** NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER **
Electronically Filed
Supreme Court
SCWC-14-0001105
21-FEB-2018
02:50 PM
SCWC-14-0001105
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
JAMES MCDANIEL, Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001105; CR. NO. 13-1-0755(1))
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant James McDaniel
challenges the Intermediate Court of Appeals’ (“ICA”) order
dismissing his appeal for lack of appellate jurisdiction.
On October 16, 2013, McDaniel was charged by felony
information in the Circuit Court of the Second Circuit (“circuit
court”) with three counts of theft in the second degree.
McDaniel pleaded no contest to count one in exchange for the
State’s agreement to dismiss counts two and three. McDaniel was
represented by court-appointed counsel Cary Virtue. On June 18,
2014, the circuit court entered a judgment of conviction and
probation sentence adjudging McDaniel guilty of one count of
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theft in the second degree.1 McDaniel was sentenced to four
years of probation with special conditions, including one day of
imprisonment, restitution, and community service.
On September 5, 2014, McDaniel, pro se, filed a notice
of appeal from the judgment of conviction and probation
sentence, along with an ex parte motion for extension of time to
file the notice of appeal, which the circuit court granted. The
State contested jurisdiction, arguing that McDaniel’s appeal was
untimely under Hawaii Rules of Appellate Procedure (“HRAP”) Rule
4(b) (2012). On March 16, 2015, pursuant to an order to show
cause issued by the ICA directing Virtue to respond, Virtue
filed a declaration, stating inter alia that he received a copy
of the judgment and sentence, that McDaniel did not ask him to
file an appeal, and that McDaniel never called, wrote, or
communicated a desire to appeal the sentence. Following a
temporary remand to the circuit court requested by Virtue to
hear and determine a motion for withdrawal and substitution of
counsel,2 the ICA entered an order dismissing the appeal without
prejudice for lack of jurisdiction. The ICA determined that
McDaniel’s appeal, which was filed outside of the required
1
The Honorable Rhonda I. L. Loo presided.
2
On remand, Virtue filed a motion to withdraw as counsel and
to appoint appellate counsel, which the circuit court granted. The
court subsequently appointed Matthew Kohm to represent McDaniel on
appeal.
2
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thirty-day period, did not fall within a recognized exception to
the general requirement that the notice of appeal be timely
filed. The ICA reasoned that McDaniel did not request that
counsel bring an appeal on his behalf, adding that McDaniel
“failed to even allege he communicated his desire to appeal to
counsel. . . .”
In his application, McDaniel presents one question for
review: whether an untimely appeal should be excused where the
record indicates that court-appointed counsel failed to counsel
an indigent defendant about his right to appeal or communicate
with the defendant after receiving a filed copy of the judgment
of conviction.
While HRAP Rule 4(b) provides that a notice of appeal
in a criminal case “shall be filed within 30 days after entry of
the judgment or order appealed from” or within a timely extended
thirty-day period, “courts may permit an untimely appeal when
‘defense counsel has inexcusably or ineffectively failed to
pursue a defendant’s appeal from a criminal conviction’” in the
first instance. Maddox v. State, 141 Hawaii 196, 205, 407 P.3d
152, 161 (2017) (quoting State v. Knight, 80 Hawaii 318, 323,
909 P.2d 1133, 1138 (1996)). In Maddox, we stated that defense
counsel in a criminal case has a duty “to consult with a
defendant following a final order or judgment to determine
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whether the defendant wishes to appeal, as well as a duty to
diligently fulfill the procedural requirements of appeal if the
defendant elects to appeal.” 141 Hawaiʻi at 203, 407 P.3d at
159. Pursuant to Maddox, although McDaniel’s appeal was not
filed within the prescribed time period, the record does not
demonstrate that Virtue consulted with McDaniel to determine
whether McDaniel wished to appeal. Inasmuch as McDaniel “is
entitled, on his first appeal, to court-appointed counsel who
may not deprive him of his appeal by electing to forego
compliance with procedural rules,” id. (emphasis omitted)
(quoting State v. Erwin, 57 Haw. 268, 270, 554 P.2d 236, 238
(2976)), the ICA has jurisdiction to consider McDaniel’s appeal.
IT IS HEREBY ORDERED that the ICA’s September 29, 2017
order dismissing the appeal for lack of jurisdiction is vacated,
and the case is remanded to the ICA for further proceedings.
DATED: Honolulu, Hawaii, February 21, 2018.
Matthew S. Kohm /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Richard K. Minatoya
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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