People of Guam v Camacho [2009] GUSC 6; 2009 Guam 06 (28 July 2009)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

V

ANTHONY JOSEPH CAMACHO,
Defendant-Appellant.

OPINION

Filed: July 28, 2009
Cite as: 2009 Guam 6

Supreme Court Case No.: CRA07-007
Superior Court Case No.: CF0310-05

Appeal from the Superior Court of Guam
Argued and submitted on July 12, 2008
Hagåtña, Guam

Appearing for Defendant-Appellant: Peter J. Sablan, Esq. Assistant Public Defender Public Defender Service Corporation 110 West O’Brien Drive Hagåtña, Guam 96910

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Office of the Attorney General The Justice Building 287 West O’Brien Drive Hagåtña, Guam 96910

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

CARBULLIDO, J.:

[1] Defendant-Appellant Anthony Joseph Camacho appeals from a final judgment revoking his probation and sentencing him to three years in prison pursuant to a plea agreement in which he pleaded guilty to Possession of a Schedule II Controlled Substance (a third degree felony). Camacho argues that his probation was improperly revoked after two violations, and that the trial court erred in sentencing him by not using the sentencing factors in 9 GCA § 80.60.

[2] Because the scope of Camacho’s plea agreement is ambiguous and did not conclusively cover the claims he presents to this court, we hold it does not bar this appeal. Nevertheless, because Camacho signed a valid plea agreement, violated the terms of probation therein, and was sentenced according to those terms, we find that Camacho’s probation was properly revoked and the trial court did not err in sentencing him.

I. BACKGROUND

[3] Camacho was indicted for possession of a schedule II controlled substance (as a third degree felony) in violation of 9 GCA §§ 67.401.2(a) and (b)(1), and possession of less than one ounce of marijuana (as a violation) in violation of 9 GCA § 67.401.2(b)(3).

[4] Camacho entered into a written deferred plea agreement ("DPA") with the People of Guam ("People"), wherein he agreed to plead guilty to possession of a schedule II controlled substance, which plea would be deferred pending certain conditions. The DPA included an appeal-waiver provision, found in Paragraph 5:

Defendant understands that he has a right to appeal his conviction in this case pursuant to 8 GCA §§ 130.10 and 130.15, and agrees to waive that right for the purpose of this plea.

Excerpts of Record ("ER") at 4 (Deferred Plea Agreement ("DPA"), Oct. 11, 2005).

[5] In its colloquy with Camacho, the trial court explained to Camacho that the crime to which he was pleading guilty carried a maximum three year sentence and a fine of five thousand dollars. The trial court also listed the rights Camacho normally would have been entitled to as a criminal defendant, which he was agreeing to waive in exchange for the DPA.

The Court: You understand you still have the right to plead not guilty . . . right to a trial by jury . . . right to have legal counsel assist you in your defense . . . . You plead guilty today and I accept your Plea. You will waive your right to a jury trial, waive [your] right to appeal this case, and waive all your rights as I just told them to you. Do you understand that?

Supplemental Excerpts of Record ("SER"), tab 1 at 5-6 (Change of Plea, Oct. 11, 2005). Camacho responded that he understood and pleaded guilty. The court then found Camacho competent and capable to form a voluntary plea. The judge deferred accepting Camacho’s Plea for a period of two years so long as he met a list of probationary conditions. Among the conditions imposed were 150 hours of community service, a fine of $5,000.00, enrolment and attendance in a drug rehabilitation program under the supervision of the Adult Drug Court ("ADC"), submittal to drug tests, and weekly reports to the probation office.

[6] During the deferred period, the Probation Office ("Probation") filed fifteen probation violation reports concerning Camacho, for which the trial court issued a warrant of arrest. The trial court sanctioned Camacho to sixteen days imprisonment for his violations of probation conditions.

[7] The trial court held a hearing to reconsider Camacho’s DPA, to allow him to contest his termination from the ADC, and to impose sentence. Camacho did not contest being terminated from ADC, and the trial court granted the People’s motion to terminate. The trial court accepted the DPA, and the written Judgment found that Camacho violated his DPA. Therein, the order suspended the three year prison sentence in the DPA so long as Camacho pay a fine of $5,000.00, perform 150 hours of community service, enrol in and attend a drug rehabilitation program at the Department of Mental Health and Substance Abuse ("DMHSA"), and abide by the conditions of probation. The conditions of probation included reporting to the DMHSA within 72 hours, the successful completion of the program, and weekly reports and drug tests at the Probation Office. ER at 19-23 (Judgment, Aug. 15, 2007).

