney Co., 97 Hawai #i 484, 485, 40 P.3d
886, 887 (2002) (internal quotation marks omitted). In the instant criminal
case, HRAP Rule 4(b)(1) provides the controlling time period for filing a
notice of appeal rather than HRAP Rule 4(a)(1).
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HRPP Rule 40(h). Grattafiori v. State, 79 Hawai#i 10, 13, 897
P.2d 937, 940 (1995). The record does not show that Grandinetti
has sought judicial review of the Hawai#i Paroling Authority's
decision by way of a petition to the circuit court for post-
conviction relief pursuant to HRPP Rule 40. Absent a timely
appeal from an appealable judgment or order, we lack jurisdiction
over this appeal by Grandinetti.
Therefore, IT IS HEREBY ORDERED that appellate court
case number CAAP-XX-XXXXXXX is dismissed for lack of appellate
jurisdiction.
IT IS FURTHER HEREBY ORDERED that all pending motions
in appellate court case number CAAP-XX-XXXXXXX are dismissed as
moot.
DATED: Honolulu, Hawai#i, May 20, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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