For the Plaintiff:   Paliknoa Welly, trial counselor

                                 State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Lelu, Kosrae    FM   96944

For the Defendant:   Harry A. Seymour, Esq.

                                      Office of the Public Defender

                                      P.O. Box 245

                                      Lelu, Kosrae   FM   96944

     Kosrae statute provides that upon revocation of probation the court may impose a sentence which it may have initially imposed if the court had not suspended imposition of sentence. Kosrae v. Palik, 13 FSM Intrm. 187, 189 (Kos. S. Ct. Tr. 2005).

     Under Kosrae state law, aggravated assault is classified as a category one felony, which carries a maximum sentence of imprisonment of ten years. Kosrae v. Palik, 13 FSM Intrm. 187, 189 (Kos. S. Ct. Tr. 2005).

YOSIWO P. GEORGE, Chief Justice:

     Plaintiff filed a Motion to Revoke Suspended Sentence and Request for Expedited Hearing on March 14, 2005. Plaintiff’s Motion to Revoke Suspended Sentence was heard on March 23, 2005. Paliknoa Welly, State Prosecutor, appeared for the Plaintiff. Defendant was represented by Harry Seymour, Public Defender. Two witnesses testified at the hearing on behalf of the Plaintiff: Cynthia C. Jim and Narieta Kiobu Palik.

     Defendant was serving a suspended sentence of five years for conviction of one count of the offense of aggravated assault. Defendant was subject to conditions of probation as set forth in the Sentencing Order entered on December 9, 2004. After hearing from the parties and the witnesses, and consideration of all the evidence presented at the hearing, I found that the Defendant had violated his probation conditions. I revoked the Defendant’s probation and remanded him to serve the remaining term of his sentence incarcerated at the Kosrae State Jail. This Order sets forth my findings and reasoning.

     On the morning of January 30, 2005, the Defendant approached several women at Mutunluk, Lelu. Cynthia C. Jim and Narieta K. Palik were two of the women sitting together on that morning. Defendant approached the women and demanded that Cynthia C. Jim leave with him. Cynthia C. Jim refused to leave with the Defendant. Cynthia C. Jim did not welcome the Defendant’s request and had no prior relationship with the Defendant. Defendant then grabbed Ms. Jim by the hair and began dragging her away. A short while later, Defendant finally released his hold on Ms. Jim and walked away. Defendant’s actions upon Ms. Jim were made with force in an attempt to do bodily harm to Ms. Jim. Defendant’s actions constitute assault and battery, in violation of Kosrae State Code, Section 13.303, and are violations of his conditions of probation.

     The Sentencing Order required the Defendant to pay a fine of $100, in the form of local produce to be provided to the Kosrae State Jail by January 9, 2005. Defendant failed

to pay the fine and failed to provide the local produce as required. Defendant’s failure to pay the fine or provide the produce by the due date also constitutes a violation of his conditions of probation.

A.  Defense Counsel’s Relationship to Cynthia C. Jim.

     During the testimony of Cynthia C. Jim, Defendant’s counsel recalled that he was second cousin to Ms. Jim. Defendant then raised the issue of whether this relationship constituted in a conflict of interest which then prohibited Mr. Seymour from representing the Defendant in this proceeding. A short recess was held to consider the newly discovered situation.

     The Court carefully reviewed the documents filed in this matter. The Plaintiff filed its Motion to Revoke Suspended Sentence on March 14, 2005, nine days prior to this hearing. The Statement of Facts alleged in the Motion identified Cynthia C. Jim as the alleged victim in this matter. See Plaintiff’s Motion at 1-2, paras. [2], [3]. [4] and [7]. Furthermore, the witness statements of Narieta K. Palik, Cynthia C. Jim and Meriam Soloman were attached to the Motion as Exhibit B, all of which identified Cynthia C. Jim as the victim in the subject incident. Finally, the Police Incident Report, which also identified Cynthia C. Jim as the victim, was also attached to the Motion. Defendant was given notice of the identity of the victim as Cynthia C. Jim, through Plaintiff’s Motion and Exhibits at least nine days prior to this hearing. Despite receiving ample notice, Defendant did not inform this Court of the potential conflict of his counsel with the victim, due to family relationship. Defendant’s counsel’s delayed recognition of his second cousin, Ms. Jim, and delayed notice to the Court suggests that counsel’s relationship to the victim does not result in a conflict of interest which would require counsel’s disqualification from this matter. This Court also retains its authority and discretion to deny withdrawal of counsel in the middle of a criminal proceeding. FSM v. Jano, 9 FSM Intrm. 470a, 470b (Pon. 2000).

     Upon reconvening after the recess, the Defendant waived any conflict of interest between his counsel and the victim, Cynthia C. Jim. Defendant’s waiver of the potential conflict of interest, after questioning by the Court, was accepted by the Court and the hearing was continued.

B.  Discretion of Court to Modify Sentencing

     Following announcement of my findings in this matter and revocation of the Defendant’s probation, the Defendant reminded the Court of its discretion to modify sentencing under Kosrae State Code, Section 6.4909. Section 6.4909(3) provides that "[u]pon revocation of probation the Court may impose a sentence which it may have initially imposed if the Court has not suspended imposition of sentence." In this case, the Defendant entered a guilty plea for, and was convicted of one count of Aggravated Assault, in violation of Kosrae State Code, Section 13.302. Aggravated Assault is classified as a category one felony, which carries a maximum sentence of imprisonment of ten years. Pursuant to the sentencing recommendations made in the Plea Agreement, the Defendant was sentenced to five years imprisonment, all suspended with conditions of probation, and payment of a fine. During the sentencing hearing, there was extensive discussion regarding payment of the fine by local produce, instead of cash funds, to accommodate the Defendant’s difficulty in paying the fine in cash.

     Defendant was verbally informed at the sentencing hearing that his violation of the probation conditions may result in revocation of probation and remand to the Kosrae State Jail for the remainder of his term of imprisonment. The Sentencing Order also clearly gives notice of remand to jail in case of violation of probation conditions.

     Defendant agreed verbally and by signature to the recommended sentencing of five years term in the Plea Agreement executed on December 6, 2004. Defendant further was notified verbally and in writing of the consequences for violation of the conditions of probation. Finally, Defendant did not present any grounds in support of his request to modify the sentencing order. Accordingly, the Court declines to modify the term of imprisonment imposed in the Defendant’s Sentencing Order.

     Based upon the evidence presented at the hearing, I find by clear and convincing evidence that Defendant did commit assault and battery upon Cynthia C. Jim, in violation of Kosrae State Code, Section 13.303. I further find by clear and convincing evidence that the Defendant did not pay the fine imposed in the Sentencing Order.

     I conclude that the Defendant did violate the conditions of his probation imposed in the Sentencing Order. Defendant’s suspended sentence is hereby revoked. Defendant is remanded to the Kosrae State Jail to serve his remaining term of imprisonment.

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