Aldan, 53, has been summoned by Associate Judge David Wiseman to appear for a hearing on Wednesday morning.
Aldan is serving his six-month sentence without the possibility of parole since December last year at the Department of Corrections facility.
Attorney General Edward T. Buckingham also filed a written motion, saying that the government wants to retain, not vacate, Aldan’s conviction.
Then-Assistant Attorney General George Hasselback, who resigned last month, filed a motion last February to set aside the plea agreement and initiate criminal proceedings against Aldan who failed to surrender the firearm, “a silver handgun,” as part of the plea agreement.
Buckingham said Hasselback’s actions were ultra vires — a Latin phrase for “beyond the powers.”
Buckingham said Hasselback filed the motion without review or approval by Chief Prosecutor Rosemond B. Santos, and possibly the AG himself.
The AG noted Hasselback’s “incapacity and/or refusal to appropriately convey the basis for the directions of Buckingham or Santos to the court to withdraw the former prosecutor’s motion.”
The AG said the public has been “subjected to unwarranted and unfounded concern of favoritism and political interference.”
Aldan is the husband of the former corrections commissioner who is now the governor’s special assistant for political affairs.
“Put simply, it is AAG Hasselback, not the Office of the Attorney General, seeking to wipe out a criminal conviction,” Buckingham told the court.
He said it is the intent of the AG’s office to appoint a special prosecutor as earlier requested by Hasselback.
“[The Aldan] case will be managed and prosecuted without favor or prejudice in the interests of justice and endeavoring to enforce all provisions of the existing plea agreement —including removal of the weapon from the community,” Buckingham said.
He claims that “the court’s capacity to remove the weapon in question is lost, perhaps forever,” if Hasselback’s motion to set aside the plea agreement and reinstitute criminal charges is granted.
If the motion is granted by the court, the AG added, Aldan will again be presumed innocent.
Buckingham said Aldan will have no duty to cooperate or otherwise be held accountable to the provisions of the existing plea agreement since it will be void.
Buckingham said the government “will have the burden to prove a brand new case [without a weapon] and will be responsible to prove the guilt of [Aldan] by a standard of proof of beyond a reasonable ground.”
Should the court grants Hasselback’s motion, Buckingham said Aldan’s specific penalties will be lost.
Buckingham said Aldan will not be responsible to surrender the firearm used in the crime.
Aldan, moreover, will be removed from the custody of the Department of Corrections once the sentence is vacated, Buckingham said.
In addition, the AG said, Aldan will not be subject to three years of supervised release; will not be obligated to pay a $500 fine; will not have to perform 100 hours of community service; and will not be responsible to pay court costs and probation fees.
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