People v. Agulto

• Court: Superior Court of Guam
• Decided: April 1, 2019
• Docket: CF0636-12, CF0081-13, CF0033-14
• Status: Unknown

Opinion

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6 IN THE SUPERIOR COURT OF GUAM

7 PEOPLE OF GUAM, ) Case No; UH UM6-U 8 ) Case No. CF0081-13 ) Case No. CF0033-14 9 Plaintiff, ) ) 10 v. ) ) ) DECISION & ORDER JOHNNY PALACIOS AGULTO, ) 12 DOB: 09/04/1975 ) ) 13 Defendant. ) ) 14 ) ) 15 ) 16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena, III on January 02, 2019 on IB a submission by Defendant Johnny Agulto ("Defendant") of a Motion to Withdraw Guilty Plea \9 2 to Correct Manifest Injustice. The Defendant is represented by Assistant Public Defender 0

21 Rocky Kingree, and the People of Guam are represented by Assistant Attorney General Andrew

22 Warlaumont. After considering the arguments of the parties and the applicable law, the Court 23 issues this Decision and Order and DENIES the Defendant's motion. 24

( PR1G1NAL Decision and Order CF0636-12, CF0081-13, CF0033-14, People v. Agulto

BACKGROUND 1

2 On November 15, 2012, February 19, 2013, and January 24, 2014, Defendant was

3 indicted by a grand jury in CF0636-12I, CF008l-13, and CF0033-14, respectively, on various 4 drug offenses. The matters were all initially scheduled to proceed with a jury trial on August 5 11, 2014, however, Defendant informed the Court that he accepted a global plea offer by the 6 I People. (Minute Entry, Aug. 7, 2014). 7

8 Defendant entered guilty pleas to the offense of Possession of a Schedule II Controlled

9 Substance (as a Third Degree Felony) in each case. (Plea Agreement, Aug. 15, 2014.) For each 10 of the three (3) offenses, Defendant was sentenced inter alia to three (3) years' incarceration,

with one year suspended, for each charge, to be served consecutively. (Judgment, Sep. 23, 12

13 2014.) This amounted to a total period of incarceration of six (6) years, minus fifty-six (56) days

14 of credit for time previously served. (Commitment Order, Oct. 14, 2014). 15 Defendant was initially scheduled to self-surrender on September, 22, 2014, however, 16 the date was postponed on numerous occasions due to medical ailments suffered by Defendant 17

and his children. Between September 29, 2014 and November 22, 2017, a total of twenty-nine 18

\9 (29) hearings were held, at which time the Court entertained Defendant's requests to allow him

20 additional time to resolve his medical issues before surrendering to authorities to complete his 21 sentence. 22 In December 2017, the People tiled the Motion to Enforce Sentence. (People's Mot. 23

Enforce Sentence, Dec. 07, 2017). Defendant filed his opposition, requesting that the Court 24

25 "continue to defer enforcement of sentence until such time Defendant is deemed physically able

26 to serve his sentence." (Def.'s Opp. to the Motion to Enforce Sentence at 2, Dec. 21, 2017). The 27

28 I A superseding indictment was filed on September 29, 2013 in CF0636-12.

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Decision and Order CF0636-12, CF008l-13, CF0033-14, People v. Agulm

1 Court granted the People's motion, and ordered the Defendant to surrender himself to the

2 Department of Corrections within fifteen days. (Dec. & Order, Apr. 03, 2018).

3 The Defendant subsequently filed a Motion to Withdraw Guilty Plea. (Mot. Withdraw, 4 Oct. 19, 2018). The People tiled an opposition. (People's Opposition to Mot. Withdraw, Nov. 5 01, 2018). On January 02, 2019 the Court heard arguments on the motion, and took the matter 6

7 under advisement. (Minute Entry, Jan. 02, 2019).

