Chuuk v Ramey [2018] FMCSC 6; 22 FSM R. 130f (Chk. S. Ct. Tr. 2018) (28 September 2018)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC-CRIMINAL CASE NO. 092-2014

CHUUK STATE,
Plaintiff,

vs.

FUSAICHY RAMEY,
Defendant.
__________________________________________

ORDER DENYING MODIFICATION OF SENTENCE

Repeat R. Samuel
Associate Justice

Hearing: September 24, 2018
Decided: September 28, 2018

APPEARANCES:

For the Plaintiff: Kelbie Kennedy, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Charleston L. Bravo
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure - Sentence - Reduction of Sentence
Chuuk Criminal Rule 35(b) provides for judicial discretion to reduce a sentence upon a timely motion, but any change in the original sentence will not be lightly won, and a motion for reduction of sentence will be denied when the original sentence was not unduly severe, when no reason appeared for the court to change its mind, and when nothing is presented now that was not already considered at the time the sentence was imposed. The burden rests on the moving party. Chuuk v. Ramey, 22 FSM R. 130f, 130h (Chk. S. Ct. Tr. 2018).

Criminal Law and Procedure - Sentence - Reduction of Sentence
The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the State Court appellate division denying review of, or having the effect of upholding, a judgment of conviction. Changing a sentence from one of incarceration to a grant of probation constitutes a permissible reduction of sentence under Rule 35(b). Chuuk v. Ramey, 22 FSM R. 130f, 130h (Chk. S. Ct. Tr. 2018).

Criminal Law and Procedure - Sentence - Reduction of Sentence
Since the rules permit the court to reduce a sentence within 120 days after the imposition of sentence, the court lacks subject matter jurisdiction to rule on a motion to reduce a sentence when it is filed 123 days from the date that the orders of conviction were entered, and Criminal Procedure Rule 57 cannot serve as the basis for considering a motion for reduction of sentence filed after the 120-day deadline set in Rule 35(b). Chuuk v. Ramey, 22 FSM R. 130f, 130h-0i (Chk. S. Ct. Tr. 2018).

Criminal Law and Procedure - Sentence - Reduction of Sentence
A motion for reduction of sentence will be denied when, even if the defendant had filed his motion within 120 days, the evidence presented still did not meet his burden to show that modification of his sentence is warranted because he did not prove that he suffers from a medical hardship which cannot be accommodated by the department of public safety and he did not prove that modifying his sentence to house arrest would not further victimize his victim’s family. Chuuk v. Ramey, 22 FSM R. 130f, 130i-0j (Chk. S. Ct. Tr. 2018).

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COURT’S OPINION

REPEAT R. SAMUEL, Associate Justice:

I. INTRODUCTION AND PROCEDURAL HISTORY

On September 22, 2017, this Court convicted Defendant on four Counts including: sexual assault, sexual abuse, incest, and endangering the welfare of his six year-old grandniece. He was sentenced to imprisonment until September 24, 2018. Defendant filed for a motion to modify the remainder of his sentence to house arrest on July 9, 2018, citing rules 35(b) and alternatively Rule 57 of the Chuuk State Rules of Criminal Procedure. The State filed a motion in opposition on August 10, 2018. This Court heard oral arguments on September 24, 2018. It took the matter under consideration and now issues this order.

II. ISSUES

1. 1. Whether this Court has subject matter jurisdiction to modify sentence under Rule 35 of the Chuuk State Rules of Criminal Procedure when such motion is submitted more than 120 days after entry of judgment.
   
2. 2. Whether this Court may entertain such motion under Rule 57 of the Chuuk State Rules of Criminal Procedure.
   
3. 3. Whether Defendant has met his burden to prove that he suffers from a medical hardship which cannot be accommodated by the department of public safety and that modifying his sentence to house arrest would not further victimize the family of his victim.
   

III. STANDARD

Rule 35(b) of the Chuuk State Rules of Criminal Rule 35 provides for judicial discretion to reduce a sentence upon a timely motion. Chuuk v. Inos, [2007] FMCSC 37; 15 FSM Intrm. 259, 261 (Chk. S. Ct. Tr. 2007) (citing FSM v. Akapito, [2002] FMSC 40; 11 FSM Intrm. 298, 300 (Chk. 2002)); 3 Charles Alan Wright, Federal Practice and Procedure § 586, at 401-04 (2d ed. 1982). However, "any change in the original sentence will not be lightly won" by a convicted party. Id. Therefore, a motion for reduction of sentence will be denied when the original sce was not unduly severe, wre, when no reason appeared for the court to change its mind, and when nothing is presented now that was not already considered at the time the sentence was imposed. Id. The burden rests on the moving party.

