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CJ Kruse: Time to “tidy up” statute on probation revocations

TOLUPO HODGES JR
ausage@samoanews.com

Pago Pago, AMERICAN SAMOA —  Chief Justice Michael Kruse told the government attorney during Tolupo Hodges Jr. hearing last week that maybe this is the right time to ask the Fono to tidy up the statute concerning probation revocations.

Hodges Jr. was scheduled to appear in court last week for his Deposition Hearing, after the court was satisfied during a PX hearing last month that there was probable cause the defendant violated conditions of his probation.

When the case was called, attorneys for both sides were present, but Hodges was not.

Defense attorney Michael White informed the court that Hodges was admitted to the LBJ Hospital, which is why he was unable to attend his hearing. Prosecutor, Woodrow Pengelly echoed White’s statement.

Before ruling to continue the case to June 22, 2018, Kruse told both attorneys that he needs them to think about this issue.

He said he remembers counsel [Douglas] Fiaui’s (former Public Defender) submission regarding jurisdiction to revoke probation.

“Alright, there’s only a five-year window. The Fono amended certain parts of the statute but did not amend another part of the statute that can resolve the scheme. So I want submission on that,” Kruse told both attorneys.

“If the court determines that the probation is no longer revokable, make some submission on it whether probation is still in effect because you can’t authorize a 15-year condition of probation in a life sentence and say there is the 5-year window to revoke.”

Kruse said the court is inclined that probation is still in effect, and revoking may not be possible as an outcome because revocation may not be available. They both need to look into the full contempt power.

“Government, maybe it’s the right time to ask the Fono to tidy up the statute," Kruse said. He told both attorneys he wants a submission on this issue.

BACKGROUND

Hodges Jr. appeared in court last month for his preliminary examination on the allegation that he violated several conditions of a probation sentence that was ordered by the court in 2010.

It was revealed during the PX hearing from the testimony of a police officer that a search of Hodges’ vehicle on May 18, 2017 under a search warrant issued by the court,  netted drug paraphernalia such as empty plastic baggies (the type used to sell methamphetamine), and a pair of scissors (which is often used to burn the plastic baggies).

The search was then moved to the defendant’s home in Alofau and police officers found a glass pipe containing methamphetamine substance inside the pocket of a jacket, which was hanging inside one of the tents in front of his home, along with numerous drug paraphernalia, such as cut up straws and empty plastic baggies, in addition to live ammunition.

During cross examination, former Public Defender Fiaui told the court that his client was sentenced by the court in Sept. 2010 for unlawful possession of methamphetamine and was placed on probation for 5 years, but the government’s new allegation was filed in May 2017 — almost 3 years after his probation had expired.

TINO FA’AVI

A man accused of unlawful possession of drugs last year pled guilty in High Court last week during a Change of Plea hearing.

Tino Fa’avi, 29, was initially charged with unlawful possession of a controlled substance, to wit; methamphetamine, a felony punishable by not less than five nor more than ten years in jail, and a fine of not less than $5,000 nor more than $20,000, or both.

Under a plea agreement with the government, Fa’avi agreed to plead guilty to the amended charge of unlawful possession of a controlled substance, to wit; methamphetamine, a class D felony punishable by not more than five years in jail, and a fine of not more than $5,000, or both.

WIth his plea, Fa’avi admits that on Nov. 7, 2017, he unlawful possessed a glass pipe containing methamphetamine substance. He remains in custody, unable to post a$5,000 surety bond, and he is scheduled to appear in court on June 13th for sentencing.

FILIPO LEAUPEPE

A young man who was convicted of misdemeanor stealing has been ordered to serve 60 days at the Territorial Correctional Facility, as a condition of a 12-month probation sentence.

Filipo Leaupepe has been in custody since March. He was initially charged with public peace disturbance, stealing, and third degree assault.

But in a plea agreement with the government, Leaupepe pled guilty to stealing and the remaining charges were dismissed.

When he appeared before District Court Judge Fiti Sunia last week for sentencing, Leaupepe apologized for his actions and begged for a second chance to return home to care for his parents and serve his family and church.

He also apologized to the victim and asked for forgiveness. The defendant said he is truly remorseful for what he did and assured the judge that he will never again break any laws, adding that if given another chance, he will do everything he can to change his life.

Sunia asked the defendant what happened to the many chances the court gave him — as he has appeared 4 times for previous court cases. Leaupepe said he messed up and he was trying his best to abide by the law, but he failed.

Attorneys from both sides asked the court to sentence the defendant to 12 months probation, under the condition that he attend and complete alcohol counseling, and refrain from consuming alcohol.

Sunia told Leaupepe that the court gave him a lot of chances before, but it appears he’s not learning his lesson. A report from the Probation Office states that Leaupepe has completed the court ordered alcohol counseling.

“You’re not new in this court, this is the 5th time you've come before this Court. You have been convicted of public peace disturbance three times. You've also been convicted of driving under the influence (DUI) and now you’re convicted of stealing. Who knows, maybe your next criminal act will be a felony?” Sunia told Leaupepe

According to court records, Leaupepe was placed on 12-months probation in April 2017, after he was convicted of a DUI. A few months later, he was arrested and charged with misdemeanor stealing.

The judge then revoked Leaupepe’s 12-month probation sentence from the DUI matter, and ordered him to serve the suspended sentence of 60 days. He will be credited for the 51 days he's already spent in confinement.

For the stealing case, Leaupepe has been sentenced to 12 months at the TCF.

The sentence is suspended, and he is placed on probation for 12 months, under the condition that he serves 120 days behind bars.

Sunia ordered the defendant to serve only 60 days, and the remaining term is stayed, if he complies with all conditions of probation.

This sentence will run consecutively with the 9 days he needs to serve for probation revocation.

Leaupepe is also ordered to pay a $100 fine within 30 days, and he must be gainfully employed after he is released from prison next week.