IN THE SUPERIOR COURT OF GUAM 2 THE PEOPLE OF GUAM, ) CRIMINAL CASE No:CFOO~HJOS ) 3 ) DECISION AND ORDER. ON, 4 v. ) DEFENDANT'S MOTION FOR ) REDUCTION OF SENTENCE 5 DOMINICK L. FELDER, ) ) 6 Defendant. 7
8 INTRODUCTION 9 This matter came before the Honorable Maria T. Cenzon on March 25, 2013 on 10 Defendant Dominick L. Felder's (hereafter "Felder'' or "Defendant") Motion for Reduction of 11
12 Sentence ("Motion"). Attorney Randall Cunliffe represented the Defendant. Assistant
13 Attorney General J. Basil O'Mallan III appeared on behalf of the People. This Court, having 14 reviewed all of the pleadings, evidence and oral arguments, now issues the following Decision 15 and Order DENYING Defendant's Motion. 16 PROCEDURAL IDSTORY 17
18 On February 28, 2011, Defendant was sentenced to serve twenty years of imprisonment
19 after a jury convicted him of second degree criminal sexual conduct ("CSC"). Felder appealed 20 the judgment to the Supreme Court of Guam on March 4, 2011 challenging the propriety of a 21 second degree esc instruction to the jury and the trial court's decision to sentence him to 22 twenty years of incarceration. People v. Felder, 2012 Guam 8 1 6. The Supreme Court 23
24 affirmed the judgment of conviction, fmding that although it was error to include the
25 instruction for second degree CSC, Felder failed to "meet his burden of demonstrating 26 prejudice by the instruction and reversal is not necessary to prevent a miscarriage of justice or 27 to maintain the integrity of the judicial process." /d. at 'f2. The Supreme Court also afftrmed 28 the trial court's imposition of a twenty year sentence after determining that the trial court did Pagel ofS not abuse its discretion in fmding that Felder was not a first offender, and thus not entitled to be 2 treated as such for the purpose of sentencing. ld. at ft55- 56. 3 Defendant then filed the instant Motion for Reduction of Sentence pursuant to 8 GCA § 4 120.46 (2005), seeking the Court's leniency and discretion to reduce the twenty year sentence. 5
6 The People oppose the motion. On February 22, 2013, Defendant filed a Submission of
1 Supporting Documents, attaching the following: 8
9 • Letter from Andrea Felder (Defendant's wife) dated December 18, 2012; 10 • Letter from Diane Gregory (Defendant's Mother); 11 • Letter from Quashonda Felder (Defendant's sister); • Certificate of Participation from Department of Corrections 12 Behavioral Health Services in 3rd Cycle Habilitation Treatment Program- Healthy Thinking Group (December 5, 13 2011 to April13, 2012); 14 • Certificate of Participation from Department of Corrections Behavioral Health Services in 3rd Cycle Habilitation 15 Treatment Program- Drug & Alcohol Group (December 5, 2011 to April13, 2012); and 16 • Prison Fellowship certificate (January to July 2012) 17
18 On February 25, 2013, without leave of this Court, the Defendant filed a second Memorandum of Law in Support of Motion for
19 Reduction of Sentence. On March 25, 2013, this Court heard oral argument on Felder's motion, including a statement from
Defendant's wife in support of reducing his sentence. 20
21 DISCUSSION
22 Title 8 GCA § 120.46 (2005) establishes this Court's discretionary authority to correct 23 or lower sentences and provides, in relevant part, as follows: 24 The court may reduce a sentence within one hundred twenty 25 (120) days after the sentence is imposed, or within one hundred 26 twenty (120) days after receipt by the court of a mandate issued upon aff'mnance of the judgment or dismissal of the appeal, or 27 within one hundred twenty (120) days after entry of any order or 28
Page2of5 judgment of the Supreme Court of Guam, having the effect of upholding a judgment of conviction. 1 2
3 If a lawful sentence was lawfully imposed in the first instance, then the function of
4 section 120.46 is to provide the trial court with discretion "to decide if, on further reflection,
5 the original sentence now seems unduly harsh." U.S. v. Maynard, 485 F.2d 247, 248 (9th Cir.
