State v. Caraballo

• Decision Date: 15 July 1980
• Docket Number: No. 6583,6583
• Citation: 615 P.2d 91,62 Haw. 309
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Rocky Ronald CARABALLO, also known as Rocky Ronald Caravalho, Ronald Valentine Caravalho, Carlos R. Caraballo, Defendant-Appellant, and Daniel Wayne Figueroa and Valentino Buchan, Defendants.
• Court: Hawaii Supreme Court

Page 91

615 P.2d 91

62 Haw. 309

STATE of Hawaii, Plaintiff-Appellee, v. Rocky Ronald CARABALLO, also known as Rocky Ronald Caravalho, Ronald Valentine Caravalho, Carlos R Caraballo, Defendant-Appellant and Daniel Wayne Figueroa and Valentino Buchan, Defendants.

No. 6583.

Supreme Court of Hawai'i.

July 15, 1980.

Syllabus by the Court

1. A belated appeal may be granted where defendant withdrew his appeal based on counsel's erroneous advice and through no fault of his own.

2. A motion for new trial based on newly discovered evidence will only be granted if (1) the evidence has been discovered after trial; (2) such evidence could not have been discovered before or at trial through the exercise of due diligence; (3) the evidence is material to the issues and not cumulative or offered solely for purposes of impeachment; and (4) the evidence is of such nature as would probably change the result of a later trial.

3. A defendant's right to be present at all stages of his trial is of fundamental importance and is derived from the confrontation clause of the Fifth Amendment to the United States Constitution and made applicable to the states by the due process clause of the Fourteenth Amendment. This right is codified in Hawaii Rule of Criminal Procedure 43.

4. Where defendant has voluntarily absented himself after the trial has begun, this operates as a waiver of his right to be present and the trial may continue as if he were present.

5. Any violation of a defendant's constitutional rights is presumed prejudicial unless rebutted by the prosecution.

Michael K. Tateishi, Deputy Public Defender, Honolulu, for defendant-appellant.

Albert H. Esposito, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., KOBAYASHI, Retired Justice, and LUM, Circuit Judge, assigned by reason of vacancies.

RICHARDSON, Chief Justice.

Defendant-appellant Rocky Ronald Caraballo was convicted of first degree robbery and rape following a two-day jury trial and was sentenced to a twenty-year prison term. We affirm.

Defendant raises two main issues on appeal involving alleged violations of his constitutional rights during the trial. Before proceeding to the merits of his claims, however, this court must address the basis for its jurisdiction over the case. Tracing the unusual sequence of events leads to our finding that we have jurisdiction to hear defendant's appeal.

I.

Defendant was found guilty of rape and robbery charges by jury verdicts rendered May 31, 1974. At sentencing on July 19, 1974, defendant's court-appointed attorney who represented him during the trial entered an oral notice of appeal. However, as a result of a conversation between defendant and his attorney shortly after sentencing, defendant decided to withdraw his appeal. Consequently, a written Withdrawal of Notice of Appeal was filed on July 25, 1974. Defendant's court-appointed counsel believed and so advised defendant that time he spent incarcerated pending his appeal would be "dead time" and would not be applied to his minimum sentence. Furthermore, he advised defendant that this time could be even longer than the minimum sentence set by the parole board. However, on August 8, 1974 while talking to another court-appointed attorney, defendant learned that this original advice was erroneous ¹ and thereafter filed a "Notice of Appeal" Defendant's next step was to file a petition for writ of habeas corpus in federal district court. On May 12, 1977, the United States District Court for the District of Hawaii issued an order granting defendant's petition. ³

and "Motion for Leave to Appeal In Forma Pauperis" on December 30, 1974. This motion was continued pending this court's determination of its jurisdiction over the motion. The state responded by filing a motion to dismiss the appeal on grounds that the ten-day period for filing a notice of appeal had long since run. We granted the motion in an order filed February 10, 1975. ²

Defendant filed a notice of appeal in this court on May 20, 1977. On March 10, 1978 an order granting the "Motion for Leave to Appeal In Forma Pauperis" was filed by the First Circuit Court. At hearings on the appeal, defense counsel addressed the jurisdictional issue and both defendant and the state have subsequently filed supplemental briefs on the question.

