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Remengesau v Republic of Palau [2011] PWSC 14; Criminal Appeal 001.2010 (13 May 2011)

IN THE SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

CRIMINAL APPEAL No. 10-001
Criminal Case No. 09-092

TOMMY E. REMENGESAU, JR.,
Appellant,

v.

REPUBLIC OF PALAU,
Appellee.

Decided: May 13, 2011

[1] Appeal and Error: Petition for Rehearing

A party seeking rehearing pursuant to ROP R. App. P. 40(a) must specifically pinpoint how the court made a mistake or misunderstood the law or facts.

Counsel for Appellant: Oldiais Ngiraikelau
Counsel for Appellee: Jason L. Loughman, Assistant Attorney General

BEFORE: LOURDES F. MATERNE, Associate Justice; ALEXANDRA F. FOSTER, Associate Justice; and RICHARD H. BENSON, Part-Time Associate Justice.

ORDER

PER CURIAM:

1. Appellant Tommy E. Remengesau Jr. filed a Petition for Rehearing following the Court's March 30, 2011 Opinion. He seeks review of our Opinion affirming the Trial Division's penalty assessment of $156,400.00. For the following reasons, the Petition is denied.

2. [1] Following an Appellate Division Opinion, a party may seek rehearing pursuant to the standard set forth in ROP R. App. P. 40(a): "The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition." This standard requires the party seeking rehearing to specifically pinpoint how the Court made a mistake or misunderstood the law or facts. We grant petitions for rehearing exceedingly sparingly - only in instances "where this Court's original decision obviously and demonstrably contains an error of fact or law that draws into question the result of the appeal." Melaitau v. Lakobong, 9 ROP 192, 192 (2002) (quotation marks and citation omitted).

3. Our Opinion held that although the Trial Division erred in holding that there were ten violations of 33 PNC ' 605 instead of two, the penalty was not reversible error because it was not based on the number of violations of the statute. Remengesau Jr. contends that the court did impose a per violation penalty, and therefore this Court should permit rehearing because Defendant has the right to know the penalty assessed for each violation. The petition presents three arguments along these lines. None convince us that our Opinion contains an obvious error of law.

4. First, Remengesau Jr. references specific portions of the trial court's sentence, first quoting the section where the Trial Division explained the penalty it may impose:

5. At one end of the sentencing spectrum, the Court can impose no fines whatsoever on the Defendant. At the other end, the Court can impose fines of up to three times the amount Defendant failed to report on each property. The Republic recommends the latter, asking the Court to assess fines up to three times the amount Defendant failed to report and the maximum $10,000 for each violation.

(Sentencing Order at 2.) Then Remengesau Jr. quotes the actual penalty assessed:

6. [T]he Court imposes a fine equivalent to the 2002 valuations of the properties: Count 7 ($6,700.00), 8 ($40,600.00), 9 ($9,200.00), 11 ($86,700.00), and 12 ($13,200), combined, amounts to a total fine of $156,400.

7. (Id. at 9.) He claims that these excerpts show that the Trial Division imposed a per violation penalty, but we disagree with that interpretation. When the trial court reviewed the parties' proposed sentences, the Republic recommended an assessment "for each violation," but the court was simply describing each party's position. In actually assessing the penalty, the court imposed "a fine equivalent to the 2002 valuations of the properties." Although it is true that the trial court described the amounts by count and then combined them to total the penalty amount, nowhere did the court state that the assessment was a "per violation" assessment; it was simply the total amount that went unreported in 2002. In reviewing the record and the court's decision, we were unconvinced that the Trial Division's approach would have changed had the court concluded that each failure to disclose in the 2002 statement was one violation.

8. Second, Remengesau Jr. points to the penalty statute itself, citing the language that the court may impose a penalty for "three times the amount the person failed to report . . . for conviction of each violation." 33 PNC ' 611. We acknowledge that the statute permits a "per violation" penalty, but it also permits a penalty for the amount not reported. Because the Trial Division did not state that it was imposing a "per violation" assessment, we construed it to be a straightforward penalty for the amount not reported - a valid application of the statute. Although Remengesau Jr. may disagree with this interpretation, our conclusion was not an obvious mistake worthy of rehearing.

9. Finally, Remengesau Jr. argues that the imposition of a general sentence on multiple convictions is not proper. To buttress his argument, however, he cites a United States case dealing with imprisonment, not a fine. See United States v. Moynagh, [1977] USCA1 312; 566 F.2d 799, 805 (1977). In Moynagh a general sentence for multiple convictions was held inappropriate because it did not state whether the sentence for each count would be served concurrently or consecutively, affecting the amount of time he would be imprisoned. Moynagh is distinguishable because the penalty imposed upon Remengesau Jr. is a fine, not imprisonment. As section 611 permits a penalty for the amount not reported and the amount Remengesau Jr. did not report in his 2002 statement does not change based on which count he was convicted under, the change in the number of violations does not invalidate his penalty.

10. The penalty statute states that a penalty may be imposed for the amount not reported, and the trial court's fine was "equivalent to the 2002 valuations of the properties." Thus, our opinion affirming the penalty of $156,400.00 did not mistake the law. Accordingly, Remengesau Jr.'s Petition for Rehearing is DENIED.

SO ORDERED, this 13 day of May, 2011.

LOURDES F. MATERNE
Associate Justice

ALEXANDRA F. FOSTER
Associate Justice

RICHARD H. BENSON
Part-Time Associate Justice