FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. Petewon, 14 FSM Intrm. 463 (Chk. 2006)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

JOHN PETEWON, JAMES FRITZ, JOHN ENGICHY

a/k/a AISER JOHN ENGICHY, and FRANK DARRA,
Defendants.

CRIMINAL CASE NO. 2003-1508

ORDER DENYING STAYS

Richard H. Benson
Specially Assigned Justice

Decided: October 18, 2006

APPEARANCES:

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

For the Defendant (Petewon):
John Petewon, pro se
Weno, Chuuk FM 96942

[14 FSM Intrm. 467]

For the Defendant (Engichy):
Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

For the Defendant (Fritz):
Ready Johnny, Esq.
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure; Statutes - Construction
Court-promulgated rules are interpreted using the principles of statutory construction. FSM v. Petewon, 14 FSM Intrm. 463, 466 (Chk. 2006).

Bail
Criminal Rule 46(a)(1) through (6) deals with pretrial release. Rule 46(a)(1) requires the court to release a defendant "pending trial on his personal recognizance or upon the execution of an unsecured appearance bond" unless such a release will not reasonably assure the defendant’s appearance in court or the victim’s or the community’s protection from physical violence. FSM v. Petewon, 14 FSM Intrm. 463, 467 (Chk. 2006).

Appellate Review - Stay - Criminal Cases
Stays in criminal cases shall be had in accordance with the provisions of Criminal Procedure Rule 38(a). Rule 38(a)(2) provides that a defendant who has been sentenced to imprisonment and who has appealed shall be released pursuant to Appellate Procedure Rule 9(b) and Appellate Rule 9(c) sets out the criteria for release under Appellate Rule 9(b). FSM v. Petewon, 14 FSM Intrm. 463, 467 (Chk. 2006).

Appellate Review - Stay - Criminal Cases; Bail; Criminal Law and Procedure
Criminal Rule 46(c) does not apply to a person who has been sentenced to imprisonment and has filed a notice of appeal. Criminal Rule 38(a)(2) and Appellate Rule 9 specifically apply to such situations. Criminal Rule 46 applies generally to release on bail while Criminal Rule 38(a)(2) (and by reference Appellate Rule 9) applies specifically to release pending appeal after a sentence of imprisonment has been imposed. FSM v. Petewon, 14 FSM Intrm. 463, 467 (Chk. 2006).

Appellate Review; Criminal Law and Procedure
A specific provision in the rules will control rather than a general rule to the extent that they conflict. FSM v. Petewon, 14 FSM Intrm. 463, 467 (Chk. 2006).

Appellate Review - Notice of Appeal; Appellate Review - Stay - Criminal Cases; Bail
Criminal Rule 46(c) is not a nullity since it applies to the release of a defendant who has been found guilty - "convicted" - but not yet sentenced. Such a defendant, although no judgment of conviction has been entered, may file a notice of appeal which will become effective once the defendant has been sentenced because a notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment is treated as filed after such entry and on the day thereof. FSM v. Petewon, 14 FSM Intrm. 463, 467-68 (Chk. 2006).

Appellate Review - Notice of Appeal; Bail; Criminal Law and Procedure 

[14 FSM Intrm. 468]

Since a judgment of conviction must set forth the plea, the findings, and the adjudication and sentence, a judgment of conviction cannot be entered until after the defendant has been sentenced. Thus, a notice of appeal may be filed after a finding of guilty but before a judgment of conviction has been entered. Criminal Rule 46(c) applies to this time span. FSM v. Petewon, 14 FSM Intrm. 463, 468 (Chk. 2006).

