NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-AUG-2025 07:59 AM Dkt. 48 ODSLJ NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I

MARSHALL MARTINEZ, Petitioner-Appellant, v. STATE OF HAWAI#I; SHANNON CLUNEY, Respondents-Appellees.

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

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION (By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Upon review of the record in CAAP-XX-XXXXXXX and 2CPN-XX-XXXXXXX,1 it appears that: (1) On January 17, 2024, self-represented Petitioner- Appellant Marshall Martinez (Martinez) filed the "Notice of Partial Appeal" from the December 28, 2023 "Order Regarding Petitioner's Motion to Argue on Non-Conforming Rule 40 Petition" (December 28, 2023 Order) entered by the Circuit Court of the Second Circuit (circuit court).

(2) Hawai#i Rules of Penal Procedure (HRPP) Rule 40(h) states "[a]ny party may appeal from a judgment entered in the proceeding in accordance with Rule 4(b) of the Hawai#i Rules of

The court takes judicial notice of the record in 2CPN-XX-XXXXXXX.

Hawai#i Rules of Evidence Rule 201.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Appellate Procedure [(HRAP)]." "[P]ursuant to HRAP Rule 4(b), an appeal from an order denying post-conviction relief must either be filed within thirty days after the entry of the order denying the HRPP Rule 40 petition or, in the alternative, after the announcement but before the entry of the order." Grattafiori v. State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995).

(3) The record indicates that the circuit court has not entered a decision that resolves Martinez's HRPP Rule 40 petition for post-conviction relief.

(4) The appeal is premature and the court lacks appellate jurisdiction because the circuit court has not entered an appealable final order. See id. at 14, 897 P.2d at 941 ("While we treat an appeal as timely where a defendant has filed his or her notice of appeal after the court has announced an oral decision but before the entry of a written order or judgment, see HRAP 4(b), we cannot do so where the court has rendered no decision whatsoever.").

(5) When the court "perceive[s] a jurisdictional defect in an appeal, [it] must, sua sponte, dismiss that appeal." Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986).

Therefore, IT IS HEREBY ORDERED that the appeal is dismissed for lack of appellate jurisdiction.

DATED: Honolulu, Hawai#i, August 27, 2025.

/s/ Keith K. Hiraoka Presiding Judge /s/ Clyde J. Wadsworth Associate Judge /s/ Sonja M.P. McCullen Associate Judge