Cite as FSM v. Hartman (II),
5 FSM Intrm.368 (Pon 1992)

[5 FSM Intrm. 368]




FSM CRIM. 1989-514

Before Edward C. King
Designated Justice
Hearing:  October 14, 1992
Entered:  October 20, 1992

For the Plaintiff:             Kevin Shea, Esq.
                                        Acting State Attorney General
                                        Pohnpei State Government
                                        Kolonia, Pohnpei  FM 96941

For the Defendants:     Shirley Paiz, Esq.
(Kasiano Primo)           Office of the Public Defender
(Paulus Hartman)         Kolonia, Pohnpei  FM 96941

For the Defendant:       Joseph Phillip
(William Ladore)           FSM Public Defender
                                        FSM National Government
                                        P.O. Box PS-174
                                        Palikir, Pohnpei  FM 96941

*    *    *    *

[5 FSM Intrm. 369]

Criminal Law and Procedure - Sentencing
     Because the defendants were convicted of the crime of aggravated sexual assault, which by nature is a violent crime, especially in this case where it was random, if released there is a likelihood they would pose a danger to the others in the community.  But because the defendants have committed one wrongdoing in the three years since their conviction other factors are needed to require denial of stay of sentence.  FSM v. Hartman (II), 5 FSM Intrm. 368, 369-70 (Pon. 1992).

Criminal Law and Procedure - Sentencing
     Where defendants have willfully violated court's previous order to remain confined to the Municipality of U, thus indicating a risk of flight, and where there is no substantial question of law or fact defendant's motion for stay of sentence pending appeal will not be granted.  FSM v. Hartman (II), 5 FSM Intrm. 368, 370-71 (Pon. 1992).

*    *    *    *

EDWARD C. KING, Designated Justice:
     The defendants in this case, Paulus Hartman, William Ladore and Kasiano Primo, have appealed from this Court's judgment of conviction for the crime of aggravated sexual assault on September 21, 1992.  Each has moved for a stay of judgment pending appeal and for in forma pauperis treatment of his appeal.  In addition, Messrs. Ladore and Primo each move for appointment of counsel since the attorneys who represented them at earlier stages of these proceedings are no longer residing within the Federated States of Micronesia.

     A telephone hearing was held on October 14 in response to these motions. At the conclusion of the hearing, the motions for in forma pauperis treatment and for appointment of counsel were granted but the motions for stay were denied.  This memorandum of decision is written to explain the reasons for the denial.

     Two rules, FSM Crim. R. 46 and FSM App. R. 9, pertain to motions for stay filed by persons already convicted.  FSM Crim. R. 46 instructs the court to consider whether release under any of the conditions specified in Rules 46(a) may appropriately be employed.  FSM App. Rules 9(c) and (d) make clear that the release should occur only if the court believes that the defendants will not pose a risk to the community, that no risk of flight exists, and that substantial, non-frivolous issues are raised by the appeal.
     Danger to the Community.  The crime of aggravated sexual assault is by its very nature a violent one.  Under normal circumstances, a finding of guilt for such a crime carries with it the suggestion that the convicted person may pose a threat to other persons in the community.  In the case at hand, the

[5 FSM Intrm. 370]

victim was not a person who had a particular relationship or background with the defendants.  For all that appears from the record, the assault was essentially random and the victim was chosen on the mere happenstance that she was there, and vulnerable, at the time.  These factors increase the likelihood that the convicted persons, if released, would pose a risk of danger to others in the community.

     The fact that there is no showing that any of the defendants engaged in wrongdoing during the three years since their convictions is a strong factor to the contrary.  Yet, primarily because of the violent and random nature of the crime in this case, the court has some concern that release of the defendants might pose some danger to other members of the community regardless of any conditions the court might impose.

     In absence of the other factors next discussed, this danger would be insufficient to require denial of the motions for stay.  However, the combination of danger and those other factors is sufficient to warrant denial.

     Risk of Flight. On August 11, 1989, after these defendants were convicted, they were released on the condition that they must stay in U Municipality.  This restriction was never set aside nor did any defendant at any time seek its modification.  Yet it is uncontested that for approximately the last two years the defendants have simply ignored the order.

     Mr. Primo has been working in Kolonia as a security guard.  Defendant Ladore was living and working in Guam when he was notified of the judgment entered in September.  (The court notes to the credit of Mr. Ladore, that he did return to Pohnpei voluntarily upon learning of the ruling.)  Mr. Hartman concedes that he to has violated the order.

     Counsel for defendants have represented that the defendants say they never were told of the order and never knew of it.  On the other hand, the defendants represent that they did obey the order for a year but then met together and decided that since they had not recently heard anything, they need no longer abide by that order.

     The court rejects the first assertion as inconsistent with established court procedure whereby defendants have always been told of such restrictions, in their own language, in open court.  The assertion is further belied by the second claim, that they did obey the order for a year.

     The second assertion, even if accepted as true, is inadequate to explain or justify the failure of the defendants to comply with an order of the court.
     The court therefore finds that the defendants have willfully violated this court's previous order, issued to permit them a measured freedom after their conviction. This violation is mitigated somewhat by the rather extraordinary length of this litigation.  Yet, violation of the order does prevent the court from determining that there would be no risk of flight if the defendants were to be released under any of the conditions specified in FSM Crim. R. 46(a) or FSM App. R. 9(d).

[5 FSM Intrm. 371]

     Substantial question of law or fact.  The original convictions were entered after a full trial.  The defendants then appealed and received a full opportunity to raise any objections to the trial proceedings.  The appellate division has issued a decision denying some of the defendants' objections.  As to those claims found by the appellate division to have merit, the appellate division remanded the case to this court with specific instructions.  Those instructions now having been carried out, the court finds it difficult to perceive any remaining substantial issues, and none have been pointed out by the movants.

     For the reasons discussed in this opinion, the motions of the defendants for stay of sentence are denied.  The motions for in forma pauperis treatment are granted. As to the motion for appointment of counsel, the public defender's office instructed to follow the normal procedure for pro bono counsel by selecting counsel on a rotating basis to represent those clients as to whom the office of the public defender may have conflicts.

*    *    *    *