FILED CLERK OF CLERK OF CGLIRT COURT 1 1
2 202~ AUG 29214 -6 -6PM RUG 22 PH4:ll! 22 J} SU?ERl®R SUPERIOR CC*UR?( C~URT~ 3 QF G,!• .,.J'Ji,_.\!1 O..F@¥'=.F'¢?1/' "V'n
4
5
6 IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 7
8
9 PEOPLE OF OF GUAM, GUAM,
10 10 Criminal Case No. CF0014-23 Plaintiff, GPD Report No: 23-00397 23-00397 11 11
12 12 vs.
DECISION AND ORDER 13 13 GRANTING DEFENDANT'S 14 14 ALEX AWENY, ALEXAWENY, MOTION FOR DE- DOB: CERTIFICATION AND DOB:10/21/2006 10/21/2006 15 15 TRANSFER TO FAMILY COURT 16 16 Defendant.
Defendant.
17 17
18 18 1. I. INTRODUCTION INTRODUCTION This matter came came before before the the Honorable Honorable Alberto Alberto E. Tolentino on on March March 12, 12, 2024 2024 for for hearing hearing 19 19
20 on Defendant Alex Aweny's Defendant Alex Aweny's Motion Motion for forDe-Certification De-Certification and and Transfer Transfer to to Family Family Court Court 20
21 ("Motion").
("Motion").Assistant AssistantAttorney AttorneyGeneral GeneralWinston WinstonAlbright Albrightrepresents representsthe the People, People,and and F.
F. Randall Randall
22 Cunliffe, Esq.
Cunliffe, Esq. represents represents Defendant. Havingduly Defendant. Having dulyconsidered considered the the parties'
parties' briefs, briefs, oral oral arguments, arguments,
23 and the applicable law, the Court now issues the following Decision and Order and GRANTS 24 24 Defendant's Motion. 25
26
27 Decision Decision and Order- Denying and Order- Denying Defendant's Motion Motion For De-Certification De-Certification and and Transfer to Family Court Court Case No. CF0014-23 Case No. CF0014-23Aweny Avery Page 11 of of7
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1 II.BACKGROUND 11. BACKGROUND
2 On On January 4, 2023, January 4, 2023, Defendant Defendant was was ,arrested ,arrestedand andcharged chargedwith withi)i) Attempted Attempted Burglary Burglary via
3 Complicity (As 2nd Degree (As aa 2nd Degree Felony), Felony), and andii)
ii) Attempted Attempted Home Home Invasion Invasionvia via Complicity Complicity (As (As a
4 1st 1st Degree Felony). Magistrate's Magistrate'sComplaint Complaint(January (January 6, 2024). Defendant 6, 2024). Defendant was sixteen (16)
sixteen (16)
5 years old at the time of the incident and seventeen (17) years old at the seventeen (17) the time time of of this this Motion.
Motion.
6 On January 22, z024, On January 2024, Defendant filed his Motion Defendant filed Motion for for De-Certification De-Certification and and Transfer Transfer to 7 Family Court. Family Court. Defendant Defendantargued argued for for his his transfer transfer to Family Court Court given his age, lack of criminal given his 8 history,. circumstances circumstances surrounding s11rrounding the the offense, offense, advantages Of the advantages of thejuvenile juvenile justice justice system, system, and 9 10 likelihood likelihood of of rehabilitation.
rehabilitation. Motion Motion at at 4-5.
11 11 III. DISCUSSION DISCUSSION 12 12 "Achild "A childwho whoisissixteen sixteen (16)
(16)years years of ageor ofage orolder olderat atthe the time time he he committed the offense for committed the 13 13 14 which he is is charged charged shall shall automatically be charged automatically be charged as as an an adult adult for for any any act which would would 14
15 15 constitute a felony of ofthe the first first or orsecond second degree, degree, along alongwith withany anyacts acts which which are are misdemeanors misdemeanors or
16 16 felonies of felonies ofthe third degree the third which are degree which partof are part of the the same samescheme schemeof ofcriminal criminalactivity."
activity." 19 19 G.C.A.
G.C.A. §§
17 17 5106(a).
5106(a).