8 DISCUSSION

9 Under Guam Law, a Defendant by motion may request that he or she be permitted to 10 withdraw his or her plea of guilty. 8 GCA § 120.42. The timing of the Defendant's motion will Il affect the standard under which this Court reviews the request for withdraw. If the motion is 12

13 made prior to sentencing then the Court may permit a defendant ro withdraw his or her plea for

14 any reason it finds as "fair and just." People v. Castro, 2016 Guam 16 'll 21 (citing United States

15 v. Erlenborn, 483 F.2d 165, 168 (9th Cir. 1972). However, after the Defendant has been 16 sentenced, the Court considers the request under a manifest injustice standard. 8 GCA § 120.42, 17 see also Erlenborn, 483 F.2d at 168 (the fair in just standard applies only to motions made 18

19 before sentencing). Since the Defendant has already been sentenced, therefore, the manifest

20 injustice standard applies. (Minute Entry, Aug. 12, 2014). 21 The manifest injustice standard is a particularly high burden for a defendant. US. v. 22 Baker, 790 F.2d 1437, 1438 (9th Cir. 1986). The Defendant bears the burden of demonstrating 23

"a fundamental defect which inherently results in a complete miscarriage of justice" or "an 24

25 omission inconsistent with the rudimentary demands of fair procedure." Id. The Defendant

be complains of three errors in the plea bargaining process which he contends amounts to manifest

27 injustice. (Mot. W ithdraw Guilty Plea at 3-4, Oct. 19, 2018). First, the Defendant argues that 28

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his Plea Agreement incorrectly states that the potential sentence for each of the offenses he pled 1

2 guilty to carry a three year minimum, when they should have stated that the potential sentence

3 carried up to but no more than three years imprisonment. Id. at 3. Next, the Defendant asserts

4 that his previous attorney, Mikaela S. Henderson ("Attorney Henderson") misrepresented the 5 possible penalty the Defendant could face if found guilty at trial, claiming that he could face a 6 potential seventy-three (73) years in prison, and that the misrepresentation unduly coerced his 7

8 guilty plea, rendering Ir involuntary. See id. Finally, the Defendant claims the prosecutions'

9 inclusion of "direct time" in the Plea Agreement renders his plea made without sufficient

10 knowledge. Id. at 4. ll a. The Plea Agreement correctly stated the range of sentencing for the offense the 12 Defendant pled guilty to. 13 With regard to the Defendant's first contention, the Court Ends that the Plea Agreement 14

correctly states the sentencing range for the offenses. The Defendant pled guilty to Possession 15

16 of a Schedule II Controlled Substance related ro methamphetamine in each case. (Plea

17 Agreement at 2). The statute governing sentencing for this offense states: "except as stipulated

18 in § 67.401.12, the Court shall impose a sentence of imprisonment of no less than three (3) 19 years and no more than five (5) years." 9 GCA § 67.40Ll1. The exception mentioned is the 20 mandatory guideline for first offenders, which prescribes of maximum punishment of up to 21

22 three years incarceration. 9 GCA § 67.401.12. However, pursuant to the terms of the Plea

ZN Agreement, the Defendant acknowledged that he was not entitled to first offender sentencing 2 . . . . . 4 and that he had already been convicted of a slrnnlar methamphetamine possession charge. (Plea 25 Agreement at 10) ("By his signature below, Defendant explicitly admits his prior felony 26

27 conviction in Superior Court Case CF-0166-98 and agrees to be sentenced as a prior felon"), see

28 People v. Agulto, CF0166-98 (Judgment (Johnny Agulto) at 1-2, May ll, I998) (Judgment of

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Decision and Order CF0636-12, CF0081-13, CF0033-14, People v. Agulto

Guilty for the offense of Possession of a Schedule II Controlled Substance related to the 1

2 Defendant's possession of crystal math). Since the Defendant was not entitled to sentencing as

3 a first offender, the sentencing range described in the Plea Agreement: "a maximum sentence of 4 . . .» . . . . . five (5) years mcarceratxon and a mxmmum sentence of three (3) years incarceration" is in 11ne 5 with the sentencing range prescribed by statute. (Plea Agreement at 2); 9 GCA § 67.401.11. 6 Since the Plea Agreement describes the exact sentencing range as defined in statute, the Court 7

8 finds no error and, thus, no manifest injustice.

9 b. Attorney Henderson's representations concerning maximum sentence were not 10 ineffective assistance of counsel, and the record reflects that the Defendant voluntarily pled guilty.

