CHUUK STATE SUPREME COURT TRIAL DIVISION
Cite as Trust Territory v. Edgar
11 FSM Intrm. 303 (Chk. S. Ct. Tr. 2002)

[11 FSM Intrm. 303]

TRUST TERRITORY OF THE PACIFIC ISLANDS,
Plaintiff,
 
vs.
 
PONSHY EDGAR,
Defendant.
 
DC-CR-NO: 246-1976
 
ORDER DENYING MOTION TO EXPUNGE RECORD
AND DISMISS COMPLAINT
 
Soukichi Fritz
Chief Justice
 
Decided: December 30, 2002
 
APPEARANCE:
 
For the Defendant:                     Richard Anobad
                                                     Office of the Public Defender
                                                     P.O. Box 754
                                                     Weno, Chuuk FM 96942

* * * *

HEADNOTES

Criminal Law and Procedure ) Expungement of Records
     As the grant or denial of a motion to expunge the record of a Trust Territory convicytion lies solely within the courts discretion, as limited by law, no appearance is deemed necessary by Chuuk

[11 FSM Intrm. 304]

as the successor to the Trust Territory of the Pacific Islands government. The court can decide the motion without oral argument because no evidentiary proceeding is necessary, absent credible assertions of grounds, such as lack of competent counsel, innocence of the charges brought, or that the plea was not voluntarily made. Trust Territory v. Edgar, 11 FSM Intrm. 303, 305 & n.1 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Pleas
     Ordinarily Rule 32(d) only permits a motion to withdraw a guilty plea prior to imposition of sentence. When the defendant has been sentenced and served his sentence fully, a motion under this rule should under most circumstances be denied. Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Pleas
     After sentencing, the court, in its discretion, may set aside a judgment of conviction and thereafter permit a defendant to withdraw his guilty plea only upon a showing manifest injustice. The burden of proof of establishing "manifest injustice" sufficient to warrant setting aside a conviction lies with the defendant. In order to sustain his burden, the defendant must show that the conviction was obtained through fraud, imposition upon him, or misapprehension of his legal rights, and/or that he is not guilty of the crimes as charged. Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure
     When there are no reported decisions in the FSM interpreting a Chuuk Criminal Rule, the Chuuk State Supreme Court may look for guidance to cases addressing the issue from the U.S. Federal Circuits. Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 n.2 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Pardon; Criminal Law and Procedure ) Pleas
     While a persons assertion that, given his rehabilitation over time, and his good work in the community and on behalf of his municipality in the years since his conviction, it is a "manifest injustice" that his felony conviction prohibits him from serving in Congress, may be grounds for a pardon, it is not a valid ground for setting aside a conviction and permitting withdrawal of a guilty plea under Rule 32(d). Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Pleas
     Grounds for setting aside a conviction and permitting withdrawal of a guilty plea under Rule 32(d) include, inter alia, the trial courts failure to comply with Rule 11; the trial courts failure to adduce a factual basis for the plea; and lack of assistance of counsel coupled with a failure to understand the direct consequences of a guilty plea as regards the sentence to be imposed. Trust Territory v. Edgar, 11 FSM Intrm. 303, 306-07 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Pleas
     A Rule 32(d) motion can be granted if the defendant failed to understand the direct consequences of his plea with regard to sentencing, but failure to comprehend the collateral consequences of a plea is not grounds for the granting of a Rule 32(d) motion. The fact that the defendant, upon pleading guilty to a felony, would be precluded from becoming a candidate for public office is a collateral consequence of the plea. Felons lose privileges available to those who do not commit crimes. Loss of these privileges of good citizenship is simply not grounds for vacating a conviction. Trust Territory v. Edgar, 11 FSM Intrm. 303, 307 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Sentencing
      By statute, the Chuuk State Supreme Court, at any time before imposition of sentence, may

[11 FSM Intrm. 305]

suspend imposition of sentence on conditions, and if the conditions are fully satisfied, it must vacate the conviction, but this statute is only applicable before the imposition of sentence and not in a case where the sentence was not only imposed, but was fully served. Trust Territory v. Edgar, 11 FSM Intrm. 303, 307 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure ) Expungement of Records
     The Chuuk State Supreme Court cannot vacate a criminal conviction, based upon a voluntary guilty plea, in order to circumvent the constitutional and statutory proscriptions against felons being candidates for the FSM Congress when the defendant does not now complain that he was not guilty of the crimes, or that he was not afforded due process of law when he was accused of, and then pleaded guilty to, two separate felonies. Trust Territory v. Edgar, 11 FSM Intrm. 303, 308 (Chk. S. Ct. Tr. 2002).
 
Constitutional Law) Legislative Powers
     It is Congress that determines the qualifications for candidates for membership in that legislative body. Trust Territory v. Edgar, 11 FSM Intrm. 303, 308 (Chk. S. Ct. Tr. 2002).
 
