9 FSM Intrm.183-190

FSM SUPREME COURT

APPELLATE DIVISION

Cite as Cheida v. FSM,

9 FSM Intrm. 183 (App. 1999)

[9 FSM Intrm. 183]

FEDERATED STATES OF MICRONESIA,

APPEAL CASE NO. C1-1997

CRIMINAL CASE NO. 1996-1500

Argued: August 4, 1997

Decided: July 26, 1999

Hon. Judah C. Johnny, Temporary Justice*

Hon. Lyndon L. Cornelius, Temporary Justice**

Hon. Constantine Yinug, Temporary Justice***

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei (presiding)

**Chief Justice, Kosrae State Court, Tofol, Kosrae

***Chief Justice, State Court of Yap, Colonia, Yap

For the Appellant: Joses Gallen, Esq.

Office of the Public Defender

Lelu, Kosrae FM 96944

For the Appellee: Terence M. Brown, Esq.

Assistant Attorney General

Office of the FSM Attorney General

Palikir, Pohnpei FM 96941

[9 FSM Intrm. 184]

Criminal Law and Procedure ) Sentencing

Sentencing is to be individualized, and the overall objective is to make the punishment fit the offender as well as the offense. Cheida v. FSM, 9 FSM Intrm. 183, 187 (App. 1999).

Criminal Law and Procedure ) Sentencing

The sentencing court's focus at all times must be on the defendant, the defendant's background and potential, and the nature of the offense. Cheida v. FSM, 9 FSM Intrm. 183, 187 (App. 1999).

Appeal and Certiorari ) Standard of Review; Criminal Law and Procedure ) Sentencing

If the trial court based the sentence upon the defendant's background and potential, and the nature of the offense, such individualized sentencing decision would be entitled to the deference accorded to findings of fact. Cheida v. FSM, 9 FSM Intrm. 183, 187 (App. 1999).

Criminal Law and Procedure ) Sentencing

The original sentence is to be one which the sentencing court has considered carefully and has concluded fits the offender as well as the offense. Any change in that sentence will not be lightly won. Cheida v. FSM, 9 FSM Intrm. 183, 187 (App. 1999).

A criminal contempt proceeding is maintained to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of a court order. Cheida v. FSM, 9 FSM Intrm. 183, 187 (App. 1999).

Contempt; Criminal Law and Procedure ) Sentencing

As a criminal contempt remedy is designed for individual deterrence, to punish for intentional disobedience of the court's orders, a defendant's status as a first time offender is not a mitigating factor in his sentencing. Cheida v. FSM, 9 FSM Intrm. 183, 188 (App. 1999).

In the usual criminal contempt proceeding, the defendant is charged with criminal contempt by a government attorney. Cheida v. FSM, 9 FSM Intrm. 183, 189 & n.3 (App. 1999).

Criminal contempt proceedings arising out of civil litigation are between the public and the defendant, and are not a part of the original cause. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

Criminal contempt proceedings are instituted to protect the public interest of maintaining respect for the judicial system, and are not merely a stronger form of civil contempt sanctions against a defendant. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

Appeal and Certiorari ) Briefs and Record

An appellant must include a transcript of all evidence relevant to the trial court's decision if the appellant argues on appeal that a finding or conclusion is not supported by the evidence or is contrary to the evidence. The burden is on the appellant to ensure that he brings an adequate record to support his argument. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

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Appeal and Certiorari ) Standard of Review; Criminal Law and Procedure ) Sentencing

When an appellant has failed to provide a transcript of the relevant evidence and failed to identify the portions of the record that support his argument, he has failed to demonstrate that the trial court has erred as a matter of law in imposing sentence, and the presumption is that the evidence was sufficient to sustain the trial court's judgment. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

Appeal and Certiorari ) Briefs and Record; Appeal and Certiorari ) Standard of Review

In meeting the standard of review, the appellant must ensure an adequate record. If the record does not demonstrate error, the appellant cannot prevail. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

Criminal Law and Procedure ) Sentencing

A trial judge may impose a sentence less than the maximum permitted by law. Cheida v. FSM, 9 FSM Intrm. 183, 189-90 (App. 1999).

