NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-20-0000420

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CHRISTOPHER TENIS, Petitioner-Appellant, 

v.

STATE OF HAWAI#I, Respondent-Appellee,

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1PR181000014)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Self-represented Petitioner-Appellant Christopher Tenis

appeals from the "Order Dismissing Christopher Tenis' [sic]

Hawaii [sic] Rules of Penal Procedure Rule 40 Petition, Filed

June 26, 2018, Without Hearing" entered by the Circuit Court of

the First Circuit on March 6, 2020.1

 For the reasons explained

below, we affirm the Order.

A.

We must first address the statement contesting

jurisdiction filed by Respondent-Appellee State of Hawai#i. 

Although the State did not move to dismiss, we have "an

independent obligation to ensure jurisdiction over each case." 

State v. Smith, 149 Hawai#i 153, 163, 484 P.3d 166, 176 (App.

1 The Honorable Rowena A. Somerville presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000420

19-MAY-2022

07:48 AM

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2021) (cleaned up). The Order was entered on March 6, 2020.

Under Rule 4(b)(1) of the Hawai#i Rules of Appellate Procedure

(HRAP), a notice of appeal was due within 30 days, or by April 6,

2020.2 Tenis's notice of appeal was tendered to prison officials

on May 28, 2020. See Setala v. J.C. Penney Co., 97 Hawai#i 484,

485, 40 P.3d 886, 887 (2002) (holding that self-represented

prisoner's notice of appeal is deemed filed on the day it is

tendered to prison officials). However, the record indicates

that the Order was not mailed to the prison where Tenis was

incarcerated until May 4, 2020, and was received by the prison on

May 11, 2020. Under these circumstances, where Tenis's notice of

appeal is deemed filed within 30 days after he received notice of

the Order, his notice of appeal was timely. See Grattafiori v.

State, 79 Hawai#i 10, 13-14, 897 P.2d 937, 940-41 (1995) (noting

that belated appeals have been permitted when "the lower court's

decision was unannounced and no notice of the entry of judgment

was ever provided"). We have jurisdiction to consider Tenis's

appeal.

B.

On September 6, 2012, the grand jury indicted Tenis on

four counts of Sexual Assault in the First Degree in violation of

Hawaii Revised Statutes (HRS) § 707-730(l)(b) or (c), and seven

counts of Sexual Assault in the Third Degree in violation of HRS

§ 707-732(1)(b) or (c). Tenis pleaded not guilty. He later

entered into a plea agreement with the State by which he agreed

to plead guilty to four reduced charges of Sexual Assault in the

Second Degree in violation of HRS § 707-731(1)(a) and to the

seven charges of Sexual Assault in the Third Degree. He pleaded

guilty on November 26, 2012. On February 12, 2014, he was

sentenced to ten years on each count of sexual assault in the

2 The 30th day after March 6, 2020, was actually Sunday, April 5,

2020. See HRAP Rule 26(a).

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second degree and to five years on each count of sexual assault

in the third degree, all sentences to be served concurrently.

On June 26, 2018, a self-represented Tenis filed a 267-

page "Petition for Post-Conviction Relief" under Rule 40 of the

Hawai#i Rules of Penal Procedure (HRPP). The Petition stated

eight grounds for relief: (1) ineffective assistance of counsel;

(2) unlawfully induced plea; (3) prejudice by counsel; (4)

erroneous advice by counsel; (5) counsel failed to advocate for

defendant; (6) counsel failed to exercise discovery rights;

(7) failure of the State to provide evidence to defendant that

was favorable to defendant; and (8) prosecutorial misconduct;

breach of plea. The circuit court dismissed the Petition without

a hearing; the Order was entered on March 6, 2020. This appeal

followed.

C.

We review an order denying an HRPP Rule 40 petition de

novo. Rapozo v. State, 150 Hawai#i 66, 77-78, 497 P.3d 81, 92-93

(2021).

The only discernible argument made in Tenis's opening

brief is that the trial court failed to personally address him

about his right of allocution during his sentencing hearing.

Tenis's Petition raised eight issues; none of them concerned

allocution. The State's response to the Petition addressed all

eight issues raised; the State's response did not address

allocution. The circuit court's March 6, 2020 Order ruled on all

eight issues raised in the Petition; the Order did not rule on

allocution.3 Because "the general rule is that an issue which

was not raised in the lower court will not be considered on

appeal," we decline to address Tenis's claim that the trial court

failed to personally address him about his right of allocution

3 We take judicial notice, pursuant to Rule 201 of the Hawaii Rules

of Evidence (HRE), that Tenis filed a motion for reconsideration in the

circuit court on March 2, 2021. That motion raised the allocution issue. The

State's memorandum in opposition was filed on March 15, 2021. As of May 12,

2022, the circuit court has not ruled on the motion.

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during his sentencing hearing. See Stanley v. State, 76 Hawai#i

446, 451, 879 P.2d 551, 556 (1994) (cleaned up) (declining to

address issue raised for the first time on appeal from order

denying HRPP Rule 40 petition).4

D.

For the foregoing reasons, the "Order Dismissing

Christopher Tenis' [sic] Hawaii [sic] Rules of Penal Procedure

Rule 40 Petition, Filed June 26, 2018, Without Hearing" entered

by the circuit court on March 6, 2020, is affirmed, without

prejudice to the circuit court's pending disposition of Tenis's

motion for reconsideration below or his separately filed HRPP

Rule 40 petition or to any timely appeal arising therefrom.

DATED: Honolulu, Hawai#i, May 19, 2022.

On the briefs:

/s/ Katherine G. Leonard

Christopher Tenis, Presiding Judge

Self-represented PetitionerAppellant. /s/ Keith K. Hiraoka

Associate Judge

Sonja P. McCullen,

Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth

City and County of Honolulu, Associate Judge

for Respondent-Appellee.

4 We also take judicial notice, pursuant to HRE Rule 201, that Tenis

filed a separate HRPP Rule 40 petition with the circuit court on April 1,

2021, in which he raises a claim of illegal sentence based upon the trial

court's failure to personally address him about his right of allocution during

his sentencing hearing.

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