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[T] State v. Yi1/20/2004
commission of the present crime;
(f) The defendant's criminal conduct was the result of circumstances unlikely to recur;
(g) The character and attitudes of the defendant indicate that the defendant is unlikely to commit another crime;
(h) The defendant is particularly likely to respond affirmatively to a program of restitution or a probationary program or both;
(i) The imprisonment of the defendant would entail excessive hardship to the defendant or the defendant's dependents; and
(j) The expedited sentencing program set forth in section 706-606.3, if the defendant has qualified for that sentencing program.
2.
Yi contends that the family court improperly punished him for: (1) exercising his right to a jury trial; and (2) the uncharged crime of perjury. In making this argument, Yi relies primarily on the emphasized language in the quotation below (taken from transcripts of the sentencing hearing):
THE COURT: Okay. Your client wanted to address the court?
INTERPRETER [FOR YI]: Yeah. I like to say, I admit my fault. That's all I like to say.
I -- I fear. I'm sorry that, you know, I had to go through jury trial that taking the court's time, so I apologize for that. I like to ask a favor, you know. Hopefully give me a chance so I can support my family so as little possible, I would like to request.
THE COURT: Okay. Is that it?
INTERPRETER [FOR YI]: I -- I admit my fault. I understood principles, but --
THE COURT: Go ahead.
INTERPRETER [FOR YI]: I did not, frankly, I did not understand all the details, everything that entails. I made a mistake.
THE COURT: Okay. So a statement that he knew he did something wrong, or he didn't know and he made a mistake? I'm a little confused.
INTERPRETER [FOR YI]: At this time, I will take full responsibility.
THE COURT: Okay. Okay, Mr. Yi, if you would come here before the trial and had said all this, I certainly would have listened to all of it. You would have been given another chance. You didn't, presumably, you weren't on probation any more, so I would imagine that this would have been a minimal amount of jail.
As the prosecutor points out, though, you came into court; you took an oath to tell the truth, and you lied under oath. I'm not going to say that's based on your language 'cause the State could make what they wanted out of that, but I am convinced that you knew you weren't supposed to be in the apartment, that you knew that that's what the order was, that the officer explained that, that you understood him to say that, and you testified under oath that you didn't understand that, and that you went back.
You also have been convicted of assaulting in the past. The fact that she's still with you, I think you're an extremely lucky guy, so I don't want to, you know, I'm certainly not going to give you the maximum, because I don't think that's appropriate.
On the other hand, you do not have the right to come into court and lie to me, to the jurors, to everyone else, so I'm going to sentence you to two years of probation, four months in jail.
(Emphases added.)
Yi's claim that the family court punished him for exercising his right to a jury trial appears to take the family court's comments out of context. The family court was merely telling Yi that if Yi had come forward and taken responsibility for his actions before trial and before lying under oath, his plea for mercy would have received a much more receptive audience. Judges are understandably less impressed by de
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