Full Opinion

CLERK OF COURT ·SUPREME COURT. CNMI FILED 90 JAN ll ·All ! I � 'Fi'iR PlT'R.LICATI ON SY: ��--+- � . -_..._ ttt·THE SUPREME COURT OF THE CmrMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMNONHEALTH OF THE NORTHEIW' ) APPEAL NO. 89-11 MARIANA ISLANDs,·.. ·) SUPERIOif COURT NO. 89-271 ) Plaintiff/App-ellee, ) ) vs. J OPINION ) YUTAKA KA�vAI, ) .. . . . . ) Defendant/Appellant. ) ____ ) Submitted without d:tal argument'on December 11, 1989. Counsel for Defendant/Appellant: William M. F�tzgerald P. o. · Box·909' Saipan, MP 96950 Counsel for Plain�i � f/Appellee: James E. Hollman Assistant· Attorney General commonwealth ··Government Saipan, MP 96950 BEFORE: VILLAGOMEZ and BORJA, JUstices. and KOSACK; Special Judge. VIL�GOr-JEZ, J�stiGe:. STIPULATED FACTS On January 14, 1989, about i:oo a�m. the defendant was'· driving in Garapan when he failed to yield to an oncoming vehicle and his vehicle was struck by the other while it turned ·, 61 left at an intersection. shortly thereafter an ambulance transported the 4efendarit to the hospital. Ap�roximately 20 minutes after the collision, and while defendant was at the hospital, Officer Joseph N. Tenorio arrived and observed the defend ant . The officer observed that the det'endattt•s breath had an odor ot alcohol, his eyes were bloodshou, he was swaying, and his speech was slurred. In addition, the defendant appijared to be off•balanoe. An officer took the defendant to the Police substation in Garapan whe�e defendant sub•itted to a breathalyzer test at apprgximately 2:23 a.m. and the test gave a readinq of o.29. 'l'he poiic::!e department uses a breathalyzer instrument (breathaiyzer) identified as a "Winc:hester 2,000" which is ciesiqned to be calibtated every 90 days. Prior to administering the breatha l y z e r test, Officer Tenorio expiained to the def e ndant the implied consent form and observed hi* for about 33 minutes before the defendant qave a proper sampl e irtto the bteathalyzer. Offic•r �enorio was then a duly ce�tifi•d operator of the breathalyzet and he determined that the breathalyzer was in proper working conditio� at the time of the test. serqeant santiaqo 'udela was then a duly certified maintenance o�erator of the same breathalyzer and was responsible fo� the calibration of the instrument. He kept records of the monthly calibration of the breathalyzer since Auqust, 1984. When the instrument was first put into operation. 68 Sergeant Tudela calibrated the breathalyzer on December 1, 1988, and again on February 1, 1989, and found it to be functioning properly each time. PROCEDURAL BACKGROUND on July 27, 1989, the defendant appeared in open court with counsel and entered a plea of nolo contendere.!/ the Trial Judge consented to defendant entering such plea after the parties entered into and filed with the Court a Stipulation of Facts which supported the plea of nolo contendere.�/ Nothing in the record on appeal shows that under RUle ll the defendant did not understand his constitutional rights, or that he did not knowingly and voluntarily admit his guilt by pleading nolo contendere, or that he was not advised that by pleading nolo contendere, he waived his right to a trial. Nothing in the record on appeal shows that the defendant, upon pleading nolo contendere, reserved the right to appeal op any specific question of law, such as a failure to oharqe a crime, lack of jurisdiction, denial of motion, and so forth. Of course, by pleading nolo contendere, the defendant waived his right to a trial and thus, could not reserve to appeal any 1/A plea of nolo contendere in a criminal case has a similar legal effect as pleading guilty. u.s. y. Norris, 50 s.ct. 424, 281 u.s. 619, 74 L.Ed. 1076 (1930). 2/ "A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties • . . . " Rule 11(b) Comm.R.Cr.P. 69 question of fact. U,S. v. Norris, _50 S.Ct. 424, 281 U.S. 619, 74 L.Ed. 1076 (1930). The Trial Court adjudged the defendant guilty under, 119 CMC, Driving Under the Influence of Intoxicating Liquor."