• FILED SUPERI0R COURT UF GUAH 20l8FEB 12 PH |: 28 CLERK OF COURT
By! IN THE SUPERIOR COURT OF GUAM
THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0541-15
vs. DECISION AND ORDER
JONATHAN PETER NINETE aka Jonathan Peter Cepeda Ninety aka Jonathan Peter Cepeda,
Defendant.
INTRODUCTION This matter is before the Honorable Vemon P. Perez. Pursuant to Rule 7.l(e)(6)(E) of the Local Rules of the Superior Court of Guam, Defendant Jonathan Peter Ninete ada Jonathan Peter Cepeda Ninety aka Jonathan Peter Cepeda's ("Defendant") Motion to Dismiss Based on Double Jeopardy was taken under advisement on November 15, 2017. Assistant Attorney General James C. Collins represents the People of Guam ("the Government"). Public Defender Stephen P. Hattori represents Defendant.' Having reviewed the pleadings, the arguments presented, and the record, the Court now issues the following Decision and Order. BACKGROUND On September ll, 2015, Defendant was indicted with the following charges: (1) Promotion of Major Prison Contraband (Controlled Substance) (As a Second Degree Felony) -
1 Prior to this, Defendant was represented by Attorney Howard Trapp. The Public Defender Service Corporation was appointed to represent Defendant on October ll, 2016, after Attorney Tramp withdrew from representing Defendant due to a conflict of interest. See Minute Entry, Sep. 26, 2016, Notice of Court Appointed Counsel, Oct. 11, 2016.
People v. Ninere Case No.CF054l-15 Decision and Order I P ag e 1 of 5 ORIGINAL l
I 2 Counts, (2) Possession of a Schedule II Controlled Substance (As a Third Degree Felony); (3)
2 Possession of a Schedule I Controlled Substance (As a Violation). (Indictment, Sep. 11, 2015).
3 These charges are based on the discovery of suspected methamphetamines and marijuana on
4 Defendant's person when he checked into the Hagatna Detention Facility for confinement.
5 (Decl. of Sean Brown, Magistrate's Comal., Sep.4, 2015). Defendant was checking into the
6 Hagatna Detention Facility on September 2, 2015 after being sanctioned by the District Court of
7 Guam in relation to his federal case, District Coup Case No. 08-CR-00013-003.
8 On October 17, 2017, Defendant filed a Motion to Dismiss Based on Double Jeopardy.
9 On October 30, 2017, the Government filed its Opposition. On November 13, 2017, Defendant
10 filed his Opposition.
12 Defendant moves the Court to dismiss this matter because Ir violates Defendant's Fifth 13 Amendment right against double jeopardy. Defendant argues that the conduct alleged in the
14 instant matter and the facts underlying a probation revocation in his District Court of Guam 15 Case constitute the same conduct and the same criminal episode. See generally, Mot. Dismiss,
16 Oct. 17, 2017. On December 15, 2016, Defendant was sentenced to eighteen (18) months 17 confinement based on an admission of guilt to six violations of probation, including two
la violations based on the commission of new criminal offenses. See Mot. Dismiss, Ex. A.
19 Violation number 5 appears to refer to the instant case:
20 Com m itted a new crim inal offense, to wit: prom otion of m ajor prison 21 contraband, illegal possession of a Schedule H controlled substance, and illegal 22 possession of a Schedule I controlled substance.
23 Id. at 2.
24 The Double Jeopardy Clause of the Fifth Am endm ent prohibits m ore than one
25 prosecution for the same offense. The parties do not dispute that pursuant to Puerto Rico v.
26 Sanchez-Valle, 136 S.ct. 1863 (2016), a criminal prosecution of a person by the United States
27 on Guam prevents criminal prosecution of that same person by the territorial government based
28 on the same conduct. The issue before the Court is whether the District Court of Guam's
People v. Ninety Case No.cF054l -l5 Decision and Order
Page 2 of 5 I
x revocation of Defendant's probation and subsequent sentence in his federal case also implicates
2 double jeopardy. 3 "[P]robation revocation proceedings are not new criminal prosecutions but, rather, are
4 continuations of the original prosecutions which resulted in probation." People v. Manila, 2005
5 Guam 6 'I 13 (citations omitted). "Furthermore, courts agree that probation revocation
6 proceedings are not designed to punish a defendant for violation of a criminal law." Id. at 'I 14.
