Judge refuses to set aside woman’s ‘ice’ conviction

The Superior Court has denied a motion to withdraw a guilty plea and set aside a subsequent conviction of a woman who, along with her husband, was arrested in 2002 for reportedly trafficking 370 grams of methamphetamine or “ice.”

Associate Judge David A. Wiseman, in the same order, also dismissed a petition for writ of error coram nobis filed by Melody Shimabukuro alias Esterlita Shimabukuro.

Writ of error coram nobis (before us) refers to a petition “to bring the attention of the court to, and obtain relief from errors of fact, such as…a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake.”

“The existence of plea agreements often leads to disparity in outcomes of similarly situated cases; however, that alone cannot support a finding of manifest injustice, and a plea does not guarantee one person a better outcome than another who selects to be tried by jury,” Wiseman pointed out.

The judge said Mrs. Shimabukuro’s guilty plea was voluntarily made, and she was awarded the benefit of her bargain.

Wiseman said that, although he finds it questionable that the Attorney General’s Office never renewed its criminal pursuit of Mrs. Shimabukuro’s husband, Wayne Shimabukuro, “it refuses to support a finding of manifest injustice on such a slender reed.”

“This court recognizes the obvious variance in the husband’s result as compared to the petitioner [Mrs. Shimabukuro],” Wiseman said.

He said Mr. Shimabukuro remains free and without conviction on his record; in contrast, the petitioner has been convicted of one count of illegal possession of a controlled substance and has been subjected to U.S. removal proceedings.

However, the judge said, each of the acts or omissions complained of, although perhaps contributing to Mrs. Shimabukuro’s current situation, “did not amount to manifest injustice.”

In a telephone interview with the Saipan Tribune, attorney Robert T. Torres, counsel for Mrs. Shimabukuro in the petition, said he finds the decision disappointing.

Torres said his client would suffer removal from the United States and from her two children by virtue of not having the benefit of not joining in her husband’s motion to suppress evidence.

“While we understand the court’s decision, I cannot help but register my disappointment over the consequences to Mrs. Shimabukuro,” said Torres, a former Attorney General.

He said they are going to review the matter for appeal.

“It is simply not fair, what happened to her,” Torres stressed.

Court records show that Mrs. Shimabukuro is a citizen of the Philippines and was a lawful permanent resident of the United States.

On Aug. 15, 2002, the couple was arrested following the execution of a search warrant at their residence, which yielded certain amounts of “ice.”

Mrs. Shimabukuro was charged with trafficking of a controlled substance, illegal possession of a controlled substance, and conspiracy.

In December 2003, Mr. Shimabukuro filed a motion to suppress a tape recording of a telephone conversation that occurred on Aug. 15, 2002.

Mrs. Shimabukuro claimed that her counsel at that time, Vicente Salas, failed to advise her of her husband’s motion to suppress or her ability to join in the motion.

However, Mr. Salas claimed that he indeed informed her of the suppression motion and “discussed the ramifications of such motion, if granted, at a meeting with her.”

Mrs. Shimabukuro did not join in her husband’s motion to suppress, but rather entered into a plea agreement with the Commonwealth on Nov. 28, 2003.

The plea agreement provided that she would plead guilty to illegal possession of a controlled substance and would be sentenced to 18 months in prison, with credit for time served.

The plea agreement document contained language representing that the defendant had read and fully understood the nature, contents, and legal consequences of such an agreement.

While the plea agreement advised of possible consequences under the Commonwealth Entry and Deportation Act, it was silent as to the consequences such as a conviction may have on her U.S. immigration status under the Immigration and Nationality Act.

Under U.S. immigration law, a legal permanent resident who is convicted of a violation of any law relating to a controlled substance is subject to removal proceedings by the United States.

Thus, by pleading guilty to one count of illegal possession of a controlled substance under CNMI law, Mrs. Shimabukuro, as a legal permanent resident, would become subject to removal proceedings under the Illegal Immigration Reform and Immigrant Responsibility Act.

During the Dec. 9, 2003 change of plea hearing, she pleaded guilty to one count of illegal possession of a controlled substance.

Neither the court nor Salas advised the defendant of the federal immigration consequences of a guilty plea.

The following day, the court issued an order granting Mr. Shimabukuro’s motion to suppress the warrantless tape-recorded telephone conversation between a government informant and the defendants.

The Commonwealth later moved to dismiss its case against Mr. Shimabukuro without prejudice. His wife was sentenced in a later hearing to 18 months and was credited with time served.

The government failed to renew its prosecution of Mr. Shimabukuro despite its representations to the court and to his wife that it would.

On July 29, 2004, after Mrs. Shimabukuro accompanied her husband to Hawaii via Guam, Immigration and Naturalization Service issued her a notice to appear, stating that she was subject to removal proceedings because she had been convicted of or admitted to a violation of law related to a controlled substance.

On March 16, 2005, the Immigration judge ruled that she failed to show good cause for relief from removal and ordered her removed from the United States to the Philippines.

Mrs. Shimabukuro, through counsel Torres, filed the petition.

The Commonwealth has opposed her petition, citing its contention that coram nobis relief is an exclusively federal remedy, and thus inapplicable to the CNMI.

In his order, Wiseman said that, contrary to the Commonwealth’s assertions, the writ of error coram nobis is not an exclusively federal remedy, and although it is federally codified under the All Writs Act, its application to non-federal jurisdictions was not abrogated unless abolished by statute.

Wiseman said that, although the CNMI has expressly abolished the writ of error coram nobis for the purpose of civil cases under Commonwealth Rules of Civil Procedure, no CNMI statute or rule has abrogated the common law writ’s application to criminal cases.

As a preliminary matter, a petitioner’s request for writ of error coram nobis is not automatically legally defective under CNMI law, the judge said.

Wiseman said Mrs. Shimabukuro only cited errors on the part of the judge presiding over the plea hearing in not advising her of the potential federal immigration consequences related to a guilty plea to felony possession and her lawyer for not advising her of the same and not joining in her husband’s motion to suppress.

But Wiseman said each of the errors alleged involve legal questions, regarding what is required of a judge accepting a plea and the requirements of an attorney representing a client entering into a plea agreement with potential immigration consequences, and consequently “are inappropriate grounds for the narrowly applied common law writ of error coram nobis.”

“Because a judge is not required to advise a defendant of the collateral federal immigration consequences flowing from her guilty plea and conviction, the court which accepted petitioner’s guilty plea did not cause petitioner to suffer manifest injustice, and consequently such omission is insufficient to support petitioner’s motion,” he said.