State v. Pua, 3rd Circuit Hawaii - Appeal Dismissed
Summary
The Hawaii Intermediate Court of Appeals dismissed Defendant-Appellant Drosstain Pua's appeal without prejudice, finding the court lacks appellate jurisdiction because the Notice of Appeal was not filed within the 30-day deadline required by HRAP Rule 4(b)(1) and ineffective assistance of counsel is not plain from the record. Both prior counsel Heimgartner and appointed counsel Hironaka stated that Pua did not express a desire to appeal until after the deadline had expired. The court noted Pua may seek relief by petition under Hawaii Rules of Penal Procedure Rule 40.
“On this record, the court lacks appellate jurisdiction to review the merits of Pua's appeal because ineffective assistance of counsel in failing to comply with the procedural requirements to timely file the notice of appeal is not plain from the record.”
What changed
The court dismissed Pua's appeal because the Notice of Appeal filed on September 18, 2025 was not within the 30-day window following the March 15, 2024 Judgment of Conviction and Sentence, as required by HRAP Rule 4(b)(1). The record shows Pua did not request an appeal until after the deadline had passed and after the time to request an extension under HRAP Rule 4(b)(5) had also lapsed. Since neither counsel's failure to timely file is plain from the record, the court cannot invoke the narrow exception recognized in State v. Uchima to review the merits of an untimely appeal.\n\nCriminal defense attorneys should ensure clients are informed of appeal deadlines and that any decision not to appeal or delay in requesting an appeal is clearly documented. Defendants whose appeals are dismissed on procedural grounds retain the option to file a Hawaii Rules of Penal Procedure Rule 40 petition as an alternative avenue for relief, though such petitions carry a different standard of review than direct appellate review.
Archived snapshot
Apr 21, 2026GovPing captured this document from the original source. If the source has since changed or been removed, this is the text as it existed at that time.
Electronically Filed Intermediate Court of Appeals CAAP-25-0000641 20-APR-2026 08:19 AM Dkt. 27 ODSLJ
NO. CAAP-25-0000641 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I STATE OF HAWAI I, Plaintiff-Appellee, v.DROSSTAIN PUA, Defendant-Appellant. APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CASE NO. 3CPC-23-0000429) ORDER DISMISSING APPEAL (By: Nakasone, Chief Judge, Hiraoka and Wadsworth, JJ.) Upon review of the record, it appears that: (a) On September 18, 2025, Defendant-Appellant Drosstain Pua (Pua) filed a Notice of Appeal from the March 15, 2024 Judgment of Conviction and Sentence (Judgment). (b) Pua's notice of appeal was not filed within 30 days after the entry of judgment, as required by Hawai Rules of i Appellate Procedure (HRAP) Rule 4(b)(1), and he does not appear to have obtained an extension of time to file a notice of appeal under HRAP Rule 4(b)(5). (c) Rene H. Heimgartner (Heimgartner) was Pua's counsel at the time of the Judgment and the deadline to file the notice of appeal under HRAP Rule 4(b)(1). Randall K. Hironaka (Hironaka) was appointed counsel for Pua on July 2, 2024, and Hironaka continues as Pua's appellate counsel. (d) The March 27, 2026 Order to Show Cause as to why the appeal should not be dismissed for lack of appellate jurisdiction stated that "ineffective assistance of counsel is not plain from the record" and Pua's January 13, 2026 Motion to
Accept Late Transcript Requests, Statement of Jurisdiction, and Motion for Extension of Time to File Opening Brief "does not state whether Pua instructed Heimgartner and/or Hironaka to appeal from the Judgment before the notice of appeal was due; knew when a notice of appeal was due but did not decide to appeal until after the deadline expired; or was not informed when a notice of appeal was due." (e) In response to the March 27, 2026 Order to Show Cause, Heimgartner's April 9, 2026 declaration states in part that to the best of his recollection Heimgartner "informed Defendant [Pua] of his appeal rights and deadlines to file a notice of appeal" and Pua "requested an appeal to be filed after May 12, 2024, and outside of the HRAP Rule 4(b)(5) time period to request an extension." Hironaka's April 13, 2026 Response to Order to Show Cause states in part that "Pua did not express a desire to appeal until well after the 30-day deadline to do so" and "wanted to appeal the judgment" in 3CPC-23-0000429 "even though the time for appeal had long since lapsed." (f) On this record, the court lacks appellate jurisdiction to review the merits of Pua's appeal because ineffective assistance of counsel in failing to comply with the procedural requirements to timely file the notice of appeal is not plain from the record. See State v. Uchima, 147 Hawai i 64, 82, 464 P.3d 852, 870 (2020) (concluding the court may review the merits of an untimely appeal "when it is plain from the record that defense counsel failed to comply with the procedural requirements for filing" the appeal). Therefore, IT IS HEREBY ORDERED that the appeal is dismissed without prejudice to Pua seeking relief by petition under Hawai i Rules of Penal Procedure Rule 40. IT IS FURTHER ORDERED that no further action will be taken on the March 27, 2026 Order to Show Cause.
IT IS FURTHER ORDERED that all pending motions are dismissed. DATED: Honolulu, Hawai i, April 20, 2026. /s/ Karen T. Nakasone Chief Judge /s/ Keith K. Hiraoka Associate Judge /s/ Clyde J. Wadsworth Associate Judge
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