Commonwealth of the N. Mariana Islands v. Castro

BEFORE: Miguel S. DEMAPAN, Chief Justice, Alexandro C. CASTRO, Associate Justice, John A. MANGLONA, Associate Justice.

MANGLONA, Associate Justice:

Appellant Bender S. Castro [hereinafter Defendant or Castro] appeals a Judgment and Commitment Order entered on July 19, 2001, imposing a sentence in a traffic case more severe than agreed upon between Castro and the Office of the Attorney General. We have jurisdiction pursuant to Article IV, Section 3 of the Constitution of the Commonwealth of the Northern Mariana Islands and 1 CMC § 3102(a). We vacate the order and remand with instructions.

The issue presented is whether the trial court erred when it rejected a plea agreement and failed to allow the Defendant to withdraw his guilty plea, made pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) of the Commonwealth Rules of Criminal Procedure, prior to imposing a sentence. This is a question of law which we review de novo. See Commonwealth v. Ping, App. No. 97-053 (N.M.I. Sup. Ct. July 26, 1999) (Opinion at P2) ( citing Agulto v. Northern Marianas Inv. Group, Ltd., 4 N.M.I. 7, 9 (1993)).

(vehicle lights infraction) and 9 CMC § 4104(a) (equipment violation - brakes). On December 30, 1999, Castro entered a plea of not guilty to the charges. Castro failed to appear at his scheduled status conference, and the court issued a bench warrant for his arrest.

Castro was subsequently arrested on other charges. The court quashed the bench warrant. A change of plea hearing took place on July 19, 2001, to dispose of the 1999 (alleged) traffic infractions. At this hearing, the government informed the trial court that "this matter is simply going to be a plea to the [§] 2201(a) charge, with a dismissal of the remaining charges." Excerpts of Record [hereinafter E.R.] at 17. Castro then pled guilty to the § 2201(a) charge. Id.

In response to the court's inquiry as to the recommended disposition, the Attorney General's Office stated the recommended disposition as "just a hundred dollar fine, Your Honor."

Whereupon the following immediately transpired:

THE COURT: I'm going to sentence you, do you have any license?

CASTRO: No.

THE COURT: When was the last time you had a license?

CASTRO: I never had.

THE COURT: Never had. I'm going to sentence you to six days in jail, all suspended except three days. And I'm going to put you on probation for a period of six months. The fine is one hundred dollars. Do you agree with that?

CASTRO: Yes, Your Honor.

THE COURT: All right. You are going to jail because, you know, you've been here before, right, and you never had your license, right? When are you going to get your license?

E.R. at 18.

Castro's attorney then attempted to withdraw Castro's plea. The court did not accept the withdrawal of the plea, and ordered Castro incarcerated. Castro's attorney then objected to the imposition of sentence, and asked that the case be transferred to another court. The court denied Castro's motion.

dated July 20, 2001.

Castro timely filed this appeal on July 25, 2001.

Castro advances three arguments in support of his contention that he should have been allowed to change his plea, citing Commonwealth Rule of Criminal Procedure 11, Commonwealth v. Ping, App. No. 97-053 (N.M.I. Sup. Ct. July 26, 1999) (Opinion) and public policy concerns.

Castro argues that he entered his plea of guilty to the violation of driving without a license, with the understanding that the remaining charges would be dismissed, thereby bringing his plea agreement under the purview of Commonwealth Rule of Criminal Procedure 11(e)(1)(A). Castro also argues that the Assistant Attorney General recommended a punishment of a $ 100 fine, thereby bringing the arrangement under the purview of Rule 11(e)(1)(C). It is Castro's contention that, since this is a Rule 11(e)(1)(A) and 11(e)(1)(C) situation, Rule 11(e)(4) should have been followed. As such, the court should have informed Castro of its intention to reject the agreement and afforded Castro the opportunity to withdraw his plea. Castro contends, and the record before us shows, neither occurred.

