KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Kinere,
13 FSM Intrm. 230 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 230]

STATE OF KOSRAE,

Plaintiff,

vs.

JOHN R. KINERE,

Defendant.

 CRIMINAL CASE NO. 38-01

ORDER DENYING MOTION TO SET ASIDE JUDGMENT OF CONVICTION

Aliksa B. Aliksa

Associate Justice

Hearings: February 1, 23, 25, 2005

Decided: May 6, 2005

APPEARANCES:

For the Plaintiff:   Arthur Buck, Esq.

                                 Acting Attorney General

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Tofol, Kosrae   FM   96944

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 ) Pleas ) Withdrawal

     A motion to withdraw a guilty or nolo contendere plea 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. Kosrae v. Kinere, 13 FSM Intrm. 230, 234 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Pleas ) Withdrawal

     Rule 32(d) establishes a two step process for the setting aside of the judgment after sentence and withdrawal of the defendantís plea. First, the court must find manifest injustice in the defendantís plea of guilty. Second, if the court finds manifest injustice, it may, in its discretion, set aside the judgment of conviction and permit the defendant to withdraw his plea. The burden 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 his conviction was obtained through fraud, imposition upon him, misunderstanding of his legal rights, and/or that the defendant is not guilty of the

[13 FSM Intrm. 231]

crimes as charged. Grounds granting a motion brought pursuant to Rule 32(d) include lack of assistance of counsel, coupled with a failure to understand the direct consequences of a guilty plea with regard to the sentence to be imposed. Kosrae v. Kinere, 13 FSM Intrm. 230, 234 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Right to Counsel

     A trial counselor is not, merely because he is a trial counselor and not a lawyer, incompetent counsel. When the defendant was represented by an experienced trial counselor, the defendantís representation by a trial counselor is not per se ineffective assistance of counsel, even when the prosecutor is an attorney. Kosrae v. Kinere, 13 FSM Intrm. 230, 235-36 (Kos. S. Ct. Tr. 2005).

Attorney and Client; Criminal Law and Procedure ) Right to Counsel

      Trial counselors and attorneys are expected to handle different types of cases, both civil and criminal. A counsel need not necessarily have special training or prior experience to handle legal problems of a type with which the counsel is unfamiliar. Consequently, even if a trial counselor did not have prior experience with the specific types of offenses charged against the defendant, that lack of experience does not automatically result in lack of competency. Kosrae v. Kinere, 13 FSM Intrm. 230, 236 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Pleas ) Withdrawal; Evidence ) Privileges

     For a defendantís former counsel to testify regarding communications made during the course of the case at hearing on a motion to withdraw the defendantís plea, the defendant must be advised that if counsel is permitted to testify, the attorney-client privilege must be waived. Kosrae v. Kinere, 13 FSM Intrm. 230, 236 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Pleas ) Withdrawal

     When the defendant voluntarily terminated the Public Defender Officeís services and chose to retain private counsel; when counsel talked to his potential client and reviewed the file before accepting the representation; when counsel met with the defendant on more than five occasions and on each occasion, in accordance with his established legal practice, advised the defendant that he can change counsel at any time, if he so desired; when counsel interviewed the defendant on the charges brought against him and each of the facts alleged in the Information and the defendant admitted that each of the charges and facts were true and that each of the sexual assault acts occurred as alleged; when counsel considered the possibility of double jeopardy with respect to the sexual assault charges, but concluded that the defendantís protection against double jeopardy had not been violated and that it was therefore not a defense; when, based upon this evaluation and analysis, and upon the defendantís admissions, counsel participated in settlement negotiations with the state and exchanged several plea offers before the final plea agreement was reached; when counsel presented and explained the proposed plea agreement to the defendant; when the defendant testified that he was not forced to sign the plea agreement and that he met with counsel, who explained the terms of the plea agreement to him, including the pleas of guilty and the recommended sentencing; and when this plea agreement was signed and accepted by the court in lieu of going to trial only after the court had explained it in the defendantís native language and was assured that the defendant understood the plea agreement and the direct consequences of his guilty pleas, the defendant was aware of the charges, his pleas of guilty to specific counts, dismissal of specific counts and the length of the recommended sentencing and therefore cannot show that his conviction was obtained through imposition upon him or that he misunderstood his legal rights or the direct consequences of his guilty pleas with regard to the sentence to be imposed for each count. Kosrae v. Kinere, 13 FSM Intrm. 230, 236-37 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Pleas ) Withdrawal; Criminal Law and Procedure ) Right to Counsel

     The Public Defender, based upon the information he had received during his prior representation

