5 IN THE SUPERIOR COURT OF GUAM 6 ) CRIMINAL CASE NO. CF0411-17 7 PEOPLE OF GUAM, ) GPD Report No. 17-19986 ) 8 vs. ) ) DECISION & ORDER 9 ) RE. DEFENDANT'S MOTION TO DISMISS CASE DUE TO VICTOR VICENTE GAMBOA OMAGAP, ~ PROSECUTORIAL MISCONDUCT FOR DOB: 11/18/1975 ) FAILURE TO PROVIDE PLEA 11 AGREEMENT AS ORDERED BY ) COURT AT COURT PROCEEDINGS 12 Defendant. ________ _ _ _)) 13
14 This matter came before the Honorable Alberto E. Tolentino on March 4, 2026, for a 15 Motion Hearing. Defendant Victor Vicente Gamboa Omagap ("Defendant") was present with 16 counsel Public Defender Ramiro Orozco. Assistant Attorney General Samuel Alexander was 17
18 present for the People of Guam ("People"). Fallowing the hearing, the court took the matter under
19 advisement pursuant to Supreme Court of Guam Administrative Rule 06-001, CVR 7.l(e)(6)(A) 20 and CRl.1 of the Local Rules of the Superior Court of Guam. Having duly considered the parties' 21 briefings, oral arguments, and the applicable law, the court now issues this Decision and Order 22 DENYING the Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure 23
24 to Provide Plea Agreement as Ordered by Court at Court Proceedings.
25 \\ 26 \\ 27 \\ 28
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF04 l l- l 7 Page 1 of8 BACKGROUND
2 Based on events that occurred on or about July 17, 2017, the Defendant was charged with
3 POSSESSION OF A SCHEDULE II CONTROLLED SUBSTANCE (As a 3rd Degree Felony). 4 See Indictment (Aug. 7, 2017). As to this charge, the court deferred acceptance of the Defendant's 5 guilty plea. See Change of Plea Hr'g Mins. at 3:04:02 - 27:05PM (Nov. 16, 2018). 1 6
7 Following the deferment of the Defendant's plea, the court returned the original Plea
8 Agreement for corrections. See Speed Memo (Dec. 6, 2018). That same month, the court issued
9 a bench warrant for the Defendant's arrest after the Probation Services Division ("Probation") 10 filed a first violation for his failure to refrain from ingesting or consuming illegal controlled 11 substances. See Progress Hr'g Mins. at 10:09:42 - 10:18AM (Dec. 31, 2018). However, six (6) 12
13 years passed before the bench warrant was returned. See Return of Warrant (Jan. 18, 2024). After
14 absconding from the court's supervision, the court suspended a thirty-day sanction and released 15 the Defendant from confinement. See Return of Warrant Hr'g Mins. at 9:12:22AM (Jan. 23, 16 2024). 17 The Defendant subsequently received his second through sixth violations; all for testing 18
19 presumptive positive for methamphetamine. 2 After Probation filed his sixth violation, the parties
20 were before the court for a Progress Hearing on July 24, 2024. In that hearing, the court addressed 21 the lack of a filed Plea Agreement after Judge Sukola requested that it be resubmitted to reflect 22 her corrections. See Progress Hr'g Mins. at 2:51 :00-3:02:20PM (July 24, 2024). Due to no filed 23
24 Plea Agreement, the court was unable to file its Order After Hearing. Id Without an Order After
25 Hearing, Probation was unable to impose an expiration date for the Defendant's probationary 26
27 1 At this time, the case was before the Honorable Anita A. Sukola. 2 28 See 2nd Violation Report (Apr. 24, 2024); see also 3rd Violation Report (May 8, 2024); see also 4th Violation Report (June 3, 2024); see also 5th Violation Report (June 14, 2024); see also 6th Violation Report (June 27, 2024).
