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6 IN THE SUPERIOR SUPERIOR COURT OF GUAM 7 PEOPLE PEOPLE OF OFGUAl\/I, GUAM, )) CRIMINAL CASENO. CRIMINAL CASE no. CF0240-23 8 )) )) 9 vs. )) 110 )) DECISION AND ORDER RE. ALBERT PORTUSACH MENDIOLA, JR. ) MENDIOLA, JR. MOTION TO WITHDRAW WITHDRAW 11 AJ Mendiola, aka AJ ) AS COUNSEL COUNSEL AND DOB: 12/03/1982 DOB:12/03/1982 ) NEW COUNSEL APPOINTING NEW 12 1 )) Defendant. )) 13 13 _________ ______ ) ) 14 14
INTRODUCTION 15
16 This matter is the Honorable before the is before JudgeMaria Honorable Judge T. Cenzon MariaT. onAttorney Cenzon on Jennifer Davis's Attorney Jennifer Davis's
17 17 Motion Motion to to Withdraw Withdraw as as Counsel Counsel for Defendant Albert Portusach for Defendant Mendiola, Jr. Portusach Mendiola, (the"Motion") Jr.(the "Motion")
18 18 filed on April 1, 1, 2024. The was necessary and took the Court determined that no oral argument was The Court 19 matter underadvisement matter under advisementpursuant to CVR pursuant 7.l(e)(6)(D) to CVR of ofthetheLOCAL 7.1(e)(6)(D) RULES OF LOCALRULES OF THE 20 SUPERIOR SUPERIOR COURT COURTOF OFGUAM GUAMand AdministrativeRule andAdministrative No.06-001. RuleNo. Afterconsidering 06-001. After the considering the 21 2
22 22 pleadings on file and after reviewing the applicable statutes and case law, the Court now issues
23 23 this and Order this Decision and Order DENYING theMotion DENYING the Motionfor reasons set thereasons forthe forth in setforth the pleading, in the but pleading, but 24 24 GRANTING the Motion Motion on legal grounds on legal different from grounds different that which from that theMotion. which was advanced in the Motion. 25 25
27 27 People of ofGuam vs. vs. Albert Mendiola, Jr. Porfusach Mendiola, Albert Portusach 28 Criminal Criminal Case Case No. CF0240-23 No. CF0240-23 Decision Decision and Defense Counsel's re. Defense and Order re. Motion to Withdraw Counsel's Motion Page of8 Page Il of F5CTU_AL FACTUAL&_PROC1;DUR,Ag & PROCEDURAL BACK_KGROU_ND BACKGROUND 1
2 The Defendant is charged Defendant is charged with with the the following Possession of offenses: 1) Possession following offenses: Schedule II of a Schedule
3 Controlled Substance withIntent Substance with IntenttotoDeliver Deliver(As Possession of aa and 2) Possession (As a First Degree Felony) and 4 Schedule II Controlled Substance Schedule II (As aa Third Substance (As 18, 2023). Degree Felony). See Indictment (April 18, Third Degree 5 Attorney Davis Attorney Davis was was appointed appointed to represent Defendant on March 20, to represent 2024,after 20, 2024, Attorney Cynthia afterAttorney 6 7 Ecube Ecube was permitted permitted to to withdraw withdraw due due totoethical ethicalconsiderations precluding her considerations precluding continued her continued 7
8 appointment. appointment. Order re. re. Motion Motion to to Withdraw CourtAppointed as Court Withdraw as Counsel (Feb. 27, AppointedCounsel See 2024). See 27, 2024).