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of the defendant in the matter, should have refused to sign the plea agreement, indicating his approval if he believed that the agreement violated the defendantís constitutional protection against double jeopardy. It is disingenuous for defendant to now argue that private counsel provided ineffective assistance of counsel for failing to raise the defense of double jeopardy, when defendantís former counsel, also a public defender, agreed to and signed the plea agreement in the matter. Kosrae v. Kinere, 13 FSM Intrm. 230, 237 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Double Jeopardy

     The double jeopardy clause protects an accused against the following: 1) a second prosecution for the same for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) against multiple punishments for the same offense. Kosrae v. Kinere, 13 FSM Intrm. 230, 239 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Double Jeopardy

     The test to determine whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision requires proof of a fact which the other does not. Kosrae v. Kinere, 13 FSM Intrm. 230, 239 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Double Jeopardy

     Generally, there can be only one prosecution for a continuing crime. However, a distinct repetition of a prohibited act constitutes a second offense and subjects the offender to an additional penalty. Separate and distinct crimes occur, even when they are very similar acts done many times to the same victim, they are chargeable individually as separate and distinct criminal conduct. Kosrae v. Kinere, 13 FSM Intrm. 230, 239 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Sexual Offenses

     Sexual assault is intentionally subjecting another person to sexual penetration, or forcing another person to make a sexual penetration on himself or another or on an animal, against that personís will, or under conditions in which the offender knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct. Sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of penetration of the genital, anal, or oral opening of another to any extent and with any object whether or not there is an emission. Kosrae v. Kinere, 13 FSM Intrm. 230, 240 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Sexual Offenses

     Each instance of sexual penetration may be charged and prosecuted as a separate violation of Kosrae State Code, Section 13.311. Each factually distinguishable act of sexual penetration is subject to prosecution as a separate count, conviction and sentencing when the defendant committed three factually distinguishable acts of sexual penetration upon the same victim and the record reflects that each of the three acts that the defendantís conduct was separate in time and showed the defendantís new intent in his course of conduct. Kosrae v. Kinere, 13 FSM Intrm. 230, 240 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Sexual Offenses

     An argument that multiple acts of sexual penetration committed during a single continuous criminal episode can be subject only to conviction and sentencing on a single count is not supported by public policy. No principle exempts an accused from prosecution for all the offenses that were committed, just because the accused has the opportunity and willingness to multiply those offenses. Such a principle would encourage the more vicious and repeated criminal acts. The State Legislature could not have intended to grant immunity to a criminal who committed one sexual assault upona minor victim, from prosecution and punishment for further criminal acts committed during the same encounter.When the defendantís conviction and sentencing upon three counts of sexual assault upon

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the same victim during the same criminal episode were based upon factually distinct acts and offenses, they are not multiple punishments for the same offense. Kosrae v. Kinere, 13 FSM Intrm. 230, 241-42 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     On January 5, 2005, Defendant filed a Motion to Set Aside Judgment of Conviction and Permit Withdrawal of Defendantís Plea. A hearing was held on February 1, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. The Defendant, John Kinere, testified at the hearing.

     On February 3, 2005, Kosrae State Filed a Request to File Opposition to Defendantís Motion for Reduction in Sentence, and Request for Further Oral Argument. Kosrae State filed its Opposition to the Defendantís Motion to Set Aside Judgment of Conviction of February 11, 2005. Defendant filed an Opposition to Plaintiffís Request to File Opposition on February 11, 2005. The State filed a Reply Brief in Support of Request to File Opposition to Defendantís Motion for Reduction in Sentence. The Stateís Request to File Opposition to the Defendantís Motion was granted by Order entered on February 14, 2005. The State filed a Supplemental Opposition to the Defendantís Motion to Set Aside Judgment of Conviction on February 18, 2005.

     Defendant filed a Motion for Recusal on February 15, 2005. The State filed an Opposition to the Defendantís Motion for Recusal on February 17, 2005. Defendant filed a Response to Plaintiffís Opposition to Motion for Recusal on February 22, 2005. A hearing on Defendantís Motion for Recusal was held on February 23, 2005. Arthur Buck, Acting Attorney General appeared for the State. Defendant was represented by Harry Seymour. The Motion for Recusal was denied. The continued hearing on Defendantís Motion to Set Aside Judgment of Conviction was held on February 25, 2005. Defendantís former counsel, Albert Welly, testified at the hearing. Closing briefs were filed by both parties on March 11, 2005.

     Based upon the information and evidence presented at the hearings, the papers filed by the parties and applicable law, Defendantís Motion to Set Aside Judgment of Conviction and Permit Withdrawal of Defendantís Plea is denied. This Order sets forth my ruling and reasoning.

I.  Procedural Background.

     Defendant was arrested on June 15, 2001, based upon the arrest warrant issued upon probable cause presented for the charges of assault, assault and battery, sexual assault and kidnapping. The Information filed on June 16, 2001 listed seventeen charges brought against the Defendant, consisting of seven felony charges and ten misdemeanor charges. An initial appearance and bail hearing was held on June 16, 2001.

