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Attorney for man serving 15 years for having sex with his stepdaughter wants the sentence vacated

Defense claims the maximum sentence was not part of the plea agreement

Pago Pago, AMERICAN SAMOA — The 50-year-old stepfather who is serving a straight 15-year sentence at the Territorial Correctional Facility (TCF) for having a sexual relationship with his 15-year-old stepdaughter, is asking the High Court to vacate his sentence.

Wayne Otto Smith appeared in court last Friday for a motion to Vacate Sentencing. He was represented by private attorney Thomas Jones of RDA Law Firm, while prosecuting the case was Assistant Attorney General Christy Dunn.

Chief Justice Michael Kruse, along with Associate Judges Fa’amausili Pomele and Muasau T. Tofili, who handed down Smith’s sentence 5 months ago, was the same panel of judges that heard the defendant’s motion last week.

After hearing statements from both sides, Kruse continued the hearing for another date. He said he wanted a briefing on the issue before the court makes its ruling on the defense’s motion.

When the case was called, defense counsel Jones told the court that as they looked over the copy of their plea agreement with the government, and also the sentence that was delivered by the court, they felt that “the government honestly made a mistake by asking the court for the maximum sentence.”

He pointed out that his client received a straight sentence.

Jones explained that in their plea agreement, the government agreed that they will not ask for the maximum sentence; however, during sentencing, the prosecutor did ask for the maximum sentence.

Prosecutor Dunn did not agree with the defense’s statement. She told the court that in May of this year, she received an email from Richard deSaulles (one of the attorneys from RDA Law Firm who represented Smith during sentencing), asking her what sentence the government is looking at for his client. According to Dunn, she said her response was, the government is not looking at the maximum sentence.

Conversations on emails, according to Dunn, were not part of the deal. She told the court that she did not promise anything to the defense attorney with regards to any sentence recommendation. She said she believes email conversations must be kept between the two parties, and not brought before the court.

Before Kruse ordered a continuance, he did spend some time going through some of the information collected during  proceedings when Smith appeared in court earlier this year in May for a Change of Plea (COP) hearing.

According to Kruse, before the plea agreement was accepted, the court was able to hear answers through a sworn testimony from the defendant.

Kruse said he went through the case transcript.

“I asked the defendant whether he understood the terms of the plea agreement, his response was, I understand your honor,” Kruse said.

“I also asked the defendant, are you fully satisfied with the representation by your counsel Mr. deSaulles throughout these proceedings, his response was, yes your honor.”

“My next question to the defendant was, before you signed the plea agreement, did you discuss it with your attorney Mr. deSaulles. His response was, yes your honor."

Kruse kept reading from the transcript, including questions the court asked the defendant on the day of his COP hearing.

“Is the plea agreement including everything you had discussed with your attorney? Did you understand the terms of the plea agreement? Is there anyone who made any offers or threaten you to induce you to plead guilty? Are you pleading guilty because you are guilty? His response was, yes your honor,” Kruse said.

Kruse pointed out to both parties one of the most essential questions the court asked the defendant: “If we accept your plea of guilty, do you understand you can not come back later and ask to withdraw your guilty plea?”

According to Kruse, the court also asked deSaulles, if there was any reason why the court should not accept the plea agreement.

deSaulles said no.

Kruse pointed out that before the court deliberated on the defendant’s sentence, he asked the government whether they sought a probated sentence, which includes a condition that the defendant shall serve 20 months at the Territorial Correctional Facility (TCF), or a maximum sentence as required by law. The government did ask for the maximum sentence.

Kruse then ordered both parties to brief the court on the issue, whether there was a lapse on the court's side.

“Give me that brief before I make a ruling on this issue,” Kruse instructed both attorneys. “It's easy to pass out this issue to the next panel but I don’t want to deal with plea agreements that contain side views.”

Smith’s hearing on the motion is continued for a later date.


Smith was initially charged with 3 counts of rape; 2 counts of sodomy; 6 counts of first degree sexual abuse; and 3 counts of incest - all felonies - along with 2 counts of endangering the welfare of a child, a class A misdemeanor.

But under a plea bargain with the government, Smith pled guilty to three counts of incest, a class D felony, punishable by 5 years in jail, or a fine of up to $5,000, or both - for each count.

With his guilty plea, Smith, who has been in custody since his arrest last year, told the court that he knew the victim was his stepdaughter, and he was married to the victim’s mother.

Smith further admits that between Sept. 1 and Dec. 31, 2012; June 1 to Dec. 31, 2014; and Jan 1 to Mar. 27, 2015, he had a sexual relationship with his stepdaughter.

Kruse said during sentencing that the underlining conduct which arises from this case started between Mar. 2013 up to Feb. 2016, when the defendant was engaged in a sexual relationship with his 15-year-old stepdaughter, who was a sophomore at one of the local high schools.

According to the Pre Sentence Report (PSR), the relationship between the defendant and the victim included sexual intercourse that was ongoing for 2 years at his home, sometimes inside the defendant’s vehicle when he went to pick up the victim from school.

Kruse said the defendant went as far as creating a Facebook page with an alias, which he used to monitor his stepdaughter, who she was friends with. It was through this Facebook page that fellow students who are friends of the victim, discovered that the man in the photo was the defendant.

Smith was sentenced to 5 years imprisonment for each of the three counts of incest, and the sentences are to be served consecutively, which means Smith will be locked up for the total of 15 years at the TCF.

“We give the authority to the Parole Board so that Probation will not be involved. So Mr. Smith, address your leniency and rehabilitation plea to the Parole Board,” Kruse concluded.