People v. Brikul

Opinion

IN THE SUPERIOR COURT

OF GUAM

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3 THE PEOPLE OF GUAM, ) CRIMINAL CASE No. CM 0372-12 4 )

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DECISION AND ORDER

) On Defendant's 6 MICHAEL OSCAR BRIKUL, ) Motion for Deferred Plea 7 )

Defendant. )

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9 INTRODUCTION

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11 This matter came before the Honorable Judge Michael J. Bordallo on August 8, 2012 0

12 Defendant's Motion for Deferred Plea. The People of Guam were represented by Assistan 13 Attorney General Lisa Hack. The Defendant was represented by Assistant Public Defende 14 Richard Dirkx. Having reviewed the memorandum and papers presented, the court now issue 15

16 the following decision granting Defendant's Motion for Deferred Plea.

17 FACTUAL HISTORY

18 The Defendant has been charged with one count each of misdemeanor Family Violence 19 and Criminal Mischief The Defendant is a first-time offender with no previous criminal record.

20 On June 12,2012, the People filed a notice stating that the Defendant is legally eligible to enter 21 a deferred plea agreement pursuant to the recent amendment to Guam's Family Violence Act.

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23 The amendment, which took effect on March 28,2012, replaced the previous pre-trial diversion

24 program with a deferred plea agreement process. While the amendment also increased the 25 restrictions on eligibility for a deferred plea, it made no changes to the substance or purpose of 26 the underlying treatment program. Whether a defendant enters the previous diversion program 27

28 or the new deferred plea agreement, the defendant will be placed on probation while they attend a court-mandated counseling and treatment program.

2 The People offered the Defendant a deferred plea agreement that contained terms and 3 conditions not previously placed upon defendants entering diversion. The Defendant rejected 4 the plea agreement and motioned the Court for Deferred Plea Pursuant to 9 G.C.A. §30.80.1.

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6 The Defendant specifically argues that the deferred plea agreement offered by the People

7 contained "elements which are inconsistent with, and not authorized by, the newly modified 8 statute." The People timely filed an opposition to the motion arguing that "A deferred plea 9 agreement is like any other plea agreement where all parties must agree to the terms." For the 10

11 reasons discussed below, this Court holds that where a defendant is statutorily eligible for a

12 deferred plea pursuant to 9 G.C.A. §30.80.l, the plea may only contain those terms and 13 conditions previously imposed on defendants who entered diversion under the Family Violence 14 Act.

15 DISCUSSION

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17 It is undisputed that the Defendant is legally eligible to enter a deferred plea agreemen

18 pursuant to the recent amendment to Guam's Family Violence Act. The question before th 19 Court is whether or not a deferred plea for Family Violence is a unique plea, confined by th 20 language of the statute that created it, or if the deferred plea may be treated like any other pIe 21 agreement entered into between the People and a defendant. The People argue that they hav 22

23 discretion over all terms to a deferred plea agreement such that fines, community service hours

24 mandatory jail time, and maximum sentences may be added. The Defendant argues that becaus 25 the statute does not explicitly authorize a deferred plea to include anything other than treatment 26 the People are without the legal authority to place such conditions upon statutorily eligibl 27

28 defendants.

The Family Violence Act's deferred plea agreement is statutorily unique and is not analogou 2 to other plea agreements. The Act does not define the Family Violence ('FV') deferred pIe 3 relative to 8 G.C.A. § 60.80, which regulates other plea bargains between the government and 4 defendant. Instead, the Family Violence Act makes clear that "notwithstanding any othe 5

6 provision of law," the FV deferred plea is exclusive to FV cases and "shall apply whenever

7 case is before the court upon an accusatory pleading for any criminal act against a family 0 8 household member." 9 G.C.A. § 30.80.1 (2011) (emphasis in original). The unique nature ofth 9 FV deferred plea is evident from the plain language of the statute, the legislative history of th 10

II recent amendment, and by analogizing the deferred plea's counseling and treatment requiremen

12 to similar statutes in other jurisdictions. I3 I. The Plain Language of the Statute 14 The Family Violence Act's deferred plea permits eligible defendants to enter counseling an 15 treatment as an alternative to criminal proceedings. 9 G.c.A. § 30.80. (2011). All ofthe statutor 16

17 sections detailing the deferred plea process define the requirements for access into, eligibility for

18 and possible removal from court-mandated "education, counseling, and/or treatment programs.' 19 § 30.80., § 30.80.5 (2011). Where an eligible defendant "agrees to participate in education 20 counseling, and/or treatment programs," the court has the authority to "defer crimina 21 proceedings until such a time as may be required" to complete the programs. § 30.80. (2011).

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23 When a deferred plea hearing is held, the Court must determine if the defendant should b

24 allowed to enter a plea and be "referred for education, counseling, and/or treatment program 25 directed specifically to the violence conduct of the defendant." § 30.80.2. (2011). If a defendan 26 is "not performing satisfactorily in the assigned program(s) or.. .is not benefiting from [the education, counseling and/or treatment programs" the court may then remove the defendant fro 2 the deferred plea program and reinstate criminal proceedings.

3 For eligible defendants, the Act does not permit a deferred plea to be conditioned upon th 4 acceptance of any terms beyond those previously required for diversion under the statute, i.e.