     The Information alleged multiple criminal offenses of kidnapping, sexual assault, assault and battery, and assault, all committed within a period of approximately six hours, against two young boys, SS and CC, ages thirteen and fourteen. Defendant was alleged to have held the two boys against their will, forced anal intercourse twice upon victim SS, forced both victims SS and CC to perform fellatio on the Defendant, committed batteries upon and threatened both victims. Defendant was alleged to have committed two separate acts of anal intercourse, and forced two separate acts of fellatio. Both

[13 FSM Intrm. 234]

victims were evaluated and treated at Kosrae State Hospital for injuries sustained during the incident.

      The State was represented by April Dawn Skilling, Assistant Attorney General. Defendant was represented by Sidney Skilling, Public Defender, at the bail hearing and initial appearance held on June 16, 2001. On approximately September 18, 2001, Counselor Albert Welly notified this Court of his appearance as counsel for the Defendant, at the request of the Defendant and the Defendantís family. Public Defender Skilling remained counsel for the Defendant in three other criminal cases then pending against the Defendant: Crim. Case Nos. 8-01, 44-01 and 60-01. This matter was originally set for trial on October 18, 2001, and continued to October 31, 2001 due to off-island travel of Plaintiffís counsel. During the course of preparation for trial, the parties exchanged a series a written offers and proposed plea agreements for this matter.

     On October 31, 2001, when this matter was called for trial, the parties presented a Plea Agreement for Criminal Cases 8-01 and 38-01. The Plea Agreement stated that for Crim. Case No. 38-01, the Defendant enters a plea of guilty to six felonies: one count of kidnapping and three counts of sexual assault against the first victim SS; and one count of kidnapping and one count of sexual assault against the second victim CC. The Plea Agreement stated that for Crim. Case No. 8-01, the Defendant admits to violating probation. The Defendant further agreed to the following sentencing recommendation: 60 years incarceration, with 40 years suspended with conditions. The Plea Agreement stated that each of the two counts of kidnapping and each of the four counts of sexual assault would receive a ten year sentence, each ten year sentence to be served consecutively. The Plea Agreement was signed by the Defendant, both of Defendantís Counsels Albert Welly and Sidney Skilling, the Assistant Attorney General, the victims and their parents and the victim in Crim. Case No. 8-01.

     The Plea Agreement and recommended sentencing was accepted by this Court on October 31, 2001. The Judgment of Conviction and Sentencing Order was entered on November 5, 2001. The Defendant has been and continues to be incarcerated at the Kosrae State Jail pursuant to the Judgment of Conviction and Sentencing Order.

II.  Defendantís Motion to Set Aside Judgment of Conviction.

     Defendantís Motion is based upon KRCrP Rule 32(d) which states:

(d)  Withdrawal of Plea of Guilty. 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.

     Pursuant to Rule 32(d), to correct manifest injustice, this Court may set aside the judgment of conviction and permit the defendant to withdraw his plea (emphasis added). Rule 32(d) establishes a two step process for the setting aside of the judgment after sentence and withdrawal of the defendantís plea. First, this Court must find manifest injustice in the defendantís plea of guilty. Second, if this Court finds manifest injustice, this Court may, in its discretion, set aside the judgment of conviction and permit the defendant to withdraw his plea. The burden 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 his conviction was obtained through fraud, imposition upon him, misunderstanding of his legal rights, and/or that the defendant is not guilty of the crimes as charged. Trust Territory v. Edgar, 11 FSM Intrm. 303 (Chk. S. Ct. Tr. 2002). Grounds granting a motion brought pursuant to Rule 32(d) include lack of assistance of counsel, coupled with a failure to understand the direct consequences of a guilty plea with regard to the sentence to be imposed. Id. at

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306-07.

     Defendant argues that manifest injustice has occurred in the completion and submission of the Plea Agreement and in imposition of the sentence. First, Defendant argues that Defendantís former counsel, Albert Welly, provided ineffective counsel with respect to the Plea Agreement, because Mr. Welly was a trial counselor and the prosecutor was an attorney. Defendant cites to Nelson v. Kosrae, 8 FSM Intrm. 397 (App. 1998) in support of his argument.

     Second, Defendant argues that manifest injustice has occurred based upon his guilty plea to Counts 4, 6, and 8. Defendant argues that these three counts were all for the same criminal offense: Sexual Assault, in violation of Kosrae State Code, Section 13.311. Defendant now argues that the Sexual Assault charges for which he entered a plea of guilty should have been considered as a "continuing offense": the same offense within the same time period against the same victim. Defendant argues that his guilty plea to three separate counts of Sexual Assault against victim SS was a violation of the constitutional protection against double jeopardy, and therefore constitutes manifest injustice. Defendant relies upon Laion v. FSM, 1 FSM Intrm. 503 (App. 1984).

