People v. Ainam

Opinion

IN THE SUPERIOR COURT OF GUAM 1m2 APR 18 PM I: 34

2 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM567-11 3 )

4 vs. ) DECISION AND ORDER ) FOR DISMISSAL 5 VALANTIN AINAM, )

)

6 Defendant. )

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8 The matter came before the HONORABLE JUDGE PRO TEM ELIZABETH 9 BARRETT-ANDERSON on April 2, 2012 for Defendant's Motions to Dismiss (hereinafter IO referred to as "Motion"). Defendant was present, and was represented by Attorney Ali N. II Nusbaum. People were represented by Assistant Attorney General James C. Collins. The Court 12 having considered all the oral arguments, briefs, and materials filed herein DISMISSED THIS I3 CASE WITHOUT PREJUDICE from the bench and this written decision and order follows. 14 Guam's Supreme Court held I : "that unless good cause is shown, a complaint shall be 15 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 16 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 17 Rasauo, 2011 Guam 14 (hereinafter referred to as "Rasauo IF'), this case should be dismissed 18 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 19 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 20 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 21 Court will review the specific facts in this case to determine whether or not there was good 22 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 23 filed. Rasauo, 2011 Guam 14 ~ 10, 14. 24 Defendant was arrested on August 10,2010 and given a notice to appear for August 3, 25 20112. On May 4,2011, the Complaint was filed and a Summons was issued on May 18,2011 26 for an arraignment scheduled for June 15,2011. Defendant did not appear at that hearing and a 27

28 I This holding is hereinafter referred to as the "60 day rule."

2 The Court does not know if Defendant appeared on this date or not.

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Summons was re-issued on June 17, 2011, for an arraignment scheduled for July 20, 2011. A

2 third Summons was issued on August 16, 2011, for an arraignment set for September 21, 2011.

3 Defendant was finally arraigned on September 28, 2011, which is more than sixty (60) days

4 after the Complaint was filed.

5 The time between the Complaint and the first appearance on September 21,2011 does

6 violate the 60 day rule announced in Rasauo II. Thus, the Court must review what days, if any,

7 after July 5, 2011 3 constitute "good cause" under Rasauo II.

8 The People have previously maintained that once a request for a summons is presented

9 ''the People retain no control over the court's decision about when to calendar the date on which

10 a defendant is to return to court." CM470-11, People's Opp'n to Mot. to Dismiss, p.5 (Nov. 18,

11 2011). Thus, the People advocate that any delay attributed to the court's calendaring of an

12 arraignment should be found to be good cause and not cause the case to be dismissed pursuant

13 to Rasauo II. The Court disagrees that a bright line rule of any delay caused by a court's

14 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's

15 Supreme Court makes it clear that it intended the court and its officers to be subject to the

16 prompt arraignment rule put forth in Rasauo II. Rasauo, 2011 Guam 14 , 12; 8 GCA §

17 80.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings

18 to the greatest degree that is consistent with the ends of justice"). See e.g. People v. Ilemelong,

19 CF150-10 (Super. Ct. Guam Jan. 13,2012). Since the onus is on all judicial officers, in addition

20 to the prosecuting attorneys, to ensure that a defendant is promptly arraigned, the Court holds that the delay created by the Court scheduling the arraignment date after more than sixty (60)

21 days had passed from the filing of the Complaint is not good cause. The Defendant was not 22 promptly arraigned; therefore, this case must be dismissed. Rasauo, 2011 Guam 14.

23 While not necessary for this decision, the Court reviewed if the time the Court allows a 24 defendant to meet and confer with counsel prior to being arraigned is reasonable and constitutes 25 good cause. Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow 26

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28 3 The sixtieth day falls on Sunday, July 3,2011; thus pursuant to 8 GCA § 1.25(a) the end of the 60 day rule is July 5,2011.

reasonable time to a defendant to meet and confer with counsel prior to being arraigned.

2 Meeting with and discussing this with counsel allows a defendant to understand the significance 3 of the arraignment process as well as the defendant's rights, which are asserted or waived at 4 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this

5 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct.

6 App.2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam

7 1, are not present when a defendant is appointed counsel and the delay between the Complaint

8 and the arraignment is partially attributed to the time necessary for a defendant to meet and

9 confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by Rasauo, 2011 Guam 14 ~ 10).

