BEFORE: MIGUEL S. DEMPAN, Chief Justice, ALEXANDRO C. CASTRO, Associate Justice, JOHN A. MANGLONA, Associate Justice.
ORDER DENYING MOTION FOR STAY OF SENTENCE
PER CURIAM:
P1 On November 19, 2004, Defendant Raymond B. Blas ("Blas") filed an Emergency Ex Parte Motion Under Rule 27(f) for Stay Pending Appeal by Appellant pursuant to Commonwealth Rules of Appellate Procedure 8(c) and 27(f), asking this Court to stay his sentence pending appeal. The Commonwealth filed a reply on November 29, 2004. Blas provides an inadequate record, therefore the motion is denied.
Com. R. App. P. 8(a) (emphasis added).
Com. R. App. P. 27(f)(3).
Blas asserts that the proper legal analysis is set forth by Vaughn v. Bank of Guam, 1 N.M.I. 318 (1990). Vaughn is a civil case and its application to a motion to stay execution of sentence pending appeal by a criminal defendant is incorrect. See Commonwealth v. Martinez, 4 N.M.I. 18, 20 (1993) ("Com. R. App. P. 9(c) provides the criteria for determining whether to issue a stay of sentence pending appeal.")
P2 Blas was charged with a three-count Information. Count I charged him with vehicular homicide in violation of 9 CMC § 7110(a) made punishable by 9 CMC § 7109(d). Count II charged him with driving under the influence of alcohol in violation of 9 CMC § 7105(a)(1)-(5) made punishable by 9 CMC § 7109(a). Count III charged him with reckless driving in violation of 9 CMC § 7104 (a) made punishable by 9 CMC § 7104(a)-(c). Pursuant to CNMI law, guilt or innocence was determined by the jury on Count I and by the trial court judge on Counts II and III. The jury found Blas not guilty of the vehicular homicide charge, and the trial court judge found him guilty of driving under the influence of alcohol and reckless driving.
7 CMC § 3101(a). See also 6 CMC § 2150(a)(8) (right to jury trial in certain criminal prosecutions involving potential property forfeiture); 7 CMC § 2253 (no right to jury in actions against Commonwealth); 7 CMC § 2214 (Commonwealth may demand a jury trial in certain cases); and 8 CMC § 1714(d) (no right to jury in paternity actions).
P3 On November 17, 2004, Blas was sentenced to serve five (5) years imprisonment, all suspended except for one (1) year for the DUI conviction and six (6) months for reckless driving, with both sentences to run concurrently. At sentencing, Blas requested additional time to prepare a motion for stay to this Court, but the request was summarily denied. Blas filed a Notice of Appeal on this same date. The trial court entered its judgment of convictions on November 18, 2004. Blas began serving his sentence on November 29, 2004.
P4 In Commonwealth v. Martinez, 4 N.M.I. 18 (1993), we ruled that in criminal cases, motions to stay sentence based on Commonwealth Rule of Appellate Procedure 8(c) also implicate Commonwealth Rule of Appellate Procedure 9(c). Martinez, 4 N.M.I. at 20. Turning to the federal rules for guidance, we stated:
Under Commonwealth Rule of Appellate Procedure 9(c), the criteria for release, used by the Supreme Court, for appeals from orders respecting release entered prior to a judgment of conviction and for release pending appeal from a judgment of conviction, "shall be made in accordance with Superior Court Criminal Rule 46." Com. R. App. P. 9(c). "Superior Court Criminal Rule 46" is Commonwealth Rule of Criminal Procedure 46.
FED. R. APP. P. 8(c) provides that stays in criminal cases shall be had in accordance with FED. R. CRIM. P. 38(a). FED. R. CRIM. P. 38(a), in turn, provides that a sentence of imprisonment is to be stayed if the defendant is released pending appeal pursuant to FED. R. APP. P. 9(b). Com. R. App. P. 9(b) is patterned after FED. R. APP. P. 9(b) and sets forth the criteria for release of defendants pending appeal. If eligible for release pending appeal, a stay of sentence is proper.
Id. (emphasis added).
P5 Three factors determine whether a defendant is eligible for release pending appeal. Com. R. App. P. 9(c); Com. R. Crim. P. 46(c). A defendant has the burden of establishing that: (1) he will not flee the jurisdiction or pose a danger to any other person or to the community; (2) the appeal is not taken for the purpose of delay; and (3) the appeal raises a substantial question of law or fact likely to result in reversal or in an order for a new trial. Martinez, 4 N.M.I. at 20; Com. R. App. P. 9(c); Com. R. Crim. P. 46(c).
