People v. Rivera

• Court: Superior Court of Guam
• Decided: December 13, 2023
• Docket: CF0005-23
• Status: Unknown

Opinion

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6 IN THE SUPERIOR COURT OF GUAM COURT OF GUAM 7 PEOPLE OF GUAM, GUAM, ) CRIMINAL CRIMINAL CASE CF000S-23 CASE NO. CF0005-23 8 )) GPD Report ReportNo.: No.:22-06966/23-00115 22-06966/23-00115 ) 9 vs. VS. )) 10 ) DECISION AND AND ORDER ORDER RE. )) DEFENSE COUNSEL'S MOTION TO COUNSEL'S MOTION 11 II )) WITHDRAW WITHDRAW DUE DUE TO TO INCOMPETENCE JAMES TORRES RIVERA, ) RUEBEN JAMES 12 12 DOB: DOB: 12/28/1995 12/28/1995 )) 13 13 _______________)) 14 14 INTRODUCTION 15 15 This matter matter came before the the Honorable Honorable Judge Judge Maria T. T. Cenzon Cenzon on on September 2023, 18, 2023, September 18, 16 16 for for a hearing hearing on onthe theMotion Motionto toWithdraw WithdrawDue Incompetence(the DuetotoIncompetence "Motion") filed by Attorney (the"Motion") 17 17

18 Michael Michael Berman Berman as as court-appointed (hereinafter"Defense counsel (hereinafter court-appointed counsel Counsel" or "Defense Counsel" or "Attorney 18

19 19 Berman") to to Defendant Defendant Rueben James JamesTorres Rivera (hereinafter "Defendant"). Tories Rivera was Defendant was "Defendant"). Defendant

20 20 present via Zoom with present via with Attorney Attorney Berman Berman and and present the People present for the was Assistant People was Attorney Assistant Attorney 21 General Christine S. Tenorio. Tenorio. Following Followingthe thehearing, hearing,the theCourt tookthe Courttook matterunder thematter advisement under advisement 22 pursuant pursuant otoCVR CVR7.l(e)(6)(D) 7. 1(€)(6)(D)ofofthe the LOCALRULES LOCAL RULESOF OFTHE THESUPERIOR SUPERIORCOURT COURT OF OF GUAM GUAM 23

24 and Administrative Rule Nos. 06-001. and Administrative After considering 06-001. After considering the pleadings on file the pleadings and having file and heard having heard 24

25 25 oral arguments, and after arguments, and after reviewing applicable statutes the applicable reviewing the Court now statutes and case law, the Court issues now issues

26 26 this Decision Decision and andOrder OrderDENYING DENYING Defense Counsel's Motion. .27 People of People Guam vs. ofGuam Rueben James vs. Rueben Torres Rivera James Tories 28 28 CF0005-23 No. CF0005-23 Case No. Criminal Case Criminal Decision Decision and and Order re. Defense Defense Counsel's Motion to Withdraw Counsel's Motion Due to ithdraw Due Incompetence to Incompetence Page 12 Page 11 of 12 FACTUAL FACTUAL & & PROCEDURAL BACKGROUND I

2 The Defendant is charged charged with with the the following following offenses: 1) 1) First First Degree Degree Criminal Criminal Sexual Sexual 3 Conduct (As a First Degree Felony), 2) 2) Second Second Degree Degree Criminal Criminal Sexual Conduct (As Sexual Conduct Conduct (As aa First First 4 . . . Third Degree Degree Felony), 3) Thlrd Degree Cnmmal Criminal Sexual Sexual Conduct (As a Conduct (As a Second 4) Second Degree Felony), 4) 5 Fourth Degree Fourth Degree Criminal Criminal Sexual Sexual Conduct Conduct(As (As a Third Degree Felony), and and 5) 5) Possession of aa Possession of 6 Schedule II Controlled Substance Schedule II (As a Third Degree Substance (As Degree Felony). Felony).See SeeIndictment Indictment (Jan. (Jan. 12, 12, 2023). 2023). 7

8 8 Attorney Berman Berman was was appointed appointed to to represent represent Defendant Defendant on onJanuary January 5, 2023. 2023. See Ntc. Ntc. of of Court Court 9 9 Appointed Counsel Counsel (Jan. 5, 2023). (Jan. 5, 2023). At the the Magistrate's Magistrate's Hearing Hearing on on January January 6, 2023, 2023, Attorney Attorney 10 10 Frankie Perez'1appeared appeared on on behalf behalf of ofDefendant Defendant and and he he appeared appeared again again on Defendant's behalf behalf at at 11 11 the continued the continued Magistrate's Magistrate's hearing hearing on on January January 9, 9, 2023. 2023. See See Magistrate's Magistrate's Hrg. Hrg. (Jan. 6, 2023), (Jan. 6, 2023); 12 12

133 1 Magistrate's Hrg. (Jan. 9, 2023). (Jan. 9, 2023). At At no time did Attorney Perez Perez raise raise the the issue of his issue of his ability ability to to

