People v. Hewinin, A.A.

• Court: Superior Court of Guam
• Decided: February 7, 2020
• Docket: CF0133-18
• Status: Unknown

Opinion

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5 IN THE SUPERIOR COURT OF GUAM 6

PEOPLE OF GUAM, CRIMINAL CASE NO. CF0133-18 8 vs.

~ ATRIKO A. HEWININ, DECISION AND ORDER aka Rico Arwin, 11 DOB:03/25/1982 12 Defendant. 13 _______________________________________________________ ___________________________________________________

14 INTRODUCTION 15 This matter came before the Honorable Arthur R. Barcinas on November 12, 2019, upon 16 the Defendant’s Motion to Dismiss the Special Allegations of Felony on Felony Release filed 17 on October 29, 2018. Defendant Atriko A. Hewinin (“Defendant” or “Hewinin”) is represented 18 by Attorney William Pole. Assistant Attorney General Christine S. Tenorio represented the 19 People of Guam (“the People”). Having reviewed the pleadings and arguments in this matter, 20 the Court now issues the following Decision and Order. 21 BACKGROUND 22 On July 15, 2017, the People filed Criminal Case No. CFO4O1-17, accusing Hewinin of 23 Third Degree Criminal Sexual Conduct and Terrorizing against a minor, L.L.K. (DOB: 24 04/22/200 1). Throughout CFO4O1-17, Hewinin appeared in court under the alias “Rico Arwin.” 25 Following his Magistrate’s Hearing, the Magistrate Judge conditionally ordered “Arwin” to be 26 released from confinement while he awaited trial. 27 Approximately eight months later, on March 2, 2018, the People filed the instant 28 criminal case, charging Hewinin with First and Second Degree Criminal Sexual Conduct, Child Decision and Order (Motion to Dismiss the Special Allegations of Felony on Felony Release) Criminal Case No. CF0133-19; People v. Atriko A. Hewinin

1 Abuse, Aggravated Assault, and Resisting Arrest against another minor, S.S. (DOB: 2 06/02/2013). The allegations giving rise to CF0133-18 occurred on or about March 2, 2018, a 3 date on which Hewinin was on pre-trial release in CFO4O1-17. 4 These two cases—CFO4O1-17 against “Arwin” and CF0133-18 against “Hewinin”— 5 proceeded separately until October 4, 2018, at which time the People filed a Superseding 6 Indictment in CF0133-18. The Superseding Indictment modified CF0133-18 in three significant 7 ways. First, the People brought new charges: Hewinin was additionally charged with Video 8 Voyeurism, Fourth Degree Criminal Sexual Conduct, and Invasion of Privacy against an adult 9 female, J.S. These new charges date back to January 25, 2018, another date on which Hewinin 10 was on pre-trial release in CFO4O1-17. Second, the People incorporated all charges from ii CFO4O1-17 into CF0133-18. Third, the People posted six Notices of Commission of a Felony 12 While on Felony Release, a sentence enhancement authorized by 9 GCA § 80.37.1, for all 13 felony charges that allegedly occurred on January 25, 2019, and March 2, 2018. The resulting 14 Superseding Indictment charged Hewinin with seven felony charges, six of which included the 15 Felony While on Felony Release enhancement. In response to the Superseding Indictment, 16 Hewinin filed seven motions between October 16, 2018 and November 5, 2018. The instant 17 Motion was filed on October 29, 2018. 18 On February 21, 2019, this Court granted Hewinin’s First and Second Motions to Sever 19 Charges. Dec. & Order (Feb. 21, 2019). The Court found that, under the terms of the 20 Superseding Indictment, Hewinin would likely be prejudiced at trial if he had to simultaneously 21 defend against all charges and all victims. Id~ at 5. The Court therefore ordered that Hewinin 22 receive three separate trials, each limited to a single alleged victim. Id. The Court held the 23 instant Motion in abeyance pending the Court’s resolution of Hewinin’s Motion to Dismiss 24 Indictment, for Failure to Provide Exculpatory Evidence and for Implicit Vouching, which was 25 denied on July 3, 2019. 26 It is undisputed that on both January 25, 2018 and March 2, 2018, Hewinin was on pre 27 trial release in CFO4O1-17. Hewinin nevertheless argues that the Court should dismiss the 28

