THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Plais v. FSM ,
4 FSM Intrm. 153 (App. 1989)

[4 FSM Intrm. 153]

HARRY PLAIS, RODNEY EDWIN,
PETER THOMSIN,
Appellants,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

FSM APPEAL NO. P5-1989
P6-1989
P8-1989

MEMORANDUM OF DECISION

Argued:  October 18, 1989
Decided:  October 18, 1989

Before:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Arthur Ngiraklsong, Temporary Justice, FSM Supreme Court*
     Hon. Judah Johnny, Temporary Justice, FSM Supreme Court **

     *Associate Justice, Supreme Court, Republic of Palau
     **Associate Justice, Pohnpei State Supreme Court

[4 FSM Intrm. 154]

APPEARANCES:
For the Appellants:     Mike Powell
                                      Chief Public Defender
                                      Office of the Public Defender
                                      Federated States of Micronesia
                                      Pohnpei, FM  96941

For the Appellee:        Daniel Berman (argued)
                                      Acting State Attorney
                                      Office of the State Attorney
                                      Department of Justice
                                      Pohnpei, FM  96941

                                      Randy Boyer (on the briefs)
                                      State Attorney
                                      Pohnpei State Government
                                      Pohnpei, FM  96941

*    *    *    *

HEADNOTES
Criminal Law and Procedure - Sentencing
     Both cumulative and concurrent sentencing are logically not mentioned in 11 F.S.M.C. 1002, because they are not alternatives to the punishments specified by the separate criminal statutes, but rather the standards from which the "authorized sentences" of 11 F.S.M.C. 1002 deviate.  Plais v. FSM, 4 FSM Intrm. 153, 155 (App. 1989).

Criminal Law and Procedure - Sentencing
     The authority to impose consecutive punishments for different crimes can be understood to be within the powers which the legislature has implicitly granted to the court in its overall scheme of criminal law; since each crime in the criminal code carries with it a separate and distinct punishment, it is logical to infer that when a person commits multiple crimes arising from more than one act, Congress intended that person to be punished separately for each offense. Plais v. FSM, 4 FSM Intrm. 153, 155 (App. 1989).

*    *    *    *

COURT'S OPINION
PER CURIAM:
     The question presented in these consolidated appeals is whether the FSM Supreme Court Trial Division abused its discretion in imposing consecutive sentences for separate crimes, in the absence of explicit statutory authority to do so.

[4 FSM Intrm. 155]

I.
     The appellants were each convicted of having escaped from the Pohnpei State Jail, in violation of 11 F.S.M.C. 505, while serving prison sentences for previous crimes.  The trial court imposed additional sentences on the three defendants, ordering that they be served consecutively to the original terms of imprisonment which they were already serving at the time of their escape. Each of the defendants has appealed the sentence of the trial court, asserting that in the absence of clear legislative authorization, the court does not have the power to impose consecutive sentences.

     After hearing oral arguments, this Court rendered its decision orally, affirming the trial court's discretion to impose consecutive sentences in this case.  This memorandum briefly sets forth the reason for that decision.

II.
     There is no statutory or case law in the Federated States of Micronesia which explicitly addresses the issue of consecutive sentences, also known as cumulative sentences.  The provision of the criminal code under which the defendants were convicted of escape, 11 F.S.M.C. 505, does not specify whether the punishments are to be imposed consecutively or concurrently to the previous punishment, or whether either is within the discretion of the court.  The general section on authorized sentence, 11 F.S.M.C. 1002, specifies a wide range of punishments that are available to the court, including fines, probation, suspended sentences, restitution and community service.  This statute, however, specifically refers to measures that are allowed in the alternative to the standard terms of imprisonment fixed by the individual provisions for each different crime. Thus, 11 F.S.M.C. 1002 logically makes no mention of cumulative or concurrent sentencing either; they are not alternatives to the punishments specified by the separate criminal statutes, but rather the standards from which the "authorized sentences" of 11 F.S.M.C. 1002 deviate.

     The authority to impose consecutive punishments for different crimes, then, can be understood to be within the powers which the legislature has implicitly granted to the court in its overall scheme of criminal law.  In the criminal code, each crime carries with it a separate and distinct punishment.  It is logical to infer, therefore, that when a person commits multiple crimes arising from more than one act, Congress intended that person to be punished separately for each offense.  As one court of appeals in the United States has remarked, "consecutive sentencing is an appropriate mechanism for imposing distinct punishments for separate criminal acts...[and] a defendant has no right to have concurrent sentences imposed for two totally unrelated offenses."  United States v. Olivares-Martinez, 767 F.2d 1135 (5th Cir. 1985).1

[4 FSM Intrm. 156]

That the crimes in question here are entirely distinct makes this situation quite unlike that in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984), where the court considered the validity of multiple punishments for a single wrongful act.  Thus, the presumption of lenity applied in Laion is not appropriate here.

     Appellants do not submit that the failure to expressly authorize cumulative punishments requires the court to resort only to concurrent ones, but they do argue that sentences must begin when imposed, and that they cannot be imposed to be served at a later date without statutory authorization.  However, legislative silence does not make this view any more likely than that allowing consecutive sentences; it seems less persuasive to assume that Congress intended all sentences to start immediately than to assume that it intended to attach separate punishments to separate wrongs.  The implication that Congress intends to permit cumulative sentences when it creates distinct punishments for separate acts eliminates any ambiguity which could arise from legislative silence on this issue.

     This is particularly true of the case at hand, for it would be unreasonable to assume that Congress did not intend to create a separate and additional punishment for prisoners who escape  from their confinement.  Prohibiting cumulative sentences for escape would in most cases allow the prisoner to avoid punishment for the attempt to escape, and thus vitiate the deterrent force which Congress no doubt had in mind in establishing the penalties for escape.

     The decision of the trial court to impose consecutive sentences on each of the three defendants is therefore affirmed.

     So ordered the 19th day of October, 1989.

*    *    *    *

Footnote:

1.  In the United States generally, there is no question that the power to impose consecutive sentences is within the discretion of the courts unless constrained by the legislature.  See, e.g., United States v. Wylie, 625 F.2d 1371 (9th Cir. 1980). Most often, that authority is granted to the courts as part of an explicit statutory sentencing scheme.  In the absence of such express authorization, U.S. courts still consider themselves to have the power to impose cumulative sentences. Some courts there have found consecutive sentencing to arise from their inherent powers.  See, e.g., State v. Jones, 440 P.2d 371 (Ore. 1968).  More commonly, they have found their authority to spring from the implied intent of the legislature, as this court does now.  See, e.g., Garret v. United States, 471 U.S. 773, 793-94 105 S. Ct. 2407, 2419, 85 L. Ed. 2d 764, 781 (1985); Fierro v. MacDougal, 648 F.2d 1259, 1260 (9th Cir. 1981).  Our research, as well as that of the parties, did not come across a single case in the United States where a trial court's use of consecutive sentences, even in the absence of explicit statutory authority, was held to be invalid exercise of discretion.
                                                                                                                                                                                                                                                                                                           
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