     Defendant argues that based upon ineffective counsel received during the plea agreement process and based upon the double jeopardy imposed by the guilty plea to three sexual assault counts, manifest injustice against the Defendant has resulted, warranting the setting aside of the Judgment of Conviction and allowing the Defendant to withdraw his guilty plea. Defendant does not argue that his conviction was obtained through fraud or imposition upon him, or that he misunderstood his legal rights. Defendant has not and does not deny the charges brought against him. Defendant does not claim that he is not guilty of the crimes as charged.

1.  Ineffective Counsel.

     Defendant alleges that he received ineffective assistance of counsel, based upon his former counselís status as a trial counselor and the prosecutorís status as an attorney. In this matter, Defendant was first represented by Mr. Sidney Skilling, a long term trial counselor with the Office of the Public Defender. Based upon this Courtís records, Mr. Skilling had served as a Public Defender since 1985, representing hundreds of persons accused of a variety of misdemeanor and felony offenses during his sixteen years of experience (as of 2001).

     Defendant voluntarily terminated his representation by Mr. Skilling and retained counsel Albert Welly to represent him in this matter. Based upon this Courtís records, Mr. Welly is also a long term trial counselor in this State, having first been admitted to practice before the High Court of the Trust Territory of the Pacific Island in 1984. Thus, at the time of representation of the Defendant in this matter, Mr. Welly was a trial counselor with substantial litigation experience of seventeen years.

     The FSM Supreme Court has addressed the issue of representation of criminal defendants by a trial counselor where the prosecutor is an attorney. In the case of Nelson v. Kosrae, 8 FSM Intrm. 397 (App.1998), defendants were represented by a trial counselor, Steven Sigrah, while the prosecutor was an attorney. Both defendants, following trial, were convicted of malicious mischief, trespass and petty larceny. Upon appeal, defendants argued that they had received ineffective assistance of counsel because they had been represented by a trial counselor against the prosecutor, who was an attorney. The Appellate Division in Nelson specifically declined to adopt a rule that a trial counselor is per se ineffective assistance of counsel failing to meet constitutional requirements. The Nelson Court held that a trial counselor is not, merely because he is a trial counselor and not a lawyer, incompetent counsel.

     Here circumstances similar to those in Nelson are present. Defendant was represented by an

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experienced trial counselor, whereas the State was represented by an attorney. Based solely upon these facts, the Defendantís argument must fail. This Court applies the Nelson decision and concludes that representation of the Defendant by a trial counselor is not per se ineffective assistance of counsel, even where the prosecutor is an attorney.

     Trial counselors and attorneys are expected to handle different types of cases, both civil and criminal. The Model Rules of Professional Conduct, Rule 1.1, comment [2] provides that: "A [counsel] need not necessarily have special training or prior experience to handle legal problems of a type with which the [counsel] is unfamiliar. . . ." Consequently, even if Counsel Welly did not have prior experience with the specific types of offenses charged against the Defendant, that lack of experience does not automatically result in lack of competency.

     Both the Defendant and his former counsel Welly testified at the hearing on Defendantís Motion. The Defendant testified at the February 1, 2005 hearing. Counsel Welly testified at the February 25, 2005 hearing. The Defendant was advised that if Counsel Welly is permitted to testify, the attorney-client privilege may be waived. The Court explained the attorney-client privilege to the Defendant. The Defendant agreed to waive the attorney-client privilege, and allow Counsel Welly to testify regarding communications made during the course of this case. The parties also suggested that the attorney-client privilege may already have been waived by Defendantís own testimony at the February 1, 2005 hearing.

     Based upon the evidence presented at the hearing, I found that the Defendant had voluntarily terminated the services of the Office of the Public Defender in this case. Mr. Skilling, a highly experienced Public Defender, was released by the Defendant. The Defendant chose to retain private counsel for representation in this matter. Counsel Welly was first approached by members of the Defendantís family and was requested to represent the Defendant. Counsel Welly did not accept the representation immediately, but instead went to talk to his potential client and also reviewed the file from the Public Defenderís Office. The parents of the Defendant approached Counsel Welly on several occasions to request his representation of the Defendant.

     After accepting representation of the Defendant, Counsel Welly met with the Defendant on more than five occasions. On each occasion, in accordance with Counsel Wellyís established legal practice, he advised the Defendant that he can change counsel at any time, if he so desires. Counsel Welly testified that as his routine legal practice, he informed every client in every case, civil or criminal, that the client was free to change counsel at any time.