Criminal Law and Procedure ) Sentencing

A sentence is individualized when the maximum is not imposed, the defendant's work schedule is taken into account, and an incentive is provided for compliance with other court orders. Cheida v. FSM, 9 FSM Intrm. 183, 190 (App. 1999).

An officer of the court should be held to a higher standard for his contumacious behavior due to his intimate knowledge of the legal system. Cheida v. FSM, 9 FSM Intrm. 183, 190 (App. 1999).

Criminal Law and Procedure ) Sentencing

Imposing a fine is inadequate when the money diverted to the court would otherwise be used to repay the victim. Cheida v. FSM, 9 FSM Intrm. 183, 190 (App. 1999).

Criminal Law and Procedure ) Sentencing

A jail sentence with work release enables a defendant to continue his employment, meet his financial obligations to his family and fulfill a trial court judgment to repay the victims. Cheida v. FSM, 9 FSM Intrm. 183, 190 (App. 1999).

Appeal and Certiorari ) Standard of Review; Criminal Law and Procedure ) Sentencing

In a criminal case, the appellate court may commute, reduce, or suspend the execution of sentence, but when the appellate court has held that the trial court did not abuse its discretion in considering and imposing its sentence on the defendant for the offense committed, it will find no way to commute, reduce, or suspend the sentence. Cheida v. FSM, 9 FSM Intrm. 183, 190 (App. 1999).

JUDAH C. JOHNNY, Temporary Justice:

This case comes before this Court on an appeal from sentencing for a conviction under Title 4, Section 119(1)(b) of the Code of the Federated States of Micronesia, for criminal contempt of court. The Defendant pled guilty to the charge of criminal contempt of court and does not appeal his conviction. The Defendant presents for review whether the trial court erred as a matter of law and thus

[9 FSM Intrm. 186]

abused its discretion when it imposed a sentence of 90 days incarceration of the appellant for criminal contempt. For reasons discussed following, we affirm the sentence of the trial court.

II. Factual Background

This case arises out of Hartman v. Cheida, FSM Civil Action No. 1993-1024. In Hartman, defendant Picho Cheida, administrator of the Hartman estate, was found to have appropriated funds of the Hartman estate for his personal use. Judgment was entered against Cheida on April 28, 1994 for $14,636.48, plus interest, and on May 5, 1994, an Order in Aid of Judgment was entered in the civil action. Cheida did not comply with the terms of the May 5th order, and in August 1995, Cheida was ordered to appear and show cause why he should not be held in contempt of the May 5th order. After a hearing, the trial court issued an order on September 8, 1995, finding Cheida in civil contempt for his intentional disobedience or resistance to the Court's May 5th order. Cheida purged himself of the civil contempt by paying the arrears. The trial court also modified its May 5th order by requiring Cheida to make all future payments directly to the Bank of the Federated States of Micronesia.

On April 22, 1996, a second verified Motion for Order to Show Cause was filed, alleging that Cheida was again, in arrears under the May 5th Order as modified by the September 8, 1995 Order. The show cause hearing commenced on May 28, 1996. On the day of the hearing, Cheida filed an affidavit admitting that he was in arrears by at least $2,176.27, and that he had not complied with the Court's May 5th Order as modified. He also stated that he had been terminated from his job with the Chuuk State Legislature on March 15, 1996 and that he had received over $3,000.00 in accrued compensation and benefits. Cheida did not use any of that money to pay his arrears under the Court's May 5th Order as modified. The May 28th hearing was continued to June 6, 1996.

In the June 6th hearing, the trial court issued an order requiring Cheida to turn over to the Justice Ombudsman all money he receives as wages or revenue from any source. Cheida was not sentenced to jail. He was not ordered to pay any money beyond what he owed on the judgment in Civil Action 1993-1024.

On June 6, 1996, a Criminal Information was filed against Cheida charging him with criminal contempt of court for his intentional disobedience or resistance to the court's order of May 5th as modified by the September 8th Order in Civil Action 1993-1024.

Cheida was arraigned on January 16, 1997. He pled guilty, and was found guilty of criminal contempt of court through his intentional disobedience or resistance to the orders of the court.

