FSM SUPREME COURT APPELLATE DIVISION

Cite as Neth v. Kosrae, 14 FSM Intrm. 228 (App. 2006)

[14 FSM Intrm. 228]

LARRY B. NETH,

Appellant,

vs.

STATE OF KOSRAE,

Appellee.

APPEAL CASE NO. K1-2005

OPINION

Argued: May 2, 2006

Decided: May 18, 2006

BEFORE:

     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

     Hon. Dennis Yamase, Associate Justice, FSM Supreme Court

     Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court*

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

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

* * * *

[14 FSM Intrm. 229]

HEADNOTES

Appellate Review ) Notice of Appeal

    In criminal cases, a defendantís notice of appeal must be filed within 10 days after the entry of the judgment appealed from. Neth v. Kosrae, 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,

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, 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, 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 defendantís constitutional rights has occurred, the court may notice the error on its own. Neth v. Kosrae, 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 defendantís 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, 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 defendantís 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, 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, 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, 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 defendantís presence is required because the

[14 FSM Intrm. 230]

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, 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, 14 FSM Intrm. 228, 233 n.2 (App. 2006).

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

    The defendantís 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, 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, 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, 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 courtís imposition of sentence or to waive his or her right to be present at the imposition of sentence. Neth v. Kosrae, 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, 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 defendantís presence. Neth v. Kosrae, 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 courtís reasons for it. Neth v. Kosrae, 14 FSM Intrm. 228, 234 (App. 2006).

* * * *

COURTíS OPINION

DENNIS K. YAMASE, Associate Justice:

    Larry B. Neth appealed his December 27, 2004 "Judgment of Conviction" for assault and battery

[14 FSM Intrm. 231]

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 Nethís guilt before entering its written findings and for the trial court to publicly impose its sentence on Neth. Our reasons follow.

I.   Procedural History

    Neth was charged with assault and battery, Kos. S.C. ß 13.303, disturbing the peace, Kos. S.C. ß 13.503, and assault Kos. S.C. ß 13.302. Trial was held on December 7, 2004. The trial court then took the matter under advisement. It issued a written decision and judgment of conviction on December 9, 2004. Neth was convicted of the assault and battery charge, acquitted 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 of appeal by a 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 to appeal a judgment entered on December 27, 2004 and we would lack jurisdiction.

    However, regardless of what the trial court chose to call it, the December 27, 2004 "judgment of conviction" (included in the trial courtís findings of fact and conclusions of law along with the courtís 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. Thus it was not a judgment of conviction.

    Although the 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, 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 courtís 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 courtís 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 Nithanís [the alleged victimís] face

[14 FSM Intrm. 232]

was clearly erroneous.

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 defendantís constitutional rights has occurred, the court may

notice the error on its own. Moses v. FSM, 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 defendantís substantial rights. Ting Hong Oceanic Enterprises v. FSM, 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, 12 FSM Intrm. 365, 372 (App. 2004); Hartman v. Bank of Guam, 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, ß 6, as does the Kosrae Constitution, Kos. Const. art. II, ß 1(e). A criminal defendantís 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. In Nena v. Kosrae, App. No. K1-2004 (Feb. 14, 2006), we 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, 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 defendantís presence is required. "The defendant shall be present at . . . at every stage of the trial including the finding of the court, and at the imposition of sentence . . . ." Kos. Crim. R. 43(a).

[14 FSM Intrm. 233]

    The defendantís right (found in Rule 43) to be present at the imposition of sentence is constitutionally based. United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (per curiam); see also United States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987) (Rule 43's source is in the U.S. Constitutionís confrontation and due process clauses). When sentencing a criminal defendant, "the sentencing court must `eyeballí the defendant at the instant it exercises its most important judicial responsibility." United States v. Faulks, 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 Faulksís 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 Nethís finding of guilt were not vacated, we would have to vacate Nethís 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 courtís 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 defendantís voluntary absence after the trial has started with the defendant present). See, e.g., United States v. Lastra, 973 F.2d 952, 956 (D.C. Cir. 1992); United States v. Songer, 842 F.2d 240, 244 (10th Cir. 1988); Wilmore v. United States, 565 F.2d 269, 272 (3d Cir. 1977); United States v. Mayfield, 504 F.2d 888, 889 (10th Cir. 1974); United States v. Brown, 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 defendantís 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, 13 FSM Intrm. 88, 91 n.1 (Chk. 2004); see also Villano, 816 F.2d at 1453 ("The sentence . . . is the punishment imposed orally by a sentencing judge in a defendantís presence."); United States v. Weir, 724 F.2d 94, 95 (8th Cir. 1984) ("the oral sentence and not the written order constitutes the actual judgment of the court"); United States v. Munoz-Dela Rosa, 495 F.2d 253, 255 (9th Cir. 1974) (judgeís oral pronouncement from the bench controlled even though he later said he actually meant to say something else); United States v. Mason, 440 F.2d 1293, 1299-1300 (10th Cir. 1971), cert. denied, 404 U.S. 883 (1971); Scott v. United States, 434 F.2d 11,

[14 FSM Intrm. 234]

20 (5th Cir. 1970); Baca v. United States, 383 F.2d 154, 157 (10th Cir. 1967), cert. denied, 390 U.S. 929 (1968); United States v. Morse, 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 courtís reasons for it. See United States v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005); United States v. Alcantra, 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. Nethís 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 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.

_____________________________

Footnotes:

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 Nithanís 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, 1 FSM Intrm. 433, 441 (App. 1984). Neither Rule 43 has been previously construed.

3.  The FSM and Kosrae Constitutionsí confrontation and due process clauses are drawn from the U.S. Constitution. See, e.g., Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984) (FSM Declaration of Rights traceable to the U.S. Constitution Bill of Rights); cf. Sigrah v. Kosrae, 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, 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.

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