This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT. (FC-CR. NO. 12-1-0237(4)).
On the briefs: Kirstin Hamman, for Defendant-Appellant.
Peter A. Hanano, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.
By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Paul J. Bailey (Bailey) appeals from the Judgment; Conviction and Probation Sentence; Notice of Entry filed October 30, 2013 (Judgment) by the Family Court of the Second Circuit (Family Court).
Bailey pled no contest to two counts of Assault in the Second Degree (Hawaii Revised Statutes (HRS) § 707-711 (Supp. 2013)), as part of a plea agreement with Plaintiff-Appellee State of Hawai'i (State). Bailey moved for a deferred acceptance of his no contest plea (DANC), which was denied. He was convicted and sentenced to five years of probation with additional Special Terms and Conditions (Conditions) that included, inter alia, one year of imprisonment.
Bailey raises three points of error on appeal: (1) he was provided ineffective assistance of counsel when the Deputy Public Defender assigned to Bailey's case, James Rouse (Rouse), failed to timely file a notice of appeal and thus, Bailey's current appeal should not be dismissed as untimely; (2) the Family Court abused its discretion by denying Bailey's motion for a DANC, sentencing Bailey to a year in jail, and denying his Hawai'i Rules of Penal Procedure (HRPP) Rule 35 motion to reconsider sentence; and (3) the Family Court abused its discretion when it imposed the conditions listed as J, K, L, M, N, and P in Bailey's Sentence.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Bailey's points of error as follows:
(1) The Family Court twice extended Bailey's time to file a notice of appeal, finally setting a deadline at thirty days after January 17, 2014, which, as calculated under Hawai'i Rules of Appellate Procedure (HRAP) Rule 26(a), would be February 17, 2014. Although the time to file a notice of appeal in a criminal case ordinarily expires thirty days after entry of the judgment, a court may extend the time to file a notice of appeal but only up to an additional thirty days after the time to appeal has expired. HRAP Rule 4(b)(1), (5). Thus, the Family Court could only have permissibly extended Bailey's time to appeal to sixty days after the October 30, 2013 judgment. As Bailey's notice of appeal was filed on January 28, 2014, it was clearly untimely under HRAP Rule 4 (b).
The Hawai'i Supreme Court has previously stated:
As a general rule, compliance with the requirement of timely filing of a notice of appeal is jurisdictional, and we must dismiss an appeal on our motion if we lack jurisdiction. However, we have permitted belated appeals under certain circumstances, namely, when. .. defense counsel has inexcusably or ineffectively failed to pursue a defendant's appeal from a criminal conviction in the first instance.
State v. Knight, 80 Hawai'i 318, 323, 909 P.2d 1133, 1138 (1996) (citations, internal quotation marks, and brackets omitted). Both Bailey and the State agree that Rouse inexcusably failed to timely appeal Bailey's conviction and that this court should hear the merits of Bailey's appeal in the interests of justice. Rouse himself admitted to " dropping the ball." We conclude that Rouse's failure to timely appeal was inexcusable and deprived Bailey of effective assistance of counsel; thus, we will decide Bailey's appeal on the merits.
(2) As a preliminary matter, we consider Bailey's eligibility for a DANC under Hawai'i law. HRS Chapter 853 establishes when and how a court may defer acceptance of a defendant's guilty or no contest plea under HRS § 853-1, but such deferrals " are constrained by HRS § 853-4, which sets out the circumstances under which chapter 853 'shall not apply.'" State v. Sakamoto, 101 Hawai'i 409, 412, 70 P.3d 635, 638 (2003). Bailey was initially charged with four counts of Sexual Assault in the Third Degree, an offense for which a DANC is expressly not available. HRS § 853-4(a)(13)(P) (Supp. 2013). (" This chapter shall not apply when. .. [t]he offense charged is. .. Sexual ...