14 14 competently represent represent the Defendant during during previous previous hearings. hearings. 15 On January 19, 2023, January 19, 2023, during during the the Defendant's Defendant's Arraignment Arraignment Hearing, Hearing, Attorney Attorney Perez Perez 16 appeared on Defendant's appeared on Defendant's behalf behalf and andentered enteredaaplea pleaof ofNot Not Guilty Guilty by Reason Reason of Mental Mental Illness Illness 17 ("NGRI") ("NORI")and, and,asasaaresult, result,Magistrate MagistrateJudge Judge Benjamin BenjaminC. C.Sison, Sison, Jr., Jr., ordered a forensic evaluation evaluation 18 18

19 19 pursuant pursuant toto99GCA GCA §§ 7.22(d). 7.22(d). See See Arraignment Arraignment Hearing Hearing Minutes Minutes (Jan. (Jan. 19, 19, 2023), 2023), and Order for and Order for

20 Forensic Forensic Evaluation Evaluation (Jan. (Jan. 20, 20, 2023). 2023). Subsequently, Subsequently, Dr. Dr. Juan Juan Rapadas Rapadas found found the the Defendant Defendant 21 competent to be proceeded proceeded against against and and to be be sentenced sentenced and and opined that Defendant did that Defendant did not not lack lack 22

24 24

25 11 Attorney Attorney Frankie FrankiePerez Perez ("Attorney ("Attorney Perez") Perez")isisaamember memberof ofDefense Counsel'slaw Defense Counsel's lawfirm. firm.On OnJanuary January 6, 6, 2023, Attorney 2023, Attorne 26 26 Perez Perez appeared appeared on behalf ofofDefendant Defendant during during the hearing. Minutes the Magistrate's hearing. Minutes of ofMagistrate's Magistrate's Hrg. Hrg. via via Zoom Zoom ata 4:41:45 PM (Jan. (Jan. 6, 2023). 27 People People ofofGuam Guam vs. vs. Rueben James James Torres Tories Rivera Rivera 28 28 Criminal Criminal Case Case No. CF0005-23 CF000S-23 Decision Decision and and Order re. re. Defense Defense Counsel's Counsel's Motion Motion to Withdraw Due Due to to Incompetence Incompetence Page 2 of12 "substantial capacity" "substantial at the capacity" at time of the time the incident of the to qualify incident to NGRI. See qualify for NGRI. Evaluation Forensic Evaluation See Forensic 1

22 (Feb. 13, (Feb. 13,2023).

3 2023 before this 7, 2023 During the Competency Hearing on March 7, Court, neither Attorney this Court, 4 on behalf Perez on ofDefendant behalf of nor Assistant Defendant nor General Grant Olan on behalf Assistant Attorney General the People behalf of the 5 contested Dr. Rapadas's findings, thus, the Court adopted the findings; thus, as its the Forensic Evaluation Report as 6

7 findings on own findings own Defendant'scompetency on Defendant's andsubstantial competencyand capacity. The substantial capacity. Courtthen The Court set the then set matter the matter 7

8 for trial. Further Proceedings trial. See Further Hr'g Minutes at 09:31:34 ProceedingsHr'g AM (Mar. 7, 2023), 09:31:34AM Criminal Trial 2023); Criminal

9 other deadlines Scheduling Order (May 9, 2023). Among other the Trial deadlines set forth in the Trial Scheduling Order, 10 10 the deadline the Court set the for all motions as July 3, 2023. deadline for 11 months later, on August 8, 2023, Several months duringthe 2023, during Pre-Trial Conference and for the first thePre-Trial 12 12

13 13 time since the inception the case, Attorney ofthe inception of Perezand AttorneyPerez the Defendant andthe requested the Defendant requested Court appoint the Court

14 14 him a new new attorney. attorney.See SeePre-Trial 09:39:49AM Pre-Trial Conference Minutes at 09:39:49 (Aug. 8, AM (Aug. 2023). The 8, 2023). Court The Could 15 Defendant outside queried Defendant of the outside of presence of the presence Perez regarding of Attorney Perez why Defendant regarding why wanted Defendant wanted 16 16 new counsel to which counsel to he responded, which he "My attorney responded,"My andII don't attorney and see eye-to-eye." don't see Id atat 09:40:09 eye-to-eye." Id 09:40:09 17 17 18 when further However, when AM. However, questioned by further questioned the Court, by the became clear Court, ititbecame that Defendant clear that has never Defendant has 18

19 19 Attorney Berman met with Attorney and it Berman and was evident it was that Defendant evident that merely shopping Defendant was merely around for a shopping around

20 20 attorney of defense attorney Court then of his liking. The Court that, notwithstanding then stated that, its initial notwithstanding its that initial finding that 21 Defense Counsel is competent Counsel is to represent competent to that it would permit Defense Counsel represent the Defendant, that 22 to submit the Court for the submit a written motion for to address Court to properly under address properly the applicable under the Rules of applicable Rules 23

24 Criminal Procedure and theLocal and the Guam. Id., Local Rules of the Superior Court of Guam. 09:45:15AM at 09:45:15 Id., at AM to 24

25 25 09:45:56 AM. 09:45:56 AM.

