S. ROBERT, Y. ALBERT, & E. TULENSRU v. KSA PAROLE BRD & A.G D.DALEY

KOSRAE STATE COURT

FEDERATED STATE OF MICRONESIA

cite as Albert et al vs. Kosrae Parole Board and AG Douglas Daley,

[page 01]

SHREW ALBERT, YUDA ALBERT,

and ENERICO TULENSRU,

Plaintiffs

KOSRAE PAROLE BOARD and

ATTORNEY GENERAL DOUGLAS DALEY,

Defendants

CIVIL ACTION N0. 3-89

DECLARATION

On February 13 1989, plaintiffs filed a complaint for A Declaratory Judgment, alleging Court jurisdiction pursuant to KC 6.101 [this Court assumes that the correct reference is possibly 6.2101] and Rule 57 of the Kosrae Rules of Civil Procedure, asking this Court to assign a certain interpretation to the language found in KC 7.806 relating to parole eligibility.

On February 15, 1989 the plaintiffs filed a Motion for an Advancement of Hearing on complaint and notice requesting that the Court set a hearing date on the complaint no later than February 20, 1989.

[page 02]

On February 16, 1989, plaintiffs, through their counsel of record, Wesley Simina, and the defendants, through their counsel of record, Douglas Daley, appeared before this Court and were heard. At this time counsel for dgfendants requested and was granted an opportunity to respond to plaintiffs' complaint and motion.

On February 17, 1989 defendants filed their answer to plaintiffs' complaint.

In that this matter involves both a request for invocation of the Court's powers to declare the rights of an,interested party where there is an actual controversy and the potential liberty interests of the plaintiffs', this Court has decided to issue a declaration in this matter with respects to the issues raised in the:complaint.

FACTS

(1) The Court takes judicial notice that the plaintiffs were all recently convicted and sentenced by this Court in three seperate criminal actions as follows:

(a) In Criminal Case No. 137-88, Shrew Albert, on January 10, 1989, was sentenced as follows:

"It is the sentence ...that...Shrew Albert is hereby:

ORDERED:

...to serve six (6) months imprisonment with the last four (4) months suspended under the following conditions:

[page 03]

Upon violation of any of the above conditions, defendant shall serve the time remaining on his suspended sentence in jail. (emphasis added)

(b) In Criminal Case No. 145-88, Yuda Albert, on January 10, 1989 was sentenced as follows:

"It is the sentence ...that...Yuda Albert, is hereby:

ORDERED:

...to serve four (4) months imprisonment with the last two (2) months suspended under the. following conditions:

Upon violation of any of the above conditions, defendant shall serve the time remaining on his sentence in jail." (emphasis added)

"It is the sentence that Enerico Tulensru, is hereby:

ORDERED:

...to serve six (6) months imprisonment with three (3) months suspended under the following conditions:

Upon violation of any of the above conditions, defendant shall serve the time remaining on his sentence in jail." (emphasis added)

(2) Each plaintiff asserts that he is now eligible for parole under the terms of KC 7.806.Section 7.806 of the Kosrae Code provides as follows:

[page 04]

"A person is eligible for parole upon serving one-third of the sentence or a lesser period of time specified by the Court at the time of sentencing." (emphasis added)

ISSUE

The plaintiffs contend that KC 7.806, above, should be interpreted to make a person eligible for parole once they have served. one-third of "the actual sentence of imprisonment, not including sentence terms placed on probation or under suspension ...." For example, under plaintiff Shrew Alberts' situation, where he was ordered to actually spend only two (2) months (60 days) in jail, under plaintiffs' interpretation of KC 7.806, Shrew Albert would be eligible parole after serving 20 days in jail (1/3 of the "in jail" time) as opposed to an interpretation which would provide eligibility after serving (whether "in jail" or under suspension) 2 of the total 6 months sentence imposed by this Court. Therefore, °it appears that there are, with respect to each plaintiff, two issues, ie: (1) What was "the sentence"? and (2) has he served one-third of "the sentence"?

ANALYSIS

In order to arrive at the conclusions suggested by the plaintiffs, this Court would have to ignore the plain language contained in each of the three sentences involved. In each case

[page 05]

the Court specifically defined each sentence as being either "six (6) months imprisonment" or "four (4) months imprisonment". In each case the Court also suspended portions of the jail time of each sentence. However, in each case, the Court provided for the possible revocation of the portion of the jail sentence that had been conditionally suspended in the event a condition was violated, in which event the person violating the condition would "serve the time remaining on his sentence in jail."

CONCLUSION

In order for the language of each sentence which provides for the possibility of returning a prisoner to jail who is out of jail under a suspended sentence to have meaning, this Court must conclude that "the sentence", for purposes of KC 7.806, must include both the time portion of the sentence to be served in jail and the time portion of the sentence which is conditionally suspended and to be served out of jail:

DECLARATION

IT IS THEREFORE, the declaration and order of this Court that:

Under the terms of KC.7.806 a person is eligible for parole upon serving one-third of the entire sentence, including any portions of the sentence which have been conditionally suspend by the Court. Therefore:

[page 06]

(a) Shrew Albert will be eligible for parole upon serving one-third of his six (6) month sentence;

(b) Yuda Albert will be eligible for parole upon serving one-third of his four (4) month sentence; and

SO ORDERED this 22nd day of February, 1989.

/s/

Harry H. Skilling

Chief Justice

Entered this 22nd day of February, 1989.

