Neth v Kosrae [2006] FMSC 20; 14 FSM Intrm. 228 (App. 2006) (18 May 2006)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228 (App. 2006)

LARRY B. NETH,APPEAL
Appellant,

vs.

STATE OF KOSRAE,
Appellee.

CASE NO. K1-2005

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court*

* Acting Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

OPINION

Argued: May 2, 2006
Decided: May 18, 2006

APPEARANCES:

For the Appellant:
Harry A. Seymour, Esq. (briefed)
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

Joey J. Sapelalut, Esq. (argued)
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

For the Appellee:
J.D. Lee, Esq.
Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

* * * *

HEADNOTES

Appellate Review - Notice of Appeal
In criminal cases, a defendant’s notice of appeal must be filed within 10 days after the entry of the judgment appealed from. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 231 (App. 2006).

Criminal Law and Procedure
Regardless of what the trial court chose to call it, a "judgment of conviction" that contains the plea,

[14 FSM Intrm. 236]

the findings (both general and special), and the adjudication, but it does not contain the sentence was not a judgment of conviction because a judgment of conviction must set forth the plea, the findings, and the adjudication and sentence. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 231 (App. 2006).

Appellate Review - Standard of Review - Criminal Cases
An issue of whether there was any testimony presented to show that the defendant was threatened by imminent unlawful bodily harm would not really be an issue since even if there was such testimony, the issue is whether the trial court could have reasonably found that other contrary testimony was more credible or carried more weight. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 n.1 (App. 2006).

Appellate Review - Standard of Review - Criminal Cases
When a criminal defendant has failed to raise and preserve an issue, he has waived his right to object, but when a plain error that affects the defendant’s constitutional rights has occurred, the court may notice the error on its own. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 (App. 2006).

Appellate Review - Standard of Review - Criminal Cases
An appellate court may notice plain error when the error affects a criminal defendant’s substantial rights. The plain error exception also applies when the error is obvious and substantial and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 (App. 2006).

Criminal Law and Procedure - Public Trial
The FSM and Kosrae Constitutions guarantee every criminal defendant the right to a public trial. A criminal defendant’s right to be present at trial extends to all stages of trial, including the return of the finding or verdict of guilty or not guilty. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 (App. 2006).

Appellate Review - Standard of Review - Criminal Cases; Criminal Law and Procedure - Public Trial
Violation of the constitutional public trial right is not subject to a harmless error analysis and the defendant need not show any prejudice. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 (App. 2006).

Appellate Review - Standard of Review - Criminal Cases; Criminal Law and Procedure - Public Trial
When, after the trial court had taken the case under advisement, it made its finding of guilt in writing and the written finding was then served on counsel and there was never an oral in-court pronouncement of guilt beforehand, and when, following the sentencing hearing, there was no public imposition of sentence in open court, only a later written sentencing order served on counsel, an appellate court must vacate the finding because it was improperly entered since there was no public finding of guilt. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 (App. 2006).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Sentencing
Even if the finding of guilt had been made in open court with the defendant present, the case would still have to be remanded to the trial court when there was no public imposition of sentence with the defendant present. When a sentence is imposed, the defendant’s presence is required because the defendant must be present at every stage of the trial including the finding of the court and at the imposition of sentence. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 232 (App. 2006).

Criminal Law and Procedure
When an FSM (or Kosrae) criminal rule which is identical or similar to a U.S. rule has not previously been construed, a court may look to U.S. sources for guidance in interpreting the rule. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 233 n.2 (App. 2006).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Sentencing

[14 FSM Intrm. 237]

The defendant’s right (found in Rule 43) to be present at the imposition of sentence is constitutionally based on the confrontation and due process clauses. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 233 & n.3 (App. 2006).

Constitutional Law - Interpretation; Constitutional Law - Kosrae - Interpretation
When an FSM or Kosrae constitutional protection is patterned after a U.S. Bill of Rights provision, U.S. authority may be consulted to understand its meaning. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 233 (App. 2006).

Criminal Law and Procedure - Sentencing
When sentencing a criminal defendant, the sentencing court must eyeball the defendant at the instant it exercises its most important judicial responsibility. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 233 (App. 2006).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Sentencing
Although Kosrae Criminal Rule 43(b) permits a criminal defendant, once trial has started with the defendant present, to voluntarily absent himself or herself from the trial or from the oral pronouncement of findings, it does not permit a criminal defendant to be absent from the court’s imposition of sentence or to waive his or her right to be present at the imposition of sentence. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 233 (App. 2006).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Sentencing
A reason illustrating the importance of the public imposition of sentence is that the written sentence must conform to the one delivered orally. If it does not, the oral sentence, not the written sentence, controls. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 233 (App. 2006).

