Pohnpei v.Porter

POHNPEI SUPREME COURT REPORTS

VOL. 1

[1 P. S. Ct. R 124]

POHNPEI STATE,

Plaintiff

RICHARD PORTER,

Defendant

Pohnpei Criminal Case No. 565-84

Trial Division of the Pohnpei Supreme Court

February 2, 1985 & February 12, 1985

Defendant was charged on three counts, namely Count I, Careless Driving; Count II, Driving on the left-Hand-Side of the Highway; and Count III, Vehicle Homicide. On arraignment he entered a plea of not guilty to each count. But at the trial counsel filed a stipulated plea agreement signed by both counsel and the defendant himself, seeking leave of the Court to dismiss Counts I and II, and to change his plea.on Count III from not guilty to nolo contenders. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, held that a plea of nolo contenders was not a matter of right with the accused and that acceptance was within the broad discretion of the Court.

1. Criminal Law - Pleas - Nolo Contenders

A plea of nolo contenders is not a matter of right with the accused; acceptance is within the broad discretion of the Court. (21 Am Jur

[1 P. S. Ct. R 125]

20; Criminal Law, Section 499)

2. Criminal Law - Pleas - Nolo Contendere

A plea of polo contenders shall be accepted by the Court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. (PNI Rules of Criminal Procedure, Rule 11 (B)).

3. Criminal Law - Pleas - Nolo Contendere

Where defendant enters into a stipulated plea agreement under which he pleads nolo contenders in respect of an offense charged, and the Court advises him of his rights, and the Court is fully satisfied that the defendant fully understands his rights and persists on the stipulated plea agreement voluntarily without force, threats or promises other than the plea agreement the Court will accept the agreement.

Editorial Note

In an order of February 12,1985, by the Court to amend the judgment in this case the Honorable Judge noted that included among the rights about which the Court advised the defendant in this case was "that he has the right to request a closed trial" in accordance with Rule 11(c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure which was an adoption of the Ponape State Charter, Article II, Section 4 (3TTC496) providing in part that:

. . .In all criminal prosecutions the accused shall enjoy the right to a speedy trial, public or private as he may request..."

The following headnotes from the Judge's order to amend his judgment relates to constitutional guarantee of public trial and to the constitutionality of the provision in Rule 11 (c)(6).

4. Constitutional Law

The Pohnpei State Constitution, which took effect on November 8, 1984, supersedes the Ponape State Charter in all respects.

[1 P. S. Ct. R 126]

5. Constitutional Law - Validity of Laws

Any law in conflict with the Constitution is invalid to the extent of the conflict. (Article 2 -Supremacy, Pohnpei State Constitution)

6. Constitutional Law - Guaranteed Rights of Accused Persons

The Constitution provides as one of the rights guaranteed to an accused in criminal prosecutions,"... the right to a speedy, public, and impartial trial..." (Article 4 - Due Process, Pohnpei State Constitution)

7. Constitutional Law - Guaranteed Rights of Accused Persons

A tracing of the history of the Ponape State Constitutional Convention actions on rights of an accused to trial "public or private", shows that the framers of the Constitution knowingly and intentionally deleted the right to private trial as was contained in its Preliminary Draft Constitution, therefore that which was a right to private trial under the Charter is not a right under the Constitution of this State.

8. Constitutional Law - Guaranteed Rights of Accused Persons

An accused has, as a constitutional guarantee, a right to public trial.

9. Constitutional Law - Guaranteed Rights of Accused Persons Youthful Defendants

While an accused person has, as a constitutional guarantee, a right to public trial, the exercise of the right is subject to reasonableness, and does not prohibit the Court from exercising its discretion in protecting youthful defendants from the harmful effects of a public trial.

10. Constitutional Law - Guaranteed Rights of Accused Persons

The Court, when considering the reasonableness or otherwise in allowing an accused person a public trial, in general, must balance the guarantee of an open and public trial against what may be countervailing considerations of public morals, peace and good order.

[1 P. S. Ct. R 127]

11. Constitutional Law - Validity of Laws

Rule 11 (c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure, to the extent of its conk list with the Constitution, is void as being unconstitutional.

