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Sunday, April 20, 2014

Guerrero’s bid to delay serving his sentence is denied anew

The CNMI Supreme Court has denied former Commonwealth Utilities Corp. board chair Francisco Q. Guerrero’s motion to reconsider its denial of his request to put off serving his six-year prison sentence pending the resolution of his appeal. Guerrero was convicted of 11 charges relating to sexual abuse of a minor.

In an order on Tuesday, the high court justices once again found no clear error or manifest injustice that would require them to reconsider their earlier decision.

Chief Justice Alexandro C. Castro penned the decision. Associate Justice John A. Manglona and justice pro tem Timothy H. Bellas concurred with Castro.

A Superior Court jury had acquitted the 63-year-old Guerrero of two counts of a sexual abuse of a minor in the second degree, but Associate Judge David A. Wiseman found him guilty of 11 charges: three counts of assault and battery, five counts of disturbing the peace, two counts of indecent exposure in the second degree, and sexual abuse of a minor in the fourth degree.

Wiseman sentenced Guerrero to six years in prison without the possibility of parole.

Guerrero, through counsel Brien Sers Nicholas, filed an emergency motion with the Supreme Court, seeking a stay of his sentence pending appeal.

Before trial, Guerrero had asked for a discovery material from the prosecution, including an Attorney General Investigative Unit report made at or around the time of Guerrero’s arrest, which potentially contained statements from the victim that Guerrero believed were material and exculpatory.

When the government did not provide the AGIU report, Guerrero filed a motion to compel, arguing the small amount of material the government produced in the course of the case could not have met the prosecution’s burden to turn over evidence.

Wiseman denied Guerrero’s motion to compel, and declined to review the disputed evidence in camera (private) because “the government had assured the court that all exculpatory material had been produced.”

Wiseman also allowed expert testimony from Division of Youth Services officer Julian Camacho regarding the delayed reporting and coping mechanisms of sexual abuse victims.

In coming to a finding of guilty, Wiseman relied “on the credibility of the victim’s testimony.”

Guerrero then filed a motion for a stay of sentence, but Wiseman denied it last November.

In December, the High Court denied Guerrero’s motion to suspend the execution of the court’s sentencing order. The justices ruled that Guerrero has not met his burden to raise a substantial question of law or fact likely to result in reversal or a new trial.

The justices, however, remanded in part for further proceedings in Superior Court to determine if an Attorney General Investigation Unit report regarding defendant’s sexual abuse charges exists.

Guerrero then asked the High Court to reconsider its decision, arguing that the Commonwealth’s failure to turn over attorney notes from attorney-witness interviews violated the Brady rule.

Brady material refers to a piece of evidence known to the prosecution that is important for establishing the innocence or reducing the punishment of a defendant.

In denying the motion to reconsider, the justices said that Guerrero overlooks Commonwealth Rule of Criminal Procedure 16, which governs the Commonwealth’s duty to disclose evidence.

The justices said the requested attorney notes fall within the exemption because the attorneys interviewed the victim as part of investigating and prosecuting the case.

Guerrero was ordered to start serving his sentence on Dec. 1, 2013, at the Department of Corrections.

According to the court’s commitment order, Guerrero began sexually molesting the now 17-year-old girl in 2010 when she was in the 9th grade and continued doing so up to May 2012 on five different occasions.

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