     Counsel Welly interviewed the Defendant on the charges brought against him. The Defendant admitted to Counsel Welly that each of the charges were true. Counsel Welly interviewed the Defendant on each of the facts alleged in the Information. The Defendant admitted that each of the facts alleged in the Information were true. Defendant admitted that each of the sexual assault acts occurred as alleged: four separate acts with two different victims.

     Counsel Welly testified that he did consider the possibility of double jeopardy with respect to the sexual assault charges. However, after interviewing the Defendant, who admitted that each of the sexual assault acts did occur as alleged in the Information, Counsel Welly concluded that the Defendantís protection against double jeopardy had not been violated and that it was therefore not a defense. Counsel Welly concluded that since each of the sexual assault acts occurred against two victims and consisted of different acts, that each of the sexual assault offenses were properly alleged as individual counts in the Information. Based upon this evaluation and analysis, and upon the admissions received from the Defendant, Counsel Welly participated in settlement negotiations with the State. Counsel Welly and the prosecutor exchanged several plea offers before the final plea agreement

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was reached. Counsel Welly presented and explained the proposed Plea Agreement to the Defendant. The Defendant testified that he was not forced to sign the Plea Agreement. Defendant further testified that he met with Counsel Welly, who explained the terms of the plea agreement to him, including the pleas of guilty and the recommended sentencing. This Plea Agreement was signed and accepted by the Court on October 31, 2001, in lieu of going to trial in this matter. Counsel Welly testified that the Plea Agreement was accepted by the Court only after the Court explained and was assured that the Defendant understood the Plea Agreement and the direct consequences of his pleas of guilty, in the Defendantís native Kosraean language. The Defendant was aware of the charges, his pleas of guilty to specific counts, dismissal of specific counts and the length of the recommended sentencing. The Defendant has failed to show that his conviction was obtained through imposition upon him or that he misunderstood his legal rights. Defendant has failed to show that he failed to understand the direct consequences of his guilty pleas with regard to the sentence to be imposed for each count.

      A review of the Plea Agreement also raises concerns regarding representation of the Defendant by the Office of the Public Defender. The Plea Agreement was signed by Sidney Skilling, Public Defender, who represented the Defendant in the three other cases then pending against the Defendant at the time of signing, filing and entry of the Plea Agreement: Crim Case Nos. 8-01, 44-01, 60-01. Furthermore, the Office of the Public Defender was counsel for the Defendant in this matter as well, from the initial appearance in June 2001 through mid-September, 2001. The Office of the Public Defender was familiar with the charges brought in the Information, the discovery provided to the Office of the Public Defender by the State, including the witness statements and medical reports.

      At the time of signing of the Plea Agreement, on October 31, 2001, the Defendant was current client of the Office of the Public Defender. The Office of the Public Defender was also Defendantís counsel at the time the Plea Agreement was tendered to the Court, accepted by the Court, the judgment of conviction entered and the sentence imposed. The Office of the Public Defender also signed the Plea Agreement, indicating its approval of the terms of the Plea Agreement, including the pleas of guilty and the recommended sentencing. The Public Defender, as counsel for the Defendant, was also required to provide effective assistance of counsel. The Public Defenderís failure to object to the Plea Agreement strongly suggests that he did not believe that the Plea Agreement violated the Defendantís constitutional rights, including protection against double jeopardy. The Public Defender, based upon the information he had received during his prior representation of the Defendant in this matter, should have refused to sign the Plea Agreement, indicating his approval, if he believed that the Agreement violated the Defendantís constitutional protection against double jeopardy. It is disingenuous for Defendant to now argue that Counsel Welly provided ineffective assistance of counsel for failing to raise the defense of double jeopardy, when Defendantís former counsel, also a Public Defender, agreed to and signed the Plea Agreement in this matter, which contained the Defendantís plea of guilty to the subject three counts of sexual assault, counts 4, 6 and 8.

     Based upon applicable law, I conclude that representation of the Defendant by Counsel Welly is not per se ineffective assistance of counsel based upon Counsel Wellyís status as a trial counsel and the attorney status of the prosecutor. Based upon the evidence presented at the hearing, I further conclude that Counsel Welly did not provide ineffective assistance of counsel by failing to raise the defense of double jeopardy with respect to counts 4, 6 and 8, each of which alleged separate acts of sexual assault against the same victim. Defendantís claim of ineffective assistance of counsel is rejected as being without merit.

2.  Double Jeopardy.

     Defendant claims that his protection against double jeopardy was violated because he entered pleas of guilty to several counts of the same offense: Sexual Assault. In his Motion, Defendant argued

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that the Defendantís guilty pleas to counts 4, 6, 8, and 16 were all for the offenses of Sexual Assault and that these pleas and the corresponding sentences that were imposed violated his protection against double jeopardy. Counts 4, 6 and 8 all involved a single victim, SS. Count 16 involved victim CC. During the course of the hearings held and written submissions filed by the parties, the Defendant conceded that Count 16, Sexual Assault against victim CC was a separate offense against a different victim. Therefore, Defendant withdrew his double jeopardy claim with respect to Count 16.

