IN THE HIGH COURT OF THE
REPUBLIC OF THE MARSHALL ISLANDS

CRIMINAL CASE NO. 2005-048

REPUBLIC OF THE MARSHALL ISLANDS

v

JAMES CAPELLE
(Defendant)

APPEARANCES: Assistant Attorney-General Whitlam K. Togamae, the prosecutor
Assistant Public Defender Russell Kun, counsel for the defendant
Defendant James Capelle

JUDGE: Chief Justice Carl B. Ingram
CLERK: Assistant Clerk of the Courts Ingrid Kabua
COURT REPORTER: Assistant Clerk of the Courts Sepe Joash

ORDER OF CONVICTION AND SENTENCE

On February 23, 2006, this matter came before the Court on the Republic's December 28, 2005 Criminal Information charging the defendant James Capelle with the following: Count 1, Assault and Battery, 31 MIRC 115; Count 2, Assault, 31 MIRC 113; Count 3, Drunk and Disorderly, 31 MIRC 124; Count 4, Disturbing the Peace, 31 MIRC 122; and Count 5, Malicious Mischief, 31 MIRC 144(b).

Defense counsel and the prosecutor advised the Court that the defendant desired to plead guilty to four counts: Count 1, Assault and Battery; Count 3, Drunk and Disorderly, Count 4, Disturbing the Peace; and Count 5, Malicious Mischief. The defendant did so plead under the following plea agreement between the Republic and the defendant:

1. the defendant pleads guilty to four counts: Count 1, Assault and Battery; Count 3, Drunk and Disorderly; Count 4, Disturbing the Peace; and Count 5, Malicious Mischief; and

2. the Republic dismisses Count 2, Assault; with

3. the sentences to be determined by the Court.

After reading the defendant's Entry of Plea or Change of Plea Form and after questioning the defendant, defense counsel, and the prosecutor regarding the entry of the plea of guilty and the plea agreement, the Court made the following findings:

1. the defendant understands and knowingly and intelligently waived his trial rights;

2. the defendant's waivers and pleas were freely and voluntarily made;

3. the defendant understood the consequences of the pleas; and

4. there is a factual basis for the plea of guilty to Counts 1, 3, 4 and 5.

The defendant was given an opportunity to make a statement prior to sentencing.

The defendant having entered a plea of guilty to Counts 1, 3, 4 and 5 knowingly and voluntarily, with full appreciation of the consequences of such pleas and the rights waived, and the Court having found a factual basis for the plea, the Court accepts the defendant's plea of guilty and finds the defendant guilty and convicts the defendant of Count 1, Assault and Battery; Count 3, Drunk and Disorderly; Count 4, Disturbing the Peace; and Count 5, Malicious Mischief. Pursuant to the plea agreement, the Court dismisses Count 2, Assault.

In sentencing the defendant, the Court has considered the following: the Court's file in this matter; the statements made by counsel and the defendant at the February 23, 2006 plea hearing; the submissions by counsel at the February 28, 2006 sentencing hearing; aggravating factors (e.g., the assault was unprovoked, the defendant is a large man, and the defendant is a community leader) and mitigating factors (e.g., the defendant will pay restitution to the victim and expressed remorse); and the maximum sentences for the offences (misdemeanors) to which the defendant guilty.

Pursuant to Part XXIX of the Criminal Code, 31 MIRC Chp. 1, and Rule 32 of the Marshall Islands Rules of Criminal Procedure, the Court sentences the defendant as follows:

Count
	Plea	Court Finding and Adjudication	Imprisonment in the Majuro Jail	Fine	
Count 1
Assault and Battery
	
Guilty	
Guilty	
Six Months	
$100.00	
Count 3
Drunk and Disorderly
	
Guilty	
Guilty	
Six Months	
$50.00	
Count 4
Disturbing the peace
	
Guilty	
Guilty	
Six Months	
$50.00	
Count 5
Malicious Mischief	
Guilty	
Guilty	
Six Months	
$100.00	

The sentences for Counts 1 and 5 shall run consecutively commencing at 5:00 p.m. on the March 1, 2006, and ending 5:00 p.m. on February 28, 2007. The sentence for Count 3 shall run concurrently with the sentence pronounced for Count 1, and the sentence for Count 4 shall run concurrently with the sentence pronounced for Count 5.

The defendant is ordered to surrender himself to the custody of the Superintendent of Prisons on or before 5:00 p.m. March 1, 2006, to serve the one-year sentence of imprisonment to be released at 5:00 p.m. on February 28, 2007. If the defendant fails to surrender himself as ordered, he shall be subject to arrest and the bail posted for his pre-trial release, $100.00, forfeited. If the defendant does surrender himself as ordered, the Court orders that the bail be exonerated.

The Court further orders the defendant to pay as restitution to the Flame Tree, $325.00 ($290.00 for the television set the defendant damaged and $35.00 for the telephone the defendant damaged). As the defendant has agreed, the restitution and the fines imposed in this case shall be paid from the bail posted by the defendant in Criminal Case No. 2005-047.

The Court's purpose in giving this sentence is as follows: (1) to discourage the defendant from ever committing such assaultive behavior again; (2) to discourage other residents of the Republic from committing assault; (3) to confirm that the commission of assault is not acceptable in the Republic; (4) to encourage the defendant to change his behavior; and (5) to vindicate the victim's rights.

The defendant waived his right to appeal errors to the Supreme Court, except that his right to appeal is preserved as to issues of ineffectiveness or inadequacy of counsel and sentencing errors. If the defendant cannot afford the costs of the appeal, he may petition the Court to appeal in forma pauperis. Also, the defendant has the right to have an attorney represent him during the appeal process. If the defendant cannot afford an attorney, the Court will order that one be provided to him at no cost. If the defendant wishes to appeal, he must file a notice of appeal with the Court within 30 days of the date hereof.

The Court orders the Clerk of the Courts to serve copies of this Order of Conviction and Sentence on counsel for the parties, the defendant, and the Superintendent of Prisons.

Date: February 28, 2006.

Carl B. Ingram
Chief Justice