Criminal Law and Procedure - Public Trial
The sentence orally pronounced from the bench is the sentence, because the only sentence that is legally cognizable is the actual oral pronouncement in the defendant’s presence. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 234 (App. 2006).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Sentencing
The general public also has a right and interest in a public sentencing that enables the public to learn the sentence and court’s reasons for it. Neth v. Kosrae, [2006] FMSC 20; 14 FSM Intrm. 228, 234 (App. 2006).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

Larry B. Neth appealed his December 27, 2004 "Judgment of Conviction" for assault and battery and his March 10, 2005 sentence in the Kosrae State Court. In conformance with our recent opinion in Nena v. Kosrae, App. No. K1-2004 (Feb. 14, 2006), the sentence and conviction are vacated and the matter is remanded to the trial court for it to make a public pronouncement of its general finding of Neth’s guilt before entering its written findings and for the trial court to publicly impose its sentence on Neth. Our reasons follow.

I. Procedural History

[14 FSM Intrm. 238]

Neth was charged with assault and battery, Kos. S.C. § 13.disturbing the peace, Koe, Kos. S.C. § 13.503, and assault S.C. &#C. § 13.302. Trial wld on Decembecember 7,. The trial court then took the matter under advisement. It issued a written decision and jand judgment of conviction on December 9, Nethconvicted of the the assault and battery charge, acquitteditted of the disturbing the peace charge, and the assault charge was dismissed because it was a lesser included offense of the charge of which he had just been found guilty. Sentencing was set for December 19, 2004. It was not held. On December 20, 2004, Neth filed a motion for judgment of acquittal under Kosrae Criminal Rule 29(c). On December 27, 2004, the court entered an Amended Judgment of Conviction. Sentencing was reset for December 28, 2004. On January 4, 2005, the court denied the motion for acquittal. The sentencing hearing was finally held on February 24, 2005 and the matter again taken under advisement. A written sentencing order was entered on March 10, 2005 and served on counsel.

On March 16, 2005, the notice of appeal was filed. The notice stated that Neth was appealing "from the judgment of conviction in Kosrae Criminal Case No. 131-2004 entered by the Kosrae State Court on December 27, 2004 and the sentencing order entered on March 10, 2005." "In criminal cases . . . the notice ofal by a defe defendant shall be filed . . . within 10 days after the entry of the judgment appealed from." FSM App. R. 4(b). Thus a March 16, 2005 notice of appeal would be too late peal gmentred on DecemDecember 27, 2004 and we would lack jurisdiction.

However, reg, regardleardless of what the trial court chose to call it, the December 27, 2004 "judgment of conviction" (included in the trial court’s findings of fact and conclusions of law along with the court’s finding of guilt) was not a judgment of conviction. "A judgment of conviction shall set forth the plea, the findings, and the adjudication and sentence. . . ." Kos. Crim. R. 32(b)(1). The December 27, 2004 "judgment" does contain the plea, the findings (both general and special), and the adjudication, but it does not contain the sentence. it wa a judgment of conviction.

Although tugh the Mahe March 10, 2005 Sentencing Order does not explicitly set forth the plea and the findings (the general finding was guilty), those may be inferred from its text. The Sentencing Order is thus the only document which might actually be a judgment of conviction despite what the trial court chose to call it or to call the December 27, 2004 order. "A thing is what it is regardless of what someone chooses to call it." McIlrath v. Amaraich, [2003] FMSC 24; 11 FSM Intrm. 502, 505 & n.3 (App. 2003). The appeal is thus timely and we have jurisdiction to hear it.

II. Issue Presented by Appellant

Neth contends 1) that the trial court’s finding that there was no testimony presented to show that Neth was threatened by imminent unlawful bodily harm was clearly erroneous, and 2) that the trial court’s conclusion that Neth was not justified under the common law defense of provocation and self-defense to defend himself from imminent bodily harm by slapping Nithan’s [the alleged victim’s] face was clearly erroneous.^[1]

III. Issues Not Raised - Plain Error

When a criminal defendant has failed to raise and preserve an issue, he has waived his right to object, but when a plain error that affects the defendant’s constitutional rights has occurred, the court may

[14 FSM Intrm. 239]

notice the error on its own. Moses v. FSM, [1991] FMSC 22; 5 FSM Intrm. 156, 161 (App. 1991) (plain error for trial court not to have considered whether criminal defendant waived right to silence). An appellate court may notice plain error when the error affects a criminal defendant’s substantial rights. Ting Hong Oceanic Enterprises v. FSM, [1996] FMSC 2; 7 FSM Intrm. 471, 477 (App. 1996) (criminal conviction of two defendants who never appeared for trial was plain error). The plain error exception also applies when the error is obvious and substantial and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Panuelo v. Amayo, [2004] FMSC 13; 12 FSM Intrm. 365, 372 (App. 2004); Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 95 (App. 2001).

