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Court denies motion to vacate preliminary hearing

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(Office of Associate Judge Teresa Kim-Tenorio) — On Jan. 6, 2019, the CNMI Superior Court issued an order denying the Commonwealth’s request to vacate defendant Theodore O. Pehnos Jr.’s right to a preliminary hearing.

Under CNMI law, a defendant who has been substantially deprived of his/her liberty has a right to a preliminary hearing before the court. This right, however, may be waived, only by the defendant.

On Dec. 4, 2019, the defendant was charged with two counts of child abuse. On Dec. 12, 2019, he was released on bail with conditions of the bail requiring him to remain in the custody of a third party, return to court, obey all laws, keep appointments with his attorney, not apply for a passport, stay away from seaports and airports, and not consume or possess alcoholic beverages. Additionally, he was subject to a home study, and home checks conducted by the Division of Youth Services, to ensure his compliance with his bail conditions.

This matter was set for and heard on Dec. 7, 2019 where the Commonwealth moved to vacate the defendant’s right to a preliminary hearing. The Commonwealth argued that because the defendant was no longer imprisoned, he did not face substantial deprivation of his liberty due to his bail conditions. The defendant, however, opposed, arguing that the conditions of his bail substantially deprived him of his liberty therefore, entitling to a preliminary hearing under the law.

The court found that while the individual conditions of the defendant’s bail may not substantially deprive him of his liberty, when taken together, they did. Furthermore, the court noted that because a defendant has a right to a preliminary hearing unless waived, the responsibility rests with the Commonwealth to show why a defendant should not be allowed to exercise this right, and in this particular case, the Commonwealth failed to meet this burden.

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