Following finding of guilt, the court held sentencing hearing, during which the trial judge received evidence and heard sentencing arguments. Cheida was sentenced to 90 days imprisonment in jail on three conditions:

1. Work release ) Cheida was to be allowed release from jail for purpose of his employment with the National Government between the hours of 7:30 a.m. and 5:30 p.m., Monday through Friday of each week of imprisonment. Cheida was to remain in jail between 5:30 p.m. and 7:30 a.m. each working day, and to remain in jail on week-ends and holidays.

2. Early release ) Upon certification to the Court by the National Justice Ombudsman that (a) Cheida complied fully during the first 60 days of his prison term with the terms of his work release, and (b) Cheida is complying with his obligations under the outstanding Order in Aid of Judgment in Civil Action 1993-1024, of May 5, 1994 as amended on September 8, 1995, the remainder of his 90 days prison term would be suspended.

[9 FSM Intrm. 187]

3. Cheida was permitted to travel off-island if his employment of the National Government requires, and in instances of family emergency, but shall notice the National Justice Ombudsman who was authorized to make determinations. It is from the sentence that Cheida appeals to this Court.

III. Standard of Review

The standard of review for the FSM Supreme Court Appellate Division in reviewing a trial court sentencing decision has been thoroughly discussed in Tammed v. FSM, 4 FSM Intrm. 266 (App. (1990). The Tammed court held that sentencing is to be individualized, and the overall objective is to make the punishment fit the offender as well as the offense. Id. at 273. "The sentencing court's focus at all times must be on the defendant, the defendant's background and potential, and the nature of the offense." Id. The Tammed court found these standards to be "well suited" for the review of sentencing decisions, for they permit the trial judge the necessary latitude to assess and balance the various factors that should weigh upon a sentencing decision, but also enable the appellate division to assure that the sentencing decision has been arrived at in accordance with the legal requirement that all sentences be individualized. Id. at 274.

The Tammed standard was applied by the Appellate Division of this Court in Kimoul v. FSM, 5 FSM Intrm. 53 (App. 1991). The Kimoul court quoted from Tammed that, "If the trial court based the sentence upon the defendant's background and potential, and the nature of the offense," such an individualized sentencing decision would be "entitled to the deference accorded to findings of facts." Kimoul, 5 FSM Intrm. at 59 (quoting Tammed, 4 FSM Intrm. at 276).

Further support of the individualized sentencing policy also has been addressed by this Court in Yalmad v. FSM, 5 FSM Intrm. 32 (App. 1991). The Yalmad court cited Tammed, and concluded that under a system of individualized sentencing, "the original sentence is to be one which the sentencing court has considered carefully and has concluded fits the offender as well as the offense. Any change in that sentence will not be lightly won . . . ." Id. at 34. We are not persuaded to deviate from this standard.

IV. Defendant's Appeal

Cheida filed his original notice of appeal on January 16, 1997. He moved to stay judgment, and the Court on January 16, 1997 ordered the sentence stayed. An Amended Notice of Appeal was filed on January 17, 1997. Both notices of appeal state that Cheida appeals from the sentence order.

Neither one of the notices of appeal in this action sets forth grounds of appeal or a concise statement of the questions presented by this appeal. At best, we are able to decipher from argument, that the appeal stands on the ground that the trial court abused its discretion in sentencing him by not giving mitigating consideration to certain facts relating to him. In the following paragraph, we analyze the facts as they are found:

1. That he is a first time offender with no prior conviction record. The defendant argues that since he had not previously been convicted of a crime, and this being his first violation, the trial court should have imposed a lighter sentence.

Although the defendant has not before been convicted for criminal contempt of court, he does have a history of violating court orders in the underlying civil action. A criminal contempt proceeding is maintained to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court. Hicks v. Feiock, 485 U.S. 24, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988) on remand, 215 Cal. App. 3d 141, 263 Cal. Rptr. 437 (Cal. Ct. App. 1989), review

[9 FSM Intrm. 188]

denied. As a criminal contempt remedy is designed for individual deterrence, to punish for intentional disobedience of the court's orders, defendant's status as a first time offender is not a mitigating factor in his sentencing.