Hawaii Rule of Criminal Procedure 37(c) reads: ⁴

(c) Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or an arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion.

Defendant argues that despite the clear mandate of the rule, it is not to be applied rigidly in disregard of fundamental notions of fairness. In fact, especially in this situation where defendant was denied his right to appeal because of ineffective assistance of his counsel, the rule should be relaxed. The state responds that the rule must be adhered to unless excusable neglect is shown wherein an additional 30 days may be granted. The "excusable neglect" section is included under Rule 45(b) "Enlargement of Time"; however, the rule makes clear that no extension is to be given for the period of appeal. ⁵

The ten-day time requirement for filing the notice of appeal has been termed "mandatory and jurisdictional." However, many courts have relaxed the requirement in appropriate situations where the untimely appeal had not been due to defendant's error or wilful inadvertence.

In Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) defendant was convicted of postal law violations. Four days later he appeared for sentencing with his court-appointed attorney. During the hearing defendant requested to appeal as an insolvent. Pursuant to the hearing his attorney suggested defendant secure another lawyer to represent him on appeal because his firm did not wish him to undertake any further criminal matters. The next day defendant was transferred to hospital facilities to commence his sentence but was not allowed visitors. Fourteen days later, the clerk of the court received letters from defendant asking for a new trial and for an appeal. The United States Supreme Court remanded the case for disposition on the merits, reversing the Court of Appeals' ruling that the motion and appeal were untimely filed. The Court stated that the restrictive reading of the Rules was unwarranted by the circumstances of the case and continued:

Overlooked, in our view, was the fact that the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances. Rule 2 begins with the admonition that "(t)hese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." That the Rules were not approached with sympathy for their purpose is apparent when the circumstances of this case are examined.

Id. at 142, 84 S.Ct. at 1691.

Other federal courts have relaxed the ten-day requirement for filing where counsel for defendant was at fault. Sanders v. Craven, 488 F.2d 478 (9th Cir. 1973) and Gairson v. Cupp, 415 F.2d 352 (9th Cir. 1969) involved cases where defendants' court-appointed attorneys failed to advise their clients of the right to appeal in forma pauperis. Although attorneys in both situations represented defendants in their original trials, they were unable to continue their representation on appeal because of the defendants' inability to afford their services. The courts found that the attorneys' conduct raised questions of ineffective assistance of counsel such that consideration of the appeals on the merits should be taken. See also Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 1970) (criminal appeal cannot be denied solely because of improper service of appeal notice where state had actual notification of filing); Hines v. United States, 237 A.2d 827 (D.C. App. 1968) (attorney's neglect in filing notice of appeal one day late is ineffective assistance of counsel); Stewart v. Wainwright, 309 F.Supp. 1023 (M.D. Fla. 1969) (erroneous advice by counsel to defendant was of such of a substantial nature as to deprive defendant of ability to make an informed and intelligent decision on whether to appeal); Coursey v. Beto, 301 F.Supp. 740 (N.D. Texas 1969) (defendant was entitled to belated appeal where waiver of right to appeal was based on counsel's discouragement as to likelihood of its success).

A number of state courts have also permitted untimely appeals where the circumstances justify such an action. Counsel in Shipman v. Gladden, 253 Or. 192, 453 P.2d 921 (1969) timely prepared and served a notice of appeal but neglected to file it. In authorizing the delayed appeal the Supreme Court of Oregon found that defendant was deprived of his fourteenth amendment right to due process because of the "culpable negligence" of his counsel. The court recognized that under most circumstances, clients must be bound by the acts of their lawyers. However, this rule should be relaxed when mechanical application of this legal proposition leads to harsh results repugnant to notions of fair play and justice. The court stated:

These results can be even harsher in a criminal case than a civil one since in the latter suit the aggrieved client has, in theory, a malpractice action against his attorney for damages, while in the former no attorney can restore his client's lost liberty.

Id. 453 P.2d at 926.

Very similar to the present case is People v. Bailey, 1 Cal.3d 180, 81 Cal.Rptr. 774, 460 (W)here a defendant seeks to abandon his request on the basis of a misapprehension as to the effect of an appeal, which misapprehension is communicated to the...