THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Gilmete v. FSM ,
4 FSM Intrm. 165 (App. 1989)

[4 FSM Intrm. 165]

RAINER GILMETE,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P4-1988
(From Crim. Case No. 1985-514)

OPINION

Argued :  July 29, 1988
Decided:  November 1, 1989

Before:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
     Hon. Judah Johnny, Temporary Justice, FSM Supreme Court*;
     Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court**

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

APPEARANCES:
For the Appellant:         Joseph Phillip
                                        Office of the Public Defender
                                        P.O. Box 218
                                        Kolonia, Pohnpei  96941

For the Appellee:          Randy Boyer
                                        State Attorney
                                        Office of the Attorney General
                                        Kolonia, Pohnpei  96941

*    *    *    *
[4 FSM Intrm. 166]

HEADNOTES
Criminal Law and Procedure - Sentencing
     If a defendant himself is incapable of paying restitution and he has made a request for assistance to his family, the family's bad faith in not paying cannot be imputed to the defendant and result in increased imprisonment.  Gilmete v. FSM, 4 FSM Intrm. 165, 166 (App. 1989).

Constitutional Law - Equal Protection; Criminal Law and Procedure - Sentencing
     Under the equal protection clause of the declaration of rights in the FSM Constitution, indigency alone should not disadvantage an accused in our system of criminal justice.  Gilmete v. FSM, 4 FSM Intrm. 165, 169 (App. 1989).

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The defendant was sentenced to imprisonment, with a part suspended, and to pay restitution.  When the restitution was not paid within the prescribed time, a hearing was held and the court ordered one year's increased imprisonment.  The defendant appeals from the modified sentencing order.

     The question in this case is whether a sentence of imprisonment, with a portion suspended, may be modified to increase the term of imprisonment on the ground of the defendant's failure to pay restitution, in a case in which the defendant has no work release or income and in which the court finds, because of presentencing support from the family of the defendant and because of custom, that the restitution can and must be paid by the family.

     We hold that if the defendant is incapable himself of paying restitution and he has made a request for assistance to his family, the family's bad faith in not paying cannot be imputed to the defendant and result in increased imprisonment.

I.
     Pursuant to a stipulated plea agreement the defendant pled guilty on December 11, 1985 to the crime of murder, committed October 11, 1985.  The agreement provided for a sentence of 12 years, with 6 years suspended on conditions set by the court.  It further provided that the court would decide whether restitution should be imposed.

     For some time before the date of the murder the defendant had been in a training program for mechanics conducted by the Civic Action Team on Pohnpei. The defendant was granted pretrial release and he continued his training.  His lawyer represented to the court at sentencing that the defendant's performance as a trainee was highly commended by the officer in charge of the team, that six months remained in the course, and that the skill being acquired made a job opportunity upon completion very promising.

[4 FSM Intrm. 167]

     The defendant requested that he be able to continue the training.  He said that if he were able to find work after his training, restitution could be paid.

     The trial judge stated that since the length of imprisonment was much less than what he would have himself decided upon, he was not inclined to make the modifications to the sentence that he might have otherwise.

     The court accepted the plea agreement and committed the defendant to imprisonment for 12 years with the final 6 years suspended and the defendant on probation.  The court ordered payment of $2,500 restitution to be paid by the defendant to the parents of the victim within one year.  No provision was made for continued training.

     On October 28, 1987 the defendant appeared before the court on a petition for a modification of sentence filed by the National Justice Ombudsman.  The petition alleged that the restitution had not been paid.  The defendant admitted non-payment.

     The defendant testified at the hearing that he had been confined since sentencing without work release or any income.  In response to court-initiated questions the defendant said he had not asked his family for assistance.  He said that because of the family's financial problems it would be difficult for them to help, and he did not want to involve them.
 
      The court responded by saying, "Mr. Gilmete, under customs, when somebody kills somebody else, that person that did the killing, had to have support from his family, otherwise there is no possible way that he has satisfied the requirements of custom. . .  This court is simply ruling on that custom and it's saying that your family has an obligation, that is the obligation coming from custom, the obligation coming from court order."

     It appears the court was taking judicial notice of a custom.  Neither party asked to be heard on the propriety of taking the notice.  FSM Evid. R. 201(e). The government only noted its own lack of familiarity with the obligation placed on a family by custom.  The defendant stated that the judgment had put no obligation on the defendant to seek his family's help.

     The court concluded the hearing by giving the defendant an additional month during which he was to contact his family and request their help to pay the restitution.

     The matter next came before the court on December 1, 1987.  The defendant testified that he had contacted his father for help in paying the restitution and his father could not help.  Other members of the family knew of the need to pay the restitution, but they could not help either.

     The court found that there had been a violation of the judgment, and that no justification existed for the violation.  The court then added one year of jail time to the original sentence.

