Cite as Yap State v. Googmad, (Yap, 1994)
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Case No. 1993-006 & 013

     Defendant petitioned this court for modification of sentence based on the fact that he is now a parent and there is no one to care for his wife and child on weekends. While the strength of a family is important, the motion to modify defendant's sentence must fail for several reasons. None of those reasons relate to State's counsel assertion that this court is without authority or jurisdiction to do so if the interests of justice would be better served. However, regardless of the language employed by the defendant he is asking for a reduction of sentence, not a modification, which is significant.

     The Yap State Rules of Criminal Procedure; Rule 35(b) gives the defendant 120 days to petition this court for a reduction of sentence, and the court the authority to do so. After the 120 days there is authority in the U.S. Federal Courts that aggravated and unjust circumstances will justify a motion filed after the 120 day limit. (See generally 9 Fed. Proc., L Ed, Criminal Procedure, sec. 22:967-22:974). Further, before the expiration of the 120 day limit Rule 35(b), like the U.S. Federal counterpart that the rule was adopted from, vests virtually

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unlimited power in the court to reduce a sentence. (Federal Procedure Id.)

     Defendant, here, has waited eight months, twice that allowed to file his petition. Reading defendant's petition as one showing aggravating and unjust circumstances sufficient that this court should entertain his current motion, as we must since it is so late, his argument must still fail. Becoming a parent is not such an emergency to allow reduction of sentence.

      Secondly, since no sufficient emergency exists, and assuming that the petition was filed in a timely manner, this court would still deny defendant's request in this case. Defendant was once probated, violated that probation, and then had his original sentence modified so that he would serve only Friday, Saturday and Sunday nights, with other conditions of probation during the week. In that modification order, this court allowed the defendant to petition for review of the modification on or after September 21, 1994, which is now moved to September 28, 1994 due to agreement by all parties that he would be allowed out for the weekend of July 8, 1994 while his wife delivered their first child, adding a weekend to the end of the original sentence. If we grant defendant's petition allow him home weekends his jail term would not be merely reduced, but eliminated completely. It is hard for this court to imagine an aggravating or unjust circumstances sufficient to justify reduction of such a lenient sentence, although one may exist. Besides, the date reserved for review of this case, as discussed above, is just over two months

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from now.
     Thirdly, since the prior modification after defendant violated probation was entered into as an agreement by all parties, a plea bargain, we refuse to review it now. What the defendant agrees and accepts, knowingly and voluntarily, he will be bound by. This should not be read, however, that this court is without the power to so modify such an agreement when the same type of emergency, aggravating, or unjust circumstances discussed above are present. It is the court's interpretation that counsel for the State is under the impression that the court is completely without authority to modify a plea agreement, under any circumstances. Let me remind the State that if this is their position, responses and oppositions to defendant's motions are required, lest the arguments fall on deaf ears.
     Finally, as mentioned before, the technical difference of petitioning for a reduction of sentence vs. a modification of sentence is significant. Rule 35(b) gives the defendant 120 days to petition for a reduction absent aggravating or unjust circumstances, nothing is said regarding a modification that does not amount to a reduction. Since it is in this court's sound discretion to reduce or otherwise modify a sentence before the 120 day time limit has expired, it is also in our sound discretion to allow a modification, not amounting to a reduction, any time good cause is shown. Work release, for example; would not be deemed a reduction, while probation would be. Further, since the State Supreme Court possesses the authority to modify

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the Rules of Court Procedure, the 120 day limit may be changed in the interest of justice, although there is currently no desire to do so.

Dated: 7/17/94
                                   Chief Justice

Received and Filed: 7/15/94

                                   Chief of Clerk Court State of Yap
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