9 9 Nth. (March 20, 2024). Ntc. of ofCourt Court Appointed Appointed Counsel Counsel (March 10 Attorney Davis filed Attorney filed the the instant instant Motion on on the the grounds unavailability as grounds of unavailability as as well as 11 incompetence incompetence inin the the area area of criminal criminal law. law. Motion at at 2-4. cited several Davis cited 2-4. Davis off-island several off-island 12 12
13 13 conferences conferences and and prior prior work work commitments commitments through through August, August, 2024. She also 2024. She argues that she "has no also argues
14 14 prior experience experience relating relating to to criminal criminal court" court"and andcannot cannot provide providecompetent competent representation as representation as 15 15 required required under GRPC GRPC 1. 1.1. .Attorney Attorney Davis has not not indicated whether she has hasdiscussed thisMotion discussedthis Motion 16 16 with with the Defendant. 17 17 LEQAL NALYSIS LEGAL ANALYSIS 18 18
19 Rule 1.16 1.16 of ofthe the Guam Guam Rules Rules ofofProfessional ProfessionalConduct Conduct dictates when counsel dictates when may counsel may
20 20 withdraw from representation of of a client client and andprovides provides as asfollows: follows: 21 21 Rule 1.16: 1.16: Declining or or Terminating of ofRepresentation Representation 22 (a) (a) Except Exceptasas stated stated in in paragraph (c), (c), a lawyer lawyer shall not represent a client or, where shall not 23 23 representation hashas commenced, commenced, shallshallwithdraw withdraw from from the the representation representationofof a client if: 24 (1) the the representation will result representation will result in violation of of the the rules professional ofprofessional rules of 25 25 conduct or other law;law, (2) the the lawyer's lawyer'sphysical physical orormental mentalcondition condition materially the impairs the materially impairs 26 lawyer's lawyer's ability abilityto to represent represent the client; client, or 27 27 People of of Guam vs. Portusach Mendiola, Albert Portusach vs. Albert Mendiola, Jr. 28 Criminal Criminal Case Case No. CF0240-23 CF0240-23 Decision Decision and and Order re. re. Defense Motion to Withdraw Counsel's Motion Defense Counsel's Page Page 2 of8 (3) (3) the the lawyer lawyer is is discharged. discharged. I
2 (b) except except asas stated stated in in paragraph lawyer may paragraph ((e), a lawyer withdraw from may withdraw representing a from representing client if: if: 3 3 (l) (1)withdrawal withdrawalcan canbebeaccomplished accomplished without without material adverse effect material adverse on the effect on interests of the client 4 (2) the the client client persists course of persists in a course of action involving the action involving the lawyer's services lawyer's services 5 that the the lawyer reasonably believes lawyer reasonably believes is criminal or is criminal fraudulent; or fraudulent, (3) (3) the the client clienthas has used the lawyer's used the lawyer's services services to to perpetrate fraud; perpetrate a crime or fraud, 6 (4) the client insists upon taking action (4) the client insists upon taking action that that the lawyer considers lawyer considers repugnant repugnant 7 7 or or with with which which the the lawyer has aa fundamental lawyerhas disagreement; fundamental disagreement, (5) the the client client fails fails substantially substantially to to fulfill fulfill anan obligation obligation to the lawyer the lawyer 8 regarding the lawyer's lawyer'sservices servicesandandhas has been been given given reasonable that warning that reasonable warning the lawyer will withdraw unless the withdraw unless obligationisisfulfilled; the obligation fulfilled, 9 (6) 6)the the representation representation will resultininan willresult unreasonable financial burden anunreasonable burden on the IO 10 lawyer lawyer or or has has been rendered difficult by unreasonablydifficult rendered unreasonably the client; by the client, or (7) (7) other other good good cause cause for withdrawal exists. 11 (c) c) AAlawyer lawyermust mustcomply complywith withapplicable applicable law law requiring requiring notice or permission of notice to or 12 12 a tribunal representation. When ordered to do so by aa tribunal, terminating a representation. tribunal when terminating 13 13 a lawyer lawyer shall shall continue continue representation notwithstanding cause for terminating notwithstanding good cause the representation. representation. 14 14
(d) d) Upon Upon termination termination of ofrepresentation, representation, a lawyer lawyer shall shall take take steps steps to the the extent extent IS 15 reasonably practicable to reasonably practicable to protect protect a client's client's interests, interests, such such as giving giving reasonable reasonable 16 16 notice to the the client, allowing allowing time time for foremployment employmentofofother othercounsel, counsel,surrendering surrendering papers and property papers and property to to which the client client is is entitled entitled and and refunding refunding any any advance advance 17 payment of fee fee or orexpense expense that that has has not been earned or incurred. The lawyer incurred. The lawyer may may retain papers papers relating relating to to the the client to the extent permitted by by other law. 18
19 19 Rules of Prof. Conduct, Rule 1.16, Conduct, Rule 1.16,GU GUST ST SUPER SUPER CT RPC RPC Rule Rule 1.16. 1.16.
