FSM SUPREME COURT
TRIAL DIVISION
Cite as FSM v. Phillip ,
5 FSM Intrm. 298 (Kos. 1992)

[5 FSM Intrm. 298]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

v.

CANCILIN PHILLIP,
Defendant.

FSM CRIM. 1987-2502

OPINION
 
Honorable Martin Yinug
Associate Justice
FSM Supreme Court
April 17, 1992

APPEARANCES:
For the Plaintiff:          Glenn Jewel
                                     Assistant Attorney General
                                     P.O. Box AG Kosrae
                                     Kosrae, FM 96944

For the Defendant:     Robert Diemer
                                     Kosrae Public Defender
                                     P.O. Box 245
                                     Kosrae, FM 96944

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HEADNOTES
Constitutional Law - Fundamental Rights; Criminal Law
and Procedure - Sentencing
     Revocation of probation of an alcohol dependent person because he consumed alcohol or because of alcohol related offenses for which he was convicted does not constitute cruel and unusual punishment in violation of the Constitution.  FSM v. Phillip, 5 FSM Intrm. 298, 300 (Kos. 1992).

Criminal Law and Procedure - Sentencing
     Even if the defendant had been arrested merely for drinking alcohol the Court would be compelled to return him to prison because the no-drinking condition had been imposed before the Court became aware of the defendant's alcohol dependent condition and because compliance with that condition is fundamental to a proper probation.  FSM v. Phillip, 5 FSM Intrm. 298, 300-01 (Kos. 1992).

Criminal Law and Procedure - Sentencing
     While the Court is interested in the rehabilitation of a defendant, its greater interest is in protecting society at large from illegal conduct.  When a court releases convicted person on probation, it does so at its own discretion.  Probation is a leniency granted by the Court.  It is not a right and revocation of probation should not be thought of as additional punishment.  FSM v. Phillip, 5 FSM Intrm. 298, 301-02 (Kos. 1992).

Appeal and Certiorari; Criminal Law and Procedure - Sentencing
     The issue of whether a defendant actually broke the law or that his arrest was unconstitutional is beyond the scope of a probation revocation hearing.  The issues of whether a conviction is valid and constitutional should be taken to the appropriate court of appeals.  FSM v. Phillip, 5 FSM Intrm. 298, 302 (Kos. 1992).

Criminal Law and Procedure - Parole
     A parole revocation hearing is significantly different than a trial.  Although a court may not act capriciously in revoking probation, there is no need to establish beyond a reasonable doubt that the terms of the probation have been violated.  A court may revoke probation if it is reasonably satisfied that the terms of the probation were violated.  FSM v. Phillip, 5 FSM Intrm. 298, 302-03 (Kos. 1992).

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[5 FSM Intrm. 300]

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     On March 18, 1992, a hearing was held to determine if the probation of Cancilin Phillip should be revoked.  The hearing was scheduled in response to a petition filed by the Justice Ombudsman of Kosrae State.  Mr. Phillip, while on conditional probation, twice violated the terms of that probation by committing two separate criminal acts.  Mr. Phillip was convicted of consuming alcoholic beverages without a drinking permit in violation of Kosrae Code 13.517(2) and of being drunk and disorderly in violation of Kosrae Code 13.504.  Both of these convictions indicate that Mr. Phillip also violated a second condition of his probation which stipulates that he shall not consume any alcohol while on probation.

     On the day of the March 18 hearing, counsel for the defendant filed a brief in opposition to the revocation of probation.  In the interest of  justice and to allow this Court to consider all of the relevant issues thoroughly, the government was given until March 31, 1992 to file a response to defendant's brief.  Defendant was then given until April 3, 1992 to file a reply.  After considering the arguments made at the March 18 hearing and reviewing all of the briefs, this Court concludes that the probation of Cancilin Phillip should be temporarily revoked and that he should be returned to prison for a period of two months.

DISCUSSION
     Defendant first argues that he is alcohol dependent and that revoking his probation because he consumed alcohol would be unjust.  Defendant has submitted a letter from Dr. Lance Dale in which Dr. Dale states that Mr. Phillip is alcohol dependent.  (Attached as exhibit A to defendant's brief in opposition.) Defendant argues that revoking his probation because he consumed alcohol or because of the alcohol related offenses for which he has been convicted is, in effect, punishing him for actions over which he has no control.  He argues that this would constitute cruel and unusual punishment in violation of the Constitution of the Federated States of Micronesia.  This Court disagrees.

     If this were a case where the defendant had been arrested merely for consuming alcohol, the defendant's argument would cause this Court some concern.  Even in such a case, however, this Court would feel compelled to return Mr. Phillip to prison for the violation of his probation restrictions.  This is so for two reasons.  First, the sentence was handed down and the conditions imposed before the Court became aware of Mr. Phillip's condition.  Thus, the Court did not knowingly impose a condition upon the defendant which he was predestined to violate.

     In their respective briefs, both parties have cited the case State v. Oyler, 436 P.2d 709 (Idaho 1968).  At the outset, this Court recognizes that

[5 FSM Intrm. 301]

in cases where an issue before this Court has not been addressed by the case law of the FSM and cannot be resolved by the customary or traditional laws of Micronesia, it is appropriate to turn to the case law of the United States and of other jurisdictions for guidance.  Semens v. Continental Airlines, Inc. (I), 2 FSM Intrm. 131, 140-41 (Pon. 1985).  In Oyler, the Idaho Supreme Court stated that it would be unjust to require a person who is known to be addicted to alcohol to abstain from drinking as a requirement of his probation.  Oyler, 436 P.2d at 712. As previously stated, however, this Court did not know of Mr. Phillip's condition at the time of sentencing.  Further, Mr. Phillip was apparently unaware of his illness. He did not object to the condition at the time of his sentencing or at the time of his release on probation.