     Pursuant to the Defendantís Closing Statement, Defendant now argues that counts 4, 6, and 8, each being the offense of Sexual Assault committed against the victim SS, violated the Defendantís protection against double jeopardy. Defendant claims that counts 4, 6 and 8 were charged for the same offenses within the same time period, and therefore constitute a continuing offense, for which only one conviction should have been entered and only one sentence imposed.

     The double jeopardy argument is now being raised for the first time by Defendant. The State argues that the Defendant has waived the right to raise the defense of double jeopardy. The State argues that KRCrP Rule 12(b) requires motions based upon alleged defects in the information be raised prior to trial. Defendantís prior Counsel Welly could have raised this issue, but did not. As Defendant failed to raise the double jeopardy argument prior to trial, he has waived his right to raise the issue now, after entry of the Judgment of Conviction and Sentencing Order. The State argues that the Defendant should now be precluded from raising this issue, as it should have been addressed prior to trial pursuant to KRCrP Rule 12(b). Without ruling on whether this issue is properly before this Court through Defendantís Motion, this Court now addresses the double jeopardy issue based upon the seriousness of the alleged error.

     In considering the Defendantís claims of double jeopardy, a detailed review of the subject counts 4, 6 and 8, is instructive. A review of the record in this case details the actions which support the counts of 4, 6 and 8 as follows.

     Count 4 Ė between the hours of 8 pm, June 13, 2001 and 2 am on June 14, 2001, in an abandoned house in the Finfoko section of Lelu, the Defendant committed the crime of Sexual Assault by forcing victim SS to perform fellatio upon the Defendant.

     This instance of sexual assault took place in an abandoned house at or near the premises of John Mike.

     Count 6 Ė between the hours of 8 pm, June 13, 2001 and 2 am on June 14, 2001, in the Finfoko section of Lelu, the Defendant committed the crime of Sexual Assault by forcing anal intercourse upon victim SS.

     This instance of sexual assault took place outside in the darkness near some trees. After this sexual assault upon SS, the Defendant committed a battery upon the same victim by biting him on the back.

     Count 8 Ė between the hours of 8 pm, June 13, 2001 and 2 am on June 14, 2001, in the Finfoko section of Lelu, the Defendant committed the crime of Sexual Assault by forcing another act of anal intercourse upon the first victim. This instance of sexual assault also took place outside in the darkness near some trees.

     It is undisputed that the Defendant forced victim SS to perform one act of fellatio upon him, and also forced two separate acts of anal intercourse upon victim SS. All three acts of sexual assault occurred within the six hour period stated in the Information, in two different locations within Lelu municipality. The two acts of anal intercourse were separated by the Defendantís battery upon victim SS, by biting him on the back.

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     The double jeopardy clause in the Constitution was defined in the case of Laion v. FSM, 1 FSM Intrm. 503 (App. 1984). The Laion Court held that the double jeopardy clause protects an accused against the following:

     1.  a second prosecution for the same for the same offense after acquittal;

     2.  a second prosecution for the same offense after conviction; and

     3.  against multiple punishments for the same offense.

      As there has been no second prosecution for the offenses brought in Crim. Case. 38-01, only the third option is possible here.

     Defendant claims that multiple punishments have been imposed for the same offense, specifically for the three sexual assault offenses against victim SS. Defendant was sentenced to ten years incarceration each for counts 4, 6 and 8, to be served consecutively. Defendant claims that only one sentence should have been imposed upon him for all three acts of sexual assault against victim SS.

     Defendant relies upon the case of Laion v. FSM in support of his argument. The Laion case establishes the test to determine whether the same act or transaction constitutes a violation of two distinct statutory provisions: whether each provision requires proof of a fact which the other does not. Laion, 1 FSM Intrm. at 523-25. Here, however, Defendant does not claim that he has been improperly charged with two different statutory provisions. Instead, Defendant claims that he has been improperly charged with, and later improperly entered pleas of guilty to multiple violations of the same statutory provision: sexual assault. Defendant argues that the single act of forced fellatio and the two acts of forced anal intercourse should be considered a continuing offense or continuing crime. Defendant argues that these three acts were a continuous offense because they were committed upon the same victim with no substantial interval of time. All three acts were committed within the six hour period alleged in the Information. Defendant did not submit any legal authority on point to specific to repeated acts of sexual assault upon one victim.