20 The Sixth Sixth Amendment Amendment guarantees that "[i]n guarantees that "[i]n all allcriminal criminalprosecutions, prosecutions, the the accused accused shall shall 21 enjoy the right...to ... to have have the the Assistance Assistance of of Counsel Counsel for his defense." defence." See See U.S. Const. amend. VI. Const. amend. VI. 22 The Supreme Supreme Court Court of ofthe the United UnitedStates States has has declared declared that that the right to counsel is is not a mechanical 23
24 requirement, butincludes requirement, but includes"the "the right right to to effective effective assistance assistance of counsel." See Strickland counsel." See v. Strickland v. 24
25 25 Washington, Washington, 466 U.S. 668, 684 (1984). Following Following this thisprecedent, precedent, the Supreme Court of Guam
26 26 has ruled that that"[ "[w]hi1e ]hile the constitutional guarantee guarantee of ofcounsel counsel is is aa fundamental fundamental right, a defendant 27 27 People of ofGuam vs. Portusach Mendiola, Albert Porrusach vs. Albert Mendiola, Jr. 28 28 Criminal Criminal Case Case No. No. CF0240-23 CF0240-23 Decision Decision and and Order re. Defense Counsel's re. Defense Counsel's Motion Motion to Withdraw Page 3 of8 Page is 'not lawyer whom entitled to a particular lawyer 'not entitled he can, whom he in his can, in view, have his view, 'meaningful attorney-client have aa 'meaningful I
22 relationship'. Rather, a defendant is entitled to adequate and 'conflict free representation under 'conflict free
33 Amendment." See People v. Libby, the Sixth Amendment." if 17 (citing United States v.v. Moore, 27 1] Guam 27 Libby, 2021 Guam Moore, 4 159 v. Slappy, 1154-1157, 1158 (9th Cir. 1998) (quoting Morris v. 159 F.3d 1154-1157, 1, 3-4 (1983)). Sloppy, 461 U.S. 1, 5 1. Public Public Defender Service Corporation (PDSC) Attorney qualifications Service Corporation provide an qualifications provide 6 objective measure of of "adequate indigent criminal an indigent of an representation" of legal representation" "adequate legal objective measure 7 defendant.
8 In determining what specifically constitutes "adequate" determining what of an indigent "adequate" legal representation of indigent
9 criminal defendant, defendant, the the Court Court Tums to the turns to qualifications of the qualifications Public Defender of aa Public employed with the Defender employed 10 10 Public Defender Service Corporation, Governmentof Corporation, Government Guam("PDSC") of Guam guidance. The Public for guidance. ("PDSC") for
Def ender Service Corporation Defender Act of]975 Corporation Act established PDSC of 19 75established "[i]norder PDSC "[i]n effective legal order to provide effective 12 12
13 aid and assistance aid and assistance to to those those persons persons in in Guam Guam who who are are unable to afford unable to afford counsel." counsel." 12 GCA § 11103
14 (emphasis added). (emphasis added). The The governing governing body body of ofthe the PDSC PDSC isis its its Board Board of of Trustees Trustees (12 (12 GCA GCA §§ 11107), 11107), 15 15 which which is is cha r ged wit charged h est with establish rules a nd a blish r ules andr egula t ions gover regulations governing ning "select ion, prpromotion, "selection, omot ion, 16 16 performance performance evaluation, among other other criteria of its personnel, including its personnel, including its its attorneys. attorneys. 12 12GCA GCA § 17 17 11110(a). 111 l0(a). The The Court Court finds standards set by the Public Defender Service Corporation Act that the standards finds that 18
19 of objective of Trustees provide an obi of 1975 and the PDSC Board of gauge in active gauge determining whether an in determining
