Petition of Carvelo

• Decision Date: 07 December 1959
• Docket Number: No. 4138,4138
• Citation: 352 P.2d 616,44 Haw. 31
• Parties: Matter of the Petition of Edward J. CARVELO, Invoking Supervisory Power to Remedy Manifest Injustice of Conviction and Imprisonment.
• Court: Hawaii Supreme Court

Page 616

352 P.2d 616

44 Haw. 31

Matter of the Petition of Edward J. CARVELO, Invoking

Supervisory Power to Remedy Manifest Injustice of

Conviction and Imprisonment.

No. 4138.

Supreme Court of Hawai'i.

Dec. 7, 1959.

Syllabus by the Court

1. The provision of R.L.H.1955, § 253-5, as amended by S.L.H.1957, c. 239, precluding appeal in forma pauperis if the trial court certifies in writing that the appeal is frivolous or not taken in good faith follows the provision of 28 U.S.C. § 1915(a), the constitutional validity of which is well established.

2. Denial by the trial court of appeal in forma pauperis upon a certification that the appeal is frivolous or not taken in good faith is subject to appellate review because the certification is not final in the sense that the defendant is barred from showing that it was unwarranted or that the appeal should be allowed.

3. Under R.L.H.1955, § 253-5, as amended, an indigent defendant desiring to appeal his conviction in forma pauperis is entitled to have the circuit court make a determination as to whether he may do so.

4. An indigent defendant is entitled to assistance of counsel in obtaining the determination of the trial court as to whether he may appeal in forma pauperis and in obtaining appellate review of any adverse determination.

5. Where an indigent defendant did not obtain the determination of the circuit court as to whether he may appeal in forma pauperis, to which he was entitled under R.L.H.1955, § 253-5, as amended, by the failure of his counsel to file timely application although requested, which failure was due to uncertainty not only on the part of counsel but also on the part of the courts as to counsel's duties in the light of the current development regarding indigent defendants' post-conviction rights, this court, in the exercise of its supervisory power under R.L.H.1955, § 214-3, will grant such defendant leave to file an application in the circuit court to obtain such determination, even after the statutory time to take an appeal has expired.

6. The provision of R.L.H.1955, § 253-5, that counsel fee provided therein 'shall be in full remuneration for all services in the circuit and supreme courts performed for the accused person in regard to the offense charged' does not necessarily require counsel to render appellate service before he becomes entitled to the maximum fee but means that once the maximum fee is allowed for trial service, no additional allowance will be made for appellate service, and the circuit court may allow the maximum fee for trial service only where the service rendered merits the allowance.

7. Where an indigent defendant appeals from a denial by the trial court of his application for leave to appeal in forma pauperis, he is entitled to be provided with appropriate means of making manifest the basis of his claim that the trial court committed error in certifying that the desired appeal was frivolous or not taken in good faith.

8. In ruling on an application for leave to appeal in forma pauperis, the trial court shall consider only matters in the record.

9. If the trial court is of the opinion that the appeal is frivolous and not taken in good faith, it is its duty to so certify.

10. Denial of an application for leave to appeal in forma pauperis is proper where the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent defendant.

11. Good faith of an appeal may not be predicated solely on defendant's belief that there were trial errors and that his appeal is meritorious, but has reference to the substance underlying the assertions of error.

12. On an appeal from a denial of leave to appeal in forma pauperis by the trial court, if counsel has a well founded opinion that the appeal is frivolous, the constitutional requirement of assistance of counsel is satisfied if he presents his opinion to the appellate court, with reasons therefor; in such case, if the appellate court is satisfied that counsel has diligently investigated the possible grounds of appeal and agrees with counsel's evaluation of the case, it may dismiss the appeal, but if, upon hearing counsel's presentation, it thinks that the appeal cannot necessarily be characterized as frivolous, it shall require counsel to brief and argue the case, as in other appeals.

13. R.L.H.1955, § 253-5, contemplates representation of indigent defendant by the same counsel both at the trial and in all post-conviction proceedings.

14. The right to assistance of counsel does not confer upon a defendant the right to free choice of counsel, but the choice rests with the court.

15. Granting of a new trial is not an appellate function but a function of the trial court.

16. A new trial may not be granted on the ground that conviction was obtained on perjured testimony in the absence of a showing that the prosecution was aware of the perjury.

