People v. Gelicia

Opinion

~LJ

"• • • t ;;

(/ .

IN THE SUPERIOR ~T OF GUAM .,Jj

2 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM1018-10 3 )

4 vs. ) DECISION AND ORDER ) (Motion to Dismiss Rasauo II)

5 ARIEL C. GELICIA )

Defendant. )

6 ---------------------------- 7 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 8 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion").

9 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 10 represented by Assistant Attorney General James C. Collins. The Court having considered all 11 the oral arguments, briefs, and materials filed herein DENIES Defendant's motion.

12 Guam's Supreme Court heIdI: "that unless good cause is shown, a complaint shall be 13 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 14 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v.

15 Rasauo, 2011 Guam 14 (hereinafter referred to as "Rasauo IF'), this case should be dismissed 16 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 17 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 18 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 19 Court will review the specific facts in this case to determine whether or not there was good 20 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 21 filed. Rasauo, 2011 Guam 14 ~~ 10, 14.

22 Defendant was arrested on November 26, 2009 and given a notice to appear (''NTA'')

23 with a date of November 24, 2010. On November 19, 2010, a Complaint was filed but no 24 summons was issued2 . Id. at ~ 7. On November 24, 2010, Defendant did not appear. A bench 25

26 1 This holding is hereinafter referred to as the "60 day rule."

2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all 27 misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a probable cause determination is made. 8 GCA § 15.20(a). Also, currently, all persons arrested for DUI charge are 28 brought before a magistrate for a probable cause determination prior to being released; therefore a NTA is not issued.

lof3

warrant was issued for Defendant on November 26, 2010. On August 5, 2011 the warrant was

2 returned, and the Defendant was released with orders to appear for arraignment on August 17,

3 2011. On August 17, 2011, Defendant was appointed counsel, and the arraignment was

4 continued until September 7, 2011 to afford the Defendant an opportunity to meet and confer

5 with counsel. Defendant was arraigned two hundred and fifty-nine (259) days after the

6 Complaint was filed.

7 The time between the filing of the Complaint and the first appearance on August 5,

8 2011, does violate the 60 day rule announced in Rasauo II. However, the Court must determine

9 what days, if any, after January 18, 2011 constitutes "good cause" or if this case must be

10 dismissed in violation of the 60 day rule.

11 The Court finds that the any delay caused by a defendant's failure to appear at an

12 arraignment that has been properly noticed 3 is good cause. Therefore, the delay of arraignment

13 from November 19, 2010 to September 7, 2011 caused by Defendant's failure to appear is good

14 cause for purposes of the 60 day rule. People v. Flores, 2009 Guam 22 ~ 32 (citing People v.

15 Johnson, 606 P.2d 738, 746 (Cal. 1980).

16 Next the court must determine if the time the Court allows a defendant to meet and

17 confer with counsel prior to being arraigned is reasonable and constitutes good cause. Title 8

18 Guam Code Annotated section 45.30(c) provides that the Court shall allow reasonable time to a defendant to meet and confer with counsel prior to being arraigned. Meeting with and 19 discussing this with counsel allows a defendant to understand the significance of the 20 arraignment process as well as the defendant's rights, which are asserted or waived at 21

arraignment. Hamilton v. Alabama, 368 u.S. 52 (1961). It is critical for a defendant to have this 22 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky.

23 Ct. App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 24 Guam 1, are not present when a defendant is appointed counsel and the delay between the 25 Complaint and the arraignment is partially attributed to the time necessary for a defendant to 26

27 3 Proper notice includes any of the following circumstances: (i) notice provided by a properly served summons, (ii)

28 notice to appear is provided to a defendant, or (iii) notification that occurs when a defendant is present and hears the court determine the date and time of the continued arraignment.

20f3

meet and confer with his appointed attorney. 2011 Guam 1 ,-r 53( quoted by Rasauo, 2011 Guam

2 14,-r 10).

3 Further, the Court rejects the contention that any length of delay cause by the time

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

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

6 and confer is good cause for purposes of the 60 day rule. Cj Flores, 2009 Guam 22 ,-r 38. The

7 Court finds that the twenty-eight (28) days from August 24th to September 21 st is not an

8 excessive amount of time for a court to provide a defendant to meet and confer with counsel

9 prior to arraignment. Thus the delay in this case due to allowing Defendant to meet and confer

10 with is attorney constitutes "good cause."

II The 259 days between the filing of the Complaint and Defendant's arraignment does

12 violate the 60 day rule, however, the Court finds that the Defendant's failure to appear for the

13 NTA arraignment on November 24 constitutes "good cause." As indicated above, the twenty-

14 eight (28) days between Defendant's first appearance and Defendant's actual arraignment is not

15 an unreasonable delay and the Court finds that good cause is shown. Rasauo, 2011 Guam 14 ,-r 14. Since there is good cause shown for the entire duration of the violation of the 60 day rule, 16 APR

17 Defendant's Motion is DENIED. A criminal trial setting shall occur on 0 9 2012 , 2012 at 18 1~30ll/()m. MAR 2 9 2012 IT IS SO ORDERED this _ _ _ _ March, 2012.

19

20

21

22

23 Judge, Superior Court of Guam 24

25

26

27

28

30f3