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF0411-17 Page 2 of8 term. Id. Based on its record of the Defendant's Change of Plea hearing in 2018, Probation
2 informed the court that the Defendant had the following outstanding conditions: (1) Treatment
3 with New Beginnings; twenty-four (24) recovery support meetings; (3) a fine of Five Thousand 4 Dollars ($5,000.00); (4) court costs of Eighty Dollars ($80.00); and (5) One Hundred Fifty (150) 5 hours of community service. Id. Ultimately, the court ordered the People to prepare a Plea 6
7 Agreement incorporating Judge Sukola's corrections indicated within the original Plea
8 Agreement, which was returned to the Office of the Attorney General of Guam through a Speed
9 Memo. Id.
By the next Progress Hearing on October 23, 2024, the court addressed the Defendant's 11 seventh violation but noted that it had not received a corrected Plea Agreement in order to prepare 12
13 its Order After Hearing. See Progress Hr'g Mins. at 2:46:50 - 52:16PM (Oct. 23, 2024). Again,
14 the court requested the Assistant Attorney General in this hearing to review this case and submit 15 a corrected Plea Agreement before the next hearing. Id. However, the court issued a warrant of 16 arrest pursuant to the Defendant's eighth violation. See Warrant (Feb. 26, 2025). 17 At his Return of Warrant hearing on March 11, 2025, the court addressed the Defendant's 18
19 eighth violation as well as the absence of a corrected Plea Agreement. See Return of Warrant Hr' g
20 Mins. at 4:09:02 - 22: 12PM (Mar. 11, 2025). After granting the Defendant's release, the Public 21 Defender assured the court that something could be drafted since its office had a digital copy of 22 the recording of the Change of Plea Hearing from 2018 before Judge Sukola. Id. 23
24 At the next hearing on May 23, 2025, the court addressed the Defendant's violations and
25 lack of a Plea Agreement once more. See Further Proceedings Mins. at 2:52:00- 57:37PM (May
26 23, 2025). Although the People filed a proposed Order After Hearing, no Plea Agreement was 27
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF0411-17 Page 3 of8 filed along with it. Id The court informed the parties that this would be the last continuance to
2 allow the parties to submit a corrected Plea Agreement before the next hearing in August. Id.
3 On August 20, 2025, the Defendant was not present at this Further Proceedings while the 4 court addressed the issue of the Plea Agreement. See Further Proceedings Mins. at 11:19:02 - 5 25:53AM (Aug. 20, 2025). The Public Defender informed the court that it received a formal Plea 6
7 Agreement from the People, memorializing the conditions imposed by Judge Sukola back on
8 November 16, 2018. Id In response, the court granted its request for a short continuance to ensure
9 that the terms within the People's proposed Plea Agreement align with Judge Sukola's previously
imposed conditions. Id 11 On November 19, 2025, the People informed the court that the proposed Plea Agreement, 12
13 which was sent before the last hearing, was still pending the Defendant's review and signature.
14 See Further Proceedings Mins. at 10:36:23 - 46:30AM (Nov. 19, 2025). The Defendant argued 15 that entering a plea at this point in the case would be" a miscarriage of justice;" and subsequently 16 made an oral motion to dismiss. Id. Because no Plea Agreement was filed, the court returned this 17 case back to pre-trial status and ordered the Defendant to comply with the previously imposed 18
19 conditions of pre-trial release. Id
20 The Defendant then filed a Motion to Dismiss Case due to Prosecutorial Misconduct for 21 Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings ("Motion to 22 Dismiss").
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5 IN THE SUPERIOR COURT OF GUAM 6 ) CRIMINAL CASE NO. CF0411-17 7 PEOPLE OF GUAM, ) GPD Report No. 17-19986 ) 8 vs. ) ) DECISION & ORDER 9 ) RE. DEFENDANT'S MOTION TO DISMISS CASE DUE TO VICTOR VICENTE GAMBOA OMAGAP, ~ PROSECUTORIAL MISCONDUCT FOR DOB: 11/18/1975 ) FAILURE TO PROVIDE PLEA 11 AGREEMENT AS ORDERED BY ) COURT AT COURT PROCEEDINGS 12 Defendant. ________ _ _ _)) 13
14 This matter came before the Honorable Alberto E. Tolentino on March 4, 2026, for a 15 Motion Hearing. Defendant Victor Vicente Gamboa Omagap ("Defendant") was present with 16 counsel Public Defender Ramiro Orozco. Assistant Attorney General Samuel Alexander was 17
18 present for the People of Guam ("People"). Fallowing the hearing, the court took the matter under
19 advisement pursuant to Supreme Court of Guam Administrative Rule 06-001, CVR 7.l(e)(6)(A) 20 and CRl.1 of the Local Rules of the Superior Court of Guam. Having duly considered the parties' 21 briefings, oral arguments, and the applicable law, the court now issues this Decision and Order 22 DENYING the Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure 23
24 to Provide Plea Agreement as Ordered by Court at Court Proceedings.
