FSM 5 Intrm. 032-034

FSM SUPREME COURT

APPELLATE DIVISION

Cite as Yalmad vs. Federated States of Micronesia,

5 FSM Intrm. 32 (App. 1991)

[5 FSM Intrm. 32]

YALMAD,

Appellant,

FEDERATED STATES OF MICRONESIA,

Appellee.

FSM APP. NO. Y2-1990

OPINION

Argued: March 18, 1991

Decided: March 20, 1991

Before:

Hon. Edward C. King, Chief Justice, FSM Supreme Court

Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court*

Hon. Martin Yinug, Temporary Justice, FSM Supreme Court**

*Chief Justice, Republic of Palau Supreme Court

**Associate Justice, Yap State Court

APPEARANCES:

For the Appellant: Robert Coate, Esq.

Public Defender

Federated States of Micronesia

Colonia, Yap State 96943

For the Appellee: Cyprian J. Manmaw, Esq.

Attorney General

Colonia, Yap State 96943

HEADNOTES

Statutes - Construction

The parole statute, Public Law No. 5-24 (5th Cong., 1st Spec. Sess. 1987) does not mandate, but merely authorizes, review of sentences for the purpose of determining eligibility for parole. Yalmad v. FSM, 5 FSM Intrm. 32, 33 (App. 1991).

[5 FSM Intrm. 33]

Criminal Law - Parole

A justice shall request and consider the views of the prosecution, the prisoner and his counsel, the victim or head of the victim's family, and, when requested by the prosecution of the prisoner, such community leaders as clergy and municipal and village leaders when determining a prisoner's eligibility for parole. The justice shall also base his determination upon the prisoner's behavior in prison and any factors indicative of the prisoner's chance for a successful adaptation to community life after release. Yalmad v. FSM, 5 FSM Intrm. 32, 33-34 (App. 1991).

Appeal and Certiorari

An appeal from the decision of the trial judge may be only on the grounds of abuse of discretion resulting from the justice exceeding constraints imposed by the parole statute, Public Law No. 5-24 (5th Cong., 1st Spec. Sess. 1987). Yalmad v. FSM, 5 FSM Intrm. 32, 34 (App. 1991).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

Appellant, Yalmad, having been convicted of murder and sentenced on April 1, 1983 to fifteen years imprisonment, appeals now from the denial of application for parole.

Yalmad objects to the trial court's emphasis in its order of factors already known at the time of sentencing, including earlier acts of violence and unlawful conduct perpetrated by Yalmad, a "history of unpredictable and irrational violence," and "use of alcoholic beverages which leads to violence."

He further contends that the trial court "ignored the rehabilitative aspects" indicated by various statements of persons favoring parole for Yalmad.

The parole statute, Public Law No. 5-24 (5th Cong., 1st Spec. Sess. 1987), to be codified at 11 F.S.M.C. 1401, does not mandate, but merely authorizes, review of sentences. "Any trial justice of the National Courts . . . is hereby authorized to review a sentence he imposed on a prisoner, after the prisoner has served one-third of his sentence . . . for the purpose of determining the eligibility for parole of said prisoner."

If review is undertaken, the justice "shall request and consider the views of the prosecution, the prisoner and his counsel, the victim or head of the victim's family, and, when requested by the prosecution or the prisoner, such community leaders as clergy and municipal and village leaders." The statute adds that, "The justice shall base his determination upon the prisoner's behavior in prison and any factors indicative of the prisoner's

[5 FSM Intrm. 34]

chances for a successful adaptation to community life after release." Any appeal from the decision of the trial judge may be "only on the grounds of abuse of discretion resulting from the justice exceeding constraints imposed by this statute . . . ."

II.

There is no sentencing policy of the FSM Supreme Court calling for artificial inflation of the length of sentences in the expectation that sentences will be routinely adjusted downward in response to petitions for parole. Rather, sentencing decisions are to be individualized, arrived at only after consideration of all pertinent factors, typically including consultation through the office of the justice ombudsman with the categories of persons referred to in Public Law No. 5-24. Sentencing is to be individualized and the overall objective is to make the punishment fit the offender as well as the offense. Tammed v. FSM, 4 FSM Intrm. 266 (App. 1990). "The sentencing court's focus at all times must be on the defendant, the defendant's background and potential, and the nature of the offense." Id.

Thus, the original sentence is to be one which the sentencing court has considered carefully and has concluded fits the offender as well as the offense. Any change in that sentence will not be lightly won by a convicted person seeking parole. A heavy burden is upon the convicted person to persuade the sentencing judge that the "prisoner's behavior in prison and any factors indicative of the prisoner's chances for a successful adaptation to community life after release" are such as to warrant a change in the original sentence.

III.

In responding to the motion for reconsideration, the trial judge stated that he had reviewed the documents submitted by Yalmad and that he did not find sufficient factors present to "indicate a successful adaptation to community life after release can be expected."

Thus it is clear that the trial court was aware of, and applying, the standard prescribed by the statute. The trial judge did not abuse his discretion or exceed constraints imposed by the statute by considering the nature of the defendant's crime and his background, or by weighing that information along with the favorable comments submitted on behalf of Yalmad. All these factors were relevant in determining Yalmad's chances for a successful adaptation to community life after release.

IV.

In considering the petition for parole, the trial court applied the proper standards. We do not find that the trial court either abused its discretion or exceeded statutory constraints. The appeal is therefore dismissed.