/s/

Clerk of Court, Kosrae


	KOSRAE STATE COURT FEDERATED STATE OF MICRONESIA cite as Albert et al vs. Kosrae Parole Board and AG Douglas Daley, [page 01] SHREW ALBERT, YUDA ALBERT, and ENERICO TULENSRU, Plaintiffs vs KOSRAE PAROLE BOARD and ATTORNEY GENERAL DOUGLAS DALEY, Defendants CIVIL ACTION N0. 3-89 DECLARATION On February 13 1989, plaintiffs filed a complaint for A Declaratory Judgment, alleging Court jurisdiction pursuant to KC 6.101 [this Court assumes that the correct reference is possibly 6.2101] and Rule 57 of the Kosrae Rules of Civil Procedure, asking this Court to assign a certain interpretation to the language found in KC 7.806 relating to parole eligibility. On February 15, 1989 the plaintiffs filed a Motion for an Advancement of Hearing on complaint and notice requesting that the Court set a hearing date on the complaint no later than February 20, 1989. [page 02] On February 16, 1989, plaintiffs, through their counsel of record, Wesley Simina, and the defendants, through their counsel of record, Douglas Daley, appeared before this Court and were heard. At this time counsel for dgfendants requested and was granted an opportunity to respond to plaintiffs' complaint and motion. On February 17, 1989 defendants filed their answer to plaintiffs' complaint. In that this matter involves both a request for invocation of the Court's powers to declare the rights of an,interested party where there is an actual controversy and the potential liberty interests of the plaintiffs', this Court has decided to issue a declaration in this matter with respects to the issues raised in the:complaint. FACTS (1) The Court takes judicial notice that the plaintiffs were all recently convicted and sentenced by this Court in three seperate criminal actions as follows: (a) In Criminal Case No. 137-88, Shrew Albert, on January 10, 1989, was sentenced as follows: "It is the sentence ...that...Shrew Albert is hereby: ORDERED: ...to serve six (6) months imprisonment with the last four (4) months suspended under the following conditions: [page 03] Upon violation of any of the above conditions, defendant shall serve the time remaining on his suspended sentence in jail. (emphasis added) (b) In Criminal Case No. 145-88, Yuda Albert, on January 10, 1989 was sentenced as follows: "It is the sentence ...that...Yuda Albert, is hereby: ORDERED: ...to serve four (4) months imprisonment with the last two (2) months suspended under the. following conditions: Upon violation of any of the above conditions, defendant shall serve the time remaining on his sentence in jail." (emphasis added) (c) In Criminal Case No. 146-88, Enerico Tulensru, on January 10, 1989, was sentenced as follows: "It is the sentence that Enerico Tulensru, is hereby: ORDERED: ...to serve six (6) months imprisonment with three (3) months suspended under the following conditions: Upon violation of any of the above conditions, defendant shall serve the time remaining on his sentence in jail." (emphasis added) (2) Each plaintiff asserts that he is now eligible for parole under the terms of KC 7.806.Section 7.806 of the Kosrae Code provides as follows: [page 04] "A person is eligible for parole upon serving one-third of the sentence or a lesser period of time specified by the Court at the time of sentencing." (emphasis added) ISSUE The plaintiffs contend that KC 7.806, above, should be interpreted to make a person eligible for parole once they have served. one-third of "the actual sentence of imprisonment, not including sentence terms placed on probation or under suspension ...." For example, under plaintiff Shrew Alberts' situation, where he was ordered to actually spend only two (2) months (60 days) in jail, under plaintiffs' interpretation of KC 7.806, Shrew Albert would be eligible parole after serving 20 days in jail (1/3 of the "in jail" time) as opposed to an interpretation which would provide eligibility after serving (whether "in jail" or under suspension) 2 of the total 6 months sentence imposed by this Court. Therefore, °it appears that there are, with respect to each plaintiff, two issues, ie: (1) What was "the sentence"? and (2) has he served one-third of "the sentence"? ANALYSIS In order to arrive at the conclusions suggested by the plaintiffs, this Court would have to ignore the plain language contained in each of the three sentences involved. In each case [page 05] the Court specifically defined each sentence as being either "six (6) months imprisonment" or "four (4) months imprisonment". In each case the Court also suspended portions of the jail time of each sentence. However, in each case, the Court provided for the possible revocation of the portion of the jail sentence that had been conditionally suspended in the event a condition was violated, in which event the person violating the condition would "serve the time remaining on his sentence in jail." CONCLUSION In order for the language of each sentence which provides for the possibility of returning a prisoner to jail who is out of jail under a suspended sentence to have meaning, this Court must conclude that "the sentence", for purposes of KC 7.806, must include both the time portion of the sentence to be served in jail and the time portion of the sentence which is conditionally suspended and to be served out of jail: DECLARATION IT IS THEREFORE, the declaration and order of this Court that: Under the terms of KC.7.806 a person is eligible for parole upon serving one-third of the entire sentence, including any portions of the sentence which have been conditionally suspend by the Court. Therefore: [page 06] (a) Shrew Albert will be eligible for parole upon serving one-third of his six (6) month sentence; (b) Yuda Albert will be eligible for parole upon serving one-third of his four (4) month sentence; and (c) Enerico Tulensru will be eligible for parole upon serving one-third-of his six (6) month sentence.. SO ORDERED this 22nd day of February, 1989. /s/ Harry H. Skilling Chief Justice Entered this 22nd day of February, 1989. /s/ Clerk of Court, Kosrae