A. Public Pronouncement of Finding of Guilt

The FSM Constitution guarantees every criminal defendant the right to a public trial, FSM Const. art. IV, § 6, as does osrae Constitutiitution, Kos. Const. art. II, § 1(e). A cri defendant’#8217;s right to be present at trial extends to all stages of trial, including the return of the ng orict olty or not gnot guilty. In Nena v. Kosrae, App. No. K1-2004 (Feb. 14, 2006), we), we noti noticed plain constitutional error and vacated a judgment of conviction because "the trial judge never pronounced his decision from the bench (and was constitutionally required to do so before issuing a written opinion)." Nena v. Kosrae, [2006] FMSC 5; 14 FSM Intrm. 73, 78 (App. 2006). Violation of the constitutional public trial right is not subject to a harmless error analysis and the defendant need not show any prejudice. Id. We therefore remanded that case to the trial court for it to set a date for it to orally pronounce its general finding from the bench. Id. at 78, 82.

That same plain constitutional error is present in this case, but compounded. After the trial court had taken this case under advisement, it made its finding of guilt in writing and the written finding was then served on counsel. There was never an oral in-court pronouncement of guilt beforehand. And then, following the sentencing hearing, there was no public imposition of sentence in open court, only a later written sentencing order served on counsel. Accordingly, for the reasons we set out fully in Nena v. Kosrae, 14 FSM Intrm. at 77-79, we must vacate the December 27, 2004 finding because it was improperly entered since there was no public finding of guilt.

B. Public Imposition of Sentence

Even if the finding of guilt had been made in open court with Neth present, we would still have to remand this case to the trial court since there was no public imposition of sentence with Neth present. When a sentence is imposed, the defendant’s presence is required. "The defendant shall be present at . . . at eveage o tthe trial inal including the finding of the court, and at the imposition of sentence . . 0;." Crim. R. 4 R. 43(a).

The defenda217;st (found in Rule 43^[2]">[2]) to be present at the imposition of sentence is constitutiy basu>United States vtes v. Tay. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (per curiam); see also United States v. Villano, [1987] USCA10 119; 816 F.2d 1448, 1452 (10th Cir. 1987) (Rule 43's source is in the U.S. Constitution’s confrontation and due process clauses^[3]). When sentencing a criminal defendant, "the sentencing court must

[14 FSM Intrm. 240]

'eyeball’ the defendant at the instant it exercises its most important judicial responsibility." United States v. Faulks, [2000] USCA3 9; 201 F.3d 208, 209 (3d Cir. 2000). In Faulks, although the defendant was present at his sentencing hearing, sentence was not imposed at that time, but was later imposed by a written order and in Faulks’s absence. Id. at 210. The appellate court therefore vacated the sentence and remanded for resentencing. Id. at 211-12.

Like Faulks, Neth was present at his (February 24, 2005) sentencing hearing, but was not present when his sentence was imposed by written order (on March 10, 2005). Thus even if Neth’s finding of guilt were not vacated, we would have to vacate Neth’s sentence and remand for resentencing.

Although Kosrae Criminal Rule 43(b) permits a criminal defendant, once trial has started with the defendant present, to voluntarily absent himself or herself from the trial or from the oral pronouncement of findings, it does not permit a criminal defendant to be absent from the court’s imposition of sentence or to waive his or her right to be present at the imposition of sentence. Kos. Crim. R. 43(b) ("further progress of the trial to and including the finding of the court shall not be prevented" by the defendant’s voluntary absence after the trial has started with the defendant present). See, e.g., United States v. Lastra, [1992] USCADC 539; 973 F.2d 952, 956 (D.C. Cir. 1992); United States v. Songer, [1988] USCA10 63; 842 F.2d 240, 244 (10th Cir. 1988); Wilmore v. United States, [1977] USCA3 841; 565 F.2d 269, 272 (3d Cir. 1977); United States v. Mayfield, [1974] USCA10 199; 504 F.2d 888, 889 (10th Cir. 1974); United States v. Brown, [1972] USCA5 412; 456 F.2d 1112, 1114 (5th Cir. 1972); United States v. Turner, 532 F. Supp. 913, 915-16 (S.D. Cal. 1982); United States v. Persico, 87 F.R.D. 156, 157 (E.D.N.Y. 1980) (all construing identical language in U.S. Federal Rule of Criminal Procedure 43 to mean that a defendant’s presence at imposition of sentence cannot be waived).

