FILED
l cLés»z:<5F ca=um' CLERK OF COURT
2 7025 JAN znzs t.: DO
Jg m14PF?PM148 06 n
~
3 S¥.§?E§%{3R mum SUPERIOR COU~T
4 OF GUAM GF GUM
5 IN THE SUPERIOR SUPERIOR COURT
COURTOF.GUAM
OFGUAM
6 ) CRIMINAL CRIMINAL CASE NO.
NO. CF0371-19
CF0371-19
7 7 PEOPLE OF OF GUAM,
GUAM, ) GPD Report GPD ReportNos.
Nos. 19-18325/19-18461
19-18325/19-18461
)
8 vs. )) l
9 )) ) DECISION DECISION & ORDER
) RE. PEOPLE'S MOTION PEOPLE'S AMENDED MOTION
10 10 RIEKO MIKHAIL SARMIENTO, TO REVOKE DEFENDANT'S DOB: DOB:06/10/1985 06/10/1985 )) PROBATION 11 11 ))
)
12 · Defendant. )
________ _ _ _))) l
13 13
14 14 This matter came came before
before the
the Honorable
HonorableAlberto
Alberto E.
E. Tolentino on October 28, 26§Tor'éi on October 202~·for-a·~ 15 15.
Revocation Hearing.
Hearing. Defendant Rieko Mikhail Defendant Rieko Mikhail Sarmiento ("Defendant") was Sarmiento ("Defendant") was present present with
with
16 16 counsel counsel Public Defender Stephen Hattori.
Hattori. Assistant
Assistant Attorney
Attorney General Aaron Boyce General Aaron Boyce was
was present
present
17
18 for the for the People of ofGuam
Guam ("People").
("People").After
Afterhearing
hearingthe
thecourt
courtheard
heardthe
theparties'
parties'arguments
arguments on
on the
18
19 19 People's People'sAmended AmendedMotion
MotiontotoRevoke
RevokeDefendant's
Defendant'sProbation
Probationand
andImpose
ImposeJail
JailSentence,
Sentence, the
the court
court
20 20 took took the the matter under advisement advisement pursuant
pursuanttotoSupreme
SupremeCourt
Courtof
ofGuam
GuamAdministrative
Administrative Rule 06-
21 001, CVR 7.1(e)(6)(A) 001, CVR and CR 7.1(e)( A) and CR1.1
1.1 of
ofthe
the Local
LocalRules
Rules of
ofthe
theSuperior
Superior Court
Court of
ofGuam.
Guam. Having
22 22 duly considered considered the parties' pleadings, pleadings, oral
oral arguments, and the
arguments, and the applicable applicable law,
law, the court now
23 24 24 issues thisDecision issues this Decisionand andOrder
OrderGRANTING
GRANTING the
the People's Amended
Amended Motion to Revoke
Revoke the
the
25 Defendant's Probation.
26 26 m\\ 27 27 \\ 28
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motion to
to Revoke
Revoke Defendant's Probation People People v.
v. Sarmiento,CF0371-19
CF0371-19
Page Page 11 of
of 13'
13,
BACKGROUND
1
2 2 On July 8, 2019, 2019, Defendant
Defendant Sarmiento was charged with the offense of POSSESSION OF
3 A SCHEDULE SCHEDULE II CONTROLLED CONTROLLED SUBSTANCE .(As aa 3rd SUBSTANCE (As 3rd Degree Felony). Indictment Indictment (July
(July 8,
4 2019). On August 14, 2019, the People declared the Defendant Defendant legally eligible eligible to
to participate
participate in
5 the Adult Drug Court I Program ("Adult Drug Court"). Pending the taking of of his plea, the court
6
released the Defendant released the Defendanton on conditions
conditions on
on August
August 28, 2019.
7
8 A. Defendant DefendantSarmiento's
Sarmiento's Violations
Violations while
while on
on Pre-Trial
Pre-Trial Release
9 While on pre-trial
pre-trial release, the Adult Adult Probation
Probation Office
Office ("Probation") filed two (2)
("Probation") filed (2)
10 10 violations against the Defendant. For the first violation, the report indicated that:
11 defendant failed to report [to] the Probation Office three The defendant three (3)
(3) times a week in
12 12 person. On August 28, 2019, the defendant was released and ordered to report report to
13 13 the Probation Office for initial intake and processing. The defendant has failed to report since his release.
14
1st Violation Report let Violation Report (Sept.
(Sept. 18,
18, 2019).
2019). Probation filed
filed a second violation against the Defendant 15 15
16 16 about one month later. For the second violation, the report indicated that:
17 17 The defendant failed to obey all failed to all laws.
laws. On
On September
September 18,
18, 2019,
2019, the
the defendant
defendant
appeared before Magistrate Judge, Jonathan R. Quan, for a Magistrate Hearing in 18 reference to CF514-19: Criminal Mischief Mischief (As a Third
Third Degree
Degree Felony) with Notice:
19 19 Commission of of aa Felony lNhile While onon Felony
Felony Release
Release and
and Criminal
Criminal Trespass
Trespass (As a
Petty Misdemeanor). He was subsequently subsequently held
held on
on $3,000.00
$3,000.00 cash bail.
20
2nd Violation Report (Oct.
(Oct. 8, 2019).
2019). The court addressed addressed the first
first and second violations violations on
21
22 22 October 9, 2019. On On February
February 28,
28, 2020,
2020, the
the court
court held
held aa Change
Change of
ofPlea
Plea hearing. Pursuant to the
23 23 Defendant's Deferred Deferred Plea
Plea Agreement,
Agreement, the
the court
court deferred
deferred acceptance
acceptance of
of his guilty
guilty plea for two
24 24 (2) years as as to
to the
the charge
chargeof
ofPOSSESSION
POSSESSION OF
OFAASCHEDULE
SCHEDULE IIII CONTROLLED
CONTROLLED SUBSTANCE
SUBSTANCE
25 (As a 3rd Degree Felony). Deferred Plea Plea at 4 (Mar.