Page 2 of 7 Decision and Order (Motion to Dismiss the Special Allegations of Felony on Felony Release) Criminal Case No. CF0133-19; People v. Atriko A. Hewinin

1 Felony While on Felony Release sentence enhancements on both statutory and Constitutional 2 grounds. 3 DISCUSSION 4 I. The Special Allegation of Felony While on Felony Release is Not De Minimis. 5 Hewinin asks the Court to dismiss the Special Allegations of Felony While on Felony 6 Release under Guam’s Appropriateness of Prosecution statute, 9 G.C.A. § 7.67(b). The statute 7 directs a court to dismiss a prosecution if the defendant “did not actually cause or threaten the 8 harm or evil sought to be prevented by the law defining the offense.” Id. Hewinin argues that 9 “Felony on Felony Release cannot fit the harm that the legislature was trying to cure if the 10 Defendant is not found guilty of the first felony.” Mot. Dismiss (Oct. 29, 2018) at 3. 11 Hewinin provides no evidence of legislative intent in support of this argument. In the 12 absence of “clearly stated legislative intent to the contrary,” the plain meaning of the statute 13 prevails. Teleguam Holdings, LLC, v. Territory of Guam, 2015 Guam 13 ¶ 18. Accordingly, 14 the Court evaluates Hewinin’s de minimis claim by looking to the plain meaning of Section 15 80.37.1: 16 . Whoever commits a felony punishable under the laws of Guam while on release 17 on a felony charge pursuant to Chapter 40 (Criminal Procedure) of Title 8, Guam Code Annotated, shall, in addition to the sentence imposed for the crime 18 committed while on release, be imprisoned for a term of not less than five (5) 19 years nor more than twenty-five (25) years.” 20 ~ G.C.A. § 80.37.1(a). By its plain terms, the statute applies upon two conditions: (1) when the 21 defendant “commits a felony punishable under the laws of Guam,” at a time when the defendant 22 is (2) “on release for a felony charge” pursuant to Chapter 40. 23 “It is a well-established canon of statutory interpretation that the use of different words 24 or terms within a statute demonstrates that Congress intended to convey a different meaning for 25 those words.” S.E.C. v. McCarthy, 322 F.3d 650, 657 (9th Cir. 2003). Applying this principle, 26 the Court finds significance in the language shift between the statute’s first and second 27 conditions: while the defendant must “commit” the second felony, the defendant need only be 28 “on release” for the initial felony. The plain meaning of the word “commit” is “to do (something

Page 3 of 7 Decision and Order (Motion to Dismiss the Special Allegations of Felony on Felony Release) Criminal Case No. CF0133-19; People v. Atriko A. Hewinin

1 wrong or reprehensible), to perpetrate, be guilty of (a crime or offense, etc.).” United States. v. 2 Kavourkian, 315 F.3d 139, 143 (2nd Cir. 2002). Accordingly, the Legislature’s use of “commit” 3 clearly evinces intent that the Special Allegations apply only if the defendant is proven guilty of 4 the second felony. By contrast, the phrase “on release” only describes the defendant’s legal 5 status at the relevant moment. Nothing in the plain meaning of the phrase “on release” 6 requires—or even contemplates—how that legal status must eventually be resolved. Nor shall 7 the Court impose such a requirement. 8 The Court’s reasoning corresponds to that of other courts that have interpreted similar 9 statutes. In United States v. Davis, 114 F.3d 400 (2nd Cir. 1997), the Second Circuit interpreted 10 18 U.S.C. § 3147, the federal analogue to 9 GCA § 80.37.1. Section 3147 reads, in entirety: 11 “A person convicted of an offense committed while released under this chapter 12 shall be sentenced, in addition to the sentence prescribed for the offense, to 13 (1) a term of imprisonment of not more than ten years if the offense is a 14 felony; or (2) a term of imprisonment of not more than one year if the offense is a 15 misdemeanor. A term of imprisonment imposed under this section shall be consecutive to any 16 other sentence of imprisonment.” 17 18 U.S.C. § 3147. This federal statute is more expansive than Guam’s Section 80.37.1 because 18 it applies to all federal offenses, not just felonies. However, like Section 80.37.1, the federal 19 statute relies on the construction of “commit” versus “release.” In Davis, the Second Circuit 20 concluded that the statute imposes no conviction requirement for the initial felony: 21 “[18 U.S.C. § 3147] is concerned solely with whether a person released on bail in 22 connection with a federal criminal charge takes action in violation of a federal law while on pretrial release. By its terms, the statute regulates the conduct of 23 individuals deemed fit for pretrial release during their time under judicial 24 supervision. In this instance, the defendant was indicted for conduct committed while under such supervision; accordingly, whether he ultimately was 25 acquitted of the charge giving rise to the initial provision of bail is irrelevant.” 26 Davis, 114 R3d at 403 (emphasis added). Likewise, the District of Columbia Court of Appeals 27 held that the District’s analogous statute, D.C. Code § 23-1328, does not require a conviction 28

