People v. Sablan

Opinion

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SUPf:RlOH COURT

. OFGUAM

1 2023 SEP 27 PM 3: 0 I

2 CLERf< OF COURT

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4 IN THE SUPERIOR COURT OF GUiNf-c::6._ __

5 PEOPLE OF GUAM, 6 Plaintiff, Criminal Case No. CF0447-23 7 vs.

8 DECISION AND ORDER ALEJO C. SABLAN et al, (Defendant's Motion for Reconsideration)

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10 Defendants.

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12 INTRODUCTION

13 This matter is before the Honorable Alberto E. Tolentino ("Judge Tolentino") for the 14

15 limited purpose of addressing Alejo C. Sablan's ("Defendant") Motion for Reconsideration.

16 Defendant seeks to disqualify the Honorable Alberto C. Lamorena, III ("Presiding Judge

17 Lamorena") from presiding over the underlying case. Attorney Joaquin C. Arriola, Jr.

18 represents the Defendant. Pursuant to local rule CVR 7.l(e)(l), it has been decided that oral 19 arg1Jment is unnecessary, and the Court hereby DENIES Defendant's Motion for 20 Reconsideration.

21 BACKGROUND

22 The factual background of this matter was previously set out by the Court its a Decision 23

24 and Order issued on September 11, 2023. However, the facts necessary to dispose of the

25 instant Motion for Reconsideration are as follows:

26 On July 3, 2023, the Grand Jury indicted Defendant on the fo_l~owing charges: (1) Theft

27 By Complicity (As a Second Degree Felony); (2) Conspiracy For Misapplication Of Entrusted

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Funds (As a Third Degree Felony); (3) Misapplication Of Entrusted Funds (As a 2 Misdemeanor); and (4) Official Misconduct (As a Misdemeanor) Indictment, July 3, 2023.

3 Each charge contained the special allegation of 'Crime Against the Community'. Id. The case 4

5 was assigned to Presiding Judge Lamorena. Notice of Judge Ass., July 28, 2023. On Aug. 22,

6 2023 Defendant filed a Statement of Objection. On Aug. 25, 2023, Presiding Judge Lamorena

7 filed an Answer to Statement of Objection. On Sept. 1, 2023, the People filed a Memorandum 8 of Points and Authorities in Response to 'Statement of Objection 7 GCA § 6107'. On Sept. 8, 9 2023, Judge Tolentino filed a Decision and Order Denying Defendant's Statement of Objection 10 seeking Disqualification of Presiding Judge Lamorena. Decision and Order, Sept. 8, 2023. On 11 September 18, 2023, Defendant filed a Motion to Reconsider the Decision and Order Denying 12 Disqualification of Presiding Judge Lamorena. Motion for Reconsideration, September 18, 13

14 2023.

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16 DISCUSSION 17 In the Motion for Reconsideration, the Defendant argues: 1) Judge Tolentino previously 18 recused himself in this case and the grounds for recusal have not changed; 2) the Government 19 filed an opposition which is not allowed by Guam Law and to which director San Augustin 20 was not afforded the opportunity to reply; 3) there were new material facts disclosed in Judge 21 Lamorena's answer which Director San Agustin did not know before seeing the Answer and 22

23 did not have the opportunity to address; and 4) Judge Tolentino failed to consider material facts

24 and to apply the appropriate legal standard, which Defendant believes if cured would have

25 caused the Court to reach a different conclusion. 26 27 I. Judge Tolentino had previously recused himself and the grounds for recusal have not changed.

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2 Defendant alleges that the undersigned had disqualified himself from the matter on July 3 31, 2023; and that he erred by entering a Decision and Order on the question of Presiding 4 Judge Lamorena's disqualification. Motion for Reconsideration, September 18, 2023 5 However, Judge Tolentino did not recuse himself in this case. Therefore, the argument 6 Defendant alleges does not apply and the Court expressly ignores this contention.

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9 II. Did the Government file an opposition which was not allowed by Guam Law and to which Defendant was not afforded the opportunity to reply?

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11 Defendant argues that Opposition statements are not authorized as a Statement of

12 Objection is a statutory procedure. 7 G.C.A § 6107 (2023). As such, the People's 13 Memorandum of Points and Authorities in Response to Statement of Objection is not 14 allowed by Guam Law, and the People should be admonished not to file papers not 15 authorized by statutory procedure. Motion for Reconsideration, September 18, 2023.

16 However, the Court finds no prohibition in the statute against.an opposing party filing a 17 response to a Statement of Objection, nor has Defendant offered any other authority to 18 support his contention that the adverse party is forbidden to advocate its position on the 19

20 issue.

21 Therefore, the Court rejects this argument.

22 23 m. Were there new material facts disclosed in Judge Lamorena's answer which Defendant did not know before seeing the Answer and did not have the opportunity 24 to address? 25

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1 Under the Criminal Procedure Rules of the Local Rules of the Superior Court of

2 Guam, a party in a criminal matter may seek reconsideration of a previously determined 3 issue only based on:

4 ( 1) a material difference in fact or law from that presented to the 5 court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for 6 reconsideration at the time of such a decision, or, (2) the emergence of new material facts or a change of law 7 occurring after the time of such decision, or, (3) a manifest showing of failure to consider material facts 8 presented to the Court before such decision."