     The State argues that the sexual assault acts by the Defendant were three distinct acts taking place in different locations and at different times. Counsel Welly testified that he interviewed victims, reviewed the police reports and other documents in the record, and concluded that each of the acts constituted a separate crime. Defendant committed penetrations of two different types, and understood that each act was a separate act of sexual assault. The State relies upon the case of Ex parte Joseph, 558 S.W.2d 891 (Tex. Crim. App. 1997), in which the defendant had first committed an act of sodomy upon the victim, and then committed an act of rape upon the same victim. The court in Ex parte Joseph held that each sexual assault act constituted a separate crime and that multiple convictions based upon each of the acts did not violate the protection against double jeopardy. These arguments are addressed below.

     Generally, there can be only one prosecution for a continuing crime. However, a distinct repetition of a prohibited act constitutes a second offense and subjects the offender to an additional penalty. 21 Am. Jur.2d Criminal Law ß 349, at. 399-400 (rev. ed. 1998) (citing to State v. Healy, 161 N.W. 590 (Minn. 1917) (repeated acts of sexual assault upon the same victim). Separate and distinct crimes occur, "even when they are very similar acts done many times to the same victim, they are chargeable individually as separate and distinct criminal conduct." Brown v. State 459 N.E.2d 376 (Ind. 1984).

     Defendant argues that acts forming the basis for Counts 4, 6, and 8, should have been charged

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and prosecuted as one continuing crime, only one violation of Kosrae State Code, Section 13.311.

     Kosrae State Code, Section 13.311 provides:

Sexual assault. Sexual assault is intentionally subjecting another person to sexual penetration, or forcing another person to make a sexual penetration on himself or another or on an animal, against the other personís will, or under conditions in which the offender knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct. Sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of penetration of the genital, anal, or oral opening of another to any extent and with any object whether or not there is an emission.

      Counts 4, 6 and 8 are offenses of sexual assault committed against a single victim. Count 4 involved forced fellatio and Counts 6 and 8 involved anal intercourse. Count 4 constituted an offense under Section 13.311 by "intentionally forcing another person to make a sexual penetration on another . . . ." Counts 6 and 8 were factually distinct from Count 4 in type of penetration, and constituted offenses under Section 13.311 by "intentionally subjecting another person to sexual penetration . . ." As complained by the victim and as admitted by the Defendant, Defendant committed two distinct types of sexual penetration upon victim SS. These separate acts of sexual penetration, fellatio and anal intercourse, were necessarily separated in time. Based upon the record in the case, these two acts of penetration were also completed in different locations. The two acts of anal intercourse were separated in time by the Defendantís action to bite the victim on the back, but were completed in the same location.

      The Defendantís argument that repeated acts of sexual assault or penetration upon one victim during a single criminal episode constitute a single continuing criminal offense are of first instance before this Court. This argument is contrary to the convictions affirmed in FSM v. Loney, 3 FSM Intrm. 151 (App. 1987). In the Loney case, the defendant had subjected the victim to two instances of sexual penetration during a single criminal episode, which also included the commission of robbery. On appeal, Loneyís convictions on two counts of sexual assault were affirmed. Through the Loney appellate decision, convictions on multiple violations of the same sexual assault upon the same victim during the same criminal episode were recognized and affirmed.

      Multiple convictions and sentences for multiple acts of sexual assault or penetration upon one victim during a single criminal episode have been upheld throughout the United States jurisdictions as well. A survey of such cases is instructive. In the case of Harrell v. State, 277 N.W.2d 462 (Wis. Ct App 1979), the defendant was convicted of two counts of rape and one count of armed robbery. The defendant had committed all three acts within a thirty minute period of time upon the same victim in the same location. On appeal, the defendant argued that the two rapes were a continuous crime and a unitary transaction. The appellate court rejected the defendantís arguments and held that the separate acts of sexual assault were separately punishable.

      In the case of Collins v. Indiana, 717 N.E.2d 108 (Ind. 1999), the defendant was convicted of one count of rape and two counts of criminal deviate conduct against a minor victim. The defendant appealed the two convictions of criminal deviate conduct, which were based upon one compelled act of oral sex and one compelled act of anal sex. On appeal, the defendant argued that his conduct constituted one continuous sexual assault, and that he had only stopped to reposition his victim before continuing the assault. The Indiana Supreme Court rejected the defendantís argument, finding that the act of oral sex contained an essential element separate and different than the act of anal sex. Both convictions of criminal deviate conduct were affirmed.

[13 FSM Intrm. 241]

     Likewise, in the case of Quintano v. People, 105 P.3d 585 (Colo. 2005), the defendant was convicted of three counts of sexual assault on a minor, all committed within the same criminal episode. The defendantís convictions were based upon his actions in grabbing the breast, grabbing the crotch, and touching the vagina of the victim. See also Erickson v. State, 950 P.2d 580 (Alaska Ct. App. 1997) (relying upon Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991)) (affirming conviction of defendant on four counts of sexual assault of minor in a single episode based upon multiple violations of same statute as not violative of double jeopardy).

