oF"§LED SUFEREBR COURT DF GUAM 1 21320 _]ll_ -2 PH Ll: 35 2 CLERKGFCOURT 3 By' 4
6 IN THE SUPERIOR COURT OF GUAM
8 THE PEOPLE OF GUAM, 9 Plaintiff, Criminal Case No. CF0343-20 10 vs. 11 DECISION AND ORDER RE. DEFENDANT'S EX PARTE 12 MOTION TO DISMISS ANTHONY GREGORY MENDIOLA, 13 (aka "Ton Mendiola") Defendant. 14
15 This matter came before the Honorable Maria T. Cenzon upon Defendant Anthony 16 Gregory Mendiola's Ex Parte Motion to Dismiss (the "Motion to Dismiss" or the "Motion") 17 filed on July 2§ 2020.1 It is unclear from the pleadings before the Court whether Defendant 18 served the People of Guam (the "People") with the pleadings as required under the applicable 19 Rules. Nevertheless, upon review of the Motion and its accompanied filings currently before it, 20
21 the CourtDENIES the Ex Parte Motion on the following procedural grounds:2
23 1 This matter was previously assigned to the Hon. Elyze M. Iriarte on June 26, 2020, who filed a Form One - Disqualification 24 on July 1, 2020. The matter was then transferred to this Court on July 1, 2020. 2 Following the filing of the instant Ex Parte Motion to Dismiss at 10:33 a.m. on July 2, 2020, Defendant filed an AMENDED Ex Parle Motion to Dismiss at 1.34 p.m. on July 2, 2020, however, the Amended Ex Parte Motion does not address the basis of 25 the Court's denial, as set forth herein.
31 People of Guam vs. Anthony Gregory Mendiola, Criminal Case No. CF0343-20 Decision and Order Re. Defendantls Ex Parte Motion to Dismiss Page I off 4
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1 1. DEFENDANT'S MOTION DOES NOT COMPLY wm-I THE LOCAL RULES OF THE SUPERIOR COURT OF GUAM AND DEFENDANT HAS FAILED TO ADVANCE ANY 2 JUSTIFIABLE REASON FOR NON-COMPLIANCE.
3 GR 1.1 of the Local Rules of the Superior Court of Guam (the "Local Rules") provides
4 that these Local Rules "supplement the Guam Rules of Criminal Procedure[,]" "shall be 5 construed so as to be consistent with applicable statutes to promote the just, efficient and 6 economical determination of every action and proceeding" and "shall apply to all actions and 7 Proceedin s, including ...criminal matters " exe t where inconsistent with rules or revisions 8 of law specifically applicable to such criminal matters. Ex Parte Applications are governed by 9 CVR 7.1.1 which applies to criminal proceedings with specific force pursuant to GR1.1(c)(The 10 provisions of the General Rules and the Provisions of Civil Rules 7.1 and 7.1.1 of the Local 11 rules of the Superior Court of Guam shall apply to all actions and proceedings, including 12 criminal cases). Thus, the threshold question is whether Defendant"s Ex Parte Motion to 13 Dismiss complies with the procedural mandates that govern urgent requests to the Court on an 14
15 expedited basis with little or no notice to the opposing Patty-3
16 a. Defendant's Ex Parte Application Does Not Complv with CVR 7.1.1.
17 As relevant to the determination at bar, CVR 7.1.1 mandates, in relevant part, that the
18 attorney seeking ex parte relief file a "Declaration of Counsel" which states the following:
19 (1) that a good faith effort has been made to advise counsel for all other parties, if known, or the parties themselves, if counsel is not 20 known, Q the date, time and substance gr the proposed Q parte application or the reasons supporting the claim that notice should 21 not be required, and 22
23 3 The Coup finds it noteworthy that the instant ex parte application seeks a pre-trial dispositive outcome in a First Degree 24 Murder case - a dismissal, therefore, strict compliance with the provisions of the applicable rules of procedure is mandated. Such may not be the case if, as an example and for illustrative purposes only, an ex parte application was filed with the stipulation of the parties, to allow a criminal defendant who was charged with a lesser non-violent felony of' a misdemeanor offense to travel 25 for the purposes of receiving treatment off-island. Such would not be dispositive of the charges as is the case here.