27 People of People Guam vs. ofGz1am RuebenJames vs. Rueben Tories Rivera JamesTorres 28 28 Criminal Case Criminal CF0005-23 Case No. CF0005-23 Decision and Order re. Defense Decision and Counsel's Motion Defense Counsel's Due to Motion to Withdraw Due Incompetence to Incompetence Page 3 ofl2 Page of 12 15, 2023, On August 15, Defense Counsel 2023, Defense Counsel filed the the instant Motion setting instant Motion setting forth the basis of the basis of I

2 his request requestas asfollows: follows: Defense Counsel Counsel "fails "fails to to possess possess sufficient knowledge, skill, experience, experience,

3 training in criminal law training law and and procedure, procedure, and for for these these and and other other reasons, reasons, is unable to provide unable to 4 competent representation representationof of Defendant." Defendant." See Mot. at at 1. 1. Defense Defense Counsel Counsel states states that the the types types of of 5 the charges in the the above-captioned above-captioned matter and andthe thepotential potential life life sentence the the Defendant may may face 6

"make[s] "make[s]ititofofparamount paramountimportance importancethat that [the] [the]Defendant Defendantbe berepresented represented in in this this matter matter by counsel 7

8 who are adequately andfamiliar adequately experienced and familiar with felony felony criminal criminal defense defense and and therefore therefore are are able able 9 to provide effective effective counsel." counsel." Id., Id., at at 2. 10 10 In support support of its its request, request, Attorney Attorney Berman Berman argues that "[t]he criminal argues that criminal justice justice system system 11 II requires that that every every defendant threatened threatenedwith with loss loss of liberty libertybe berepresented represented at at trial trial and and on on appeal appeal 12

13 13 by competent counsel." Id., competent counsel." Id., at at 2 (citing Zarabia Zarabia v. v. Bradshaw, Bradshaw, 185 185 Ariz. 1, 1, 912 P.2d 55 (Ariz. 912 P.2d (Ariz.

14 1996)). 1996)). Defense Defense Counsel Counsel also cites to Professional Professional Responsibility in in Criminal Criminal Defense Defense Practice Practice 15 15 ad 3d §9.8: §9.8: 16 16 "A "Alawyer lawyershall shallprovide providecompetent competentrepresentation representation to to aaclient. client.Competent Competentrepresent represent 17 requires requires thethe legal legal knowledge, knowledge, skill, skill,thoroughness, thoroughness, and and preparation preparation reasonably reasonably necessary necessary for the the representation." representation." This This includes includes understanding understanding "the benefits and and 18 risks associated with risks associated with the the technology technology relevant relevantto to the thelawyer's lawyer's practice." practice." Also, the the 19 19 "mental, emotional,and "mental, emotional, andphysical physicalwell-being" well-being"ofof aa lawyer lawyer isis an element an element. of of competence. If Ifaa lawyer lawyerisisnotnotcompetent competentto tohandle handle aa matter, matter, the the lawyer lawyer has has aa duty duty 20 to refer refer the the client client elsewhere elsewhere or to associate other counsel who or to associate other counsel who is competent.is competent. Appointed Appointed counsel counsel has duty to has a duty to bring bring his his or or her herlack lackof of competence, competence, including lack 21 of ofpreparation, preparation, to the attentionof the attention of the the trial trial court. court.Lawyers Lawyers have have been been disciplined disciplined for for 22 taking taking criminal cases which they were not competent to to handle." handle."

23 Attorney Attorney Berman Berman filed aa Declaration Declaration of of Counsel Counsel and and aa Declaration Declaration of of Defendant Defendant on on 24 24 August 15, 15, 2023, in support supportof of the the Motion. Motion. In In the the Declaration Declaration of ofDefendant, Defendant,Defendant Defendantstated stated that that 25 "[a]fTer "[a]fter reviewing reviewingthis this case case with with Mr. Mr. Berman's Berman's office officeand andcoming comingtotorealize realizethat thatMr. Mr.Berman Berman and and 26 26

27 People ofofGuam Guam vs. vs. Rueben James James Torres Tories Rivera Rivera 28 28 Criminal Criminal Case Case No. No. CF0005-23 CF0005-23 Decision Decision and and Order re. re. Defense Defense Counsel's Counsel's Motion Motion to to W ithdraw Due Withdraw Due to to Incompetence Incompetence Page Page 4 of12 his law firm do not practice criminal felony defense, defense, and and that he also lacks sufficient experience I

2 of cases, I do not believe that Mr. Berman will be in these types of be able able to provide me with proper

3 representation." See representation." Deel. of See Decl. ofDefendant ,r (Aug. 15. 2023). Defendantatat116 4 In his Declaration of of Counsel, Defense Counsel stated that he has "been practicing law in 5 1989, and almost all of Guam since 1989, of the legal legal matters matters that that [he [he has] undertaken, undertaken, appeared appeared in, and 6

currently handling are are proceedings of of a domestic, civil, or or probate nature." nahlre." See Decl. Deel. of Counsel 7

8 ,r 66 (Aug. at 1] (Aug. 15, 15, 2023). Berman also 2023). Berman also stated stated that "due "due to to [his] [his] civil, civil, domestic, domestic, and and probate probate 9 background and expertise, [he does] not practice criminal defense and decline and refer potential 10 10 . . . . clients that request request for crlmlnal criminal defense defense representatlon representation to to other other attorneys attorneys that that regularly regularly practice practice 11 11 in criminal defense." Id, ,r Id, atat117. 12 12

13 13 During the hearing, the following exchange exchange occurred with respect to to Mr. Mr. Berman's Berman's Motion

