By Gina Tabonares
Variety News Staff

FORMER Guam Police Department member Jason Ortiola brought his case to the Ninth Circuit Court of Appeals after the District Court of Guam did not grant him a certificate of “appealability” to challenge the court decision denying him to set aside his sentence.
The District Court of Guam has been notified of the appeal which was filed by Ortiola’s lawyer, Assistant Federal Public Defender Richard P. Arens, on May 4, two days after the court denied his motion to secure a certificate of “appealability.”
Ortiola complained that he was not given proper legal assistance, thereby violating his constitutional rights.
He filed a petition to set aside his Sept. 20, 2006 sentence wherein he was ordered to remain in jail for six years. But after an evidentiary hearing, the court ruled on April 18 that Ortiola was properly assisted by his former attorney, Howard Trapp, and denied his motion to set aside his sentence.
His lawyer subsequently asked the court to issue a certificate of appeal reiterating that the former GPD member had made a substantial showing of the denial of his constitutional right.
Arens stated that his client was denied his right to effective assistance of counsel as a result of counsel’s failure to ascertain whether petitioner sought to appeal the sentence imposed.
In an order last week, District Court Chief Judge Frances Tydingco-Gatewood denied Ortiola’s plan to file an appeal of the March 17 court order, saying that a certificate of appealability may be issued from a final order in a proceeding if the applicant has made a substantial showing of the denial of a constitutional right.
“Ortiola has failed to demonstrate that the issues surrounding this court’s denial of his petition are debatable among jurists of reason.”
The court ordered Ortiola to serve a total of six years of incarceration to be followed by a total of three years of supervised release.
In a motion filed on Dec. 8, 2006, Ortiola claimed that the judgment against him should be vacated because he was denied a counsel’s effective assistance.
Ortiola told the court that his counsel did not give him feedback or show any more interest in his case despite the fact that the district court judge gave him 10 days to appeal the sentence.
The court finds that Trapp’s actions in not filing a notice of appeal were professionally reasonable under the totality of the circumstances.
Judge Tydingco-Gatewood said Ortiola was a law enforcement officer and had more of an understanding of the legal and judicial system than the typical defendant.
Because the former police officer failed to demonstrate that there was reasonable probability that his former counsel failed to consult with him about an appeal, the court ordered the U.S. Marshal to transport Ortiola to a designated prison facility to serve the remainder of his sentence.
Ortiola had been assigned to the Tamuning-Tumon precinct and was caught selling a half gram of “ice” for $300 while on duty, while wearing his uniform, and while carrying a GPD-issued .9mm pistol.
He was sentenced on Sept. 20, 2006 after entering a guilty plea to distribution of methamphetamine hydrochloride while on duty and carrying a firearm during the drug trafficking. He was dismissed from service after his arrest on June 8, 2005.