8 FSM Intrm. 299-300

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

TRIAL DIVISION

Cite as FSM v. Nimwes ,

8 FSM Intrm. 299 (Chk. 1998)

[8 FSM Intrm. 299]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

CHUTOMU NIMWES,

Defendant.

CRIMINAL CASE NO. 1997-1501

ORDER DENYING STAY OF SENTENCE

Richard H. Benson

Associate Justice

Decided: April 17, 1998

APPEARANCE:

For the Defendant: Ready Johnny, Esq.

Office of the Public Defender

P.O. Box 754

Weno, Chuuk FM 96942

* * * *

HEADNOTES

Appeal and Certiorari ) Stay; Criminal Law and Procedure ) Sentencing

When a person convicted of a crime appeals only his jail sentence and seeks a stay of that sentence pending appeal, the trial court will grant a stay only if it is reasonably assured that the appellant will not flee or pose a danger to any other person or to the community, and that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in a sentence that does not include a term of imprisonment. The burden of establishing these criteria rests with the defendant. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998).

[8 FSM Intrm. 300]

Appeal and Certiorari ) Stay; Criminal Law and Procedure ) Sentencing

The request of a defendant, who is appealing only his jail sentence, for a stay pending appeal will be denied because his allegation that his four-month jail sentence for misappropriating to his own use $17,125 of government money is cruel and unusual punishment and an abuse of the judge's discretion when he has diabetes does not raise a substantial question likely to result in a sentence without a jail term and raises the inference that the appeal was brought for the purpose of delay. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

Defendant Chutomu Nimwes was convicted of Unauthorized Possession or Removal of Government Property [the government property in question being $17,125.00] by Judgment entered April 2, 1998, and his sentence included a term of imprisonment for four months to commence April 6, 1998. The defendant filed a notice of appeal on April 3, 1998. Only the term of imprisonment is appealed. The appeal contends that the four-month jail term is too harsh and thus violates the constitutional protection against cruel and unusual punishment, and that, knowing the condition of the jail and that the defendant had diabetes, it was an abuse of discretion to incarcerate him.

I now have before me the defendant's Motion to Stay Execution of Sentence of Incarceration Pending Appeal. The government has declined to respond to the motion. It is therefore before me for decision.

FSM Rule of Appellate Procedure 9(c) sets forth the criteria for release pending an appeal from a criminal conviction. First, I must be reasonably assured that the appellant "will not flee or pose a danger to any other person or to the community." FSM App. R. 9(c). I am satisfied that the appellant presents no such risk of flight or danger. Second, it must appear "that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in: . . . [in this particular case] (3) a sentence that does not include a term of imprisonment . . . ." Id. "The burden of establishing the requisite criteria rests with the defendant." Id.

The appellant is silent on whether his appeal is brought for the purpose of delay. But it does not appear that he raises a substantial question of law or fact likely to result in the elimination of the term of imprisonment. A four-month jail term for misappropriating to one's own use $17,125 of government money cannot possibly be termed cruel and unusual punishment. That cannot be considered a substantial question. It is true I am familiar with the condition of the current jail. I have inspected it. As to the defendant's diabetes, I have only his statement to the justice ombudsman that he has a diabetic condition. There are no statements from a doctor, or other medical reports, as to its severity, or how a jail term might adversely affect the condition. Having visited the jail, I cannot say that there is any substantial question that I abused my discretion in committing the defendant to it for four months. Furthermore, because this appeal does not raise any substantial question likely to obtain the result the appellant seeks, I think I may also draw the inference that it was brought for the purpose of delay.

The defendant has failed to carry his burden which would justify the stay. Accordingly, Chutomu Nimwes's motion for a stay is hereby denied.


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA TRIAL DIVISION Cite as FSM v. Nimwes , 8 FSM Intrm. 299 (Chk. 1998) [8 FSM Intrm. 299] FEDERATED STATES OF MICRONESIA, Plaintiff, vs. CHUTOMU NIMWES, Defendant. CRIMINAL CASE NO. 1997-1501 ORDER DENYING STAY OF SENTENCE Richard H. Benson Associate Justice Decided: April 17, 1998 APPEARANCE: For the Defendant: Ready Johnny, Esq. Office of the Public Defender P.O. Box 754 Weno, Chuuk FM 96942 * * * * HEADNOTES Appeal and Certiorari ) Stay; Criminal Law and Procedure ) Sentencing When a person convicted of a crime appeals only his jail sentence and seeks a stay of that sentence pending appeal, the trial court will grant a stay only if it is reasonably assured that the appellant will not flee or pose a danger to any other person or to the community, and that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in a sentence that does not include a term of imprisonment. The burden of establishing these criteria rests with the defendant. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998). [8 FSM Intrm. 300] Appeal and Certiorari ) Stay; Criminal Law and Procedure ) Sentencing The request of a defendant, who is appealing only his jail sentence, for a stay pending appeal will be denied because his allegation that his four-month jail sentence for misappropriating to his own use $17,125 of government money is cruel and unusual punishment and an abuse of the judge's discretion when he has diabetes does not raise a substantial question likely to result in a sentence without a jail term and raises the inference that the appeal was brought for the purpose of delay. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998). * * * * COURT'S OPINION RICHARD H. BENSON, Associate Justice: Defendant Chutomu Nimwes was convicted of Unauthorized Possession or Removal of Government Property [the government property in question being $17,125.00] by Judgment entered April 2, 1998, and his sentence included a term of imprisonment for four months to commence April 6, 1998. The defendant filed a notice of appeal on April 3, 1998. Only the term of imprisonment is appealed. The appeal contends that the four-month jail term is too harsh and thus violates the constitutional protection against cruel and unusual punishment, and that, knowing the condition of the jail and that the defendant had diabetes, it was an abuse of discretion to incarcerate him. I now have before me the defendant's Motion to Stay Execution of Sentence of Incarceration Pending Appeal. The government has declined to respond to the motion. It is therefore before me for decision. FSM Rule of Appellate Procedure 9(c) sets forth the criteria for release pending an appeal from a criminal conviction. First, I must be reasonably assured that the appellant "will not flee or pose a danger to any other person or to the community." FSM App. R. 9(c). I am satisfied that the appellant presents no such risk of flight or danger. Second, it must appear "that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in: . . . [in this particular case] (3) a sentence that does not include a term of imprisonment . . . ." Id. "The burden of establishing the requisite criteria rests with the defendant." Id. The appellant is silent on whether his appeal is brought for the purpose of delay. But it does not appear that he raises a substantial question of law or fact likely to result in the elimination of the term of imprisonment. A four-month jail term for misappropriating to one's own use $17,125 of government money cannot possibly be termed cruel and unusual punishment. That cannot be considered a substantial question. It is true I am familiar with the condition of the current jail. I have inspected it. As to the defendant's diabetes, I have only his statement to the justice ombudsman that he has a diabetic condition. There are no statements from a doctor, or other medical reports, as to its severity, or how a jail term might adversely affect the condition. Having visited the jail, I cannot say that there is any substantial question that I abused my discretion in committing the defendant to it for four months. Furthermore, because this appeal does not raise any substantial question likely to obtain the result the appellant seeks, I think I may also draw the inference that it was brought for the purpose of delay. The defendant has failed to carry his burden which would justify the stay. Accordingly, Chutomu Nimwes's motion for a stay is hereby denied.