(Mar. 4,
4, 2020).
2020). Amon,g
Among other conditions he agreed 26 27 27 Defendant was required to:
to abide by, the Defendant t<?: (1) pay a Five Thousand Dollar Dollar ($5,000.00) fine,
fine; (2)
I
28
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motiontoto Revoke
Revoke Defendant's
Defendant's Probation
People People v.
v. Sarmien.to,
Sarmiento, CF0371 -19
CF0371-19
Page Page 2 of
of 13
perform one hundred hundredfifty
my (150)
(150) hours
hours of
of community
community service,
service; and (3) enroll
enroll in
in the
the Adult Drug
Drug
1
2 Court upon his release.
release.
3 B. Defendant DefendantSarmiento's
Sarmiento's ViolatiOns inAdult Violations in Adult Drug
Drug Court
Court II l
4 While participating
participating in Adult Drug Court, Probation filed tiled four (4) violations violations against
against the
the
5 Defendant. For the first violation, violation, the
the report
report indicated
indicated that
that the Defendant:
Defendant:
6 6 Failed to
to submit
submit toto aa scheduled
scheduled drug
drug test.
test. On
On March
March 9, 9, 2020,
2020, the
the probationer
probationer
7 reported to the Probation Office to reported to to submit submit toto aa drug
drug test
test and
and was
was instructed
instructed to
8 remain in the the waiting
waiting room until
uNtil called
called for
for testing.
testing. The probationer left the building without permission
permission andand did not return.
return.
9
10 Failed Failed to
to attend
attend weekly
weekly group
group counseling
counseling session.
session. The probationer
probationer is required to attend a weekly
weekly group
group counseling
counseling session
sessionand
and failed
failedto
toattend
attendon
onMarch
March9, 9,2020
2020.
11 1
Failed to
to attend
attend aa scheduled and confirmed scheduled and continued weekly case case manager meeting.
meeting..The
12 12 probationer had a confirmed confirmed appointment to meet with with his case manager on March 13 13 10, ad failed 10, 2020 ad failed to attend.
attend.
14 14 Failed to report report to the Probation Office Office for
for three
three times
times weekly drug
drug testing.
testing. The
probationer probationer isis required required to
to report
report for drug
drug testing
testing every
every Monday,
Monday, Wednesday,
Wednesday,
15 15 Friday, and as
asinstructed.
instructed.He
Hefailed
failedtotoreport
reportononthe
thefollowing
followingdates:
dates:March
March11,
ll, 2020
2020
16 16 let Violation 1st Violation Report Report (Phase
(Phase I)I)(Mar.
(Mar.12,
12,2020).
2020).After
Afterthe
thecourt
courtaddressed
addressed the
the Defendant"s
Defendant's first
17 17 Adult Drug Court violation, violation, the
the Defendant received
received his
his next violation
violation aa few
few months
months later. For
For the
18 18
19 19 second violation, violation, the
the report
report indicated
indicated that the Defendant:
that the Defendant:
20 20 1.)
1.) Failed
Failed to
torefrain
refrainfrom
fromingesting/consuming
ingesting/consuming illegal illegal controlled
controlledsubstances.
substances. On
March 13,
13, 2020, the probationer's 2020, the probationer's urinalysis urinalysis test
test yielded
yielded presumptive
presumptive positive
positive
21 results results for methamphetamine, amphetamineand methamphetamine,. amphetamine andTHC.
THC.HeHe denied
denied use
use of
of any
any
22 22 illegal substances substances andand hishis sample sample was
was collected
collected andand sent
sent off-island
off-island for
laboratory testing. On June laboratory testing. 18, 2020 June 18, 2020 the
the Probation
Probation Office received received results
results
23 23 confirming positive positive for
forthe
thefollowing:
following:amphetamine,
amphetamine,methamphetamine methamphetamine and and
24 Delta-9-Tetrahydrocannabino1-Carboxylic Delta-9-Tetrahydrocannabinol-Carboxylic Acid Acid(THC).
(THC).
24
25 1st positive, This mark's the probationer's let 1st challenged positive, let challenged drug drug test in Phase
Phase II of
of
the ADC I Program.
Program.
26 26
27 2.) Failed
Failed to
to report
report to
to .the ProbationOffice
.the Probation Office three three (3)
(3) times weekly via
via phone calL
call,
Due Due toto the
the COVID-19
COVID-19 crisis,
crisis, the
the probationer
probationer was
was ordered
ordered to
to contact
contact the
the
28
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motiontoto Revoke
Revoke Defendant's
Defendant's Probation
People v. Sarmiento, CF0371-19 Page Page 3 of
of 13
Probation Office via Probation Office via phone phone every
every Monday,
Monday, Wednesday,
Wednesday, Friday,
Friday, and
and as
as
1 instructed. He failed
failed to
to call
callon
onthe
the following
followingdates:
dates:June
June15,
15,17,
17,19
19 and
and 22, 2020.
2020.
2 2nd Violation Violation Report Report (Phase
(Phase I)I)(June
(June 23,
23, 2020).
2020). For
For the
the third
third violation,
violation, the
the report
report indicated
indicated that
that
3
4 the Defendant:
Defendant:
4
5 Failed to report toto the the Probation
Probation Office
Office for
for three
three times weekly viavia phone phone call. the
probationer probationer isis required requiredtoto report
reporttoto the
the Probation
ProbationOffice
Office via
via phone call every
phone call
6 Monday, Wednesday, Friday, and as instructed. He failed to report on the following and as instructed. He failed to report on the following 7 dates: dates: July 2, 6, 8, 10,
10, 13,
13, 15,
15, 17,
17, 20, and
and 22, 2020.