18 18 On motion motion of of either either party, "the complaint or indictment may be transferred to the transferred to the 19 19 jurisdiction of the jurisdiction the Family Family Court Court upon upon a finding based based on clear and convincing evidence evidence that that the 20 best interest of the interest of the minor would be be amenable amenable to the the care, treatment, and training programs programs 21 through the thefacilities facilities of the juvenile court based based on onan anevaluation evaluationof ofthe thefollowing:
following:
22 (1) 1) the the age age of ofthe the minor, minor;
23
24 (2) the the history history of ofthe the minor, minor, including, including;
'
E
25 (A)
(A)any anyprevious previousdelinquent delinquent or or criminal criminal history of of the minor, minor;
26 (B)
(B)any any previous previous abuse abuse or neglect history of ofthe the minor, minor; and and 27 Decision Decision and Order-
Order-Denying DenyingDefendant's Defendant's Motion For De-Certification De-Certificationand and Transfer to Family Court Court Case No. CF0014-23 Aweny CF0014-23 Aweny Page 2 of7 11 (C) any any mental health, physical, mental health, educationalhistory physical,oror educational the mmor, historyofof the or aa minor, or
2 of these factors;
combination of factors, 3 (3) the the circumstances including;
the offense, including, circumstances of the 4 (A) (A)the seriousness of the offense;
theseriousness offense, 5 (B) (B)whether whether the the minor minor is accountability;
charged through accountability, is charged 6 (C) whether there is whether there is evidence offense was the offense evidence the committed in was committed an aggressive m an and aggressive and 7 7
8 premeditated manner, manner;
9 (4) the the advantages of treatment advantages of treatmentwithin system, including, justice system, within the juvenile justice whether including; whether
10 there are facilities facilities or the juvenile programs, or both, particularly available in the or programs, system;
juvenile system,
11 11 (5)
(5) whether whether the the security security of under Title sentencing under requires sentencing public requires the public ofthe 80 of Chapter 80 Title 9, Chapter 12 12 the Guam Code Annotated;
Annotated, 13 13 (6) the the minor's minor's history history of ofservices, services, including including the the minor's minor's willingness willingness to participate to participate 14 14 meaningfully in available services;
services, 15 15 (7) (7) whether whetherthere there isis aareasonable reasonable likelihood likelihoodthat that the the minor can be rehabilitated before the minor can 16 16
17 expiration of the juvenile juvenile court's jurisdiction;
jurisdiction, and and 17
18 18 (8)
(8) the the adequacy adequacy of ofthe the punishment punishment or services.
19 19 19 G.C.A. §§ 5106(d)(1)-(8)
19 G.C.A. 5106(d)(l)-(8)(emphasis (emphasis added).
added).
20 20 Defendant is automatically automatically charged charged as as an adult time of thetime atthe sixteen at wassixteen hewas becausehe adult because of the 21 let and 2nd pt and 2ndDegree DegreeFelony Felonycharges.
charges. See See 19 19G.C.A.
G.C.A. §§ 5106(a).
5106(a). Based Based on on Defendant's Defendant's Motion, 22 the the Court must must now now balance balancethe theabove abovefactors factorsto to see if, by clear and convincing evidence, the see if, 23 Defendant's Defendant's interests would be best interests would best managed managed through Court. See the Family Court.
through the See 19 19 G.C.A.
G.C.A. §§ 24 5106(d).
25
26 26
27 Decision Decision and Order- Denying and Order- Denying Defendant's Motion Motion For De-Certification De-Certificationand and Transfer Transfer to Family Family Court Court Case No. CF0014-23 Aweny CF0014-23 Aweny Page 3 of7
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11 I. Age of the Minor
2 Defendant Defendant was sixteen old sixteen (16) years ol d aat the c criminal me ofofthe the titime t the offense, r i mi na l of f , and is 3 currently seventeen (17) years old. Defendant argues the the broad array rehabilitative services array of rehabilitative 4 available through DYA (counseling services through Guam Behavioral Health Wellness Center 5 ("GBHWC") ("GBHWC") and and Cl i ent Serv Client Services & Fami i ces & l y Cou Family nsel i ng ("CSFC"), Counseling and aa proper ("CSFC"), and scholastic proper schol asti 6 7 rehabilitative environment)would rehabilitative environment) wouldbebeof ofimmense immensebenefit benefitotohim. at 4.
