CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Chuuk v. William, 16 Intrm. 149 (Chk. S. Ct. Tr. 2008)

[16 FSM Intrm 149]

CHUUK STATE,

Plaintiff,

vs.

JOSEPH WILLIAM and DEO WILLIAM,

Defendants.

CRIMINAL CASE NO. 061-2003

ORDER

Camillo Noket

Chief Justice

Decided: September 29, 2008

 

APPEARANCES:

For the Plaintiff:             Ken Uehara

                                      Assistant Attorney General

                                      Office of the Chuuk Attorney General

                                      P.O. Box 1050

                                      Weno, Chuuk FM 96942

 

For the Defendants:      Gideon Doone

                                      P.O. Box 882

                                      Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure — Right to Counsel

    A defendantís right to counsel extends through any appeal of the trial court decision. It is counselís responsibility, in consultation with his client, to determine where his obligations and duties lie and to determine whether an appeal is a desirable course of action, and proceed accordingly. Chuuk

[16 FSM Intrm 150]

v. William, 16 FSM Intrm. 149, 151 (Chk. S. Ct. Tr. 2008).

Attorney and Client — Withdrawal of Counsel; Criminal Law and Procedure — Right to Counsel

    If counsel seeks to terminate representation after trial but before the appeal, steps must be taken to ensure the clientís rights are protected to the extent reasonably practicable and, even then, notwithstanding good cause for withdrawal, the court may order counsel to continue representation. Chuuk v. William, 16 FSM Intrm. 149, 151 (Chk. S. Ct. Tr. 2008).

Attorney and Client — Withdrawal of Counsel; Criminal Law and Procedure — Right to Counsel

    Counsel may not simply refuse to pursue an appeal, without taking any further action to protect the clientís rights. If counsel concludes that an appeal would not be meritorious, but the client still wishes to pursue the appeal, any withdrawal is conditioned upon the courtís approval. Such approval may be conditioned on counselís filing of an "Anders brief" referring to anything in the record that may arguably support appeal, whereupon the court should only grant withdrawal if it finds the appeal to be frivolous. Counsel may withdraw without the courtís permission only if counsel was appointed solely to act as trial counsel. Chuuk v. William, 16 FSM Intrm. 149, 152 (Chk. S. Ct. Tr. 2008).

Attorney and Client — Withdrawal of Counsel; Criminal Law and Procedure — Right to Counsel

    When the public defender is the attorney of record in this case, unless and until the court recognizes his withdrawal, neither counsel nor his office is relieved of the duty of ensuring adequate representation for the clientís appeal. The trial court may leave to the appellate court any ruling on whether the Public Defenderís office may withdraw its representation of an appellant and what additional steps, if any, may be required before such withdrawal is approved. Chuuk v. William, 16 FSM Intrm. 149, 152 (Chk. S. Ct. Tr. 2008).

Attorney and Client — Disqualification of Counsel

    Model Rule 1.7(b) allows representation of multiple clients if the lawyer reasonably believes his representation will not be adversely affected, and the client consents after consultation. When a joint notice of appeal has already been filed, the trial court will merely note the potential for conflict with respect to the substantive issues on appeal and leave for the appellate court any further resolution of a potential conflict of interest arising from counselís joint representation. Chuuk v. William, 16 FSM Intrm. 149, 152 (Chk. S. Ct. Tr. 2008).

Criminal Law and Procedure — Sentencing — Reduction of Sentence

    A motion for reduction of sentence will be denied for lack of jurisdiction when a notice of appeal has been filed and the motion was not timely filed within 120 days of the entry of conviction. Chuuk v. William, 16 FSM Intrm. 149, 152 (Chk. S. Ct. Tr. 2008).

Criminal Law and Procedure — Sentencing — Reduction of Sentence

    Since a properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court, the trial court is then divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it. Thus, the trial court has no jurisdiction to rule on a motion for reduction of sentence after an appeal has been filed. Chuuk v. William, 16 FSM Intrm. 149, 152 (Chk. S. Ct. Tr. 2008).

Criminal Law and Procedure — Sentencing — Reduction of Sentence

    The standard applied by U.S. federal courts exercising their discretion in Rule 35(b) requests is persuasive. Chuuk v. William, 16 FSM Intrm. 149, 152 n.1 (Chk. S. Ct. Tr. 2008).