2020.
8 Failed Failed to
to attend
attend a weekly group
group counseling
counseling session.
session. The probationer
probationer is required to attend a weekly group
group counseling
counseling session
session and
and failed
failed to
toattend
attend on
onJune
June 23
23 and
and 30,
9 2020 and on July
July 7, 14, and 20, 2020.
2020.
10 10 Violation Report 3rd Violation Report (Phase (Phase I)I) (July
(July 23,
23,2020).
2020).The
Thecourt
courtthen
thenissued
issued its
its first
first bench
bench warrant
warrant
11 11 against the Defendant against the Defendant on July July 24,
24, 2020.
2020. While
While the
the warrant
warrant was outstanding, Probation filed outstanding, Probation filed a 12 12
13 13 fourth violation violation report
report indicating
indicating that
that the Defendant:
Defendant:
14 14 Failed to obey obey all
alllaws
lawsofofGuam.
Guam.On
OnOctober
October29,
29,2020,
2020,the
theprobationer
probationer appeared
appeared
before the
the Magistrate Judge andwas Judge and wascharged
chargedwith
withthe
thefollowing:
following:
15 15
16 16 1.
1. Theft of
of aa Motor
Motor Vehicle
Vehicle (As 2nd degree (Asaa2nd degree felony)
felony)
2. Possession of a Schedule Schedule II Controlled
Controlled Substance rd degree felony)
(As aa 3rd
Substance (As degree felony)
17 17 3. Family Violence (As (As aa Misdemeanor)
Misdemeanor)
18 18 Failed to report toto the the Probation
Probation Office
Office for
for three
three times weekly via
via phone
phone call. the
19 19 probationer probationer isis required requiredtoto report
reporttoto the
the Probation
ProbationOffice
Office via phone call every phone call
Monday, Wednesday, Friday, and as instructed. He failed to report on the following Friday, and as instructed. He failed to report on the following 20 20 dates: July 24, dates: July 24, 27,
27, 29,
29, 31,
3 l, the
the entire
entire months
months of of August and September, and October 2, 5, 7, 9, 12, 14, 16, 19, 12, 14, 16, 19, 21, 23, and and 26, 2020.
2020.
21
22 22 Failed Failed to attend
attend a weekly group
group counseling
counseling session.
session. The probationer is required to attend a weekly
weekly group counseling session session and
and failed
failed to
to attend
attend on
on July
July 27, the entire
23 months of August and September and October 5, 12, 19, and 26, 2020 August and September and October 5, 12, 19, and 24 24 4th Violation Violation Report (Phase (PhaseI)I)(Nov. 6, 2020). As As aa result of
of the Defendant's
Defendant's new
newcase,
case, the
the warrant
25 25 in this case was returned returnedon
onNovember
November 9,
9, 2020,
2020,which
which led
led to
to the
the Defendant's commitment commitment to the
the
26 26
27 Department Department of Corrections ("DOC")
("DOC") that
thatsame
same day.
day. Due
Due to
to the
the Defendant's
Defendant's noncompliance in noncompliance in
27
28 Adult Drug Drug Court,
Court, the
the parties
parties stipulated to his transfer stipulated to out of the transfer out the program., program., which the
the court
court
Decision Decision &&Order
OrderRe.
Re. People's
People'sAmended
Amended Motion
Motiontoto Revoke
Revoke Defendant's Probation People People v.
v. Sarmiento, CF0371-19
Page Page 4 of
of 13
accepted. Further Proceedings Mims.
Mins. atat9:37:46-38:08AM 9:37:46-38:08AM (Dec.
(Dec. 9,
9, 2020). The court then
then released
released
1
22 check-in requirements him, modifying his check-in requirements to to three
three (3)
(3) times
times a week by phone,
phone, in
in addition
addition to
3 imposing other release conditions. Order (Dec. 9, 2020).
2020). While
While the court held off on accepting 4 u u .
the Defendant's guilty plea, the the the Defendant could no no longer avail himself to an expungement of avall hnnself of 5 Order (Jan.
his case. Stipulated Order (Jan. 9, 9, 2025).
6 C. Defendant DefendantSarmiento's
Sarmiento's Violations
Violations under
under Traditional
Traditional Probation
7
8 After being terminated from Adult Adult Drug Court, the
the Defendant
Defendant accumulated eight (8) more
9 violations for violating conditions conditions of
ofhis
his probation.
probation. For
For the first violation, the report indicated that
10 the Defendant: l11 l
Failed to report to
to the
the Probation
Probation Office
Office three
three (3)
(3) times
times weekly via phone call. The 12 probationer is required to call every probationer every Monday, Monday, Wednesday, Friday and as instructed.
Wednesday, Friday
13 13 He was terminated from the Adult Drug Court Court II Program Program on
on December
December9, 9, 2020 and
released from released Department of Corrections from the Department Corrections that that same
same day
day and
and has
has not made
14 contact with the Probation contact with Office. It Probation Office. It is is noteworthy
noteworthy to mention that that attempts
attempts to
contact the defendant have been unsuccessful.
15
16 16 let 1st Violation Violation Report
Report (June
(June 2,
2, 2021).
