Cite as Loch v. FSM,
2 FSM Intrm. 234 (App. 1986)

[2 FSM Intrm. 234]


APP. No. T2-1985
(From:  Crim. No. 1982-1509)

(oral argument waived)
Decided August 25, 1986
     Hon.  Edward C. King, Chief Justice, FSM Supreme Court
     Hon.  Mamoru Nakamura, Temporary Justice, FSM Supreme Court*
     Hon.  Jose Dela Cruz, Temporary Justice, FSM Supreme Court**

     *Chief Justice, Republic of Palau Supreme Court
     **Judge, Commonwealth Trial Court, Northern Mariana Islands

     For the Appellant:                Gary L. Marr
                                                   Public Defender
                                                   Office of Public Defender
                                                   Truk, FSM 96942

     For the Appellee:                 Maile Huvar Bruce
                                                   Assistant Attorney General
                                                   Office of the Attorney General
                                                   Truk, FSM 96942
[2 FSM Intrm. 235]

*       *        *        *

     The appellate process contemplates that any issue brought before an appellate court will first have been ruled upon by a trial judge.  Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986).

Constitutional Law - case or dispute
     Where there is no indication that the sentencing order in question is an

[2 FSM Intrm. 235]

attempt to modify or affect the powers of the Director of Public Safety,
absent indications that the order prevents the director from doing anything he wishes, the order creates no case or dispute as to the scope of the director's powers.  Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986).

*       *       *        *

EDWARD C. KING, Chief Justice:
     This appeal, challenging the trial court's order modifying Robert Loch's earlier 12-year sentence, is grounded on an assumption that the modification somehow restricts rather than expands Loch's opportunity for work release and visitation. We find this premise erroneous.  Loch's rights are in no way diminished by the modification appealed from and the appeal must be dismissed.

I.  Background
     This is the second time defendant has attempted to bring this case before the Court's appellate division.  The first was an appeal from his conviction for murder. Loch v. FSM (I), 1 FSM Intrm. 566 (App. 1984). At that time the only sentencing order affecting Loch was one dated October 21, 1983, which simply said "the defendant is hereby committed to the custody of the Director of Public Safety, Truk State, or his authorized representative for imprisonment for a period of 12 years." In affirming Loch's conviction, we noted the absence of training for municipal police officers in Truk and suggested that review of the sentence might be in order.  Loch v. FSM(I), 1 FSM Intrm. at 578.

     Loch subsequently filed a motion for modification of sentence.  Responding to that motion, the trial court held to its earlier 12 year sentence but, on August 8, 1985, added the following modifications:

     It is ordered that upon the service of 7 years this matter may come before the court upon motion of the defendant for weekend visitation with his family or for  work release, which the court may grant if it considers it appropriate after a consideration of all circumstances.

     It is ordered that upon the service of 9 years of the sentence this matter may come before the court upon motion by the defendant that the balance of the sentence be served on probation, and the court may grant such relief if it seems appropriate in the light of all circumstances.

II.  Legal Analysis
     Loch says this August, 1985 order effectively shuts him out of any work

[2 FSM Intrm. 236]

release or off-island family visitation for seven years."  App. brief at 11.  Based upon that premise, he argues that the order is improper because the power to provide for visitation and work release should be in the Public Safety Director, not the court.

     We can not accept Loch's premise.  The 1985 order merely assures that the judiciary may consider Loch for work release after seven years and for probation after nine years.  The order makes no mention of the power of the Director of Public Safety to provide for work release during the first seven years and does not purport to alter the 1983 order as to the nature of Loch's imprisonment during those years.  Whatever were Loch's rights and restrictions during the first seven years under the 1983 order, they are unchanged by the 1985 order.  It is plain from the tenor of the modifications that the August, 1985 order was intended only to reduce, in no way to increase, the severity of the sentence.

     It is conceivable that Loch desires a ruling as to how much power the Director of Public Safety does have to establish work release or visitation programs. There are two independent reasons why the answer to that question may not be obtained in this appeal.

     First, Loch did not present to the trial court any questions or arguments concerning powers of the Director of Public Safety to permit work release or visitation, and the trial court did not consider that question.

     The appellate process contemplates that any issue brought before an appellate court will first have been ruled upon by a trial judge.  This normally means that the parties will have presented their arguments at least once and the trial judge will have made a ruling and given reasons in support of the decision.  The arguments on appeal should be sharpened products of those earlier processes.  In making its decision, the appellate court will have the benefit of those more precisely honed appellate arguments and the reasoning of the trial court judge.  These various steps are not merely incidental obstacles, but are crucial to the appellate process itself.

     To consider on appeal a question not raised at the trial level would deprive the appellate process of its normal disciplined focus.  In this case, the problem is exacerbated by the quality of the brief written on Loch's behalf.1  No argument is cogently presented in the brief and we would have to grope and speculate in an attempt to discern what Loch was really trying to accomplish in filing his appeal. The result could be a ruling on an issue which no party intended to present.2

     There are delicate questions of separation of powers and federalism involved in the issue we surmise Loch wishes to present, and their resolution could have profound implications for the criminal justice system.  "It is imperative that we proceed meticulously in these cases of first impression to establish proper approaches in conformity with normal procedural requirements and to set this Court on the course charted by the framers of the Constitution."  Koike v. Ponape Rock Products Co., 1 FSM Intrm. 496, 500 (Pon.     1984).

     The other consideration mandating dismissal of this appeal is the fact that there is here no case or dispute.  The trial court's order merely assures that the judiciary will consider work release and visitation possibilities for Loch after seven years, and probation after nine years.  The order is silent about the powers of the Director of Public Safety and can not be read as an attempt to modify or affect in any way the powers the director may have.

     There is no showing of a wish by the Director of Public Safety to provide work release or visitation rights for Loch and no indication that he considers himself precluded by the trial court's order from taking any actions which he considers appropriate for Loch.

     We are not determining whether a Director of Public Safety has powers to provide work programs for Loch or any other prisoner beyond those specified in General Court Order 1986-3.  We say only that, in the absence of a concrete case or dispute concerning the scope of those powers, this Court is without jurisdiction to speak on the issue.

III.  Conclusion
     Loch attempts to challenge restrictions which he imagines were imposed by the August, 1985 order.  We do not agree that such restrictions were established by the order and will not engage in speculation as to whether restrictions of that sort would have been proper if they had been imposed.  The appeal must be dismissed.

1. This Court has spoken of the importance of assuring accessibility to the courts.  Semens v. Continental Airlines, Inc. (II), 2 FSM Intrm. 200 (Pon. 1986). In the name of accessibility we have declared ourselves willing to  make allowance for wishful optimism.  Innocenti v. Wainit, 2 FSM Intrm. 173, 188 (App. 1986).  We are compelled to note however that appellant's brief in this case simply does not meet an acceptable standard.  The brief, based on an unexplained, undefended, and erroneous assumption, consists principally of quotes from statutes and cases, with little accompanying analysis or explanation.  Counsel then waived oral argument.  We confess ourselves distressed by this quality of advocacy.

2. The government's brief does not attempt to address directly any argument made by Loch but instead discusses various issues relating to the powers of the executive and judicial branches concerning convicted persons.  As we have already said, Loch does not effectively frame any issue.  For the government to have raised these issues, a cross-appeal would have been required .