Counsel for Plaintiff: Dickson Santos

Counsel for Defendant: Matt Mix and

James Hagerstrom

JUDAH C. JOHNNY, Associate Justice

Judgment

I heard the arraignment in this matter on January 29, 1985, in Kolonia, State of Pohnpei. Herein, the defendant is charged with three counts: to wit, Count I of Careless Driving, Count II of Driving on the Left-hand-side of the Highway, and Count III of Vehicle Homicide. The defendant entered a plea of not guilty to each count. In preparation for trial, it was agreed during this arraignment proceeding that counsel would file all pre-trial motions by February 1,1985, and a chambers conference would follow on the same date to determine the manner in which to proceed into trial.

On February 1, 1985, at the call of this matter, counsel filed a Stipulated Plea Agreement, which was signed by both

[1 P. S. Ct. R 128]

counsel as well as the accused himself. In this agreement, parties seek leave of this Court to dismiss Counts I and II, and to permit the defendant to change his plea on Count III from not guilty to nolo contendere. A recommended sentence was embodied in the agreement. This Court scheduled hearings on the stipulated plea agreement, pursuant to Rule 11, Rules of Criminal Procedure, for February 2, 1985.

On February 2,1985, under requirement of Rule 11, this Court addressed the defendant personally, at which time he was advised as follows:

1. That based upon the stipulated plea agreement, this Court will determine the propriety of dismissing Counts I and II of the complaint.

2. That as for Count III, to which he had offered a plea of nolo contendere, he had in effect elected not to contest the charge that he involuntarily took the life of another by unlawful use of a vehicle; that the maximum penalty that might be imposed was a fine of less than $3,000 or imprisonment for less than three years, or both.

[1 P. S. Ct. R 129]

3. That while it appeared to the Court that he was represented by counsel at the hearing, if he had no counsel, he had right to be represented by counsel at every stage of the proceedings against him.

4. That he had right to plead not guilty or to persist in that plea as he had made; that he had the right to a trial and at such trial, had the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.

5. That if he pleaded guilty or nolo contendere, there would not be a further trial of any kind, so that by pleading guilty or nolo contendere, he waived the right to trial.

6. That if he pleaded guilty or nolo contendere, the Court might ask him questions about the offense to which he pleaded; that if he answered the questions under oath, on the record, and in the presence of counsel, his answers might later be used against him in a prosecution for perjury or false statement.

7. That he had the right to request a closed trial. As to each

[1 P. S. Ct. R 130]

of these rights, the Court inquired of the defendant personally if he understood, to which the defendant indicated his understanding of them.

[1-3] A plea of nolo contendere is not a matter of right with the accused. Acceptance is within the broad discretion of the Court. 21 Am Jur2d.,Criminal Law, Section 499. Also see 152 ALR 267, and the more recent annotation in 89 ALR 2d 563, at Section 14. Such plea shall be accepted by the Court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. Rule 11(b), Pohnpei Rules of Criminal Procedure. Having so advised the defendant, and being fully satisfied that he understands his rights as enumerated above, and therefore persists on the stipulated plea agreement, voluntarily without force, threats or promises other than the plea agreement,

it is ORDERED as follows:

1. That Counts I and II of the Complaint are each hereby dismissed.

2. That Count III, Vehicle Homicide stands and the Court

[1 P. S. Ct. R 131]

hereby accepts the defendant's offered plea of nolo contendere.

Pursuant to Rule 11 (e) (3) of the Pohnpei Rules of Criminal Procedure, that the Stipulated Plea Agreement which was filed by the parties on February 1, 1985, to the extent consistent with this judgment and sentence is made part hereof.

Sentence

Defendant Richard Porter is hereby sentenced to a term of imprisonment for one year. The said imprisonment will be suspended on condition that the defendant pays to this Court, a fine of $1,500 within thirty (30) days from the imposition of this sentence. If this imprisonment is suspended by virtue of the defendant's payment of the fine alternatively imposed, the following conditions will apply to the defendant:

1. The defendant's motor vehicle operator's license is suspended for six months.

2. During the term of such sentence, the defendant is not at liberty to leave the jurisdiction of this Court, without the prior permission of this Court.

[1 P. S. Ct. R 132]

3. For the first six months, the defendant shall conduct himself in a manner that abides by laws applicable to this State. For the last six months, the defendant shall observe and obey all traffic laws applicable to this State.

4. Within ten (10) days from the full payment of the fine, the defendant shall report to the Pohnpei State Probation Officer; who shall set up the manner of the defendant's subsequent reports, which reports shall not be less than three times during the suspended sentence.