People of Guam vs. Am/zany Gregory Men rliola, Criminal Case No. CF0343-20 Decision and Order Re. Detendantls Ex Parte Motion to Dismiss Page 2 of 4 n
1 (2) the efforts to contact other counsel or the parties and whether any other counsel Q party, after such advice, opposes the 2 application Q has requested Q @ present when the application 5 presented Q the court, and if not filed in accordance with this rule, 3 reasons why the ex parte application has not been timely filed.
4 CV7.1.1 (a)(1),(2)(emphasis added). 5 Although Attorney McDonald filed a Declaration of Counsel (the "McDonald 6 Declaration") accompanying the Motion to Dismiss, the submission fell woefully short of the 7 requirements of CVR 7. 1 . 1. The Declaration avers the following: 8 2. That on Wednesday, July 1, 2020, my office contacted the 9 Assistant Attorney General who is assigned to Defendant's case of my intent to file an ex parte motion to dismiss. 10 3. I was successful in communicating directly with the assigned 11 Assistant Attorney General assigned to this instant case.4 12
It is incontrovertible that the statements in the McDonald Declaration fail to contain the 13
14 necessary "buzz words" that would signify that a "good faith effort" was made to advise the
15 People of Guam of the minimum logistics and substance of the proposed ex pate application (or,
16 alternatively, the reasons supporting the claim that notice should not be required) that are
17 required under Local Rule CVR 7.l.l(a)(l). Paragraph 2 of the McDonald Declaration states
18 only that defense counsel's ounce contacted the assigned Assistant Attorney General "of my
19 intent to file" the motion without mention of the requisite intended date, time and substance of
20 the proposed app1ication.5 21
22 4 Declaration of Com1se[ al ']['][2, 3 (July 2, 2020). 5 Plaintiffs Declaration merely informs the People of Guam of his "intent" to file an ex parte order, arguably leaving the Plaintiff to wonder when to expect to receive notice of the filed motion. Did counsel inform the AAG of the time and dale in which he 23 intended to bring the instant motion? The McDonald Declaration, unfortunately, does not state. Did defense counsel provide more information such as the basis of the intended motion to dismiss, or did he merely inform the AAG that he intended to file a 24 motion to dismiss without stating the intended time of filing nor of the legal authority on which such motion would be filed? Again, the McDonald Declaration, unfortunately, does not state. If it is the latter, such declaration, without more fails the standard required under CVR 7.1.1. Notice, even the most abbreviated notice, or a sufficient reason for 110/ providing notice, is 25 required under the applicable rule.
People of Guam vs. A/ztlzony Grego/3* Menzliola, Criminal Case No. CF0343-20 Decision and Order Re. Defendants Ex Parte Motion to Dismiss Page 3 oII4 1
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1 Moreover, the McDonald Declaration does not state whether the assigned Assistant
2 Attorney General "opposes the application or has requested to be present when the application
3 is presented to the court." The People have not filed any responsive brief or other response to
4 the Motion to Dismiss, which might be expected in a Murder (As a IS Degree Felony) case. It is 5 the duty of the Court to ensure that notice as required under the applicable rules has been served 6 upon the parties, absent a statement that no notice is required or should be excused. The Ex 7 Parte Application is wholly non-compliant and is, therefore, denied on this procedural basis. 8 2. DEFENDANT'S MOTION MAY PROCEED As SET FORTH IN CVR 7.1 AND CR1.1 9 GOVERNING MOTIONS PRACTICE IN CRIMINAL CASES.
