NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-JAN-2022
08:15 AM
Dkt. 30 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MATTHAN PATTIOAY, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR NO. 1PC161001676 (S.P.P. NO. 1PR101000015))
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Upon review of the document filed in this court by
self-represented Defendant-Appellant Matthan Pattioay (Pattioay),
apparently challenging a judgment entered in circuit court
criminal case number 1PC161001676, it appears that we lack
appellate jurisdiction under Hawaii Revised Statutes
(HRS) § 641-1(a) (2016) and Hawai#i Rules of Penal Procedure
(HRPP) Rule 40(h) because there is no judgment in the record from
which Pattioay can presently appeal.
On May 8, 2018, this court entered a Summary
Disposition Order in CAAP-XX-XXXXXXX that affirmed a May 17, 2017
judgment (Judgment) in criminal case number 1PC161001676 against
Pattioay for terroristic threatening in the first degree, in
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
violation of HRS § 707-716 (2014). On July 16, 2021, Pattioay
filed a "Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner from Custody" (7/16/21 Petition) as to the
Judgment with the Appellate Clerk's Office, which created this
appeal, appellate court case number CAAP-XX-XXXXXXX. The
appellate clerk then forwarded the 7/16/21 Petition to the
circuit court. In both cases, the clerks uploaded the 7/16/21
Petition into the Judiciary Electronic Filing System as a "notice
of appeal" rather than an HRPP Rule 40 petition.
Under "HRPP [Rule] 40(h), appeals from proceedings for
post-conviction relief may be made from a judgment entered in the
proceeding and must be taken in accordance with Rule 4(b) of the
Hawai#i Rules of Appellate Procedure (HRAP)." Grattafiori v.
State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995) (internal
quotation marks and brackets omitted). However, the circuit
court has not entered any orders, much less a final judgment, on
the 7/16/21 Petition. Absent a final order or judgment that is
appealable under HRS 641-1(a), we lack appellate jurisdiction,
and this appeal must be dismissed.
Pattioay's 7/16/21 Petition appears to be, in
substance, a non-conforming petition for post-conviction relief
from the May 17, 2017 Judgment, under HRPP Rule 40(c)(2), which
provides:
(2) Nonconforming Petition. Where a post-conviction
petition deviates from the form annexed to these rules, it
shall nevertheless be accepted for filing and shall be
treated as a petition under this rule provided that the
petition (i) claims illegality of a judgment or illegality
of "custody" or "restraint" arising out of judgment, (ii) is
accompanied by the necessary filing fee or by a well-founded
request to proceed without paying filing fees, and (iii)
meets minimum standards of legibility and regularity.
When treating a nonconforming petition as a petition
under this rule, the court shall promptly clarify by written
order that the requirements of this rule apply and, if the
information in the petition is incomplete, may require the
petitioner to file a supplemental petition in the form
annexed to these rules before requiring the state to
respond.
(Emphasis added.) Under these circumstances, it is appropriate
for the circuit court to adjudicate Pattioay's non-conforming
HRPP Rule 40(c)(2) petition for post-conviction relief in a
special proceeding.
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Therefore, IT IS HEREBY ORDERED as follows:
1. CAAP-XX-XXXXXXX is dismissed for lack of appellate
jurisdiction.
2. All motions in CAAP-XX-XXXXXXX are dismissed as
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moot.
3. Pattioay's 7/16/21 Petition filed in this court as
a "notice of appeal" is deemed to be a non-conforming HRPP Rule
40(c)(2) petition for post-conviction relief from the May 17,
2017 Judgment of conviction, and thus, the Circuit Court of the
First Circuit shall open a separate special proceeding for the
purpose of adjudicating Pattioay's July 16, 2021 non-conforming
HRPP Rule 40(c)(2) petition.
4. Upon entry of this order, the Appellate Court Clerk
shall transmit copies of this order and Pattioay's 7/16/21
Petition filed in CAAP-XX-XXXXXXX to the Circuit Court of the
First Circuit.
DATED: Honolulu, Hawai#i, January 7, 2022.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
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If necessary, Pattioay may re-file a motion for leave to proceed in
forma pauperis in the circuit court.
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