20 20 indigent criminal defendant. an indigent attorney is adequately qualified to represent an 21 21 // II 22 II // 23 23
24 24 II U 25
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27 People of of Guam vs. vs. Albert Porfusach Mendiola, Jr. Albert Portusach 28 Criminal Criminal Case Case No. No. CF0240-23 CF0240-23 Decision Decision and Order re. re. Defense Defense Counsel's Counsel's Motion Motion to Withdraw Page 4 ofS Page 8 A Public PublicDefender Defenderisisdeemed deemedqualified qualifiedtotorepresent representindigent indigentcriminal criminal defendants defendants with with as as l
2 little little as as zero to two two years years as as an Attorney Level 1. 1In Level1.1 In the the Motion, Motion, Attorney Attorney Davis Davisadmits admits that that she she
3 has been licensed in in Guam since 2002 and has has practiced practiced in Guam for the past 22 years.Motion Motion at at 4 0 0 . u 3. However, she argues However, she area of argues that her area practice is almost of practice excluslvely in the almost exclusively federal the area of federal 5 immigration law. 6
However, However, the the Court Court takes takes judicial judicial notice noticethat that on on August August 28, 28, 2023, 2023, this this Court Court appointed appointed 7
8 8 Attorney Attorney Davis Davisto torepresent represent the the Defendant inPeople PeopleofofGuam Guamvs. vs. Krystal KrystalAguon AguonTakao Takai aka Krystal
99 Lynn Aguon, Criminal Criminal Case No. Cf0477-21. Cf0477-21. In In that that case, case, Defendant Takai was charged Defendant Takai charged via via 10 10 with Family Indictment with Indictment Violence (As Family Violence Misdemeanor) and Child Abuse (As (As aa Misdemeanor) Misdemeanor) 2 (As aa Misdemeanor) 11 Counts. September 18, Counts. On September 18,2023, 2023,Attorney AttorneyDavis Davis filed filed a Motion Motion to to Withdraw Withdraw as as Counsel Counsel in in that that 12 12
13 13 case case based largely on the based largely the same same grounds as proffered grounds as proffered here. the Court here. However, before the could Court could
14 14 schedule schedule aahearing hearingor orotherwise otherwiserule ruleon onthe theMotion MotiontotoWithdraw, AttorneyDavis Withdraw,Attorney tiled a Motion Davisfiled Motion
15 for An An Order Order Granting Granting aa Deferred Deferred Plea Plea (October (October27, 27, 2023). 2023). On OnFebruary 2024, this 8, 2024, February 8, Court this Court 16 granted the granted Motion for an Order Granting the Motion Plea and, Granting a Deferred Plea April 29, and, on April 2024, this 29, 2024, Court this Court 17 17 accepted accepted a Deferred Deferred Family Family Violence Violence Plea PleaAgreement Agreementwhich whichadjudicated the case adjudicated the against case against 18 18
19 19 Attorney Davis's Attorney Davis's client. Change of of Plea Hrg. Hrg. (Apr. (Apr.29, 29,2024). 2024).Thus, Thus, despite claimthat the claim despite the she is that she
20 20 not competent to effectively competent to effectivelyrepresent represent aa criminal criminal defendant, defendant, Attorney Attorney Davis Davis has has established established 21 otherwise. 22 22 An An Attorney Attorney Level Level22atatthe the PDSC PDSCisisan anattorney attorney with with over overtwo twoand less than and less years of than four years of 23
"progressively "progressively responsible responsible experience experience as as aa licensed licensed attorney attorney and graduation graduation from from a law school 24 24
