Chuuk v Phillip [2019] FMCSC 7; 22 FSM R. 425 (Chk. S. Ct. Tr. 2019) (14 November 2019)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC-CRIMINAL CASE-NO. 012-2018

CHUUK STATE,
Plaintiff,

vs.

BROKEY PHILLIP,
Defendant.
___________________________________

ORDER RE MODIFICATION OF SENTENCE MOTION

Kerio D. Walliby
Associate Justice

Decided: November 14, 2019

APPEARANCES:

For the Plaintiff: Sherry Jane Edmond
State Prosecutor
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
Under Rule 35(b), the court may reduce a sentence within 120 days after the sentence is imposed, and changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence, but any Rule 35 change in the original sentence will not be lightly won. Chuuk v. Phillip, 22 FSM R. 425, 427 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence - Reduction of Sentence
The court cannot reduce a sentence where nothing is shown that was not already considered by the court when the original sentence was fixed, and the court must deny a motion for modification where the original sentence was not unduly severe, no reason appeared for the court to change its mind, and nothing was presented which was not already considered when the sentence was imposed. Chuuk v. Phillip, 22 FSM R. 425, 427 (Chk. S. Ct. Tr. 2019).

Constitutional Law - Chuuk; Criminal Law and Procedure; Statutes - Construction
When a Chuuk Criminal Procedure Rule conflicts with a Chuuk statute, the statute’s language prevails because the Chuuk Constitution vests the Chief Justice with the authority to promulgate Criminal Procedure Rules, which the legislature may amend by statute, but the Chief Justice has no authority to amend a statute enacted by the legislature. Therefore, if the statute applies and the statute and the rule conflict, the statute must prevail. Chuuk v. Phillip, 22 FSM R. 425, 428 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence
Although a statute gives the court the authority to suspend the execution and imposition of a sentence respectively, the court’s power to suspend a sentence is not absolute when a mandatory jail term is required. Chuuk v. Phillip, 22 FSM R. 425, 428 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence
Criminal statutes, that contain a provision which mandates that the defendant must serve a mandatory x year jail sentence, supersede the court’s equitable power to suspend the mandatory jail sentence and its power to suspend the imposition of sentence. Chuuk v. Phillip, 22 FSM R. 425, 428 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence; Criminal Law and Procedure - Sentence - Reduction of Sentence
When the statute requires that the court impose a sentence of three years of imprisonment and that the defendant must serve a minimum of 3 years in jail, the statute controls, and the court cannot suspend the imposition or execution of the first three years of the jail sentence for a sexual assault conviction or to reduce the sentence to house arrest or to permit unsupervised release between 8 a.m. - 5 p.m. Chuuk v. Phillip, 22 FSM R. 425, 428 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence - Reduction of Sentence
A reduction of sentence will be denied when the court carefully reviewed the defendant’s aggravating and mitigating factors at the time of sentencing and sentenced him to the mandatory minimum, which cannot not be deemed as unduly severe for a serious felony offense; when the defendant did not present any additional factors besides those the court had already considered; and when the motion also lacked any reason to change the court’s mind. Chuuk v. Phillip, 22 FSM R. 425, 428-29 (Chk. S. Ct. Tr. 2019).

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COURT’S OPINION

KERIO D. WALLIBY, Associate Justice:

I. INTRODUCTION

On April 26, 2019, the Court found Defendant Brokey Phillip guilty of sexual assault, a violent felony. On May 31, 2019 the Court sentenced Phillip to a three year jail term - the minimum sentence allowed under Chuuk State Law No. 6-66, § 403 as ameny Chuuk State Late Law No. 13-16-12.

On September 27, 2019, Phillip made a timely motion to modify his original sentence to either be served under house arrest or to be allowed release between 8 a.m. and 5 p.m. from jail every day. Phillip asserted the following reasons to modify his sentence: he was enrolled within the College of Micronesia, he was employed at Vision Well Company, and his family relies on him for support. The State strongly opposed this motion.

II. ISSUES

1. 1. Whether the Court has the authority to modify a sentence under Rule 35 when such modification would conflict with a statutory sentencing guideline.
   

2. Whether it is appropriate for a Defendant convicted of sexual assault to be released into a community from 8 a.m.–5 p.m. for the duration of his three year sentence merely because he is a college student and his family relies on his income.

III. LAW

A. Rule 35 of the Chuuk State Rules of Criminal Procedure

Rule 35(b) of the Chuuk State Rules of Criminal Procedure provides that: "The court may reduce a sentence within 120 days after the sentence is imposed . . . Changing aence from a se a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision."

