People v. Camacho, Jr.

• Court: Superior Court of Guam
• Decided: May 2, 2012
• Docket: CM1175-11
• Status: Unknown

Opinion

'I

IN TIlE SlIl'ERlOR COURT OF GUAM

THE PEOPLE OF GCAM. ) CR!MINAI, CASE No. C\11175-11 )

, ) ) DECISIO~ A:'W ORDER On Defendant's Motion for Oiversion (, -JOSE RIOS CAMACHO. JR .. ) ) Defendant ) )

w biTRODllCTION

This maller came before the Honorable Judge :Michael J. Bordallo on April 24, 2012 (l

" Defendant's yjotioll for Diversion. The People of Guam were represented by Assistant Attornc General James C. Collin" The Defendant was represented by Assistant Publi~ Defender Mari

G. Fitzpatrick. Having r,,\"i~wed Ihe memorandum and papers presented. the court nOw i,sues Ih '

following decision linding that D~fendanl, who allegedly conmlittcd their crime belorc Marc u, 28.2012, arc eligible to move for diversion; there!'"" the coun grunts Defendant's motion Ii)

diversion.

I<"ACTI"AL HISTORY

'" This case involves the 2011 legislative amendment to Guam's Family Violence Act. l'rio '" to March 28. 2012 Guam"s Family Violcnce Act pcnuitted aU eligible defendunts charged Will " an act of Family Violence to entcr a pre·trial, prohationary diversion prognlnl which. UpO! successful completion. resulted in the defendant's criminal ease being dismissed and expunged " The amendment to the which replaced the diversion program with a deferred pk A~t,

" agr.:ement. was signed into law on Scpkmher 30, 2011. but required a 180"day waiting perio before the Jaw took effect Oil March 28. 2012. Under the deferred pica agreement defendants arJ

n now required to provide un admis~ion of guilt in open eOUlt before cmcring the probationar)

2~ program that results in dismissal and expungcment ortheir criminal ea~e_ Defendant Camacho is alleged to have committed his crime on November 21, 2011, mor , [han four m(lnlh~ prior to the March 28"' deadline. '!lw question bej(lfe the court is whethe Canwcho is eligible to enter the Jtlnl1cr diWr8ion progrnm or wh~lher he is now required 10 ente

n deferred plea agreement. The People argue lhat no 'kfemianl ;8 eligible to ente, the divcrsio

after ~1arch 2H. 2012 because diversion "no longer exists under Guam law:' Conversely. th

Dekndant argues that requiring him to enkr a deferred plea violates the constitutional

prohibition against ex post facio lavis. According to Camacho, the he is eligible to emc " ,diversion because hi~ crime WIIS committed before the new 13\\ took clTed_

DISCUSSION

'" PriDr to the ~ellt amendment to Gllilm's Family Violence Act eligible, defendants eharg

with the crime of Family Violence could enter a diversion prognlm. Diversion i~ ~ pre-tria

probationary program that requires dekndants to completc a recommended counseling plan..

well

15 . Violating he conditions of diversion can result in (ennin~lion of the defelld~nfs diversion an

16 the reslimption of prosecution of the dcfcndant's criminal case. Successful completion of th

requirement, of diversion. however, results in the defendant's criminal case being dismissed and

expunged.

Under Guanl's amended Family Violence Act, the dhersion program has been replace

'" with a dekrred plea agreement. 9 {i.c.A. §30.80 (20 II). The deferred plea agreement stil

permit> eligible defendants to aceess the same counseling and substance ~buse treatmen

program within a set proba(ionw-y period und, where the defendant sueeessfiJlly completes th

progr~m. dismissal and expungement of all niminal charges. However. access to the program

now requires eJigible defendants to enter a plea of 'guilly' in open court prior to colllmencing th " probationary period. iJnlike diversion, failure to complete the requirements of prohation under' , deferred plea agreement docs not result in renewed prosecution. Instead, the defendant's guilt}

plea is accepted by the eourt and the criminal case procced~ directly to senl~ncing.

D~felldanl has motioned the court ~8king that he be allowed entry into the diversio i program inslelld of being require<::l to enter a deferred plea agreement. The basis of his motion i, , that denying him entry into the diversion progrllm i~ only possibk if the llmendment to th' I , Family Vioknce Act is applied to him retrosfK'ctively. Such an application. he further argl1';S violatcs thc constitutional prohibition agains1 ex posr jado laws.