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26 11 https://guampdsc.org'wp-content/uploads/20l Attomev-Level-2-JA-03-18.pdf https://guampdsc.org/wp-contentiuploads/2018/06/Attomev-Level-2-JA-03 - lb 27 27 People of ofGuamvs. Mendiola, Jr. vs. Albert Portusach Mendiola, 28 28 Criminal Criminal Case Case No. No. CF0240-23 CF0240-23 Decision Decision and and Order Order re. Counsel's Motion re. Defense Counsel's Motion to Withdraw Page 5 5 of of8 accredited by the accredited by theAmerican AmericanBar BarAssociation." Association."The The PDSC PDSC Attorney Attorney Level Level 2 "[h]andles "[h]andles a variety l
2 of moderate moderate to to serious serious legal legal matters matters and and ability ability to to resolve resolve moderate moderate cases cases with with general general 3 supervision. supervision. Assists in preparation of more complex legal preparation of legal matters. matters. Provides Provides some some guidance guidance and and 4 motoring mentoringtotoLevel Level1 1attorneys, attorneys,interns interns and externs. Provides and extems. Provides guidance guidanceand andmentoring motoring to to Level Level 11 55
attorneys and andat attimes timesother otherLevel Level 22attorneys." attorneys."Id. Id 6
7 Attorney Attorney Davis, Davis,who whohas has been been admitted to practice law in in Guam since 2002, 2002,would would qualify qualify
8 as a Level Level 4 Attorney in the pDsc.22 An the PDSC. An Attorney Attorney Level Level44ininthe the PDSC PDSChas has eight eight or or more years of 9 progressively responsible responsible experience experience as as aa licensed licensed attorney attorney and and "handles "handles core core assignments assignments at aa 10 complex complex level, level, and and critically critically analyzes analyzes and and handles handles complex complex legal legal matters. matters. Responsible Responsible for 11 preparing complex cases preparing complex cases to to litigation, litigation, initiating initiating and challenging legal and challenging legal policies; policies, counseling counseling high 12
13 13 level clients, level leadership on clients, leadership oncomplex complexcases casesand and legal legalissues. issues. Leads, Leads, guides guides and and mentors mentors attorneys attorneys
14 on matters including more matters including more complex complex legal matters, matters; is a resource matters." 3 As resource in specialized matters."3 As for
15 15 "Necessary "Necessary Special Special Qualifications" Qualifications"totoserve serveas ascourt-appointed court-appointed counsel counsel for for indigent indigent defendants, defendants, 16 the the PDSC does does not not require require any any special backgroundin special background in criminal criminallaw law or or practice practice for for any any of its its 17 Attorney Attorney positions positions from from Level Level 11 to to Level Level4.4.Under Under"Necessary "NecessarySpecial SpecialQualifications," Qualifications," 18
19 requirements include requirements include "possession "possession of of a current current license license to to practice practice law law in a state state or or territory territory of the
20 20 United States and aa current States and currentcertificate certificateof of good good standing." No experience standing." No experience in criminal criminal law is is 21 required for any level of any level ofattorney attorney at at the PDSC. Importantly, Importantly, by by all all accounts forth in the accounts set forth theMotion, Motion, 22 Davis isiscompetent Attorney Davis competenttotorepresent representthe theDefendant Defendantininthis thiscase. case.Although Althoughthe theCoLu*t Court Ends finds 23 23
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25 22 https://,¢zuambar.or,
22 and authority for granting the Motion to Withdraw.
