Port Gamble S'klallam Tribe v. Charles-Decoteau, (2010)

• Decision Date: 08 March 2010
• Docket Number: POR-CR-10/09-200
• Citation: Port Gamble S'klallam Tribe v. Charles-Decoteau (Port Gamble Sklallam Tribal Ct. of App. 2010)
• Parties: PORT GAMBLE S'KLALLAM TRIBE, PLAINTIFF AND APPELLEE, v. SHEILA CHARLES-DECOTEAU, DEFENDANT AND APPELLANT.
• Court: Port Gamble Sklallam Tribal Court of Appeals

PORT GAMBLE S'KLALLAM TRIBE, PLAINTIFF AND APPELLEE, v. SHEILA CHARLES-DECOTEAU, DEFENDANT AND APPELLANT.

No. POR-CR-10/09-200

Port Gamble S'klallam Tribal Court of Appeals Port Gamble S'klallam Indian Reservation Kingston, Washington

March 8, 2010

SYLLABUS BY THE COURT

SYLLABUS^*fn1

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 appellantSheila Charles-DeCoteau on January 22, 2010.Appellant pled guilty to fraud and now appeals her sentence.^[2]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 use, including gift cards.^[3] 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.^[4]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 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.^[5] 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.^[6]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 not^[7] , 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.^[8]

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;^[9] or the sentence was inconsistent with sentences in similar cases.^[10]

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.

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Notes:

*fn1 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...