Appellate Review - Notice of Appeal; Appellate Review - Stay - Criminal Cases; Bail
If a criminal defendant files a notice of appeal after the court publicly announced its finding of guilty but before the sentence of imprisonment is imposed and the judgment of conviction entered, the notice of appeal would become valid on the date the judgment is entered and Criminal Rule 46(c) would have applied to whether he should have been on release from when the notice of appeal was actually filed until the entry of judgment. Once a judgment of conviction imposing a sentence of imprisonment is entered, Criminal Rule 38(a)(2) and Appellate Rule 9(b) and 9(c) apply to any application for release pending appeal. FSM v. Petewon, 14 FSM Intrm. 463, 468 (Chk. 2006).

Appellate Review; Criminal Law and Procedure
If two rules conflict, the more recent expression of the sovereign’s will (that is, the most recently enacted statute or rule) prevails over the earlier to the extent of the conflict. FSM v. Petewon, 14 FSM Intrm. 463, 468 n.1 (Chk. 2006).

Appellate Review - Stay - Criminal Cases
A criminal defendant’s motion for a stay of imprisonment pending appeal is governed by Criminal Rule 38(a)(2) and Appellate Rule 9(b) and the criteria to be used are as set out in Appellate Rule 9(c), which provides that if the court concludes that no such a risk of flight or danger exists and it appears that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in: 1) reversal; 2) an order for a new trial; 3) a sentence that does not include a term of imprisonment; or 4) a reduced sentence to a term of imprisonment less than the total of the time already served, plus the expected duration of the appeal process, the person will be released. The burden of establishing the requisite criteria rests with the defendant. FSM v. Petewon, 14 FSM Intrm. 463, 468 (Chk. 2006).

Appellate Review - Stay - Criminal Cases
Release from imprisonment pending appeal is not automatic once a notice of appeal and a motion to stay have been filed, but rests on the court’s sound discretion. The appeal must raise a substantial question of law or fact likely to result in a reversal; or an order for a new trial; or a sentence that does not include a term of imprisonment; or a sentence reduced to a jail term less than the total of the time already served. FSM v. Petewon, 14 FSM Intrm. 463, 468 (Chk. 2006).

Appellate Review - Stay - Criminal Cases
A "substantial question of law or fact" is defined as one that is a "close" question or one that could be decided the other way. FSM v. Petewon, 14 FSM Intrm. 463, 469 (Chk. 2006).

Appellate Review - Stay - Criminal Cases
Since an appellate court’s standard in reviewing a claim of insufficiency of evidence in a criminal proceeding is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence and since the appellate court’s obligation is to review the evidence in the light most favorable to the trial court’s factual determinations and most favorable to the inferences the trial court drew from the evidence, in light of the standard of appellate review for such claims and the high hurdle an appellant must overcome, the court, after having carefully reviewed the arguments and the extensive evidence, cannot consider insufficiency of the evidence claims to be a close or substantial questions. FSM v. Petewon, 14 FSM Intrm. 463, 469 (Chk. 2006).

[14 FSM Intrm. 469]

Appellate Review - Stay - Criminal Cases; Criminal Law and Procedure - Conspiracy
A claim that the statute of limitations has run that is raised as an insufficiency of the evidence claim - based on a contention that there is no evidence that any overt acts to further the conspiracy were committed within the statute of limitations applicable to the appellant because the appellant explains away all acts within the three years before the information was filed as totally innocent acts or acts to commit some other underlying offense - is not a close or substantial question because an overt act in the furtherance of a conspiracy may be in itself a totally innocent act, and not a crime at all. FSM v. Petewon, 14 FSM Intrm. 463, 469 (Chk. 2006).

