v.
JOE IOSEFO FELISE,
Defendant.
Trial Division
CR No. 52-95
July 14, 1997
[1]
Where prosecutor and defendant differed over whether waiver of preliminary hearing
alone or whether waiver and plea to third case were consideration for dismissal
of first two cases, dismissal of two cases in exchange for the waiver was
unlikely and therefore agreement properly construed in government’s
favor.
[2]
Despite differing interpretations of agreement, neither interpretation
specifically prohibited prosecutor from presenting facts of two alleged escapes
as basis for probation revocation in other, unrelated case. Therefore, prosecutor did not breach
agreement with defendant. [1ASR3d172]
ORDER DENYING MOTION TO
DISMISS
PROBATION REVOCATION
PROCEEDINGS
Before
Counsel:
For Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant, David P. Vargas,
Assistant Public Defender
Defendant Joe Iosefo Felise ("Felise")
moves this court to dismiss the proceedings initiated by the American Samoa
Government ("ASG") to revoke Felise's probation. The court heard the motion on March 27,
1997. Both counsel and Felise were
present.
ASG's motion to revoke probation is premised upon
two alleged escapes from confinement during the probation term. Felise's motion is based upon a purported
plea agreement which, Felise argues, resulted in prejudicial dismissals in the
District Court of ASG's prosecutions of the two alleged escapes. Felise further argues that the plea
agreement and prejudicial dismissal prohibits ASG from using the two alleged
escapes as grounds for revocation of probation.
On October 8, 1996, ASG initiated Felise's
prosecution in the District Court, DCCR No. 127-96, for a third alleged
escape. On October 18, 1996, Felise
waived the preliminary examination.
His counsel stated, and ASG's counsel did not state otherwise, that
Felise agreed to the waiver and ASG agreed not to prosecute Felise for the two
alleged escapes. This prosecution
then proceeded in this court as CR No. 74-96, and on October 22, 1996, a jury
trial was scheduled on Felise's not guilty plea.
On November 22, 1996, ASG commenced Felise's
prosecution in the District Court, DCCR No. 147-96, for the two alleged
escapes. However, on December 2,
1996, the District Court dismissed this complaint on ASG's motion. ASG's counsel prepared a plea agreement
for filing in CR No. 74-96, but Felise and his counsel did not sign it. Then, on January 23, 1997, after Felise
reiterated his jury trial right, ASG refiled the charges against Felise for the
two alleged escapes, DCCR No. 8-97.
However, the District Court dismissed this complaint on January 24,
1997, stating that the initial dismissal of the charges in DCCR No. 147-96, on
ASG's motion, was with prejudice.
ASG first argues that the proposed plea agreement
in CR No. 74-96 was never accepted by the Felise because both Felise and his
counsel did not sign the written agreement, and hence, ASG cannot be precluded
from [1ASR3d173] using the two alleged escapes as the basis of any
prosecutorial purposes. We believe,
however, that Felise's waiver of a preliminary examination in the related
District Court case, DCCR No. 127-96, is substantial evidence that the plea
agreement did indeed exist.
In the alternative, ASG argues that, as set forth
in the proposed plea agreement, ASG agreed not to prosecute Felise for the two
alleged escapes in return for Felise's waiver of his right to a preliminary
examination in DCCR No. 127-96 and Felise's plea of guilty to the third alleged
escape charged in that case and in CR No. 74-96. ASG's counsel declares that this was his
understanding of the agreement at the time of Felise's waiver of the
preliminary examination. ASG
asserts that Felise breached that agreement by failing to plead guilty to the
third alleged escape charge.
Felise argues that in the plea agreement, he only
agreed to waive his right to preliminary examination and ASG agreed not to
prosecute the two alleged escapes.
Felise states that the plea agreement never contemplated a guilty plea
on the third alleged escape charge.
[1-2]
We find that ASG's interpretation accurately represents the agreement between
ASG and Felise.[1] Moreover, ASG specifically reserved the
right to present the facts of the two alleged escapes when recommending a
sentence for the third alleged escape.
Though the plea agreement related to an entirely separate case, nothing
in the agreement prevents the ASG from using the facts of the two alleged
escapes as the basis to revoke probation in this case. See
ASG has not breached the plea agreement by
relying upon the facts of the two alleged escapes in the current motion to
revoke Felise's probation. The District
Court's dismissals of the prosecutions of the two alleged escapes does not
preclude ASG from using those incidents as grounds for probation
revocation. Thus, Felise's motion
to dismiss is denied. [1ASR3d174]
The probable cause hearing in the probation
revocation proceedings in this action is scheduled before this court on May 30,
1997, at 9:00 a.m.
It is so Ordered.
**********
[1] We
find Felise's arguments to the contrary unpersuasive. The District Court apparently believed
Felise's version of the agreement in dismissing ASG's prosecutions of the two
alleged escapes in DCCR Nos. 127-96 and 8-97. This court, however, is not bound by the
District Court's determination of this issue, and we disagree with the District
Court's analysis. We do not believe
that ASG would agree to dismiss two Class D felonies for a waiver of a
preliminary examination.