IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0440-10 3 ) 4 vs. ) DECISION & ORDER RE: ) DEFENDANT'S MOTION TO 5 ERICKSON ATERADO LffiUT, ) CORRECTILLEGALSENTENCE ) 6 Defendant. ) 7
8 INTRODUCTION 9 This matter came before the Honorable Maria T. Cenzon for a motion hearing on 10 October 15, 2013 on Erickson Aterado Libut's (hereinafter "Defendant") Motion to Correct 11 Illegal Sentence (hereinafter "Motion") filed on September 17, 2013. Defendant was present 12 and represented by Attorney Howard Trapp, and Assistant Attorney General Gerald Henderson 13
14 represented the People.
15 After reviewing the Defendant's Motion, oral arguments of the People and Defendant, 16 and the applicable statutes and case law, this Court fmds that the sentence imposed pursuant to 17 Defendant's Plea Agreement and Judgment was neither unauthorized by the judgment of 18 conviction nor outside the permissible statutory range and hereby DENIES Defendant's Motion 19
20 to Correct Illegal Sentence.
21 BACKGROUND 22 Defendant pled guilty to Criminal Facilitation to Third Degree Robbery (as a 23 Misdemeanor) at a change of plea hearing on May 23, 2011. See Plea Agreement (May 31, 24
25 2011) and Reporter's Transcript of Proceedings, Change of Plea, May 23, 2011 (Dec. 13, 2013).
26 As part of his Plea Agreement, Defendant was sentenced to two (2) years of probation and a one 27 (1) year suspended prison sentence. /d. As of May 23, 2013, Defendant has completed his 28 Page 1 of7 probation and as of September 12, 2011, Defendant had completed all the special terms and
2 conditions of his plea agreement. See Informational Report from Probation (Sept. 12, 2011) and
3 Letter from Probation (Jun. 24, 2013). 4 Defendant filed this instant Motion on September 17, 2013 to remove paragraph (a) in 5 his Plea Agreement and the Judgment entered on July 10, 2013 which reads as follows: "That 6 Defendant shall be sentenced to serve one (1) year imprisonment, at the Department of 1
8 Corrections, with credit for time served. This period of incarceration shall be suspended."
9 Judgment'][ (a) (July 10, 2013)(emphasis in original). 10 Defendant claims that said provision resulted in an illegal sentence under 8 GCA § 11 120.46 and should be struck because the inclusion of the one year suspended sentence is not 12
l3 required by Guam law and the language is superfluous.
14 This Court agrees with the Defendant's reasoning that the provision in the plea 15 agreement is surplus language and not required under the laws of Guam. However, superfluous 16 language, if in accordance with the sentencing statutes, does not render the sentence illegal 17 under 8 GCA § 120.46 and this Court may not determine that the sentence imposed was illegal. 18
19 LAW AND ANALYSIS
20 This Court has jurisdiction to correct an illegal sentence, even over two years after it has 21 been imposed and after it has been fulfilled in full by Defendant. 8 GCA § 120.46 ("The court 22 may correct an illegal sentence at any time ... "). See also People v. Mallo, 2008 Guam 23 '][ 13 23 ("An illegal sentence is void and the right to appeal it cannot be waived ... "). 24
25 Guam adopted its definition of an illegal sentence from the Eighth Circuit in Mallo: an
26 illegal sentence is "[a] sentence . . . [that] is not authorized by the judgment of conviction or 27 [that] is greater or less than the permissible statutory penalty for the crime." Mallo'][ 13 (quoting 28 Page 2of7 United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002)). The Judgment of Conviction
2 in this case was to Criminal Facilitation to Third Degree Robbery (as a Misdemeanor), as a
3 lesser-related offense of Conspiracy to Commit Third Degree Robbery (as a 3rd Degree 4 Felony). Defendant's conviction of Criminal Facilitation to Third Degree Robbery was 5 properly classified as a misdemeanor in this case. See 9 GCA § 4.65 ("Criminal facilitation of a 6 felony of the second or third degree is a misdemeanor."). 7
8 With the exception of provisions relating to specific crimes, the sentencing judge's
9 discretion in the exercise of sentencing on Guam is governed by 9 GCA, Chapter 80. Defendant 10 refers specifically to the language of 9 GCA § 80.60 as the basis of his claim that Defendant's 11 sentence is illegal. The statute in question reads as follows: 12