Appellate Review - Stay - Criminal Cases; Constitutional Law - Case or Dispute - Mootness
A criminal defendant’s claim that if he is not granted a stay of his sentence of imprisonment pending appeal his appeal will become moot can only be deemed frivolous or for the purpose of delay since even if a criminal appellant has finished his sentence before his appeal is decided, that will not render his appeal moot because of a criminal conviction’s collateral consequences, such as the legal disabilities that ensue. FSM v. Petewon, 14 FSM Intrm. 463, 469 (Chk. 2006).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

On August 2, 2006, the court, applying the Appellate Rule 9(c) criteria, denied motions by defendants John Petewon, James Fritz, John Engichy a/k/a Aiser John Engichy, and Frank Darra to stay the execution of their sentences of imprisonment. FSM v. Petewon, 14 FSM Intrm. 320 (Chk. 2006). On August 28, 2006, defendant John Engichy filed a Motion for Reconsideration of Order Denying Stay; Motion for Release Pending Appeal; Motion for Expedited Hearing. Defendants James Fritz and John Petewon joined Engichy’s motion on September 6, and September 8, 2006, respectively. The government filed its opposition on September 11, 2006.

Engichy bases his motion on two alternative contentions: 1) that Appellate Rule 9(c) does not apply to this, or his earlier, motion to stay the execution of his sentence of imprisonment pending appeal but that Criminal Rule 46(c) applies instead and that that rule requires his release pending appeal as a matter of right, and 2) that, even if Appellate Rule 9(c) does apply, the issues he intends to raise on appeal are substantial or close questions, thus entitling him to a stay. Fritz and Petewon join with Engichy’s motion and supplement his arguments about whether the issues they intend to raise on appeal satisfy the Rule 9(c) criteria.

I.

Resolution of Engichy’s first contention involves the interpretation of several court rules and the application of the principles of statutory construction. Court-promulgated rules are interpreted using the principles of statutory construction. E.g., State v. Lei, 21 P.3d 880. 883 (Haw. 2001); State v. Lau, 890 P.2d 291, 295 (Haw. 1995); State v. McIntyre, 600 P.2d 1009, 1009-10 (Wash. 1979); United States v. Meagle, 235 F.R.D. 151, 161 (D. Conn. 2006); see, e.g., United States v. Smith, 135 F.3d 960, 962 n.1 (5th Cir. 1998); cf. Adams v. Island Homes Constr., Inc., 12 FSM Intrm. 348, 353 (Pon. 2004); Kama v. Chuuk, 10 FSM Intrm. 593, 599 (Chk. S. Ct. App. 2002).

Engichy contends that Appellate Rule 1(a) requires the court to apply Criminal Rule 46(c) to his motion for a stay. Rule 1(a) provides that when the appellate rules "provide for the making of a motion or application in the court appealed from the procedure for making such motion or application shall be in accordance with the practice of that court." Engichy then directs the court’s attention to Criminal Rule 46(c) which provides that 

[14 FSM Intrm. 470]

A person who has been convicted of an offense and is either awaiting sentence or has filed an appeal shall be treated in accordance with the provisions of Rule 46(a)(1) through (6) above unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.

Rule 46(a)(1) through (6) deals with pretrial release. Rule 46(a)(1) requires the court to release a defendant "pending trial on his personal recognizance or upon the execution of an unsecured appearance bond" unless such a release will not reasonably assure the defendant’s appearance in court or the victim’s or the community’s protection from physical violence.

Engichy essentially contends that the criteria for release of a convicted defendant pending appeal should be the same as that for a person who has only been charged with an offense but has not yet been tried and convicted. Engichy then urges that since the court has already determined that he is not a flight risk and does not pose a danger to others or to the community, the court must now release him since Criminal Rule 46(c)’s standard for release is only that the appeal must not be frivolous or taken for delay.

Engichy, however, overlooks Criminal Procedure Rule 38(a)(2) and Appellate Procedure Rule 8(c). Appellate Rule 8(c) provides that "[s]tays in criminal cases shall be had in accordance with the provisions of Rule 38(a) of the Rules of Criminal Procedure." Criminal Procedure Rule 38(a)(2) provides that a defendant who has been sentenced to imprisonment and who has appealed shall be released pursuant to Appellate Procedure Rule 9(b). Appellate Rule 9(c) sets out the criteria for release under Appellate Rule 9(b).

