FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as FSM v. Akapito
11 FSM Intrm. 298 (Chk. 2002)

[11 FSM Intrm. 298]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

HENZEL AKAPITO,
Defendant.

CRIMINAL CASE NO. 2000-1506

ORDER

Richard H. Benson
Specially Assigned Justice

Decided:  December 30, 2002

APPEARANCES:

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

[11 FSM Intrm. 299]

For the Defendant:	Joses Gallen, Esq.
P.O. Box 255
Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES

Criminal Law and Procedure - Sentencing
When the relevant portion of FSM Criminal Procedure Rule 35(b) is identical to the United States Federal Rule of Criminal Procedure 35(b) that was in effect until November 1, 1987, and is derived from that source, the standard applied by U.S. federal courts exercising their discretion in Rule 35(b) requests is thus persuasive.  FSM v. Akapito, 11 FSM Intrm. 298, 300 (Chk. 2002).

Criminal Law and Procedure - Sentencing
A reduction of sentence may be granted if the court decides that the sentence unduly severe.  The court may reduce the sentence simply because it has changed its mind, but usually will not do so where nothing is shown to justify a reduced sentence that was not already considered by the court when the original sentence was fixed.  FSM v. Akapito, 11 FSM Intrm. 298, 300 (Chk. 2002).

Criminal Law and Procedure - Sentencing
A court may reconsider a sentence in light of further information presented to it in the interim between the imposition of sentence and the motion to reduce the sentence.  FSM v. Akapito, 11 FSM Intrm. 298, 300 (Chk. 2002).

Criminal Law and Procedure - Sentencing
On an application for reduction of sentence, the applicant’s commendable prison deportment is only some evidence on the issue to be resolved, neither to be disregarded nor overestimated.  Also, hardship on the applicant’s family may justify a sentence reduction.  FSM v. Akapito, 11 FSM Intrm. 298, 300 (Chk. 2002).

Criminal Law and Procedure - Sentencing
A motion for reduction of sentence will be denied when  the original sentence was not unduly severe, when no reason appeared for the court to change its mind, and when nothing is presented now that was not already considered at the time the sentence was imposed.  FSM v. Akapito, 11 FSM Intrm. 298, 300 (Chk. 2002).

*    *    *    *

COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

This comes before the court on the defendant’s Motion for Reduction of Sentence to Reduce His Incarceration Sentence to a Grant of Probation, filed May 14, 2002.  At that time, this matter was still pending before the FSM Supreme Court appellate division and jurisdiction rested there.  On August 29, 2002, the appellate division ordered the appeal dismissed and jurisdiction was then returned to this division.

Citing Criminal Rule 35(b), the defendant Henzel Akapito asks that his sentence be reduced from one of incarceration to one of probation.  The government questioned whether the court had jurisdiction 

[11 FSM Intrm. 300]

over a Rule 35(b) motion when the defendant had dismissed his own appeal.  The court then concluded that it has jurisdiction over this reduction of sentence motion.  FSM v. Akapito, 11 FSM Intrm. 194, 196 (Chk. 2002).  The court also asked that certain reports be filed before it proceeded to the motion’s merits.  Those reports (and Akapito’s response) having been filed, the court now turns to the merits.

Neither party has cited any FSM Supreme Court case which sets forth the standard by which the court should exercise its discretion in Rule 35(b) requests.  Since the relevant portion of FSM Criminal Procedure Rule 35(b) is identical to the United States Federal Rule of Criminal Procedure 35(b) that was in effect until November 1, 1987, and is derived from that source, the standard applied in U.S. federal courts is thus persuasive.  See FSM v. Wainit, 11 FSM Intrm. 1, 11 n.2 (Chk. 2002) (although the court must first look to sources of law and circumstances in the FSM to establish legal requirements in criminal cases rather than begin with a review of cases decided by other courts, when an FSM criminal procedure rule which is identical or similar to a U.S. counterpart has not previously been construed, the court may look to U.S. sources for guidance in interpreting the rule); cf. Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984).

Generally, United States federal courts have held that a reduction of sentence "may be granted if the court decides that the sentence unduly severe.  The court may reduce the sentence simply because it has changed its mind, but usually will not do so where nothing is shown to justify a reduced sentence that was not already considered by the court when the original sentence was fixed."  3 Charles Alan Wright, Federal Practice and Procedure § 586, at 401-04 (2d ed. 1982).

A court may reconsider a sentence in light of further information presented to it in the interim between the imposition of sentence and the motion to reduce the sentence.  United States v. Morales, 498 F. Supp. 139, 142 (E.D.N.Y. 1980).  But, on an application for reduction of sentence, the applicant’s commendable prison deportment is only some evidence on the issue to be resolved, neither to be disregarded nor overestimated.  United States v. Ochs, 490 F. Supp. 1206, 1216 (S.D.N.Y. 1980).  Also, hardship on the applicant’s family may justify a sentence reduction.  United States v. Irizzary, 58 F.R.D. 65, 67 (D. Mass. 1973).

In the present case, I find that the original sentence was not unduly severe, that no reason appears for me to change my mind, and that nothing is presented now that was not already considered at the time the sentence was imposed.

Akapito has presented some evidence of good behavior.  There is also some evidence to the contrary.  The court expects good behavior by one incarcerated.  Although such good behavior is commendable, it alone does not justify release or a reduction of sentence.  The hardship that Akapito’s incarceration would cause his family was considered when he was sentenced, and work release was therefore granted.

The court concludes that a reduction of Akapito’s sentence is not warranted and his Motion for Reduction of Sentence to Reduce His Incarceration Sentence to a Grant of Probation, filed May 14, 2002, is accordingly denied.

*    *    *    *

Footnotes:
1. See 3 Charles Alan Wright, Federal Practice and Procedure 177 n.5 (2d ed. Supp. 2001).  The U.S. Criminal Procedure Rule 35(b) in effect after November 1, 1987 is substantially different from the FSM rule and is not relevant here.