People of Guam v Mallo [2008] GUSC 23; 2008 Guam 23 (19 December 2008)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

MAMERTO G. MALLO,
Defendant-Appellant.

Supreme Court Case No.: CRA07-008

Superior Court Case No.: CF0595-99

OPINION

Filed: December 19, 2008
Cite as: 2008 Guam 23

Appeal from the Superior Court of Guam
Argued and submitted on July 16, 2008
Hagåtña, Guam

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Office of the Attorney General 287 W O’Brien Dr. Hagåtña, GU 96910

Appearing for Defendant-Appellant: Peter C. Perez, Esq. Lujan Aguigui Perez 300 DNA Bldg. 238 Archbishop Flores St. Hagåtña, GU 96910

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

TORRES, C.J.:

[1] Defendant-Appellant Mamerto G. Mallo appeals from a conviction, based on a plea agreement, of Murder (As a First Degree Felony) in violation of 9 GCA § 16.40(a)(1). The plea agreement required that Mallo pay restitution but left to the discretion of the sentencing judge whether Mallo would receive credit for time served. The sentencing judge denied Mallo credit for time served and ordered that restitution be paid to the decedent victim’s brother. Mallo argues that the Superior Court improperly refused to grant him credit for time served and issued a restitution order in excess of the statutory limit, to be paid to someone other than the victim of his crime, and without a statutorily-mandated hearing on the victim’s loss and defendant’s ability to pay.

[2] The sentencing judge had no discretion to deny Mallo's request for time served because credit for time served is a statutory right, and the plea agreement was insufficient to serve as a knowing, intelligent, and voluntary waiver of that right. The language in the plea agreement concerning restitution, on the other hand, was clear and direct and Mallo thereby waived all of his arguments related to the restitution order. Thus, we reverse in part and affirm in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3]