State v. Pence, 5043
| Decision Date | 27 September 1971 |
| Docket Number | No. 5043,5043 |
| Citation | 488 P.2d 1177,53 Haw. 157 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Robert James PENCE, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. A circuit court order denying a motion for leave to appeal in forma pauperis upon certification that appeal is frivolous and not taken in good faith is appealable to this court.
2. For the purpose of such review, defendant is entitled to a record of sufficient completeness to enable him to attempt to make a showing that the court's certification is in error.
3. Defendant is entitled to full transcript to enable his counsel to discharge the duties imposed upon him, where the counsel was appointed for appeal only, did not try the case, has no knowledge of the events which transpired at the trial, and cannot ascertain whether there was any error in the proceedings below without a careful study of the full transcript.
Brook Hart, Public Defender, and Steven K. Christensen, Deputy Public Defender, Hilo, for defendant-appellant.
Herbert I. Kushi, Deputy Pros. Atty., County of Hawaii, Hilo, for plaintiff-appellee.
Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
Defendant was convicted, after a jury trial in the third circuit court, of violation of HRS § 724-6(1), for intentionally inflicting grievous bodily harm upon another, and was sentenced to imprisonment for not more than five years, the sentence to be served consecutively with any sentence which he might then be serving. At the trial, he was defended by appointed counsel, who did not continue to serve as counsel on appeal.
Notice of appeal was filed on defendant's behalf by the clerk of court, pursuant to H.R.Cr.P. Rule 37(d). In connection with the appeal, defendant having requested assistance of counsel, the court appointed the deputy public defender as counsel on appeal. The word counsel will hereafter be used to refer to the counsel so appointed.
Upon his appointment, counsel moved for leave to take defendant's appeal in forma pauperis and for full transcript of the trial proceedings. In connection with the request for full transcript, counsel alleged that such transcript was necessary for the fulfillment of his duties in accordance with constitutional requirements.
After a hearing at which counsel made certain representations mentioned and discussed below, the court entered an order denying leave to appeal in forma pauperis but authorizing the preparation of a transcript of the proceedings relating to the voir dire examination of the admissibility of defendant's statement to the police.
Counsel filed a notice of appeal from the order. That is the appeal which requires our consideration at this time, not the original appeal from the conviction.
The court denied leave to appeal in forma pauperis upon a certification that the appeal was frivolous and not taken in good faith. The certification was made pursuant to HRS § 705-5, which corresponds to 28 U.S.C. § 1915(a) and provides: 'An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is (frivolous or) not taken in good faith.'
A circuit court order denying a motion for leave to appeal in forma pauperis upon such certification is reviewable by this court. Re Carvelo, 44 Haw. 31, 352 P.2d 616 (1959). For the purpose of such review, a defendant is entitled to 'a record of sufficient completeness to enable him to attempt to make a showing' that the court's certification is in error. Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962).
On the appeal under consideration, we are confronted with the question as to whether the partial transcript authorized by the court meets the Coppedge test of a record of sufficient completeness.
We hold that it does not, in the circumstance of this case where counsel did not try the case, has no personal knowledge of the events which transpired at the trial, and cannot ascertain whether there was any error in the proceedings below without a careful study of the full transcript.
This court set forth the procedure on an application for leave to appeal in forma pauperis, as follows in Carbelo, supra, 44 Haw. at 43, 352 P.2d at 625: ...
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