The CNMI Supreme Court has affirmed the conviction and the 25-year prison sentence slapped against a former maintenance worker who sexually abused a 6-year-old girl.
The high court justices ruled that though attorney Jose P. Mafnas has already withdrawn as court-appointed counsel for defendant George Ramel Delos Santos, his Anders brief provided defendant with constitutionally adequate assistance on appeal.
An Anders brief refers to a procedure to reconcile conflict between the lawyer’s duty to zealously represent a client and the duty not to make frivolous arguments.
Neither Delos Santos nor subsequently-appointed counsel Shelli L. Neal has contested the finding that there is no colorable claim in this appeal, said the high court’s opinion issued Friday by Chief Justice Alexandro C. Castro and associate justices John A. Manglona and Perry B. Inos.
A colorable claim refers to a claim that is reasonably supported by either law or policy, which, if accepted, may result in reversal.
“After an independent examination of the record, we agree and therefore affirm his conviction and sentence,” the justices said.
Delos Santos was 55 years old when he sexually abused the child at a house in Chalan Kanoa in August 2016. He was arrested in September 2016 and subsequently pleaded guilty to sexual abuse of a minor in the first degree.
The Office of the Attorney General dropped additional charges of disturbing the peace and assault and battery as part of the deal.
Delos Santos was sentenced to 35 years of imprisonment with five years suspended. He is eligible for parole after serving eight years and was given 10 years of supervised probation.
Delos Santos is undocumented and may be subject to removal proceedings upon release, according to court documents.
Superior Court Presiding Judge Roberto C. Naraja considered aggravating factors, including the use of pornography to “groom” the victim and the possible transmission of a sexually transmitted disease to the victim.
Naraja also considered mitigating factors, including that Delos Santos supports a family in the Philippines.
Delos Santos appealed, asking the high court to reverse his conviction and sentence. His trial counsel withdrew due to a conflict of interest and Mafnas was appointed.
Trial counsel indicated in his motion to withdraw that Delos Santos intended to challenge his guilty plea and might make a motion to withdraw his plea in the Superior Court.
In the high court’s ruling, the justices, however, pointed out that there is no record that Delos Santos made such a motion.
Mafnas filed an Anders brief, believing the appeal to be frivolous. He then withdrew as counsel due to a conflict of interest because he began employment with the Office of the Attorney General.
The justices said since Mafnas has already withdrawn as counsel, his motion to withdraw is moot.
The high court appointed Shelli L. Neal as Delos Santos’ current counsel.
The justice said Delos Santos and current counsel Neal did not file a supplemental Anders brief after being given notice to respond.
The justices said the sole issue is whether there are any non-frivolous grounds for appeal.
The justices said Mafnas’ Anders motion to withdraw itself is moot, since they granted his separate motion to withdraw due to conflict of interest.
“Even so, his Anders brief satisfies Delos Santos’ constitutional right to appellate counsel,” the justices said.
The justices said they find that Mafnas provided Delos Santos with a diligent search of the record and that the appeal is indeed without merit.
First, the justices said, they address the threshold question of whether this appeal is barred by waiver.
“We conclude it is not, as the Commonwealth has not raised the issue,” they said.
The justice said they then address four arguments on the merits raised in the brief and find no colorable claim.
As part of their independent examination of the record, the justices said they further discuss the substantive reasonableness of the sentence, which was listed by trial counsel in the docketing statement as the basis of the appeal but not discussed by new counsel.
“Again, we find no colorable claim and therefore affirm the conviction,” they said.
On the waiver issue, the justices said the Commonwealth has not raised the issue of waiver in a motion to dismiss, so defense counsel’s raising the issue does not bar their consideration of the merits of Delos Santos’ claims.
The justices said the victim’s mother testified at the sentencing hearing, and the victim testified to the crime to a detective.
The justices said though no corroboration was presented at the hearing, Delos Santos’ admission was not an extrajudicial statement.
The justices said there was sufficient factual basis in the record to support a guilty plea.
The justices said the sentence is not illegal since both the length of imprisonment and the length of probation fall within statutorily permissible bounds.
The justices said Delos Santos cannot plausibly argue either that counsel was ineffective in not moving to withdraw before sentencing or that there is reason to grant a post-sentencing motion to withdraw his guilty plea.
Delos Santos stated at the change of plea hearing that counsel informed him of the potential immigration consequences of his plea.
The justices said there is no evidence that defendant’s counsel failed to inform him of immigration consequences.
The justices said Delos Santos has no colorable claim of ineffective assistance of counsel.