7 "Any sentence imposed as a result of revocation is not premised on the new criminal charges,
8 but derives exclusively from the original sentence on the earlier offense." Id. (citation omitted). 9 "Because revocation proceedings are not new criminal prosecutions, and do not punish the
[0 defendant for the criminal actions committed while on probation, double jeopardy does not
attach at a revocation hearing to bar a triad of the new criminal charges." Id. at 'I 15 (citations 12 omitted). "The application of the above-mentioned principles is dependent, however, upon the
13 underlying premise that in revolting probation, the revocation court limited the imposition of its 14 sentence to the crime for which probation was imposed." Id. at '][ 16. 15 In this case, Defendant was sentenced in District Court for violations of his federal
16 probation conditions. Although there is reference to the instant local criminal case in the 17 Judgment, it is not clear whether the sentence Defendant was given was an explicit punishment
18 based on the facts from which this instant matter lies, rather than an imposition of a sentence to 19 the crime for which probation was imposed. Defendant's violations of probation also included
20 failing to provide a urine sam ple, failing to report for drug tests, testing positive for
21 methamphetamine, failing to report for counseling sessions, as well as commission of another 22 criminal offense - Possession of a Schedule II Controlled Substance (approximately 75 gross
23 grams of methamphetamine). See Mot. Dismiss, Ex. A at 1-2. Nonetheless, the Court notes
24 that there is a jurisdictional exception to the double jeopardy clause. "Jeopardy can only attach
25 when a court acts in a manner within its jurisdiction and authority." Manila, 2005 Guam 6 at 1. 26 26. (citations and alterations omitted). Guam law provides that "[a] prosecution is not a bar 27 within the meaning of §§ 1.24, 1.26 and 1.28 under ... the following circumstances: (a) The
28 former prosecution was before a court which lacked jurisdiction over the defendant or the
People v, Ninety Case N0.CF054l-l5 Decision and Order
Page 3 of 5 • 1 offense tried in that court." 9 G.C.A. § L30(a) (2018). The SupremeCourt of Guam in Manila
2 held that "where a defendant is punished or sentenced in a proceeding over which the trial court
3 lacked jurisdiction over the defendant or the offense, later prosecution for the offense is not
4 barred by the double jeopardy clause." 2005 Guam 6 'I 27. 5 As the Government puts forth in its Opposition, the District Court of Guam does not
6 have subject matter jurisdiction over the charges brought against Defendant in the Superior
7 Court of Guam. Federal law provides:
8 (a) District Court of Guam, unified court system
9 (1) The judicial authority of Guam shall be vested in a court established by Congress designated as the "District Court of Guam", and a judicial branch of 10 Guam which branch shall constitute a unified judicial system and include an appellate court designated as the "Supreme Court of Guam", a trial court 11 designated as the "Superior Court of Guam", and such other lower local courts as 17 may have been or shall hereafter be established by the laws of Guam.
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• FILED SUPERI0R COURT UF GUAH 20l8FEB 12 PH |: 28 CLERK OF COURT
By! IN THE SUPERIOR COURT OF GUAM
THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0541-15
vs. DECISION AND ORDER
JONATHAN PETER NINETE aka Jonathan Peter Cepeda Ninety aka Jonathan Peter Cepeda,
Defendant.
INTRODUCTION This matter is before the Honorable Vemon P. Perez. Pursuant to Rule 7.l(e)(6)(E) of the Local Rules of the Superior Court of Guam, Defendant Jonathan Peter Ninete ada Jonathan Peter Cepeda Ninety aka Jonathan Peter Cepeda's ("Defendant") Motion to Dismiss Based on Double Jeopardy was taken under advisement on November 15, 2017. Assistant Attorney General James C. Collins represents the People of Guam ("the Government"). Public Defender Stephen P. Hattori represents Defendant.' Having reviewed the pleadings, the arguments presented, and the record, the Court now issues the following Decision and Order. BACKGROUND On September ll, 2015, Defendant was indicted with the following charges: (1) Promotion of Major Prison Contraband (Controlled Substance) (As a Second Degree Felony) -
1 Prior to this, Defendant was represented by Attorney Howard Trapp. The Public Defender Service Corporation was appointed to represent Defendant on October ll, 2016, after Attorney Tramp withdrew from representing Defendant due to a conflict of interest. See Minute Entry, Sep. 26, 2016, Notice of Court Appointed Counsel, Oct. 11, 2016.