6 1973). It is essentially a plea for leniency. See U.S. v. Carrillo, 947 F.2d 951 (9th Cir.
7 1991)(citing U.S. v. Smith, 650 F.3d 206, 208 (9th Cir. 1981)(quoting Maynard, supra));
8 United States v. Thayer, 857 F.2d 1358, 1360 (9th Cir. 1988)(a motion to reduce sentence is
9 essentially a plea for leniency). 2
10 Felder's motion is not based upon newly discovered evidence or any claim that the
ll sentence was illegal. It is grounded solely upon a claim that the co-defendant and the 12-year
12 old victim initially lied to the police and upon a request by Felder's wife to reduce his sentence
13 in order that he may support her and their two children. 3
14 The People oppose a reduction of Defendant's sentence because of the heinous nature
15 of the offense and the age of the victim, who was 12-years old at the time of her rape. The
16 People posit that the sentence "is a fair sentence in light of his misconduct." Opp'n to Mot. for 17 Reduction of Sentence (September 24, 2012). Under Guam law, Defendant's conviction of
18 second degree esc as a first degree felony carries with it a sentence of "not less than five (5)
19 years and not more than twenty (20) years." 9 GCA § 80.30(a) (2005). In sentencing Felder,
20 the trial court had before it: the People's Sentencing Memorandum; Defendant's Sentencing
21 Memorandum; oral arguments before the Court on the application of an enhancement statute;
22 and statements from both the mother of the victim and Felder's wife. Indeed, the Guam
23 Supreme Court found that the trial court did not abuse its discretion in denying Felder a lesser
24 sentence under the first offender statute of 9 GCA § 80.31. Felder, 2012 Guam 8 !158-59.
25 1 26 The Court finds that Felder's motion has been timely made, having been filed within 120 days following the issuance of the Supreme Court's mandate affirmingjudgment of his conviction. 2 27 8 G.C.A. §120.46 is identical to the first two sentences offormer Rule 35; thus, cases interpreting the federal rule are instructive. 3 28 Felder also argues that this Court needs to re-visit the disputed facts of the case in order to rule on the motion for reduction of sentence because the trial and sentencing were before now-retired Judge Elizabeth Barrett-Anderson. This Court disagrees and will not allow the defendant to use this motion as a vehicle to retry the case against him. Page3of5 This Court appreciates the hardship that the Defendant's wife, children, and other 2 family members have claimed they will endure by reason of Felder's continued incarceration as 3 set forth in the various correspondences submitted in support of the Motion. However, he was 4 convicted of committing an atrocious crime against a 12-year old girl after a jury trial at which he had the opportunity to cross-examine witnesses against him as well as call witnesses in his 6 defense, in addition to the other rights associated with a jury trial. Moreover, his conviction 7 and his twenty year sentence were upheld on appeal to the Supreme Court of Guam. It would 8 not serve the ends of justice to now reduce his sentence based solely upon his good behavior 9 since his incarceration or the fmancial and emotional needs of his family where no 10 extraordinary circumstances have been shown.
