People v. Kitano
Opinion
6 IN THE SUPERIOR COURT OF GUAM 7
8 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF499-08 )
9 Plaintiff, )
)
10 ) DECISION AND ORDER ) (Defendant's Motion to Reduce Sentence)
11 vs. )
)
12 )
ARNOLD BLANCO KIT ANO )
13 )
(DOB: 06/2711965), )
14 DefundanL )
15 ----------------------------)
16 INTRODUCTION 17 This matter came before the Honorable Anita A. Sukola on April 23, 2012, fo 18 Defendant's Motion to Reduce Sentence. Assistant Attorney General Christina Lum appeare 9 on behalf of the People of Guam ("the People"). Assistant Alternate Public Defender Eri 20
2 Overton represented Arnold Blanco Kitano ("Defendant"). Now, taking all evidence an
22 arguments into consideration, the Court issues the following Decision and Order.
23 BACKGROUND 24 Defendant was convicted on January 22, 2009, on charges of First Degree Criminal 25 Sexual Conduct in violation of 9 GCA § 25.15 (a)(6) and (b) and Second Degree Criminal 26 Sexual Conduct in violation of9 GCA § 25.20 (a)(6) and (b). On July 9, 2009, Defendant was 27
28 sentenced in the above captioned case. This Court sentenced Defendant as follows: life without
People v. Kitano (CF499-08) Page 1 of5 the possibility of parole for First Degree Criminal Sexual Conduct and fifteen years for Second 1
2 Degree Criminal Sexual Conduct. Judgment was entered on September 9,2009.
3 Defendant appealed his conviction to the Supreme Court of Guam. On July 29, 2011, 4 the Supreme Court issued People v. Kitano, 2011 Guam 11, wherein Defendant's conviction 5 was affirmed. Accordingly, the Supreme Court issued its Judgment on July 29, 2011. On 6 August 22, 2011, the Supreme Court issued its Mandate relative to the instant case.
7
8 Subsequently, on December 16, 2011, this Court received Defendant's Motion to Reduce
9 Sentence. The People filed their Brief in Opposition to Defendant's Motion to Reduce Sentence 10 on December 22, 2011. Hence, Defendant's motion was stamp filed by the Court on December 11 29, 2011, setting the matter to be heard on January 26, 2012. The motion hearing was 12 rescheduled for February 9, 2012.' At the request of the People and Defendant's uncertainty as 13
14 to whether the Government was served, the Court continued the matter for April 23, 2012, at 2
15 p.m.
16 DISCUSSION 17 Defendant moves the Court to reduce the sentence imposed upon him pursuant to 8 18 GCA § 120.46 which provides:
19 Correcting or Lowering Sentence: Times. The court may correct an illegal 20 sentence at any time and may correct a sentence imposed in an illegal manner 21 within the time provided herein for the reduction of sentence. The court may reduce a sentence within one hundred twenty (120) days after the sentence is 22 imposed, or within one hundred twenty (120) days after receipt iJy the court of 23 a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within one hundred twenty (120) days after entry of any order or 24 judgment of the Supreme Court of Guam, having the effect of upholding a judgment of conviction.
25
26 1 At the February 9,2012, hearing, Assistant Attorney General Nicolas B. Barrett represented to the Court that the
27 needed additional time to respond to Defendant's motion. Likewise, Assistant Alternate Public Defender Eri Overton could not confirm whether the Office of the Attorney General was served the motion, notwithstanding th 28 fact that the Court received the People's Brief in Opposition to Defs Motion to Reduce Sentence filed on Decembe 22,2011.
People v. Kitano (CF499-08) Page 2 of5 8 GCA § 120.46 (emphasis added).