Criminal Law and Procedure — Sentencing — Reduction of Sentence

    Since the rules permit the court to reduce a sentence within 120 days after the sentence has

[16 FSM Intrm 151]

been imposed, the court is without jurisdiction to rule on a motion to reduce sentence when it is filed more than 120 days from the date that the orders of conviction were entered. Chuuk v. William, 16 FSM Intrm. 149, 153 (Chk. S. Ct. Tr. 2008).

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COURTíS OPINION

CAMILLO NOKET, Chief Justice:

Background

   1. At trial, defendant Deo William was represented by Gideon Doone. Defendant Joseph William was represented by Steve George from the Kosrae branch of the FSM Public Defenderís Office.

   2. On March 14, 2008, the court entered its judgment of conviction and sentencing order sentencing each defendant to seven years imprisonment with one year to be served on probation.

   3. On April 14, 2008, counsel Doone filed a notice of appeal on behalf of both defendants.

   4. On May 29, 2008, Doone filed a motion for appeal in forma pauperis on behalf of both defendants.

   5. On July 16, 2008, Doone filed a motion seeking a reduction of each defendantís sentence.

   6. On August 7, 2008, the Government filed its opposition to the motion for a reduction contending that the trial court no longer had jurisdiction to rule on the motion once notices of appeal had been filed.

Analysis

    There are two motions before the court: a motion for appeal in forma pauperis and a motion for reduction of sentence, both of which were filed after the notice of appeal. As a preliminary matter that impacts on the assessment of the motion for appeal in forma pauperis, the court notes that it has no record that the public defender sought to withdraw its representation of Joseph William. Neither is there any notice of appearance filed by Doone on behalf of Joseph William. In an affidavit attached to the motion to proceed in forma pauperis, Doone attests that he was compelled to file a notice of appeal on behalf of defendant Joseph William as a result of the public defenderís apparent decision not to pursue an appeal. Doone further attests that Joseph William indicated his desire to pursue an appeal to the public defender at the close of trial. See Aff. Gideon K. Doone (attached to May 29, 2008 motion for appeal in forma pauperis). The court has no other information regarding what, if any, actions were considered or taken by the public defenderís office with respect to any appeal that Joseph William may have wished to pursue.

    A defendantís right to counsel extends through any appeal of the trial court decision. See Chk. Crim. R. 44. It is counselís responsibility, in consultation with his clients, to determine where his obligations and duties lie and to determine whether an appeal is a desirable course of action, and proceed accordingly. In re Sanction of Woodruff, 9 FSM Intrm. 414, 415 (App. 2000). If counsel seeks to terminate representation after trial but before the appeal, steps must be taken to ensure the clientís rights are protected to the extent reasonably practicable and, even then, notwithstanding good cause for withdrawal, the court may order counsel to continue representation. Chk. MRPC R. 1.16 ;

[16 FSM Intrm 152]

see also MRPC 1.16cmt., "Optional Withdrawal"; MRPC 1.16(c).

    Counsel may not simply refuse to pursue an appeal, without taking any further action to protect the clientís rights. If counsel concludes that an appeal would not be meritorious, but the client still wishes to pursue the appeal, any withdrawal is conditioned upon the courtís approval. Id.; Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Such approval may be conditioned on counselís filing of an "Anders brief" referring to anything in the record that may arguably support appeal, whereupon the court should only grant withdrawal if it finds the appeal to be frivolous. Counsel may withdraw without the courtís permission only if counsel was appointed solely to act as trial counsel. See Turner v. North Carolina, 412 F.2d 486 (4th Cir. 1969) (distinguishing Anders v. California).

    The public defender is the attorney of record in this case. Therefore, unless and until withdrawal is recognized by the court, neither counsel nor his office is relieved of the duty of ensuring adequate representation for Joseph Williamís appeal. The court leaves to the appellate court any ruling on whether the Public Defenderís office may withdraw its representation of Joseph William and what additional steps, if any, may be required before such withdrawal is approved.