IV. LAW

A. Chuuk State Rules of Criminal Procedure, Rule 35(b)

Rule 35(b) of the Chuuk State Rules of Criminal Procedure Provides that a court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Appellate Division of the State Court denying review of, or having the effect of upholding, a judgment of conviction. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

B. Subject Matter Jurisdiction for Rule 35(b) motion filed after 120 days

Since the rules permit the court to reduce a sentence within 120 days after the sentence has been imposed, the court is without subject matter jurisdiction to rule on a motion to reduce a sentence when it is filed more than 120 days from the date that the orders of conviction were entered. Chuuk v. William, 16 FSM R. 149, 153 (Chk. S. Ct. Tr. 2008). William had filed his motion 123 days after conviction.

C. Rule 57 of the Chuuk State Rules of Criminal Procedure

Defendant also asked the Court to consider Rule 57 of the Chuuk State Rules of Criminal Procedure as the basis for his motion for modification. If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.

V. EVIDENCE BEFORE THE COURT

Defendant brought one witness, Dr. Sappa from the Chuuk general hospital. She introduced a medical report into evidence dated July 4, 2018. Dr. Sappa testified to the fact that the Defendant suffers from Chronic Obstructive Pulmonary Disease as a result of smoking for over twenty years. She noted that the condition will not improve. Further, Dr. Sappa testified that in November 2017, Defendant was admitted to Chuuk General Hospital after having suffered from pneumonia, a released after a week with various medications prescribed. Dr. Sappa noted that the Chronic Obstructive Pulmonary Disease had exacerbated the possibility of pneumonia in the future for the Defendant. No reoccurrence of pneumonia has occurred as of date. Further Dr. Sappa noted that she had observed the interior of the Department of Public Safety and noted that the congested air within the holding areas for Defendants can worsen the Chronic Obstructive Pulmonary Disease within Defendant. She recommended that access to fresh air will reduce the effects of the disease upon the Defendant.

VI. LEGAL ANALYSIS

A. No Subject Matter Jurisdiction

This Court has already established in prior decisions that it lacks jurisdiction to modify a sentence under Rule 35 of the Chuuk State Rules of Criminal Procedure if such motion is filed 120 day after the entry of judgment for conviction and sentencing. William, 16 FSM R. at 153. Defendant also cited Rule 57 of the Chuuk State Rules of Criminal Procedure as the basis for his motion to modify the sentence. In pertinent part, Rule 57 provides that if no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules. To review a motion to modify under such provision would run contrary to the explicit language of Rule 35, which this Court has held to restrict its jurisdiction to hear motions for modification that are filed more than 120 after the entry of judgment. Thus, Rule 57 may not serve as the basis for such motion. As Rule 35 controls and Defendant filed his motion for modification more than 9 months after the entry of judgment for conviction and sentencing, the Court lacks subject matter jurisdiction to modify his sentence under this motion.

B. Defendant Failed to meet Burden to Modify Sentence

Even if Defendant had filed his motion within 120 days, the evidence presented at trial still would not have met his burden to show that modification of his sentence is warranted. While Dr. Sappa’s letter notes that the congested air inside of the main building for public safety can worsen the Chronic Obstructive Pulmonary Disease, there has been no evidence shown that the Department of Public Safety cannot accommodate Defendant to alleviate these issue, nor that the air inside Public Safety unduly exacerbates his condition while house arrest will not. Likewise, it appears that Defendant has not suffered a relapse of pneumonia since November 2017.

The Court considered that Defendant was 70 years old when sentencing the Defendant. Apparently, Defendant’s Chronic Obstructive Pulmonary Disease had not prevented him from sexually assaulting his six-year old relative not too long before.

Finally, there remains the fact that Defendant had sexually assaulted his young relative, in an ultimate betrayal of trust to his family. Defendant proposed that he is placed under house arrest, but offered no evidence that his victimized family would consent to his serving house arrest in their vicinity. Even if there was subject matter jurisdiction coupled with no ability for the Department of Public Safety to accommodate realistic health concerns unduly exacerbated by prison conditions; the balance of equity would require that the absence of such consent would weigh against granting such a motion under these circumstances.

VII. CONCLUSION

This Court now finds that it lacks subject matter jurisdiction to modify sentence under Rule 35 of the Chuuk State Rules of Criminal Procedure when such motion is submitted more than 120 days after entry of judgment. This Court also finds that it may not entertain such motion under Rule 57 of the Chuuk State Rules of Criminal Procedure. Moreover, this Court finds that Defendant has not met his burden to prove that he suffers from a medical hardship which cannot be accommodated by the department of public safety and that modifying his sentence to house arrest would not further victimize the family of his victim. For these reasons, Defendant’s Motion for Modification of Sentence is now DENIED.

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