  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  02-JUL-2020
                                                  09:28 AM

                           NO. CAAP-XX-XXXXXXX


                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I


               CHRIS GRINDLING, Petitioner-Appellant, v.
                 STATE OF HAWAI#I, Respondent-Appellee


          APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
                       (CASE NO. 2CPN-XX-XXXXXXX)


                        ORDER DISMISSING APPEAL
      (By:    Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
             Upon review of the record here in CAAP-XX-XXXXXXX and
in the underlying case, 2CPN-XX-XXXXXXX,1 it appears that:
             (1) On December 16, 2019, self-represented Petitioner-
Appellant Chris Grindling (Grindling) filed in the underlying
case a petition for post-conviction relief, under Hawai#i Rules
of Penal Procedure (HRPP) Rule 40;
             (2) On December 24, 2019, the circuit court clerk
electronically filed the petition to create the underlying case.
That same day, the circuit court, among other things, granted
Grindling's "request to proceed in forma pauperis [(IFP)] for
purposes of this HRPP Rule 40 petition only;"
             (3) On March 6, 2020, the circuit court dismissed
Grindling's HRPP Rule 40 petition as moot;
             (4) On April 2, 2020, Grindling filed the notice of
appeal without the fees required by Hawai#i Rules of Appellate

      1
         The court takes judicial notice of the records filed in the
underlying case. Hawai#i Rules of Evidence Rule 201.
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Procedure (HRAP) Rule 3(a).        That same day, the circuit court
clerk notified Grindling to pay the filing fees or file a motion
to proceed IFP on or before April 15, 2020, or the appeal could
be dismissed;
            (5) On April 24, 2020, Grindling filed in the
underlying case a request to proceed IFP.           That same day, the
circuit court entered a written order denying the request, which
effectively revoked Grindling's IFP status.            See HRAP
Rule 24(b);2
            (6) On June 4, 2020, the appellate clerk entered a
default of the record on appeal, informing Grindling that the
time to docket the appeal expired on June 1, 2020, he had not
paid the filing fees or obtained an order allowing him to proceed
on appeal IFP, the matter would be brought to the court's
attention on June 15, 2020, for action that may include dismissal
of the appeal, and he could seek relief from default by motion;
            (7) Grindling took no further action in this appeal;
and
            (8) An appeal may be dismissed where the record on
appeal has not been prepared because the appellant failed to pay
the required fees or obtain an order allowing the appellant to
proceed IFP.     HRAP Rule 11(b)(2), (c)(2).3


      2
         HRAP Rule 24(b) states, in relevant part, that a party granted leave
to proceed IFP in the underlying case

            may proceed on appeal in the same action in forma pauperis
            without further authorization, unless, before or after the
            notice of appeal is filed, the court . . . shall find that
            the party is otherwise not entitled to so proceed, in which
            event the court . . . shall state in writing the reasons for
            such . . . finding.
      3
         This case is distinguishable from the Hawai #i Supreme Court's recent
decision in Estate Admin. Servs. LLC v. Mohulamu, No. SCWC-19- 0000050, 2020
WL 3397755, at *5-*7 (Haw. June 19, 2020) (holding that "under the
circumstances of this case, with Tigilau being a self-represented defendant,
and because she submitted sufficient financial information, the ICA should
have addressed her IFP motions without requiring her to file a motion in
district court"). Here, Grindling did not request a fee waiver from this
court. In addition, Grindling was the petitioner and not the defendant, the
circuit court revoked Grindling's IFP status because Grindling is "well known"
to the circuit court, and the circuit court documented incidents demonstrating
                                                                  (continued...)

                                       2
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

            Therefore, IT IS HEREBY ORDERED that the appeal is
dismissed.
            DATED:   Honolulu, Hawai#i, July 2, 2020.

                                          /s/ Lisa M. Ginoza
                                          Chief Judge

                                          /s/ Katherine G. Leonard
                                          Associate Judge

                                          /s/ Clyde J. Wadsworth
                                          Associate Judge




      3
        (...continued)
its familiarity with Grindling's financial situation and apparent ability to
pay filing fees. See id. at *6 (holding HRAP Rule 24(a)'s requirement "that
an IFP motion shall ordinarily be made in the first instance to the court
appealed from contemplates that the appellant was a party who was required to
pay some costs below. That party is usually the plaintiff. At minimum, the
structure of the rule contemplates that the court being appealed from would
have greater information than the appellate court as to an appealing party's
ability to pay filing fees.").

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