FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v Akapito, 10 FSM Intrm. 255 (Chk. 2001)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

HENZEL AKAPITO
Defendant.

CRIMINAL CASE NO. 2000-1506

MEMORANDUM OF DECISION DENYING STAY

Richard H. Benson
Associate Justice

Hearing: June 15, 2001
Decided: June 15, 2001
Entered: June 18, 2001

APPEARANCES:

For the Plaintiff:
R. Anthony Welch, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant:
Julio Akapito, trial counselor
P.O. Box 303
Weno, Chuuk FM 96942
Johnny Meippen, Esq. (supervising attorney)
P.O. Box 705
Weno, Chuuk FM 96942

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HEADNOTES

Appeal and Certiorari - Stay; Criminal Law and Procedure
FSM Appellate Procedure Rule 9(c) sets forth the criteria for release pending an appeal from a criminal conviction. The burden of establishing the requisite criteria rests with the defendant. FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001).

Appeal and Certiorari - Stay; Criminal Law and Procedure - Sentencing
Among the criteria the defendant must show to be released pending appeal when the appeal is only of his sentence of imprisonment is that the appeal is not for the purpose of delay and that it raises a substantial question of law or fact likely to result in a sentence that does not include a term of imprisonment. FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001).

Appeal and Certiorari - Stay; Criminal Law and Procedure - Sentencing
A defendant appealing his sentence has utterly failed to meet the criteria for release pending appeal when neither his moving papers nor argument raised a substantial question of law or fact likely to result in a sentence not including a term of imprisonment. FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001).

Appeal and Certiorari - Stay; Criminal Law and Procedure - Sentencing
That the defendant would then be free, in mind and body, to assist his counsel in the preparation of his appeal is not a substantial question of law or fact justifying release pending an appeal. FSM v. Akapito, 10 FSM Intrm. 255, 257 (Chk. 2001).

Appeal and Certiorari - Stay; Criminal Law and Procedure - Sentencing
When an appeal of a criminal sentence does not raise any substantial question likely to obtain the result the appellant seeks, the court may draw the inference that it was brought for the purpose of delay. FSM v. Akapito, 10 FSM Intrm. 255, 257 (Chk. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On June 14, 2001, the defendant, Henzel Akapito, filed by trial counselor Julio Akapito and his supervising attorney, Johnny Meippen, his motion to stay his sentence of imprisonment ordered June 7, 2001 and scheduled to begin at 5:00 p.m., June 15, 2001. The basis for this request was that the defendant on June 9, 2001, had sent Chief Clerk of Court Kohsak Keller a letter asking the clerk to prepare and file forthwith, pursuant to Criminal Procedure Rule 32(a)(2), a notice of appeal on the defendant's behalf appealing the June 7th sentence. On June 15, 2001, a telephonic hearing on the motion proceeded although no formal notice of appeal had yet been filed by the clerk and no appellate docket number assigned. At the end of the telephonic hearing, the motion was denied. This memorandum memorializes the reasons given for the denial.

The defendant pled guilty to four counts in the information. Two other counts were dismissed. The maximum jail time to which the defendant could have been sentenced was twenty years. He received two years in jail, followed by probation for thirteen years or until full restitution was paid, if that was earlier. The defendant was given twenty days to file a motion for modification of the sentence to include work release (and such a motion was filed June 12, 2001, and is currently pending).

The defendant sought a stay of the sentence of imprisonment pending his appeal of the sentence. FSM Appellate Procedure Rule 9(c) sets forth the criteria for release pending an appeal from a criminal conviction. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998). "'The burden of establishing the requisite criteria rests with the defendant.'" Id. (quoting FSM App. R. 9(c)). Among the criteria the defendant must show in this particular case (because the appeal is only of his sentence of imprisonment) is that the appeal is not for the purpose of delay and that it raises a substantial question of law or fact likely to result in a sentence that does not include a term of imprisonment. Id.

The defendant utterly failed to meet these criteria. Neither his moving papers nor argument raised a substantial question of law or fact likely to result in a sentence not including a term of imprisonment. Although an appellant is not required to file his statement of the issues on appeal until ten days after the notice of appeal is filed (unless he orders an entire transcript), FSM App. R. 10(b)(3), the defendant's moving papers and argument did not indicate any issues he intended to raise in appealing the sentence. In fact, the defendant did not raise any questions of law or fact, substantial or otherwise. The only reason offered to justify a stay was that the defendant would then be free, in mind and body, to assist his counsel in the preparation of his appeal. Likewise, no showing was made that the stay was requested for purposes other than delaying the start of the defendant's imprisonment. See Nimwes, 8 FSM Intrm. at 300 (when an appeal of a criminal sentence does not raise any substantial question likely to obtain the result the appellant seeks, the court may draw the inference that it was brought for the purpose of delay).

The motion was accordingly denied.