Federated States of Micronesia v Marehalau [2009] FMSC 34; 16 FSM Intrm. 505 (Pon. 2009) (17 July 2009)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2007-501

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

JESSE B. MAREHALAU and ENRICO CALDERON,
Defendants.

________________

ORDER

Dennis K. Yamase
Associate Justice

Hearing: July 16, 2009
Decided: July 17, 2009

APPEARANCES:

For the Plaintiff: Lorrie Johnson-Asher, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Julius J. Sapelalut, Esq.
Chief Public Defender
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Motions
Failure to oppose a motion is generally deemed a consent to the motion, but even when there is no opposition, the court still needs good grounds before it can grant the motion. FSM v. Marehalau, [2009] FMSC 34; 16 FSM Intrm. 505, 507 (Pon. 2009).

Criminal Law and Procedure  Sentencing  Reduction of Sentence
The court may, within 120 days after the sentence is imposed, reduce a sentence if it has changed its mind on the terms of the sentence, but this is rarely done in the absence of justification for reducing the sentence that was not already considered by the court during the initial sentencing. FSM v. Marehalau, [2009] FMSC 34; 16 FSM Intrm. 505, 507 (Pon. 2009).

Criminal Law and Procedure  Sentencing  Reduction of Sentence
A motion for reduction of sentence is essentially a plea for leniency, and is addressed to the sound discretion of the trial court. FSM v. Marehalau, [2009] FMSC 34; 16 FSM Intrm. 505, 507 (Pon. 2009).

Criminal Law and Procedure  Sentencing  Reduction of Sentence
In the absence of FSM precedent, the FSM Supreme Court may consider the reasoning from the courts of other common law jurisdictions. FSM v. Marehalau, [2009] FMSC 34; 16 FSM Intrm. 505, 507 (Pon. 2009).

Criminal Law and Procedure  Sentencing  Reduction of Sentence
A sentence will not be reduced from imprisonment in jail to house arrest when the prisoner's doctor does not specifically assert that house arrest is necessary to alleviate any of the prisoner's medical problems and when the common jail conditions of heat in his prison cell, unhealthy food, and noise along with his state of health do not justify modifying the sentence because no showing was made that accommodation for these concerns is unavailable to him and because the court expects that the jail will make reasonable efforts to follow recommendations from the prisoner and/or his treating physician(s) regarding measures that may be taken at the jail to accommodate and alleviate the prisoner's medical conditions while he serves his sentence of imprisonment. FSM v. Marehalau, [2009] FMSC 34; 16 FSM Intrm. 505, 507-08 (Pon. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

The court has pending before it defendant Jesse B. Marehalau's ("Marehalau") second motion to modify his sentence pursuant to FSM Criminal Rule 35. Mr. Marehalau's motion asks that he be allowed to serve the remainder of his sentence under house arrest instead of in confinement at the Yap State Jail. On May 1, 2009, Marehalau was convicted of one count of theft and one count of over-obligation of government funds and sentenced to 36 months of imprisonment (of which 18 months were suspended) on the theft count and 48 months of imprisonment (of which 12 months were suspended) on the over-obligation of government funds count. The sentence of imprisonment on the two counts runs concurrently.

The court has reviewed the affidavit of defendant Marehalau, dated May 15, 2009; an unsworn letter from W. Thane Hancock, MD and Staff Physician with the State of Yap's Department of Health Services; the affidavit of Jesse Raglmar-Subolmar, dated May 15, 2009; as well as the affidavit of Augustine Eraumai, dated May 26, 2009 and the pictures attached thereto as Exhibit A, B, and C; and the Government's May 27, 2009 report in response to the court order of May 12, 2009. In addition, on July 16, 2009, the court heard and considered the oral arguments on this motion at the FSM Supreme Court in Palikir, at which Chief Public Defender Joey Sapelalut was present on behalf of Marehalau and Assistant Attorney General Lori Johnson-Asher was present on behalf of the Government.

At oral argument, Mr. Sapelalut objected to the court's hearing any arguments from the Government on the basis that the Government had not filed anything in response to the motion. Though the court allowed the Government to speak, the court's ruling would be the same whether or not Ms. Johnson-Asher was permitted to speak.

The Government did not file a written response opposing Marehalau's request for house arrest from the Government. At the request of the court, the Government did file a report of the conditions at the Yap State Jail, which has been made part of the record in this matter. Failure to oppose a motion is generally deemed a consent to the motion, but even when there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid_Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994); Kelly v. Lee, [2002] FMSC 27; 11 FSM Intrm. 116, 117 (Chk. 2002).

