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

[16 FSM Intrm. 149]

CRIMINAL CASE NO. 061-2003

Decided: September 29, 2008

APPEARANCES:

HEADNOTES

Criminal Law and Procedure – Right to Counsel

A defendant's right to counsel extends through any appeal of the trial court decision. It is counsel's 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 client's 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 client's 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 court's approval. Such approval may be conditioned on counsel's 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 court's 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 client's appeal. The trial court may leave to the appellate court any ruling on whether the Public Defender's 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 counsel's 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).

COURT'S 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 Defender's 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 defendant's 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 defender's 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 defender's office with respect to any appeal that Joseph William may have wished to pursue.

A defendant's right to counsel extends through any appeal of the trial court decision. See Chk. Crim. R. 44. It is counsel's 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 client's 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;

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

Counsel may not simply refuse to pursue an appeal, without taking any further action to protect the client's 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 court's 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 counsel's 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 court's 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 William's appeal. The court leaves to the appellate court any ruling on whether the Public Defender's 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 Doone's 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 Doone's 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 Comm'r 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).¹

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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 Comm'r, 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 defendants' 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 court's 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 Doone's joint representation during the pendency of the appeal is proper or whether the Public Defender's office will continue its representation or otherwise find representation for Joseph William. Any ruling on either defendant's 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.

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).