14 14 to Withdraw: 2

15 15 COURT: This matter is on for a hearing on the Motion filed tiled by Mr. 16 16 Berman, Berman, a Motion to to Withdraw Withdraw DueDue toto Incompetence Incompetence and together with together with a memorandum. memorandum. II do note for the the record record a . 17 17 l Declaration executed by Mr. Rivera also indicates that he is in support support of of the the Motion, Motion, and and Declaration Declaration of of Counsel Counsel 18 18 indicating that he was appointed on January 5 of this year, 19 been practicing law since 1989, 1989, and ... uh ... also sets forth practice in his, in his law Him. the practice firm. Alright, Mr. Berman in 20 addition addition to ... was there any other there other argument argument in support support of of 21 your Motion? Otherwise, the Court does does have a couple couple of of questions for you. * * * 22 MR.BERMAN: BERMAN: Hello, your Honor. * * * Yeah, I just wanted to make a general comment. I can well 23 appreciate the complexity of of this situation situation and the resources 24 available to the available to the Court. Having said Court. Having said that, that, II still still think think my 24 Motion is well-grounded, and the highest priority should be 25

26 26 22 Hrg. on on Motion Motion at at 10:12:34 I 0: AM to 10:20:02 AM AM (Sep. I 0:20:02 AM (Sep. 18, I 8, 2023). 2023). 27 People ofofGuam Guam vs. vs. Rueben James James Torres Tories Rivera 28 28 Criminal Criminal Case Case No. No. CF0005-23 CF0005-23 Decision Decision and and Order re. re. Defense Defense Counsel's Counsel's Motion Motion to W ithdraw Due Due to to Incompetence Incompetence Page Page 5 of 12 12 the best interest interest ofof the Defendant who's who's charged charged in in this case. 1 That's all II would would say,say, your Honor. 2 COURT: Alright, Alright, thank you. And I do note for the record that thank you. thatyou've you've indicated indicated in your your declaration declaration thatthat your practice practice hashas been been 3 primarily focused on ... let me see, uh...civil, domestic, ... domestic, and and probate, probate, and and you you don't practice practice criminal defense, declined 4 and and refer potential clients, uh, uh, forward criminal criminal defense to 5 other attorneys, attorneys, and and alright. alright. And And ... ... so so you you are are the the managing partner partner is is that thatcorrect? correct? Of Of Pacific Lawyers Lawyers isis that that the the name name 6 of the of the firm? 7 BERMAN: MR.BERMAN: That is, that correct, your Honor. that is correct, COURT: Alright. And And re rethere there any anyother otherindividuals, individuals, any any attorneys attorneys 8 who are part of that firm? MR. BERMAN: MR.BERMAN: Yeah, butbut there's there's none none inin our our firm firm that that practices practices in in this this area area 9 of of law. 10 10 COURT: No, No, but, but, I'm I'mson'y, sorry,just justinin general general how how many many attorneys attorneys are in your firm? 11 BERMAN: MR.BERMAN: We have five five lawyers lawyers in in the the Guam Guam law law office. office. COURT: Okay. Alright Alright andand ** ****who whoisisthe the newest newest practicing attorney 12 12 the office? in the office? 13 MR.BERMAN: BERMAN: I'm I'm Sony sorry youryour Honor. Honor. YourYourquestion question again. again. COURT: Who is is the the newest newest practicing attorney in practicing attorney in your your office? office? The 14 14 one with with the least numbernumberof of years years of of experience. MR.BERMAN: BERMAN: That's Frank. That's Frank. Yeah, Yeah, uh,uh, that's Frankie Perez and and he's he's at at this 15 15 table right now now if you'd you'd like like him him toto comment. comment. 16 16 COURT: Alright, Alright,and and uhuh just just aa question question as as to howhow many many years years he he has has of ohm practice ofuhm practice as an as an attorney, a licensed lawyer on Guam? lawyer on Guam? 17 17 MR. BERMAN: For Mr. Perez,Perez, that'll that'll bebe three three years, years, your Honor. Honor. II believe he law law clerked clerked for for your youroffice. office. 18 COURT: Okay. He certainly did. Yes, he he certainly did. 19 MR. BERMAN: MR.BERMAN: Thank you, your Honor. COURT: Thank you Thank you ..... .oh, oh,nono won*ies worries ... and . andthen, then, for for the the most most 20 20 senior member of your your firm, whowho would would that that be? Is that you, 21 yourself? MR.BERMAN: BERMAN: Myself Myselfand and also Mr. Bill Bill Mann Mann who still comes to to the theoffice, office, 22 22 although I would would describe him as semi-retired. COURT: Sure. And again, you've you've been beenlicensed licensedon onGuam Guam since since 1989? 1989? 23 MR.BERMAN: BERMAN: That is correct, your Honor. COURT: Alright, Alright, thank you. Alright, and thank you. and your law firm ... does your 24 24 law firm operate firm operate a website? 25 MR. BERMAN: Yes, wewe do do have have a website. 26 26

