FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kintin, 15 FSM Intrm. 83 (Chk. 2007)

[15 FSM Intrm. 83]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

INASIO KINTIN,

Defendant.

CRIMINAL CASE NO. 2003-1506

ORDER REVOKING PROBATION

Dennis K. Yamase

Associate Justice

Hearing:  December 27-28, 2006

Submitted:  March 23, 2007

Decided:  June 11, 2007

APPEARANCES:

For the Plaintiff:         Joses Gallen, Esq.

                                 Chuuk Attorney General

                                 Office of the Chuuk Attorney General

                                 P.O. Box 189

                                 Weno, Chuuk   FM   96942
 

For the Defendant:  Julius J. Sapelalut, Esq.

                                Office of the Public Defender

                                P.O. Box PS-174

                                Palikir, Pohnpei   FM   96941

                                Harry A. Seymour, Esq. (brief)

                                Office of the Public Defender

                                P.O. Box 245

                                Tofol, Kosrae   FM   96944

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[15 FSM Intrm 84]

HEADNOTES

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

      When a July 7, 2006 report of the defendantís non-compliance with his probation release conditions sought to revoke the defendantís probation, the defendant has not shown that a September 28, 2006 hearing date was not a hearing set within a reasonable time since he was without counsel and new, off-island counsel had to be assigned and since he had been released and was not being held pending his revocation hearing. And when any further delay after September 28, 2006, is attributable to the defendant and his requests for continuances, the ground that the defendantís hearing was not held within a reasonable time will be rejected as a ground to deny the motion to revoke his probation.  FSM v. Kintin, 15 FSM Intrm. 83, 85 (Chk. 2007).

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

     Since the defendant had already started serving his sentence which included probation and weekends in jail when the alleged incident occurred, since the defendant violated his terms of probation while serving his weekend jail sentence, and since the defendantís term of probation had thus started before his violation, it would be unreasonable to hold that the court had no power to revoke the defendantís probation for an incident (if proven), which, if it had occurred two days earlier or one day later, the court clearly would have had the power to revoke probation.  FSM v. Kintin, 15 FSM Intrm. 83, 86 (Chk. 2007).

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

     Although a court may not act capriciously in revokingprobation, the government does not have to establish beyond a reasonable doubt that the probation terms have been violated. A court may revoke probation if it is reasonably satisfied that the terms of the probation were violated.  FSM v. Kintin, 15 FSM Intrm. 83, 86 (Chk. 2007).

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COURTíS OPINION

DENNIS YAMASE, Associate Justice:

      On February 7, 2006, the court convicted the defendant, Inasio Kintin, upon his plea of guilty to Count I of the information, possession of a firearm, 11 F.S.M.C. 1023(5), and committed Kintin to the custody of the Department of Public Safety for imprisonment for three (3) years, suspended, except for forty (40) days in jail to be served on weekends, starting Saturday, February 18, 2006, at 9:00 a.m. and remaining in jail until 9:00 a.m. each Monday, each weekend for twenty consecutive weekends, and he was placed on probation for the remainder of the three-year sentence and that at all times that he is on probation, he was on probation on the conditions that 1) he obey all laws and ordinances to which he was subject; 2)  that he not leave Chuuk while on probation without the courtís permission; 3)  that he not possess or consume alcohol; and 4) that he report to the State Justice Ombudsman as directed by the Ombudsman.

     On December 27-28, 2006, Inasio Kintin appeared personally, and with counsel Joey Sapelalut of the FSM Public Defendersí Office, and the court heard evidence on a motion to revoke Kintinís probation. By the partiesí suggestion and agreement, the parties were to submit their closing arguments in written form, which would also address the issue, raised by the court, of whether, since the defendant was a prisoner at the time the alleged incident occurred, any of his actions at that time could provide a basis to revoke his probation.  The prosecution filed its brief on February 13, 2007.  On March 23, 2007, the defendant filed his closing argument and brief through new counsel, Harry

[15 FSM Intrm 85]

Seymour, because Sapelalut had since been hired as a Chuuk Assistant Attorney General.  The matter was then deemed submitted to the court for decision.

I.

      Kintin asserts that there are two grounds to deny the motion, each of which would require denial of the motion to revoke without the court considering whether Kintin committed any acts justifying revoking his probation. Kintin further contends that the evidence is insufficient for the court to be reasonably satisfied that he violated any of his probation conditions.

II.

     Kintin first contends that revocation of his probation should be denied because the revocation hearing was not held "within a reasonable time" as required by Criminal Procedure Rule 32.1(a)(2).  The incident for which the prosecution seeks to revoke Kintinís probation took place on June 18, 2006, while Kintin was being held in the Chuuk state jail.  Kintin asserts that the time between then and his hearing was not reasonable.

     On July 7, 2006, the State Justice Ombudsman filed his report of Kintinís non-compliance with his release conditions, and on August 16, 2006, the court, considering this to be a motion to revoke the defendantís probation, issued its order setting the revocation hearing for September 28, 2006. Since Kintinís original counsel, Peter J. Stelzer, had earlier left the Public Defendersí Office and the FSM Public Defender stationed in Chuuk was disqualified from the case, Kintin sought, and was granted, a series of continuances (four in all) for new counsel to appear, become familiar with the case, and to fit travel to Chuuk into his schedule.

