Counsel’s misreading of rules costs man’s right to appeal conviction

A defense attorney’s misreading of the plain language of the NMI Supreme Court Rules has resulted in a dive master losing his right to appeal his conviction for killing a protected spotted eagle ray.

Defendant Hu Jieng Fang will have to serve the full maximum sentence of six months in prison that Superior Court Associate Judge Joseph N. Camacho imposed against him last June 18.

Camacho rejected yesterday assistant public defender Matthew Meyer’s request to be given more time to file an appeal in the case against his client, Fang.

The judge determined that there is no good cause for missing the deadline to file a notice of appeal because this situation does not involve any elements outside Meyer’s control. He also did not found excusable neglect.

Following the ruling, Camacho found moot Fang’s two other motions—for a stay of execution of sentence pending appeal and for an immediate stay of sentence pending appeal.

Camacho heard the motions on Wednesday.

In his order yesterday, Camacho said a defendant must generally file within 30 days of judgment, or if the government appeals first, within 30 days of the government’s appeal.

However, Camacho said, if the defendant files certain motions for judgment of conviction, then the defendant has 30 days from the entry of the order disposing of the motion to file an appeal.

The judge said the court may extend the time to file a notice of appeal “upon a finding of excusable neglect or good cause.”

Camacho said he is not convinced that good cause for missing a deadline exists any time the requesting party’s attorney makes a mistake due to no fault of the party.

Camacho said the mistake in this case was not one of plausible misconstruction, but went against the plain language of the rules.

Reviewing the circumstances of the case, the judge said he finds that Meyer acted in good faith.

Camacho said there is no indication that the delay here would prejudice the government, and the request for extension was filed within 30 days of the expiration of the first deadline for filing the notice of appeal.

“However, the court finds that these factors are outweighed by the other relevant circumstances: there was no reason not to file the notice of appeal at the same time as, shortly after, the original motion was filed; and counsel’s reason for not filing was a lack of familiarity with the established rules,” he said.

Camacho said he is concerned that granting an extension in a case like this will open the door to an extension in practically every case.

At the June 18 sentencing, Camacho ordered the 27-year-old Fang to serve the six-month prison sentence day for day without the possibility of parole.

Camacho found Fang guilty of one count of ray protection at a bench trial last June 8. Witnesses testified that Fang shot a three-foot wide spotted eagle ray with a spear gun on Jan. 15, 2014, and took the carcass aboard a boat.