People v. Healy

Opinion

URT

IN THE SUPERIOR COURT OFmlVm 25 q"5 2

3 PEOPLE OF GUAM, )

)

CRIMINA~~ASE NO.C~~j5-11

4 vs. )

) DECISION AND ORDER FOR

5 JOHN THOMAS HEALY ) DISMISSAL WITHOUT PREJUDICE Defendant. ) (Rasaou II)

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8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 9 Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). Defendant is represented 10 by Attorney Thomas J. Fisher. People were represented by Assistant Attorney General James C.

11 Collins. The Court having issued prior rulings on similar motions to dismiss based on the 12 identical issues of law and facts as stated herein, will not schedule briefing and argument on this 13 motion, and rules sua sponte in the interest of justice and judicial economy. 14 Guam's Supreme Court heIdI: "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 February 7, 2010, and given a notice to appear (NTA) for 25 arraignment on February 2, 2011. On January 13, 2011, the Complaint was filed, but no 26

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

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summons was issued2 . On February 2, 2011, the defendant appeared without counsel.

2 Magistrate Court continued the arraignment to March 23, 2011, to permit the defendant to 3 secure and meet with counsel. On March 23, 2011, defendant appeared but did not have 4 counsel. Once again the Magistrate Judge continued the arraignment to April 20 to afford the 5 defendant an opportunity to secure and meet with counsel. On April 14, 2011, present defense 6 counsel entered his appearance on behalf of the defendant, and arraignment occurred on April 7 20,2011. 8 The time between the Complaint and the first appearance on February 2, 2011, does 9 violate the 60 day rule announced in Rasauo 11. This amount of delay does not violate the 60 10 day rule announced in Rasauo 11; thus the Court will review the other delays to determine if the 11 time after March 14, 2011, constitutes good cause or if this case must be dismissed for the 60 12 day rule violation. More specifically, the Court must first determine if the time the Court allows 13 a defendant to meet and confer with counsel prior to being arraigned is reasonable and 14 constitutes good cause. 15 Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow

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

17 Meeting with and discussing this with counsel allows a defendant to understand the significance

18 of the arraignment process as well as the defendant's rights, which are asserted or waived at

19 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this

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

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

22 1, are not present when a defendant is appointed counsel and the delay between the Complaint

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

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

The Office of the Attorney General has argued in several cases that any delay of 25

26 2 Unlike the facts in Rasauo 11, 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 § lS.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.

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

2 good cause. The Court disagrees that a bright line rule of any delay caused by a court's 3 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's

4 Supreme Court makes it clear that it intended the court and its officers to be subject to the 5 prompt arraignment rule put forth in Rasauo 11. Rasauo, 2011 Guam 14 ~ 12; S GCA § 6 S0.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings 7 to the greatest degree that is consistent with the ends of justice"). See also People v. Ilemeiong, 8 CF150-10 (Super. Ct. Guam Jan. 13,2012). 9 Further, the Court rejects the contention that any length of delays caused by the time 10 provided to a defendant to meet and confer with an attorney is automatically good cause. The 11 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet 12 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009 13 Guam 22 ~ 3S. 14 In this case, Defendant's Motion did not address if any delay attributed to time for the 15 Defendant to meet and confer with counsel is good cause. Instead, Defendant's Motion argues 16 that no good cause exists for the violation of the 60 day rule in this case.

17 The Court finds that the period of time from the first appearance on February 2nd to

18 defendant's actual arraignment on April 20th , seventy-eight (7S)3 days is an excessive amount of

19 time for a court to provide a defendant to meet and confer with his attorney prior to being

20 arraigned. Since the onus is on all judicial officers and the prosecuting attorneys to ensure that a

21 defendant is promptly arraigned, the Court holds that reasonable time, in the context of a

22 continued arraignment in order to secure and meet with counsel, means no more than thirty (30)

23 days4. 8 GCA § SO.50(a). Thus, the delay in this case is per se unreasonable, hence this case

24 should be dismissed for the violation of the 60 day rule.

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

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26 27 3 Even the fifty (50) days between 2/211 and the first continued arraignment on 3/23111 is excessive.

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.

The Court has previously agreed with the People's argument that the dismissal should be 2 without prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule 3 requires a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not 4 the case should be dismissed with or without prejudice should be decided in the first instance by 5 the trial court."). This is in contrast to other criminal cases Guam's Supreme Court has 6 addressed, where the case was dismissed with prejudice based upon a finding that there was a 7 statutory bar to re-prosecution of the defendants in those cases. People v. Villapondo, 1999 8 Guam 31; People v. Palomo, 1998 Guam 12. The People correctly assert that in this 9 circumstance, there is not a statutory bar to re-prosecution, instead the 60 day rule is explicitly 10 dependent on statutory interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 11 Guam 8 ~~ 35-36. 12 Therefore, the Court considers "a showing of prejudice or any other factors" to 13 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 14 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162(a)(2). Defendant does not make a 15 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 16 Rasauo meaningless ifthe People can re-indict him in the future. But see Stephen, 2009 Guam 8 17 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used

18 to determine if dismissal with prejudice is required here.

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

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

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

22 justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(internal

23 citations omitted). See also Stephens, 2009 Guam 8 ~ 21(discussing dismissal for unnecessary

24 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61-

70( discussing dismissal based on finding the People acted in bad faith). In this case, there is no 25 alleged government misconduct or bad faith on the part of the People5 • Instead, there is a 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.

violation of the 60 day rule, which was recently announced in Rasauo 11, which requires 2 dismissal, but not necessarily dismissal with prejudice. 3 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 4 message to prosecutors who have consistently violated defendants' rights and force them to 5 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 6 2011). Stephens, 2009 Guam 8 ~ 21("If a court is to apply the harsh rule of dismissing a 7 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 8 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 9 arraignment right is not an issue this Court has been asked to address in relation to arraignments 10 that occurred after Rasauo 11 was issued. Instead, this Court is merely addressing motions to 11 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 12 to believe that the People do not require a strong message from this Court to ensure that they are 13 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of 14 dismissal without prejudice. 15 Further, in this circumstance, dismissal without prejudice cannot be seen as condoning 16 the People's behavior, because neither the People nor the Court were aware ofthe 60 day rule at

17 the time of the delay of the Defendant's prompt arraignment.1d. This factor weighs in favor of

18 dismissal without prejudice.

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

20 should weigh the violation of Defendant's right to a prompt arraignment with the competing

21 interest "of society to be secure from crime through the regular enforcement of the criminal

22 laws." Gutierrez, 2005 Guam 19 ~ 68(internal citation and quotation omitted). Upon balancing

23 these factors as well as taking into consideration of lack of showing of prejudice the Court

24 determines that dismissal without prejUdice is most appropriate.

25 There are ninety-eight (98) days between the filing of the Complaint (January 13 th) and Defendant's arraignment (April 20th ). The twenty (20) days between the filing of the Complaint 26 and Defendant's first appearance does not violate the 60 day rule. However, as indicated above, 27 the seventy-eight (78)) days between Defendant's first appearance and his actual arraignment is an unreasonable delay, and is not good cause. Rasauo, 2011 Guam 14116. The Court finds that 2 Defendant was not promptly arraigned pursuant to 8 GCA § 60.1O(a); therefore, the Court is 3 DISMISSING this case without prejUdice. Defendant's Motion is GRANTED.

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5 '~AV 2 r~ "11 IT IS SO ORDERED_-"'r!l"",-t\,,-,.~..;;.;",--=L

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'11 2012 .

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9 Judge, Superior Court of Guam 10

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