2 Defendant did not present any witnesses nor orally argue any points at the April 23, 2012,
3 motion hearing. Instead, Defendant submitted on his written motion. Transcript JDAASCRA 4 (4/23/2012) at 2:32:55. Defendant specifically requests the Court "to exercise its discretion in a 5 lenient manner and reduce his sentence to ten years with credit for time served with the 6 remainder suspended subject to the satisfaction of reasonable conditions which the Court may 7
8 impose." Defs Motion to Reduce Sentence (Dec. 29, 2011). Defendant also argues that "[t]he
9 Court maintains jurisdiction to determine whether it will consider reducing the life sentence 10 without parole that was issued in this case." Defs Reply to Government's Opposition to Defs 1 Motion to Reduce Sentence (Feb. 13, 2012). Likewise, Defendant contends that "a lesser 12
13 sentence would serve the same purpose and effect as his current sentence." Id.
14 The People argue that "[t]here is nothing illegal or unfair about defendant's sentence."
15 People's Brief in Opposition to Defs Motion to Reduce Sentence (Dec. 22, 2011). Moreover, 16 the People point out that "[t]he sentence imposed by this [C]ourt is squarely within the 17 boundaries set forth by the relevant statutes." Id. In addition, the People argue that the 18
19 "[m]otion is untimely and should be stricken from the record on this basis[.]" People's
20 Response to Motion to Reduce Sentence (Feb. 13,2012). The People assert that Judgment from 21 the Supreme Court of Guam was issued on July 29, 2011 and Defendant's filing on December 22 29, 2011 amounted to 150 days, which is a facial violation of the timing provisions of 8 GCA § 23 120.46. Id. Defendant responds arguing that the "motion was filed on December 16, 2011, not 24
25 on December 29,2011 as the government argued in their brief[,]" thus filed within one hundred
26 twenty days after receipt by the Court of a mandate. Defs Reply to Government's Opposition 27 to Defs Motion to Reduce Sentence (Feb. 13,2012). Correspondingly, the People pointed out 28
People v. Kitano (CF499-08) Page 3 of5 at the April 23, 2012, motion hearing, that even if the Defendant filed the motion on December 1
16, 2011, it still surpasses the 120 day cutoff since it will equate to 140 days. Transcript
3 JDAASCRA (4/23/2012) at 2:33:20. 4 Upon review of the record, the Court notes that Defendant appealed his conviction to the 5 Supreme Court of Guam, and a Mandate affirming such conviction was issued by the high 6 Court on August 22, 2011. The People rely on the date Judgment was entered from the Supreme 7
8 Court of Guam as their basis to argue that Defendant failed to timely file. However, the Court
9 rejects this contention on the basis that Guam law spells out in pertinent part "within one 10 hundred twenty (120) days after receipt by the court of a mandate issued upon affirmance of the 11 judgment or dismissal of the appeal." This Court received the Mandate from the Supreme Court 12 of Guam on August 22, 2011. In view of this, Defendant's submission of the motion on 13
14 December 16,2011, amounted to 116 days, well within the filing deadline. Therefore, the Court
15 has the authority to entertain Defendant's motion.
16 The Court recognizes that the purpose of 8 GCA § 120.46 is to consider whether the 17 sentence originally imposed now seems unduly harsh. It is well settled that a motion for relief 18
19 from a legally imposed sentence shall not be granted unless it is shown that the sentence was th 20 based upon improper information. United States v. Parrott, 992 F.2d 914. (9 Cir. 1993). 21 Defendant has not provided the Court with any information or arguments which the Court failed 22 to consider at the time of the sentencing herein, nor has Defendant presented any new factual or 23 legal arguments which would warrant a reduction in sentence. Instead, Defendant suggests that 24
25 the "pronouncement of sentence and the news reports surrounding such sentencing" serve the
26 purpose of deterrence and that Defendant's continued incarceration is not necessary to deter 27 future conduct from others in the community.
28
People v. Kitano (CF499-08) Page 4 of5
The Court notes that the charges Defendant was convicted of are not minor violations.
Accordingly, the Court finds that the imposition of sentence relative to the instant case was
3 reasonable as prescribed in Guam law and rejects Defendant's argument that the sentence
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