State v. Jefferson ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-SEP-2022
07:45 AM
Dkt. 79 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MICHELLE JEFFERSON, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Michelle Jefferson appeals from the
"Notice of Entry of Judgment and/or Order" entered by the
District Court of the First Circuit, Honolulu Division, on
June 19, 2020.1 For the reasons explained below, we affirm.
Jefferson was charged by complaint with Harassment in
violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(b). She
was arraigned on June 12, 2020. She was represented by a deputy
public defender (Arraignment Counsel). She pleaded not guilty.
Her oral motion for release from custody was denied. Bail was
set at $500. She was returned to custody.
Jefferson's trial was held on June 19, 2020. She was
represented by a different deputy public defender (Trial
Counsel). The district court heard testimony from the
1
The Honorable Alvin K. Nishimura presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
complaining witness, the husband of the complaining witness, and
Jefferson. The court found Jefferson guilty as charged. The
State requested a sentence of 10 days of incarceration with
credit for time served. Trial Counsel requested a sentence of
time served (7 days) and a waiver of fees due to inability to
pay. The court sentenced Jefferson to 7 days with credit for
time served, and waived fees due to inability to pay. The
Judgment was entered on June 19, 2020. This appeal followed.
Jefferson raises two points on appeal: (1) "Whether
Jefferson was denied her constitutional right to reasonable
bail?" and (2) "Whether Jefferson was deprived of [her]
constitutionally guaranteed right to effective assistance of
counsel?"
We must first address the issue of appellate
jurisdiction because 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. 2021) (cleaned up). The Judgment
was entered on June 19, 2020. Jefferson's notice of appeal was
due on July 20, 2020. See Hawai#i Rules of Appellate Procedure
(HRAP) Rules 4(b)(1) and 26(a).2 Her notice of appeal was filed
on August 14, 2020. She did not obtain an extension of time to
file the notice of appeal.
"[A]s a general rule, compliance with the requirement
of timely filing of a notice of appeal is jurisdictional[.]"
State v. Uchima, 147 Hawai#i 64, 77, 464 P.3d 852, 865 (2020)
(citations omitted). However, Jefferson expressed an intent to
appeal when she was sentenced. The supreme court "has allowed
untimely appeals when 'defense counsel has inexcusably or
ineffectively failed to pursue a defendant's appeal from a
criminal conviction in the first instance.'" Id. (citation
omitted). We conclude we have appellate jurisdiction.
2
The 30th day after June 19, 2020, was Sunday, July 19, 2020; the
deadline was accordingly extended to Monday, July 20, 2020.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(1) Jefferson could not afford bail. She acknowledges
she is raising the issue for the first time on appeal and claims
to have been denied her constitutional right against excessive
bail because the district court plainly erred when it failed to
determine she would "appear when directed[.]" Haw. Const.
art. I, § 12. We decline to recognize plain error because this
issue is moot. Jefferson served 7 days of pretrial detention.
She was sentenced to time served. There is no remedy or relief
that this court can provide for Jefferson, see Kaho#ohanohano v.
State, 114 Hawai#i 302, 332, 162 P.3d 696, 726 (2007) ("[A] case
is moot if the reviewing court can no longer grant effective
relief.") (italics and citation omitted), and she does not claim
any exception to mootness applies, Hamilton ex rel. Lethem v.
Lethem, 119 Hawai#i 1, 5-11, 193 P.3d 839, 843-49 (2008)
(addressing exceptions to the mootness doctrine).
(2) Jefferson claims to have been denied her right to
effective assistance of counsel because Trial Counsel failed to
timely file a notice of appeal. The late appeal issue is moot
because we have appellate jurisdiction (discussed above).
Jefferson contends that Arraignment Counsel was
ineffective because he failed to request a reduction in bail or a
determination that Jefferson would appear when directed. We
decline to address this issue because Jefferson did not serve her
amended opening brief upon Arraignment Counsel, as required by
HRAP Rule 28(a).3 In addition, the bail issue is moot as
discussed above.
Finally, Jefferson contends that Trial Counsel failed
to properly investigate the case. At trial, the complaining
witness testified that her neighbors witnessed what happened.
Jefferson argues that Trial Counsel failed to investigate whether
the neighbors would corroborate her version of events, and
whether any of them had taken cell phone videos that would have
3
We noted the deficiency and ordered that Jefferson's appellate
counsel serve her amended opening brief on the attorneys alleged to have been
ineffective. Jefferson served Trial Counsel, but not Arraignment Counsel.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
been favorable to her. Claims of ineffective assistance of
counsel based on a failure to investigate and obtain witness
testimony "must be supported by affidavits or sworn statements
describing the testimony of the proffered witnesses." State v.
Richie, 88 Hawai#i 19, 39, 960 P.2d 1227, 1247 (1998) (citations
omitted). Jefferson has not proffered any affidavits or sworn
statements to establish what the neighbors would have testified
to, whether any videos exist or, if so, what the videos show.
Her contention that Trial Counsel was ineffective is without
merit. See State v. Reed, 77 Hawai#i 72, 84, 881 P.2d 1218, 1230
(1994) (holding that without supporting affidavits or sworn
statements, the defendant's characterization of the witnesses'
potential testimony "amounts to nothing more than speculation"),
overruled on other grounds by State v. Balanza, 93 Hawai#i 279, 1
P.3d 281 (2000).
For the foregoing reasons, the Judgment entered by the
district court on June 19, 2020, is affirmed.
DATED: Honolulu, Hawai#i, September 16, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Nelson W.S. Goo, Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge
4