The PDO and the AGO are both under the executive branch of the government and their heads are appointed by the governor with the advice and consent of the Senate.
According to his May 12, 2006 executive order that commuted Aguon’s sentence to “time served,” Fitial said the defendant “suffers from a medical condition requiring off-island medical treatment as soon as possible.”
The facts of Aguon’s case “represent extraordinary circumstances not contemplated by the original sentencing order by which he was convicted,” the governor said.
“After careful investigation and examination of all the facts in this case,” the governor concluded that Aguon “poses no danger to society in his current medical condition and that this commutation should be granted for compassionate and humanitarian reasons and in the public interest.”
Last week, Superior Court Associate Judge Ramona V. Manglona placed under advisement a petition to revoke Aguon’s probation/suspended sentence.
Manglona heard the oral arguments between Chief Public Defender Adam Hardwicke, representing the 30-year-old Aguon, and Assistant Attorney General Russel Lorfing, the prosecutor.
Aguon’s jail sentence was supposed to end on Feb. 3, 2007.
After his arrest on charges of sexual assault of two minors, Aguon was sentenced last month to five years imprisonment, all suspended except for two years which “must be served in entirety without the possibility of parole,” with credit for time served since March 5, 2010.
The remaining charge of sexual assault in the first degree has yet to be adjudicated.
After Aguon’s arrest last March, the AGO filed a petition to revoke his probation/suspended sentence.
The Adult Probation Office said Aguon failed to pay $6,762 in restitution to his victim within 18 months of his release from prison.
Aguon also has not paid $70 of his $100 court assessment fee.
Moreover, he failed to obey all CNMI laws when he was arrested on March 5, 2010 on charges of sexual assault of two female minors.
The revocation of his probation could pave the way for Aguon to serve an additional five years in prison, Lorfing said in an email to this reporter.
Lorfing noted that “commutations are rarely, if ever, appropriate subjects for judicial review.”
“The Supreme Court of the United States has been clear on this issue. Commutations are a constitutional power vested in the governor. The court should give great deference to the intent of the governor and his intent was to allow [Aguon] to seek emergency medical care while holding him accountable for his egregious actions,” Lorfing said.
Article III, Section 9 of the CNMI Constitution gives the governor the power to commute sentences, he added.
“A commutation is the ability of the governor to submit a lighter penalty than that imposed by the court,” Lorfing said.
Hardwicke, in an e-mail to the Variety, said: “The legal affect of that commutation is the issue before the court.”
“I argued that the commutation, as drafted, commuted both sentences memorialized in the commutation to ‘time served,’ and therefore, there is no probation available to revoke. The government is arguing that it only commuted one, not both, of the sentences listed in the commutation and that therefore, probation is available to revoke,” Hardwicke said.
“I cannot make comments on overall policy and I think you should wait until [Judge] Manglona makes her ruling to see what her opinion of this commutation is. A victim has a constitutional and statutory right to restitution. The governor has the constitutional and statutory right to grant clemency. How those two constitutional rights are to be balanced and prioritized are an issue for the court to address in its ruling. I have no knowledge of whether or not Mr. Aguon in fact received off-island medical treatment,” Hardwicke said.
“That is [Hardwicke’s] interpretation of the commutation,” Lorfing said. “ It is the position of the commonwealth that the governor only commuted the second case (for escape) and that it was never the intention of the governor to commute the voluntary manslaughter case.”
The prosecutor added, “The governor made that clear in the commutation and in these proceedings. And I believe I made that clear to the court” during the oral arguments last week.
Accordingly, Lorfing said, “We believe that [Aguon] is still on probation, that he is still required to abide by the laws of the CNMI, to pay court costs, probation fees, and restitution to the victim’s family. Because he has failed to do any of these things, the Office of the Attorney General is seeking to revoke his probation.”
For his earlier cases, Aguon was sentenced in 2000 to five years imprisonment, all suspended except for the first four months, for burglary.
In 2001, Aguon was sentenced to 10 years imprisonment, five years suspended, for voluntary manslaughter.
He got an additional one year jail term after he pleaded guilty in 2003 to escape.
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