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IN THE SUPERIOR COURT OF GUAM 2 THE PEOPLE OF GUAM, ) CRIMINAL CASE No:CFOO~HJOS ) 3 ) DECISION AND ORDER. ON, 4 v. ) DEFENDANT'S MOTION FOR ) REDUCTION OF SENTENCE 5 DOMINICK L. FELDER, ) ) 6 Defendant. 7
8 INTRODUCTION 9 This matter came before the Honorable Maria T. Cenzon on March 25, 2013 on 10 Defendant Dominick L. Felder's (hereafter "Felder'' or "Defendant") Motion for Reduction of 11
12 Sentence ("Motion"). Attorney Randall Cunliffe represented the Defendant. Assistant
13 Attorney General J. Basil O'Mallan III appeared on behalf of the People. This Court, having 14 reviewed all of the pleadings, evidence and oral arguments, now issues the following Decision 15 and Order DENYING Defendant's Motion. 16 PROCEDURAL IDSTORY 17
18 On February 28, 2011, Defendant was sentenced to serve twenty years of imprisonment
19 after a jury convicted him of second degree criminal sexual conduct ("CSC"). Felder appealed 20 the judgment to the Supreme Court of Guam on March 4, 2011 challenging the propriety of a 21 second degree esc instruction to the jury and the trial court's decision to sentence him to 22 twenty years of incarceration. People v. Felder, 2012 Guam 8 1 6. The Supreme Court 23
24 affirmed the judgment of conviction, fmding that although it was error to include the
25 instruction for second degree CSC, Felder failed to "meet his burden of demonstrating 26 prejudice by the instruction and reversal is not necessary to prevent a miscarriage of justice or 27 to maintain the integrity of the judicial process." /d. at 'f2. The Supreme Court also afftrmed 28 the trial court's imposition of a twenty year sentence after determining that the trial court did Pagel ofS not abuse its discretion in fmding that Felder was not a first offender, and thus not entitled to be 2 treated as such for the purpose of sentencing. ld. at ft55- 56. 3 Defendant then filed the instant Motion for Reduction of Sentence pursuant to 8 GCA § 4 120.46 (2005), seeking the Court's leniency and discretion to reduce the twenty year sentence. 5
6 The People oppose the motion. On February 22, 2013, Defendant filed a Submission of
1 Supporting Documents, attaching the following: 8
9 • Letter from Andrea Felder (Defendant's wife) dated December 18, 2012; 10 • Letter from Diane Gregory (Defendant's Mother); 11 • Letter from Quashonda Felder (Defendant's sister); • Certificate of Participation from Department of Corrections 12 Behavioral Health Services in 3rd Cycle Habilitation Treatment Program- Healthy Thinking Group (December 5, 13 2011 to April13, 2012); 14 • Certificate of Participation from Department of Corrections Behavioral Health Services in 3rd Cycle Habilitation 15 Treatment Program- Drug & Alcohol Group (December 5, 2011 to April13, 2012); and 16 • Prison Fellowship certificate (January to July 2012) 17
18 On February 25, 2013, without leave of this Court, the Defendant filed a second Memorandum of Law in Support of Motion for
19 Reduction of Sentence. On March 25, 2013, this Court heard oral argument on Felder's motion, including a statement from
Defendant's wife in support of reducing his sentence. 20
21 DISCUSSION
22 Title 8 GCA § 120.46 (2005) establishes this Court's discretionary authority to correct 23 or lower sentences and provides, in relevant part, as follows: 24 The court may reduce a sentence within one hundred twenty 25 (120) days after the sentence is imposed, or within one hundred 26 twenty (120) days after receipt by the court of a mandate issued upon aff'mnance of the judgment or dismissal of the appeal, or 27 within one hundred twenty (120) days after entry of any order or 28
Page2of5 judgment of the Supreme Court of Guam, having the effect of upholding a judgment of conviction. 1 2
3 If a lawful sentence was lawfully imposed in the first instance, then the function of
4 section 120.46 is to provide the trial court with discretion "to decide if, on further reflection,
5 the original sentence now seems unduly harsh." U.S. v. Maynard, 485 F.2d 247, 248 (9th Cir.
6 1973). It is essentially a plea for leniency. See U.S. v. Carrillo, 947 F.2d 951 (9th Cir.
7 1991)(citing U.S. v. Smith, 650 F.3d 206, 208 (9th Cir. 1981)(quoting Maynard, supra));
8 United States v. Thayer, 857 F.2d 1358, 1360 (9th Cir. 1988)(a motion to reduce sentence is
9 essentially a plea for leniency). 2
10 Felder's motion is not based upon newly discovered evidence or any claim that the
ll sentence was illegal. It is grounded solely upon a claim that the co-defendant and the 12-year
12 old victim initially lied to the police and upon a request by Felder's wife to reduce his sentence
13 in order that he may support her and their two children. 3
14 The People oppose a reduction of Defendant's sentence because of the heinous nature
15 of the offense and the age of the victim, who was 12-years old at the time of her rape. The
16 People posit that the sentence "is a fair sentence in light of his misconduct." Opp'n to Mot. for 17 Reduction of Sentence (September 24, 2012). Under Guam law, Defendant's conviction of
18 second degree esc as a first degree felony carries with it a sentence of "not less than five (5)
19 years and not more than twenty (20) years." 9 GCA § 80.30(a) (2005). In sentencing Felder,
20 the trial court had before it: the People's Sentencing Memorandum; Defendant's Sentencing
21 Memorandum; oral arguments before the Court on the application of an enhancement statute;
22 and statements from both the mother of the victim and Felder's wife. Indeed, the Guam
23 Supreme Court found that the trial court did not abuse its discretion in denying Felder a lesser
24 sentence under the first offender statute of 9 GCA § 80.31. Felder, 2012 Guam 8 !158-59.