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6 entry into education, counseling and/or treatment programs. The People argue that they hav

7 discretion over the terms of a deferred plea such that fines, community service hours, mandator 8 jail time, and maximum sentences may be added into the plea agreement. The Act, however 9 explicitly details how a defendant may be charged in order to fund court-mandated counsel in 10

11 and education programs. § 30.80.5. (2011). Similarly, the Act states that when a defendant i

12 removed from a deferred plea program, "the court shall hold a hearing to determine whether th 13 defendant shall be sentenced accordingly." § 30.80.3. (2011) (emphasis in the original). The Ac 14 clearly specifies that the court will conduct sentencing after removal from a deferred pIe 15 agreement, not as pre-determined by the People.

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17 II. Legislative Intent - The Purpose of a Family Violence Deferred Plea

18 The Guam Legislature amended the Family Violence Act to increase defendant complianc 19 with court-ordered treatment programs. As with the previous diversion program, the legislativ 20 basis for the deferred plea was the belief that "if first-time offenders receive counseling 21 education, and in some cases, clinical treatment: they are less likely to reoffend." B. No. 214-31 22

23 Liheslaturan Guahan, 1st Sess. (2011). The amendment was also intended to increase conviction

24 rates for defendants who have a deferred plea agreement revoked, should they violate the term 25 of the program. Revocation, however, occurs only after the defendant has entered the deferre 26 plea and has not been able to successfully comply with and complete counseling and treatment.

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28 The Legislature intended that the purpose of the deferred plea program be defendant rehabilitation. The amendment was based on the fact that "Many states have found a much 2 higher completion rate of domestic abuser rehabilitation programs where the abusers are 3 allowed to enter a deferred plea agreement." !d. In amending the Act to replace diversion with a 4

5 deferred plea, the Legislature made few changes, primarily removing the word 'diversion' and

6 replacing it with the phrase 'deferred plea.' The amendment increased restrictions on eligibility

7 for a deferred plea, but made no changes to the substance or purpose of the underlying 8 treatment program. No additional terms, fines, or punishments were authorized. Whether a 9 defendant enters the previous diversion program or the new deferred plea agreement, the 10

11 defendant is placed on probation while they attend court-mandated counseling and treatment.

12 III. Deferred Pleas in Other Jurisdictions 13 Other jurisdictions with similar deferred plea statutes have strictly construed the terms an 14 conditions that may be attached to an underlying treatment-based program. While the Famil 15 Violence Act's deferred plea is new to Guam, it is comparable to statutes in California an 16

17 Washington State that authorize deferred pleas for first-time defendants charged with domesti

18 violence, drug offenses, and DUIIDWI. In all cases, the distinction of the statute-specifi 19 deferred plea, as opposed to a general, negotiated plea, is that eligible defendants must agree t 20 enter a counseling and treatment program designed to address their violent behavior andlo 21 addiction.

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23 Statute-specific deferred pleas are limited by the language of the statute that created th

24 underlying treatment program. In examining a deferred entry of judgment for first-time dru 25 offenders, the California courts have held that "In the absence of a compelling necessity, a co 26 may not impose conditions beyond those specified in the statute." Terry v. Superior Court, 8 27

28 Cal.Rptr.2d 653, 656 (Cal. Ct. App. 1999). In Terry, the trial court imposed a search conditio

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upon the defendant, in addition to the standard order for treatment and drug testing. On appeal 2 the trial court overturned the additional search condition stating that the statute "did not includ 3 any provision authorizing a trial court to impose additional conditions," specifically searc 4 terms, "upon a defendant eligible for diversion." Id. (citing In re York, 892 P.2d 804, 811 (Cal 5

6 1995». 7 Washington State courts have reached a similar conclusion and proscribe adding conditions t 8 statutory, treatment-based deferred plea programs. In State v. Wright, the defendant was charge 9 with the offense of driving a motor vehicle while under the influence and was ordered to atten 10

11 alcohol treatment and serve a 1O-day jail term. 774 P.2d 1265, 1266 (1989). Appealing only th

12 jail time, the Washington Court of Appeals overturned the trial court and held that a deferre 13 prosecution could not be conditioned upon the defendant's acceptance of jail time because "th 14 Legislature has expressly provided in [the statute] that deferred prosecution is an alternative t 15 punishment for persons who will benefit from a treatment program." Id. Instead, the appellat 16

17 court determined that "the statute expressly sets forth the requirements for the deferre

18 prosecution alcoholism program, which are treatment-oriented." Because the court could "fin 19 nothing to suggest that the Legislature intended that jail time be imposed in deferred prosecutio 20 cases," the defendant's plea agreement could only be predicated upon treatment. Id.

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CONCLUSION

2 Based on the foregoing, the court finds that the Defendant is eligible for a deferred pIe 3 agreement under the Family Violence Act. The Family Violence Act does not permit th 4 deferred pleas of eligible defendants to be conditioned upon anything other than entry into 5

6 court-mandated education, counseling and/or treatment program. Accordingly, the co

7 GRANTS Defendant's Motion for Deferred Plea. 8

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10 SO ORDERED, this L day of September 2012.

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15 Judge, Superior Court of Guam 16

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