REPRESENTED by attorney Cong Nie, Anthony Peter Rios, 49, has appealed to the CNMI Supreme Court the denial of his request to reduce his 45-year sentence.
Superior Court Presiding Judge Roberto C. Naraja on Aug. 8 denied Rios’ motion to reduce his sentence.
Background
In 1997, Rios pleaded guilty to three counts of sexual abuse of a child, two counts of oral copulation, and one count of rape.
He was sentenced to five years’ imprisonment for one count of sexual abuse of a child and 40 years for the remaining five counts, but with 40 years suspended.
In 2003, Rios was released from prison. He reoffended within five months of release and pleaded guilty to sexual assault in the second degree. He was sentenced to 10 years’ imprisonment, all but five years suspended.
After serving five years, Rios was released from prison and placed on probation.
In 2012, while still on probation for his 1997 and 2003 cases, he was arrested and charged with two counts of sexual assault in the second degree, two counts of assault and battery, and two counts of disturbing the peace for inappropriately touching the victim without her consent.
Because of these new criminal charges, the government moved to revoke the defendant’s probation.
At a revocation hearing, his 2012 violations were proven by a preponderance of the evidence.
Rios was sentenced to the maximum 40-year sentence in the 1997 case and to the maximum five-year sentence in the 2003 case for a total of 45 years without the possibility of parole or early release.
While serving his probation revocation sentence and awaiting trial for his 2012 arrest, he was once again charged with one count of disturbing the peace for an unrelated incident and sentenced to six months’ imprisonment, to run concurrently with his 45-year sentence.
Rios’ trial for his 2012 arrest commenced in 2013, and he was convicted of one count of assault and battery and one count of disturbing the peace.
He appealed his convictions, sentences, and probation revocation to the CNMI Supreme Court.
On Dec. 11, 2015, the high court affirmed his convictions, sentences, and probation revocation.
He petitioned for a rehearing, which the high court denied on Jan. 11, 2018.
On Jan. 25, 2018, Rios, representing himself, filed a handwritten “Motion for Reduction of Sentence.”
The motion was not acted on. But on Aug, 17, 2022, Rios, through his court-appointed counsel, Cong Nie, renewed the motion and filed a memorandum of law in support of motion to reduce sentence. The government filed its opposition.
Untimely
In his ruling, Judge Naraja said the court does not have jurisdiction to consider the defendant’s untimely motion.
“Section 4114 of the Commonwealth Criminal Code and NMI Rule of Criminal Procedure 35 place strict time limits upon a court’s discretion to reduce a sentence,” he said.
Under § 4114 and Rule 35(b), a court, of its own accord or pursuant to a motion to reduce sentence, may reduce a sentence within 120 days after the sentence is imposed.
According to the judge, “neither party has identified the date on which the oral pronouncement revoking defendant’s probation was made, but the court’s order memorializing the sentence was issued on Sept. 24, 2012. Defendant’s motion, filed Jan. 25, 2018, was brought well past the 120-day deadline.”
As for Rios’ argument that his probation revocation sentence was illegal because, due to an alleged miscalculation, it erroneously increased his sentence by five years and therefore violated double jeopardy, Judge Naraja said, “Defendant’s argument fails because defendant has already raised this issue before the NMI Supreme Court, which definitively ruled against defendant when it found that defendant’s probation revocation sentence was accurately calculated.”
Judge Naraja said he is bound to follow the mandate of the CNMI Supreme Court.
“Accordingly, defendant’s attempt to rehash this argument is unavailing, and the motion is denied on these grounds,” he added.