3 Authoritytoto"Pass" 2. Authority "Pass"or under MR Refuse an Appointment under orRefuse the of the 1.l.3(b)(4)(A) of MR 1.1.3(b)(4)(A) Local Rules of the Superior Court of Guam. Superior Court 4
5 Under the the unusual unusual cir cumstances precipitating circumstances the issuance ecipitating the of Promulgation issuance of Order or nulation Or der
66 PRM06-006-25 (Nov. 17, 2023), 2023), MR 1.1.3 amended, and all appointments from the was amended, (a)(3) was 1.1.3 (a)(3) 7 7 was suspended Private Attorney Panel for all criminal cases was l, 2024, and, instead active suspended until May 1, 8 members of of the Guam Guam Bar Bar Association, membership list Association, from a membership Supreme list as approved by the Supreme 9
10 Court, were appointed after PDSC and APD attorneys were permitted to withdraw. This Court is
11 well aware aware that MRl.l.3(b)(4)(A) of the MR1.1.3(b)(4)(A) of Local Rules the Local technically applies Rules technically to PAP applies to attorneys; PAP attorneys,
12 12 however, however, nothing nothing in in the the Rule nor in the Promulgation Rule nor Order prohibits the application of the "Pass" Promulgation Order "Pass" 13 13 to active members of appointed during of the bar who have been appointed of the rule relating during the suspension of 14 14
15 such, the Court to the Private Attorney Panel. As such, shall apply MR Court shall l.l.3(b)(4)(A) to determine MR 1.1.3(b)(4)(A) 15
16 16 whether whether Defense Defense Counsel (and the Counsel (and Firm) may the Firm) request aa "pass" under the circumstances. The Rule may request
17 17 provides as follows: follows: 18 18 PAP attorneys may refuse or "pass" an appointment when unavailable to assume 19 the case cause. Reasons for case due to scheduling conflicts, workload, or other good cause. appointment shall be given to the ... Judge of passing appointment Court overseeing of the Superior Court overseeing 20 20 the case, and passing may not be done more than three times during a calendar year. 21 21 Id. (Emphasis (Emphasis added). The grounds added). The for withdrawal grounds for in this withdrawal in fall within the "workload" and this case fall 22 "other good good cause" of MR provisions of cause" provisions l. l .3(b)(4)(A). The argument MR 1.1.3(b)(4)(A). Attorney Davis is argument that Attorney 23 23
24 Defendant due to the requirements and type of practice which unavailable to adequately represent Defendant which 24
25 25 times throughout the year (scheduling conflicts), coupled requires her to travel off-island several times
26 26 providing counsel in providing her in assist her to assist with being aa solo practitioner without any partner or associate to 27 27 People of vs. Albert of Guam vs. Portusach Mendiola, Jr. Albert Portusach 28 Criminal Case No. Criminal Case CF0240-23 No. CF0240-23 Decision Decision and and Order re. Defense Counsel's re. Defense Motion to Withdraw Counsel's Motion Page 7 of8 L
to the the Defendant Defendant constitutes "good cause" constitutes "good cause" for applying the "pass" provisions applying the of MR prov1s1ons of 1
2 1.1.3(b)(4)(A).4 l 4
3 CONCLUSION 4 For the the above above reasons, Counsel's Motion to Withdraw Defense Counsel's reasons, Defense IT IS Withdraw is GRANTED. IT 5 FURTHER FURTHER ORDERED ORDERED that /*"'*"" Jq,a /lec;fl..er ~f,;,u, that lkatfwf OvitJIA 2 0-4-7m is appointed to represent the 6
7 7 • Defendant. Defense Defense Counsel is ordered to to deliver Defendant's case file to the newly appointed deliver the Defendant's
8 counsel within within ten ten (10) days days of ofthis Order. 5 this Order.5
9 9 SO ORDERED this May 17, 17, 2024. 10 /
11 J /. HO 4 CENZON -BLE BLE MARINI. . MARI.Kt~, / ~: ,. ,,,. · _,/.,_..,,-; CENZON 12 12 Judge, Sul5éi'ipjiQ9.urt'bf Guam '
Judge, Sui eri.v[_C.ourt of Guam 13 13
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25 25 '4 ·4 This would would constitute the first constitute the first of of three a relieved as apply in 2024 to be relieved Attorney Davis may apply "passes" for which Attorney three "passes" indigent indigent counsel in a criminal case. 26 26 MR l.l.3(b)(4)(A) 5 MR prohibits l. l.3(b )(4)(A) appointed prohibits appointedcounsel counselfrom fromcharging courtfor thecourt chargingthe determining whether fordetermining conflict exists to whether a conflict permit withdrawal. withdrawal. 27 27 People of of Guam vs. Albert Portusach vs. Albert Mendiola, Jr. Portusach Mendiola, Jr, 28 28 Criminal Criminal Case Case No. No. CF0240-23 CF0240-23 Decision Decision and and Order re. Defense Defense Counsel Counsel's Motion to W ithdraw ' s Motion Page 8 of8 Page of