13 § 80.60. Standards for Imposing or Withholding Probation. 14 (a) When Sentence May Not Require Prison Term. The court, in its discretion, 15 may make disposition in respect to any person who has been convicted of a crime without imposing sentence of imprisonment unless a minimum term is made 16 mandatory by a provision of [sic] Guam Codes. 17 (b) Notwithstanding Subsection (a) the court shall not suspend imposition of sentence or place an offender on probation if, having due regard to the nature and 18 circumstances of the crime and the history, character and condition of the offender, the court fmds that imprisonment is necessary for the protection of the 19 public because: 20 (1) there is undue risk that during the period of a suspended sentence or probation the offender would commit another crime; 21 (2) the offender is in need of correctional treatment that can be provided most effectively by commitment to an institution; or 22 (3) a lesser sentence would depreciate the seriousness of the offender's crime. 23 (c)The following factors, while not controlling, shall be accorded weight in determining whether to suspend imposition of sentence or to place the offender on 24 probation whether: (1) The offender's criminal conduct neither caused nor threatened serious harm. 25 (2) The offender did not contemplate that his criminal conduct would cause or 26 threaten serious harm. (3) There were substantial grounds tending to excuse or justify the offender's 27 criminal conduct, though failing to establish a defense. 28 Page 3 of7 (4) The offender has compensated or will compensate the victim of his criminal conduct for the damage or injury which was sustained. 2 (5) The offender has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the 3 present crime. (6) The offender is particularly likely to respond affirmatively to probationary 4 treatment. 5 (d) If a person who has been convicted of a crime is not sentenced to imprisonment, the court shall place him on probation if he is in need of the 6 supervision, guidance, assistance or direction that probation can provide. 7 9 GCA § 80.60. 8 When interpreting the meaning of a statute, a "court must look first to the language of 9
10 the statute itself." Sumitomo Constr. Co. v. Gov't of Guam, 2001 Guam 23
11 the statute's language, the court's task is to determine whether or not the statutory language is 12 plain and unambiguous." Aguon v. Gutierrez, 2002 Guam 14
16 Angoco: "[t]he plain meaning rule for statutory interpretation provides that 'if the language of a
17 statute is clear and there is no ambiguity, then there is no need to 'interpret' the language by 18 resorting to legislative history or other extrinsic aids."' People v. Angoco, 1998 Guam 10
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IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0440-10 3 ) 4 vs. ) DECISION & ORDER RE: ) DEFENDANT'S MOTION TO 5 ERICKSON ATERADO LffiUT, ) CORRECTILLEGALSENTENCE ) 6 Defendant. ) 7
8 INTRODUCTION 9 This matter came before the Honorable Maria T. Cenzon for a motion hearing on 10 October 15, 2013 on Erickson Aterado Libut's (hereinafter "Defendant") Motion to Correct 11 Illegal Sentence (hereinafter "Motion") filed on September 17, 2013. Defendant was present 12 and represented by Attorney Howard Trapp, and Assistant Attorney General Gerald Henderson 13
14 represented the People.
15 After reviewing the Defendant's Motion, oral arguments of the People and Defendant, 16 and the applicable statutes and case law, this Court fmds that the sentence imposed pursuant to 17 Defendant's Plea Agreement and Judgment was neither unauthorized by the judgment of 18 conviction nor outside the permissible statutory range and hereby DENIES Defendant's Motion 19
20 to Correct Illegal Sentence.
21 BACKGROUND 22 Defendant pled guilty to Criminal Facilitation to Third Degree Robbery (as a 23 Misdemeanor) at a change of plea hearing on May 23, 2011. See Plea Agreement (May 31, 24
25 2011) and Reporter's Transcript of Proceedings, Change of Plea, May 23, 2011 (Dec. 13, 2013).
26 As part of his Plea Agreement, Defendant was sentenced to two (2) years of probation and a one 27 (1) year suspended prison sentence. /d. As of May 23, 2013, Defendant has completed his 28 Page 1 of7 probation and as of September 12, 2011, Defendant had completed all the special terms and
2 conditions of his plea agreement. See Informational Report from Probation (Sept. 12, 2011) and
3 Letter from Probation (Jun. 24, 2013). 4 Defendant filed this instant Motion on September 17, 2013 to remove paragraph (a) in 5 his Plea Agreement and the Judgment entered on July 10, 2013 which reads as follows: "That 6 Defendant shall be sentenced to serve one (1) year imprisonment, at the Department of 1
8 Corrections, with credit for time served. This period of incarceration shall be suspended."
9 Judgment'][ (a) (July 10, 2013)(emphasis in original). 10 Defendant claims that said provision resulted in an illegal sentence under 8 GCA § 11 120.46 and should be struck because the inclusion of the one year suspended sentence is not 12
l3 required by Guam law and the language is superfluous.