Thirt haviously observed that “any [Rule 35] changehange in t in the original sentence will not be lightly won by a convicted party.” Chuuk v. Inos, [2007] FMCSC 37; 15 FSM Intrm. 259, 261 (Chk. S. Ct. Tr. 2007). Inos further directs this court not to change a sentence "where nothing is shown to justify a reduced sentence that was not already considered by the court when the original sentence was fixed." Id. Inos requires this Court to deny a motion for modification where the original sentence was not unduly severe, no reason appeared for the court to change its mind, and nothing was presented within the motion which was not already considered at the time the sentence was imposed. Id.

B. Instances of Conflict Between Criminal Rules of Procedure and Statutes

Where a particular rule within the Chuuk State Rules of Criminal Procedure conflicts with a Chuuk State statute, the language of the statute prevails. The Chuuk State Constitution vests the Chief Justice with the authority to promulgate rules of Criminal Procedure - which the legislature may amend by statute. Chk. Const. art. VII, § 13. The Chief ce has no auno authority to amend a statute enacted by the legislature, however. Therefore, if the statute applies and the statute and the rule conflict, the statute must prevail.

C. Sentencing Guidelines under CSL 66-6, § 403, as ameby CSL 13-16-12<6-12

For a first offense of sexual assault, and where no dangerous weapon was used, the amended statute requires that convicted defendant shall serve not less than three years in jail.

Chuuk State Law No. 6-66 sections 1110 and 1111 provide this Court with the authority to suspend the execution and imposition of a sentence respectively. However, the Court’s power to suspend a sentence is not absolute where a mandatory jail term is required under a specific section of CSL 6-66. Chuuk v. Jose, 21 FSM R. 566, 572 (Chk. S. Ct. Tr. 2018). This Court held in Jose that “those [criminal] sections that contain a provision which mandates that defendant shall serve a mandatory x year jail sentence supersede § 1110 and therefore actually remove the Court’s equitable power to suspend such mandatory jail sentence in the applicable section." Jose, 21 FSM R. at 572. "The Court’s power to suspend the imposition of sentence is likewise superseded by mandatory sentencing guidelines - especially where the language of the statute requires that the ‘defendant shall be punished by x years of imprisonment.’” Id.

IV. LEGAL ANALYSIS

a. Reduction of Mandatory Minimum Jail Sentence to House Arrest is barred by Statute

Phillip urges this Court to modify Phillip’s three year jail sentence to be served under house arrest. Rule 35 of the Chuuk State Rules of Criminal Procedure allows the Court to grant this form of suspension of the sentence’s execution or imposition. However, such reduction under Rule 35 would then conflict with the mandatory sentencing terms dictated by Section 403 as amended. Section 403 requires that the Court impose a sentence of three years of imprisonment and that the Defendant shall serve a minimum of 3 years in jail. Section 403 controls. The Court may not suspend the imposition or execution of the first three years of a jail sentence for a conviction of sexual assault under Section 403. As the Court sentenced Phillip to the statutory minimum time in jail (of three years), the Court has no authority to reduce Phillip’s sentence to house arrest.

This mandatory minimum sentence also calls into question whether an unsupervised release between 8 a.m. - 5 p.m. for the remainder of Phillip’s mandatory three year jail sentence could possibly comply with the provision of Section 403. This Court finds that such release will not.

b. Defendant’s Release from Jail between 8 a.m.–5 p.m. is patently inappropriate

An additional independent reason for this Court’s denial of Phillip’s modification of sentence is that the original sentence was not unduly severe and Phillip’s motion does not present any basis for reducing this sentence. This Court considered sentencing guidelines and carefully reviewed Defendant Phillip’s aggravating and mitigating factors at the time of sentencing. The theoretical maximum sentence allowable under Section 403 is imprisonment for life. The mandatory minimum sentence for sexual assault, a serious felony, is three years in jail. The Court already sentenced Phillip to the mandatory minimum - it may not be deemed as unduly severe for a serious felony offense.

In his motion for modification of sentence, Phillip did not present any additional factors besides those the Court had already considered. In following the precedent set within Inos, the Court finds that this motion also lacks any reason to change its mind.

V. CONCLUSION

The Court finds that:

1. The Court has no authority to modify a sentence under Rule 35 when such modification would conflict with a statutory sentencing guideline.

2. It is not appropriate for a Defendant convicted of sexual assault to be released into a community from 8 a.m. – 5 p.m. for the duration of his three year sentence merely because he is a college student and his family relies on his income.

Motion Denied.

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