The court has hitherto consistently applied Appellate Rule 9(c) to motions for stays of sentences of imprisonment pending appeal. See FSM v. Wainit, 14 FSM Intrm. 164, 167 (Chk. 2006), aff’d, 14 FSM Intrm. 193, 195 (App. 2006) (single justice ruling); FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004); FSM v. Akapito, 10 FSM Intrm. 255, 256 (Chk. 2001); FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998). Engichy asks that the court revisit those rulings and conclude that they were in error.

The court concludes that Criminal Rule 46(c) does not apply to a person who has been sentenced to imprisonment and has filed a notice of appeal. Criminal Rule 38(a)(2) and Appellate Rule 9 specifically apply to such situations. Criminal Rule 46 applies generally to release on bail while Criminal Rule 38(a)(2) (and by reference Appellate Rule 9) applies specifically to release pending appeal after a sentence of imprisonment has been imposed. Generally, a specific provision in the statutes (or the rules) will control rather than a general statute (or rule) to the extent that they conflict. In re Engichy, 12 FSM Intrm. 58, 69 (Chk. 2003).

This does not make Criminal Rule 46(c) a nullity. Rule 46(c) applies to a defendant who has been found guilty - "convicted" - but not yet sentenced. Such a defendant, although no judgment of conviction has been entered, may file a notice of appeal which will become effective once the defendant has been sentenced. "A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment shall be treated as filed after such entry and on the day thereof." FSM App. R. 4(b). Since a "judgment of conviction shall set forth the plea, the findings, and the adjudication and sentence," FSM Crim. R. 32(b), a judgment of conviction cannot be entered until after the defendant has been sentenced. Thus, a notice of appeal may be filed after a finding of guilty but before a judgment of conviction has been entered. Criminal Rule 46(c) applies to this time span.

[14 FSM Intrm. 471]

Thus, if a defendant in this case had filed a notice of appeal after the court publicly announced its finding of guilty, FSM Crim. R. 23, on April 11, 2006, but before the sentence of imprisonment was imposed on June 30, 2006 and the judgment of conviction entered, the notice of appeal would have become valid on June 30, 2006 and Criminal Rule 46(c) would have applied to whether he should have been on release from April 11, 2006 (or from when a notice of appeal was actually filed) until the June 30, 2006 entry of judgment. Once a judgment of conviction imposing a sentence of imprisonment was entered on June 30, 2006, Criminal Rule 38(a)(2) and Appellate Rule 9(b) and 9(c) applied to any application for release pending appeal.

To follow Engichy’s line of reasoning - that the lower non-frivolous standard of Criminal Rule 46(c) be used for motions for stays pending appeal in the trial division and that the Appellate Rule 9(c) criteria only apply to stay motions filed in the appellate division - would create the absurd result that if a defendant trial division stay motion is denied under the low Criminal Rule 46(c) standard, the defendant could then apply to the appellate division for relief and would be subject there to the much higher Appellate Rule 9(c) criteria. This makes no sense.

Accordingly, the court concludes that Engichy’s stay motion is governed by Criminal Rule 38(a)(2) and Appellate Rule 9(b) and the criteria to be used are as set out in Appellate Rule 9(c). Those criteria are

If the court concludes that no such a risk of flight or danger exists and it appears that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in: (1) reversal; (2) an order for a new trial; (3) a sentence that does not include a term of imprisonment; or (4) a reduced sentence to a term of imprisonment less than the total of the time already served, plus the expected duration of the appeal process, the person shall be released. The burden of establishing the requisite criteria rests with the defendant.

FSM App. R. 9(c). Thus release from imprisonment pending appeal is not automatic once a notice of appeal and a motion to stay have been filed, but rests on the court’s sound discretion. Moses, 12 FSM Intrm. at 511. The appeal must raise a substantial question of law or fact likely to result in a reversal; or an order for a new trial; or a sentence that does not include a term of imprisonment; or a sentence reduced to a jail term less than the total of the time already served.

II.