10 The Office of the Attorney General has argued in several cases that any delay of

11 arraignment occasioned by a continuance granted by the magistrate court should be excused for

12 good cause. The Court disagrees that a bright line rule of any delay caused by a court's

13 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's

14 Supreme Court makes it clear that it intended the court and its officers to be subject to the

15 prompt arraignment rule put forth in Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA §

16 80.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings

17 to the greatest degree that is consistent with the ends of justice"). See also People v. Ileme/ong,

18 CF150-1O (Super. ct. Guam Jan. 13,2012).

19 Further, the Court rejects the contention that any length of delays caused by the time

20 provided to a defendant to meet and confer with an attorney is automatically good cause. The

21 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet

22 and confer with an attorney is good cause for purposes of the 60 day rule. Cf. Flores, 2009 Guam22~38.

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24 In this case, Defendant's Motion did not address if any delay attributed to time for the

25 Defendant to meet and confer with counsel is good cause. Instead, Defendant's Motion argues that no good cause exists for the violation of the 60 day rule in this case.

26 The Court finds that seven (7) days is not excessive amount of time for a court to 27 provide a defendant to meet and confer with his attorney prior to being arraigned. Since the 28

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onus is on all judicial officers and the prosecuting attorneys to ensure that a defendant is 2 promptly arraigned, the Court holds that reasonable time, in the context of a continued

3 arraignment after a defendant is appointed counsel, means no more than thirty (30) days4. 8

4 GCA § 80.50(a). Thus, the delay in this case is reasonable, hence this time constitutes good

5 cause.

6 Lastly, the Court must determine if the dismissal should be with or without prejudice.

7 The Court is persuaded by the People's argument that the dismissal should be without prejudice.

8 Guam's Supreme Court declined to hold that all violations of the 60 day rule requires a

9 dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case

10 should be dismissed with or without prejudice should be decided in the first instance by the trial

11 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where

12 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re-

13 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v.

14 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a

15 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory

16 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 W 35-36.

17 Therefore, the Court considers "a showing of prejudice or any other factors" to

18 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by

19 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.c. § 3162(a)(2). Defendant does not make a

20 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of

21 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used 22

23 to determine if dismissal with prejudice is required here.

24 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed

2S for alleged government misconduct which occurs outside the Complaint process because such

26 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of

27 4 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with 28 appointed counsel of two (2) weeks or less in light of the Rasauo II decision; however, the Court accepts that up to thirty (30) days is reasonable.

justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(intemal 2 citations omitted). See also Stephens, 2009 Guam 8 ~ 21(discussing dismissal for unnecessary 3 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 W61- 4 70(discussing dismissal based on finding the People acted in bad faith). In this case, there is no 5 alleged government misconduct or bad faith on the part of the Peoples. Instead, there is a

6 violation of the 60 day rule, which was recently announced in Rasauo II, which requires

7 dismissal, but not necessarily dismissal with prejudice.

8 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong

9 message to prosecutors who have consistently violated defendants' rights and force them to

10 reduce pretrial delays in general. U.S. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8,

11 2011). Stephens, 2009 Guam 8 ~ 21 ("If a court is to apply the harsh rule of dismissing a

12 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution

13 that further delay could jeopardize the case."). However, the violation of a defendant's prompt

14 arraignment right is not an issue this Court has been asked to address in relation to arraignments

15 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to

16 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court

17 to believe that the People do not require a strong message from this Court to ensure that they are

18 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of

19 dismissal without prejudice.

20 Further, in this circumstance, dismissal without prejudice can not be seen as condoning

21 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at

22 the time of the delay of the Defendant's prompt arraignment. Id. This factor weighs in favor of

23 dismissal without prejudice.

24 In this scenario, Defendant's constitutional rights are not implicated, thus the Court

25 should weigh the violation of Defendant's right to a prompt arraignment with the competing interest "of society to be secure from crime through the regular enforcement of the criminal 26

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28 5 All of the procedural facts of this case occurred before the promulgation of Rasauo II, therefore, there can be no finding that the People intentionally violated the 60 day rule.

laws." Gutierrez, 2005 Guam 19 1f 68(intemal citation and quotation omitted). Upon balancing 2 these factors as well as taking into consideration of lack of showing of prejudice the Court 3 determines that dismissal without prejudice is most appropriate. 4 The Court finds that Defendant was not promptly arraigned pursuant to 8 GCA § 5 60.10(a); therefore, the Court is DISMISSING this case without prejudice.

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7 IT IS SO ORDERED this 6th of April, 2012.

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10 /f;. HONORAB

11 Judge Pro Tempore, Superior Court of Guam 12

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