I. Ex PO)'! Foct(J Laws

Protection from the enactment of ex po.1'! facIO laws is guaranteed to all individllals by lh~ , tJ .S. Constitlllion, incOrp

10. cL 1; 48 U.S.c. § 142 1btu). 'j his conmitutional protection speci lically prohibi lS enllctment 0 II law that creates "a punishment for an act which was not punishabk at thc time it wa,

committed" or lhllt "imposes additional pllnishment to that then prescribed." Wcaver v, Uraham 450 U.S. 24. 28 (1981). Specific to the (;3.';C at hand. the ex posl jaclo provision prohibit fetrollcti\"e punislmlcnt that results from the legislative repeal or amcndmcn! of an existing I sl3tute. See Smilh v. Doe. 538 U.S. 84, 89 (2003); 2 G.C.A. §2105, Not all retroactive laws arc, however, subject to the ex posl ja('lo prohibition, Instead. th Supreme Court of the United Slate8 ha~ C(ln~iste!)lly held lhat Ja",~ lhat are solely civil an regulutmy inlluturc arc Hot ex pos/faclo. Beau!! v. Ohio. 269 U.S, 167. 171 (1925); DoMerl v, rtorida, 432 U.S, 282. 293 (1977); Smith \'. Do~. 438 U.S. 84. 92 (2003), More explicitly legislativc amendment8 that "relate to modes of procedure only. in which no one c~n be said t have a vcsted right,"' do not violate the ex post /ado prohihitio!) and, ,·the [SJlate, upon ground! '" of public policy. may regulate at pleasurc." "'fallel/v State o(,'l/onh ('aro/ina. 181 U.S. 589, 59 ' , " (1901 ). Determining whether the ex post jilcto ban applies to the recent ~mendment to Gu~m's FamiJ, Violence Aet is a qucstion of statutory c(m8tmction. See Smil" at 85. Firs\. it must be del~ffiline wheth~r the Legislature's amendmen! to the Act eSlablished civil or criminal proceedings Kansas v. Hendricks, 521 U.s. 346. 361 (1997). If the L~gisl~tl.lre·s intent "was to impos

punishment. that ends the inquiry." fd. 1( the Legi8lalure's inlent, hmwver, wa~ the enactment <): "a regul~tory scheme that is civil and nonpunitivc." then thc Court "must ftu1hcr cxamin(' whether the statutory scheme i~ 8" punitive either in purpose Of effect as to negu1e the St~te' imentioll to doom it civiL" Id. The courl holds that the law is both crimirml and punitive in natur and the ex post facIO prohibition applies. A. The Amendment Established Criminal Proceedings

4 Whether the amendment to C;uam'~ Family Violence Act establishes criminal or eivi i proceedings is a question of st3tutory construction. Kansas at 361 (citing Allen r. ll/il1ois, 47 jj.S. 364, 368 (1986», In interpreting: Ole statute, the Court defers to the Legislalllre's inlent an " "only the clearest prool" or ~llch inlent can "(ran8fonn what has been denominated a civi remedy into a criminal penalty." Smith at 92 (citing lIudson v. Ii S. 522 U.s. 93. 100 (1997», I , an examination ol'the 8talute\ text and structure reveals "th",t the legislature intended 10 punish:j i this fact "would s3tisfy an ex poslfoclo challenge without further inquiry into its effects." ld. a

" 93. The amendment to Guam', Family Violence Act is contained within Title 9. Crime", on Correcliof!.l. of the criminal code. 9 (i.LA. §30.80 (2011). While this fact indicates Icgislativ

intent. a staune establishes criminal proceedings wh~n itl'unishes speciJic a<:l8 and Hot solcl " becau>e il is II criminal law. The 1963 U.S. Supreme Court case or Kennedy v. Mendoza " «, .Marlinez prmides guidelines for detennining whether a statutory scheme was intcnded as a ei\'it i remedy or a criminal penally. Hudsol1 at 99 (citing 372 U.S. 144). Of the seven discusse guidelines, only the following three are relevant [0 ex pos/ filc/(} dlllllenge5 iuvolving an allege ,., change or increase in the punishment preserihed for a crime: (I) "l wJhether the ~anc\ion involve

an affinnat;ve disability or restraint"': (2) "whether it has historically been regarded as punishmcnl," and (3) "whether its operation wi!! promote the traditional 3ims of punislunent n retribution and deterrcnce" Kennedy" Mendoza-Mar/inez, 372 IJS 144. 168-169 (1963), The comi finds tlmt the Guam Legisl31ure intended 10 cstabli~h criminal proeooding~. Th U.S. Supreme Court ha5 loug viewed probatioll ,IS a punishment. stating "that a probation orde' is 'an authorized mode or mild (md ambulatory punishment. the probation being intended as 26 rdorming discipline."· Korematsu.' U.S. 319 U.S. 432, 435 (1943) (ciling Cooper v, Unite, Slates (5 Cir.), 91 f.ld 195. 199 (1937»). The probationary period requircd by the new deler ' 2S : plea agreement is a sanclion involving a re~traint upon the defendant II is not disputed thn

Pago 4 of 7 "Offenders on probation are I J suhject to II conditions that substantially restrict th~ir libcrly:i US. v, Gall. 552 U.S. 38. 48 (2007). More precisely, "Probation is ~imply One point [ J 011 , continuum of pOSsible punishments ranging Ii-olD solitary confinement in a maximum-security

facility to a few hours of mandatory community service_" Griffin v Wisconsin, 483 U.S. 868 , 874 (1987). Finally, the deferred plea program. like the diversion program. clear!) "promutes . traditional aim of puni~hm"n!" in that it s~eks 10 deter recidivism. Kennedy at 168-169. B. Deferred Plea.\' are PUlIi.j'hml'nt While prohation h been generally defined as a punishment, whether a Guam la\, mandatin