[4 FSM Intrm. 168]

     Prior to sentencing the trial court was aware that the family had posted $500 for the defendant's pretrial release, and that money and goods valued at $20,000 had been given, with an apology for the killing, to the family of the victim.  The court stated that this earlier support showed that the defendant had sufficient resources available to him to pay the restitution, that the burden was upon him to justify nonpayment, and that the defendant had failed to meet that burden.  The court found that there had not been a good faith effort to pay the restitution by the defendant and his family.

II.
     The defendant received a modified sentence which added one year to his term of imprisonment.  The modification occurred because he had not paid the restitution and because his family had not paid as custom required.
  
     The proceedings reveal that the defendant himself could not pay.  He had no income or assets and had been imprisoned for 2 years at the time of the modification.  The defendant testified at the October 28, 1987 hearing that he had not asked his family to pay the restitution.

     The court gave the defendant a month in which to do this.  It is undisputed that the defendant did as the court wished and asked his family.  Thus on the date of the modification the defendant could not pay and he had approached his family.

     We consider first the situation of the defendant, apart from his family.  The defendant was sentenced to an additional year of imprisonment because he could not pay.  This raises the question of whether he is receiving the equal protection of the law since his indigency alone is the cause of his imprisonment.

     In the United States the Supreme Court has in many cases taken care that the criminal justice system does not operate to the disadvantage of indigents.  In the case of Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983) the defendant, as a condition of his probation, was ordered to pay a fine and restitution.  He paid the first $200 on time, but because he was laid off his job and could not find other work, he was unable to pay the balance of $550 when it was due.  His probation was revoked and he was sentenced to serve the remaining part of his probationary term in prison.

     This action of revocation was reversed for the failure of the trial court to determine that the defendant "had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist."  Bearden, 461 U.S. at 662, 76 L. Ed. 2d at 226.  The court held that when those factors were not considered and the fine and the restitution were automatically turned into a prison sentence, the defendant was imprisoned solely because of indigency.

     The Declaration of Rights found in the FSM Constitution is patterned

[4 FSM Intrm. 169]

after provisions of the Constitution of the United States.  Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982).  The due process and equal protection clauses of each are shown below:

     FSM Constitution                              U.S. Constitution
     Art. IV, Sec. 3                                    5th Amendment

     A person may not be de-                No person shall...be
     prived of life, liberty,                         deprived of life, liber-
     or property without due                    ty or property, without
     process of law, or denied                due process of law.
     the equal protection of
     the laws.                                    

                                                                 14th Amendment
 
                                                                 No State shall...deny to
                                                                 any person within its
                                                                 jurisdiction the equal
                                                                 protection of the laws.
 
     "In the United States, the federal government's violation of equal protection to any of its citizens is deemed a deprivation of due process of law," Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986).  This result is based on the 14th amendment which forbids state action depriving one of equal protection.  This result need not be the same in the FSM since the equal protection right is not limited to state action.  We acknowledge this difference in the two constitutions, but conclude that it does not affect our reference to United States cases to understand the meaning of the equal protection right.  Afituk, 2 FSM Intrm. at 263.  "As we recognized in Ross v. Moffitt, 417 U.S. at 608-09, we generally analyze the fairness of relations between a criminal defendant and the state under the Due Process Clause, while we approach the question whether the state has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause."  Bearden, 461 U.S. at 665, 76 L. Ed. 2d at 228.

     This view of the equal protection clause of our declaration of rights seems identical with the needs and custom of the Federated States of Micronesia.  We do not believe that there should be a rule other than the one exemplified in Bearden, namely, that indigency alone should not disadvantage an accused in our system of criminal justice.

     In Bearden the United States Supreme Court held that sentencing should not result from non-payment alone, but the court should consider "the reasons for the inability to pay or the propriety of reducing the fine or extending the time for payments or making alternative orders..." 461 U.S. at 674, 76 L. Ed. 2d at 234.

     Given the defendant's poverty and inability to earn the only bad faith is the family's failure to pay.

[4 FSM Intrm. 170]

     We therefore conclude that the modification is not warranted because it rests upon the defendant's indigency alone, and because the finding of lack of a good faith effort to pay was attributable to the family.

     One of the defendant's contentions on appeal is that the court's judicial notice of custom was improper.

     The record shows that both counsel had reservations about this matter.  Even at oral argument before us the counsel for the government was not prepared to take a position on the custom.  It is unfortunate that neither party took advantage of the proper avenue to question the custom the court found.  This would have led to a finding of custom expressed in specific terms.  Nevertheless, it is not necessary to arrive at a decision on this issue in view of our holding on the equal protection question.

     For the reasons stated the modified sentencing order entered December 3, 1987 is reversed, and the matter is remanded to the trial division for further proceedings consistent with this opinion.

     So ordered the 1st day of November, 1989.

*    *    *    *
                                                                                                                                                                                                                                                                                                           
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