The sentencing judge may reduce a defendant's sentence within 120 days after the sentence is imposed. FSM Crim. R. 35. Under this rule, the court may reduce a sentence if it has changed its mind on the terms of the sentence, but this is rarely done in the absence of justification for reducing the sentence that was not already considered by the court during the initial sentencing. FSM v. Faen, [2000] FMSC 9; 9 FSM Intrm. 416 (Yap 2000); see also 3 Charles Alan Wright, Federal Practice and Procedure § 586, at 401_04 (2 1982) (fo) (footnote omitted); United States v. Sandborn, 738 F. Supp. 231, 232 (W.D. Mich. 1990). In the absence of FSM precedent, the FSM Supreme Court may consider the reasoning fro courts of other common lawn law jurisdictions. Sigrah v. Kosrae, [2004] FMSC 10; 12 FSM Intrm. 320 (App. 2004). The court finds it appropriate to do so here.

A motion for reduction of sentence is essentially a plea for leniency. Poole v. United States, 250 F.2d 396 (D.C. Cir. 1957). See also United States v. Slutsky, [1975] USCA2 295; 514 F.2d 1222 (2d Cir. 1975); United States v. Ellenbogen, [1967] USCA2 727; 390 F.2d 537 (2d Cir. 1968), cert. denied, 393 U.S. 918 (1968), reh'g denied[1970] USSC 152; , 399 U.S. 917 (1970); United States v. Barrett, 390 F. Supp. 1022 (D.S.C. 1975); United States v. Robinson, 344 F. Supp. 956 (D. Del. 1972), aff'd[1972] USCA3 411; , 474 F.2d 1337 (3d Cir. 1972). Reduction of the sentence is addressed to the sound discretion of the trial court. Sandborn, 738 F. Supp. at 232 (citing United States v. Bedrosian, [1980] USCA8 528; 631 F.2d 582, 583 (8th Cir.1980); United States v. Warren, [1980] USCA9 15; 610 F.2d 680, 684 (9th Cir.1980).

Marehalau, as the moving party, bears the burden of showing he is entitled to the requested modification of his sentence  in this case, from imprisonment in jail to house arrest. Marehalau's motion relies on factors relating to his medical condition as the main basis for requesting house arrest. In order to determine whether Marehalau's request for house arrest should be granted, the court looks to Marehalau's health, the description of the jail conditions under which he is confined, and the effect of his imprisonment upon his health. The court also looks to whether any evidence indicates that being placed under house arrest would alleviate the negative effects on his health caused by the imprisonment. Such determinations necessarily depend upon the evaluation and recommendations of a medical professional. The court therefore looks to the written statement made by Dr. W. Thane Hancock, Mr. Marehalau's treating physician. The court notes that Dr. Hancock's letter, dated May 14, 2009, is not notarized or made under penalty of perjury, but, for purposes of this motion, the court views the statements made therein as true.

Dr. Hancock's letter explains that Mr. Marehalau suffers from various medical problems and is in generally poor health. Dr. Hancock states that Marehalau requires adequate rest, can develop respiratory distress if sleeping in a flat position, suffers from frequent urination at night, and requires a strict local food diet that is low in sodium. While noting these things, Dr. Hancock does not specifically state that Mr. Marehalau's confinement in the Yap State Jail unduly exacerbates any of Marehalau's medical conditions or that Marehalau does not have access to proper medical care as a prisoner in the Yap State Jail. Dr. Hancock also does not specifically assert that house arrest is necessary to alleviate any of Marehalau's medical problems.

Marehalau's affidavit implies that he must be granted house arrest because of certain jail conditions, including the heat in his prison cell, the unhealthy food, and noise. These common jail conditions along with his state of health, however, do not justify modifying the sentence in this case. Moreover, Marehalau has not made any showing that accommodation for these concerns is unavailable to him. The court expects that the Yap State Jail will make reasonable efforts to follow recommendations from Mr. Marehalau and/or his treating physician(s) regarding measures that may be taken at the jail to accommodate and alleviate Mr. Marehalau's medical conditions while he serves his sentence of imprisonment.

Having carefully considered the submissions and arguments of the defendant and for the reasons set forth above, the court finds that the defendant has not provided sufficient medical justification for the court to determine that a modification of his sentence from incarceration to house arrest is justified.

Accordingly, Mr. Marehalau's second motion to modify his sentence is hereby denied.

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