     Kintin has not shown that a September 28, 2006 hearing date was not a hearing set within a reasonable time when he was without counsel and new, off-island counsel had to be assigned and when he had been released and was not being held pending his revocation hearing.  Any further delay after September 28, 2006, is attributable to Kintin and his requests for continuances.  This ground to deny the motion to revoke Kintinís probation is therefore rejected.

III.

     Kintin further contends that it would be capricious and unreasonable for the court to revoke his probation because, at the time of the alleged incident, Kintinís probation period was not in effect. The alleged offense for which the prosecution seeks revocation of Kintinís probation took place on Sunday, June 18, 2006, while Kintin was in the state jail serving his weekend imprisonment.

      Only two FSM cases touch upon this issue.  In FSM v. Fritz, 13 FSM Intrm. 88, 92-93 (Chk. 2004), the trial court held that it could not revoke a sentence of probation for acts that took place before the sentence had started and thus before the defendant was placed on probation. In Fritz, the defendant was convicted and a sentence of probation was imposed, but had not yet started when the acts for which revocation was sought occurred.  In FSM v. Dores, 1 FSM Intrm. 580, 586 (Pon. 1984), revíd on other grounds, 3 FSM Intrm. 155 (App. 1987), the trial court held that "courts have had little difficulty in rejecting the argument that it is impossible then to violate conditions of probation because those conditions become effective only when the probation starts. Courts have uniformly held that sound policy requires that they be able to revoke probation for a defendantís offense committed before the sentence commences."  In Dores, both the defendant and the government had stipulated to a plea agreement, accepted by the court, "that the court was to defer acceptance of the assault with a dangerous weapon guilty plea subject to certain conditions, one of which was that Ďthe defendant shall

[15 FSM Intrm 86]

abstain from all criminal conduct.í" Id. at 582.  The Dores court concluded that since the parties had agreed and the court had accepted the plea agreement under Rule 11(e)(1)(C), "the defendant, the prosecution and the Court had all bound themselves to carry out the terms of the plea agreement," and each was entitled to the benefit of the bargain reflected in the plea agreement.  Dores, 1 FSM Intrm. at 585.  The Dores court then accepted the defendantís guilty plea, revoked the agreement, and prepared to sentence the defendant on the charges. Id. at 585-86.  Although the Dores court concluded that it had the power to do so based on mutuality and fairness, it also noted that "that in a somewhat parallel area, revocation of probation before the probation actually started, other courts have had little difficulty in rejecting the argument that it is impossible then to violate conditions of probation because those conditions become effective only when the probation starts." Id. at 585.

     These two cases appear to conflict.  However, that conflict does not need to be resolved here because both cases can be distinguished from this case.  Unlike Fritz, Kintinís sentence had already started before the June 18, 2006 incident occurred. Kintinís term of probation had even started before then because he was on probation every weekday after February 18, 2006 and whenever he was released from jail.  Like Dores, Kintinís guilty plea was part of a plea bargain, but unlike Dores, the guilty finding had not been deferred and Kintin had already been found guilty and was already (alternately) serving his sentence of incarceration and probation.

      It would be thus unreasonable to hold that the court had no power to revoke Kintinís probation for an incident (if proven), which, if it had occurred two days earlier or one day later, the court clearly would have had the power to revoke probation.  Kintin had already started serving his sentence which included probation terms when the alleged incident occurred.  This ground to deny revocation therefore is also rejected.

IV.

      At the hearing, the court heard testimony from the alleged victim, Sapina Asugar, and from Salle Sana, Harry Narruhn, Ermita Haser, Gabriel Kasa, Inasio Kintin, and Nameni Walter Kintin.

      Although a court may not act capriciously in revoking probation, the government does not have to establish beyond a reasonable doubt that the probation terms have been violated.  A court may revoke probation if it is reasonably satisfied that the terms of the probation were violated.  FSM v. Phillip, 5 FSM Intrm. 298, 302-03 (Kos. 1992).

      Kintin contends that the evidence is insufficient for the court to be reasonably satisfied that he violated any of his probation conditions.  The court, however, is satisfied that, based upon the witnessesí testimony and other evidence taken at the revocation hearing, Kintin violated the terms of his probation when he struck Sapina Asugar in the face, by which act Kintin violated a law to which he was subject.

V.

      Accordingly, Kintinís asserted legal grounds ) that his hearing was not held within a reasonable time and that he was not on probation at the time ) are rejected.  The court is reasonably satisfied that Kintin did violate his terms of probation.  Now therefore it is hereby ordered that eighty (80) days of defendant Inasio Kintinís probation are revoked and it is further ordered that those days in jail will be served on weekends, starting Saturday, June 16, 2007, at 9:00 a.m., and remaining in jail until 9:00 a.m. each Monday, each weekend for forty (40) consecutive weekends.

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