On June 4, 2002, the Superior Court sentenced him to five years imprisonment, all suspended except for the first six months, after he admitted the offense of attempted rape of his niece on March 24, 2001.
Prior to signing the plea agreement, Valdez, through attorney Reynaldo O. Yana, said he went to the Public Defender’s Office to meet his counsel, then-Assistant Public Defender Jeffrey Moots.
Valdez said he was accompanied by his wife.
“Mr. Moots explained all the terms of the plea agreement but failed to advise [Valdez] and his wife that pleading guilty would have the consequences of being deported from the CNMI and of being inadmissible to enter in, and removable from, the United States as an immigrant, which [Valdez] could be by virtue of his marriage to a U.S. citizen. Mr. Moots knew [Valdez] was married to… a Chamorro,” Yana said in his written motion.
A few months ago, Yana said the U.S. Department of Homeland Security through the Immigration and Customs Enforcement agency filed a removal case against his client for having a criminal conviction of attempted rape.
“The defendant is the only bread-earner in the family. His wife has hypertension,” Yana said.
The Valdez couple have been married for 20 years, Yana said.
On March 31, 2010, he added, the U.S. Supreme Court gave a criminal defendant the Sixth Amendment right to be informed whether his plea carries a risk of deportation. Failure to do so violates the criminal defendant’s Sixth Amendment right to effective representation by counsel.
In the instant case, Yana said Moots failed to inform or advised his client and his wife that a guilty plea could result to Valdez’s deportation.
“The U.S. Supreme Court does not require that there be a wrong advice about immigration matter. It suffices only that there was a failure to give the advice of risk of deportation. That is what happened to [Valdez] and his wife when they were consulted by their attorney, Jeffrey Moots, on the occasion of the defendant’s signing the plea agreement,” Yana said.
“They will suffer even more if [Valdez] is deported,” Yana said, adding that the husband and wife “need each other.”
In opposing Valdez’s motion, Assistant Attorney General Benjamin K. Petersburg said it is procedurally barred under the first prong of Rule 32 (d).
Valdez “alleges that to not allow him to withdraw his plea of guilty would manifest injustice. In support of this allegation, [Valdez] intertwines an apparent claim of ineffective assistance of counsel with claims of personal hardship resulting from possible deportation,” Petersburg stated in his motion.
Because the sentence has already been imposed and Valdez “has been unable to meet the manifest injustice standard, the defendant’s motion should be denied,” the prosecutor added.
Allowing Valdez to withdraw his guilty plea “would prejudice the commonwealth” nearly nine years after the fact, according to Petersburg.
“Allowing [Valdez] to back out of an agreement entered into nearly nine years ago would prejudice the commonwealth not only in this case, but in many other cases where an alien defendant, long ago convicted of a crime, now faces possible deportation as well as might seek to withdraw a guilty plea,” Petersburg argued.
Valdez received his part of the bargain, and served his sentence, the prosecutor said.
The CNMI government relied on Valdez’s guilty plea in not preparing the case for trial and moved to dismiss additional criminal charges, the prosecutor added.
Based on the amount of time that has passed, Petersburg said the “witness will likely have moved on and not be available to testify, memories will have faded, and the commonwealth’s ability to prove the charges will be severely diminished.”
