**   NOT FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER   **




                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-14-0001105
                                                                21-FEB-2018
                                                                02:50 PM

                              SCWC-14-0001105

           IN THE SUPREME COURT OF THE STATE OF HAWAII
 ________________________________________________________________

           STATE OF HAWAII, Respondent/Plaintiff-Appellee,

                                      vs.

         JAMES MCDANIEL, Petitioner/Defendant-Appellant.
 ________________________________________________________________

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-14-0001105; CR. NO. 13-1-0755(1))

                      SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

            Petitioner/Defendant-Appellant James McDaniel

challenges the Intermediate Court of Appeals’ (“ICA”) order

dismissing his appeal for lack of appellate jurisdiction.

            On October 16, 2013, McDaniel was charged by felony

information in the Circuit Court of the Second Circuit (“circuit

court”) with three counts of theft in the second degree.

McDaniel pleaded no contest to count one in exchange for the

State’s agreement to dismiss counts two and three.             McDaniel was

represented by court-appointed counsel Cary Virtue.             On June 18,

2014, the circuit court entered a judgment of conviction and

probation sentence adjudging McDaniel guilty of one count of
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theft in the second degree.1        McDaniel was sentenced to four

years of probation with special conditions, including one day of

imprisonment, restitution, and community service.

            On September 5, 2014, McDaniel, pro se, filed a notice

of appeal from the judgment of conviction and probation

sentence, along with an ex parte motion for extension of time to

file the notice of appeal, which the circuit court granted.              The

State contested jurisdiction, arguing that McDaniel’s appeal was

untimely under Hawaii Rules of Appellate Procedure (“HRAP”) Rule

4(b) (2012).     On March 16, 2015, pursuant to an order to show

cause issued by the ICA directing Virtue to respond, Virtue

filed a declaration, stating inter alia that he received a copy

of the judgment and sentence, that McDaniel did not ask him to

file an appeal, and that McDaniel never called, wrote, or

communicated a desire to appeal the sentence.            Following a

temporary remand to the circuit court requested by Virtue to

hear and determine a motion for withdrawal and substitution of

counsel,2 the ICA entered an order dismissing the appeal without

prejudice for lack of jurisdiction.         The ICA determined that

McDaniel’s appeal, which was filed outside of the required

      1
            The Honorable Rhonda I. L. Loo presided.
      2
           On remand, Virtue filed a motion to withdraw as counsel and
to appoint appellate counsel, which the circuit court granted. The
court subsequently appointed Matthew Kohm to represent McDaniel on
appeal.


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thirty-day period, did not fall within a recognized exception to

the general requirement that the notice of appeal be timely

filed.   The ICA reasoned that McDaniel did not request that

counsel bring an appeal on his behalf, adding that McDaniel

“failed to even allege he communicated his desire to appeal to

counsel. . . .”

            In his application, McDaniel presents one question for

review: whether an untimely appeal should be excused where the

record indicates that court-appointed counsel failed to counsel

an indigent defendant about his right to appeal or communicate

with the defendant after receiving a filed copy of the judgment

of conviction.

            While HRAP Rule 4(b) provides that a notice of appeal

in a criminal case “shall be filed within 30 days after entry of

the judgment or order appealed from” or within a timely extended

thirty-day period, “courts may permit an untimely appeal when

‘defense counsel has inexcusably or ineffectively failed to

pursue a defendant’s appeal from a criminal conviction’” in the

first instance.     Maddox v. State, 141 Hawaii 196, 205, 407 P.3d

152, 161 (2017) (quoting State v. Knight, 80 Hawaii 318, 323,

909 P.2d 1133, 1138 (1996)).        In Maddox, we stated that defense

counsel in a criminal case has a duty “to consult with a

defendant following a final order or judgment to determine


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whether the defendant wishes to appeal, as well as a duty to

diligently fulfill the procedural requirements of appeal if the

defendant elects to appeal.”        141 Hawaiʻi at 203, 407 P.3d at

159.   Pursuant to Maddox, although McDaniel’s appeal was not

filed within the prescribed time period, the record does not

demonstrate that Virtue consulted with McDaniel to determine

whether McDaniel wished to appeal.         Inasmuch as McDaniel “is

entitled, on his first appeal, to court-appointed counsel who

may not deprive him of his appeal by electing to forego

compliance with procedural rules,” id. (emphasis omitted)

(quoting State v. Erwin, 57 Haw. 268, 270, 554 P.2d 236, 238

(2976)), the ICA has jurisdiction to consider McDaniel’s appeal.

            IT IS HEREBY ORDERED that the ICA’s September 29, 2017

order dismissing the appeal for lack of jurisdiction is vacated,

and the case is remanded to the ICA for further proceedings.

            DATED: Honolulu, Hawaii, February 21, 2018.

Matthew S. Kohm                           /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Richard K. Minatoya
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




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