Wiseman places under advisement defendant’s motion to stay sentence pending appeal
Former Department of Public Safety deputy commissioner Ambrosio T. Ogumoro yesterday started serving his one-year prison term at the Department of Corrections as Superior Court Associate Judge David A. Wiseman heard his motion to stay his sentence pending the appeal of his criminal conviction.
Wiseman, who is currently in Hawaii, presided yesterday an expedited hearing telephonically on Ogumoro’s motion to stay.
Wiseman placed under advisement Ogumoro’s motion. The judge also stated he would look into the request of special prosecutor George Lloyd Hasselback to be discharged from the case.
According to Wiseman in an order issued on Monday, Ogumoro, through counsel Daniel Guidotti, filed a motion for stay pending appeal last Friday, April 8, at 4:22pm.
The defendant requested that the court schedule an expedited hearing on this matter for last Monday, April 11, at 1:30pm.
Wiseman said neither a declaration of service nor a supporting affidavit was attached to Ogumoro’s motion.
Wiseman, however, said there is no indication that Ogumoro’s motion was made on ex parte application basis.
Ex parte means an application to the court by one of the parties to the action without the other party being present/heard.
Wiseman cited that NMI Rules of Criminal Procedure 45(d) requires that a written motion be served, no later than five business days before the time specified for a hearing; unless the court schedules a different period.
He said here, Ogumoro has not shown good cause for expediting the matter to last Monday, April 11.
Nonetheless, the judge scheduled a hearing on this matter on an accelerated basis on the court’s normal criminal calendar, for yesterday, April 13, at 1:30pm.
Wiseman said the government must be given an opportunity to file an opposition memorandum of law to defendant’s motion.
Accordingly, the judge said, he will allow the government to file a brief on or before yesterday at noon.
Wiseman said to avoid any possible confusion, notwithstanding defendant’s motion for a stay and the court’s scheduling of a hearing in this matter, defendant’s reporting date to DOC yesterday, April 13 on or before 8am, is not affected or altered.
In other words, Wiseman said, the filing of the motion and the court’s order scheduling a hearing, gives no effect to the requested stay or to the court order for defendant to report as stayed in the sentencing order of April 1.
“Said sentencing remains in effect,” the judge pointed out.
At yesterday’s hearing, Guidotti argued Ogumoro’s motion. Hasselback argued the government’s opposition.
Ogumoro, 57, also appeared in court escorted by corrections officers.
Guidotti asked the court to give special attention to the fact that Ogumoro will likely serve his entire sentence of imprisonment before the date on which the CNMI Supreme Court decides his appeal.
Guidotti said based on his experience, it would take the high court 18 to 36 months to rule on an appeal.
Guidotti said the court had already found that the defendant does not pose a flight risk nor is he a danger to the community.
The defense lawyer said Ogumoro’s appeal is not for purposes of delay, is not frivolous, and that the appeal raises substantial questions of law and fact.
He pointed out that if Wiseman does not grant a stay, any relief that Ogumoro would receive via a favorable appellate ruling would be moot because, without a stay, the defendant will, in all likelihood, serve his entire one-year prison term before the high court decides his appeal.
Guidotti said on appeal, they would present legal argument that then-Office of the Public Auditor investigator Juanette David-Atalig was a law enforcement officer.
Guidotti said it was reversible error for the trial court to convict Ogumoro on misconduct in public office given that the defendant had no legal duty to assist David-Atalig with penal summons that the trial court acknowledged was invalid.
In the government’s opposition, Hasselback said the motion should be denied because Ogumoro has not demonstrated that this appeal “raises a substantial question of law or fact likely to result in reversal or an order for a new trial.”
Hasselback said the court should not delay the imposition of defendant’s sentence as he has not met his burden to demonstrate that his appeal raises the requisite “substantial question of law or face likely to result in reversal or appeal.”
He said Ogumoro offers nothing to overcome the presumption of sufficiency of the evidence adduced at trial.
Hasselback said Ogumoro relies upon vague contentions regarding sufficiency of evidence.
At best, Hasselback said, the defendant has offered a “road map” of some of the issues he plans on raising on appeal, but this is not sufficient for this court to impose the stay that is sought.
Last January, a Superior Court jury rendered a unanimous verdict finding Ogumoro guilty of conspiracy to commit theft of services and theft of services pertaining to the same incident of shielding of then-attorney general Edward Buckingham.
Wiseman found Ogumoro guilty of seven of nine corruption charges for his role in the shielding of Buckingham from being served with penal summons in August 2012.
Wiseman found the defendant guilty of five counts of misconduct in public office, one count of obstructing justice: Interference with a law enforcement officer or witness, and one count of criminal coercion.
Last Jan, 30, Wiseman imposed a one-year prison term on Ogumoro plus other orders.