5. In the event of a violation of these conditions, this Court - shall have the discretion to amend or revoke this suspended sentence and commit the defendant to jail.

Imposed: February 2, 1985

Order To Amend Judgment

Included among the certain rights that this Court advised the defendant in its proceedings in the above-entitled matter on February 2, 1985, was "that he has the right to request a closed trial." This was done in accord with Rule 11 (c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure, which is an adoption of the Ponape State Charter Article II, Section 4

[1 P. S. Ct. R 133]

(3TTC496) providing in part:

". . In all criminal prosecutions the accused shall enjoy the right to a speedy trial, public or private as he may request. . . "

The Ponape State Charter is a creation of P.L. 7-124 which took effect on May 1, 1978.

[4-9] The Pohnpei State Constitution, which took effect on November 8, 1984, supersedes the Ponape State Charter in all respects. Any law in conflict with the Constitution is invalid to the extent of the conflict. (Article 2 - Supremacy, Pohnpei State Constitution) The Constitution provides as one of the rights guaranteed to an accused in criminal prosecutions, "...he shall have the right to a speedy, public and impartial trial..." (emphasis added) (Article 4 - Due Process, Pohnpei State Constitution) A tracing of the history of the Ponape State Constitutional Convention actions on rights of an accused to trial "public or private", shows that the framers of the Constitution knowingly and intentionally deleted the right to private trial, as was contained in its Preliminary Draft Constitution. Therefore, that which was a right to private trial under the Charter is not a right under the Constitution of this State. In effect, an

[1 P. S. Ct. R 134]

accused has, as a constitutional guarantee, a right to public trial.

[9-10] The intent of this provision is that justice cannot endure behind the curtain of secrecy. It is subject to the rule of reasonableness. It does not prohibit the Court from exercising its discretion in protecting youthful defendants from the harmful effects of a public trial. It requires that the courts, in general, must balance the guarantee of an open and public trial against what may be countervailing considerations of public morals, peace and good order. See Sub-Committee Report No. 59, attached to Standing Committee Report No. 59, Ponape State Constitutional Convention.

[11] Accordingly, item 7 on page three of the Judgment in this cause is hereby deleted. Rule 11 (c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure, to the extent of its conflict with the Constitution is void as being unconstitutional.

It is so ORDERED:


	POHNPEI SUPREME COURT REPORTS VOL. 1 [1 P. S. Ct. R 124] POHNPEI STATE, Plaintiff v. RICHARD PORTER, Defendant Pohnpei Criminal Case No. 565-84 Trial Division of the Pohnpei Supreme Court February 2, 1985 & February 12, 1985 Defendant was charged on three counts, namely Count I, Careless Driving; Count II, Driving on the left-Hand-Side of the Highway; and Count III, Vehicle Homicide. On arraignment he entered a plea of not guilty to each count. But at the trial counsel filed a stipulated plea agreement signed by both counsel and the defendant himself, seeking leave of the Court to dismiss Counts I and II, and to change his plea.on Count III from not guilty to nolo contenders. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, held that a plea of nolo contenders was not a matter of right with the accused and that acceptance was within the broad discretion of the Court. 1. Criminal Law - Pleas - Nolo Contenders A plea of nolo contenders is not a matter of right with the accused; acceptance is within the broad discretion of the Court. (21 Am Jur [1 P. S. Ct. R 125] 20; Criminal Law, Section 499) 2. Criminal Law - Pleas - Nolo Contendere A plea of polo contenders shall be accepted by the Court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. (PNI Rules of Criminal Procedure, Rule 11 (B)). 3. Criminal Law - Pleas - Nolo Contendere Where defendant enters into a stipulated plea agreement under which he pleads nolo contenders in respect of an offense charged, and the Court advises him of his rights, and the Court is fully satisfied that the defendant fully understands his rights and persists on the stipulated plea agreement voluntarily without force, threats or promises other than the plea agreement the Court will accept the agreement. Editorial Note In an order of February 12,1985, by the Court to amend the judgment in this case the Honorable Judge noted that included among the rights about which the Court advised the defendant in this case was "that he has the right to request a closed trial" in accordance with Rule 11(c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure which was an adoption of the Ponape State Charter, Article II, Section 4 (3TTC496) providing in part that: . . .In all criminal prosecutions the accused shall enjoy the right to a speedy trial, public or private as he may request..." The following headnotes from the Judge's order to amend his judgment relates to constitutional guarantee of public trial and to the constitutionality of the provision in Rule 11 (c)(6). 4. Constitutional Law The Pohnpei State Constitution, which took effect on November 8, 1984, supersedes the Ponape State Charter in all respects. [1 P. S. Ct. R 126] 5. Constitutional Law - Validity of Laws Any law in conflict with the Constitution is invalid to the extent of the conflict. (Article 2 -Supremacy, Pohnpei State Constitution) 6. Constitutional Law - Guaranteed Rights of Accused Persons The Constitution provides as one of the rights guaranteed to an accused in criminal prosecutions,"... the right to a speedy, public, and impartial trial..." (Article 4 - Due Process, Pohnpei State Constitution) 7. Constitutional Law - Guaranteed Rights of Accused Persons A tracing of the history of the Ponape State Constitutional Convention actions on rights of an accused to trial "public or private", shows that the framers of the Constitution knowingly and intentionally deleted the right to private trial as was contained in its Preliminary Draft Constitution, therefore that which was a right to private trial under the Charter is not a right under the Constitution of this State. 8. Constitutional Law - Guaranteed Rights of Accused Persons An accused has, as a constitutional guarantee, a right to public trial. 9. Constitutional Law - Guaranteed Rights of Accused Persons Youthful Defendants While an accused person has, as a constitutional guarantee, a right to public trial, the exercise of the right is subject to reasonableness, and does not prohibit the Court from exercising its discretion in protecting youthful defendants from the harmful effects of a public trial. 10. Constitutional Law - Guaranteed Rights of Accused Persons The Court, when considering the reasonableness or otherwise in allowing an accused person a public trial, in general, must balance the guarantee of an open and public trial against what may be countervailing considerations of public morals, peace and good order. [1 P. S. Ct. R 127] 11. Constitutional Law - Validity of Laws Rule 11 (c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure, to the extent of its conk list with the Constitution, is void as being unconstitutional. Counsel for Plaintiff: Dickson Santos Counsel for Defendant: Matt Mix and James Hagerstrom JUDAH C. JOHNNY, Associate Justice Judgment I heard the arraignment in this matter on January 29, 1985, in Kolonia, State of Pohnpei. Herein, the defendant is charged with three counts: to wit, Count I of Careless Driving, Count II of Driving on the Left-hand-side of the Highway, and Count III of Vehicle Homicide. The defendant entered a plea of not guilty to each count. In preparation for trial, it was agreed during this arraignment proceeding that counsel would file all pre-trial motions by February 1,1985, and a chambers conference would follow on the same date to determine the manner in which to proceed into trial. On February 1, 1985, at the call of this matter, counsel filed a Stipulated Plea Agreement, which was signed by both [1 P. S. Ct. R 128] counsel as well as the accused himself. In this agreement, parties seek leave of this Court to dismiss Counts I and II, and to permit the defendant to change his plea on Count III from not guilty to nolo contendere. A recommended sentence was embodied in the agreement. This Court scheduled hearings on the stipulated plea agreement, pursuant to Rule 11, Rules of Criminal Procedure, for February 2, 1985. On February 2,1985, under requirement of Rule 11, this Court addressed the defendant personally, at which time he was advised as follows: 1. That based upon the stipulated plea agreement, this Court will determine the propriety of dismissing Counts I and II of the complaint. 