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SUPERlOR COURT
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1 CLERK CLERl\ UF
OF COURT
COURT
2
g i mp .
3 IJ i .L
4
5
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
23
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.
26
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
12
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
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
25
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
22
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
20
21
22 22 (i/JJ._{JMARIA T-:-;;ENZON
H
/ .> BLE MARIA T. CENZON
Judge, Superior Court Judge, Superior Court of Guam 23
24 24
25
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