Chuuk v Fred [2019] FMCSC 8; 22 FSM R. 429 (Chk. S. Ct. Tr. 2019) (17 December 2019)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC-CRIMINAL CASE-NO. 020-2019

CHUUK STATE,
Plaintiff,

vs.

SARIE FRED,
Defendant.
___________________________________

ORDER RE: MOTION FOR MODIFICATION OF SENTENCE

Kerio D. Walliby
Associate Justice

Decided: December 17, 2019

APPEARANCES:

For the Plaintiff: Redeemer Nelson
State Prosecutor
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Bethwell O’Sonis, Esq.
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 one 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. Fred, 22 FSM R. 429, 432 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence - Reduction of Sentence
When nothing is shown to justify a reduced sentence that the court had not already considered when it fixed the original sentence, the court cannot change the sentence and it 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 within the motion which was not already considered when the sentence was imposed. Chuuk v. Fred, 22 FSM R. 429, 432 (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 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. Fred, 22 FSM R. 429, 432 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence
Although the 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. Fred, 22 FSM R. 429, 432 (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. Fred, 22 FSM R. 429, 432 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Cruel and Unusual Punishment
The Chuuk and FSM Constitutions prohibit the infliction of cruel and unusual punishment. Chuuk v. Fred, 22 FSM R. 429, 432 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Cruel and Unusual Punishment; Criminal Law and Procedure - Prisons and Prisoners
Although there is a lack of a female holding cell in the Chuuk jail and no separate female showering and restroom facilities, a female prisoner is not subjected to a cruel and unusual punishment by virtue of her incarceration at the Chuuk jail with shared use of restroom facilities with male inmates - when she has a female police officer guarding her, her own separate sleeping quarters, and uses the shower at a different time from the male inmate population. Chuuk v. Fred, 22 FSM R. 429, 433 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Sentence - Reduction of Sentence
When the statute requires the court to 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 the sexual assault conviction or reduce the sentence to house arrest. Chuuk v. Fred, 22 FSM R. 429, 433 (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 her 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. Fred, 22 FSM R. 429, 433-34 (Chk. S. Ct. Tr. 2019).

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COURT’S OPINION

KERIO D. WALLIBY, Associate Justice:

I. INTRODUCTION

On June 24, 2019, the Court found defendant Sarie Fred guilty of sexual assault, a violent felony. On July 5, 2019, the Court sentenced Ms. Fred to a three-year jail term - the minimum sentence allowed under Chuuk State Law No. 6-66, § 403 as ameby Chuuk State Late Law 13-16-12.

On October 11, 2019, Sarie Fred made a timely motion to modify her original sentence to be served under house arrest on her island, Piisemwar Muniity. Sarie Fred asserted tted the following: there is no designated female holding cell unit including restroom and shower which she claimed is a cruel and unusual punishment. The State did not oppose this motion, however, stated that the defendant should be remanded back to the jail when there is a female holding unit.

II. ISSUES

1. 1. Whether it is cruel and unusual punishment to have a female defendant sit in jail where there is a lack of a female-only bathroom and shower room - when other accommodations exist to prevent dangers of sexual harassment.
   
2. 2. Whether the Court otherwise has the authority to modify a sentence under Rule 35 when such modification would conflict with a statutory sentencing guideline.
   

III. TESTIMONY OF CORRECTION OFFICER TOM NOAH

Officer Tom Noah testified that the defendant has her own sleeping room on the second floor at the Department of Public Safety and access to the two restrooms available which shared with three male inmates. The shower room is located at the first floor which shared to all the male population.

There are five female officers of whom one is assigned to guard or look out for the defendant. The female officer usually left the defendant at around 8:00 p.m.

Mr. Noah also testified that there is female cell unit available at the new building which he did not know of when it would be ready to accommodate the prisoners. At the present, the officers started to move in their things or office equipment.

IV. 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 . .㺼. Changing a sent sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reductionentence under this subdivision."

This Court has previously observed that “#8220;any [Rule 35] change 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 Justice has no 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 pl.

