FSM SUPREME COURT APPELLATE DIVISION

Cite as Walter v. FSM, 15 FSM Intrm. 130 (App. 2007)

[15 FSM Intrm. 130]

ONCHER WALTER,

Appellant,

vs.

FEDERATED STATES OF MICRONESIA,

Appellee.

ORDER DISMISSING APPEAL; MEMORANDUM

APPEAL CASE NO. C5-2005

Decided:  June 22, 2007

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court

Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court*

Hon. Benjamin F. Rodriguez, Temporary Justice, FSM Supreme Court**
 

*Chief Justice, Kosrae State Court, Tofol, Kosrae

**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
 

APPEARANCES:

For the Appellant:   Beauleen Carl-Worswick, Esq.

                               Chief Public Defender

                               Office of the Public Defender

                               P.O. Box PS-174

                               Palikir, Pohnpei   FM   96941
 

For the Appellee:   Matthew L. Olmsted, Esq.

                               Assistant Attorney General

                               FSM Department of Justice

                               P.O. Box PS-105

                               Palikir, Pohnpei   FM   96941

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[15 FSM Intrm 131]

HEADNOTES

Appellate Review

      In instances where there is no FSM precedent, the appellate court may consider cases from other jurisdictions in the common law tradition. Walter v. FSM, 15 FSM Intrm. 130, 131 (App. 2007).

Appellate Review ) Decisions Reviewable; Appellate Review ) Dismissal

      A criminal appeal involving a fugitive appellant, who has left the FSM in violation of three court orders, will be dismissed because the fugitive’s ongoing disobedience to those orders precludes him from availing himself of the appellate process. He is thus disentitled to call upon the court for a review of his conviction. Walter v. FSM, 15 FSM Intrm. 130, 132 (App. 2007).

COURT’S OPINION

PER CURIAM:

      On May 1, 2007, the FSM filed its motion to dismiss this appeal on the basis that appellant Oncher Walter has failed to file his brief on appeal, and that he has left the FSM in violation of orders entered in the trial division.  The motion is granted.

I.  Discussion

      On July 11, 2005, the Chuuk trial division of this court sentenced appellant Oncher Walter to a term of imprisonment for one year for possession of a firearm in violation of 11 F.S.M.C. 1023(5). On August 5, 2005, the trial court granted Walters’ request to stay execution of his sentence pending appeal, and on December 6, 2005, granted Walter’s request to travel to Honolulu, Hawaii, for treatment of cardiomyopathy, a heart ailment.  The travel request was subject to numerous conditions, including the condition that the duration of the trip was no more than two months. On January 23, 2006, or more than a year and three months ago, Walter left Chuuk, and has yet to return.  According to the affidavit of Mr. Harry Narruhn, who is the Chuuk State Justice Ombudsman for the FSM Supreme Court in Chuuk, Walter remains in Hawaii in violation of the trial division’s orders of July 11, 2005; August 5, 2005; and December 6, 2005.  An arrest warrant issued on March 20, 2006, remains outstanding.

      FSM cases have not specifically addressed the question whether a criminal appeal involving a fugitive appellant should be dismissed, although in Cuipan v. FSM, 10 FSM Intrm. 323, 327 (App. 2001), the appeal was dismissed when the appellant’s failure to comply with the appellate rules kept at bay the final resolution of the case and the incarceration that would follow upon the case’s final disposition.  In instances where there is no FSM precedent, we may consider cases from other jurisdictions in the common law tradition.  Rauzi v. FSM, 2 FSM Intrm. 8, 15 (Pon. 1985).

      United States Supreme Court cases "consistently and unequivocally approve dismissal as an appropriate sanction when a prisoner is a fugitive during the ‘ongoing appellate process.’"  Ortega-Rodriguez v. United States, 507 U.S. 234, 242, 113 S. Ct. 1199, 1204, 122 L. Ed. 2d 581 (1993) (discussing at 507 U.S. at 239-43, 113 S. Ct. at 1203-04, 122 L. Ed. 2d at 591-93 Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876); Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970); Allen v. Georgia, 166 U.S. 138, 17 S. Ct. 525, 41 L. Ed. 949 (1897); and Estelle v. Dorrough, 420 U.S. 534, 95 S. Ct. 1173, 43 L. Ed. 2d 377 (1975).  This principle, known as the fugitive disentitlement doctrine, Paretti v. United States, 143 F.3d 508, 510 (9th Cir. 1998), is "based on the equitable principle that a fugitive from justice is ‘disentitled’ to call upon [the] Court for

[15 FSM Intrm 132]

a review of his conviction."  United States v. Sharp, 470 U.S. 675, 681 n.2, 105 S. Ct. 1568, 1573 n.2, 84 L. Ed. 2d 605, 612 n.2.

      Walter filed his notice of appeal on July 19, 2005.  His brief on appeal was due on November 14, 2005.  No brief was filed, and on February 17, 2006, this court issued an order notifying Walter’s counsel that unless steps were taken to prosecute the appeal by March 20, 2006, the appeal would be subject to dismissal under Appellate Rule 27 for failure to comply with timing requirements. Walter did not file his brief in response to this order.  Thus nearly a year and a half has passed since Walter’s brief on appeal was due.

      That Walter has filed no brief is secondary to his fugitive status.  He has left the FSM in violation of three court orders, and his ongoing disobedience to those orders precludes him from availing himself of the appellate process.  He is "‘disentitled’ to call upon [the] Court for a review of his conviction," Sharp, 470 U.S. at 681 n.2, 105 S. Ct. at 1573 n.2, 84 L. Ed. 2d at 612 n.2, and the appeal should be dismissed.

II.  Conclusion

      Accordingly, this appeal is dismissed.  The motion for reconsideration filed by the Office of the Public Defender on February 23, 2007 is dismissed as moot.

______________________________

Footnotes:

1.   On March 17, 2006, the Office of the Public Defender, FSM, by Beauleen Carl-Worswick filed a motion requesting that the FSM Public Defender’s Office be granted leave to withdraw. That motion was denied by order January 12, 2007, and the Office of the Public Defender moved on February 23, 2007, for reconsideration of the January 12, 2007. The motion for reconsideration is moot in light of the appeal’s dismissal.

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