     The case of Hawaii v. Coffman, No. 22742 (Haw. Ct. App. Aug. 8, 2001) is instructive on the argument of multiple convictions of the same statute, pursuant to entry of a plea agreement. Defendant Coffman entered pleas of guilty and was convicted of four counts of sexual assault upon a minor victim. The defendant appealed and claimed that all four sexual assaults should be considered a continuous offense. Defendant claimed that the four sentences imposed, one for each conviction, were multiple punishments for the same conduct, in violation of double jeopardy. The Hawaii Appellate Court held that "[w]here different criminal acts are at issue, supported by different factual evidence even though separated in time only by seconds, one offense cannot be included in the other. The defendant can properly be punished for all, under different, or the same statutory provisions. Id. at 7.

      The Coffman Court recognized that "Hawaii Courts have consistently held that each act constituting a sexual assault is punishable as a separate and distinct offense." (citing State v. Horswill, 857 P.2d 579 (1993) (affirming conviction on four counts of sexual assault during course of brief criminal transaction, including two separate acts of vaginal intercourse). See also Hawaii v. Eisermann, No. 25191, 2004 WL 585922 (Haw. Ct. App. Mar. 23, 2004) (Memorandum Opinion affirming denial of Defendantís Rule 35 Motion to Correct Illegally Imposed Sentence. Defendant had been convicted of nine offenses, including seven convictions of sexual assault, all of which occurred on the same day. Defendantís claim that he had been improperly convicted of and sentenced for nine offenses, that all were based upon the commission of the same crime was rejected.)

      Based upon the authority and rationale set forth above, I conclude that each instance of sexual penetration may be charged and prosecuted as a separate violation of Kosrae State Code, Section 13.311. Each factually distinguishable act of sexual penetration is subject to prosecution as a separate count, conviction and sentencing. Here the Defendant committed three factually distinguishable acts of sexual penetration upon the same victim. The record reflects that each of the three acts that the defendantís conduct was separate in time and showed defendant new intent in his course of conduct.

      Finally, this Court finds that Defendantís argument that multiple acts of sexual penetration committed during a single continuous criminal episode be subject only to conviction and sentencing on a single count is not supported by public policy. Defendant asks for a ruling by this Court that would encourage the commission of multiple sexual assaults upon a victim within a single episode, resulting in multiple offenses without punishment. The Court does not approve of any principle that would exempt an accused from prosecution for all the offenses that were committed, just because the accused has opportunity and willingness to multiply those offenses. Such a principle would encourage the more vicious and repeated criminal acts. Our State Legislature could not have intended to grant immunity to a criminal who committed one sexual assault upon a minor victim, from prosecution and punishment for further criminal acts committed during the same encounter. The Defendantís conviction and sentencing upon three counts of sexual assault upon the same victim during the same criminal episode were based upon factually distinct acts and offenses, and therefore are not multiple punishments for the same offense.

      I conclude that the evidence supported the inclusion of all three counts 4, 6, and 8 in the Information, and that the evidence supported separate convictions on all three sexual assault counts.

[13 FSM Intrm. 242]

      The convictions on counts 4, 6 and 8, and sentences imposed thereon, are not multiple punishments for the same offense. The convictions and sentences on counts 4, 6 and 8 did not violate the Defendantís protection against double jeopardy. Accordingly, Defendant has not supported his burden of proof of manifest injustice pursuant to KRCrP Rule 32(d). Defendantís Motion to Set Aside the Judgment of Conviction must be denied.

IV.  Conclusion.

      Based upon the arguments and evidence presented at the hearings, the papers filed by the parties, the record in this matter, and applicable law, I conclude that the Defendant has failed to support his burden to show manifest injustice in the Defendantís pleas of guilty entered in this matter, and the sentences imposed thereon. Defendant has failed to show ineffective assistance of counsel by Counsel Welly with respect to the Plea Agreement made and entered into in this matter. Defendant has failed to show that the three separate counts of Sexual Assault, Counts 4, 6, and 8, violated the constitutional protection against double jeopardy. There has been no evidence presented that the Defendantís conviction was obtained through fraud or imposition upon him, or that Defendant misunderstood his legal rights as to the terms of the Plea Agreement. Defendant does not deny the charges brought against him and does not claim that he is not guilty of the crimes as charged.

      Accordingly, I conclude that there has been no manifest injustice resulting to the Defendant from his pleas of guilty entered in this matter on October 31, 2001, as reflected in the Plea Agreement. Therefore, setting aside the judgment of conviction is not warranted. Defendantís Motion to Set Aside the Judgment of Conviction and Withdraw Defendantís Plea of Guilty is denied.

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