People v. Hernandez

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 THE PEOPLE OF GUAM, ) ) CRIMINAL CAS~\NO. CMOS00-11 4 vs. ) 5 ) DECISION AND ORDER ALEXIS JOEL CALDERON HERNANDEZ, ) 6 ) Defendant. ) 7

9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on the Defendant's motion to 11 dismiss, filed January 23, 2013. Oral arguments were heard on February 11, 2013. Assistant 12 Attorney General James C. Collins, Esq. appeared on behalf of the Government and Assistant 13 Public Defender Ali N. Nusbaum, Esq. represented the Defendant. Having considered the 14 parties' briefs, oral arguments, and the applicable law, the Court now issues the following

15 Decision and Order. 16 BACKGROUND 17 On April 20, 2011, the Government filed a complaint to charge Defendant with driving 18 under the influence of alcohol on or about April 16, 2011. On June 6, 2011, the Court entered a 19 summons for Defendant to appear on June 29, 2011, or seventy (70) days after the complaint 20 was filed. 1 Defendant failed to appear and on July 1, 2011, the Court entered a bench warrant to 21 procure Defendant's presence. On April 18, 2012, the bench warrant was served upon 22 Defendant and the Court appointed counsel and released her that same day. Defendant was

23 arraigned on April25, 2012. 24 On January 23, 2013, Defendant filed the present motion to dismiss because she 25 maintains she was not promptly arraigned within sixty (60) days of the complaint pursuant to 26 People v. Rasauo, 2011 Guam 14. Defendant argues that the delay is not excused by good 27

28 1 The record contains no affidavit that the summons was served or not served upon Defendant.

Page l of 4 cause and that the complaint should be dismissed with prejudice. The Government argues that 2 the complaint can only be dismissed with prejudice when the Defendant suffers from actual 3 prejudice, bad faith or misconduct. 4 DISCUSSION 5 Under Guam law, "unless good cause is shown, a complaint shall be dismissed where a 6 defendant is not promptly arraigned within 60 days of the filing of the complaint." Rasauo, 7 2011 Guam 14 ~ 16. This rule applies "the statutory speedy trial time period delineated in 8 8 GCA § 80.60(a)(3)," to the prompt arraignment requirement found in 8 GCA § 60.10(a). !d. 9 Good cause to delay a prompt arraignment is determined by the specific circumstances of each 10 case. !d. at~ 14. 11 1. Good Cause to Delay Prompt Arraignment 12 Under Guam law, cases that evaluate delay and good cause in the statutory speedy trial 13 context are instructional for the purposes of prompt arraignment under 8 GCA § 60.1 0. People 14 v. Julian, 2012 Guam 26 ~ 35. A speedy trial may be delayed by the following good causes: 1) 15 conduct of the defendant; 2) delay that benefits the defendant; 3) unforeseen circumstances; and 16 4) prompt disposition of pretrial motions. See e.g. People v. Flores, 2009 Guam 22 ~ 40; 17 Carver v. Superior Court, 1998 Guam 23 ~ 11; Quinata v. Superior Court, 2010 Guam 8 ~ 36. 18 In this case, Defendant was arraigned on April 25, 2012, which is more than 60 days 19 after the complaint was filed on April 20, 2011. An initial delay was caused by the Court 20 scheduling Defendant's first appearance to occur seventy (70) days after the complaint was 21 filed. Judicial delay in prompt arraignment is attributed to the Government. Julian, 2012 Guam 22 26 at ,[22. Pursuant to Rasauo, 2011 Guam 14 ~ 12, courts, judicial officers and prosecuting 23 attorneys all share the duty and the constitutional guarantee to promptly dispose criminal 24 charges. !d. (citing Strunk v. US., 412 U.S. 434, 439, n. 2 (1973) and 8 GCA § 80.50(a)). For 25 this reason, the untimely arraignment is not excused by 70 days of judicial delay and the 2 26 complaint shall be dismissed pursuant to Rasauo, 2011 Guam 14. 27

28 2 Subsequent delays were caused by an inability to serve Defendant with the summons and a bench warrant, but thi

additional delay is immaterial to the Court's analysis as the 70 day delay is not excusable for good cause.