2. That he had been found and sanctioned in civil contempt which is the basis of the criminal contempt charge. The defendant alleges that he was previously sanctioned for civil contempt of court for the acts that formed the basis for the criminal contempt. The defendant here refers to Hartman v. Cheida, FSM Civ. No. 1993-1024, wherein he contends that he had been found in civil contempt of court and sanctioned. The defendant argues that since he had been appropriately sanctioned in Hartman v. Cheida, the trial court need not further sanction him in a criminal contempt proceeding. He urges us to follow United States v. Rosado, 728 F.2d 89, 94 n.4 (2d Cir. 1984), which held that in imposing contempt sanctions, the courts should resort to criminal sanctions only if the civil remedy is inappropriate. The defendant further urges us to hold that once it is determined that the civil contempt remedy is unavailing, the criminal contempt sanction is available. Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1984), also citing Shillitani v. United States, 384 U.S. 364, 371 n.9, 86 S. Ct. 1531, 1536 n.9, 16 L. Ed. 2d 622, 628 n.9 (1966).

The defendant's allegation is incorrect. On September 8, 1995, the trial court issued an order finding defendant in civil contempt for his intentional disobedience or resistance to the court's May 5, 1994 order in aid of judgment. The September 8, 1995 order modified the May 5, 1994 order by requiring defendant to make all future payments directly to the Bank of the FSM. The defendant was given the opportunity to purge himself of the civil contempt by paying the arrears. The defendant purged himself of the civil contempt by paying the arrears. Therefore, the trial court had only imposed a conditional sanction on Cheida, meaning that a sanction would apply only if the defendant refused to comply with the order. The order was not a sanction, considering that it did not impose an additional penalty beyond Cheida reimbursing the Hartman estate.

On May 28, 1996, the defendant appeared again at a hearing before the court, at which time he filed an affidavit admitting he was again arrears. The court issued an order on June 6, 1996, requiring the defendant to turn over to the Justice Ombudsman all money he receives as wages or revenue from any source. Similarly, the order of June 6, 1996 does not impose a sanction. The defendant was not ordered incarcerated or fined in this order.1 The order only requires the defendant to pay back money already owed to the Hartman estate.

We reject the defendant's reliance on Simkin and the companion cases cited for the proposition that once it is determined that the civil contempt remedy is unavailing, the criminal contempt sanction is available. The cases do not apply here because the defendant was never punished for civil contempt. Ultimately, the defendant is faced with two separate court orders. First, the criminal contempt order which was instituted to punish Cheida for his violation of the court's May 5th order.2 Second, the June 6th order which was instituted because the defendant still had an obligation to make restitution to the

[9 FSM Intrm. 189]

The defendant also argues that the court should resort to criminal contempt sanctions only if the civil remedy is inappropriate. Here, the defendant erroneously views his prosecution for criminal contempt as stemming from the same basis as his being held in civil contempt of court. In this case, the FSM Attorney General filed a Criminal Information with the court, initiating the criminal contempt proceedings against the defendant. The court did not of its own volition `resort' to criminal sanction; rather, the defendant was charged with criminal contempt by a government attorney.3 It should be noted that criminal contempt proceedings arising out of civil litigation "are between the public and the defendant, and are not a part of the original cause." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445, 31 S. Ct. 492, 499, 55 L. Ed. 797, 807 (1911). Here therefore, the criminal contempt proceedings against the defendant were instituted to protect the public interest of maintaining respect for the judicial system, and are not merely a stronger form of civil contempt sanctions against the defendant.

3. That the trial court did not consider option that was best appropriate for the particular defendant: that putting the defendant in jail would effectively ruin his employment opportunity, his marriage, his family, and of course his life as a beneficial member of the society. First, the defendant argues that the nature of his conviction does not warrant any imprisonment sentence. He contends that the Tammed court in 4 FSM Intrm. at 273 states that the overall objective of the exercise of discretion in individualized sentencing must be to make the punishment fit the offender as well as the offense, citing J. Israel, Sentencing: The Dilemma, Judicial Discretion 11 (1980). The defendant reasons that this objective allows consideration of related public concerns such as solicitude for the rights or concerns of the victim, affirmation of values of the community, and the societal wish that others be deterred from committing similar crimes so that the sentencing court's focus at all times must be on the defendant, his background and potential, and the nature of the offense. He argues that the offense that the defendant was convicted of was a misdemeanor crime of contempt of court.