27 People People ofofGzmm vs. Rueben Guam vs. Rueben James JamesTorres Tories Rivera Rivera 28 Criminal Criminal Case Case No. CF0005-23 CF0005-23 Decision and Decision and Order re. re. Defense Defense Counsel's Counsel's Motion Motion to Withdraw Due Due to to Incompetence Incompetence Page Page 6 of of12 COURT: Alright. On On that that website, website, doesdoes it it indicate that you indicate that also you also 1 practice criminal law practice in the area of criminal law specifically criminal specifically criminal 2 defense? MR.BERMAN: BERMAN: Not Not toto my my knowledge, knowledge, your Honor. I haven't your Honor. looked at haven't looked at it in 3 a couple of years, but I'm confident in I'm confident guessing it in guessing it it does not it does reference criminal law. 4 COURT: Alright. IIwould Alright. wouldgo goahead aheadandand ask just to double you just ask you check double check 5 that administratively because the website does indicate that indicate that your office office does does practice practice inin several areas of law, several areas including law, including 6 criminal defense ... right above family law, personal injury, law, personal and professional liability.** ** * professionalliability. 7 MR. BERMAN: MR.BERMAN: Thank you, you, your Honor. II will your Honor. will check. 8 COURT:: Thank Thank you. you. ** ** **So, So,your your law law firm firm or oryourself yourself werewere appointed January5 5inin this appointed January this case case following following uh uh thethe 9 appointment appointment of of several other attorneys who had had conflicts conflicts or 10 10 potential potential conflicts. conflicts. So, January 5, 2023 was your appointment appointment date.date.Why Whywaswasthe theMotion Motion [to Withdraw] only [to Withdraw] 11 II filed filed in in August? August? What What waswas the the reason reason for the delay? MR. BERMAN: MR.BERMAN: I think think that that was was because because wewe had continued discussion with had continued 12 the criminal criminal defendant defendantand and was was based based on on that that discussion discussion and 113 his belief belief and and wish that this Motion that this Motion was filed as as late as it was. And to the extent itit is late, II do is late, do apologize. apologize. 14 14 COURT: Alright, thank Alright, thank you, Mr. Berman. Berman.

15 15 * * * *** 16 16 LEGAL LEGAL ANALYSIS 17 17 Rule 1.16 1.16 of ofthe the Guam Guam Rules Rules ofofProfessional Conduct dictates ProfessionalConduct when counsel dictates when may counsel may 18 18

19 19 withdraw from representation of a client and provides as follows: client and follows :

20 20 Rule 1.l6: 1.16: Declining Decliningor orTerminating Terminating of ofRepresentation Representation 21 (a) Except Exceptasas stated stated in in paragraph (c), (c), a lawyer lawyer shall not represent a client or, where shall not 22 representation hashascommenced, commenced, shallshallwithdraw withdraw from from the representationof the representation of a client if: 23 (1) the the representation will result in violation of representation will professional ofprofessional rules of the rules of the conduct or other law; law, 24 24 (2) the the lawyer's lawyer's physical physical orormental mental condition condition materially materially impairs the impairs the 25 25 lawyer's lawyer's ability abilityto to represent represent the client; client, or (3) the the lawyer lawyer isis discharged. discharged. 26 26

27 People of People Guam vs. ofGuam Rueben James vs. Rueben Tories Rivera James Torres 28 Criminal Criminal Case CF0005-23 No. CF0005-23 Case No. Decision Decision and and Order Counsel's Motion Order re. Defense Counsel's Due to Motion to Withdraw Due Incompetence to Incompetence Page 7 of 12 of 12 (b) (b) except except as stated in as stated paragraph ((e), in paragraph lawyer may e), aa lawyer withdraw from may withdraw representing a from representing 1 client if: 2 withdrawal can (1) withdrawal can be accomplished without material be accomplished adverse effect on material adverse on the interests of interests of the client 3 (2) the client persists the client course of persists in a course action involving of action involving the services the lawyer's services that thethe lawyer reasonably believes is lawyer reasonably criminal or is criminal fraudulent; or fraudulent, 4 (3) the client (3) the has used clienthas the lawyer's used the services to lawyer's services perpetrate aa crime or to perpetrate fraud; or fraud, 5 (4) the client 4) the insistsupon clientinsists taking action upon taking that the action that lawyer considers the lawyer repugnant considers repugnant or with which the with which lawyerhas the lawyer has aa fundamental disagreement; fundamental disagreement, 6 (5) the (5) client fails the client substantially to fails substantially fulfill an to fulfill obligation to the an obligation lawyer the lawyer regarding the lawyer's servicesand lawyer'sservices andhashas been givenreasonable been given warning that reasonable warning that 7 the lawyer will withdraw unless the withdraw unless obligation isisfulfilled; theobligation fulfilled, 8 (6) the representation will the representation resultininan willresult unreasonable financial burden anunreasonable burden on the lawyer or rendered unreasonably or has been rendered difficult by the client, or unreasonablydifficult by the client; 9 other good (7) other cause for good cause withdrawal exists. for withdrawal 10 10 (c) A lawyer c) A lawyer must must comply comply with with applicable applicable law requiring law requiring notice or permission of notice to or a tribunal when terminating tribunal when representation. When terminating a representation. When ordered to do so by aa tribunal, 11 a lawyer lawyer shall continue representation shall continue notwithstanding good cause representation notwithstanding cause for terminating the representation. representation. 12 12 representation, a lawyer steps to the take steps shall take lawyer shall extent the extent (d) (d) Upon termination of Upon termination ofrepresentation, 13 13 reasonably practicable to reasonably practicable to protect client's interests, protect a client's such as giving interests, such reasonable giving reasonable notice to thethe client, allowing allowing timetime for employmentofofother foremployment othercounsel, surrendering counsel, surrendering 14 papers papers and and property property to to which the the client is entitled and is entitled refunding any and refunding advance any advance payment payment of fee or or expense expense that has not been earned or incurred. that has incurred. TheThe lawyer may may 15 15 retain papers papersrelating relating toto the the extent permitted by the client to the by other law. 16 16 Rules of of Prof. Conduct, Rule 1.16, Conduct, Rule 1.16,GU ST SUPER GU ST RPC Rule SUPER CT RPC 1.16. Rule 1.16. 17 17