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oF"§LED SUFEREBR COURT DF GUAM 1 21320 _]ll_ -2 PH Ll: 35 2 CLERKGFCOURT 3 By' 4
6 IN THE SUPERIOR COURT OF GUAM
8 THE PEOPLE OF GUAM, 9 Plaintiff, Criminal Case No. CF0343-20 10 vs. 11 DECISION AND ORDER RE. DEFENDANT'S EX PARTE 12 MOTION TO DISMISS ANTHONY GREGORY MENDIOLA, 13 (aka "Ton Mendiola") Defendant. 14
15 This matter came before the Honorable Maria T. Cenzon upon Defendant Anthony 16 Gregory Mendiola's Ex Parte Motion to Dismiss (the "Motion to Dismiss" or the "Motion") 17 filed on July 2§ 2020.1 It is unclear from the pleadings before the Court whether Defendant 18 served the People of Guam (the "People") with the pleadings as required under the applicable 19 Rules. Nevertheless, upon review of the Motion and its accompanied filings currently before it, 20
21 the CourtDENIES the Ex Parte Motion on the following procedural grounds:2
23 1 This matter was previously assigned to the Hon. Elyze M. Iriarte on June 26, 2020, who filed a Form One - Disqualification 24 on July 1, 2020. The matter was then transferred to this Court on July 1, 2020. 2 Following the filing of the instant Ex Parte Motion to Dismiss at 10:33 a.m. on July 2, 2020, Defendant filed an AMENDED Ex Parle Motion to Dismiss at 1.34 p.m. on July 2, 2020, however, the Amended Ex Parte Motion does not address the basis of 25 the Court's denial, as set forth herein.
31 People of Guam vs. Anthony Gregory Mendiola, Criminal Case No. CF0343-20 Decision and Order Re. Defendantls Ex Parte Motion to Dismiss Page I off 4
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1 1. DEFENDANT'S MOTION DOES NOT COMPLY wm-I THE LOCAL RULES OF THE SUPERIOR COURT OF GUAM AND DEFENDANT HAS FAILED TO ADVANCE ANY 2 JUSTIFIABLE REASON FOR NON-COMPLIANCE.
3 GR 1.1 of the Local Rules of the Superior Court of Guam (the "Local Rules") provides
4 that these Local Rules "supplement the Guam Rules of Criminal Procedure[,]" "shall be 5 construed so as to be consistent with applicable statutes to promote the just, efficient and 6 economical determination of every action and proceeding" and "shall apply to all actions and 7 Proceedin s, including ...criminal matters " exe t where inconsistent with rules or revisions 8 of law specifically applicable to such criminal matters. Ex Parte Applications are governed by 9 CVR 7.1.1 which applies to criminal proceedings with specific force pursuant to GR1.1(c)(The 10 provisions of the General Rules and the Provisions of Civil Rules 7.1 and 7.1.1 of the Local 11 rules of the Superior Court of Guam shall apply to all actions and proceedings, including 12 criminal cases). Thus, the threshold question is whether Defendant"s Ex Parte Motion to 13 Dismiss complies with the procedural mandates that govern urgent requests to the Court on an 14
15 expedited basis with little or no notice to the opposing Patty-3
16 a. Defendant's Ex Parte Application Does Not Complv with CVR 7.1.1.
17 As relevant to the determination at bar, CVR 7.1.1 mandates, in relevant part, that the
18 attorney seeking ex parte relief file a "Declaration of Counsel" which states the following:
19 (1) that a good faith effort has been made to advise counsel for all other parties, if known, or the parties themselves, if counsel is not 20 known, Q the date, time and substance gr the proposed Q parte application or the reasons supporting the claim that notice should 21 not be required, and 22
23 3 The Coup finds it noteworthy that the instant ex parte application seeks a pre-trial dispositive outcome in a First Degree 24 Murder case - a dismissal, therefore, strict compliance with the provisions of the applicable rules of procedure is mandated. Such may not be the case if, as an example and for illustrative purposes only, an ex parte application was filed with the stipulation of the parties, to allow a criminal defendant who was charged with a lesser non-violent felony of' a misdemeanor offense to travel 25 for the purposes of receiving treatment off-island. Such would not be dispositive of the charges as is the case here.
People of Guam vs. Am/zany Gregory Men rliola, Criminal Case No. CF0343-20 Decision and Order Re. Detendantls Ex Parte Motion to Dismiss Page 2 of 4 n
1 (2) the efforts to contact other counsel or the parties and whether any other counsel Q party, after such advice, opposes the 2 application Q has requested Q @ present when the application 5 presented Q the court, and if not filed in accordance with this rule, 3 reasons why the ex parte application has not been timely filed.