2021). For the
the second
second violation,
violation, the
the report
report indicated
indicated that the
17 17 Defendant: .18 Failed to obey all laws of of Guam. On July 29, 2021,l, the the Probationer Probationer appeared before 19 19 Magistrate Magistrate Judge, Benjamin C. Sison C. Sison Jr, for a Magistrate Magistrate Hearing in reference to CM0278-2l CM0278-21 Family
Family Violence
Violence (As
(As aa Misdemeanor)/Unauthorized Misdemeanor)/Unauthorized Use of of a Vehicle 20 20 (As a Misdemeanor) and and was was held
held onon aa $1,000.00
$1,000.00 cash
cash bail.
bail. On August
August 12,
12, 2021,
he appeared
appeared before the the Honorable Honorable Jonathan
Jonathan R. R. Quan,
Quan, Magistrate
Magistrate Judge, for an
21 a ignment Hearing
Arraignment Hea r ing and a nd was
wa s · released
elea s ed that
ha t same
a me day in in CCM0278-21 M 0278-21 wit with
22 22 conditions conditions due
due to
to posting
posting bail
bail in
in the
the amount
amountofof$$1,000.00
l cash. No
cash. No further hearings hearings
have been set
set at this time.
23 23 24 2nd Violation Violation Report (Aug. 18, 18, 2021).
2021). For the
the third
third violation,
violation, the report
report indicated
indicated that the
24
25 25 Defendant:
Defendant:
26 26 Failed Failed to refrain
refrain from
from ingesting/consuming
ingesting/consuming illegal illegal controlled
controlled substances.
substances. The
27 probationer submitted
submitted to a drug test on January 26, 2022, with the probation office and tested
tested pr esumptive positive presumptive positive for for methamphetamines/THC.
methamphetamine/T HC. He admitted admitted to
to
28 28 ingesting an illegal controlled substance namely "marijuana and
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motiontoto Revoke
Revoke Defendant's Probation People v. Sarmiento, CF0371-19 Page Page 5 of
of 13
methamphetamine" methamphetamine" on on January January25,
25,2022
2022via
viadeclaration.
declaration.This
Thisisishis
his first
first positive
positive
1 test since being placed on on probation.
probation.
2 3rd Violation Violation Report Report (Jan.
(Jan. 26,
26, 2022).
2022). For
For the
the fourth
fourth violation,
violation, the
the report
report indicated
indicated that
that the
the
3
4 Defendant:
Defendant:
4
5 1.)
1.) Failed
Failedtotocomplete
completeCourt
Courtordered
ordered fines
fines and
and fees. The probationer's fine balance balance
remains at $5,160.00.
$5,l60.00. to
to date,
date, no
no payments
payments have been
been made.
6 2.)
2.) Failed to to perform
perform and
and complete
complete community
community service
service hours.
hours. To date,
date, the
the
probationer's probationer's balance
balance remains
remains atat 150
150 hours.
hours.
7 3.) Failed
Failedtotoenroll
enrolland
andattend
attend aa drug
drug rehabilitation
rehabilitation program.
program. Since
Since his
his termination
8 from the the Adult
Adult Drug
Drug Court
Court II Program,
Program, the
the probationer
probationer was never assessed for assessed for
treatment with Guam Behavioral treatment with Guam Behavioral Health and Wellness and Wellness Center.
9 10 10 4th Violation Violation Report Report (Jan.
(Jan. 27, 2022).
2022). Based on the
the Defendant's
Defendant's first
first four violations after after being
11 1 transferred out of Adult transferred out Adult Drug Drug Court,
Court, the
the court
court issued
issued another
another warrant
warrant for the Defendant's Defendant's arrest
arrest
12 12 on on April April19, 19,2022.
2022. After
Afterthe warrantwas
thewarrant wasreturned
returnedthree
three months
months later, the
the court
court vacated
vacated the
the warrant
13 13 but committed but committed the the Defendant
Defendant to
to DOC. court held
DOC. The court held aa continued continued Revocation Hearing Hearing on
14 14 19, 2022. Although the
December 19, the People agreed agreed with
with Probation's
Probation's recommendation recommendation to
to revoke
15 15
16 16 Defendant Sarmiento's probation, Defendant Sarmiento's probation,the the court
court accepted
acceptedhis
his guilty
guilty plea and
and released him from
released him
17 17 confinement instead.Rev.
confinement instead. Rev. Hr'g Mims.
Mins. at 2:11:41-20:19PM (Dec.
(Dec. 19,
19, 2022).
2022). Because
Because the
the court
court
18 accepted his guilty accepted his guilty plea in in this
this case,
case, this
this extended
extended the
the Defendant's probation for Defendant's probation for three three (3)
(3)
19 19 additional years, allowing additional years, allowing him him more
more time
time to
to complete his probationary tells and probationary terms and conditions.
conditions.
20 Order After After Hearing
Hearing (Feb.
(Feb. 1,1, 2023).
2023). Three
Threemonths
months after
after his
his release,
release, Probation
Probation reported
reported a fifth
21 21
22 22 violation while violation whilehe he was
was being held on new
new charges
chargesin
inCF0l
CFol16-23.
16-23. For
For the fifth violation,
violation, the
the report
23 indicated indicated that the the Defendant:
Defendant:
24 11.. Failed
Failed to
to obey
obey all
alllaws
lawsofofGuam.
Guam.On OnFebruary
February 27,
27, 2023, an Indictment
Indictmentwaswasfiled
filed
25 against theDefendant, against the Defendant,for forthe thecharges
chargesofofFamily
FamilyViolence
Violence (As
(As a Third Degree
Felony)22counts,
counts, Family Violence Violence (As a Misdemeanor) 2 counts, and Violation (As a Misdemeanor)2 counts, Violation 26 of ofaa Court
Court Order (As
(As aa Misdemeanor)22counts, counts, in
in CF0116-23.
CF0l 16-23.
27 27
28
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motionto
to Revoke
Revoke Defendant's
Defendant's Probation
People People v.
v. Sarmiento, CF037l-19
CF0371-19
Page Page 6 of
of 13
5th Violation Report (Mar.
(Mar. 8,
8, 2023).