The Sixth Amendment guarantees Sixth Amendment that "[i]n guarantees that criminalprosecutions, allcriminal "[i]n all the accused prosecutions, the shall accused shall 18 18

19 19 enjoy the right...to to have have the the Assistance Counsel for his defense." Assistance of Counsel See U.S. Const. defence." See amend. VI. Const. amend. VI.

20 20 The Supreme the United ofthe Supreme Court of States has United States declared that the right to counsel is not a mechanical has declared 21 requirement, includes"the butincludes requirement, but right to "the right assistance of counsel." to effective assistance See Strickland counsel." See v. Strickland v. 22 Washington, 466 U.S. 668, Washington, Followingthis 668, 684 (1984). Following precedent, the this precedent, Supreme Court of the Supreme Guam of Guam 23

24 that"[ has ruled that ]bilethe "[w]hile constitutionalguarantee the constitutional ofcounsel guarantee of fundamental right, aa defendant counselisisaafundamental 24

25 is 'not 'not entitled to aa particular lawyer whom he can, entitled to inhis can, in view, have hisview, 'meaningful attorney-client have aa'meaningful

26 26 and 'conflict adequate and Rather, a defendant is entitled to adequate relationship'. Rather, under representation under freerepresentation 'conflict free 27 People of People Guamvs. ofGuam Rueben James vs. Rueben Torres Rivera James Tories 28 Criminal Case No. Criminal Case CF0005-23 No. CF0005-23 Decision and Decision Order re. Defense and Order Counsel's Motion Defense Counsel's Due to Motion to Withdraw Due Incompetence to Incompetence Page 8 of Page 12 of 12 the Sixth Amendment." Amendment."See See People v. v. Libby, 2021 2021 Guam 27 27 ~ii 17 17(citing (citing United United States States v. Moore, I

2 159 F.3d 1154-1157, 1158 (9th Cir. Cir. 1998) 1998) (quoting Morris v. Sloppy, 461 v. Slappy, U.s. 1, 461 U.S. 1, 3-4 (1983)) 3-4 (1983)).

3 1. Public 1. Public Defender Defender Service Service Corporation Corporation Attorney Attorney qualifications qualifications provide provide an an objective measure objective measureofof "adequate "adequatelegal legal representation" representation"of ofanan indigent indigent criminal criminal 4 defendant. defendant. 5 In determining what specifically In specifically constitutes constitutes "adequate" legal legalrepresentation representation of ofan an indigent 6

criminal defendant, the Court defendant, the Court turns turnstotothe thequalifications qualificationsof of aa Public Public Defender Defender employed with the 7

8 Public Defender Service Corporation, Corporation, Government Governmentof of Guam Guam("PDSC") ("PDSC") for for guidance. guidance. ThePublic 9 9 Defender Service Corporation Corporation Act ofl975 Defender Service of 1975established "[i]n order established PDSC "[i]n order to provideerective effective legal legal 10 10 aid and assistance assistance to to those thosepersons personsininGuam Guamwho who are areunable unabletotoafford affordcounsel." counsel." 12 12GCA GCA §§ 11103 11103 11 (emphasis added).The (emphasis added). The governing governing body body of of the PDSC is the PDSC is its Board of its Board (12 GCA Trustees (12 of Trustees GCA §§ 11107), 11107), 12 12

113 which which is is charged charged with with establish establish rules rules and and regulations regulations governing governing "selection, "selection, promotion, promotion,

14 14 performance evaluation, among performance evaluation, among other other criteria criteria of of its its personnel, including its personnel, including its attorneys. attorneys. 12 12GCA GCA §§

15 15 11110(a). 111 lO(a). The TheCourt Courtfinds findsthat that the the standards setby standards set bythe thePublic PublicDefender DefenderService Service Corporation Act Act 16 16 of of 1975 1975 and the the PDSC PDSC Board of Trustees provide an an objective objective gauge gauge in in determining determining whether whether an an 17 17 attorney is adequately qualified qualified to to represent represent an indigent criminal defendant. 118

19 19 A Public Public Defender Defender isis deemed deemed qualified qualifiedto torepresent represent indigent indigent criminal criminal defendants defendants with with as as

20 little as as zero to two two years years as as an an Attorney Level 1. 3 During Level1.3 During the the hearing on the hearing on the Motion, Motion, Defense Defense 21 Counsel indicated that Counsel indicated theattorney thatthe attorneywith withthe the least leastnumber numberof ofyears yearsof of practice practice in in his his law law firm, 22 which is three three years, years,isisAttorney Attorney Perez. Perez. An Attorney Attorney LeveI Level22at at the the PDSC PDSC is is an an attorney with with over over 23