2. That as for Count III, to which he had offered a plea of nolo contendere, he had in effect elected not to contest the charge that he involuntarily took the life of another by unlawful use of a vehicle; that the maximum penalty that might be imposed was a fine of less than $3,000 or imprisonment for less than three years, or both. [1 P. S. Ct. R 129] 3. That while it appeared to the Court that he was represented by counsel at the hearing, if he had no counsel, he had right to be represented by counsel at every stage of the proceedings against him. 4. That he had right to plead not guilty or to persist in that plea as he had made; that he had the right to a trial and at such trial, had the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself. 5. That if he pleaded guilty or nolo contendere, there would not be a further trial of any kind, so that by pleading guilty or nolo contendere, he waived the right to trial. 6. That if he pleaded guilty or nolo contendere, the Court might ask him questions about the offense to which he pleaded; that if he answered the questions under oath, on the record, and in the presence of counsel, his answers might later be used against him in a prosecution for perjury or false statement. 7. That he had the right to request a closed trial. As to each [1 P. S. Ct. R 130] of these rights, the Court inquired of the defendant personally if he understood, to which the defendant indicated his understanding of them. [1-3] A plea of nolo contendere is not a matter of right with the accused. Acceptance is within the broad discretion of the Court. 21 Am Jur2d.,Criminal Law, Section 499. Also see 152 ALR 267, and the more recent annotation in 89 ALR 2d 563, at Section 14. Such plea shall be accepted by the Court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. Rule 11(b), Pohnpei Rules of Criminal Procedure. Having so advised the defendant, and being fully satisfied that he understands his rights as enumerated above, and therefore persists on the stipulated plea agreement, voluntarily without force, threats or promises other than the plea agreement, it is ORDERED as follows: 1. That Counts I and II of the Complaint are each hereby dismissed. 2. That Count III, Vehicle Homicide stands and the Court [1 P. S. Ct. R 131] hereby accepts the defendant's offered plea of nolo contendere. Pursuant to Rule 11 (e) (3) of the Pohnpei Rules of Criminal Procedure, that the Stipulated Plea Agreement which was filed by the parties on February 1, 1985, to the extent consistent with this judgment and sentence is made part hereof. Sentence Defendant Richard Porter is hereby sentenced to a term of imprisonment for one year. The said imprisonment will be suspended on condition that the defendant pays to this Court, a fine of $1,500 within thirty (30) days from the imposition of this sentence. If this imprisonment is suspended by virtue of the defendant's payment of the fine alternatively imposed, the following conditions will apply to the defendant: 1. The defendant's motor vehicle operator's license is suspended for six months. 2. During the term of such sentence, the defendant is not at liberty to leave the jurisdiction of this Court, without the prior permission of this Court. [1 P. S. Ct. R 132] 3. For the first six months, the defendant shall conduct himself in a manner that abides by laws applicable to this State. For the last six months, the defendant shall observe and obey all traffic laws applicable to this State. 4. Within ten (10) days from the full payment of the fine, the defendant shall report to the Pohnpei State Probation Officer; who shall set up the manner of the defendant's subsequent reports, which reports shall not be less than three times during the suspended sentence. 5. In the event of a violation of these conditions, this Court - shall have the discretion to amend or revoke this suspended sentence and commit the defendant to jail. Imposed: February 2, 1985 Order To Amend Judgment Included among the certain rights that this Court advised the defendant in its proceedings in the above-entitled matter on February 2, 1985, was "that he has the right to request a closed trial." This was done in accord with Rule 11 (c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure, which is an adoption of the Ponape State Charter Article II, Section 4 [1 P. S. Ct. R 133] (3TTC496) providing in part: ". . In all criminal prosecutions the accused shall enjoy the right to a speedy trial, public or private as he may request. . . " The Ponape State Charter is a creation of P.L. 7-124 which took effect on May 1, 1978. [4-9] The Pohnpei State Constitution, which took effect on November 8, 1984, supersedes the Ponape State Charter in all respects. Any law in conflict with the Constitution is invalid to the extent of the conflict. (Article 2 - Supremacy, Pohnpei State Constitution) The Constitution provides as one of the rights guaranteed to an accused in criminal prosecutions, "...he shall have the right to a speedy, public and impartial trial..." (emphasis added) (Article 4 - Due Process, Pohnpei State Constitution) A tracing of the history of the Ponape State Constitutional Convention actions on rights of an accused to trial "public or private", shows that the framers of the Constitution knowingly and intentionally deleted the right to private trial, as was contained in its Preliminary Draft Constitution. Therefore, that which was a right to private trial under the Charter is not a right under the Constitution of this State. In effect, an [1 P. S. Ct. R 134] accused has, as a constitutional guarantee, a right to public trial. [9-10] The intent of this provision is that justice cannot endure behind the curtain of secrecy. It is subject to the rule of reasonableness. It does not prohibit the Court from exercising its discretion in protecting youthful defendants from the harmful effects of a public trial. It requires that the courts, in general, must balance the guarantee of an open and public trial against what may be countervailing considerations of public morals, peace and good order. See Sub-Committee Report No. 59, attached to Standing Committee Report No. 59, Ponape State Constitutional Convention. [11] Accordingly, item 7 on page three of the Judgment in this cause is hereby deleted. Rule 11 (c)(6) of the Pohnpei Supreme Court Rules of Criminal Procedure, to the extent of its conflict with the Constitution is void as being unconstitutional. It is so ORDERED: