Federated States of Micronesia v Aki [2007] FMSC 56; 15 FSM Intrm. 282 (Chk. 2007) (24 September 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2006-1500

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

AKININO AKI,
Defendant.

ORDER GRANTING DELAYED PAROLE

Dennis K. Yamase
Associate Justice

Decided: September 24, 2007

APPEARANCES:

For the Plaintiff:
Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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

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HEADNOTES

Criminal Law and Procedure  Parole
Since the parole statute requires that the court request and consider the views of the prosecution, the prisoner and his counsel, the victim or head of the victim's family, and, when requested by the prosecution or the prisoner, such community leaders as clergy and municipal and village leaders, when the prisoner's request expresses the prisoner's views and the views of some community leaders and the Chuuk Chief of Correction the court will ask that the prosecution and the Chuuk Director of Public Safety express their views on the prisoner's parole request. FSM v. Aki, [2007] FMSC 56; 15 FSM Intrm. 282, 283 (Chk. 2007).

Criminal Law and Procedure  Parole
The statute requires that the justice reviewing a parole application base his or her determination upon the prisoner's behavior in prison and any factors indicative of the prisoner's chances for a successful adaptation to community life after release. The statute (and the parole review procedural rule that implements it), limits the reviewing justice to considering just those two, and no other, factors. FSM v. Aki, [2007] FMSC 56; 15 FSM Intrm. 282, 284 (Chk. 2007).

Criminal Law and Procedure  Parole
That while the prisoner was on pretrial release in another criminal case, he committed the offense for which he is now serving a jail sentence from which he seeks parole, is not relevant to the prisoner's parole application since it occurred before he was convicted and sentenced to prison. FSM v. Aki, [2007] FMSC 56; 15 FSM Intrm. 282, 284 (Chk. 2007).

Criminal Law and Procedure  Parole
A prisoner's violation of his work release conditions must be considered to be "behavior in prison" within the meaning of the parole statute because it occurred while he was serving his jail sentence, and, since it occurred while the prisoner was on work release, it also has some bearing on whether he can successfully adapt to community life after release. It therefore must have some effect on the court's decision on the prisoner's parole application. FSM v. Aki, [2007] FMSC 56; 15 FSM Intrm. 282, 284 (Chk. 2007).

Criminal Law and Procedure  Parole
If the court denies a prisoner's parole request, the prisoner cannot apply for parole again until one year has passed after the entry of the denial order. FSM v. Aki, [2007] FMSC 56; 15 FSM Intrm. 282, 284 (Chk. 2007).

Criminal Law and Procedure  Parole
Instead of denying a parole request, the court may grant it and delay its effective date. FSM v. Aki, [2007] FMSC 56; 15 FSM Intrm. 282, 284 (Chk. 2007).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On August 1, 2007, the prisoner, Akinino Aki, filed his Request for Review of Sentence Pursuant to GCO 1990-1 to Determine Eligibility for Parole, which expresses the prisoner's views and the views of some community leaders and the Chuuk Chief of Correction that the prisoner asks the court to consider. Since the parole statute requires that the court "request and consider the views of the prosecution, the prisoner and his counsel, the victim or head of the victim's family, and, when requested by the prosecution or the prisoner, such community leaders as clergy and municipal and village leaders," FSM Pub. L. No. 11-72, § 209 (to be codified at 11 F.S.M.C. 1204), the court asked that the prosecution and the Chuuk Director of Public Safety express their views on the prisoner's p request by September 3, 2007. The Acting Deputy Director of Public Safety filed his views iews on August 24, 2007. The prosecution filed its views on August 31, 2007.

On July 21, 2006, Aki was convicted of possession of an illegal firearm, 11 F.S.M.C. 1023(5) and sentenced to six (6) years' imprisonment with the sentence suspended, except for sixty (60) weeks in jail, starting July 31, 2006 and with work release from Monday through Saturday. On October 25, 2006, the court, for Aki's September 13, 2006 possession of alcoholic beverages in violation of his work release conditions, revoked 52 weeks of probation (making the jail sentence in this case 112 weeks) and reduced work release to Monday through Friday.

The prosecution contends that Aki should serve the full time (112 weeks) in jail. The prosecution opposes parole on two grounds 1) that when defendant Aki was on pretrial release after his initial appearance in Criminal Case No. 2005-1505, he violated his release conditions in that case by committing another offense that resulted in this case being filed and was convicted of committing that offense in this case, and 2) that Aki, while serving his jail term in No. 2005-1505 and in this case, did, on September 13, 2006, violate his conditions of work release. As a result of that violation, a portion of his probation (52 weeks) was revoked.

The statute requires that the justice reviewing a parole application "base his or her determination upon the prisoner's behavior in prison and any factors indicative of the prisoner's chances for a successful adaptation to community life after release." FSM Pub. L. No. 11-72, § 209 (to be ced at 11 F.S.M..S.M.C. 1204). The statute (and the parole review procedural rule that implements it, FSM Par. R. 6(c)) limits the reviewing justice to considering just those two, and no other, factors.

The court therefore must disregard as a relevant factor, Aki's commission of the offense he was convicted of in this case while he was on pretrial release in Criminal Case No. 2005-1505. It occurred before he was convicted and sentenced to prison.

However, the court must consider Aki's September 13, 2006 violation of his work release conditions to be "behavior in prison" within the meaning of the statute because it occurred while he was serving his jail sentence  his term of imprisonment. Furthermore, since it occurred while Aki was on work release, it has some bearing on whether Aki can successfully adapt to community life after release. It therefore must have some effect on the court's decision.

If the court were to deny the parole request based on the work release violation, Aki could not apply for parole again until one year had passed after the entry of this order. FSM Par. R. 8. Aki will have finished his term of incarceration by then. In effect, a denial now would prevent any further application for parole. That seems too harsh in light of the evidence submitted in support of Aki's parole.

Accordingly, the court will grant Akinino Aki's parole request but will delay the date the parole starts until December 7, 2007.

Now therefore it is hereby ordered that prisoner Akinino Aki's request for parole is granted and that on December 7, 2007, Akinino Aki shall be released from jail on parole on the following conditions:

1) that he shall obey all laws and ordinances, FSM, state, and municipal, to which he is subject;

2) that he shall not leave Chuuk while on parole without the court's permission;

3)that he shall not possess or consume any alcoholic beverages or be present in any establishment whose primary business is the sale or consumption of alcoholic beverages; and

4) that he shall report to the State Justice Ombudsman as directed by the Ombudsman.