Full Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-SEP-2026 07:59 AM Dkt. 47 ORD NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI EDWARD K. NAKAULA, JR., Petitioner-Appellant, v. STATE OF HAWAIʻI, Respondent-Appellee. APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NOS. 5CPN-XX-XXXXXXX; 5FC940000011) ORDER (By: Nakasone, Chief Judge, Wadsworth and McCullen, JJ.) Upon consideration of Respondent-Appellee State of Hawaiʻi's (State) September 4, 2026 Motion to Dismiss Appeal for Lack of Jurisdiction and Alternatively, to Strike Appellant's Opening Brief Filed August 14, 2026 (Motion to Dismiss), the papers in support, and the record, it appears that Petitioner- Appellant Edward K. Nakaula, Jr. (Nakaula) filed a self- NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER represented appeal from 5CPN-XX-XXXXXXX, 1 which the State seeks to dismiss for lack of appellate jurisdiction. Alternatively, the State asks the court to strike Nakaula's August 14, 2026 self-represented Opening Brief for exceeding the page limit set forth in Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(a). Pursuant to Hawaiʻi Revised Statutes § 641-11 (2016) and Hawaiʻi Rules of Penal Procedure (HRPP) Rule 40(h), "appeals from proceedings for post-conviction relief may be made from a judgment entered in the proceeding and must be taken in accordance with Rule 4(b) of the [HRAP]." Grattafiori v. State, 79 Hawaiʻi 10, 13, 897 P.2d 937, 940 (1995) (brackets omitted). Although HRPP Rule 40(h) refers to the appealable document as a "judgment," the Hawaiʻi Supreme Court has indicated that a "written order" deciding an HRPP Rule 40 petition for post- conviction relief is appealable pursuant to HRPP Rule 40(h). Id. at 14, 897 P.2d at 941. The Circuit Court of the Fifth Circuit has not yet entered a decision on Nakaula's October 24, 2025 Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner for Custody. Accordingly, the appeal is premature, and the court lacks jurisdiction. Therefore, IT IS HEREBY ORDERED that the Motion to Dismiss is granted in part and denied in part as follows: 1. The appeal is dismissed. 2. All other relief requested is denied as unnecessary. IT IS FURTHER ORDERED that all pending motions are dismissed. 1 Nakaula does not identify the order from which he appeals. Though Nakaula is represented by counsel Mark Zenger, he filed the appeal self- represented. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER IT IS FURTHER ORDERED that a copy of this order shall be mailed to Nakaula at the return address on the envelope attached to his notice of appeal. DATED: Honolulu, Hawaiʻi, September 28, 2026. /s/ Karen T. Nakasone Chief Judge /s/ Clyde J. Wadsworth Associate Judge /s/ Sonja M.P. McCullen Associate Judge 3