Page 4 of 7 Decision and Order (Motion to Dismiss the Special Allegations of Felony on Felony Release) Criminal Case No. CF0133-19; People v. Atriko A. Hewinin

1 for the initial felony. Speight v. United States, 569 A.2d 124 (D.C. 1989). Like Section 80.37.1, 2 the District of Columbia’s statute uses a “conviction” versus “release” configuration. D.C. Code 3 § 23-1328(a). The Speight court found the statute unambiguous, concluding that “no 4 qualification is imposed [by the statute] that the person be guilty of the first offense. . . it is the 5 fact of pretrial release that triggers the enhancement provision.” Speight, 569 A.2d at 126. 6 In light of the plain meaning of the statute and harmonious case law from other 7 jurisdictions, the Court finds no textual evidence that the Legislature intended for Section 8 80.37.1 to only apply when the initial felony is proven. Furthermore, Hewinin has provided no 9 affirmative evidence of legislative intent to support this proposition. The Court therefore holds 10 that so long as the defendant is “on release” for the initial felony at the time he “commits” the 11 second felony, Section 80.37.1 is satisfied. The ultimate disposition of the initial felony is 12 outside the contemplation of the statute. Because Hewinin has not shown that the Legislature 13 intended to exclude Hewinin’s situation from the reach of the statute, dismissal of the Special 14 Allegations on de minimis grounds is therefore unwarranted. 15 ~ The Special Allegation of Felony While on Felony Release is Not 16 Unconstitutional. 17 Hewinin’s Motion also invokes, as a defense to the Special Allegations, “the Defendants 18 Fourth, Five, and Six Amendment Rights of the Defendant and by implication the Organic Act 19 of Guam.” Mot. Dismiss (Oct. 29, 2018) at 1. 20 In launching a constitutional challenge, Hewinin incurs a heavy legal burden: “He who 21 alleges the unconstitutionality of an act bears the burden of proof.” In re Request of Governor 22 Carl T.C. Gutierrez, 2002 Guam 1 ¶ 41. Furthermore, under Guam Supreme Court precedent, 23 Hewinin is required to make his Constitutional arguments with particularity: 24 “In order to conduct a meaningful review, the parties must articulate their 25 arguments in a way that allows this court to apply recognized rules of law: ‘It is not sufficient for a party simply to announce a position or assert an error and then 26 leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either 27 to sustain or reject his position.” 28

Page 5 of 7 Decision and Order (Motion to Dismiss the Special Allegations of Felony on Felony Release) Criminal Case No. CF0133-19; People v. Atriko A. Hewinin