25 \\ 26 \\ 27 \\ 28
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF04 l l- l 7 Page 1 of8 BACKGROUND
2 Based on events that occurred on or about July 17, 2017, the Defendant was charged with
3 POSSESSION OF A SCHEDULE II CONTROLLED SUBSTANCE (As a 3rd Degree Felony). 4 See Indictment (Aug. 7, 2017). As to this charge, the court deferred acceptance of the Defendant's 5 guilty plea. See Change of Plea Hr'g Mins. at 3:04:02 - 27:05PM (Nov. 16, 2018). 1 6
7 Following the deferment of the Defendant's plea, the court returned the original Plea
8 Agreement for corrections. See Speed Memo (Dec. 6, 2018). That same month, the court issued
9 a bench warrant for the Defendant's arrest after the Probation Services Division ("Probation") 10 filed a first violation for his failure to refrain from ingesting or consuming illegal controlled 11 substances. See Progress Hr'g Mins. at 10:09:42 - 10:18AM (Dec. 31, 2018). However, six (6) 12
13 years passed before the bench warrant was returned. See Return of Warrant (Jan. 18, 2024). After
14 absconding from the court's supervision, the court suspended a thirty-day sanction and released 15 the Defendant from confinement. See Return of Warrant Hr'g Mins. at 9:12:22AM (Jan. 23, 16 2024). 17 The Defendant subsequently received his second through sixth violations; all for testing 18
19 presumptive positive for methamphetamine. 2 After Probation filed his sixth violation, the parties
20 were before the court for a Progress Hearing on July 24, 2024. In that hearing, the court addressed 21 the lack of a filed Plea Agreement after Judge Sukola requested that it be resubmitted to reflect 22 her corrections. See Progress Hr'g Mins. at 2:51 :00-3:02:20PM (July 24, 2024). Due to no filed 23
24 Plea Agreement, the court was unable to file its Order After Hearing. Id Without an Order After
25 Hearing, Probation was unable to impose an expiration date for the Defendant's probationary 26
27 1 At this time, the case was before the Honorable Anita A. Sukola. 2 28 See 2nd Violation Report (Apr. 24, 2024); see also 3rd Violation Report (May 8, 2024); see also 4th Violation Report (June 3, 2024); see also 5th Violation Report (June 14, 2024); see also 6th Violation Report (June 27, 2024).
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF0411-17 Page 2 of8 term. Id. Based on its record of the Defendant's Change of Plea hearing in 2018, Probation
2 informed the court that the Defendant had the following outstanding conditions: (1) Treatment
3 with New Beginnings; twenty-four (24) recovery support meetings; (3) a fine of Five Thousand 4 Dollars ($5,000.00); (4) court costs of Eighty Dollars ($80.00); and (5) One Hundred Fifty (150) 5 hours of community service. Id. Ultimately, the court ordered the People to prepare a Plea 6
7 Agreement incorporating Judge Sukola's corrections indicated within the original Plea
8 Agreement, which was returned to the Office of the Attorney General of Guam through a Speed
9 Memo. Id.
By the next Progress Hearing on October 23, 2024, the court addressed the Defendant's 11 seventh violation but noted that it had not received a corrected Plea Agreement in order to prepare 12
13 its Order After Hearing. See Progress Hr'g Mins. at 2:46:50 - 52:16PM (Oct. 23, 2024). Again,
14 the court requested the Assistant Attorney General in this hearing to review this case and submit 15 a corrected Plea Agreement before the next hearing. Id. However, the court issued a warrant of 16 arrest pursuant to the Defendant's eighth violation. See Warrant (Feb. 26, 2025). 17 At his Return of Warrant hearing on March 11, 2025, the court addressed the Defendant's 18
19 eighth violation as well as the absence of a corrected Plea Agreement. See Return of Warrant Hr' g
20 Mins. at 4:09:02 - 22: 12PM (Mar. 11, 2025). After granting the Defendant's release, the Public 21 Defender assured the court that something could be drafted since its office had a digital copy of 22 the recording of the Change of Plea Hearing from 2018 before Judge Sukola. Id. 23
24 At the next hearing on May 23, 2025, the court addressed the Defendant's violations and
25 lack of a Plea Agreement once more. See Further Proceedings Mins. at 2:52:00- 57:37PM (May
26 23, 2025). Although the People filed a proposed Order After Hearing, no Plea Agreement was 27
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF0411-17 Page 3 of8 filed along with it. Id The court informed the parties that this would be the last continuance to
2 allow the parties to submit a corrected Plea Agreement before the next hearing in August. Id.