2023). Despite
Despite being
being released
released from DOC on
on August
August 11,
11, 2023,
2023,
1
2 Probation filed filed aa sixth
sixth violation
violationon
on September
September 15,
15, 2023 reporting the
2023 reporting the Defendant's:
Defendant's:
3 1.
1. Failure to attend treatment with attend treatment with Guam Guam Behavioral
Behavioral Health andand Wellness Wellness center.
2. Failure to make monthly monthly payments
paymentstoto fine,
fine, and
andUA UA confirmation fees totaling 4 $5,020.00. $5,020.00. Last payment made September 7, 2022. 2022.
5 3. Failure Failuretotoperform
perform11501150 hours
hours of
ofcommunity
community service.
service. To
Todate,
date, no
no hours
hours have
been performed
performed or or submitted.
submitted.
6 4. Failure Failuretotoreport
reportto
tothe
the Probation
Probation Office,
Office,three
three times
times aa week.
week. He
He last
last reported
reported
7 on December
December 20, 2022.
2022.
8 ***it ***itisisnoteworthy
noteworthytotomention
mentionthe
theDefendant
Defendant was
was held
held at
at the
the Department
Department of
Corrections on February 17, 2023 Corrections on February 17, 2023 and released August 11, August 11, 2023 in CF0l
CF0116-23,
9 which which is dismissed without prejudice.
10 10 6th Violation Violation Report Report (Sept.
(Sept. 15,
15, 2023).
2023). Due to his
his failure
failure to
to appear
appear for aa Progress
Progress Hearing
Hearing on
11 11 September 19, 2023, 2023, the
the court
court issued
issuedanother
anotherbench
benchwarrant
warrantfor
forthe
theDefendant's
Defendant's arrest.
arrest. The
The court
12 12
13 addressed theDefendant's addressed the Defendant's sixth sixth violation
violation at a Return of Warrant Warrant hearing
hearing where it also
also set
set this
this
14 14 case for a Revocation Revocation Hearing on December 14, 2023.Return 14, 2023. Returnof
ofWarrant
WarrantHr'g
Hr'g Mins.
Mins. at
at 2:22:53-
2:22:53-
15 15 25:51PM 25:SlPMG\Iov. 22, 2023).
(Nov. 22, 2023).
16 16 The People filed
filed its
its Motion
Motionto
toRevoke
RevokeProbation
Probationand
and Impose
Impose Sentence
Sentence on November 28,
on November
17 17 18 2023. The Defendant Defendant subsequently
subsequently submitted
submitted his Opposition
Opposition to
to this
this motion
motionon
onDecember
December9,
9,2023
2023..
18
19 19 The Defendant's Defendant's Revocation Revocation Hearing
Hearing was
was rescheduled
rescheduled to
to February
February 19,
19, 2024,
2024, where the
the court
court
20 entertained argumentsand entertained arguments andProbation's Probation'srecommendation recommendationon
onthe
therevocation.
revocation. However,
However, the court
21 held the People's People's Motion
MotiontotoRevoke
RevokeProbation
Probationand
andImpose
ImposeSentence
Sentence in
inabeyance,
abeyance; and
and released
22 22 the Defendant Defendant from from confinement
confinement at
atDOC.
DOC. Rev.
Rev. Hr'g
Hr'g Mims.
Mins. at 2:22:36-23:34PM (Feb. 19, 19, 2024).
23 23 One month after the court released released the
the Defendant,
Defendant, Probation
Probation filed
filed a seventh violation, 24 24
25 25 reporting the the Defendant's:
Defendant's:
26 1.
1. Failure
Failure to
to report
report to
to the
the Probation
Probation Office
Office after
after being
being released
released from
from the
the
27 Department Department of of Corrections Corrections on on February February 19,
19, 2024,
2024, byby Judge Alberto E.
Judge Alberto
Tolentino.
28
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motiontoto Revoke
Revoke Defendant's
Defendant's Probation
People People v.
v. Sarmiento, CF0371-19
Page Page 7 of
of 13
7th Violation Violation Report (Mar. 5, 5, 2024). For the eighth violation violation filed Ive
fivemonths
months later,
later, Probation
Probation
1
2 2 reported the the Defendant's:
Defendant's:
3 1. Failure to attend treatment with attend treatment with Guam Behavioral Behavioral Health and
and Wellness
Wellness Center.
2. Failure to make
make monthly payments to fine fine and
and court cost balance of of $4,925.00.
$4,925.00.
4 3. Failure to perform 3 perform 150 hours of 150 hours of community
community service.
service.
5 Sth 8th Violation Report Report (August
(August 5,
5, 2024).
2024). The
The court
court issued
issued another
another bench
bench warrant
warrant for the
the
6
7 Defendant's Defendant's arrest arrest after he failed
failed to
to appear
appear at
at his Progress Hearing held held on
on August
August 7,
7, 2024.
2024. On
7
8 September 23, 2024, September 23, 2024, the the court
court held
held a Return
Return of
of Warrant
Warrant hearing
hearing where
where itit addressed
addressed the
the
9 9 Defendant's Defendant's eighth eighth violation
violationand
and scheduled
scheduled another Revocation Revocation Hearing. Return of Warrant Hr'g 10 10 Mims. 2:34:21-47:15PM (Sept. 23, Mins. at 2:34:21--47:15PM 23, 2024).
2024). Prior
Prior to the Revocation
Revocation Hearing, the People filed filed an
an
11 Amended Amended Motion to to Revoke
Revoke Defendant's
Defendant's Probation
Probation and
and Impose Jail Sentence
Sentence ("Amended
12 12
13 13 Motion") Motion")on onOctober
October7,
7,2024.
