State v. Hayashida, 5465

• Decision Date: 03 May 1974
• Docket Number: No. 5465,5465
• Citation: 522 P.2d 184,55 Haw. 453
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Steven M. HAYASHIDA, Defendant-appellant, James Pokini, also known as James K. Pokini, et al., Defendants.
• Court: Hawaii Supreme Court

Page 184

522 P.2d 184

55 Haw. 453

STATE of Hawaii, Plaintiff-Appellee, v. Steven M. HAYASHIDA, Defendant-appellant, James Pokini, also known as James K. Pokini, et al., Defendants.

No. 5465.

Supreme Court of Hawai'i.

May 3, 1974.

Syllabus by the Court

1. In a criminal case, the Hawaii Supreme Court has jurisdiction to entertain an appeal from a circuit court order denying, in whole or in part, a defendant's motion for leave to appeal in forma pauperis.

2. In a criminal case, a defendant should be denied the provision of transcripts at state expense only if the State demonstrates that the appellate issue he seeks to raise is clearly or plainly frivolous, that is, that under no plausible legal theory could the defendant succeed in winning a reversal.

3. In a criminal case, a defendant's appeal in forma pauperis should not be disallowed as frivolous where there is case law from other jurisdictions supporting the defendant's allegation of error and where there are no Hawaii cases in point; in particular, it is not frivolous to argue on appeal that a trial court erred when it took the avowed position that any leniency it might dispense in sentencing the defendant would depend on the defendant's admitting his guilt and foregoing appeal from his conviction.

John S. Edmunds, Honolulu, for defendant-appellant.

Richard D. Wurdeman, Deputy Pros. Atty., Honolulu, (Barry Chung, Pros. Atty., of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and LEVINSON, KOBAYASHI, OGATA and MENOR, JJ.

LEVINSON, Justice

The defendant was convicted in circuit court of robbery in the first degree. He filed notice of appeal from the trial court's judgment of conviction and sentence entered pursuant to it. In addition, he moved the trial court for leave to appeal in forma pauperis and for the provision of transcripts at state expense. The trial court granted both motions except that part of the defendant's motion for transcripts which sought production of the defendant's post-trial sentencing hearing. In an order filed April 13, 1973, the trial court wrote, in part:

Defendant-Appellant's motion for transcripts of the hearings concerning his sentencing is denied for the reason that the Court finds frivolous any claims by the Defendant-Appellant converning alleged errors which occurred during said sentencing hearings.

The present appeal is from this portion of the trial court's order.

We have jurisdiction under Rule 37 of the Hawaii Rules of Criminal Procedure and HRS § 602-5 (Supp.1973) to entertain an appeal from a circuit court order denying, in whole or in part, a criminal defendant's motion for leave to appeal in forma pauperis. State v. Pence, 53 Haw. 157, 488 P.2d 1177 (1971); In re Carvelo, 44 Haw. 31, 352 P.2d 616 (1959). We note that the defendant's court-appointed counsel has paid the cost of transcribing the sentencing proceeding, $25, out of his own pocket. While the defendant thus has an adequate vehicle now upon which to base his appeal from the conviction, judgment and sentence, the present appeal is saved from mootness by two issues: (1) whether the state is required to reimburse counsel for the cost of the transcript, and (2) whether the trial court's adjudication that the defendant's appeal on the merits of his sentencing is 'frivolous' should be allowed to stand.

HRS § 705-5, renumbered by the Hawaii Penal Code to HRS § 721-5, allows a trial court to reject a request for leave to appeal in forma pauperis 'if the trial court certifies in writing that (the appeal) is frivolous or not taken in good faith.' In cases where counsel requires an opportunity to review the transcript in order to determine whether any appealable error was committed at trial, this court has held that the defenant is entitled to the full transcript at state expense. State v. Pence, supra. The United States Supreme Court has lent a similar construction to the comparable federal in forma pauperis statute, 28 U.S.C. § 1915 (1970). Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

In this case, on the other hand, the question is not whether counsel for the defendant needed a transcript of the sentencing hearing to discover the existence of reversible error, but whether a particular alleged error, the precise record of which the defendant sought, is so 'frivolous' as to be unworthy of argument before this court. The alleged error of which the defendant complains ws the trial court's avowed position that any leniency it might dispense in sentencing the defendant would depend on the defendant's admitting his guilt and foregoing appeal from his conviction. The trial court's manifest insistence on these expressions of contrition as the quid pro quo of a reduced sentence, the defendant argues, constituted an impermissible infringement of his statutory right to appeal and his privilege against self-incrimination guaranteed by the federal and state constitutions. ¹

On the question of whether a particular point on appeal is 'frivolous' within the meaning of HRS § 721-5, we agree with the Court in Coppedge v. United States, supra at 441, 82 S.Ct. 917, construing the corresponding federal statute, 28 U.S.C. § 1915 (1970), that 'no single word or group of words can provide a precise formula that will dispose of every case.' It is clear, however, that the burden of showing frivolity is on the State, for a direct consequence of a holding of frivolity may be to foreclose the defendant's important statutory right of appeal. Id. at 447-448, 82 S.Ct. 917. Accordingly, the defendant is not required to make 'a preliminary showing of any particular degree of merit. Unless the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant . . . the request of an indigent for leave to appal in forma pauperis must be allowed.' In re Carvelo, supra, 44 Haw. at 45-46, 352 P.2d at 626, quoting Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958). In connection with its burden of showing frivolity, the State must demonstrate affirmatively that the defendant's appeal is 'clearly frivolous,' Coppedge v. United States, supra 369 U.S. at 446, 82 S.Ct. 917, or 'plainly frivolous.' Ellis v. United States, supra 356 U.S. at 674, 78 S.Ct. 974.

In cases such as this, where the appellate issue which is assertedly frivolous is plain and unambiguous, the State carries the burden of showing that under no plausible legal theory could the defendant...