LIHU‘E — A prosecutor’s motion to re-consider the sentence of a defendant convicted in the theft of $1.2 million from investors was denied Tuesday in 5th Circuit Court.
Jon Anderton, 57, a self-employed accountant and tax preparer, will continue to make $500 monthly restitution payments to be divided among three victims for the duration of a five-year probation — and a standing order to continue payments indefinitely.
Deputy Attorney General Debbie Lyn Tanakaya said new evidence based on the “voices of the victims” prompted the motion as the state’s obligation to stay with the original plea agreement.
She said the state cannot breech the original plea agreement and must pursue the consequences of Anderton’s failing to make annual restitution payment of $314,421.10 to satisfy the $1,257,684.39 for three counts of first-degree theft.
State Deputy Public Defender Samuel Jajich said the motion was essentially turning back the clock on matters that were already presented, argued and ruled on by the court prior to the revocation and resentencing in July. There were ample opportunities to petition the court and present victim testimony, he added.
The motion to reconsider sentencing does not meet the legal standard of legal or judicial error, Jajich said. There is no new case law or legislation since sentencing that would give merit to revisit issues or consequences of sentencing.
Judge Kathleen Watanabe said the state did not present motions to show the facts or the circumstances had changed and that it was wishful thinking to present victim testimony as new evidence to reconsider.
The defendant is under obligation of a standing order to continue restitution payments past the five-year criminal probation period. If he fails at that point the state has civil remedies to exercise against assets, she said.
As for jail, Anderton was sentenced to an 18-month jail term with probation but the court stayed the jail order for one-year provided he makes all monthly payments. If he misses one payment the 18 month jail term will be in effect.
The law requires an ability to pay for any defendant to make restitution payments, fines and fees, Watanabe said.
“My hands are tied,” Watanabe said.
Anderton ran an Anahola-based investment property firm and was convicted of taking $1.2 million from three Kauai investors between 2006 and 2008 and failing to make payments.
One of the victims present said Anderton should forced to pay a considerable sum or serve time. The $200 monthly checks are like “a slap in the face” he said, after losing his investment of funds he received from an injury and dismemberment settlement.