2024. In
In response,
response, the Defendant filed filed his Amended
Amended Opposition to the
14 14 People's People's Amended Amended Motion
Motion ("Amended
("AmendedOpposition")
Opposition")on
onOctober
October21,
21, 2024.
2024.
15 15 On October
October 28, 2024, the court 2024, the court held
held the
the Defendant's
Defendant's Revocation
Revocation Hearing
Hearing to
to address
address the
16 16 People's People's Amended Amended Motion
Motionand
and the
the Defendant's
Defendant's Amended
Amended Opposition.
Opposition. The
The court
court then
then took
took the
17 17 18 matter under advisement.
matter under advisement.After After making its
its amendments, the court amendments, the court also also accepted the
the parties'
18
19 19 stipulation to to allow the Defendant to to attend
attend viewing
viewing and funeral
funeral services
services for a deceased relative.
relative.
20 Step. & Order (Dec.
Stip. & (Dec. 13, 2024).
21 DISCUSSION
22 If Ifthe
the court
court finds
finds that
that the Defendant has
has "inexcusably
"inexcusably failed
failed to
to comply
comply with
withaasubstantial
substantial
23 23
24 requirement imposed as requirement imposed as a condition of the the order,"
order," itit may
mayrevoke
revokeprobation
probation and
and sentence
sentence or
24
25 25 resentence theoffender.
resentence the offender. 99 GCA GCA §§ 80.66(a)(2).
80.66(a)(2). IfIfaacourt
courtchooses
chooses to
to revoke
revokeprobation,
probation, the
the court
court
26 26 may sentence may the defendant sentence the defendanttotoany anysentence
sentencethat
thatmay
mayitithave
haveoriginally
originallyimposed.
imposed.99GCA
GCA §§
27 80.66(b). 80.66(b). However, it shall shall not
not revoke
revoke probation
probation for violation
violation of
ofaacondition
condition unless
unless the
the court
court
28
Decision Decision &
&Order
Order Re.
Re. People's
People's Amended
Amended Motion
Motion to
to Revoke
Revoke Defendant's Probation People People v.
v. Sarmiento, CF0371-19
Page Page 8
8 of
of 13
determines determines that revocation "will "will best
best satisfy the ends ofjustice justice and
and the best
best interests of the public"
public"
1
22 under all circumstances.
under all circumstances. 99 GCA GCA §
§ 80.66(a)(2).
80.66(a)(2).
3 The Supreme Court of of Guam held
held that
that "probation
"probation is aa favor
favor granted by the state, state, not a
4 right to which a criminal defendant is entitled."
entltled." People v. 'if 26 (quoting Camacho, 2009 Guam 6 1126 v. Camacho,
5 v. State,
Parker v. State, 676 N.E.2d 1083, 1085 (Ind.
(Ind. Ct.
Ct. App.
App. 1997)).
1997)). To
Torevoke
revoke aa Defendant's
Defendant's probation,
6
7 the court must make two determinations. First, the court must "make a factual determination that
8 a violation of of aa condition
condition of
of probation
probation has
has actually
actually occurred."
occurred." Camacho, 'if 27 Camacho, 2009 Guam 6 1]
9 (quoting Parker, Parker, 676 N.E.2d 1083
1083 at 1085).
1085). If the violation
violation is proven,
proven, then the court
court must
10 . . . . . 1 if the violation
"determine if warrants revocation violation warrants revocation of of probation."
probation." Id.
Id
11 11 A. Defendant DefendantSarmiento
Sarmientoviolated
violatedthe
the conditions
conditions of his probation.
12 12
13 13 The standard for determining whether whether a probationer violated a condition of of probation is
14 14 that "the evidence and the the facts
facts be such
such as
as reasonably
reasonably necessary
necessary to satisfy
satisfy the judge that the 15 15 probationer's conduct has not been as required by the conditions of of probation." Camacho,
Camacho, 2009
16 Guam 'if 30 (quoting People v. Guam 66 1] v. Angoco, 1998 1998 Guam
Guam 10 'if 7).
10 11 7). When
When facing
facing revocation,
revocation, "the
17 17 defendant bears bears the
the burden
burden of showing an excuse for failure failure to
to comply
comply with
with the
the condition."
condition." Id.
Id
18 18
19 19 (quoting State v.
v. Peters,
Peters, 609 A.2d 40, 43
43 (N.J.
(N.J. 1992)).
20 20 In this case, the Defendant accumulated fourteen (14)
(14) violations of
of probation. The court
21 can make aa factual factual determination
determination that all
all these
these violations
violations actually occurred based actually occurred based on the the
22 Defendant's declarations declarations to the violations, violations, the Defendant's Defendant's positive
positive test
test results,
results, an
an off-island
off-island
23 23 laboratory test result, and his oral oral admissions
admissions to the during his revocation hearings.
hearings. Having
24 24
25 considered considered the viola r ep os the testimony at the t ion reports,
violation the Revocation Hearing, Hearing, and the
the parties
parties'
26 26 arguments, the court arguments, the court finds finds that Defendant Sarmiento Sarmiento has violated
violated multiple
multiple conditions
conditions of his
27 27 . .
probation on probatlon on several several occasions.
occasions.
28
Decision Decision &
& Order
Order Re. People's
People'sAmended
Amended Motion
Motion to
to Revoke
Revoke Defendant's
Defendant's Probation
Probation
People v. Sarmiento,CF037l-19 Sarmiento, CF0371-19 Page 9 of
of13'
B. Defendant DefendantSarmiento's
Sarmiento's violations
violations warrant
warrantrevocation
revocation of probation.