P6 As a threshold requirement, however, Com. R. App. P. 8(a) requires an initial application for a stay in the trial court. Com. R. App. P. 8(a). Blas failed to pursue a stay in the trial court, insisting that "given the circumstances of this case, it would have been futile to pursue the same with the trial court." Appellant's Rule 27(f) Certification by Counsel for Appellant (November 18, 2002) at 2. It is hard to imagine how establishing a clear record in the trial court which preserves for appeal the trial court's specific legal and factual analysis for determining whether or not to grant a stay is a futile pursuit. Without an adequate record, proper analysis of the three Rule 46(c) factors is not possible.
To alleviate confusion, we have recommended the following procedure for pursuing a motion for stay pending appeal: "(1) upon imposition of sentence, a notice of appeal should immediately be filed; (2) the motion for stay of sentence pending appeal should be filed simultaneously or immediately after filing the notice of appeal; (3) the court should allow the opposing party to respond in writing, and should then set an expedited hearing; (4) if, after the hearing, the judge denies the motion, the judge should expeditiously issue a written order setting forth the reason(s) for the denial; and (5) the defendant may then renew the motion for stay with the Supreme Court, attaching the trial court's order." Commonwealth v. Martinez, 4 N.M.I. 18, 21-22 (1993).
P7 Specifically, we are unable to determine if Blas is a flight risk, a danger to the community or any other person, or whether the appeal is taken for the sake of delay. Further, based on the record, we are not satisfied that Blas has met his burden of establishing that his appeal raises a "substantial question" of law or fact likely to result in reversal or in an order for a new trial.
P8A "substantial question" of law is one that is "fairly debatable" or "doubtful." United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985). Blas argues that "that there is no doubt" he will prevail on appeal. In support of this conclusion, he asserts that 9 CMC § 7110(a), the statutory language specific to vehicular homicide, requires proof beyond a reasonable doubt that defendant "violat[ed] … any law applying to the operation or use of a vehicle or to the regulation of traffic[.]" 9 CMC § 7110(a). Because the jury instructions referred to both driving under the influence of alcohol and reckless driving as the traffic offenses to be considered in making the vehicular homicide decision, he argues, the jury's finding of not guilty on the vehicular homicide charge must result in a subsequent finding of not guilty on the driving under the influence and reckless driving charges. Appellant's Ex Parte Motion for Stay Pending Appeal Pursuant to Rule 8(c) (November 19, 2004) ("Appellant's Motion") at 3. Blas asserts that the trial court's bench ruling convicting him of the driving under the influence and reckless driving charges results in inconsistent verdicts and will be reversed on appeal. Id.
Appellant's Ex Parte Motion For Stay Pending Appeal Pursuant To Rule 8(c) (November 19, 2004) at 3.
9 CMC § 7110(a).
Blas fails to provide this Court with a copy of the jury instructions at issue. Without these instructions, we are unable to determine the validity of this assertion.
P9 Blas does not support his general legal conclusions. First, he relies on language contained in the jury instructions, but fails to provide any such record. See Com. R. App. P. 8(a) ("With the motion shall be filed such parts of the record as are relevant."). Without this information in the record, we cannot determine the potential legal impact of the jury instructions. Second, he presents no legal authority to support his conclusion that an alleged inconsistent verdict must be reversed on appeal.
P10 Finally, Blas argues that the trial court's sentencing was inconsistent with what is required under the statute. See Appellant's Motion at 3. He asserts that 9 CMC § 7109(d) requires proof of "grievous bodily injury to any person," and that the trial court noted at sentencing that no medical testimony was presented by the Commonwealth to prove such injury. Appellant's Motion at 3. Again, he does not support his assertions with excerpts of the relevant portions of the transcripts and, based on the record provided to us, we have no way of determining how the trial court reached its conclusion.
Bias points out that under 9 CMC § 7109(d), proof of "grievous bodily injury to any person" is required. See 9 CMC § 7109(d). At trial, he argues, no medical testimony was presented by the Commonwealth to establish such bodily harm and, therefore, sentencing under 9 CMC § 7109(d) was improper.
P11 The record provided is deficient, and, as a result, Blas has not met his burden of establishing that his appeal raises a serious question of fact or law likely to result in reversal or in an order for a new trial. Because Blas fails to meet his burden under the Rule 46(c) factors, he is not entitled to release pending appeal. A stay of sentence is not proper, and the motion for stay is DENIED. SO ORDERED THIS 10TH DAY OF DECEMBER 2004.
On December 7, 2004, Bias requested a full panel hearing. Based on the issues presented, we determined that a full panel review was warranted. See Order (December 10, 2004), filed contemporaneously with this decision.
MIGUEL S. DEMAPAN
Chief Justice
ALEXANDRO C. CASTRO
Associate Justice
JOHN A. MANGLONA
Associate Justice