     Second, as the court in Oyler recognized, even if it is impossible for the convicted person to abstain from drinking alcohol, if compliance with that condition is fundamental to a proper probation, the court may revoke the probation.  Id. at 713.  This Court has an obligation to the community it serves.  If this Court were, as Mr. Phillip suggests, to remove the requirement that he abstain from alcohol and then allow his probation to continue, the Court would be placing the community at risk.  The reason this Court regularly requires probationers to abstain from consuming alcohol is an obvious one.  Young people in Micronesia, as in other parts of the world, have tendency to get in trouble and to break the law while under the influence of alcohol.

     This Court is interested in the rehabilitation of Mr. Phillip.  Its greater interest, however, is in protecting society at large from illegal conduct.  Mr. Phillip's probation conditions are intended to insure that society at large does not suffer because of Mr. Phillip's probation.  It is important to remember that Mr. Phillip was convicted of sexual assault and had his freedom restricted for a period of five years.  When this Court releases convicted persons on probation, it does so at its own discretion.  Probation is a leniency granted by the Court.  Mr. Phillip, therefore, was not convicted because of his status as an alcohol dependent and is not being punished because of his status.

     Assuming that Mr. Phillip is alcohol dependent and has, as he asserts in his briefs, no control over his actions, this Court would be derelict in its duty to the citizens of this country if it were to simply allow Mr. Phillip his freedom without first obtaining some assurance that Mr. Phillip will behave himself.  If this Court simply removes the abstention provision and then requires Mr. Phillip to attend Alcoholics Anonymous meetings, the Court will be left with no recourse should Mr. Phillip stop attending the meetings and begin drinking.  With this in mind, the abstinence condition shall remain in effect and Mr. Phillip, as outlined in this Court's April 8, 1992 order, will be encouraged to participate in a self help program for alcoholics.

     Mr. Phillip has a drinking problem.  He has a history of breaking the law when he drinks.  This Court does not think it is cruel or unusual to

[5 FSM Intrm. 302]

require Mr. Phillip to abstain from alcohol and to encourage him to attend AA meetings while he is on probation.  Again, probation is an act of leniency by the Court.  It is not a right and the revocation of probation should not be thought of as additional punishment.  In this case, the conditions of the probation serve Mr. Phillip as well as the community at large.

     Aside from his consumption of alcohol, Mr. Phillip violated the terms of his probation by breaking the laws of Kosrae State.  Mr. Phillip was convicted of two separate offenses.  Based on these convictions alone, this Court is justified, and indeed obligated, to revoke the probation.  Even is this Court accepted the defendant's argument that his probation should not be revoked because of his drinking, which it does not, these convictions are much more damaging to his cause.  It is one thing to be unable to control one's desire to consume alcohol and be driven by these desires to drink.  It is another thing entirely to drink in a public place in an illegal and disorderly manner.  The convictions are, therefore, a separate and legitimate ground on which the probation should be revoked.

     Finally, counsel for Mr. Phillip argues that this Court erred by refusing to allow certain witnesses to be examined at the revocation hearing.  Counsel argues that this refusal violated Mr. Phillip's due process rights.  This Court disagrees.

     Pursuant to this Court's Rules of Criminal Procedure, Mr. Phillip was granted an opportunity to present evidence and witnesses for the purpose of disputing the allegations that he violated the terms of his probation.  See FSM Crim. R. 32.1(2).  This Court refused to allow certain witnesses to testify when it became clear that their testimony was not relevant.

     Through an offer of proof made by counsel for Mr. Phillip, it was clearly established that the witnesses in question were called by the defendant in order to raise the question of whether Mr. Phillip actually broke the law and to raise the possibility that Mr. Phillip's arrest was unconstitutional.  These issues are significantly beyond the scope of a probation revocation hearing.  See United States v. Lustig, 555 F.2d 751 (9th Cir. 1977).

     Mr. Phillip was convicted by a state court in Kosrae.  Counsel for defendant now asserts that the FSM Supreme Court must determine that the convictions were constitutionally valid before revoking probation.  That, however, is not the role of this Court or of a revocation hearing.  The issue of whether the convictions were valid and constitutional should be taken to the appropriate court of appeals.

     It is important to note, however, that even if the convictions were overturned by an appeals court before the revocation hearing took place, this Court could still revoke the probation of Mr. Phillip.  A parole revocation hearing is significantly different than a trial.  Although a court may not act capriciously in revoking probation, there is no need to establish beyond a

[5 FSM Intrm. 303]

reasonable doubt that the terms of the probation have been violated.  This Court believes that it is authorized to revoke probation if it is reasonably satisfied that the terms of the probation were violated.  See United States v. D'Amato, 429 F.2d 1284 (3rd Cir. 1970).  The Court is satisfied that the burden of proof was met and that the terms of the probation were violated.  Accordingly, the probation of Cancilin Phillip is revoked pursuant to the terms of this Court's April 8, 1992 order.

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