�/ The Trial Court did not find the defendant guilty specifically under 9 CMC § 7105(a) (1) (BAC) or as a result of a breathalyzer test. ISSUE Upon careful review of the stipulated facts and the procedural aspects of this case, we find absolutely no appealable issue of la-w, and there cannot be any appealable issue of fact. DISCUSSION - The. defendant asserts that the issue before this Court is whether - the Tria� Court erred in finding the defendant guilty of DUI based on the result of the breathalyzer test when there � no evidence presented showing that the breathalyzer was properly maintained and calibrated or that the test was administez:-ed properly. He contend.s �hat the .Trial court erred 31 9 CMC § 7105 (a) states: "A person shall not drive, operate or be in actual physical control of any vehicle while: (1) Having a Blood Alcohol ConQentration (BAC) of 0.10 or more as measured by-a breath or blood test; (2) Under the influence oe alcohol; or (3) - ... II 70 in finding the defendant guilty of DUI based on the result of the breathalyzer test. �he issue that the defendant suggests is before this Court is an issue of fact. That is, whether the facts adequately support the judgment of conviction. That issue cannot be raised on appeal after defendant pleaded nolo contendere. a plea of nolo contendere .. . has all the effect • . . of a plea of guilty for the purposes of the case. (Citations omitted. ) After the plea, nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record. The remedy of the accused, if he thought he had not violated the law, was to withdraw, by leave of court, the plea of nolo contendere, enter one of not guilty, and, upon the issue thus made, submi� the facts for determination in the usual and orderly way. U.S. v. Norris, 50 S. Ct. 424, 281 U.S. 619, 74 L.Ed. 1076 (1930), cited in Lott v. u.s., 81 s.ct. 1563, 367 u.s. 421, 6 L.Ed.2d 940 (1960). See also u. s. v. Frankfort Distilleries, 65 s.ct. 661, 324 u.s. 293, 89 L.Ed. 951 (1945). The defendant admitted his guilt by entering a plea of nolo contendere. That admission is the basis for the Judge's findings and judgment -- not the reading of the breathalyzer test. Furthermore, the defendant is bound by the stipulated facts. Those facts overwhelmingly support the judgment of the trial court. We conclude that there is no issue of fact before this Court. 71 In order for the defendant to have been able to raise any question of law, after pleading nolo contendere, he had to have reserved such right. See 21 AmJur 2d, Criminal Law, § 498. Our record does not show that the defendant reserved the right to appeal any question of law. Therefore, he waived that right. We conclude that there is no issue of law before this Court. We further conclude that this is a frivolous appeal�/ under Rule 38, Comm.R. App. Proc. , and this Court may impose a sanction. We cannot find any · legitimate reason for the defendant to have brought this case before this Court on appeal under the factual and procedural circumstances as set forth above. The defendant, through counsel, has abused the Commonwealth's appellate judicial process. He has wasted his time, plaintiff's time, and this Court's time. At the same time, he has delayed serving the sentence imposed upon him. Whether that is the reason for this appeal, we do not know. But if it is, then that is another reason that this is a frivolous appeal. Evans v. Brown, 109 u. s. 180, 27 L. Ed. 898, 3 s.ct. 83 (1883) . The Judgment of the Trial Court is hereby AFFIRMED and a mandate shall be issued by this Court after seven days. The defendant's counsel, William M. Fitzgerald, is hereby ORDERED 4/ A frivolous appeal is one in which no justiciable question has been presented and the appeal is readily recognizable as devoid of merit in that there is little prospect that it can ever succeed. Black's Law Dictionary, pg. 601 (5th Ed. 1979) . 72 to pay, as a sanction, the sum of One Thousand Dollars ($1,000.00) to the Clerk of this Court, within ten days after the Mandate is issued. The Clerk of the Supreme Court shall immediately serve counsel with a copy of the Mandate upon issuance. In the event that he fails to make such payment, then the sanction shall increase in the amount of Twenty-Five Doliars ($25.00) per day for every day that the payment is not made. +J... -f' Dated this I (· day of � o.. V'.V\Cl. v-v I 1990. ./ 73