3 On August 20, 2025, the Defendant was not present at this Further Proceedings while the 4 court addressed the issue of the Plea Agreement. See Further Proceedings Mins. at 11:19:02 - 5 25:53AM (Aug. 20, 2025). The Public Defender informed the court that it received a formal Plea 6
7 Agreement from the People, memorializing the conditions imposed by Judge Sukola back on
8 November 16, 2018. Id In response, the court granted its request for a short continuance to ensure
9 that the terms within the People's proposed Plea Agreement align with Judge Sukola's previously
imposed conditions. Id 11 On November 19, 2025, the People informed the court that the proposed Plea Agreement, 12
13 which was sent before the last hearing, was still pending the Defendant's review and signature.
14 See Further Proceedings Mins. at 10:36:23 - 46:30AM (Nov. 19, 2025). The Defendant argued 15 that entering a plea at this point in the case would be" a miscarriage of justice;" and subsequently 16 made an oral motion to dismiss. Id. Because no Plea Agreement was filed, the court returned this 17 case back to pre-trial status and ordered the Defendant to comply with the previously imposed 18
19 conditions of pre-trial release. Id
20 The Defendant then filed a Motion to Dismiss Case due to Prosecutorial Misconduct for 21 Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings ("Motion to 22 Dismiss"). On January 23, 2026, the People filed its Opposition to the Motion to Dismiss 23
24 ("Opposition"). Upon reviewing the pleadings, the court addressed the parties' arguments
25 regarding the Motion to Dismiss.
26 In the Motion Hearing, the Defendant argued that the interests of justice call for dismissal 27 of this case due to the People's alleged prosecutorial misconduct in its failure to provide a Plea 28
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF0411-17 Page 4 of8 Agreement. See Mot. Hr'g Mins. at 3:37:12 - 40:35PM (Mar. 4, 2026). The Defendant also
2 argued that the five-thousand-dollar-fine previously imposed was "cruel and unusual" for
3 someone who is indigent and appointed the Public Defender to represent him. Id. The People do 4 not believe that the delay to submit a written Plea Agreement should result in dismissal, indicating 5 that the issues surrounding it were more administrative; as opposed to a disagreement between 6
7 the parties. Id. at 3:40:36 - 43:51PM. After hearing the parties' arguments, the court took the
8 matter under advisement. Id. at 3:55:27 - 57:58PM.
9 DISCUSSION 10 "If the court becomes aware that a party has failed to comply with a court order, the court 11 may order such party to comply with the prior order, grant a continuance, or issue such other 12
13 order as it deems just under the circumstances." 8 GCA § 70.45. When trial judges select a
14 sanction to impose against counsel, the Guam Supreme Court has iterated that the appropriate 15 sanction is "proportionate to the misconduct." People v. Tuncap, 1998 Guam 13 ,r 24 (quoting 16 United States v. Gee, 695 F.2d 1165, 1169 (9th Cir. 1983)). 17 "The prosecutor's misconduct was of such serious nature and was placed on record at 18
19 numerous hearings throughout the last two years, and yet as of this motion no resolutions [have]
20 been offered, no plea agreement received, prepared reflecting the acceptance of such plea related 21 to the November 2018 change of plea." Def.' s Mot. Dismiss at 4. In its Opposition, the People 22 attached exhibits indicating efforts to redraft a plea in August of 2025 as well as a follow-up in 23
November of that same year. See Ppl. 's Opp 'n, Ex. A. In light of this, the People argued that 24
25 looking at the unreasonable delay in this 2017 was warranted, citing to 8 GCA § 80.70 and Barker
26 factors to review whether such unreasonable delay warranted dismissal of this case. Id. at 3. "If 27 there is unnecessary delay in bringing a defendant to trial, the court, on its own motion, may 28
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF041 l-17 Page 5 of8 dismiss the indictment, information or complaint." 8 GCA § 80.70(b). Because the court
2 previously deferred the Defendant's guilty plea rather than proceed with a trial, 8 GCA § 80.70
3 is not the appropriate authority to consider regarding this Motion to Dismiss. 4 The Defendant seeks dismissal of this case based on the "government's failure to adhere 5 to numerous requests by the Court going back to the first request on record at the July 2024 6
7 hearing through the last hearing held in August 2025." Def.' s Mot. Dismiss at 5. However,
8 dismissal is deemed an extreme sanction, because it would prevent the case from going forward 9 on its merits. Tuncap, 1998 Guam 13 ,r 27. Unless there is "flagrant and prosecutorial 10 misconduct," dismissing an indictment is not an appropriate sanction. People v. Naich, 2013 11 Guam 7 if 33 (quoting United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988)). 12
13 Upon reviewing this case's history, this court requested for a corrected Plea Agreement
14 five (5) times. The first request was made after the Defendant had been missing from the court's 15 supervision for six (6) years. The second request was made without objection from the Defendant. 16 When making a third request, the court granted a continuance based on the Public Defender's 17 representation that it possessed a digital recording of the Defendant's Change of Plea Hearing 18
19 before Judge Sukola; which it offered to share with the People. The court made a fourth request,
20 because the People filed a proposed Order After Hearing without a Plea Agreement to base it on. 21 As for the court's fifth request for a written Plea Agreement, the Defendant confirmed that a 22 proposed Plea Agreement was sent by the People the day prior. However, both parties wanted the 23
