Karagianes v. State (Order Dismissing Appeal for Lack of Appellate Jurisdiction)

GARY KARAGIANES, Petitioner-Appellant, v.
STATE OF HAWAI‘I, Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(S.P.P. NO. 08-1-0008; CR. NO. 92-0340)

ORDER DISMISSING APPEAL
FOR LACK OF APPELLATE JURISDICTION
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Upon review of the record, it appears that we lack jurisdiction over the appeal that Petitioner-Appellant Gary Karagianes (Appellant Karagianes) has asserted from the Honorable Shackley F. Raffetto's September 10, 2008 "Findings of Fact, Conclusions of Law, and Judgment Denying Rule 40 Petition for Post-Conviction Relief" (the September 10, 2008 order) and September 15, 2008 "Denial of First Amended Petition to Vacate, Set Aside, or Correct Judgement [sic] or to Release Petitioner from Custody" (the September 15, 2008 order) because the appeal is untimely under Rule 4(b) of the Hawai‘i Rules of Appellate Procedure (HRAP).

This appeal arises out of Appellant Karagianes's attempt to obtain post-conviction relief pursuant to Rule 40 of the Hawai‘i Rules of Penal Procedure (HRPP). "[P]ursuant to HRAP Rule 4(b), an appeal from an order denying post-conviction relief must either be filed within thirty days after the entry of the order denying the HRPP Rule 40 petition or, in the alternative, after the announcement but before the entry of the order." Grattafiori v. State, 79 Hawai‘i 10, 13, 897 P.2d 937, 940 (1995). Under similar circumstances, the supreme court has held that, when a pro se prisoner attempts to assert an appeal, 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 Company, 97 Hawai‘i 484, 485, 40 P.3d 886, 887 (2002) (internal quotation marks omitted). In the instant case, HRAP Rule 4(b) provides the controlling time period for filing a notice of appeal rather than HRAP Rule 4(a), but the holding in Setala applies to the instant case. Although the file-stamped date on Appellant Karagianes's notice of appeal is January 9, 2009, Appellant Karagianes tendered his notice of appeal to prison officials for mailing on January 5, 2009, and, thus, the controlling date is January 5, 2009. However, contrary to the thirty-day time limitation under HRAP Rule 4(b)(1), Appellant Karagianes did not tender his January 5, 2009 notice of appeal within thirty days after entry of the September 10, 2008 order or the September 15, 2008 order. Therefore, Appellant Karagianes's appeal is not timely.

"In criminal cases, [the supreme court] ha[s] made exceptions to the requirement that notices of appeal be timely filed." State v. Irvine, 88 Hawai‘i 404, 407, 967 P.2d 236, 239 (1998). Specifically, the supreme court has permitted untimely appeals under two sets of circumstances:

(1) [when] defense counsel has inexcusably or ineffectively failed to pursue a defendant's appeal from a criminal conviction in the fist instance, or (2) [when] the lower court's decision was unannounced and no notice of the entry of judgment was ever provided.

Appellant Karagianes's motion for reconsideration of the September 10, 2008 order and the September 15, 2008 order, which Appellant Karagianes tendered to prison officials for mailing on September 19, 2008, did not extend the time period for filing a notice of appeal pursuant to HRAP Rule 4(b)(2), because Appellant Karagianes's motion for reconsideration was neither a motion in arrest of judgment under HRPP Rule 34 nor a motion for a new trial under HRPP Rule 33. Therefore, Appellant Karagianes's motion for reconsideration did not extend the standard thirty-day time period under HRAP Rule 4(b)(1) for filing a notice of appeal.

Appellant Karagianes's appeal is not timely. "As a general rule, compliance with the requirement of the timely filing of a notice of appeal is jurisdictional, . . . and we must dismiss an appeal on our motion if we lack jurisdiction." Grattafiori, 79 Hawai‘i at 13, 897 P.2d at 940 (citations, internal quotation marks, and brackets omitted); HRAP Rule 26(b) ("[N]o court or judge or justice is authorized to change the jurisdictional requirements contained in Rule 4 of these rules.").