Federated States of Micronesia v Dores [1984] FMSC 11; 1 FSM Intrm. 580 (Pon. 1984) (22 October 1984)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Dores, [1984] FMSC 11; 1 FSM Intrm. 580 (Pon. 1984)

[1984] FMSC 11; [1 FSM Intrm. 580]

TRIAL DIVISION-POHNPEI STATE

FEDERATED STATES OF MICRONESIA,

vs.

ANDONIO DORES,
Defendant.

CRIMINAL CASE NO. 1984-502

October 22, 1984

OPINION AND ORDER

Edward C. King
Chief Justice
Kolonia, Pohnpei 96941

APPEARANCES:

For the Federated: Edwin Rauzi
States of Micronesia Special Counsel to the
State Attorney General
Office of Attorney General
Kolonia, Pohnpei 96941

For the Defendant: Loretta Faymonville
State Public Defender
Office of Public Defender
Kolonia, Pohnpei 96941

[1 FSM Intrm. 581]

EDWARD C. KING, Chief Justice:

The government's notion for acceptance of defendant's previously tendered guilty plea requires the court to decide whether the defendant's violation of his plea agreement after the agreement was filed with, and accepted by, the Court, but before sentencing by the Court, may serve as the basis for Court punishment of the defendant. I conclude that it can and defendant's plea of guilty to the crime of assault with a dangerous weapon is now accepted, although the plea agreement provides for the Court to defer acceptance of that plea.

Factual Background

Defendant Andonio Dores and his cousin Benjamin originally were charged with the crimes of assault with a dangerous weapon and aggravated assault in an information arising out of an incident which occurred on February 15, 1984.

On March 9, 1984, a plea agreement was submitted to the Court whereby the defendants were each to plead guilty to charges of assault and battery and disturbing the peace and all other charges against them would be dropped. That plea agreement was rejected by the Court as inappropriately lenient.

[1 FSM Intrm. 582]

Subsequently, on April 19, 1984, a new stipulated plea agreement, signed by Andonio Dores, was presented to the Court. This too provided that Andonio Dores would plead guilty to a reduced charge, assault and battery, but he also was to tender a guilty plea to the charge of assault with a dangerous weapon. The agreement stipulated that the court was to defer acceptance of the assault with a dangerous weapon guilty plea subject to certain conditions, one of which was that "the defendant shall abstain from all criminal conduct."

On May 8, the Court accepted the plea agreement and Andonio Dores tendered pleas of guilty to the crimes of assault and battery and assault with a dangerous weapon. The former plea was accepted and the Court deferred acceptance of the latter. Sentencing was set for July 3.

In the meantime, on May 13, 1984, Andonio Dores assaulted another person. For that, he was convicted of assault and battery by the Ponape State Court and sentenced to five months in jail on June 20.

When this Court sentenced Andonio Dores on July 3 for the February 15, 1984 attack, the government brought to the Court's attention the conviction of

[1 FSM Intrm. 583]

Andonio Dores for the May 13 assault but made no request for the Court to take action concerning the plea for assault with a dangerous weapon. The Court made no mention of the May 13 incident in its sentence but stated during the hearing that it would await any initiative by the government.

The government has now moved the Court to accept defendant's guilty plea for the charge of assault with a dangerous weapon. The ground for the motion is that the May 13 assault by the defendant was in violation of Andonio Dores' plea agreement commitment, made April 17, 1984 and accepted by the Court on May 8, to abstain from all criminal conduct.

The defendant has moved to dismiss the government's motion, contending that the conditions were not in effect until this Court's sentencing order of July 3, and that the Court is therefore without power to find that the conditions were violated by the defendant's prior act.