A further reason illustrating the importance of the public imposition of sentence is that the written sentence must conform to the one delivered orally. If it does not, the oral sentence, not the written sentence, controls. FSM v. Fritz, [2004] FMSC 35; 13 FSM Intrm. 88, 91 n.1 (Chk. 2004); see also Villano, 816 F.2d at 1453 ("The sentence . .&. is the punishment imposimposed orally by a sentencing judge in a defendant’s presence."); United States v. Weir, [1984] USCA8 9; 724 F.2d 94, 95 (8th Cir. 1984) ("the oral sentence and not the en order constitutes the ache actual judgment of the court"); United States v. Munoz-Dela Rosa, [1974] USCA9 159; 495 F.2d 253, 255 (9th Cir. 1974) (judge’s oral pronouncement from the bench controlled even though he later said he actually meant to say something else); United States v. Mason, [1971] USCA10 153; 440 F.2d 1293, 1299-1300 (10th Cir. 1971), cert. denied, 404 U.S. 883 (1971); Scott v. United States, [1970] USCA5 1496; 434 F.2d 11, 20 (5th Cir. 1970); Baca v. United States, [1967] USCA10 322; 383 F.2d 154, 157 (10th Cir. 1967), cert. denied, 390 U.S. 929 (1968); United States v. Morse, [1965] USCA4 165; 344 F.2d 27, 28 n.1 (4th Cir. 1965). "The sentence orally pronounced from the bench is the sentence," Villano, 816 F.2d at 1451, because "[t]he only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant," Munoz-Dela Rosa, 495 F.2d at 255.

Furthermore, the general public also has a right and interest in a public sentencing that enables the public to learn the sentence and court’s reasons for it. See United States v. Lewis, [2005] USCA2 328; 424 F.3d 239, 247 (2d Cir. 2005); United States v. Alcantra, [2005] USCA2 21; 396 F.3d 189, 196, 206 (2d Cir. 2005).

Therefore, the trial court, on remand, shall not impose a sentence on the defendant unless he is present in open court.

IV. Conclusion

Accordingly, Larry B. Neth’s conviction and sentence are vacated and the matter remanded to the Kosrae State Court for it to publicly pronounce its finding of guilty on Neth in open court, and then for it to

[14 FSM Intrm. 241]

impose sentence on Neth while Neth is present in open court. After a new judgment of conviction that conforms to Kosrae Criminal Procedure Rule 32(b)(1) has been entered, Neth may appeal that judgment of conviction, if he so chooses.

The Kosrae State Court and the practitioners who appear before it should henceforth be aware that the finding of guilt or innocence must first be pronounced in open court with the defendant present, not by a written order served on counsel, and, if a finding of guilt is made, that the sentence then must also be publicly imposed in open court with the defendant present before a written sentencing order is entered.

* * * *

---

^[1] The court notes that this is really one issue: whether the trial court, acting as a reasonable trier of fact, could find beyond a reasonable doubt that, under the common law defense of provocation and self-defense, Neth was justified in slapping Nithan’s face. Whether any testimony was presented to show that Neth was threatened by imminent unlawful bodily harm would not really be an issue since even if there was such testimony, the issue is whether the trial court could have reasonably found that other contrary testimony was more credible or carried more weight.

^[2] Kosrae Criminal Rule 43 (and FSM Criminal Rule 43) are both drawn from, and similar to, U.S. Federal Rule of Criminal Procedure 43. When an FSM (or Kosrae) criminal rule which is identical or similar to a U.S. rule has not previously been construed, we may look to U.S. sources for guidance in interpreting the rule. See, e.g., Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984). Neither Rule 43 has been previously construed.

^[3] The FSM and Kosrae Constitutions’ confrontation and due process clauses are drawn from the U.S. Constitution. See, e.g., Engichy v. FSM, [1984] FMSC 13; 1 FSM Intrm. 532, 541 (App. 1984) (FSM Declaration of Rights traceable to the U.S. Constitution Bill of Rights); cf. Sigrah v. Kosrae, [2004] FMSC 10; 12 FSM Intrm. 320, 327 (App. 2004) (Kosrae constitutional protections patterned after U.S. constitutional protections). When an FSM or Kosrae constitutional protection is patterned after a U.S. Bill of Rights provision, U.S. authority may be consulted to understand its meaning, Jonas v. FSM, [1983] FMSC 8; 1 FSM Intrm. 322, 327 n.1 (App. 1983) (FSM); Sigrah, 12 FSM Intrm. at 327. This facet of the FSM and Kosrae confrontation and due process clauses has not been previously considered.