Phanpradith v. State ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2021
08:20 AM
Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CHRISTOPHER ADAM PHANPRADITH, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR171000014)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Self-represented Petitioner-Appellant Christopher Adam
Phanpradith appeals from the "Order Denying Petitioner
Christopher A. Phanpradith's Petition for Post-conviction Relief
Without a Hearing," entered by the Circuit Court of the First
Circuit1 on May 17, 2018 (Order Denying Rule 40 Petition). For
the reasons explained below, we affirm.
On January 20, 2009, after a jury trial, Phanpradith
was convicted of sexual assault in the first degree (Count 1) and
sexual assault in the third degree (Counts 2 and 3). He was
sentenced to 20 years on Count 1 and five years on each of
Counts 2 and 3, to be served consecutively, for a total of 30
years.2 Phanpradith appealed. We affirmed. State v.
Phanpradith, No. 29625, 2010 WL 1027798 (Haw. App. Mar. 19, 2010)
(SDO).
1
The Honorable Edward H. Kubo, Jr. presided.
2
The Honorable Steven S. Alm presided over the trial and
sentencing.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On July 27, 2017, Phanpradith filed a Hawai#i Rules of
Penal Procedure (HRPP) Rule 40 Petition for post-conviction
relief. The circuit court entered the Order Denying Rule 40
Petition on May 17, 2018.
On June 14, 2019, Phanpradith filed a "Motion to Amend
Petition for Post Conviction Relief." The circuit court entered
the "Order Denying Motion to Amend Petition for Post Conviction
Relief" on July 9, 2019. Phanpradith filed his notice of appeal
on July 24, 2019.3
Appellate Jurisdiction
Phanpradith contends the circuit court erred by denying
his Rule 40 Petition. The Order Denying Rule 40 Petition was
entered on May 17, 2018. A notice of appeal from that order was
due within 30 days from entry of the order. Hawai#i Rules of
Appellate Procedure (HRAP) Rule 4(b)(1). The 30th day from
May 17, 2018, was Saturday, June 16, 2018. Because the deadline
fell on a Saturday, the deadline was extended to Monday, June 18,
2018. HRAP Rule 26(a). Phanpradith did not file his notice of
appeal until July 24, 2019, more than one year later. Compliance
with the requirement of the timely filing of a notice of appeal
is jurisdictional. Grattafiori v. State, 79 Hawai#i 10, 13, 897
P.2d 937, 940 (1995). "[N]o court or judge or justice is
authorized to change the jurisdictional requirements contained in
Rule 4[.]" HRAP Rule 26(b).
In this case, Phanpradith claims to have never received
the Order Denying Rule 40 Petition. The record on appeal
contains no notice of entry or other indication that the order
was served on Phanpradith, or on the State. The State's
answering brief candidly states, "It appears the State may not
have received timely service of the order [denying the Rule 40
petition] from the court."
3
Phanpradith's notice of appeal was filed by the appellate clerk on
July 31, 2019, but the record indicates that Phanpradith tendered the notice
of appeal to prison officials on July 24, 2019. 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 day it is tendered to prison
officials).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The Hawai#i Supreme Court has held that a belated
notice of appeal is permitted when "the lower court's decision
was unannounced and no notice of the entry of judgment was ever
provided" to the appellant. Grattafiori, 79 Hawaii at 13-14, 897
P.2d at 940-41 (citing State v. Caraballo, 62 Haw. 309, 315–316,
615 P.2d 91, 96 (1980)). Phanpradith contends he first learned
that his Rule 40 Petition had been denied when he received the
Order Denying Motion to Amend, which states the Order Denying
Rule 40 Petition was entered on May 17, 2018.
Phanpradith's notice of appeal was filed within 30 days
after entry of the Order Denying Motion to Amend. To promote
access to justice the Hawai#i Supreme Court instructs that
pleadings prepared by self-represented litigants should be
interpreted liberally. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020). Accordingly, we construe
Phanpradith's notice of appeal to also include a request for
relief under HRPP Rule 49(d).4 Because Phanpradith's notice of
appeal was filed within 30 days after he claims to have first
received notice that his Rule 40 Petition was denied, we hold
that we have jurisdiction over Phanpradith's appeal from the
Order Denying Rule 40 Petition.
Discussion
Phanpradith contends that the circuit court erred by
denying his Rule 40 Petition without a hearing under HRPP
Rule 40(g)(2). HRPP Rule 40 provides:
(g) Disposition.
. . . .
(2) AGAINST THE PETITIONER. The court may dismiss a petition
at any time upon finding the petition is patently frivolous, the
issues have been previously raised and ruled upon, or the issues
were waived. The court may deny a petition upon determining the
allegations and arguments have no merit.
4
HRPP Rule 49 provides, in relevant part:
(d) Relief upon failure to receive due notice. A
party who has failed to receive due notice or to be served
. . . may apply to the court for appropriate relief.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal from the denial of an HRPP Rule 40 petition
without a hearing, we conduct a de novo review of the record
before the circuit court; thus, the right/wrong standard of
review applies. Dan v. State, 76 Hawai#i 423, 427, 879 P.2d 528,
532 (1994).
On appeal Phanpradith argues that his 30-year
consecutive sentence was illegal because the sentencing court
failed to explain its reasons for imposing consecutive sentences
on the record, as required by State v. Hussein, 122 Hawai#i 495,
509, 229 P.3d 313, 327 (2010) (holding that "a court must state
its reasons as to why a consecutive sentence rather than a
concurrent one was required"); see State v. Kong, 131 Hawai#i 94,
102, 315 P.3d 720, 728 (2013) (citing Hussein); State v. Barrios,
139 Hawai#i 321, 335, 389 P.3d 916, 930 (2016) (same).
The requirement articulated in Hussein did not take
effect until April 21, 2010. Hussein, 122 Hawai#i at 510, 229
P.3d at 328. Phanpradith was sentenced on January 20, 2009, more
than a year before the Hussein requirement took effect. The
Hussein requirement did not apply when the circuit court
sentenced Phanpradith. Phanpradith's consecutive sentence was
not illegal. The circuit court was not wrong to deny the Rule 40
Petition without a hearing.
For the foregoing reasons, the circuit court's May 17,
2018 Order Denying Rule 40 Petition is affirmed.
DATED: Honolulu, Hawai#i, May 20, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Christopher Adam Phanpradith, Chief Judge
Self-represented
Petitioner-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Loren J. Thomas,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
City and County of Honolulu, Associate Judge
for Respondent-Appellee.
4