C. Sentencing Guidelines under CSL 66-6,66-6, § 403, as amended by CSL 112<6-12

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

Chuuk Stuk 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 actuallo remove the Court’s equitable power to suspend such mandatory jail sentence in the applicable section. Jose, 21 F at 572. "The Court’s power to suspend the imposition of sentence is likewise supersuperseded by mandatory sentencing guidelines - especially where the language of the statute requires that the ‘defendant shall be punished by x years of imprisonment.’” Id.

D. Constitutional Prohibition against Cruel and Unusual Punishment

The Chuuk State Constitution prohibits the infliction of cruel and unusual punishment. Chk. Const. art. III, § 6. Th Constitution also prso protects against cruel and unusual punishment. FSM Const. art. IV, § 8. Some instances of crnd unusual precedents throughout the FSM have included deliberate indifference to an inmatenmate's medical needs; confining prisoner ngerously unsanitary conditions; an officer instead of protecting a person from an attack, ack, threw him to the ground and beat the person in the jail; use of force by police officers when arrestee was so drunk and unstable to resist or defend himself and when police officer used force because he was enraged at being insulted by arrestee; where a municipality employed untrained persons as police officers, failed to train them and authorized their use of excessive force and summary punishment; corrections officers’ failure to permit the use of restroom facilities or to provide food and water; keeping an individual imprisoned for an additional 161 days after their sentence ended. Plais v. Panuelo, [1991] FMSC 25; 5 FSM Intrm. 179, 199-200, 208 (Pon. 1991); Meitou v. Uwera, [1991] FMCSC 2; 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991); Alaphen v. Municipality of Moen, [1986] FMSC 20; 2 FSM Intrm. 279, 280 (Truk 1986); Warren v. Pohnpei State Dep’t of Public Safety, 13 FSM R. 483, 494 (Pon. 2005): Kon v. Chuuk, 19 FSM R. 463, 466 (Chk. 2014).

V. LEGAL ANALYSIS

a. Lack of a female-only “holding unit” in a jail does not constitute cruel and unusual punishment in this circumstance

The record shows that there is a lack of a female holding cell in the Chuuk State jail nor separate showering and restroom facilities for females. However, the record also reflects that Fred is guarded by a female police officer until 8 p.m., has her own separate sleeping quarters on the second floor - which are separate from that of the male sleeping quarters, and shares the two bathrooms with three other people.

The danger here is that Fred might be in danger of sexual harassment from the other defendants. The danger is however, limited. There are no allegations of police officers subjecting Fred to harassment. Further, Chuuk Public Safety has accommodated Fred’s specific needs by providing her with a female guard during the entire day. Therefore, when Fred is outside her sleeping cell, the Court is perfectly satisfied with the fact that she is safe from sexual harassment. If Fred is in her sleeping cell in the evening and requires a need to use the restroom, the court is satisfied that the existence of a male or female guard to escort her to one of two restroom facilities will prevent her exposure to such risk also. It is not cruel and unusual to allow a female to use restrooms and showering facilities which were used by males in the past either.

The record fails to reflect that Fred is subject to a cruel and unusual punishment by virtue of her incarceration at the Chuuk State jail with shared use of restroom facilities with male inmates - when she has a female police officer guarding her, her own separate sleeping quarters, and uses the shower at a different time from the male inmate population.

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

Sarie Fred urges this Court to modify her 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 Fred to the statutory minimum time in jail (of three years), the Court has no authority to reduce Fred’s sentence to house arrest.

Further, this Court considered sentencing guidelines and carefully reviewed defendant Fred’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, serious felony, is three years in jail. The Court already sentenced Fred to the mandatory minimum - it may not be deemed as unduly severe for a serious felony.

In her motion for modification of sentence, Sarie Fred 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.

VI. CONCLUSION

The Court finds that:

1. 1. It is not cruel and unusual punishment to have a female defendant sit in jail where there is a lack of a female-only bathroom and shower room - when other accommodations exist to prevent dangers of sexual harassment.
   
2. 2. The Court otherwise has no authority to modify a sentence under Rule 35 when such modification would conflict with a statutory sentencing guideline.

Motion Denied.

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