4 CV7.1.1 (a)(1),(2)(emphasis added). 5 Although Attorney McDonald filed a Declaration of Counsel (the "McDonald 6 Declaration") accompanying the Motion to Dismiss, the submission fell woefully short of the 7 requirements of CVR 7. 1 . 1. The Declaration avers the following: 8 2. That on Wednesday, July 1, 2020, my office contacted the 9 Assistant Attorney General who is assigned to Defendant's case of my intent to file an ex parte motion to dismiss. 10 3. I was successful in communicating directly with the assigned 11 Assistant Attorney General assigned to this instant case.4 12
It is incontrovertible that the statements in the McDonald Declaration fail to contain the 13
14 necessary "buzz words" that would signify that a "good faith effort" was made to advise the
15 People of Guam of the minimum logistics and substance of the proposed ex pate application (or,
16 alternatively, the reasons supporting the claim that notice should not be required) that are
17 required under Local Rule CVR 7.l.l(a)(l). Paragraph 2 of the McDonald Declaration states
18 only that defense counsel's ounce contacted the assigned Assistant Attorney General "of my
19 intent to file" the motion without mention of the requisite intended date, time and substance of
20 the proposed app1ication.5 21
22 4 Declaration of Com1se[ al ']['][2, 3 (July 2, 2020). 5 Plaintiffs Declaration merely informs the People of Guam of his "intent" to file an ex parte order, arguably leaving the Plaintiff to wonder when to expect to receive notice of the filed motion. Did counsel inform the AAG of the time and dale in which he 23 intended to bring the instant motion? The McDonald Declaration, unfortunately, does not state. Did defense counsel provide more information such as the basis of the intended motion to dismiss, or did he merely inform the AAG that he intended to file a 24 motion to dismiss without stating the intended time of filing nor of the legal authority on which such motion would be filed? Again, the McDonald Declaration, unfortunately, does not state. If it is the latter, such declaration, without more fails the standard required under CVR 7.1.1. Notice, even the most abbreviated notice, or a sufficient reason for 110/ providing notice, is 25 required under the applicable rule.
People of Guam vs. A/ztlzony Grego/3* Menzliola, Criminal Case No. CF0343-20 Decision and Order Re. Defendants Ex Parte Motion to Dismiss Page 3 oII4 1
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1 Moreover, the McDonald Declaration does not state whether the assigned Assistant
2 Attorney General "opposes the application or has requested to be present when the application
3 is presented to the court." The People have not filed any responsive brief or other response to
4 the Motion to Dismiss, which might be expected in a Murder (As a IS Degree Felony) case. It is 5 the duty of the Court to ensure that notice as required under the applicable rules has been served 6 upon the parties, absent a statement that no notice is required or should be excused. The Ex 7 Parte Application is wholly non-compliant and is, therefore, denied on this procedural basis. 8 2. DEFENDANT'S MOTION MAY PROCEED As SET FORTH IN CVR 7.1 AND CR1.1 9 GOVERNING MOTIONS PRACTICE IN CRIMINAL CASES.
10 Notwithstanding the denial of the Ex Parte Application on procedural grounds, the Court
11 will permit the motion to proceed pursuant to CR 1.1, as supplemented by CVR 7.1.6 Defendant
12 may, therefore, submit the moving papers in the manner as detailed and mandated in CVR 7.1. 13 The Court will then issue CVR FORM 3 setting the time and date for argument or determine 14 that oral argument is unnecessary, as appropriate. 15 SO ORDERED this 2"d day of July, 2020. 16
17 I 18 O MARIA T. CENZON Judge Si§périb5_Gourt of Guam 19
25 6 General Rule GR 1.l.(c).
People of Guz1nz vs. Anthony Gregory Mendiola, Criminal Case No. CF0343-20 Decision and Order Re. DefendanLls Ex Parte Motion to Dismiss Page 4 of 4