the \lS~ of deferred plea agreement constitutes u punishment has not been tested in a higher court. GmUl1 is not, however, the only juri~dietioo that rcli~s upon deferred plea agreements and 1h relevant o!atutes have been tested in Illultiple states. The Ninth Cireuil has determined tha deferred pica agreements conRlitute a puni~hment in at least two states: Hawaii and Washington, ! Hawaii's deferred acceptance law is "de~igned a~ a form or punishment." U,S. v, Rosser, 86 F.2d 315. 317 (9th Cir. 1989). In Bossa, the Ninth Circuit ltlllnd that Hawaii'~ delerre acceptanc<.' rule merely "sllbstitute[s] one pcnalty for anothcr," by allowing a defendant 10 "serv a probmion·like sentence in lieu of having a teJony put on [her1 record, on the understanding tha if probation is violated the guilty pica will he a~~epted:' fd_ 'When pre8ented WJlh a simila

statute from the State of Washingtoo. the Ninth Cireui! again round that a deferred prosecU1io ~cheme constituted a punishmcnt. 1.i.S_ v, Sylve. 135 F.3d 680, 685 (9th Cir. \998). Like Hawaii 20 The Wa~hinglon statute com,tiluted a punishment because "petitioners must waive all essential rights, stipulate to all facts necessary to en~l1re their conyictioll, and disclaim their innocencc.' ld_ at 684. Deferred plea agreements, cntered into pursuant to the amendment to Guam's Famil) Violence Act, tOnstitllte punishmcnt. US_ v_ Boss~r, 866 F.2d 315 (91h eir. 1989): U.S, v, Sylve 135 FJd 680, 685 (9th Cir. 1998). After entering a guil!y plea in opcn court, the dclendanl i placed Oil probation lor a period of one to three years. This period of monitoring. which replace1 the diversion program's pre-trial prohation, i8 a punishmenl that pla~"8 restraints upon thct deJendJut's liberty, Gall at 48. As the deferred pica ag,",-'Cmmt offered through Guam'g amend> Family Violence Act constitutes a change ill the limn of punishment, any retroactive appiicmio

of the amendment v;()laks the prohibition againsl ex rO,,'lil/do laws. , II. The Date ofC<)mmjs~ion of the Alleged Crime is Determinative

The date of the commission of the alleged crime determines which defendants may b

eligible for diversion and which defendants arc required to enter a deJ"rred plea agreement. Til

" Supreme Coun has clarified lhat an ex pml jacta claim requires analyzing "whether the la , {l.S. changes the legal consequences of acts compleled he/orl' its eifcc1il't dare:' Weaver v. Ur(lham,1

450 U.S. 24, 31 (J9SI) (emphwsis added) becausc rclroadiv" hm~ "which makes rum

burde/180me the punishment for a crime, ujlrr irs commission," arc prohibited_ Dabber! v. w Norida, 432 U.S. 282, 292 (1977) (citing ReazdT) (emphasis added). Thus. Supremc Court cas " I"w analyzes ex po,,'1 fi,el" dahns relevant to "when the crime charged w,,!; committed," (Gihso

v MIMissippi, 162 U,S. 565, 590 (1896)). and soldy as it relatcs to "conduct completed Ix:for

its enactment," (Johnson ". US, 529 \JS 694. 699 (2000)).

Crime!; "lIegedly cOiIlmitted prior to the enktive d,,[e of the amendmem to Guam's Famil} " ", Violence Act arc not ~ubjecl to the l'equiremems or the amendment. To deny this group 0

delendants entrance into the diversion program would be to "ppl} the legislative alnendmen

retroactively - that is, prior to it~ eriedive date. Such a retroactive application denie~ individual ," of their right to notice and violate~ the ex post facio prohibition. As explained in Weuver , ,vfhrough this prohibitioll. the Framers sOllght lo a5Sllfe that legislative Acts give fair warning 0

their effect and pennit individuals to rely on their meaning until explicitly changed." 450 U.S.

24, 28 (1981), The ex pos/jadO prohibitioll guarantees that, "persons have u right to fair warnin

of that conduct which wi!! give ris~ tu criminal penalties." ;Harks v. US, 430 U.S. 188, 19

(1977).

CONCLL"SION

Btlsed on th~ foregoing, the COlirt find.~ thut the date Oil which a defendant's crime wa

committed is dispositive for the purposes of determining eligibility to enter the divcrsio program. Because Defendant Camacho's (Time was allegedly committed on November 21,2011

prior to the March 28. 2012 effective datc of the Family Violence ACl Amendment. h~ is no

barred from entering [he diversion program. Accordingly. thc court GRANTS D~r~ndant'

, Molion for Diversion. 7 . SO ORDERED, jhi~ ;7 day or&~, , 2012. U

",! / ~ "

/1/ /J (~ l_/ '" " I3LE MICHAEL J. BORDALLO Judg . Superior Court ofGnam

u

"

'"

,"~', '.',,"'," , ,," ,,-' 0/", ",., ... , "" 'if'~ " '.~ v 'J ,,"", ,'" " ,,", ";, ,_'v "_,'.~' ",,,,,,, -,-",

I"gc 7 of?