Criminal Law and Procedure) Expungement of Records
     The Chuuk State Supreme Court has no power to strike from the public records all evidence of the charges against a defendant, and his convictions, who seeks a way around the constitutional and statutory proscriptions which is unavailable even to one who has been pardoned for his crimes. It will therefore deny his motion to expunge. Trust Territory v. Edgar, 11 FSM Intrm. 303, 308 (Chk. S. Ct. Tr. 2002).

* * * *

COURTS OPINION

SOUKICHI FRITZ, Chief Justice:

I. Introduction

    This matter comes before the Court on the motion of Defendant Ponshy Edgar to erase all evidence of his having been charged with, and convicted of, assault and battery with a dangerous weapon and obstruction of justice. The charges were brought in 1976, and the Defendant voluntarily pleaded guilty to the crimes in 1977. He was sentenced to a total of 16 months imprisonment, with 11 months suspended. He served the required five months of the original sentence.

     Defendant apparently seeks to circumvent the prohibitions contained in Article IX,  9 of the Constitution of the Federated States of Micronesia, and 9 F.S.M.C. 201(5), against felons being candidates for the FSM Congress. Defendant has filed to become a candidate in the March, 2003 elections, and has apparently had his candidacy rejected because of the convictions.

      As the granting or denial of this motion lies solely within the Courts discretion, as limited by law, no appearance is deemed necessary by Chuuk State as successor to the government of the Trust Territory of the Pacific Islands. The Court finds that it can decide the motion without oral argument.1

[11 FSM Intrm. 306]

     For the reasons stated below, the motion must be denied.

II. The Motion Is Without Merit

A. Grounds for the Motion.

     Defendant asserts two grounds in support of his motion. First, that CSSC Criminal Rule 32(d) permits the Court to allow the Defendant to withdraw his plea of guilty, after sentencing, to correct "manifest injustice." Second, that Chk. S.L. No. 6-66,  1111 permits the Court to vacate the judgment of conviction and to restore the Defendant to the position he was in prior to being charged with the offenses upon which he was convicted. Neither ground finds support in the law.

B. Defendant demonstrates no "manifest injustice."

     Defendant first relies upon CSSC Criminal Rule 32(d):

(d) Withdrawal of Guilty Plea. A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

(emphasis added).

     Ordinarily Rule 32(d) only permits a motion to withdraw a plea of guilty prior to imposition of sentence. Since Defendant was sentenced in 1977, and served his sentence fully, a motion under this rule should under most circumstances be denied.

     However, Defendant relies on the last clause of the rule, which permits the Court, in its discretion, to set aside a judgment of conviction, and thereafter permit a Defendant to withdraw his plea of guilty, after sentencing, upon a showing "manifest injustice." Defendant cannot rely on this clause of Rule 32(d). He has failed to meet the strict burden of showing "manifest injustice" sufficient to warrant setting aside the conviction and permitting withdrawal of the plea of guilty.

      The burden of proof of establishing "manifest injustice" sufficient to warrant the setting aside of a conviction lies with the Defendant. United States v. Mainer, 383 F.2d 444 (3d Cir. 1967).2 In order to sustain his burden, the Defendant must show that the conviction was obtained through fraud, imposition upon him, or misapprehension of his legal rights, and/or that he is not guilty of the crimes as charged. United States v. Dumorne, 392 F. Supp. 530 (D.P.R. 1975).

     Defendant raises none of these grounds. He asserts only that, given his rehabilitation over time, and his good work in the community and on behalf of his municipality in the years since 1977, it is a "manifest injustice" that he be prohibited from serving in the Congress of the Federated States of Micronesia. While such rehabilitation may be grounds for a pardon, it is not a valid ground for setting aside a conviction and permitting withdrawal of a plea of guilty under Rule 32(d).

     Grounds for granting such a motion include, inter alia, failure of the trial court to comply with

[11 FSM Intrm. 307]

Rule 11, United States v. Cody, 438 F.2d 287 (8th Cir. 1971); failure of the trial court to adduce a factual basis for the plea, United States v. White, 483 F.2d 71 (5th Cir. 1973); and lack of assistance of counsel coupled with a failure to understand the direct consequences of a guilty plea as regards the sentence to be imposed, Gannon v. United States, 208 F.2d 772 (6th Cir. 1953).

