9 NICS App. 86, PORT GAMBLE TRIBE v. CHARLES-DECOTEAU (March 2010)
IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS
PORT GAMBLE S’KLALLAM INDIAN RESERVATION
KINGSTON, WASHINGTON
Port Gamble S’Klallam Tribe, Plaintiff and Appellee,
v.
Sheila Charles-Decoteau, Defendant and Appellant.
No. POR-CR-10/09-200 (March 8, 2010)
SYLLABUS*
Trial court issued judgment and sentencing order following defendant’s admission of guilt concerning several criminal charges. Court of Appeals concludes the appeal is unsupported by the record or applicable law and is therefore frivolous. Appeal dismissed.
Before: Eric Nielsen, Chief Judge; Leona T. Colegrove, Judge; Lisa M. Vanderford-Anderson , Judge.
OPINION
Nielsen, C.J.:
This matter comes before the Port Gamble S’Klallam Tribal Court of Appeals pursuant to the Motion for Appeal Filed by appellant Sheila Charles-DeCoteau on January 22, 2010. Appellant pled guilty to fraud and now appeals her sentence.1 We affirm the sentence and dismiss the appeal.
I. Facts
Appellant, Sheila Charles-DeCoteau, who was employed by the Tribe, was charged with eleven counts of fraud. It was alleged she used a tribal credit card to purchase items for her own
9 NICS App. 86, PORT GAMBLE TRIBE v. CHARLES-DECOTEAU (March 2010) p. 87
use, including gift cards.2 Although not charged with any drug-related offenses, appellant volunteered at her arraignment that she had traded at least some of the gift cards for oxycontin.
An arraignment was held on December 1, 2009. At the arraignment the prosecutor properly informed appellant of the charges and that in the event she was found guilty, the maximum penalty for each count was a $5,000 fine, one year of jail and restitution. The court then advised appellant of her rights after which appellant knowingly, intelligently and voluntarily pled guilty to all eleven fraud charges.
After appellant entered her pleas, the prosecutor requested a sentencing hearing be scheduled for January 5, 2010. The court asked the prosecutor if she had any recommendations for an order pending sentencing. In response, the prosecutor informed appellant and the court that if appellant began serving jail time prior to the January 5th sentencing hearing, the time served would be credited against whatever sentence the court imposed. The prosecutor told appellant if she chose to serve jail time before the sentencing hearing the Tribe would recommend the sentence reflect credit for “at least 30 days” or “at least through January 5”, the date of the sentencing hearing.
Appellant declined the invitation to begin serving jail time prior to the sentencing hearing. The court then instructed appellant to “step out for a minute” while another matter was heard, but requested she “please stick around,” presumably for the purpose of completing necessary paperwork.
A sentencing hearing was held on January 5, 2010. At the hearing, the prosecutor recommended a 90 day sentence, the minimum $1,000 fine and restitution for just one count of fraud. The prosecutor requested the other ten fraud counts be dismissed.3 The court followed the recommendation and entered a judgment and sentence. The court dismissed ten of the eleven fraud counts and sentenced appellant to a 90 day sentence and $1,000 fine on the one remaining fraud count.
II. Appeal
On appeal, appellant claims: 1) the sentence was too severe and inconsistent with sentences given in similar cases; 2) she was told by the judge she would only be sentenced to 30 days if she pled guilty; 3) the Tribal Council has reviewed the judge’s decisions and rulings because they are erratic and inconsistent and; 4) the judge discussed her case with court and/or
9 NICS App. 86, PORT GAMBLE TRIBE v. CHARLES-DECOTEAU (March 2010) p. 88
law enforcement personnel while she was not present. She also requests this Court order her transferred to a treatment facility in lieu of jail.
III. Decision
We have independently reviewed the entire record of the plea and sentencing hearings, the court’s file and appellant’s pleadings.4 Based on that review we find the appeal frivolous because the issues she identifies on appeal are unsupported by the record and the law. Moreover, appellant has served 60 days of the 90 day sentence. If the appeal is not decided expeditiously, she will have served the entire sentence before we can issue a decision. Thus, it would serve no purpose (other than to waste judicial resources, render the appeal moot, and possibly subject appellant to costs under PGSTC § 7.09.02) to require the parties brief the issues.5 This Court can take any action the merits of the case and interest of justice requires. PGSTC § 7.08.01. For the above reasons, we find that in this particular case the interest of justice mandates the appeal be decided on the record without briefs or oral argument.