Motion at him. Motion Admittedly, 4. Admittedly, 7 8 Defendant is nearing adulthood.
adulthood. While While his his susceptibility to influence susceptibilityto much less influence isis much than that less than of a that of 8
99 young teenager teenager or or child, his age age at at the of the offense weighs in the time of favor of in favor to Family of transfer to
10 10 Court.
11 11
12 12 II. 11. History of the Minor Minor 13 13 was born and The minor is of Chuukese descent, but was and raised raised on on Guam.
Guam. Defendant attends 14 14 George Washington Washington High School School and and is is in 10th grade.
in the 10th grade. He does have a prior juvenile record.
15 15 16 including the following charges: 16
17 2021: Recklessly Recklessly Cause/Attempt Cause/Attempt toto Cause Cause Bodily Bodily Injury Injury (As (As aa Misdemeanor)
Misdemeanor)
17 rd Degree Felony)
Assault on a Peace Officer (As aa 3rd Assault Degree Felony)
18 18 2022: Possession and Consumption of of Alcohol Alcohol Under Under Age Age (As (As a Petty Petty Misdemeanor)
Misdemeanor)
19 Based Based on on an an appearance appearance of of indifference indifference to to behavioral consequences, the Defendant's criminal
20 20 history weighs weighs against against transfer transfer to Family Court.
21
22 22 HI. III. Circumstances Circumstances of of the Offense 23 Defendant is Defendant is charged charged with with a first first and second degree degree felony, felony, each of which are serious 24 offenses triggering automatic offenses triggering automatic certification certificationtotobe be charged chargedasas an an adult.
adult. Magistrate's Complaint Complaint 25 25 26 (January (January 6, 6, 2024).
2024). However, However,there thereisislittle little evidence evidence that that Defendant Defendant acted an aggressive acted in an or aggressive or 26
27 27 Decision Decision and Order- Denying Defendant's Motion Motion For De-Certification De-Certification and Transfer to Family Court Case No.
No. CF0014-23 CF0014-23 Aweny Aweny Page 4 of of 7
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1 premeditated way (19 premeditated way (19 GCA GCA §§ 5106(d)(4)(C)), 5106(d)(4)(C)),ororthat thatDefendant Defendantcaused caused serious serious bodily bodily harm harm (19
2 2 GCA GCA§§5106(d)(4)(E)).
5106(d)(4)(E)).Defendant Defendantisisaccused accusedofoftrying tryingtotohold holdaascreen screen door door open while two open while two coco -
3 defendant's attemptedtotoenter defendant's attempted enteran anapartment.
apartment.The The case not involve did not case did the use involve the deadly use of aa deadly 4 weapon and ultimately ultimately nobody nobody was was harmed the alleged facts physically. Based on the harmed physically. the facts of the 5 Charge, thecircumstances charge, the circumstancesof ofthe thecase caseweigh weighin infavor to Family of transfer to favor of Family Court.
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7 7
8 IV. Advantages Advantages of ofthe the Juvenile Juvenile Justice Justice System
9 9 Defendant claims that Defendant claims that Family Court Court would would be be able able totobetter betteraddress address his his educational educational
10 10 needs because becauseDYA DYA is is more more akin akin to to aa proper proper scholastic environment than thanaacorrectional correctionalfacility.
facility.
11 11 Motion at 4.
4. Defendant continuesto Defendant continues to attend attend school, transfer to and transfer school, and Department of to the Department 12 12 . n . . . .
Correctlons would l11n1t Corrections would Defendantfrom limit Defendant furtheringhis fromfurthering education. Id.
hiseducation. Id argues also argues Defendant also 13 13 that they they will benefit benefit from from court-ordered court-ordered counseling counseling through through Guam Behavioral Behavioral Health Wellness 14 14 Center ("GBHWC")
("GBHWC") and and Client Client Services Counseling("CSFC").
Services & Family Counseling ("CSFC"). This Thisfactor factor weighs weighs in 15 15 16 favor favor of ofremanding remanding the case to Family Court.
16
17 17
18 18 v. Security of the Public Public
19 19 Defendant Defendant is charged with first and charged with and second degree felonies via second degree via complicity, complicity, stemming stemming
20 20 from participation participation with the the Co-Defendants Co-Defendants in in an an attempted attempted violent violent encounter encounter over a personal personal 21 feud. feud. The Theconduct conduct did did not not involve involvethe thepublic public at at large, large, and and the the public's public's security security is not greatly 22 impacted by by the the Defendant's Defendant's case case being being remanded remandedtotoFamily FamilyCourt.