9 CR 1.l(d) (2007)

10 Thus, the Court is confronted with the preliminary issue of whether Defendant has demonstrated 11 one or more grounds for reconsideration.

12 A. Was there a material difference in fact or law from that presented to the 13 court before such decision that in the exercise of reasonable diligence 14 could not have been known to the party moving for reconsideration at the time of such a decision?

15 Defendant argues that they were not aware of Presiding Judge Lamorena's Answer prior 16 to the Court filing the Decision and Order. Motion for Reconsideration, September 18, 2023.

17 Defendant argues that new material facts emerged based on the Answer, including 1) Presiding 18 Judge Lamorena was unaware that then-candidate Attorney General Douglas Moylan was 19

20 promoting their relationship on Facebook, and that 2) Presiding Judge Lamorena's official title

21 was used on the Facebook page, a page that Defendant argues was utilized as campaign

22 literature and remains so to this day., Id. at 7. Defendant argues that such new material facts are

23 relevant because Defendant's Statement of Objection would have focused on the appearance of 24 impartiality, particularly when a judge should be disqualified despite not being the one actually 25 engaging in conduct creating the appearance of impropriety. Id.

26 The facts presented by Defendant in the Motion for Reconsideration are not new, as 27 Defendant was aware of Presiding Judge Lamorena's Answer, having been filed on August 25, Page4of7 1 2023, and could have provided a response at any time prior to the Court's filing of the Decision

2 and Order. Nor is Presiding Judge Lamorena's lack of awareness a relevant material fact; 3 rather, such lack of awareness and participation in the alleged conduct would make a reasonable 4 person less likely to see the conduct as having the appearance of impropriety. Therefore, to the 5 extent that Presiding Judge Lamorena's Answer is framed as an argument of new, material facts 6 unknown to the party moving for disqualification, the Court expressly rejects this argument.

7 B. Was there the emergence of new material facts or a change of law occurring 8 after the time of such decision? 9 Defendant has also failed to show any new or changed mandatory or persuasive 10 authority that was not considered by the Court. The authorities cited in the Motion for 11 Reconsideration include the same authorities cited in the Decision and Order. Therefore, to the 12 extent Defendant's argument is framed as an argument of new or changed law, the Court 13 expressly rejects this argument.

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15 C. Was there a manifest showing of failure to consider material facts presented to the Court before such decision?

16 Citing Dizon in the Motion for Reconsideration, Defendant argues that the Decision and 17 Order focuses on actual bias and not the appearance of partiality related to the facts presented.

18 Motion for Reconsideration, Sept. 18, 2023. Defendant does concede that the Court referenced 19

20 the appearance of impartiality standard articulated in Dizon, but argues that the Court

21 improperly focused on actual bias from Presiding Judge Lamorena to AG Moylan. Id. at 10.

22 This is not so, as the Court's analysis of the facts was based on the appearance of impropriety

23 using the standard set down in Van Dox: 24 The appearance of bias is judged from the standard of 1) a 25 reasonable person who 2) knows all the facts, and 3) understands the context of the jurisdictions, parties, and controversies involved, 26 including 4) such 'realities of the Guam judicial system" as the relatively small number of lawyers in the Guam bar and "the nature 27 of Guam families"

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1 Van Dox v. Superior Court of Guam, 2008 Guam 7 ,r 32. 2 Toe Court applied the appropriate standard based on consideration of the same material facts 3

4 that were presented in the Decision and Order, and are once again being presented in the Motion

5 for Reconsideration, including 1) the professional reference showing Presiding Judge

6 Lamorena's name and CUf!"ent title; 2) the posting of the reference on AG Moylan's Facebook

7 page during the 2022 campaign for Attorney General; 3) the continued usage of the professional 8 reference after the end of the campaign; and 4) Presiding Judge Lamorena's ignorance regarding 9 AG Moylan's actions. Toe analysis shows that a reasonable person would, after looking at the 10 facts and understanding both the circumstances involved as well as the unique realities of the 11 Guam judicial system, as little more than an indication that Presiding Judge Lamorena, having 12 1) supervised AG Moylan as a law clerk thirty years prior and 2) having practiced in the same 13 legal community for several decades, can ultimately speak to AG Moylan's abilities as a legal 14

15 practitioner. A reasonable person would not find the inclusion of a professional reference under

16 such circumstance as giving the appearance of Presiding Judge Lamorena endorsing AG

17 Moylan's political platform. Therefore, the Court finds there were no material facts alleged that 18 the Court failed to consider. 19 The Court finds that Defendant has not demonstrated any of the three grounds for 20 reconsideration. Defendant seeks an oral hearing to develop the record, but does not offer any 21 specific new or previously unknown material fact which contradicts the findings in the Court's 22 earlier Decision and Order. Defendant had the opportunity to form a response to Presiding 23 Judge Lamorena's Answer prior to the Court submitting a Decision and Order; however, 24

25 Defendant did not do so. Every new fact Defendant argued might exist would have existed at

26 the time Presiding Judge Lamorena's Answer was filed on August 25, 2023. Thus, the Court

27 finds that Defendant's Motion for Reconsideration must fail and the Motion is DENIED.

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CONCLUSION

2 By preponderance of the evidence and based on the foregoing reasons, the Court hereby 3 DENIES the Defendant's Motion for Reconsideration.

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6 SO ORDERED, this _ _ _ day of _ _S_EP_2_7_Z_02_3_2023.

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