Castro's next argument is that Commonwealth v. Ping, App. No. 97-053 (N.M.I. Sup. Ct. July 26, 1999) (Opinion at P9) (which states "if the court rejects the agreement, the court must so inform the parties, advise the defendant that the court is not bound by the plea agreement, and afford the defendant the opportunity to withdraw his plea") is controlling in this situation.

Finally, Castro contends that public policy considerations dictate that the trial court should have allowed him to withdraw his plea. He argues that the interests of judicial expediency and preservation of the plea bargain process necessitate the continued enforcement of the procedures that the legislature has deemed appropriate. For this proposition, Castro cites United States v. Selmer.

The Commonwealth has promulgated rules which govern the proceedings in traffic cases for the trial court. See generally, Com. R. Traf. P. These rules "govern the procedure in the Commonwealth Superior Court to hear and determine cases involving traffic offenses." Com. R. Traf. P. 1. A "traffic offense" is "any violation of a statute, ordinance or regulation relating to the operation or use of motor vehicles and any violation of a statute, ordinance or regulation relating to the use of streets and highways by pedestrians or by the operation of any other vehicle." Com. R. Traf. P. 2(1). The Commonwealth Rules of Traffic Procedure certainly are applicable to this case.

Rule 8 delineates the procedure the trial court must follow when accepting a plea of guilty. Specifically, Commonwealth Rule of Traffic Procedure 8(a) states, in pertinent part:

Rights of Defendant. Before accepting a plea of guilty to a traffic offense other than parking, standing, or non-moving, the court shall inform the defendant of his rights, which shall include, but not be limited to, the right:

(1) to engage counsel;

(2) to a reasonable continuance to engage counsel;

(3) to have process issued by the court, without expense to him, to compel the attendance of witnesses in his behalf;

(4) to testify or not to testify in his own behalf;

(5) to a trial by jury, if such is available; and

(6) to appeal.

Com. R. Traf. P. 8(a). There is no mention of any right to withdraw a plea if the court declines to accept it.

The Commonwealth has also promulgated Rules of Criminal Procedure. See generally, Com. R. Crim. P. Commonwealth Rule of Criminal Procedure 1 states, "these rules govern the procedure in all criminal proceedings in the Commonwealth Superior Court." Thus, for the requirements of Commonwealth Rule of Criminal Procedure 11(e)(4) to apply to Castro's situation, Castro must have been involved in a "criminal proceeding."

Section 2201(d) of Title 9 of the Commonwealth Code states that a violation of 9 CMC § 2201(a) "shall be punishable as a misdemeanor." As such, a violation of 9 CMC § 2201(a) is a crime, and not a mere infraction; the rules of criminal procedure apply to Castro's situation.

The rules of criminal procedure specifically state the duties of a judge when considering whether to accept a defendant's plea. Commonwealth Rule of Criminal Procedure 11 (e) states, in pertinent part:

(e) Plea Agreement Procedure.

(1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:

(A) move for dismissal of other charges; or

. . . .

(C) agree that a specific sentence is the appropriate disposition of the case.

. . . .

(4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court, or on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he/she persists in his/her guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

While two distinct rules of procedure apply to this situation, there is no conflict. The rules of traffic procedure are not, and were not intended to be, the sole authority in traffic-related cases. This is evidenced by Com. R. Traf. P. 2, which reads, in pertinent part: "other rules and laws which govern criminal procedure shall, insofar as they are applicable, implement the rules prescribed by these Rules." Thus, the rules of traffic procedure exist to supplement other applicable rules; when applying the applicable rules of criminal procedure to this case, the rules of traffic procedure must also be followed.