25 1 26 The Court finds that Felder's motion has been timely made, having been filed within 120 days following the issuance of the Supreme Court's mandate affirmingjudgment of his conviction. 2 27 8 G.C.A. §120.46 is identical to the first two sentences offormer Rule 35; thus, cases interpreting the federal rule are instructive. 3 28 Felder also argues that this Court needs to re-visit the disputed facts of the case in order to rule on the motion for reduction of sentence because the trial and sentencing were before now-retired Judge Elizabeth Barrett-Anderson. This Court disagrees and will not allow the defendant to use this motion as a vehicle to retry the case against him. Page3of5 This Court appreciates the hardship that the Defendant's wife, children, and other 2 family members have claimed they will endure by reason of Felder's continued incarceration as 3 set forth in the various correspondences submitted in support of the Motion. However, he was 4 convicted of committing an atrocious crime against a 12-year old girl after a jury trial at which he had the opportunity to cross-examine witnesses against him as well as call witnesses in his 6 defense, in addition to the other rights associated with a jury trial. Moreover, his conviction 7 and his twenty year sentence were upheld on appeal to the Supreme Court of Guam. It would 8 not serve the ends of justice to now reduce his sentence based solely upon his good behavior 9 since his incarceration or the fmancial and emotional needs of his family where no 10 extraordinary circumstances have been shown. See, e.g., U.S. v. Leon, 341 F.3d 928, 931-932 11 (9th Cir. 2003)("Permissible downward departures from sentencing generally involve situations 12 where the defendant is an irreplaceable caretaker of children, elderly and/or seriously ill family 13 members and the extent of the departure appropriately serves to protect those family members 14 from the impacts of the defendant's prolonged incarceration. . . . Conversely, downward 15 departures that are reversed on appeal for being unwarranted often involve a non-essential 16 caretaker.")(numerous citations omitted); U.S. v. Thayer, 857 F.2d 1358, 1360 (9th Cir. 17 1988)(on a plea for leniency, a defendant is not entitled to probation simply because he suffers 18 medical infirmities). 19 This Court has received the various letters from the Defendant's wife and family 20 members as well as certificates of completion of programs he has attended while incarcerated; 21 however, these are insufficient to support a reduction of his sentence given the careful 22 deliberation of the trial judge and further affirmation by the Supreme Court of Guam. These 23 materials are more appropriately presented to the Territorial Parole Board, which is "authorized 24 to release on parole any person confmed in any penal or correctional institution of this Territory 25 and to r~voke parole or discharge from parole any parolee." 9 GCA § 85.10 (2005). Felder 26 will be eligible for parole upon completion of eighty-five percent (85%) of his sentence. 9 27 GCA § 80. 70(a)(7) (2005)("[I]n the case of an offender sentenced to a term of imprisonment 28 for the commission of a violent crime, such offender may be released conditionally on parole
Page4of5 upon completion of eighty-five percent (85%) of his fixed sentence.... [A] violent crime is 2 defined as ... 7. Second degree criminal sexual conduct, as defmed in 9 GCA § 25.15."). 3 Under the circumstances, the proper forum for Felder's his request for leniency is before the 4 Territorial Parole Board. Maynard, 485 F.2d at 248 (matters pertaining to defendant's good 5 behavior while in prison is chiefly for the Board of Parole to consider, not the judge). 6 CONCLUSION 7 Based on the foregoing, the Court fmds that Defendant Felder has not presented 8 sufficient cause to reduce his sentence of twenty years. Therefore, Defendant's Motion for
9 Reduction of Sentence is DENIED. SO ORDERED this \lfh day of July, 2 13. 10
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