14 This Court agrees with the Defendant's reasoning that the provision in the plea 15 agreement is surplus language and not required under the laws of Guam. However, superfluous 16 language, if in accordance with the sentencing statutes, does not render the sentence illegal 17 under 8 GCA § 120.46 and this Court may not determine that the sentence imposed was illegal. 18
19 LAW AND ANALYSIS
20 This Court has jurisdiction to correct an illegal sentence, even over two years after it has 21 been imposed and after it has been fulfilled in full by Defendant. 8 GCA § 120.46 ("The court 22 may correct an illegal sentence at any time ... "). See also People v. Mallo, 2008 Guam 23 '][ 13 23 ("An illegal sentence is void and the right to appeal it cannot be waived ... "). 24
25 Guam adopted its definition of an illegal sentence from the Eighth Circuit in Mallo: an
26 illegal sentence is "[a] sentence . . . [that] is not authorized by the judgment of conviction or 27 [that] is greater or less than the permissible statutory penalty for the crime." Mallo'][ 13 (quoting 28 Page 2of7 United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002)). The Judgment of Conviction
2 in this case was to Criminal Facilitation to Third Degree Robbery (as a Misdemeanor), as a
3 lesser-related offense of Conspiracy to Commit Third Degree Robbery (as a 3rd Degree 4 Felony). Defendant's conviction of Criminal Facilitation to Third Degree Robbery was 5 properly classified as a misdemeanor in this case. See 9 GCA § 4.65 ("Criminal facilitation of a 6 felony of the second or third degree is a misdemeanor."). 7
8 With the exception of provisions relating to specific crimes, the sentencing judge's
9 discretion in the exercise of sentencing on Guam is governed by 9 GCA, Chapter 80. Defendant 10 refers specifically to the language of 9 GCA § 80.60 as the basis of his claim that Defendant's 11 sentence is illegal. The statute in question reads as follows: 12
13 § 80.60. Standards for Imposing or Withholding Probation. 14 (a) When Sentence May Not Require Prison Term. The court, in its discretion, 15 may make disposition in respect to any person who has been convicted of a crime without imposing sentence of imprisonment unless a minimum term is made 16 mandatory by a provision of [sic] Guam Codes. 17 (b) Notwithstanding Subsection (a) the court shall not suspend imposition of sentence or place an offender on probation if, having due regard to the nature and 18 circumstances of the crime and the history, character and condition of the offender, the court fmds that imprisonment is necessary for the protection of the 19 public because: 20 (1) there is undue risk that during the period of a suspended sentence or probation the offender would commit another crime; 21 (2) the offender is in need of correctional treatment that can be provided most effectively by commitment to an institution; or 22 (3) a lesser sentence would depreciate the seriousness of the offender's crime. 23 (c)The following factors, while not controlling, shall be accorded weight in determining whether to suspend imposition of sentence or to place the offender on 24 probation whether: (1) The offender's criminal conduct neither caused nor threatened serious harm. 25 (2) The offender did not contemplate that his criminal conduct would cause or 26 threaten serious harm. (3) There were substantial grounds tending to excuse or justify the offender's 27 criminal conduct, though failing to establish a defense. 28 Page 3 of7 (4) The offender has compensated or will compensate the victim of his criminal conduct for the damage or injury which was sustained. 2 (5) The offender has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the 3 present crime. (6) The offender is particularly likely to respond affirmatively to probationary 4 treatment. 5 (d) If a person who has been convicted of a crime is not sentenced to imprisonment, the court shall place him on probation if he is in need of the 6 supervision, guidance, assistance or direction that probation can provide. 7 9 GCA § 80.60. 8 When interpreting the meaning of a statute, a "court must look first to the language of 9
10 the statute itself." Sumitomo Constr. Co. v. Gov't of Guam, 2001 Guam 23
11 the statute's language, the court's task is to determine whether or not the statutory language is 12 plain and unambiguous." Aguon v. Gutierrez, 2002 Guam 14
16 Angoco: "[t]he plain meaning rule for statutory interpretation provides that 'if the language of a
17 statute is clear and there is no ambiguity, then there is no need to 'interpret' the language by 18 resorting to legislative history or other extrinsic aids."' People v. Angoco, 1998 Guam 10
22 imprisonment if no minimum term is mandated.