Louis Le Baron, Honolulu, for petitioner.

Lincoln J. Ishida, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for the State.

Before TSUKIYAMA, C. J., MARUMOTO, CASSIDY and WIRTZ, JJ., and HEWITT, Circuit Judge, in place of LEWIS, J., disqualified.

MARUMOTO, Justice.

Edward J. Carvelo, petitioner, is a prisoner confined in Oahu Prison under a sentence imposed on him by the circuit court of the first circuit upon his conviction for burglary in the first degree. He was jointly indicted with Richard Kahalewai, Franklin Jackson and Richard Gushikuma, all of whom were convicted of the same crime. In this proceeding, he asks that this court afford him relief by exercising its supervisory power under R.L.H.1955, § 214-3. Specifically, he asks that this court grant him leave to appeal by way of writ of error despite the expiration of the statutory time to appeal his conviction.

This proceeding is another manifestation of the growing consciousness on the part of indigent defendants of their post-conviction rights following Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

Petitioner is represented in this court by Louis Le Baron, former associate justice, who has volunteered his services. Petitioner's defense at the trial was conducted by Larry Kuriyama, a licensed attorney, under an assignment by the circuit court pursuant to R.L.H.1955, § 253-5.

Although this is an original proceeding, we shall refer to petitioner's counsel in this court as 'appellate counsel' to distinguish him from petitioner's counsel at the trial, who will be referred to as 'assigned counsel.' The word 'defendant' will be used to mean any indigent defendant in a criminal case, and the word 'counsel,' used alone and without any qualification, will have reference to any member of the bar assigned under § 253-5. Also, under our procedure, there is no appeal as such in a criminal case, and appellate review of conviction may be obtained only by bill of exceptions or writ of error. However, we shall use the word 'appeal' to mean appellate review by writ of error, for such obviously is the sense in which appellate counsel has used it in the briefs filed on petitioner's behalf and at the oral argument.

Petitioner alleges that he was indicted for burglary in the first degree on April 4, 1957, and was arraigned on the following day, at which time he entered a plea of not guilty and requested assignment of counsel; that the court appointed assigned counsel to defend him upon a showing of indigency; that assigned counsel defended him at the trial which began on April 20, 1957, and ended four days later, when the jury returned a verdict of guilty as charged; that assigned counsel duly noted an exception to the verdict; that on July 1, 1957, he was sentenced to imprisonment in Oahu Prison for a term not to exceed 20 years; that, 'believing that the Territory of Hawaii at his trial had not proved the corpus delicti by a scintilla of evidence but had him convicted by perjured testimony with respect to other crimes and that he had a meritorious appeal,' he, immediately after the verdict and sentence and repeatedly for more than five months thereafter, requested, instructed and demanded assigned counsel to take an appeal; that he relied upon assigned counsel to carry out his request, and was frustrated from otherwise protecting his interest on appeal because he was destitute and was incarcerated without the means, ability or freedom to act for himself; and that assigned counsel, after noting an exception to the verdict, failed to take an appeal, presumably without notice to the court, and permitted the time for the taking of appeal to expire, although the court allowed him a fee of $250, being the 'full remuneration for all services in the circuit and supreme courts performed for the accused person in regard to the offense charged' under § 253-5. The allegations are uncontradicted and we assume them to be true for the purpose of this proceeding.

Appellate counsel urges upon this court that petitioner is entitled to the relief that he seeks because (a) defendant has a statutory right to appellate review of his conviction, (b) counsel has the duty of taking defendant's appeal whenever he is so requested although he may be of the opinion that the appeal is frivolous, and (c) defendant's loss of statutory right of appeal by counsel's failure to take timely appeal presents a proper case for the exercise of the supervisory power. Such contention requires a consideration of the statutory provisions governing appellate review of convictions and appeals in forma pauperis.

Under R.L.H.1955, §§ 212-1 and 212-5, writ of error to review a conviction issues as of right upon the filing of an application within 90 days after the imposition of sentence. But review on writ of error is based on the record made in the circuit court, and a defendant is as a matter of practical fact precluded from obtaining such review in the absence of provision for the furnishing of the circuit court record at public expense....