[8] On May 22, 2007, Probation filed a first violation report against Camacho for failure to report to Probation for drug testing. ER at 24 (Violation Rpt., May 22, 2007). Less than two months later, Probation filed a second violation report against Camacho for failure "to report in person once a week and call three times a week," failure to pay the fine or any balance on it, and failure to report to the DMHSA for an assessment and treatment. ER at 26 (Violation Rpt., July 17, 2007).

[9] The trial court subsequently heard the People’s motion to revoke probation. Camacho answered and admitted to the two violation reports. The People asked the trial court to revoke Camacho’s probation and sentence him to three years in prison. Camacho opposed the People’s position, but the trial court revoked his probation and sentenced him, in accordance with the DPA, to three years’ incarceration followed by five years’ probation with the same conditions.

[10] Judgment was filed and Camacho timely appealed.

II. JURISDICTION

[11] This court has jurisdiction over appeals from final judgment pursuant to 48 U.S.C. § 1424-1(a) (2) (Westlaw current through Pub. L. 111-1 (2009)); 7 GCA §§ 3105, 3107(b) and 3108(a) (2005); and 8 GCA §§ 130.15(a) and (c) (2005). Title 7 GCA § 3107(b) states in relevant part that "[t]he Supreme Court shall have jurisdiction of all appeals arising from judgments, final decrees, or final orders of the Superior Court in criminal cases and in civil cases and proceedings." 7 GCA § 3107(b) (2005).

[12] The People argue the court is without jurisdiction because Camacho waived his right to appeal. However, even a valid waiver of appellate rights does not deprive this court of jurisdiction to hear this appeal. People v. Mallo, 2008 Guam 23 ¶ 8. We have subject matter jurisdiction over Camacho’s appeal notwithstanding his waiver of appeal. Id. (citing United States v. Gwinnett, 483 F.3d 200, 201 (3d Cir. 2007)). Nonetheless, we will not exercise our jurisdiction to review the merits of Camacho’s appeal if we conclude that he knowingly, voluntarily, and intelligently waived his right to appeal unless the result would work a miscarriage of justice. Id. (quoting Gwinnett, 483 F.3d at 203).

III. STANDARD OF REVIEW

[13] Whether the waiver in Camacho’s plea agreement bars this appeal is an issue reviewed de novo. Mallo, 2008 Guam 23 ¶ 10 (citing United States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir. 1998)).

[14] We review the trial court’s revocation of probation for clear abuse of discretion. People v. Angoco, 1998 Guam 10 ¶ 4. We review an imposition of a sentence for an abuse of discretion. See People v. Super. Ct. (Chiguina), 2003 Guam 11 ¶ 12. Sentences imposed following revocation of probation are reviewed under the same abuse-of-discretion standard that applies to sentences imposed following conviction. Cf. United States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007).

IV. DISCUSSION

A. Waiver of Right to Appeal

[15] As a preliminary matter, we must address whether the waiver in Camacho’s plea agreement bars his appeal. A defendant may waive his right to appeal provided (1) his waiver is knowing, voluntary, and intelligent, Mallo, 2008 Guam 23 ¶ 15, and (2) the appeal falls within the scope of the waiver. See United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006). Because plea agreements are essentially contracts between the defendant and the People, see Mallo, 2008 Guam 23 ¶ 45, we must look to the terms of the agreement to determine the scope of an appeal waiver (i.e., whether the waiver applies to the circumstances at hand). See also Rangel v. United States, 155 F. Supp. 2d 949, 953 (N.D. Ill. 2001). Finally, given the significance of waiver of rights, "we apply appeal-waiver provisions ‘narrowly’ and construe them ‘strictly against the Government,’ in recognition of the fact that prosecutors’ bargaining power generally exceeds that of defendants and that the government typically drafts such agreements." United States v. Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006); see also Mallo, 2008 Guam 23 ¶ 16; Palmer, 456 F.3d at 488.

[16] The People argue that the appeal-waiver provision in the DPA precludes this appeal. The appeal-waiver provision is found in Paragraph 5 of the DPA, which provides:

Defendant understands that he has a right to appeal his conviction in this case pursuant to 8 GCA §§ 130.10 and 130.15, and agrees to waive that right for the purpose of this plea.

ER at 4 (DPA) (emphases added).

[17]