1 Lamb v. Hoffman, 2008 Guam 2 ¶ 35 (quoting Wilson v. Taylor, 577 N.W.2d 100, 105 (Mich. 2 1998)). From these principles, the Court analyzes Hewinin’s claims in succession. 3 The Fourth Amendment guarantees the right of the people to be free from unreasonable 4 governmental search and/or seizure. U.S. Const. amend. IV. Hewinin cites to the Fourth 5 Amendment in the opening paragraph of his Motion, but he does not return to this subject 6 anywhere else in his Motion or Reply. The subject matter of this Motion implicates neither 7 “search” nor “seizure” in any orthodox sense, so the Court assumes that Hewinin intends a 8 novel application. However, Hewinin fails to elaborate on, or even return to, this Fourth 9 Amendment theory. Under the teaching of Lamb v. Hoffman, the Court will not attempt to 10 independently discover a Fourth Amendment argument. 11 The Fifth Amendment encompasses several substantive guarantees for a criminal 12 defendant, most notably that a criminal defendant shall not “be deprived of life, liberty, or 13 property, without due process of law.” U.S. Const. amend. V. Hewinin’s Motion uses the phrase 14 “due process” only once, arguing “if the Government was allowed to charge the Defendant with 15 both the first and second felony and then merge the offenses and then charge out a special 16 allegation then the Defendants rights to due process and a fair trial would be without meaning.” 17 Mot. Dismiss (Oct 29, 2018) at 4. Assuming Hewinin’s due process claim is solely aimed at the 18 issue of Hewinin having to defend against “the first and second felony” simultaneously at trial, 19 the Court has already remedied that issue by granting Hewinin’s Motions to Sever. See Dec. & 20 Order (Feb. 21, 2019) at 5. 21 However, in his document styled Overview of the Seven Briefs Filed Since the 22 Government Filed a Superseding Indictment (Dec. 3, 2018), Hewinin describes the instant 23 Motion as “just deal[ing] with whether you can dismiss the charges in CFO4O1-17, and then 24 charge felony on felony release in CF0133-18.” Id. at 4. However, neither Hewinin’s Motion 25 nor his Reply provides a legal framework, relevant case law, or even a direct argument as to 26 why the People’s dismissal of CFO4O1-17 and subsequent incorporation of the charges in 27 CF0133-18 would constitute a due process violation. Under Lamb v. Hoffman, the Court will 28 not attempt to unravel and elaborate upon this insufficiently briefed argument. ~

Page 6 of 7 Decision and Order (Motion to Dismiss the Special Allegations of Felony on Felony Release) Criminal Case No. CF0133-19; People v. Atriko A. Hewinin

1 The Sixth Amendment to the United States Constitution guarantees that a criminal 2 defendant shall be tried by an impartial jury. U.S. Const. amend. VI. Hewinin’s Sixth 3 Amendment argument appears to be that “[ut would seem difficult for the jury to be impartial 4 when the Government elects to charge both the underlying first felony and the felony on felony 5 release in one indictment.” Mot. Dismiss (Oct. 29, 2018) at 4. As discussed above, the Court 6 acknowledges this proposition and has therefore ordered that the charges be severed. Hewinin 7 will receive three separate trials for the initial and subsequent felonies. Dec. & Order (Feb. 21, 8 2019) at 5. This will mitigate the juror prejudice that Hewinin alludes to and it will preserve 9 Hewinin’s ability to make a Blakely waiver at trial if he so chooses. Accordingly, the Court has 10 already provided an appropriate remedy for Hewinin’s Sixth Amendment claim. Dismissal of 11 the Special Allegations on Sixth Amendment grounds is therefore unnecessary. 12 CONCLUSION 13 For the reasons set forth above, the Court holds that the People’s Special Allegations of 14 Felony While on Felony Release, pursuant to 9 G.C.A. § 80.37.1, are not de minimis under the 15 terms of 9 G.C.A. § 7.67(b) and shall therefore not be dismissed at this time. The Court further 16 holds that Hewinin’s Constitutional claims do not provide sufficient grounds for the dismissal 17 of the Special Allegations. Accordingly, the Court DENIES Hewinin’s Motion to Dismiss the 18 Special Allegations of Felony on Felony Release. 19

21 IT IS SO ORDERED _____FEB 07 2620 22

24 SERVICE VIA COURT BOX I ack: iwledge that a copy of the 25 original hereto was placed in the court box 01: Ikc~ ~ HONORABLE ARTHUR R. BARCINAS 26 L) .1Pote~ Judge, Superior Court of Guam 27 Date4~(9( e:..~j2~fr’

28 Deputy Clerk&or Cou~ of Guam

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