23 As a misdemeanor, the Court could have sentenced Defendant to "a maximum term not 24 to exceed one (1) year." 9 GCA § 80.34. No minimum term is prescribed. 1 It is well within the 25 statutory power of the Court to fully suspend the imposition of the term of imprisonment and 26
27 1 Cf. 9 GCA § 80.30(a-b) (minimum terms of imprisonment are mandatory for ftrst and second degree felonies). 28 Page4of7 place the Defendant on probation under 9 GCA § 80.10(a) or sentence the defendant to
2 confmement for the maximum term of one year under 9 GCA § 80.10(a)(l). In the instant case,
3 Defendant was given credit for time served with the remaining term of imprisonment suspended 4 and placed on two (2) years of probation. The term of probation for a misdemeanor may not 5 exceed two (2) years under 9 GCA § 80.64(a). Defendant was also ordered to pay a fme of 6 $500.00 and to pay restitution, among other conditions permitted by 9 GCA § 80.62(b)(l-13). 7
8 Consequently, an examination of the terms and conditions of Defendant's Judgment and Plea
9 Agreement do not reveal any penalty which was unauthorized by statute or outside of the 10 statutorily permissible range. 11 Defendant correctly points out that the Judgment states that "[f]ailure of the Defendant 12
13 to follow all of the conditions of his probation will result in a hearing to revoke probation at
14 which time the court may impose the maximum sentence allowable under the statute charged as 15 specified in paragraph 2 of this agreement." Judgment I (f) (July 10, 2013). This language is 16 standard in plea agreements drafted by the People, and it reflects the statutory provision 17 permitting a court, in its discretion, after due process and hearing, to revoke probation and 18
19 impose a sentence up to the maximum faced by a defendant. See 9 GCA § 80.66(b) ("When the
20 court revokes a suspension or probation, it may impose on the offender any sentence that might 21 have been imposed originally for the crime of which he was convicted."). Given this provision 22 in the Judgment and the statute, it is clear that the Court, when it imposed judgment, need not 23 have included a suspended one-year sentence as the Court also retained the power to revoke 24
25 probation and impose a one-year term of imprisonment during the pendency of the two-year
26 probationary period. Defendant cites to a comment to 9 GCA § 80.60 to bolster this position: 27 II 28 Page 5 of7 "[a] sentence of probation no longer involves or requires suspension of the imposition or
2 execution of any other sentence." Motion at 3 (Sept. 17, 2013).
3 Assuming arguendo that Defendant is correct and the suspended one-year sentence 4 contained in paragraph (a) of the Judgment is superfluous, Defendant fails to identify any legal 5 authority for how this surplusage renders the sentence illegal and this Court has not identified 6 any authority on that point. Each of the aforementioned provisions examined in Defendant's 7
8 Judgment have a statutory basis in Guam law and are within the permissible ranges and 9 conditions envisioned by the Legislature. There is no basis for the claim that a superfluous 10 provision in practice has rendered the legal basis for the sentence and judgment contrary to the ll law. 2 Furthermore, comments to statutes need not be considered if the statutes are clear on their 12
13 face and the plain meaning rule as discussed earlier applies. See People v. Theobald, No. 92-
14 00126A, 1993 WL 128220, at *4 n. 2 (D.Guam App. Div. AprilS, 1993) ("comments ... have no 15 binding effect on the courts called upon to interpret the rules."). 16 Defendant directs the Court to 8 U.S.C. § 1101(a)(48)(B) and the application thereof to 17 Defendant's Judgment as resulting in collateral consequences not foreseen or intended by either 18
!9 the People or Defendant. 3 The Immigration and Naturalization Act defines certain categories of
20 crimes, even if a misdemeanor resulting in no term of imprisonment, which render an alien 21 subject to deportation. 4 Of course the preemption doctrine applies to local or state action on 22 issues of federal immigration law and policy. See Arizona v. United States, 132 S. Ct. 2492 23
24 2 As Defendant argues that the error is a legal one, this Court cannot amend the Judgment under 9 GCA § 120.50 25 People v. Alisasis, 2006 Guam 91 14: "it is quite clear that Section 120.50 provides a trial court with limited leewa in making changes to judgments already entered" and "[T)he district court has no discretionary authority under Rul 26 36 to correct its own errors in imposing an otherwise valid sentence...."((quoting United States v. Daddino, 5 F.3 262,264-65 (7th Cir.1993))(Federal Rule of Criminal Procedure 36 is identical to 9 GCA § 120.50)). 3 27 The People conceded this issue at oral argument. Minute Sheet at 3:11:06-3:11:33 (Oct. 15, 2013). 4 In Defendant's case refer to 8 U.S.C. §§ ll01(a)(43)(F-G) and (U) and ll01(a)(48)(A-B). 28 Page6of7 (2012). In Defendant's case the collateral civil consequence of deportation resulting from his
2 Judgment of Conviction are outside the ambit of this Court's jurisdiction under 9 GCA §
3 120.46. 5 4 CONCLUSION 5 As this Court finds that the sentence imposed pursuant Defendant's Plea Agreement and 6 Judgment was neither unauthorized by the judgment of conviction nor outside the permissible 7
8 statutory mandates IT IS HEREBY ORDERED that Defendant's Motion to Correct lllegal
9 Sentence is DENIED. 10 No further hearings in this matter are scheduled. ll SO ORDERED this--'--- day of January, 2014. 12
14 HONORABLE MARIA T. CENZON 15 Judge, Superior Court of Guam 16
26 5 Defendant is not foreclosed from appellate review of a claim of ineffective assistance of counsel for not having 27 been advised of the collateral immigration consequences of his guilty plea pursuant to Padilla v. Kentucky, 559 US 356 (2010). 28 Page 7 of7