FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Petewen William, 16 FSM Intrm. 4 (Chk. 2008)

[16 FSM Intrm 4]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

PETEWEN WILLIAM a/k/a JESSY WILLIAM,

Defendant.

CRIMINAL CASE NO. 2004-1504

CRIMINAL CASE NO. 2004-1505

CRIMINAL CASE NO. 2004-1506

CRIMINAL CASE NO. 2004-1507

CRIMINAL CASE NO. 2004-1508

ORDER

Dennis K. Yamase

Associate Justice

Hearing:  June 5, 2008

Decided:  June 17, 2008

APPEARANCES:

For the Plaintiff:                Joses Gallen, Esq.

                                         Attorney General

                                         Office of the Chuuk Attorney General

                                         P.O. Box 1050

                                         Weno, Chuuk   FM   96942

 

For the Defendant:           William E. Minkley, Esq.

                                         Office of the Public Defender

                                         P.O. Box 754

                                         Weno, Chuuk   FM   96942

 

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HEADNOTES

Criminal Law and Procedure Pleas; Criminal Law and Procedure Sentencing Probation Revocation

      Rule 11 does not apply to hearings on the revocation of probation or supervised release. Rule 11 on its face applies only to the procedures a court must follow before accepting a plea of guilty or nolo contendere. The rule is addressed to the taking of a plea, not the imposition of sentence or the revocation of probation. FSM v. William, 16 FSM Intrm. 4, 7-8 (Chk. 2008).

Criminal Law and Procedure

     Although the court must first look to FSM sources of law for legal requirements in criminal cases rather than start with a review of other courtsí decisions, when the court has not previously construed Criminal Procedure Rule 11ís applicability to probation revocation or Rule 32.1ís scope and those rules are similar or identical to a U.S. rule, it may look to U.S. sources for guidance in interpreting those rules. FSM v. William, 16 FSM Intrm. 4, 7-8 n.1 (Chk. 2008).

[16 FSM Intrm 5]

Criminal Law and Procedure Pleas

     When Rule 11 applies, the failure to comply with the Rule 11 procedures would entitle the defendant to have his plea set aside and to have another hearing at which he may plead anew. FSM v. William, 16 FSM Intrm. 4, 8 n.2 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

     A probation revocation is not a stage of a criminal prosecution, but does result in the loss of liberty. Accordingly a probationer is entitled to a preliminary and a final revocation hearing. FSM v. William, 16 FSM Intrm. 4, 8 (Chk. 2008).

Constitutional Law Due Process; Criminal Law and Procedure Sentencing Probation Revocation

     The due process concerns in a Rule 11 plea hearing do not apply with equal force to the context of a revocation of probation or supervised release. FSM v. William, 16 FSM Intrm. 4, 8 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

    Constitutionally and procedurally, the revocation of probation, of supervised release, and of parole are treated alike. FSM v. William, 16 FSM Intrm. 4, 8 n.3 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

     At a revocation hearing, not only is a Rule 11 voluntariness colloquy not required before a court may accept a defendantís admission of supervised release violations, but such a formal colloquy would be ill suited to the context of supervised release proceedings. In contrast to the adversarial setting that characterizes the offering of a guilty plea, a revocation of supervised release proceeding features the involvement of a parole officer, who is responsible for representing the defendantís best interests to the greatest extent possible consistent with the communityís welfare. To superimpose formalistic procedures such as a Rule 11 colloquy onto this context, however much it may be sound practice for judges to elicit some indication of voluntariness for the record, is neither required by due process nor necessarily conducive to a more effective accomplishment of the goals of probation. FSM v. William, 16 FSM Intrm. 4, 8 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

     Admissions to probation violations are not made in the course of a criminal trial and do not give rise to a different statutory offense or to an increase in punishment on the underlying conviction. Thus, by not contesting the revocation motion and having his probation revoked, a defendant would not be punished for any new crime, nor would his punishment be increased, he would only be punished for the crimes he had already pled guilty and he would be serving the sentence he received for those crimes. FSM v. William, 16 FSM Intrm. 4, 8-9 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

      A probation revocation hearing is not analogous to a criminal trial or prosecution and the admission of a probation violation is not the functional equivalent of a guilty plea. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

      The rights which a probationer enjoys during a revocation proceeding are simply not co-extensive with those enjoyed by a defendant during a prosecution for a substantive offense. For revocation hearings there is no constitutional (or statutory) requirement of a voluntariness colloquy similar to that required under Rule 11 and a defendant in a probation revocation hearing who admits to probation violations does not have to be informed of the maximum possible sentence because he was already informed of that when he pled guilty to the original offense or before he was sentenced. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