People v. Ninere Case No.CF054l-15 Decision and Order I P ag e 1 of 5 ORIGINAL l
I 2 Counts, (2) Possession of a Schedule II Controlled Substance (As a Third Degree Felony); (3)
2 Possession of a Schedule I Controlled Substance (As a Violation). (Indictment, Sep. 11, 2015).
3 These charges are based on the discovery of suspected methamphetamines and marijuana on
4 Defendant's person when he checked into the Hagatna Detention Facility for confinement.
5 (Decl. of Sean Brown, Magistrate's Comal., Sep.4, 2015). Defendant was checking into the
6 Hagatna Detention Facility on September 2, 2015 after being sanctioned by the District Court of
7 Guam in relation to his federal case, District Coup Case No. 08-CR-00013-003.
8 On October 17, 2017, Defendant filed a Motion to Dismiss Based on Double Jeopardy.
9 On October 30, 2017, the Government filed its Opposition. On November 13, 2017, Defendant
10 filed his Opposition.
12 Defendant moves the Court to dismiss this matter because Ir violates Defendant's Fifth 13 Amendment right against double jeopardy. Defendant argues that the conduct alleged in the
14 instant matter and the facts underlying a probation revocation in his District Court of Guam 15 Case constitute the same conduct and the same criminal episode. See generally, Mot. Dismiss,
16 Oct. 17, 2017. On December 15, 2016, Defendant was sentenced to eighteen (18) months 17 confinement based on an admission of guilt to six violations of probation, including two
la violations based on the commission of new criminal offenses. See Mot. Dismiss, Ex. A.
19 Violation number 5 appears to refer to the instant case:
20 Com m itted a new crim inal offense, to wit: prom otion of m ajor prison 21 contraband, illegal possession of a Schedule H controlled substance, and illegal 22 possession of a Schedule I controlled substance.
23 Id. at 2.
24 The Double Jeopardy Clause of the Fifth Am endm ent prohibits m ore than one
25 prosecution for the same offense. The parties do not dispute that pursuant to Puerto Rico v.
26 Sanchez-Valle, 136 S.ct. 1863 (2016), a criminal prosecution of a person by the United States
27 on Guam prevents criminal prosecution of that same person by the territorial government based
28 on the same conduct. The issue before the Court is whether the District Court of Guam's
People v. Ninety Case No.cF054l -l5 Decision and Order
Page 2 of 5 I
x revocation of Defendant's probation and subsequent sentence in his federal case also implicates
2 double jeopardy. 3 "[P]robation revocation proceedings are not new criminal prosecutions but, rather, are
4 continuations of the original prosecutions which resulted in probation." People v. Manila, 2005
5 Guam 6 'I 13 (citations omitted). "Furthermore, courts agree that probation revocation
6 proceedings are not designed to punish a defendant for violation of a criminal law." Id. at 'I 14.
