Prosecutor blasts
judge’s decision

By Debra Barayuga
Star-Bulletin

A Circuit Court judge's decision to impose only a 30-day jail sentence on a man who blew his second chance at probation shows the need to take away judicial discretion and impose mandatory sentencing, says the city's top prosecutor.

"It's a clear display of excessive leniency," said Prosecutor Peter Carlisle, referring to Judge Sandra A. Simms' latest decision.

Yesterday, Simms resentenced Rodney Balbirona, 20, convicted of second-degree theft, to 30 days in jail before he is released on five years probation for violating terms of his probation. Prosecutors have asked for a five-year jail sentence at least three times.

Mandatory sentences strip judges of discretion, Carlisle said. But while he doesn't feel jail is appropriate in every case, "by the same token where jail should be imposed, I'm startled by the fact that it's not done. In this particular case, it doesn't seem to be a particularly hard call."

The jury last year found Balbirona was not responsible for the beating and robbery of Chicago policeman James Boreczky in April 1996. Instead, they found him guilty of second-degree theft for taking Boreczky's suitcase after the officer was punched by another man, Darrell Ortiz. Ortiz received a maximum 10 years for second-degree robbery.

Simms' latest decision has triggered outcry from the public and prosecutors. Phones at the prosecutor's office have been ringing off the hook, Carlisle said.

Simms provoked outrage in February 1997 when she sentenced Balbirona to five years probation rather than the maximum five years imprisonment.

"There have been other instances where we strongly disagree with her treatment of criminal defendants convicted of crimes," Carlisle said.

Among them:

Delaying a prison sentence by 31/2 months for Jonnaven Monalim so he could spend time with his newborn son. Monalim was convicted of assault last July for punching and breaking the jaw of a 17-year-old boy while on probation for felony convictions.

Cutting a 10-year sentence in half for habitual offender Robert Valan Samuelson, convicted of drunken driving last year, saying it was his last chance to prove he won't drink and drive again. It was Samuelson's third drunken-driving conviction within a year.

"From a prosecutorial perspective, there have been too many chances given to defendants at the risk and safety of the public and gives the appearance of a toothless judicial system as far as this judge is concerned," Carlisle said.

Simms did not return calls for comment.

The public has no recourse for removing a judge who makes poor decisions other than making views known in writing to the Judicial Selection Commission when the judge comes up for retention, Carlisle said. Circuit Court judges serve for a term of 10 years and they can only be removed for misconduct or disability, he said.

Deputy Prosecutor Maurice Arrisgado, who expressed disappointment in Simms' decision, said Simms "calls her shots the way she sees it."

"I believe she has reason she does what she does. We respectfully disagree."

Balbirona was arrested last July for violating terms of his probation. When he appeared for a hearing in September, Simms revoked his probation but gave him another four months -- until yesterday -- to comply rather than immediately sending him to jail.

According to Arrisgado, since September, Balbirona has met with his probation officer only three times and stopped reporting as of Nov. 17, hadn't completed the 200 hours of community service and did not go through with substance abuse treatment.

At yesterday's hearing, Simms said she was "utterly amazed" at the range of misinformation the public has about the case as evident by the kinds of calls she has received.

Simms said she based her sentence on his violations detailed in a report by his probation officer and not what others thought about him. She said the jury did not find him guilty of Boreczky's beating or of violence. Simms said Balbirona had no prior record and had no school or Family Court records indicating a history of violence.

Balbirona's attorney, Keith Shigetomi, said Simms' decision was appropriate. "I think it incorporated punishment as well as recognized he does have the ability to be an upstanding, law-abiding citizen," Shigetomi said.

Sen. Matt Matsunaga, co-chairman of the Judiciary committee said Simms' latest decision seemed to minimize the severity and the impact the crime has had on the victim. But her actions are a matter of the Judicial Selection Commission, not the Legislature, he said. Judges should not be afraid to rule and just because a judge's ruling is not popular should not be reason for a judge not to keep his or her job, he said.