24 two and than four and less than four years years of of "progressively "progressively responsible responsible experience experience as as aa licensed licensed attorney attorney and and 24

25 25

26 26 3 https://guampdsc.org/wp-conten 3 https://guampdsc.org/wp-content/uploads/2018/06/Attomey-Level-2-JA-03- t/uploads/2018/06/Attomey-Level-2-JA-03-18.pdf 27 People People of ofGuanz vs. Rueben Guam vs. Rueben James James Torres Tories Rivera Rivera 28 Criminal Criminal Case Case No. CF0005-23 CF000S-23 Decision Decision and and Order re. re. Defense Defense Counsel's Counsel's Motion Motion to Withdraw ithdraw Due Due to to Incompetence Incompetence Page of Page 9 of12 graduation from the American Bar Association." The PDSC Attorney from a law school accredited by the 1

2 of moderate to serious legal matters and ability to resolve moderate Level 2 "[h]andles a variety of

3 preparation of more complex legal cases with general supervision. Assists in preparation matters. Provides legal matters. 4 mentoringtotoLevel some guidance and motoring attorneys,interns Level1 1attorneys, and externs. interns and Provides guidance and externs. Provides 5 motoring Level11attorneys mentoringtoto Level and at attorneys and times other at times attorneys." Id other Level 2 attorneys." evidenced by his Id As evidenced 6

representation of representation during his attendance of Defendant during during multiple attendance during magistrate's hearings multiple magistrate's and hearings and 7

8 during the arraigmnent ably placed arraignment when he ably Defendant's mental placed Defendant's state at mental state issue, Attorney Perez at issue,

9 legal adequate legal with adequate Defendant with providing Defendant of providing capable of experience) is capable years of legal experience) (with three years 10 representation in this case. 1II1 has been Attorney Berman, who has practicing law on Guam been practicing since 1989, Guam since qualify as a 1989, would qualify 12

13 1 in the Level 4 Attorney in the PDSC. An Attorney Level 4 in PDSC has the PDSC or more years has eight or of years of

14 14 progressively responsible experience as a licensed attorney and "handles core assignments progressively responsible at a assignments at 15 15 complex level, complex and critically level, and analyzes and handles critically analyzes complex legal handles complex matters. Responsible legal matters. for Responsible for 16 16 initiating and preparing complex cases to litigation, initiating policies, counseling high and challenging legal policies; 17 level clients, leadership on complex cases and complex cases legal issues. and legal attorneys issues. Leads, guides and mentors attorneys 18 18

19 19 on matters including more complex legal more complex matters; isis aa resource legal matters, in specialized resource in matters." 4 As for specialized matters."4

20 "Necessary Special Qualifications" to serve as court-appointed counsel for indigent defendants, 21 not require the PDSC does not any special require any criminal law or special background in criminal practice for any of or practice its of its 22 Attorney posit ions from or ney positions Level 11 t to fr om Level Level4.4.Under o Level "Necessary Under"Necessa Special r y S pecia Qualifications," l Qua lifica t ions, 23 23 24 include "possession requirements include ofaa current "possessionof license to current license practice law to practice in aa state law in or territory state or of the territory of 24

26 4 4 https://guampdsc.org/wp-content/uploads/2018/06/ Attomey-Level-4-JA-05-18.pdf https://guampdsc.org/wp-content/uploads/2018/06/Attomey-Leve1-4-JA-05- 27 27 People of People Guam vs. ofGuanz Torres Rivera vs. Rueben James Tories 28 Criminal Criminal Case Case No, No. CF0005-23 CF0005-23 Decision Decision and and Order Order re. re. Defense Counsel's Motion Motion to to Withdraw WithdrawDue Incompetence to Incompetence Due to Page Page 10of 10 12 United States and aa current States and certificateof currentcertificate standing." No of good standing." expenence in criminal No experience 1s criminal law is 1

2 required for any ofattorney any level of the PDSC. attorney at the

3 is not Counsel is DefenseCounsel 2. Defense incompetent to not incompetent represent Defendant. to represent 4 the representations Based upon the during oral representations in court during argument, the oral argument, Court finds the Court thatDefense finds that Defense 5 Counsel (whether Attorney Counsel (whether Berman or Attorney Perez) Attorney Berman notincompetent Perez) isis not to represent incompetent to the represent the 6

in this matter. Defendant in hasbeen matter. Mr. Berman has practicingattorney beenaapracticing inGuam attorneyin forover Guamfor thirty (30) overthirty (30) 7

8 his Guam years, having started his law practice Guamlaw in 1989. practice in Heisisthe 1989.He managingattorney themanaging for his attorneyfor law firm hislaw firm

9 Pacific Lawyers. practices in aa firm practices that the law firm indicates that also indicates website also Lawyerswebsite Pacific Lawyers The Pacific Lawyers. The 10 10 plethora of practice areas, one of areas, one is criminal of which is defense. 5 During the hearing criminaldefense.5 the Motion, hearing on the Motion, 11 11 the matter Mr. Berman's matter of Mr. priorrepresentation Berman's prior ofanother representation of criminal defendant another criminal raised by defendant was raised 12 6 13 13 Attorney General Christine Tenorio.6 Assistant Attorney Moreover, AttorneyPerez ifAttorney Moreover, if continued to Perezcontinued appear to appear