7 "Any sentence imposed as a result of revocation is not premised on the new criminal charges,
8 but derives exclusively from the original sentence on the earlier offense." Id. (citation omitted). 9 "Because revocation proceedings are not new criminal prosecutions, and do not punish the
[0 defendant for the criminal actions committed while on probation, double jeopardy does not
attach at a revocation hearing to bar a triad of the new criminal charges." Id. at 'I 15 (citations 12 omitted). "The application of the above-mentioned principles is dependent, however, upon the
13 underlying premise that in revolting probation, the revocation court limited the imposition of its 14 sentence to the crime for which probation was imposed." Id. at '][ 16. 15 In this case, Defendant was sentenced in District Court for violations of his federal
16 probation conditions. Although there is reference to the instant local criminal case in the 17 Judgment, it is not clear whether the sentence Defendant was given was an explicit punishment
18 based on the facts from which this instant matter lies, rather than an imposition of a sentence to 19 the crime for which probation was imposed. Defendant's violations of probation also included
20 failing to provide a urine sam ple, failing to report for drug tests, testing positive for
21 methamphetamine, failing to report for counseling sessions, as well as commission of another 22 criminal offense - Possession of a Schedule II Controlled Substance (approximately 75 gross
23 grams of methamphetamine). See Mot. Dismiss, Ex. A at 1-2. Nonetheless, the Court notes
24 that there is a jurisdictional exception to the double jeopardy clause. "Jeopardy can only attach
25 when a court acts in a manner within its jurisdiction and authority." Manila, 2005 Guam 6 at 1. 26 26. (citations and alterations omitted). Guam law provides that "[a] prosecution is not a bar 27 within the meaning of §§ 1.24, 1.26 and 1.28 under ... the following circumstances: (a) The
28 former prosecution was before a court which lacked jurisdiction over the defendant or the
People v, Ninety Case N0.CF054l-l5 Decision and Order
Page 3 of 5 • 1 offense tried in that court." 9 G.C.A. § L30(a) (2018). The SupremeCourt of Guam in Manila
2 held that "where a defendant is punished or sentenced in a proceeding over which the trial court
3 lacked jurisdiction over the defendant or the offense, later prosecution for the offense is not
4 barred by the double jeopardy clause." 2005 Guam 6 'I 27. 5 As the Government puts forth in its Opposition, the District Court of Guam does not
6 have subject matter jurisdiction over the charges brought against Defendant in the Superior
7 Court of Guam. Federal law provides:
8 (a) District Court of Guam, unified court system
9 (1) The judicial authority of Guam shall be vested in a court established by Congress designated as the "District Court of Guam", and a judicial branch of 10 Guam which branch shall constitute a unified judicial system and include an appellate court designated as the "Supreme Court of Guam", a trial court 11 designated as the "Superior Court of Guam", and such other lower local courts as 17 may have been or shall hereafter be established by the laws of Guam. (2) The Supreme Court of Guam may, by rules of such court, create divisions of 13 the Superior Court of Guam and other local courts of Guam. . 14 (3) The courts of record for Guam shall be the District Court of Guam, the 15 Supreme Court of Guam, the Superior Court of Guam (except the Traffic and Small Claims divisions of the Superior Court of Guam) and any other local courts 16 or divisions of local courts that the Supreme Court of Guam shall designate.
17 (b) Jurisdiction 18 The District Court of Guam shall have the jurisdiction of a district court of the United States, including, but not limited to, the diversity jurisdiction provided for 19 in section 1332 of Title 28, and that of a bankruptcy court of the United States. 20 (c) Original jurisdiction 21 In addition to the jurisdiction described in subsection (b), the District Court of Guam shall have original jurisdiction in adj other causes in Guam, jurisdiction 22 over which is nor then vested by the legislature in another court or other courts established by it. In causes brought in the district court solely on the basis of this 23 subsection, the district court shall be considered a court established by the laws of 24 Guam for the purpose of determining the requirements of indictment by grand jury or trial by jury. 25 48 U.S.C. § 1424 (emphasis added). Guam law establishes the jurisdiction of the Superior 26 Court of Guam over criminal actions under Title 9 G.C.A, including the three offenses 27 Defendantis accused of. See 7 G.C.A. § 1112, 3105. is
People v. Ninette Case No.CF054l-15 Decision and Order
Pages of S t The Court finds that the District Court of Guam did not have fundamental jurisdiction
2 over the Superior Court of Guam charges against Defendant, and therefore any sentence
3 imposed based on Defendant's revocation of probation of his federal case does not preclude
4 further prosecution in the instant matter.
6 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Dismiss
7 Based on Double Jeopardy. The parties are to return for Further Proceedings on
8 MmI M, 2019 at Q am . 9
IT IS SO ORDERED this Mdayof February, 2018. 10
14 HONORABLE VERNON p. PEREZ 15 Judge, Superior Court of Guam
19 20
7.4
People v. Ninety Case No.CF054\-15 Decision and Order
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