We have had occasion to address Rule 11(e). The issue in Commonwealth v. Ping, App. No. 97-053 (N.M.I. Sup. Ct. July 26, 1999) (Opinion) was whether the trial court erred when it imposed a sentence less severe than that contained in the parties' written plea agreement entered into pursuant to Rule 11(e)(1)(C). In Ping, the prosecution and defense had agreed to a plea of 20 years' imprisonment, all stayed except for 6 years, with credit for time served. The court, taking pity on the defendant's baby (defendant had given birth to a child in prison, and the child spent its first year in prison), reduced the sentence to ten years' imprisonment, all suspended except for the first three. The prosecution objected to this deviation from the plea bargain.

After exploring and discussing relevant federal case law, we reversed the trial court and stated, "thus, the plain language of Rule 11 makes it clear that when the court is presented with an (e)(1)(A) or (C) plea agreement, the court may only accept or reject the agreement in its entirety." Id. at P9. Furthermore, "the court's only options were to accept the plea agreement in its entirety or reject it and allow the parties an opportunity to renegotiate the sentence." Id. at P13.

and a downward departure from the plea bargain, these are distinctions without a difference. Rule 11 requires neither a written agreement nor that the court be specifically informed under which section the parties wish to proceed with the plea. The fact that the instant case contains an upward departure from the plea agreement is insignificant. In Ping we relied on United States v. Fernandez, which stated, "when a plea agreement is made pursuant to Fed. R. Crim. P. 11(e)(1)(C), the trial court may accept or reject the agreement, but absent exceptional circumstances, it may not accept the defendant's guilty plea and impose a sentence greater, or less severe, than agreed upon." Ping, App. No. 97-053 (Opinion at P10) ( citing United States v. Fernandez, 960 F.2d 771, 773 (9th Cir. 1992)) (citations and emphasis omitted). Nothing has convinced us that the logic of Fernandez is no longer sound.

It bears noting that an agreement regarding the disposition of a case reached between the parties is not sacrosanct. Our rules of criminal procedure were promulgated to "provide for the just determination of every criminal proceeding[]." Com. R. Crim. P. 2. The rules should be read "to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." Id. Contrary to Castro's assertion, the rules were not promulgated to "protect prosecutors' bargains."

The trial court retains authority and responsibility when presented with a sentencing agreement. The "court may accept or reject a guilty plea in the exercise of its sound discretion." United States v. Greener, 979 F.2d 517, 519 (7th Cir. 1992) (citation omitted). "Judicial power to reject plea bargains serves to modify and condition the absolute power of the prosecutor, consistent with the doctrine of separation of powers, by establishing a check on the abuse of prosecutorial (executive) prerogatives." Sandy v. Fifth Judicial Dist. Court, 113 Nev. 435, 935 P.2d 1148, 1150-51 (Nev. 1997). "Because plea agreements may not invade 'the traditionally judicial function of what penalty to impose,' judges are given power to reject plea bargains which invade this authority." Id. At 1151. Thus, a judge must reject any plea agreement he feels is unjust.

It is clear that the court below rejected the parties' plea agreement. In so doing, it was then bound by Commonwealth Rule of Criminal Procedure 11(e)(4), which reads, in pertinent part: "if the court rejects the plea agreement, the court shall, . . . afford the defendant the opportunity to then withdraw his plea." Com. R. Crim. P. 11(e)(4). The court did not inform Castro that it was not bound by the plea agreement. Further, it did not inform Castro that, if he persisted in his guilty plea, the disposition of his case might be less favorable than what he had bargained for. Each omission violates Com. R. Crim. P. 11(e)(4).

For the foregoing reasons, the Judgment and Commitment Order is vacated. We remand to the trial court for proceedings consistent with this Opinion.

SO ORDERED THIS 19TH DAY OF JULY, 2002.

/s/ Miguel S. Demapan

MIGUEL S. DEMAPAN, CHIEF JUSTICE

/s/ Alexandro C. Castro

ALEXANDRO C. CASTRO, ASSOCIATE JUSTICE

/s/ John A. Manglona

JOHN A. MANGLONA, ASSOCIATE JUSTICE