State v. Kamae

• Decision Date: 30 September 1974
• Docket Number: No. 5579,5579
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Samuel KAMAE, III, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1200

526 P.2d 1200

56 Haw. 32

STATE of Hawaii, Plaintiff-Appellee, v. Samuel KAMAE, III, Defendant-Appellant.

No. 5579.

Supreme Court of Hawai'i.

Sept. 30, 1974.

Syllabus by the Court

1. The criteria for the determination of whether or not an appeal is frivolous as they affect or concern an appeal in forma pauperis must be measured by the same legal principle which would be applicable to the dismissal of a pending criminal appeal of a nonindigent defendant, i. e., it is manifest that the appeal was taken for delay only or that the question involved is such as not to need further argument.

2. The good faith test must not be converted into a requirement of a preliminary showing of any degree of merit. The burden of proving that an appeal is frivolous or not taken in good faith is placed on the party suggesting that the appeal is frivolous. It is not the burden of the indigent criminal defendant to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately.

3. Where an appeal presents an issue of first impression in this jurisdiction which is arguably supported by case law from other jurisdictions and is addressed to the scope and meaning of a United States Supreme Court decision, it should not be considered frivolous.

Paul S. Aoki and John W. K. Chang, Deputy Public Defenders (Donald K. Tsukiyama, Public Defener, Honolulu, of counsel), for defendant-appellant.

Douglas H. Ige, Deputy Pros. Atty. (Barry Chung, Pros. Atty., Honolulu, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA and MENOR, JJ., and KATO, Circuit Judge in place of LEVINSON, J., recused.

OGATA, Justice.

This is an appeal by Samuel Kamae, III, defendant-appellants, from two separate orders of the First Circuit Court, filed in the records of that court in C45581 and in C45583, each dated October 25, 1973, and each denying defendant-appellant's motions filed in each of these cases for leave to appeal in forma pauperis, in view of that court's finding that each appeal is frivolous, and also from the circuit court's certification of denial of each appeal in forma pauperis, dated November 19, 1973, filed in connection with and to buttress such orders, as required by HRS § 721-5 (1973 Supp.) These two criminal cases have been consolidated for the purpose of this appeal.

On August 2, 1973, the defendant-appellant pleaded guilty before the circuit court to the charge of robbery in the first degree, and also to the charge of assault in the first degree. The trial court, after determining that these pleas by the defendant-appellant were made voluntarily with full understanding of the charges, accepted defendant-appellant's guilty pleas, and he was thereupon convicted of robbery in the first degree and assault in the first degree.

Under § 840(3) of the Hawaii Penal Code, ¹ robbery in the first degree is a class A felony, and under § 710(3) of the same code, assault in the first degree is a class B felony. The code further provides in § 660 that:

A person who has been convicted of a felony may be sentenced to an indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

(1) for a class A felony-20 years;

(2) for a class B felony-10 years; and

(3) for a class C felony-5 years.

The minimum length of imprisonment shall be determined by the board of paroles and pardons in accordance with section 669.

On September 19, 1973, the defendant-appellant was sentenced under §§ 661 and 662(4)(a) of the code to extended indefinite terms of imprisonment for the commission of these offenses. The circuit court imposed the magnified, additional sentences because of its finding under § 662(4)(a) of the code, that the defendant-appellant was a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term was warranted. Based upon such a finding, it sentenced the defendant-appellant to be confined in prison under § 661 of the code to an extended term of life imprisonment for the robbery first degree and to an extended term of 20 years for assault in the first degree, both sentences to be served concurrently, instead of imposing the usual maximum sentences of 20 years for robbery in the first degree and 10 years for assault in the first degree.

In this appeal the defendant-appellant, who is an indigent, presents for our consideration two questions, which stated in the language of the defendant-appellant are as follows:

1. Where the court does not screen the paid appeals on its docket for frivolity prior to consideration of the merits, is it a violation of due process and equal protection to require an indigent appellant to make a prior showing of the non-frivolity of issues?

2. Did the trial court err in denying Appellant's motion for leave to appeal in forma pauperis and in certifying that the appeal is frivolous?

In view of our conclusion on the second inquiry posed by the defendant-appellant to which we respond in the affirmative and hold that the defendant-appellant may proceed to appeal in forma pauperis, there is not occasion for us to go into the issue raised by the first inquiry, which would require us to review the opinion of this court on the validity of HRS § 721-5 (1973 Supp.), as set forth in In re Carvelo, 44 Haw. 31, 352 P.2d 616 (1959). ² In denying each of the defendant-appellant's motions to appeal in forma pauperis, and in certifying that each of these appeals is frivolous and not taken in good faith, the circuit court acted pursuant to the foregoing statutory mandate. However, as this court so eloquently held in In re Carvelo, supra; and as we further elucidated in State v. Pence, 53 Haw. 157, 488 P.2d 1177 (1971); and more recently in State v. Hayashida, 55 Haw. 453, 522 P.2d 184 (1974), each of such orders and certifications is subject to review because the certification of the circuit court that the appeal is frivolous or not taken in good faith 'is not final in the sense that the convicted defendant is barred from showing that it was unwarranted and that an appeal should be allowed.' Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593 (1957).

In Territory v. Hayes, 42 Haw. 1, 7 (1957), this court then announced the proposition that 'where appellate review is provided by statute, the courts cannot discriminate against indigent persons by depriving them of the right to appeal their criminal convictions if the same right is made freely available to those who can afford to pay for such appeal.' Consistent with this view, the criteria for the determination of whether or not an appeal is frivolous as they affect or concern and appeal in forma pauperis must be measured by the same legal principle which would be applicable to the dismsissal of a pending criminal appeal of a nonindigent defendant under Rule 6(f) of this court. ³ Thus, in In re Carvelo, supra, 44 Haw. at pages 45-46, 352 P.2d at 626, this court quoted with approval from Ellis v. United States, 356 U. S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958) as follows: 'In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous. Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). The good-faith test must not be converted into a requirement of 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, Fed.Rules Crim.Proc. 39(a), the request of an indigent for leave to appeal in forma pauperis must be allowed.' The last sentence of the abovecited passage from Ellis v. United States, supra, was also approved in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), and in Coppedge, the United States Supreme Court further stated at pages 447-448, 82 S.Ct. at page 922: 'The point of equating the test for allowing a pauper's appeal to the test for dismissing paid cases, is to assure equality of consideration for all litigants. The equation is intended to place the burdens of proof and persuasion in all cases on the same party-in these cases, on the Government. Since our statutes and rules make an appeal in a criminal case a matter of right, the burden of showing that that right has been abused through the prosecution of frivolous litigation should, at all times, be on the party making the suggestion of frivolity. It is not the burden of the petitioner to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is to be heard, as is any appellant in a criminal case, if he makes a rational argument on the law or facts. It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit, indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements.'

The issues which defendant-appellant sought to raise in his appeal, and which the trial court held to be frivolous, are concerned with the methods and procedures utilized by the trial court to impose a sentence to an extended term of imprisonment upon a person who has been convicted of a felony. Admittedly, § 664 of the code provides that there shall be a hearing after the defendant has been convicted and after he has been served with written notice of the ground upon which the extended term is to be imposed. That section further explicitly provides that 'the defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.' Likewise, §§ 665 and 666(1) of the code, contain provisions which explain what shall...