     A Rule 32(d) motion can be granted if the Defendant failed to understand the direct consequences of his plea with regard to sentencing. However, failure to comprehend the collateral consequences of a plea is not grounds for the granting of a Rule 32(d) motion. Thus, the failure of a corporate firearms dealer) convicted of selling unregistered firearms) to understand that its plea of guilty would result in the revocation of its license to sell firearms, is not grounds for vacating the conviction. Revocation of the license to sell firearms is a collateral, rather than a direct, consequence of the plea of guilty. United States v. Cassanovas, Inc., 350 F. Supp. 291 (E.D. Wis. 1972). Similarly, a Defendant failing to understand that he could be deported upon pleading guilty to a felony is not entitled to have his conviction set aside on that ground, deportation being a collateral, not a direct, consequence of his plea. United States v. Santelises, 476 F.2d 787 (2d Cir.1973).

     Just as revocation of a license, or deportation, is a collateral consequence of a guilty plea, the fact that the Defendant, upon pleading guilty to a felony, would be precluded from becoming a candidate for public office is equally a collateral consequence of the plea. Felons lose privileges available to those who do not commit crimes. Loss of these privileges of good citizenship is simply not grounds for vacating a judgment of conviction, especially one entered 25 years ago.

C. Defendants reliance on Chk. S.L. 6-66,  1111 is unavailing.

      Defendant contends that Chk. S.L. 6-66,  1111 permits the Court, after imposition and completion of the sentence, to vacate the judgment of conviction and sentence, and return him to the status he held before being charged with the crimes. Defendant fails to understand the statute, and the circumstances of its application.

      Chuuk State Law No. 6-66,  1111 provides, in pertinent part:

(1) Upon entering a judgment of conviction of any offense, the court, when satisfied that the ends of justice and the best interests of the public as well as the defendant will be served, may suspend the imposition of sentence and may direct that the suspension continue for a period of time not exceeding the maximum term of sentence which may be imposed upon the terms and conditions which the court determines, and shall place the person on probation . . . .

. . . .

(5) Upon discharge of the defendant without imposition of sentence, the court shall vacate the judgment of conviction and the defendant shall not be deemed to have been convicted of the crime for any purpose.

(emphasis added)

     Thus, at any time before imposition of sentence, the court may suspend imposition of sentence on conditions. If the conditions are fully satisfied, the court must vacate the judgment of conviction.

     However, this section is only applicable before the imposition of sentence. In this case, the sentence was not only imposed, but was fully served. Section 1111 is inapplicable, and unavailable

[11 FSM Intrm. 308]

as a remedy to the Defendant. Neither of the grounds raised by the Defendant in his motion are sufficient for the Court, at this late date and after completion of the sentence, to exercise its discretion and vacate the judgment of conviction.

D. Qualifications are controlled by Congress.

     Defendant asks this Court to vacate a criminal conviction, based upon a voluntary guilty plea, in order to circumvent the constitutional and statutory proscriptions against felons being candidates for the Congress of the FSM. Defendant does not now complain that he was not guilty of the crimes, or that he was not afforded due process of law when he was accused of, and then pleaded guilty to, two separate felonies. He simply claims it is unfair, given his rehabilitation, to deprive him of his perceived right to be a candidate for the Congress.

     His complaint should be before Congress, not the Court. It is Congress that determines the qualifications for candidates for membership in that legislative body.

     The Constitution grants to Congress, not to the Court, the power to make persons granted a pardon of a felony conviction eligible for election to Congress. Congress has chosen not to exercise that power. We cannot exercise a power reserved to Congress.

     It may seem unfair that someone who has become a law-abiding and respected member of the community and who has received a full pardon for one felony conviction early in life is ineligible for election to Congress. If it is unfair, it is an unfairness that Congress may remedy with appropriate legislation.

Robert v. Mori , 6 FSM Intrm. 394, 401 (App. 1994).

     Roman Robert was pardoned for his crime prior to the formation of the Federated States of Micronesia, and yet the Courts could not assist him in overcoming the constitutional and statutory proscriptions against his being a candidate for the Congress. Defendant, having not even received a pardon, seeks to have this Court strike from the public records all evidence of the charges against him, and his convictions. He seeks a way around the constitutional and statutory proscriptions which is unavailable even to one who has been pardoned for his crimes. The Court has no power to do as the Defendant asks.

III. Conclusion

     For the reasons stated, and in the interests of justice, the motion of Defendant Edgar to expunge the record of his conviction and to dismiss the criminal complaint against him is due to be, and it hereby is, denied.

* * * *

_____________________________________

Footnotes:

1. No evidentiary proceeding on the motion is necessary, absent credible assertions of grounds, such as lack of competent counsel, innocence of the charges brought, or that the plea was not voluntarily made. United States v. Moore, 931 F.2d 245 (4th Cir.), cert. denied, 116 L. Ed. 2d 134, 112 S. Ct. 171 (1991).

2. There are no reported decisions in the FSM interpreting CSSC Criminal Rule 32(d). Absent such interpretive decisions, the Court may look for guidance to cases addressing the issue from the U.S. Federal Circuits. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).