24 Defendant to confirm that the People incorporated the correct terms within the proposed Plea
25 Agreement before it could be submitted for the court's review.
26 Despite the parties' inability to submit a written Plea Agreement, the Defendant was aware 27 of the conditions imposed upon him when the court deferred acceptance of his guilty plea in 2018. 28
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF04 I 1-17 Page 6 of8 For instance, the Defendant was aware that he was to refrain from ingesting or consuming illegal
2 controlled substances each time Probation filed a violation against him. Yet, all but two (2) of the
3 Defendant's violations of probation were for ingesting or consuming illegal controlled 4 substances. 3 On the other hand, the Defendant was also aware of his outstanding fine and 5 treatment conditions, considering he paid off some of his fine and completed majority of his 6
7 recovery support meeting attendance.
8 In light of both the People and the Defendant's performance throughout the duration of
9 this case, the court finds that the People failed to comply with the court's order to submit a written
Plea Agreement in this case. Despite the People's failed attempts to produce a conforming Plea 11 Agreement, the court finds that this failure was not the product of flagrant and prosecutorial 12
13 misconduct. Therefore, dismissal on these grounds would not be an appropriate sanction in this
14 case. 15 \\ 16 \\ 17 \\ 18
19 \\
20 \\ 21 \\ 22 \\ 23
24 \\
25 \\
26 3 See 1st Violation Report (Dec. 31, 2018); see also 2nd Violation Report (Apr. 24, 2024); see also 3rd Violation 27 Report (May 8, 2024); see also 4th Violation Report (June 3, 2024); see also 5th Violation Report (June 14, 2024); see also 6th Violation Report (June 27, 2024); see also 7th Violation Report (Sep. 19, 2024); see also 9th Violation 28 Report (Mar. 7, 2025); see also 10th Violation Report (Apr. 1, 2025); see also [12th] Violation Report; see also 13th Violation Report (Aug. 6, 2025); see also 14th Violation Report (Nov. 7, 2025).
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v. Omagap, CF04 I I-I 7 Page 7 of8 CONCLUSION
2 For reasons stated above, the court hereby DENIES the Defendant's Motion to Dismiss
3 Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court 4 at Court Proceedings. 5 The court further ORDERS that the parties shall submit a Plea Agreement no later than 6
7 June 8, 2026, by 5:00PM in conformity with Judge Sukola's written corrections attached to the
8 Speed Memo filed in this case on December 6, 2018.
10 A Progress Hearing is scheduled before this court on June 10, 2026, at 2:00PM. II
17 HONORABLE ALBERTO E. TOLENTINO 18 Judge, Superior Court of Guam 19
23 S~:B.1HCE ifl& ErJit"\iiL I ac~no::'r.dge that c:,1 eiectron,c 24 copy of the original ·t1as e-mailed to:
25 Ol\G-~ Pt>~C 26 Dat~,2~~ne: _\Q:U[ 27
28 r: ·Re~indlau Deputy S~rtourt of Guam
Decision & Order Re. Defendant's Motion to Dismiss Case due to Prosecutorial Misconduct for Failure to Provide Plea Agreement as Ordered by Court at Court Proceedings People v_ Omagap, CF04 l l- l 7 Page 8 of8