14 14 on Defendant's behalf, the the Court Court finds finds that thatevidence evidenceof Perez's competency to provide Attorney Perez's of Attorney

15 15 adequate adequate legal assistance to the assistance to the proceedings in on the record throughout the the Defendant is evident on 16 16 which which he has appeared appearedon onbehalf behalf of of the Defendant. 17 17 3. The Thedelay delayin in filing filing the to Withdraw Motion to the Motion is unjustified. Withdraw is 188 1

19 19 Although Although the the Court has proceeded to has proceeded to rule rule on the Motion, Attorney instantMotion, the instant Berman filed Attorney Berman filed

20 his Motion Motion on on August August 15, 15, 2023, 2023, over over seven seven (7) (7)months months since appointed as being appointed since being Defendant's as Defendant's 21

23 55 Practice Criminal law Overview. Criminal Practice Overview. the body lawisis the bodyof lawthat oflaw to crime relates to thatrelates and criminal crimeand defense isis the criminaldefense defense of the defense thos of those accused crime. Criminal of committing a crime. accused of Criminal law regulates social conduct and proscribes whatever law regulates whatever is threatening, harmful is threatening, harmful, 24 endangering to the property, health, or otherwise endangering and moral safety, and health, safety, welfare of people. moral welfare punishment oof people. It includes the punishment people people who violate these laws. Member firms violate these ofPacific firms of Lawyers do Pacific Lawyers not focus do not their practice focus their on criminal practice on defense but criminal defense 25 a number of the individual attorneys attorneys havehave extensive experienceinin criminal extensive experience Defense, Pacific Criminal Defense, law. Criminal criminal law. Lawyer Pacific Lawyers (last visited Dec. 12, 9:30 AM), 2023, 9:30 12, 2023, https://www.pacificlawyers.law/practice-areas/criminal-defense/(emphasis AM), https://wwwpaciticlawyers.law/practice-areas/criminal-defense/ (emphasis is 26 added). added). 66 Hrg. Hrg. on Motion at 10:12:34AM to to 10:20:02 10:20:02 AMAM (Sep. 18, 2023). (Sep. 18, 27 People of People Guam vs. ofGuam Rueben James vs. Rueben Tories Rivera James Torres 28 28 Criminal Criminal Case Case No. CF0005-23 No. CF0005-23 Decision Decision and and Order re. Defense Defense Counsel's Motion to Withdraw Counsel's Motion Due to ithdraw Due Incompetence to Incompetence Page l oof12 Page l11 f counsel on January 5, of 5, 2023. During that time, Attorney Perez, the newest practicing attorney of 1

2 Pacific Lawyers Pacific represented Defendant Lawyersrepresented at all Defendant at criminal proceedings. all criminal When queried proceedings. When as to why queried as the why the

3 appointed to represent the Defendant, Defense after he was appointed motion was filed over seven months after 4 Counsel's response was insufficient injustifying Counsel's response supra. justifying withdrawal. See, supra. 5 On the basis of the basis the untimely of the filing alone, untimely filing the Court alone, the could have Court could denied the have denied Motion; the Motion, 6 however, because however, Promulgation Order NO. because Promulgation issued by 06-006-25 issued NO. 06-006-25 Supreme Court on by the Guam Supreme 7

8 November 17, 2023, dictates the 2023, dictates clients for the manner of the appointment of counsel for indigent clients

9 felony and criminal felony criminal "Active members include "Active to include cases to misdemeanor cases and misdemeanor of the members of Bar Guam Bar the Guam 10 Association, from a membership list as approved by the Supreme Court,"77 and because many of of 11 the active Guam Bar Association members on this list may claim to be claim to incompetent based upon be incompetent 12 12

113 focus, the Court finds their practice focus, address its findings herein for future similar finds it imperative to address

14 14 motions that might come before it. 15 15 CONCLUSION 16 For the above reasons, For the Defense Counsel's Motion reasons, Defense Withdraw Due to Withdraw Motion to to Incompetence Due to is Incompetence is 17 DENIED. 18 1

th 19 19 SO ORDERED this 13th ORDEREDthis day of December, day of 2023. December, 2023

22 22 (i/JJ._{JMARIA T-:-;;ENZON H / .> BLE MARIA T. CENZON Judge, Superior Court Judge, Superior Court of Guam 23

26 26 7 7 Re: Amendments Re: theMiscellaneous Amendmentstotothe Miscellaneous Rule 1.3of Rule 1.1.3 LocalRules therelocal oft ofthe Rules of Superior Court re Superior Guam (Indigent of Guam Court of De/ens (Indigent Defense Rule), PRM06-006-25 (Promulgation Order PRM06-006-25atat 11 (Promulgation No. 06-006-25, OrderNo. Nov. 17, 06-006-25, Nov. 2023). 17, 2023). 27 People of People Guam vs. ofGuam RuebenJames vs. Rueben Tories Rivera JamesTorres 28 Criminal Case No. Criminal Case CF0005-23 No. CF0005-23 Decision and Order Decisionand re. Defense Counsel's Order re. Motionto Counsel's Motion WithdrawDue to Withdraw Dueto Incompetence to Incompetence Page 12 of12 Page of