FSM Appellate Rule 10(b)(2) requires that an appellant must include a transcript of all evidence relevant to the trial court's decision if the appellant argues on appeal that a finding or conclusion is not supported by the evidence or is contrary to the evidence. This rule places the burden on the defendant of ensuring that he brings adequate record to support his argument that the trial court failed to consider appropriate options in imposing sentence. In this case, the defendant asserts that the trial court's sentencing decision is not supported by the evidence. The defendant fails to provide a transcript of evidence relevant to the trial court's decision. Further, the defendant did not identify portions of the record that support his argument that the trial court failed to consider the situation of the defendant when sentencing the defendant. He has therefore failed to demonstrate that the trial court erred as a matter of law and abused its discretion in imposing the sentence. Having failed to include evidence in the record, the presumption is that the evidence was sufficient to sustain the trial court's judgment. Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996). In meeting the standard of review, the appellant must ensure an adequate record. If the record does not demonstrate error, the appellant cannot prevail. Id. There is no record before us to consider. The defendant cannot prevail.

The maximum penalty for criminal contempt of court is six months imprisonment or $1,000 fine. 4 F.S.M.C. 119(2)(c). However, a trial judge may impose a sentence less than the maximum permitted

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by law. 11 F.S.M.C. 1002. Here, the defendant's sentence is 90 days jail time with work release privileges, and the possibility of suspension of the last 30 days of the sentence if he complies with the work release conditions and the trial court's orders in the underlying civil action, Hartman v. Cheida. Not only did the trial court not impose the maximum allowable punishment, but the trial court also took into account the defendant's work schedule and provided an incentive of less time in prison upon the defendant's compliance with the ruling. This sentence is individualized because it allows the defendant to continue his employment and earn money to pay the Hartman estate in compliance with the previous court orders. Further, the sentence is not too harsh considering that the defendant is a lawyer. As an officer of the court, he should be held to a higher standard for his contumacious behavior due to his intimate knowledge of the legal system. We find therefore that the trial court properly based the sentence upon the defendant's background, potential, and the nature of the offense. We find further that absent evidence to the contrary, this individualized sentencing decision is "entitled to deference accorded to the findings of facts." Tammed, 4 FSM Intrm. at 276. We support the apparent view of the trial court that imposing a fine would be inadequate because money from the defendant's wages earmarked for the Hartman estate would be diverted to the court, which would delay the victim's ability to be made whole.

Second, the defendant argues that putting him in jail would effectively ruin his employment opportunity, his marriage, family, and of course his life as a beneficial member of the society. The defendant's sentence provides for work release, which enables him to continue his employment with the FSM government, meet his financial obligations to his family, and fulfill the judgment of the trial court by continuing to repay the heirs of the Hartman estate.

4. That the trial court erred in failing to consider the nature of the appellant's conviction and the circumstances that gave rise to the charge of criminal contempt. In a criminal case, the appellate court may commute, reduce, or suspend the execution of the sentence. 6 F.S.M.C. 905(3). In the foregoing discussions, we have adequately held that the trial court did not abuse its discretion in considering and imposing its sentence on the defendant for the offense committed. We find no way to commute, reduce, or suspend the sentence.

The findings of the trial court are not in error. The sentencing is not beyond the range of discretion of the trial court and conforms to the standards of individualized sentencing. The sentence imposed upon defendant Picho Cheida on January 16, 1997 is affirmed.

1. The order states that a hearing was completed on June 6, 1996 "regarding whether the Defendant could show cause why he was not in contempt of Court for his failure to comply with the earlier order to complete payments due on the judgment." Record at 176. The order makes no other mention of contempt of court, and only orders defendant to turn over to the Justice Ombudsman any funds received by the defendant.

2. The Criminal Information filed against defendant charged him with criminal contempt of court for his intentional disobedience or resistance to the trial court's May 5, 1994 order as modified by the September 8, 1994 order, and defendant had not previously been held in contempt of court for this charge.

3. The FSM Supreme Court trial division has held that although judiciaries are vested with power to authorize initiation of criminal contempt proceedings, it is preferable for government attorneys who are already responsible for public prosecutions to initiate such proceedings. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 62, 66 (Pon. 1991).