[14 FSM Intrm. 472]

Engichy further asserts that even if the Rule 9(c) criteria govern his stay motion, and the applicable standard is that the appeal issue raised must not be for delay and must be a substantial question of law or fact, he still qualifies for, and must be granted, a stay pending his appeal. Petewon and Fritz echo this assertion.

As the court has previously stated, a "substantial question of law or fact" is defined as one that is a "close" question or one that could be decided the other way. FSM v. Wainit, 14 FSM Intrm. at 168, aff’d, 14 FSM Intrm. at 195 (single justice ruling).

Engichy states that he will raise as issues on appeal 1) whether the government proved he had the requisite knowledge that he was involved in a conspiracy - whether he agreed with others to commit the underlying offenses; 2) whether he intentionally and voluntarily participated in the conspiracy; 3) whether there was an overt act committed to further the conspiracy; 4) and whether the statute of limitations had run by the time the information was filed. Fritz contends that to deny him a stay would make his appeal moot. He states that he will raise on appeal whether the trial court erred in denying his motion for acquittal at the close of the prosecution’s case-in-chief because, in his view, he was convicted although the government did not present proof of his guilt beyond a reasonable doubt. Petewon makes the same contentions.

Engichy’s first three issues and those raised by Fritz and Petewon are insufficiency of the evidence claims. The appellate court’s standard in reviewing a claim of insufficiency of evidence in a criminal proceeding is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000); Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992); Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988); Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984). The appellate court’s obligation is to review the evidence in the light most favorable to the trial court’s factual determinations and most favorable to the inferences the trial court drew from the evidence. Sander, 9 FSM Intrm. at 449; Alfons, 5 FSM Intrm. at 405; Welson v. FSM, 5 FSM Intrm. 281, 285 (App. 1992); Engichy, 1 FSM Intrm. at 545. Thus, in light of the standard of appellate review for such claims and the high hurdle an appellant must overcome, the court, having carefully reviewed the arguments and the extensive evidence, cannot consider these to be a close or substantial questions.

Engichy also asserts that the statute of limitations had run. While on its face, this is partly a legal question, it is raised as an insufficiency of the evidence claim - Engichy contends that there is no evidence that any overt acts to further the conspiracy were committed within the statute of limitations applicable to him. He explains away all acts within the three years before the information was filed as totally innocent acts or acts to commit some other underlying offense. This contention overlooks the fact that an overt act in the furtherance of a conspiracy "may be in itself a totally innocent act, and not a crime at all." 16 Am. Jur. 2d Conspiracy § 15, at 231 (1979) (footnote omitted). This is also not a close or substantial question.

The claim by Fritz and Petewon that if they are not granted stays of their sentences of imprisonment their appeals will become moot can only be deemed frivolous or for the purpose of delay. The court fully expects the appellate division to decide the movants’ appeals before any defendant has completed his term of imprisonment. But nonetheless, even if a criminal appellant has finished his sentence before his appeal is decided, that will not render his appeal moot because of a criminal conviction’s collateral consequences, such as the legal disabilities that ensue. See Sibron v. New York, 392 U.S. 40, 49-58, 88 S. Ct. 1889, 1896-1900, 20 L. Ed. 2d 917, 927-32 (1968) (prisoner’s completion of sentence does not foreclose the court’s consideration of an appeal’s merits); see also 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 26.5(a) (1984). Thus the appeals in this case will not and cannot become moot even if the sentences are completed before the appellate division has ruled. Possible completion of the sentence therefore cannot be a ground for a stay.

III. Conclusion

Having considered the movants’ current motions and reconsidered the earlier denial of stays of execution of the sentences of imprisonment for defendants John Petewon, James Fritz, and John Engichy a/k/a Aiser John Engichy, the court concludes that the criteria to determine whether the prisoners shall be released pending appeal are found in Appellate Procedure Rule 9(c) and that the movants do not satisfy that criteria. Their motions for release pending appeal are accordingly denied.

[14 FSM Intrm. 473]

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