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2. Dismissal With or Without Prejudice 2 Guam law does not specify whether dismissal with prejudice or dismissal without 3 prejudice is the appropriate remedy for a violation of 8 GCA § 60.10(a) and Rasauo, 2011 4 Guam 14. The prompt arraignment requirement is an expression of the speedy trial right. 5 Stephen, 2009 Guam 8 ~ 32. Absent clear guidance to dismiss an untimely arraignment with or 6 without prejudice, the Court shall consider the established speedy trial analyses in order to more 7 consistently weigh the circumstances of an untimely arraignment. See Id. at ~ 21 (an 8 established rule or forewarning may be required to dismiss with prejudice). 9 Under Guan1 law, the Court must consider the following relevant factors to determine 10 whether a delay violates the Sixth Amendment right to a speedy trial: 1) the length of the delay; 11 2) the reason for the delay; and 3) the presence or absence of prejudice resulting from the delay. 12 People v. Flores, 2009 Guam 22 ~~ 41-42 (citing Barker v. Wingo, 407 U.S. 514, 521 (1972)). 13 When federal time limits for commencing trial are violated, the following factors determine 14 whether to dismiss the prosecution with or without prejudice: 1) the seriousness of the offense; 15 2) the facts and circumstances that led to dismissal; 3) the impact of reprosecution on the 16 administration of federal time limits and the administration of justice; and 4) the prejudice 17 suffered by the defendant from the delay. See US. v. Perez, Crim. No. 09-00025, 2011 WL 18 2294194, at *3 (D. Guam Jun. 8, 2011) (citing 18 U.S.C. § 3162(a)(2); US. v. Taylor, 487 U.S. 19 326,336-337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1998); and US. v. Lewis, 518 F.3d 1171, 1176

20 (9th Cir. 2010)). 21 In this case, Defendant was arraigned on April25, 2012 and more than one year after the 22 complaint was filed on April 20, 2011. The length of this delay may give rise to a presumption 23 of prejudice. Flores, 2009 Guam 22 ~ 49. The delay was caused, in part, by judicial 24 calendaring and the responsibility for this delay weighs against the Government. Id. at ~~ 45- 25 46. Another possible cause for the delay may have been an inability to locate and serve 26 Defendant, but the entire record is devoid of the information necessary to determine whether 27 this delay was deliberate, negligent or justified, and the responsibility for the delay does not 28 weigh in favor of either pmiy. !d. Most importantly, the complaint caused no oppressive

Page 3 of 4 pretrial incarceration, anxiety or concern before Defendant appeared on April 18, 2012, and 2 there is no allegation of actual prejudice in this matter. !d. at ~~ 49-56. These circumstances 3 weigh against a constitutional violation and against the Defendant's request for dismissal with

4 prejudice. 5 Furthermore, a dismissal without prejudice is warranted in light of the relatively less 6 serious misdemeanor offense, the aforementioned slight impact of the delay, the absence of 7 clear Government neglect, and the aforementioned absence of prejudice suffered by Defendant. 8 See Perez, 2011 WL 2294194, at *3-8. For these reasons, the complaint shall be dismissed

9 without prejudice. 10 ///

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13 CONCLUSION 14 Based upon the foregoing, the Defendant's motion to dismiss is hereby GRANTED and 15 the complaint is dismissed without prejudice for the failure to promptly arraign the Defendant 16 pursuant to 8 GCA § 60.10(a) and People v. Rasauo, 2011 Guam 14. 17

18 SO ORDERED this ::hzr day of May, 2013. 19

22 HON. JAMES L. CANTO II Judge, Superior Court of Guam 23

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