  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   04-JUN-2020
                                                   07:51 AM



                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I

                JERRICO LINDSEY, Petitioner-Appellant,
                                   v.
                 STATE OF HAWAI#I, Respondent-Appellee


         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                        (S.P.P. NO. 17-1-0022)
                      (CR. NO. 1PC-08-1-000643)


                       SUMMARY DISPOSITION ORDER
     (By:     Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

            Petitioner-Appellant Jerrico Lindsey (Lindsey) appeals
from the Order Denying Petitioner's Motion to Withdraw Petition
for Post-Conviction Relief Without Prejudice (Order Denying
Withdrawal of Petition), filed on July 30, 2018, in the Circuit
Court of the First Circuit (Circuit Court).1
          On appeal, Lindsey contends the Circuit Court erred by
denying his Motion to Withdraw Petition because permission to
withdraw his September 18, 2017 Petition to Vacate, Set Aside, or
Correct Judgment or to Release Petitioner from Custody (Petition)
should have been freely given and he was not afforded an adequate
opportunity to respond regarding his Petition before it was
denied on May 3, 2018.
          As an initial matter, the State contends we lack
appellate jurisdiction because Lindsey failed to timely appeal
from the Order Denying Rule 40 Petition for Post-Conviction

     1
         The Honorable Edwin C. Nacino presided.
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


Relief Without a Hearing, which was filed on May 3, 2018.
However, Lindsey does not appeal from the denial of his Petition.
Rather, he appeals from the subsequent July 30, 2018 Order
Denying Withdrawal of Petition. Lindsey timely filed a Notice of
Appeal on August 21, 2018 from the July 30, 2018 Order Denying
Withdrawal of Petition. Therefore, we have jurisdiction over the
appeal. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 4.
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Lindsey's points of error as follows:
          On appeal, citing HRPP Rule 40(e), Lindsey contends the
Circuit Court did not allow him to freely withdraw his Petition
and he did not have an opportunity to respond regarding the
Petition before it was denied.
          The Circuit Court did not err by denying his request to
withdraw the Petition. Lindsey misconstrues HRPP Rule 40(e),
which states:

          (e) Amendment and withdrawal of petition. The court
          may grant leave to amend or withdraw the petition at
          any time. Amendment shall be freely allowed in order
          to achieve substantial justice. No petition shall be
          dismissed for want of particularity unless the
          petitioner is first given an opportunity to clarify
          the petition. (Emphasis added).

          Where the use of the words "shall" and "may" are used
in close juxtaposition, each word carries its ordinary meaning.
Pele Defense Fund v. Puna Geothermal Venture, 8 Haw. App. 203,
212, 797 P.2d 69, 73 (1990) (citation omitted). "May" is
discretionary in such a context. Id. Thus, the Circuit Court
was not required to grant Lindsey's request to withdraw the
Petition; withdrawal of the Petition was at the discretion of the
Circuit Court. Thus, on appeal, this court reviews the denial of
Lindsey's Motion to Withdraw Petition under an abuse of
discretion standard. "A court abuses its discretion if it
clearly exceeded the bounds of reason or disregarded rules or
principles of law or practice to the substantial detriment of a



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party litigant." State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d
325, 332 (2010) (citation omitted).
          After filing his Petition on September 18, 2017,
Lindsey had more than seven months to request that it be
withdrawn before the Circuit Court issued its order denying the
Petition on May 3, 2018. The Petition was denied ten days after
the State filed its Answer on April 23, 2018. HRPP Rule 40 does
specify that a petitioner may file a response to an Answer. In
the Motion to Withdraw Petition, Lindsey did not seek to address
the substance of his Petition or the State's Answer. Rather, he
requested to withdraw his Petition so he could formulate
arguments and file an amended petition. The request to withdraw
was filed after the Circuit Court had denied the Petition.2
Given the record, the Circuit Court did not abuse its discretion
by issuing the Order Denying Withdrawal of Petition.
          Therefore, IT IS HEREBY ORDERED that the Order Denying
Petitioner's Motion to Withdraw Petition for Post-Conviction
Relief Without Prejudice, filed on July 30, 2018, in the Circuit
Court of the First Circuit is affirmed.
          DATED: Honolulu, Hawai#i, June 4, 2020.


On the briefs:                            /s/ Lisa M. Ginoza
                                          Chief Judge
Jerrico Lindsey,
Self-Represented Petitioner-              /s/ Keith K. Hiraoka
Appellant.                                Associate Judge

Brian R. Vincent,                         /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney,              Associate Judge
for Respondent-Appellee.




      2
         Lindsey attaches to his Reply Brief an "Inmate Mail History" which
he contends shows he sent his Motion to Withdraw Petition before he received
the Order Denying Withdrawal of Petition. However, this document is not part
of the record in this case, and it does not specify the documents being
mailed.

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