SC vacates 5-year sentence on ex-cop in hit-and-run case

The CNMI Supreme Court yesterday vacated the five-year prison sentence that Superior Court Associate Judge Joseph N. Camacho imposed on Martin I. Kapileo, a terminated police officer convicted of five charges in connection with a vehicular hit-and-run case.

The high court remanded Kapileo’s case to Camacho for resentencing.

The high court ruled that although Camacho considered aggravating factors, such as Kapileo’s lack of remorse immediately following his culpable actions, the sentence lacks sufficient individualization because the judge failed to consider or discuss information contained within a pre-sentence investigation report, such as whether the defendant had a prior record.

Camacho also failed to acknowledge whether any mitigating factors influenced his decision, said the high court’s opinion penned by Associate Justice John A. Manglona and concurred by Chief Justice Alexandro C. Castro and Associate Justice Perry B. Inos.

In the footnote of their decision, the justices said not only did Camacho fail to acknowledge any mitigating factors that may have influenced his decision, but it seems unlikely that the judge actually considered such factors.

The justices said it was brought to Camacho’s attention that Kapileo’s family faced serious financial hardship as a result of his convictions.

Despite this, the justices said, Camacho imposed the maximum fine for the violations and moreover, imposed a non-mandatory fine for another violation.

“Because a reasonable person would not attempt to sentence a defendant to the maximum sentence without the requisite information for individualizing a sentence, we conclude that the trial court abused its discretion in its sentencing process,” the justices said.

The justices, however, denied Kapileo’s request that resentencing should be handled by a judge other than Camacho.

Kapileo, through counsel, argued that his case should be reassigned to a different judge for resentencing to avoid the suspicion of partiality, preserve the appearance of justice, and because reassignment would not result in a duplication of effort.

But the justices ruled that although Camacho failed to properly sentence Kapileo, nothing in the record could lead an objective observer to reasonably question the judge’s impartiality in resentencing.

The justices said reassignment would lead to substantial duplication of effort because it would require the judge to review the voluminous records.

“Thus, the gains in preserving the appearance of justice are outweighed by the waste and duplication of effort that reassignment would entail,” the justices said.

On July 13, 2013, Camacho slapped Kapileo with the maximum five-year jail term and a $1,800 fine.

“In its most basic form, integrity is knowing the difference between right and wrong. Character is doing the right thing even when no one is watching. Mr. Kapileo, it is obvious to this court that you possess none of these qualities,” Camacho said.

Whatever the cause of an accident, Camacho said, the punishment of leaving an accident scene must be greater to deter Kapileo and other drivers from leaving an accident scene. Attorney Brien Sers Nicholas, counsel for Kapileo, recommended a sentence of 90 days in prison plus fine and restitution. He said his client made a terrible and bad decision and that he should know better because he was then a police officer.

Nicholas said Kapileo expressed his sincere apology to the woman who was struck.

Nicholas said Kapileo has five young children and since he was terminated from DPS, his wife became the sole supporter to the family.

Then assistant attorney general Brian Flaherty said Kapileo, as a then police officer, was entrusted by the community to protect and uphold the law.

Flaherty said after hitting the victim, a good Samaritan, a citizen who is not charged with upholding the law, made a 911 call and followed Kapileo.

Kapileo appealed, asking the high court to reverse the sentence. Then-assistant public defender Eden Schwartz and assistant public defender Matthew Meyer served as counsel for the defendant during the appeal hearing.

Flaherty and assistant attorney general Emily Cohen appeared as counsel for the government.

At a bench trial in June 2013, Camacho found Kapileo guilty of the offenses of restriction upon use of government vehicles, drinking alcohol while operating a vehicle, possession of an open container while operating a vehicle, failure to exercise due care, and failure to stop at the scene of accident.

The judge, however, found him not guilty of driving on the right side of the highway and driving under the influence of alcohol. The victim, Mayona S. Bergosa, sustained head injuries in the back of her head after the truck’s right side mirror hit her as she was walking on the grassy side of the road on Chalan Monsignor Guerrero in Dandan in the afternoon of Oct. 27, 2012.