The Defendant's next contention is that Attorney Henderson's representation that he 12

IN could face up to seventy-three (73) years in prison is both factually incorrect, and unfairly

14 coerced him into agreeing to the Plea Agreement. (Mot. W ithdraw Guilty Plea at 3). The

15 Defendant claims that "even with all of the charges receiving the max and being ran 16 consecutively" they could not add up to seventy-three years. Id. Essentially, the Defendant 17

argues ineffective assistance of counsel, which led him to plead guilty. 18

19 A defendant's plea of guilty must be made intelligently, knowingly, and voluntarily.

20 People v. Van Bui, 2008 Guam '}{ 11. In determining whether a plea was made intelligently, 21 knowingly, and voluntarily, the Court considers the totality of the circumstances, Id. 'll 15. A 22 claim of ineffective assistance of counsel may require the Court to permit a defendant to 23

24 withdraw his or her guilty plea. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.ct. 366 (1985); see

25 also People v. Castro, 2016 Guam 16 qt 56 ("[e]rroneous or inadequate legal advice may

26 constitute a fair and just reason for plea withdrawal."). The Defendant bears the burden of 27 proving ineffective assistance under the two-prong test outlined in Strickland v. Was/zingrwz, 28

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Decision and Order CF0636-12, CF008l-13, CF0033-14, People v. Agulto

466 U.S. 668 (1984). Lockhart, 474 U.S. at 58-59. The Defendant must show that Attorney l

2 Henderson's representation fell below an objective standard of reasonableness and that he was

3 prejudiced as a result. Id. at 57-59. 4 Between the Defendant's three cases, he had been indicted for: three counts of 5 Possession of a Schedule II Controlled Substance (as a Third Degree Felony),2 one count of 6

Possession of a Schedule II Controlled Substance with Intent to Distribute (as a First Degree 7

8 Felony),3 one count of Notice: Commission of a Felony While on Felony Release.4 and one I 9 count of Expired Registration (as a Petty Misdemeanor).5 The possession with intent to 10 distribute charge carried a maximum of thirty (30) years imprisonment. 9 GCA

67.40l.4(a)(1). Each of the other possession charges carried a maximum of five years each, 12

IN considering the Defendant's prior conviction, for a total of fifteen (15) years. 9 GC A §

14 67.401.1 l. The Notice: Commission of a Felony on Felony release carried a maximum penalty 15 of twenty-five (25) years. 9 GCA § 80.37.L Last, the expired registration offense carried a 16 maximum sixty (60) day penalty. 9 GCA § 80.34(b). In total, the maximum sentence possible, 17

running consecutively, was seventy (70) years and sixty (60) days. 18

19 While Attorney Henderson was technically incorrect in stating that the charges against

20 the Defendant carried a maximum of seventy-three (73) years, the Court find that this 21 representation does not fall below an objective standard of reasonableness. The Defendant's 22 charges carried a possibility of up to seventy (70) years if the sentences in each case ran 23

consecutively. Even if the Defendant completely won his case on the possession with intent to 24

25 distribute charge, which he claims he wanted to go to trial on, the Defendant would still be

27 2 Two counts in CF0636~ 12 and one count in CF0033-14. 3 CF008l-13. 28 4 CF0033-I4 5 CF0636- I2

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facing a sizeable forty (40) years in the other two cases. Attorney Henderson's representation 1

2 reasonably informed the Defendant of the great consequence that could befall him if he went to

3 trial and lost his cases. It also provided the Defendant with meaningful information to consider 4 when determining if the risk of trial outweighed the sentence outlined in the Plea Agreement, 5 which carried a total incarceration time less than the minimums for the charges. (Plea 6

Agreement at 2, 5) (Defendant to receive nine years with three years suspended for a total of six 7

8 years instead of doing the three year minimums for each of the three possession charges). I 9 In addition, the record does not reflect that the Defendant's plea was involuntary. Aside 10 from the alleged misrepresentation concerning maximum possible penalty, the Defendant does

not illustrate any further reasons as to how his plea of guilty was coerced. (See Mot. to 12

13 Withdraw at 3). At the plea colloquy the Defendant stood before this Court and affirmed that he

14 was voluntarily entering his plea of guilty. (Court Recording at 3:20:20, Aug. 12, 2014). The 15 Defendant does not assert that the colloquy was improper. See Castro, 2016 Guam 16 '}{'][ 50-54 16 (A proper plea colloquy, pursuant to 8 GCA § 60.60, and a defendant's assertion that the plea is 17

voluntary is sufficient to support a denial cf a motion to withdraw based on coercion under the 18

19 more lenient "fair and just" standard). The Defendant has never indicated to the Court that he

20 was forced to enter into the Plea Agreement. Instead, the Defendant has only asked that the 21 Coup continue to delay his sentence for medical and family reasons in the twenty-nine (29) 22 hearings between September 2014 and November 2017. (Dec. & Order at 2, Apr. 03, 2018). 23

Even when the Defendant was opposing the People's Motion to Enforce Judgment, he opposed 24

25 the motion solely on the basis that he was not yet physically able ro serve his sentence.

