  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                            Electronically Filed
                                            Intermediate Court of Appeals
                                            CAAP-XX-XXXXXXX
                                            08-MAY-2020
                                            10:30 AM

                         NO. CAAP-XX-XXXXXXX


                 IN THE INTERMEDIATE COURT OF APPEALS

                       OF THE STATE OF HAWAI#I


              MATTHAN PATTIOAY, Petitioner-Appellant, v.
                 STATE OF HAWAI#I, Respondent-Appellee


          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                       (CASE NO. 1PC16100001676)


                              ORDER
     DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION,
             DISMISSING ALL PENDING MOTIONS AS MOOT,
                               AND
     DIRECTING CIRCUIT COURT TO TREAT NOTICE OF APPEAL AS
 NON-CONFORMING HRPP RULE 40(c)(2) PETITION FOR POST-CONVICTION
       RELIEF AND OPEN A CIRCUIT COURT SPECIAL PROCEEDING
      (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
            Upon review of this appeal filed by Defendant-Appellant
Matthan Pattioay (Pattioay), self-represented, from circuit court
criminal case number 1PC161001676, it appears that we lack
appellate jurisdiction under Hawaii Revised Statutes (HRS) § 641-
1(a) (2016) and Rule 40(h) of the Hawai#i Rules of Penal
Procedure (HRPP), because there is no judgment in the record from
which Pattioay can presently appeal.
            On May 8, 2018, this court entered a Summary
Disposition Order in CAAP-XX-XXXXXXX that affirmed a May 17, 2017
judgment of conviction against Pattioay for terroristic
threatening in the first decree in violation of HRS § 707-716
(2014).    On March 19, 2020, Pattioay filed identical copies of an
HRPP Rule 40 petition for post-conviction relief as to the
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

May 17, 2017 judgment of conviction with both (1) the circuit
court, in criminal case number 1PC161001676, and (2) the
Appellate Clerk's Office, which created appellate court case
number CAAP-XX-XXXXXXX.       In both cases, Pattioay's March 19, 2020
HRPP Rule 40 petition was uploaded into the electronic JEFS
system as a "notice of appeal," rather than as an HRPP Rule 40
petition.
            If the circuit court had entered a final judgment
adjudicating Pattioay's March 19, 2020 HRPP Rule 40 petition,
then, under "HRPP [Rule] 40(h), appeals from proceedings for
post-conviction relief may be made from a judgment entered in the
proceeding and must be taken in accordance with Rule 4(b) of the
Hawai#i Rules of Appellate Procedure (HRAP)."          Grattafiori v.
State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995) (internal
quotation marks and brackets omitted).          However, the circuit
court has not entered any orders, much less a final judgment, on
Pattioay's March 19, 2020 HRPP Rule 40 petition.            Absent a final
order or final judgment that is appealable under HRS § 641-1(a),
we lack appellate jurisdiction, and this appeal must be
dismissed.
            Pattioay's March 19, 2020 "notice of appeal" appears to
be, in substance, a non-conforming petition for post-conviction
relief from the May 17, 2017 judgment of conviction pursuant to
HRPP Rule 40(c)(2), which provides:
                  (2) Nonconforming Petition. Where a post-conviction
            petition deviates from the form annexed to these rules, it
            shall nevertheless be accepted for filing and shall be
            treated as a petition under this rule provided that the
            petition (i) claims illegality of a judgment or illegality
            of "custody" or "restraint" arising out of a judgment, (ii)
            is accompanied by the necessary filing fee or by a
            well-founded request to proceed without paying filing fees,
            and (iii) meets minimum standards of legibility and
            regularity.

                  When treating a nonconforming petition as a petition
            under this rule, the court shall promptly clarify by written
            order that the requirements of this rule apply and, if the
            information in the petition is incomplete, may require the
            petitioner to file a supplemental petition in the form
            annexed to these rules before requiring the state to
            respond.



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(Emphasis added.)      Under these circumstances, it is appropriate
for the circuit court to adjudicate Pattioay's non-conforming
HRPP Rule 40(c)(2) petition for post-conviction relief in a
special proceeding.
            IT IS HEREBY ORDERED as follows:
            1.    CAAP-XX-XXXXXXX is dismissed for lack of appellate
jurisdiction.
            2.    All motions in CAAP-XX-XXXXXXX are dismissed as
moot.1
            3.    Pattioay's March 19, 2020 "notice of appeal" is
deemed to be a non-conforming HRPP Rule 40(c)(2) petition for
post-conviction relief from the May 17, 2017 judgment of
conviction, and thus, the Circuit Court of the First Circuit
shall open a separate special proceeding for the purpose of
adjudicating Pattioay's March 19, 2020 non-conforming HRPP
Rule 40(c)(2) petition.
            4.    Upon entry of this order, the Appellate Court
Clerk shall transmit copies of this order and Pattioay's notice
of appeal from CAAP-XX-XXXXXXX to the Circuit Court of the First
Circuit.
            DATED:   Honolulu, Hawai#i, May 8, 2020.

                                          /s/ Lisa M. Ginoza
                                          Chief Judge

                                          /s/ Katherine G. Leonard
                                          Associate Judge

                                          /s/ Keith K. Hiraoka
                                          Associate Judge




      1
         If necessary Pattioay may re-file a motion for leave to proceed in
forma pauperis in the circuit court.

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