    Another preliminary matter bearing on the motion to proceed in forma pauperis is Dooneís joint representation of defendants. Chuuk Criminal Rule 44(c) places on the court a burden to promptly address and take necessary measures to address any potential conflicts arising from dual representation. See also Advisory Committee Notes to 1979 amendment of Fed R. Civ. P. Rule 44. Model Rule 1.7(b) allows representation of multiple clients if the lawyer reasonably believes his representation will not be adversely affected, and the client consents after consultation. Kaminanga v. FSM College of Micronesia, 8 FSM Intrm. 438, 440 (Chk. 1998).

    Since a notice of appeal has already been filed, the trial court merely notes the potential for conflict with respect to the substantive issues on appeal and leaves for the appellate court any further resolution of a potential conflict of interest arising from Dooneís joint representation. Once the issue of representation is resolved, then the motion for appeal in forma pauperis may be addressed.

    The motion for reduction of sentence is denied for lack of jurisdiction. The court lacks jurisdiction for two reasons: 1. a notice of appeal has been filed, and 2. the motion was not timely filed. Criminal Rule 35 provides that a reduction of sentence may be requested by motion within 120 days of entry of a conviction, or within 120 days after entry of an order or judgment of the appellate division or denying review of, or having the effect of upholding, a judgment of conviction. Chk. Crim. R. 35(b); FSM v. Akapito, 11 FSM Intrm. 194, 195 (Chk. 2002).

    A properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. The trial court is then divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it. Walter v. Meippen, 7 FSM Intrm. 515, 517 (Chk. 1996) (trial court could not grant order in aid of judgment after notice filed); Election Commír v. Petewon, 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994) (trial court could not grant injunctive relief after notice filed). Although jurisdiction under Rule 35 has not been specifically addressed in FSM case law, U.S. case law consistently holds a trial court is without jurisdiction to rule on a motion for reduction of sentences once a notice of appeal is filed. See e.g., United States v. Mack, 466 F.2d 333 (D.C. Cir. 1972); United States v. Burns, 446 F.2d 896 (9th Cir. 1971); United States v. Claus, 5 F.R.D. 278 (E.D.N.Y. 1946).

[16 FSM Intrm 153]

    The notice of appeals was filed on April 14, 2008. The motion for reduction of sentence was filed on July 16, 2008. As a result of the filing of the notice, the court has no jurisdiction to rule on the motion for reduction. Walter, 7 FSM Intrm. at 517; Election Commír, 6 FSM Intrm. at 498.

    The court also finds that it was without jurisdiction to rule on the motion because it was filed more than 120 days from the date that the orders of conviction were entered. The rules permit the court to reduce a sentence within 120 days after the sentence has been imposed. Chk. Crim. R. 35(b); FSM v. Finey, 3 FSM Intrm. 82, 84 (Truk 1986); FSM v. Faen, 9 FSM Intrm. 416, 417 (Yap 2000). After 120 days from defendantsí conviction, the court no longer has jurisdiction to modify a sentence. Chk. Crim. R. 35(b).

    Here the convictions were entered on April 14, 2006, and the motion for reduction was filed on July 16, 2008. By the courtís calculation, the motion was filed 123 days from the date of conviction. There may be a case where a motion for reduction is timely filed but the court does not make a ruling until after 120 days from the conviction. In such a case, circumstances may warrant that the trial court retains jurisdiction to make a ruling after 120 days from the conviction. Here, however, where the motion was not filed until after the 120 days had already expired, the court never obtained jurisdiction to make a ruling.

Conclusion

    The court finds no conflict in the limited representation Doone has provided to Joseph William for the purpose of his appeal. The court reserves for the judgment of the appellate court whether Dooneís joint representation during the pendency of the appeal is proper or whether the Public Defenderís office will continue its representation or otherwise find representation for Joseph William. Any ruling on either defendantís right to proceed in forma pauperis is also reserved for the appellate court. The court denies the motion for reduction of sentence as the court no longer has jurisdiction. Defendants are not prohibited from filing new motions for reduction of sentence after appeal, according to the requirements of Chuuk Criminal Rule 35.

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Footnotes:

1. The standard applied by U.S. federal courts exercising their discretion in Rule 35(b) requests is persuasive. FSM v. Akapito, 11 FSM Intrm. 298, 300 (Chk. 2002).

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