Legal Analysis

In support of his motion, the defendant has pointed to the reasoning in United States v. Hull, 413 F. Supp. 135 (E.D. Tenn. 1976). In Hull the defendant, unknown to the government and the court, had committed

[1 FSM Intrm. 584]

the crime of murder some two years before he was sentenced for violation of the income tax laws. For the income tax crime, Hull was sentenced only to 75 days in jail with some nine and one-half months suspended. He was placed on probation for 18 months.

When the earlier murder by Hull came to light, the court considered whether that crime could serve as a basis for revocation of probation. That court thought it crucial that the murder had occurred prior to the court's acceptance of the plea agreement. The earlier murder was a factor which, if known, should have been considered in determining whether the plea agreement would be accepted. The court concluded that to revoke probation, granted under a plea agreement, for a crime already committed when the agreement was accepted, would be essentially like refusing to accept the plea agreement yet issuing a harsh sentence without permitting the defendant to withdraw his guilty plea. The court decided that this would be unfair and possibly beyond its authority under Rule 11.

The situation here is quite different. There are four principal events in a plea and sentencing arrangement. First is the plea agreement between the government and the defendant. Second is court

[1 FSM Intrm. 585]

acceptance of the plea agreement. Third is the plea itself a nd fourth is imposition of sentence. In Hull, the "other crime" had occurred before any of those four events occurred. By way of contrast, the "other" crime in this case had not occurred prior to the plea agreement but instead was committed by Andonio Dores after three of the four principal plea events were completed. Mr. Dores committed his crime after he had agreed to abstain from violating any law, after the Court has expressly accepted the agreement and after the guilty plea had been tendered.

Moreover, Court acceptance was more significant here than in the usual case because the plea agreement was submitted under Rule 11(e)(1)(c) of our Rules of Criminal Procedure, which calls for implementation of the terms of the agreement by the Court if the court accepts the agreement. When the Court accepted, the defendant, the prosecution and the Court had all bound themselves to carry out the terms of the plea agreement. From that point on, Andonio Dores was entitled to the benefit of the bargain reflected in his plea agreement. Fairness demands that the government likewise be entitled to enforce his promises. Certainly there can be no sympathy for this defendant

[1 FSM Intrm. 586]

who committed his next crime only five days after the Court accepted his promise to abstain from committing crimes.

To hold that the defendant could, with impunity, carry out an act from which he had agreed to abstain in a plea agreement filed with the Court and accepted by the Court would be an unwarranted invitation to criminal defendants to search for and exploit loopholes.

I note that in a somewhat parallel area, revocation of probation before the probation actually started, other courts have had little difficulty in rejecting the argument that it is impossible then to violate conditions of probation because those conditions become effective only when the probation starts. Courts have uniformly held that sound policy requires that they be able to revoke probation for a defendant's offense committed before the sentence commences. Lowery v. Estella, [1983] USCA5 96; 696 F.2d 333 (5th Cir. 1983); United States v. Dozier, 543 F. Supp. 880, 889 (D. La. 1982) (citing United States v. Ross, [1974] USCA5 1765; 503 F.2d 940 (5th Cir. 1974)).

Conclusion

Considerations of fairness and mutuality, as well

[1 FSM Intrm. 587]

as sound policy, require that a defendant who enters into a written plea agreement be subject to punishment when he violates the terms of his agreement.

The government's motion is granted. Based upon Andonio Dores's May 13, 19134 assault and battery, a violation of the April 19 plea agreement accepted on May 8 is declared, and the Court accepts the defendant's May 8 plea of guilty to the crime of assault with a dangerous weapon.

The Justice Ombudsman is instructed to prepare a presentence report to be distributed to the parties on or before November 12. Sentencing is set for Friday, November 16, 1984 at 9 a.m.

So ordered the 22nd day of October, 1984.

/s/ Edward C. King
EDWARD C. KING
Chief Justice
Supreme Court of the
Federated States of
Micronesia

Entered this 25th day, of October, 1984.

/s/ Emeliana J. Musrasrik

Chief Clerk of Court
Supreme Court of the
Federated States of
Micronesia