26 (Defendant's Opposition to People's Mot. Enforce at 2, Dec. 21, 2017). it was not until this 27 Court granted the People's Motion to Enforce that the Defendant claimed he had involuntarily 28

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Decision and Order CF0636-12, CF0081-_3, CF0033-14, People v. Agulto

pled guilty. (Mot. W ithdraw Guilty Plea at 3). Considering the totality of the circumstances, 1

2 the Court finds that the Defendant's plea was voluntary, and that the Defendant has not met his

3 burden of showing "a fundamental defect which inherently results in a complete miscarriage of 4 justice." Baker, 790 F.2d at 1438, Van Bui, 2008 Guam 'll 15. 5

As such, the Court finds that the Defendant was effectively counseled and find that the 6

Defendant was not coerced such that withdraw of his plea is required to avoid manifest 7

8 injustice. I 9 c. The record reflects that the Defendant knowingly pled guilty. 10 Last, the Court considers whether the Defendant's plea was made knowingly. As stated

above a Defendant's plea must be made intelligently, knowingly, and voluntarily. Van Bui, 12

13 2008 Guam 'I ll. The Court considers the totality of the circumstances in determining if the plea

14 was made knowingly. Id. '][ 15. A proper colloquy of the Court explaining the facts and law of a 15 plea agreement to a defendant, combined with the defendant's assertions that he or she 16 understands the terms he or she is pleading guilty to, is strong evidence that a Defendant has 17

made his or her plea knowingly and intelligently. See Castro, 2016 Guam 16 q[

19 The Defendant asserts that he could not understand the sentencing provision of the Plea

20 Agreement, and therefore his plea was made unknowingly. (Mot. W ithdraw at 4). The 21 Defendant's Plea Agreement states that: "A total of nine years shall be imposed, six of these 22 years will be served direct, the final three years shall be suspended." (Plea Agreement at 5). At 23

the colloquy, the Court and Attorney Henderson explained to the Defendant that he would serve 24

25 six years imprisonment, as outlined in the Plea Agreement. (Court Recording at 3:18:00). In

26 addition, the Court properly instructed the Defendant as to the rights he was forgoing, the 27 maximum penalties that could be imposed, and multiple times asked the Defendant if he 28

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understood the terms of the Plea Agreement. Id. at 3:21:00-3:24:40. The Defendant responded l

2 affirmatively each time the Court asked if he understood. Id. at 3:20:00, 3:21:00, 3:23:l9.

3 During the colloquy, the Defendant asked only for clarification concerning the conversion of his 4 line into community service and vice a versa, to which he was properly counseled by Attorney 5 Henderson. Id. at 3:23:20-24:00. After the explanation, the Court asked if the Defendant 6

7 understood the answer. Id. at 3:24:00. The Defendant stated he understood and the Court then l I 8 proceeded to take the Defendant's pleas of guilty. Id. at 3:24:00-3:25:03.

9 After the plea colloquy, the Defendant sought only to defer his sentencing for medical 10 and family reasons. (Dec. & Order at 2). Ki the four and a half years since his plea colloquy, the l I Defendant has never indicated that he did not understand the terms of his plea, in fact that 12

la Defendant seem to understand that he was to serve his term of imprisonment and argued only

14 that he was not physically well enough to do. Id., (Defendant's Opposition to People's Mot. 15 Enforce at 2). This motion is the first time the Defendant has ever indicated his confusion 16 regarding the Plea Agreement. Accordingly, the Count finds that, considering the totality of the 17

circumstances, the Defendant's plea was made knowingly, and that allowing the Defendant to 18

19 withdraw his plea is not necessary to avoid manifest injustice.

20 CONCLUSION 21 For the reasons stated above, the Court hereby DENIES the Defendant's Motion to 22 Withdraw Guilty Plea to Correct Manifest Injustice. A further proceeding shall be held on May 23

Ol, 2019 at 3:00 p.m. wherein the Defendant shall be committed to the Department of 24

25 Corrections. The Defendant shall provide the Department of Corrections all necessary medical

26 forms at the time of commitment. 27

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IT IS SO ORDERED on this let day of April, 2019. 1

7 HONORABLE ALBERTO c. LAMORENA III Presiding Judge, Superior Court of Guam 8

17 SERVICE am CDURT BOX I acknowledge that a copy of the 18 original hereto was placid In the courtjin o f:

19 - / I/ 20 APL__. - .111 19 Time:

21 M .~w' ,fr8r Court d Guam

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