1
2 With regard With regard to probation
probation revocation, the the Supreme
Supreme Court of
of the
the United
United States
States has
has noted
3 that "the State State clearly
clearlyhas
has an
an interest
interest in
in punishment
punishment and deterrence, deterrence, but
but this
this interest can often
often be
4 4 served fully by alternative alternative means
means ... [T]hestate
... [T]he stateisisnot
notpowerless
powerlesstotoenforce
enforcejudgments
judgments against
against
5 those financially unable unable to pay a fine.
line. For
For example,
example, the
the sentencing court could extend the the time
time for
6 7 making payments, payments, or
or reduce
reducethe
thefine,
fine, or
or direct that
that the
theprobationer
probationerperform
perform some
someform
form of
of labor or
7
8 8 public service service in
in lieu
lieu of
of the
the fine."
fine." Bearden v.
v. Georgia, 461
461 U.S. 660,
660, 671-72 (internal
(internal citations
citations
9 and quotations quotationsomitted).
omitted).
10 As mentioned As mentioned earlier, the the court
court may revoke
revoke probation
probation ififititfinds
findsthat
thatthe
the probationer
probationer has
has
11 "inexcusably "inexcusablyfailed failedto
tocomply
complywith
withaasubstantial
substantial requirement imposed as as aacondition
conditionof
of the
the order."
order."
12 12
13 9 9 GCA GCA §§80.66(a)(2).
80.66(a)(2).In
Inother
otherwords,
words, aa probationer's
probationer's violation
violationofofprobation
probation warrants
warrants revocation
revocation
14 14 violation upsets when the violation the intent upsets the intent of
of the probation conditions.
conditions. InCamacho,
Camacho, the Supreme Court 15 15 of ofGuam Guam held that the theprobationer's
probationer's failure to
to report
report for
fordrug
drug testing
testing was
was serious
serious enough
enough to warrant
16 16 revocation revocation when when considering the condition condition being violated
violated was
was treatment.
treatment. Camacho,
Camacho, 2009 Guam
17
~ 32. 6 1[ 32. Despite Despite not
not paying
paying the fine as
as required
required under
under probation, the Supreme probation, the Court of Guam Supreme Court Guam
18 18
19 19 reasoned that failure to thatfailure to pay
pay aa fine
fine alone was not as
as serious
seriousas
asnot
notreporting
reportingfor
fordrug
dog tests,
tests, because
because
20 the defendant was was convicted
convicted of
ofdrug-related
drug-related offenses
offensesand
and had
had drug
drug testing listed as a probation probation of
of
21 condition condition to ensure the defendant ensure the defendantremained remainedsober.
sober.Id.
Id Similar
Similar to the
the probationer in Camacho, Camacho, the
the
22 22 only conditions pending completion conditions pending completionwere were the
theDefendant's
Defendant'sfine
ire and
and fees,
fees, community
community service,
service, and
and
23 23
24 treatment.
treatment.
24
25 25 During Duringthe
themost
mostrecent
recent Revocation
RevocationHearing,
Hearing,the
theDefendant
Defendantrequested
requested one
one more
more chance
chance to
26 26 complete his probation, probation, which he
he believed
believed he can do if the court released him to to his father.
father. Rev.
Rev.
27 27 Hr'g Hr'gMins.
Mins.atat2:15:32-16: 10PM (Oct.
2:15:32-16:l0PM (Oct.28, 28,2024). Incontrast,
2024). In contrast, the
the People
Peoplereminded
reminded the
the court
court that
that
28
Decision Decision & Order People's Amended Order Re. People's Amended Motion Motion to
to Revoke
Revoke Defendant's
Defendant's Probation
Probation
People v.
v. Sarmiento,
Sarmiento, CF0371-19 Page Page 10
10 of
of 13
they were present present for
for aa third revocation
revocation hearing
hearing in
inthis
this case.
case. Id.
Id. at
at 2:11
2: 11::17-12:06PM.
17-12:06PM. Ultimately,
Ultimately,
1
22 the People do not believe that extending Defendant Sarmiento another opportunity oppommity will
will result in
33 compliance with his compliance with probation.
probation. Id. at 2:12:07-12:16PM.
12:07-12:16PM. The substantial substantial requirement
requirement imposed as
4 4 this case a condition in this case is is the
the Defendant's
Defendant's completion of of treatment. The purpose treatment. The of a condition purpose of
5 for treatment is sustained sobriety, sobriety; however, sobriety becomes unattainable unattainable without the right 6 7 support. The court court had
had given
given the
the Defendant
Defendant multiple
multiple opportunities before before considering
considering revocation,
7
88 including enrollment enrollment in
in the Adult
Adult Drug Court Program.
9 When defendants
defendants agree
agree to be monitored
monitored under
under the
the Adult
Adult Drug
Drug Court, they agree to to comply
10 10 . .. u .. . . .
stricter release
with stricter release conditions conditions unlike
unlike those
those under
under traditional
traditional probationary
probationary supervision.
supervision. For
11 11 instance, all instance, all Adult Court participants Adult Drug Court participants must must check
check in
in with
with Probation
Probation three
three (3)
(3) times a week
week
12 12
13 13 in person;
person, submit to to random
random drug
drug and
and alcohol
alcohol testing;
testing, and
and attend
attend any
anyrecommended
recommended counseling or
14 14 treatment programs.
programs. However, if they successfully complete all their conditions, then they reap
15 15 dismissal and the benefit of a dismissal and expungement of their case.
case. Even
Even when the Defendant picked up 16 16 another criminal criminal case
case before
before beginning his participation participation in Adult Drug Court, Court, the court
court still
still
17 17 deferred acceptance acceptance of his guilty plea and permitted him to enroll enroll in
in the
the program.
program. Rather
Rather than
18 18
19 19 engage in treatment treatment and participate in all participate in all that
that ·Adult Drug Court has to offer, offer, the Defendant
Defendant
20 continued continued to test positive, failed to check in as required, and disobeyed the laws of of Guam.