The trial court’s sentencing authority is limited to that prescribed by the Tribe’s code. PGSTC § 2.07.24. Under the code, fraud is a Class B offense. PGSTC § 5.02.10. A judge is authorized to sentence a defendant convicted of a Class B offense to a jail term of up to one year and a $5,000 fine or both. PGSTC § 5.07.04. Within that sentencing range the judge has broad discretion in determining the appropriate sentence. See, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (judge has broad discretion in determining a sentence within the range prescribed by the legislature).
Appellant could have been sentenced to one year in jail and a $5,000 fine. PGSTC § 5.07.04. Appellant’s 90 day sentence and $1,000 fine was well within, and on the lower end, of the range authorized by law. Even if this Court had both the authority and inclination to second guess a sentence within the statutory range, which we do not6, we would conclude the 90 day sentence was not too severe under the most liberal definition of severity. We would also conclude the court did not abuse its discretion sentencing appellant to incarceration in lieu of treatment or by denying her request for transfer from jail to a treatment facility.7
9 NICS App. 86, PORT GAMBLE TRIBE v. CHARLES-DECOTEAU (March 2010) p. 89
As to appellant’s other arguments, there is nothing in the record either before, during or after appellant’s pleas that shows the trial judge (or the prosecutor for that matter) explicitly or implicitly promised, suggested or hinted appellant would receive or could expect to receive a 30 day sentence; the judge discussed appellant’s case with others in her absence; the tribal council has reviewed the judge’s decisions because they are erratic;8 or the sentence was inconsistent with sentences in similar cases.9
IV. Conclusion
In sum, appellant’s arguments on appeal are unsupported by the record, the law or logic. Her appeal is wholly frivolous. We affirm the trial court’s sentence and dismiss the appeal.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Appellant’s Motion for Appeal fails to comply with the requirements of PGSTC § 7.04.01 and § 7.04.04 that it identify the decision and parts thereof that the party wants reviewed. It is therefore not possible to tell if appellant seeks review of the Judgment and Sentencing Order entered by the Port Gamble S’Klallam Community Court on January 5, 2010, or merely the Order entered by the Community Court on January 21, 2010 denying appellant’s motion to be transferred from jail to an inpatient treatment facility for drug and mental health issues. We will address both orders.
Appellant was also charged under separate cause numbers with one count of theft, one count of misuse of funds, and two counts of possession of stolen property. Those charges are not part of this appeal.
The prosecutor also recommended that for each of the other charges (theft, possession of stolen property and misuse of funds), appellant be sentenced to 90 days and the minimum fine, but that the sentences be suspended on the condition appellant complied with the terms of a year probationary period. The court adopted the recommendation.
This Court held an appeal conference on March 2, 2010 after notice to the parties pursuant to PGSTC § 7.07.02.
Appellant filed her notice of appeal on January 22, 2010 and was obligated to file her appellant’s brief by February 22, 2010. PGSTC § 7.07.07. Appellant could have timely filed a brief but has failed to do so. We also take this opportunity to note appellant failed to comply with the requirement she serve notice of the appeal on the prosecutor and file an affidavit of service. PGSTC § 7.04.03. Her appeal could be dismissed based on that failure.
On appeal, except in situations that do not pertain to this case, this Court’s review is limited to issues of law. PGSTC § 7.03.04.
The trial court ordered that appellant could request she be sent to treatment in lieu of jail after completing 60 days of her 90 day sentence. The judge has the discretion to suspend all or part of a sentence on such conditions as the court seems just. PGSTC § 2.07.02.
Moreover, even if the Tribal Council has reviewed the judge’s decisions and rulings, it is irrelevant to the issue of whether appellant’s sentence is proper or legal.
Even if the record showed defendants convicted of fraud have received a different sentence than appellant it would have no bearing on the issue of whether appellant’s sentence was illegal or somehow improper. The code only requires the sentence not exceed what is authorized for that class of offense. PGSTC § 2.07.24. It does not require a judge to impose the identical sentence for every defendant convicted of the same or similar offense. In fact, the judge is authorized to fashion a sentence based on the defendant’s conduct, criminal history and the circumstances of the offense. PGSTC § 5.07.03.