[16 FSM Intrm 6]

Criminal Law and Procedure Pleas; Criminal Law and Procedure Sentencing Probation Revocation

     A guilty plea is itself a conviction, ending the controversy, but admissions of probation violations [unlike guilty pleas] do not end the controversy. The judge must still decide the more difficult issue whether the violations warrant revocation of probation. Thus, admissions of probation violations, unlike guilty pleas, do not automatically trigger sentencing. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

     Unlike in a criminal prosecution where it is constitutionally required, in a probation revocation the government does not have to prove beyond a reasonable doubt that the probation terms have been violated. The court may revoke probation if it is reasonably satisfied that the probation terms were violated. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Double Jeopardy; Criminal Law and Procedure Sentencing Probation Revocation

     The constitutional protection not to be twice placed in jeopardy does not apply to a revocation hearing because revocation and a criminal prosecution can both be based on the same transaction without implicating double jeopardy concerns. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Right to Silence; Criminal Law and Procedure Sentencing Probation Revocation

     Since probation revocation is not a stage in a criminal prosecution, the defendantís privilege against self-incrimination is limited to where his answers might incriminate him in a future criminal proceeding. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Right to Silence

     A person may refuse to testify against himself in two situations. First, a person may invoke the privilege in a criminal trial in which that person is a defendant. Second, a person may invoke the privilege in any other proceeding, civil, criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. FSM v. William, 16 FSM Intrm. 4, 9 n.4 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

     A court is not required by the rules or by due process to warn a defendant that he would not be able to withdraw his admissions if the court did not follow the partiesí recommendation about the length of probation to be revoked. Nor is a court required to allow him to withdraw his admission when the length of the probation revocation is not to his liking and a formal waiver of the defendantís rights or a Rule 11 style colloquy is also not required. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

     The revocation or modification of probation is not governed by Rule 11, but by Criminal Procedure Rule 32.1, which provides for a preliminary hearing and a final revocation hearing. A preliminary hearing is only held whenever a probationer is held in custody on the ground that the person has violated a condition of probation or supervised release. When the probationer is not in custody, the hearing is a final revocation hearing. FSM v. William, 16 FSM Intrm. 4, 9 (Chk. 2008).

Criminal Law and Procedure Sentencing Probation Revocation

    Unless waived by the person whose probation the government seeks to revoke, that person must be given 1) written notice of the alleged probation violation; 2) disclosure of the evidence supporting the charge; 3) an opportunity to appear and to present evidence; 4) the opportunity to question adverse witnesses; and 5) notice of the right to be represented by counsel. FSM v. William, 16 FSM Intrm. 4, 10 (Chk. 2008).

[16 FSM Intrm 7]

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COURTíS OPINION

DENNIS YAMASE, Associate Justice:

     This comes before the court on the defendantís motion to stay the revocation of his probation pending appeal. The defendant, Petewen William a/k/a Jessy William, seeks to be permitted to withdraw his oral agreement not to contest the revocation of his probation or, in the alternative, to be ordered, pending the resolution of his appeals of the revocation, to remain under the home and business detention he is currently subject to.

I.

     On November 28, 2007, the State Justice Ombudsman filed his notice of Defendantís Non-compliance on Release Condition in Criminal Cases No. 2004-1504, 2004-1505, 2004-1506, 2004-1507, and 2004-1508. The court considered that filing to be a motion to revoke the defendantís probation in each of those cases and set a hearing on whether to revoke the defendantís probation release. At Williamís request, the hearing was continued more than once. (William was not incarcerated during this time.) At the May 19, 2008 hearing, the parties announced orally that before the hearing they had agreed that William would not contest the motion to revoke and that they would jointly recommend that Williamís probation be revoked for twenty days, to be served on ten consecutive weekends, starting June 6, 2008. The court elicited a factual basis for the revocation from the parties and informed William that the court was not bound by their agreement. Since this was Williamís second probation violation and since after his first violation his probation had been revoked for twelve weeks, the court then revoked Williamís probation in each case for a period of twelve months, to be served concurrently, and ordered William to report to jail by 5:00 p.m., May 22, 2008.

     On May 22, 2008, William filed his Notice of Appeal and Request for Release and Stay of Sentence. After a hearing on May 22, 2008, the court asked the parties to brief the matter of the requested stay, temporarily stayed the revocation, and, by the partiesí agreement, ordered that, while the stay motion was being considered, William would be confined to his home and to his adjacent store, market and gas station businesses, except that on Sundays he could leave to attend mass. The government filed its brief on May 29, 2008. William filed his on May 30, 2008 and he filed a further reply brief on June 4, 2008. The court heard argument on June 5, 2008.

II.

     William contends that since the court did not warn him that if the court did not accept his "plea bargain" on the revocation motion he could not withdraw his "guilty plea" and proceed to "trial" on the revocation, he must be permitted to withdraw his "guilty plea" and go to "trial." This warning would have been required under Chuuk State Supreme Court Criminal Procedure Rule 11, the U.S. Federal Rules of Criminal Procedure Rule 11, and a previous version of FSM Criminal Procedure Rule 11, all of which govern the procedure for taking an accusedís plea to criminal charges.

     The U.S. federal circuit courts of appeal that have ruled on the issue have all held that Rule 11 does not apply to hearings on the revocation of probation or supervised release. United States v.

[16 FSM Intrm 8]

Pelensky, 129 F.3d 63, 67 (2d Cir. 1997); United States v. Rapert, 813 F.2d 182, 184-85 (8th Cir. 1987); United States v. Stehl, 665 F.2d 58, 59-60 (4th Cir. 1981); United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. Unit B 1980); United States v. Segal, 549 F.2d 1293, 1296 (9th Cir. 1977). "Rule 11 on its face applies only to the procedures a court must follow Ď[b]efore accepting a plea of guilty or nolo contendere.í" Pelensky, 129 F.3d at 67. "The rule is addressed to Ďthe taking of a plea, not the imposition of sentence or the revocation of probation.í" Id. at 68 (quoting Segal, 549 F.2d at 1296).

     A "[p]robation revocation . . . is not a stage of a criminal prosecution, but does result in the loss of liberty. Accordingly . . . a probationer is entitled to a preliminary and a final revocation hearing . . . ." Gagnon v. Scarpelli, 411 U.S. 778, 783, 93 S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656, 661-62 (1973). The due process concerns in a Rule 11 plea hearing do not apply with equal force to the context of a revocation of probation or supervised release. Pelensky, 129 F.3d at 68.

     At a revocation hearing,

[n]ot only is a voluntariness colloquy not required by Rule 11 or Boykin [v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)] before a court may accept a defendantís admission of supervised release violations, but such a formal colloquy would be ill suited to the context of supervised release proceedings. In contrast to the adversarial setting that characterizes the offering of a guilty plea, a revocation of supervised release proceeding features the involvement of a parole officer, who is responsible for representing the defendantís best interests to the greatest extent possible consistent with the welfare of the community. . . . "To superimpose formalistic procedures" such as a Rule 11 colloquy onto this context, however much it may be sound practice for judges to elicit some indication of voluntariness for the record, "is neither required by due process nor necessarily conducive to a more effective accomplishment of the goals of probation."

Pelensky, 129 F.3d at 68 (emphasis in original) (quoting Segal, 549 F.2d at 1300) (citations omitted). This is because the admissions to probation violations (such as Williamís) are "not made in the course of a criminal trial and do not give rise to a different statutory offense or to an increase in punishment on the underlying conviction." Segal, 549 F. 2d at 1300. Thus, William, by not contesting the revocation motion and having his probation revoked, would not be punished for any new crime, nor would his punishment be increased, he would only be punished for the crimes he had pled guilty to in Criminal Cases No. 2004-1504 through 2004-2508 and he would be serving the sentence he received

[16 FSM Intrm 9]

for those crimes. See Johns, 625 F.2d at 1176.

      A probation revocation hearing is not analogous to a criminal trial or prosecution and the admission of a probation violation is not the functional equivalent of a guilty plea. Segal, 549 F. 2d at 1300. "The rights which a probationer . . . enjoy[s] during a revocation proceeding are simply not co-extensive with those enjoyed by a defendant during a prosecution for a substantive offense." Stehl, 665 F.2d at 59. For revocation hearings there is no constitutional (or statutory) requirement of a voluntariness colloquy similar to that required under Rule 11. Pelensky, 129 F.3d at 67. A defendant in a probation revocation hearing who admits to probation violations does not have to be informed of the maximum possible sentence because he was already informed of that when he pled guilty to the original offense or before he was sentenced. Rapert, 813 F.2d at 185. Furthermore, a guilty plea "is itself a conviction, ending the controversy. But admissions of probation violations [unlike guilty pleas] do not end the controversy. The judge must still decide the more difficult issue whether the violations warrant revocation of probation." Segal, 549 F.2d at 1298 (citation omitted). "Thus, admissions of probation violations, unlike guilty pleas, do not automatically trigger sentencing." Id.

      Moreover, unlike in a criminal prosecution where it is constitutionally required, the government does not have to prove beyond a reasonable doubt that the probation terms have been violated, and the court may revoke probation if it is reasonably satisfied that the probation terms were violated. FSM v. Kintin, 15 FSM Intrm. 83, 86 (Chk. 2007); FSM v. Phillip, 5 FSM Intrm. 298, 302-03 (Kos. 1992). Nor does the constitutional protection not to be twice placed in jeopardy apply to a revocation hearing because revocation and a criminal prosecution can both be based on the same transaction without implicating double jeopardy concerns. See United States v. Meeks, 25 F.3d 1117, 1122-23 (2d Cir. 1994). And since probation revocation is not a stage in a criminal prosecution, the defendantís privilege against self-incrimination is limited to where his answers might incriminate him in a future criminal proceeding. Rapert, 813 F.2d at 185.

     Accordingly, the court was not required by the rules or by due process to warn William that he would not be able to withdraw his admissions if the court did not follow the partiesí recommendation about the length of probation to be revoked. See Pelensky, 129 F.3d at 69. Nor was the court required to allow him to withdraw his admission when the length of the probation revocation was not to his liking. Id. And a formal waiver of Williamís rights or a Rule 11 style colloquy was not required. Id.

III.

     The revocation or modification of probation is not governed by Rule 11, but by Criminal Procedure Rule 32.1. That rule provides for a preliminary hearing, FSM Crim. R. 32.1(a)(1), and a final revocation hearing, FSM Crim. R. 32.1(a)(2). No preliminary hearing was held for William because a preliminary hearing is only held "[w]henever a probationer is held in custody on the ground that the person has violated a condition of probation or supervised release . . . ." FSM Crim. R. 32.1(a)(1). Since William was not in custody, the May 19, 2008 hearing was a final revocation hearing under Rule 32.1(a)(2).

[16 FSM Intrm 10]

      That rule requires that, unless waived by the person whose probation the government seeks to revoke, that person must be given "(A) written notice of the alleged violation of probation; (B) disclosure of the evidence supporting the charge; (C) an opportunity to appear and to present evidence; (D) the opportunity to question adverse witnesses; and (E) notice of the right to be represented by counsel." FSM Crim. R. 32.1(a)(2). The Justice Ombudsmanís Report of Non-Compliance and its service on defense counsel satisfied the requirement that William be given written notice of the alleged probation violation. The non-compliance report also generally disclosed the evidence supporting the charge. Since a revocation hearing was scheduled before a judge, William had an opportunity to appear and to present evidence. If he had not decided not to contest the revocation at that hearing, he would also have had the opportunity to question adverse witnesses after the government had called and examined them, and William was represented by counsel at the revocation hearing. When William indicated that he would not contest the revocation motion, the court did inform William that it was not bound by the partiesí agreement.

IV.

     But the limited Rule 32.1 rights that William had at a revocation hearing, a revocation hearingís nature, and the inquiryís narrow scope may not have been clear to him. Since the Rule 11 issue had not arisen before and the court had not previously outlined the nature of a probationerís admission during the revocation process, the bar may have been under some misapprehension. The court, therefore, in an abundance of caution and desirous that the parties understand the nature of the process beforehand, hereby vacates its May 19, 2008 revocation order and sets a new revocation hearing for August 20, 2008, at 9:30 a.m., at which time William may either contest the revocation motion, or admit to a probation violation and present evidence in mitigation, or admit to a probation violation and make any recommendation to the court that he sees fit.

      Until the August 20, 2008 hearing is held, William will be subject to his current release conditions he is confined to his home and to his adjacent store, market and gas station businesses at his place in Mechitiw with the exception that on Sunday he may leave at 9:00 a.m. to attend services at his church and he must return to his place no later than 11:30 a.m. each Sunday, each time traveling between his church and home by the most direct route; and during this time he remains on probation on the conditions that he obey all laws to which he is subject, that he not leave Chuuk while on probation without the courtís permission, that he report to the State Justice Ombudsman as directed by the Ombudsman, and that he not possess or consume alcoholic beverages.

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