Court. The security security of of the the public 23 would not benefit benefit from from the the increased increased monitoring monitoring and and surveillance surveillance through through the Department Department of 24 Corrections. .
25 25
26
27 Decision Decision and Order-
Order- Denying Denying Defendant's Motion For De-Certification De-Certificationand and Transfer to Family Court Court Case No. CF0014-23IAweny CF0014-23.Aweny Page 5 of7
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1 1 VI. Minor's History Minor's of Services and Willingness to Participate History of Participate in Services
2 Defendant expressed his Defendant expressed hi s eagerness eag erness to to continue conti nu e with w i th any any and al all serv i services av ai l abl available 3 throu g h DYA through DYA and Fa mi Cou Family rt.
Court. Id.. at 55. However, However, Defendant Defendant acquired acquired the following following 44 . .
vlolatlons: violations:
5 1st Violation: let Violation: On March 29'h 29 th and and April 11 th 2023, Probation services filed a violation April ll*h, 6 for failure to obey house failure to house arrest arrest conditions.
conditions. Probation Probation contacted contacted Tiyan High School School officials who stated that Defendant was was not not in in school school on on either either day.
day. Probation Probation then went 7 to Defendant's home and and spoke spoke with with Defendant's Defendant's mother, mother, who who stated stated that that Defendant Defendant 8 was not home, having left left the house after the two had had an argument.
9 Violation: On January 8, 2nd Violation: 8, 2024, 2024, Probation Probation services tiled filed aa violation violation for for failure failure to report once a week, by phone, to the Probation Office.
Office. Probation Probation contacted Tiyan High 10 10 School officials officials who who stated stated that that Defendant Defendant was in in attendance but could not locate him.
11 There are mitigating. factors factors involving involving these these two two violations, violations, as as Defendant had had 1) left his home 12 12 after having an emotional light fight with with a parental figure, and 2) was in in attendance at school despite 13 13 faculty being unable to locate him.
him. Defendant's Defendant's overall overall history history does does not not show show aa trend trend of of failing 14 14 to utilize services through through DY DYA.or Family Court.
A.or Family Court. Id.
15 15
16 16
17 17 VII. Reasonable Likelihood of Rehabilitation
18 18 It is likely likely that that Defendant Defendant can can be be rehabilitated rehabilitated before before the expiration expiration of the Family
19 Court's Court's jurisdiction, jurisdiction, despite Defendant'sjuvenile despite Defendant's juvenile criminal criminal history.
20
21 VIII. Adequacy Adequacyofofthe the Punishment Punishment 22 is charged Defendant is charged with with two two serious serious felonies.
felonies. However, However, he he did did not personally use the 23 deadly weapon that was involved in the commission of the the crirrie, crime, nor nor was was anybody anybody physically 24 25 harmed as a result of the encounter.
encounter. In In this this instance, instance, the the use use of of the the Department Department of of Corrections 25 to provide punishment would be inadvisable.
26
27 Decision Decision and Order- Denying Denying Defendant's Motion For De-Certification De-Certification and Transfer to Family Court Case No.
No. CF0014-23 CF0014-23Aweny Avery Page 6 of of77 1 In balancing the above factors, "the court shall give greater weight to the seriousness of 2 the alleged offense and the minor's prior record of delinquency than to the other factors listed." 3 19 G.C.A. § 5106. Despite the seriousness of the charges; after evaluating the particular 4 circumstances surrounding the charge~, Defendant's age, and Defendant's willingness to utilize 5 DYA and counseling services, the Court finds it clear and convincing that Defendant's interests 6 would be best managed through the Family Court.
7
8
9 IV. CONCLUSION
10 For the reasons stated above, the Court GRANTS Defendant's Motion. The transfer is 11 granted and the case will be remanded to the juvenile court system.
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19 HONORABLE ALBERTO E. TOLENTINO 20 Judge, Superior Court of Guam
21
22 SERVICE VIA E-MAIL I ■dnowledge that an electronic mpy of the original was-e-mailed to:
23 ,R-4, '
M;f,«H.,f.c.o"-
24 _, btl. q1J.,"fy ~.
25 ~~ 26 27 Decision and Order- Denying Defendant's Motion For De-Certification and Transfer to Family Court Case No. CF0014-23 Aweny Page 7 of7