* * * *


	FSM SUPREME COURT APPELLATE DIVISION Cite as Yalmad vs. Federated States of Micronesia, 5 FSM Intrm. 32 (App. 1991) [5 FSM Intrm. 32] YALMAD, Appellant, v. FEDERATED STATES OF MICRONESIA, Appellee. FSM APP. NO. Y2-1990 OPINION Argued: March 18, 1991 Decided: March 20, 1991 Before: Hon. Edward C. King, Chief Justice, FSM Supreme Court Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court* Hon. Martin Yinug, Temporary Justice, FSM Supreme Court** Chief Justice, Republic of Palau Supreme Court Associate Justice, Yap State Court APPEARANCES:* For the Appellant: Robert Coate, Esq. Public Defender Federated States of Micronesia Colonia, Yap State 96943 For the Appellee: Cyprian J. Manmaw, Esq. Attorney General Colonia, Yap State 96943 HEADNOTES Statutes - Construction The parole statute, Public Law No. 5-24 (5th Cong., 1st Spec. Sess. 1987) does not mandate, but merely authorizes, review of sentences for the purpose of determining eligibility for parole. Yalmad v. FSM, 5 FSM Intrm. 32, 33 (App. 1991). [5 FSM Intrm. 33] Criminal Law - Parole A justice shall request and consider the views of the prosecution, the prisoner and his counsel, the victim or head of the victim's family, and, when requested by the prosecution of the prisoner, such community leaders as clergy and municipal and village leaders when determining a prisoner's eligibility for parole. The justice shall also base his determination upon the prisoner's behavior in prison and any factors indicative of the prisoner's chance for a successful adaptation to community life after release. Yalmad v. FSM, 5 FSM Intrm. 32, 33-34 (App. 1991). Appeal and Certiorari An appeal from the decision of the trial judge may be only on the grounds of abuse of discretion resulting from the justice exceeding constraints imposed by the parole statute, Public Law No. 5-24 (5th Cong., 1st Spec. Sess. 1987). Yalmad v. FSM, 5 FSM Intrm. 32, 34 (App. 1991). * * * * COURT'S OPINION EDWARD C. KING, Chief Justice: Appellant, Yalmad, having been convicted of murder and sentenced on April 1, 1983 to fifteen years imprisonment, appeals now from the denial of application for parole. Yalmad objects to the trial court's emphasis in its order of factors already known at the time of sentencing, including earlier acts of violence and unlawful conduct perpetrated by Yalmad, a "history of unpredictable and irrational violence," and "use of alcoholic beverages which leads to violence." He further contends that the trial court "ignored the rehabilitative aspects" indicated by various statements of persons favoring parole for Yalmad. I. The parole statute, Public Law No. 5-24 (5th Cong., 1st Spec. Sess. 1987), to be codified at 11 F.S.M.C. 1401, does not mandate, but merely authorizes, review of sentences. "Any trial justice of the National Courts . . . is hereby authorized to review a sentence he imposed on a prisoner, after the prisoner has served one-third of his sentence . . . for the purpose of determining the eligibility for parole of said prisoner." If review is undertaken, the justice "shall request and consider the views of the prosecution, the prisoner and his counsel, the victim or head of the victim's family, and, when requested by the prosecution or the prisoner, such community leaders as clergy and municipal and village leaders." The statute adds that, "The justice shall base his determination upon the prisoner's behavior in prison and any factors indicative of the prisoner's [5 FSM Intrm. 34] chances for a successful adaptation to community life after release." Any appeal from the decision of the trial judge may be "only on the grounds of abuse of discretion resulting from the justice exceeding constraints imposed by this statute . . . ." II. There is no sentencing policy of the FSM Supreme Court calling for artificial inflation of the length of sentences in the expectation that sentences will be routinely adjusted downward in response to petitions for parole. Rather, sentencing decisions are to be individualized, arrived at only after consideration of all pertinent factors, typically including consultation through the office of the justice ombudsman with the categories of persons referred to in Public Law No. 5-24. Sentencing is to be individualized and the overall objective is to make the punishment fit the offender as well as the offense. Tammed v. FSM, 4 FSM Intrm. 266 (App. 1990). "The sentencing court's focus at all times must be on the defendant, the defendant's background and potential, and the nature of the offense." Id. Thus, the original sentence is to be one which the sentencing court has considered carefully and has concluded fits the offender as well as the offense. Any change in that sentence will not be lightly won by a convicted person seeking parole. A heavy burden is upon the convicted person to persuade the sentencing judge that the "prisoner's behavior in prison and any factors indicative of the prisoner's chances for a successful adaptation to community life after release" are such as to warrant a change in the original sentence. III. In responding to the motion for reconsideration, the trial judge stated that he had reviewed the documents submitted by Yalmad and that he did not find sufficient factors present to "indicate a successful adaptation to community life after release can be expected." Thus it is clear that the trial court was aware of, and applying, the standard prescribed by the statute. The trial judge did not abuse his discretion or exceed constraints imposed by the statute by considering the nature of the defendant's crime and his background, or by weighing that information along with the favorable comments submitted on behalf of Yalmad. All these factors were relevant in determining Yalmad's chances for a successful adaptation to community life after release. IV. In considering the petition for parole, the trial court applied the proper standards. We do not find that the trial court either abused its discretion or exceeded statutory constraints. The appeal is therefore dismissed. * * * *