--- Am. Tribal Law ----, 2023 WL 2641100 (Colville C.A.), 16 CCAR 05, 8 CTCR 28
Colville Tribal Court of Appeals.
David PRIEST, Appellant,
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP23-001
Decided March 7, 2023
This matter came before this Court for an Initial Hearing on February 17, 2023. Appellant, David Priest, appeared in person and pro se. Appellee, CCT, appeared through its spokesperson, Taima Carden. The Court, after reviewing the record and applicable law, finds cause to deny the appeal and remand the matter to the Trial Court. The decision is based on the reasoning set out below.
Appellant appeals the Trial Court Order Denying his Motion to Reconsider his 720 day jail sentence, alleging the extended jail sentence violates his rights under the ICRA’s amendments regarding the Tribal Law and Order Act (TLOA). He raises two issues under these arguments:
1. Does his extended jail sentence violate TLOA because, he alleges, the presiding Judge for his arraignment was not an attorney? And
2. Does his extended jail sentence violate TLOA because, he alleges, the jail facility doesn’t meet the standards required by TLOA?
Appellant was charged with two drug charges (Possession of Heroin, and Manufacture, Cultivate, Deliver fentanyl) on July 5, 2022.
On July 5, 2022 Appellant was arraigned before Judge Sophie Nomee, a lay judge, and a member of the Colville Tribal Court bar. He entered guilty pleas to the two charges and then was appointed a spokesperson from the CCT Public Defender’s Office for the sentencing.
At the Initial Hearing Appellee, Colville Confederated Tribes (CCT), through its spokesperson, stated that the Public Defender was available at the hearing and advised Appellant that he should not enter guilty pleas to the two charges, but Appellant made the decision to do so anyway.
On August 23, 2022 Appellant was sentenced by Judge Dana Kelley, a member of the WA State Bar. He was sentenced to consecutive sentences of 360 days for each offense, for a total of 720 days. He was given credit for 55 days served. There were no other conditions of his sentence; the case was to be closed at the completion of his jail sentence.
Including the 55 days he was credited with, Appellant had completed 167 days of his 720 sentence by the date he filed his appeal, i.e. December 13, 2022. This left 553 days of his original sentence still due.
On November 14, 2022, Appellant filed a Motion to Vacate, Set Aside Judgment/ Sentence with the Trial Court. His brief Motion stated he was proceeding pro se, and that the basis for his motion was for violations of 25 U.S.C. 1302(c)(3) and (5). He states there are violations of the procedural protections therein (TLOA and ICRA). He states a sentence of 720 days was illegal.
In his Motion to the Trial Court he made the identical arguments he has asserted in this Appeal. Judge Kelley denied the Motion on December 13, 2022, finding “... there is no basis in law or fact to support it”. He made no other findings regarding Appellant’s arguments.
Appellant filed an appeal of this last Trial Court order denying his motion on December 13, 2022.
We have addressed TLOA 5 other times in this Court. Four of the cases involved the lack of Rules of Evidence. In Frank v. CCT, 13 CCAR 10, 13 Am. Tribal Law 347 (2016), and Martinez v. CCT, 13 CCAR 12, 13 Am. Tribal Law 388 (2016) we found that sentences over 360 violated TLOA because there were no Rules of Evidence as required by TLOA.
In Desautel/Randall v. CCT, 13 CCAR 03, 13 Am. Tribal Law 150 (2016) we found that TLOA was violated in extended sentences for lack of Rules of Evidence, then we adopted the FRE’s as guidance until such time as the Tribes established its own Rules of Evidence.1
In Carson v. CCT, 13 CCAR 25, 14 Am. Tribal Law 26 (2017) we found no TLOA violation for lack of Rules of Evidence because of our ruling in Desautel/Randall.
In Martinez the question was raised regarding the qualification of the Judge under TLOA, but we found the question moot because we had ruled the extended sentence violated TLOA because of the lack of Rules of Evidence.
The last, and most recent case dealing with TLOA was Picard v. CCT, 15 CCAR 01, 16 Am. Tribal Law 81 (2020). Picard recognized that sentences over 1 year may be entered by the Trial Court if the defendant is provided (1) the right to effective assistance of counsel; (2) indigent defense by a bar licensed attorney; (3) a presiding judge to be licensed by any jurisdiction and to have sufficient training in presiding over criminal proceedings; (4) publically available criminal laws, rules of evidence, rules of criminal procedure, and rules governing the recusal of judges; and (5) the court maintains a record of proceedings.
Picard found compliance with all of the requirements set out above that were raised by Appellant. Regarding the two issues raised herein, i.e. unlicensed judge and inadequate jail, Picard found (1) the issue of the judge’s qualifications was not raised as an issue; and (2) the issue of the adequacy of the jail was raised for the first time on appeal, and there were insufficient facts to determine the nature of his objections to the jail. We did not address either issue as not properly before the Court.
Although Appellant had a spokesperson at his sentencing, he has filed this case pro se. He is appealing the latest Court order in his case in which the judge, (a licensed WA state attorney), denied his Motion to Vacate, Set Aside Judgment and Sentence. He raises issues about his Judgment and Sentence for the first time at the Trial Court level. He states Judge Nomee was not qualified to hear his case initially in that she was not a licensed attorney. Judge Nomee, a lay judge, took Appellant’s guilty plea at a telephonic hearing. On August 23, 2022 he was sentenced to the 720 days on a consecutive sentence by Judge Kelley.
We do not rule on alleged facts for the first time in our Court. Fact-finding is initially addressed at the Trial Court. Appellant made his arguments that are before us in this appeal through a motion to the Trial Court through mere statements of the alleged violations with no other facts. He alleged Judge Nomee “is not licensed to practice law by a Jurisdiction of the United States ...” and she “... made a ruling, telephonically, without Attorney present....” He did not offer any alleged proof of this statement in his motion.
Further, he alleged in his motion that “CTCF (tribal Jail) is not in compliance with four types of facilities required” by TLOA. There are no further allegations of proof of this assertion.
We recognized in Picard, supra, that TLOA requires “a presiding judge to be licensed by any jurisdiction and to have sufficient training in presiding over criminal proceedings” (my emphasis). In Martinez, supra, Judge Nomee’s qualifications were challenged. We found, as to Judge Nomee, that she had passed the Colville Tribal Bar Examination, and had attended several judicial education classes at the National Judicial College (NJC) in Reno, Nevada. We found she holds a Tribal Judicial Skills Certificate from the NJC. We did not decide regarding the sufficiency of these qualifications, however, since the judgment and sentence were reversed for other reason.
We find we have not been presented with sufficient bases to grant an appeal in this case. The challenges to Judge Nomee and the tribal jail rest on mere suppositions and not on any substantive discussion from the Trial Court. Appellant waited about 5 months before raising his issues at the Trial Court. His appeal is a collateral attack on his Judgment and Sentence, which was not timely appealed when it was entered on August 23, 2022, and should be denied.
Based on the foregoing, now, therefore
It is ORDERED the Appeal herein is DENIED and this matter is REMANDED to the Trial Court for actions consistent with this decision.
--- Am. Tribal Law ----, 2023 WL 2641100, 16 CCAR 05, 8 CTCR 28
The Tribes has since adopted Rules of Evidence, found at CTC, Chapter 1-9, codified July 23, 2019.