21 When Adult Drug Court did not work out, out, the court
court agreed to switch the Defendant to 22 supervision, which
traditional probationary supervision, which required required less stringent
stringent check-in
check-in requirements
requirements from the
23
24 Defendant compared Defendant compared to to Adult
Adult Drug
Drug Court.
Court. Rather
Rather than
than use this as an opportunity opportunity to
to seek
seek treatment
treatment
24
25 25 for his addiction, addiction, the Defendant had more more warrants
warrants issued
issued for
for his
his arrest,
arrest, tested
tested positive
positive for
for
26 26 methamphetamine, and and was
was charged
charged for
for two more
methamphetamine, more criminal criminal cases.
cases. While
While the
the court
court is aware of
of the
27
28
Decision Decision &&Order
OrderRe.
Re. People's
People's Amended
Amended Motion
Motionto
to Revoke
Revoke Defendant's
Defendant's Probation
People People v.
v. Sarmiento, CF0371-19
Page Page 11
11 of
of 13
difficulties in dealing with addiction, the Defendant cannot expect to overcome his addiction ifhe he
1
22 will not put in the effort to to attend
attend and
and complete
complete treatment programs provided provided to him.
3 of justice and the Unless the court determines that revocation "will best satisfy the ends of 4 4 interests of the public" under all best interests all circumstances, circumstances, the court shall not revoke probation probation for
5 violation violation of of aa condition.
condition. 99 GCA
GCA §§ 80.66(a)(2). Here, the 80.66(a)(2). Here, the Defendant Defendant was
was up
up for
for revocation
revocation more
more
6 7 7 than than once in this case.
case. And before the most recent recent Revocation
Revocation Hearing,
Hearing, the court held off on
88 revocation two separate times to give the Defendant Defendant another chance to complete his probation for
99 this 2019 2019 case.
case. While
While the
the Defendant
Defendant believes
believes that he can complete the conditions of of his probation
10 if released if released to his father on Electronic Monitoring, Monitoring, the
the court
court agrees
agrees with
with the
the People
People that
that he was
11 11 given multiple given multiple opportunities opportunities to
to comply with
with probation
probation yet
yet disregarded
disregarded the
the court's orders.
orders. Rev.
12 12
13 13 Mins. at Hr'g Mims. at 2:11:17-12:06PIV[.
2:11:17-12:06PM. The
The court
could worries
worries that
that releasing
releasing the Defendant, without the Defendant, without
14 14 Electronic Monitoring or any third-party custodian, custodian, may lead to an escalation of of crimes against
against
115 . . . . . . . . . . .
community, conslderlng
the community; considering that he received vlolatlons case for committing new crimes violations in this case
16 16 that are are violent in nature.
17 17 In Gua m, the
Guam, the Depa r tment of Department ofCor r ections pr Corrections ovides aa Residentia provides Residentiall Substa nce Abuse Substance Abuse
18 18
19 19 Treatment ("RSAT") program for its inmates who are are battling
battling addiction.
addiction. Rather than leave the
20 20 Defendant to seek treatment on his own, own, the
the court
court believes
believes that
that it is in the
the best
best interests
interests of
of the
21 public and will best satisfy the ends of justice justice to
to allow DOC to supervise and assist the the Defendant
Defendant
22 22 on his path to to recovery through the RSAT program.
23 23 Because the Defendant
Defendant has
has inexcusably
inexcusably failed
failed to
to comply
comply with
with treatment
treatment as
as aa substantial
substantial
24 24
25 25 condition of of his probation, the court finds finds that
that revocation
revocation of
of the
the Defendant's
Defendant's probation will best
26 satisfy the ends of satisfy the of justice and the the best
best interests
interests of
of the
the public.
public. Therefore,
Therefore, the court
court grants
grants the
27 People's People's Amended Amended Motion
Motion to
to revoke the Defendant's Defendant's probation.
probation.
28
Decision Decision & Order
Order Re. People's
People'sAmended
Amended Motion
Motion to
to Revoke
Revoke Defendant's
Defendant's Probation
Probation
People People v.
v. Sarmiento,CF037l-19
CF0371-19
Page 12
12 of
of13
CONCLUSION
1
z2 Defendant's probation in For the reasons stated above, the Court hereby REVOKES the Defendant's
33 THREE (3) years the above-captioned matter. The Defendant is hereby SENTENCED to serve THREE 4 . . . 1 . . .
of incarceration of the Department incarceration at the of Corrections, Department of Mangllao, and Correctlons, Mangilao, shall receive and shall credlt for receive credit time
for time
5 already served in this matter. The Court shall issue aa Judgment shall issue and Judgment concurrent with this Decision and 6
Order revoking the Defendant's probation, and imposing the remainder of the Defendant's three-
Defendant's probation,
7
88 sentence.
year sentence.
9
10 No further proceeding is scheduled before this court.
scheduled before
11 11 JAN 14 JAN 14 2025
2025
12 SO ORDERED this
ORDERED this
-----------
113
14 14
15 15 Ii
16
17 17 HONORABLE ALBERTO E. TOLENTINO HONORABLE
Superior Court of Guam
Judge, Superior
18
19 19
20 20
21
22 22
23 23 SERVICE VIA
vIA EMAIL
II acknowledge
acknowledge that an electronic 24 copy of the copy of the original
original was e-mailed to:
was e-mailed to;
25 AG, posc, 26 D a t e : l l q f } {TIm 7 l 204 M
27 Amvnio A re './ Deputy Clerk, Sup r Court of Guam
28
Decision Decision &
& Order Re. People's Amended Motion Order Re. to Revoke Motion to Defendant's Probation Revoke Defendant's
CF0371-19
People v. Sarmiento, CF0371-I9 Page 13 of Page 13 13
of 13