[In) rA:~c; IN THE SUPERIOR COURT cfr. GUAM "__ ~"t· ')': 2 PEOPLE OF GUAM, ) CRIMINAL CASE'NO: 'CM1068-11 ) 3 DECISION AND ORDER vs. ) 4 ) . (Motion to Dismiss) HILDA PASTRANA HILL, ) 5 ) 6 Defendant. )
8 In the interest of judicial economy and after revlewmg the filed documents, the
9 Honorable ELIZABETH BARRETT-ANDERSON is hereby denying oral argument for 10 Defendant's Motion to Dismiss ("Defendant's Motion") pursuant to Local Rules of the Superior 11 Court of Guam Rule 7.1(e)(I) and 8 GCA § 1.07(c). The Court having considered all the oral 12 arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court heIdI: "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo IF'), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was
22 filed. Rasauo, 2011 Guam 14 ~~ 10, 14. 23 Defendant was arrested on September 30, 2011. On October 21, 2011 the Complaint was 24 filed. A Summons was issued on December 1, 2011 for an arraignment scheduled for January 4, 25 2012. After seventy-five (75) days had passed from the filing of the Complaint, Defendant 26 appeared and was appointed counsel at the January 4, 2012 hearing. In order to provide
28 I This holding is hereinafter referred to as the "60 day rule."
Iof5 Defendant the opportunity to meet and confer with counsel, the arraignment was continued. 2 Defendant was finally arraigned on January 25, 2012, which is more than sixty (60) days after
3 the Complaint was filed. 4 The time between the Complaint and the Defendant's arraignment does violate the 60
5 day rule announced in Rasauo II. Therefore, the Court must review what days, if any, after 6 December 20,2011 constitutes good cause or if this case must be dismissed for the 60 day rule
7 violation. 8 The People maintain that once a request for a summons is presented "the People retain
9 no control over the court's decision about when to calendar the date on which a defendant is to 10 return to court." People's Opp'n to Mot. to Dismiss, p.5 (Feb. 21, 2012). Thus, the People II advocate that any delay attributed to the court's calendaring of an arraignment should be found 12 to be good cause and not cause the case to be dismissed pursuant to Rasauo II. The Court 13 disagrees that a bright line rule of any delay caused by a court's calendaring of a criminal matter 14 is automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 15 intended the court and its officers to be subject to the prompt arraignment rule put forth in 16 Rasauo JJ. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 17 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 18 ends of justice"). See e.g. People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13, 2012). 19 Since the onus is on all judicial officers, in addition to the prosecuting attorneys, to ensure that a 20 defendant is promptly arraigned, the Court holds that the delay created by the Court scheduling 21 the arraignment date after more than sixty (60) days had passed from the filing of the Complaint 22 is not good cause. The Defendant was not promptly arraigned; therefore, this case must be
23 dismissed. Rasauo, 2011 Guam 14. 24 While not necessary for this decision, for purposes of thoroughness, the Court finds that
25 twenty-one (21) days are not, by themselves, an excessive amount of time for a court to provide
26 a defendant to meet and confer with his attorney prior to being arraigned. Since the onus is on 27 all judicial officers and the prosecuting attorneys to ensure that a defendant is promptly
28 arraigned, the Court holds that reasonable time, in the context of a continued arraignment after a
20f5 defendant is appointed counsel, means no more than thirty (30) days2. 8 GCA § 80.50(a). The
2 Court finds that the delay between January 4, 2012 and the continued arraignment on January
3 25,2012 is reasonable and constitutes good cause. 4 Lastly, the Court must determine if the dismissal should be with or without prejudice. 5 The Court is persuaded by the People's argumene that the dismissal should be without
6 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires 7 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case 8 should be dismissed with or without prejudice should be decided in the first instance by the trial 9 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where 10 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re- 11 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v. 12 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 13 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory
14 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~~ 35-36. 15 Therefore, the Court considers "a showing of prejudice or any other factors" to 16 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 17 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162(a)(2). Defendant does not make a 18 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 19 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 20 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used
21 to determine if dismissal with prejudice is required here. 22 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed
23 for alleged government misconduct which occurs outside the Complaint process because such 24 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of
25 justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(internal
27 2 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with appointed counsel of two (2) weeks or less in light of the Rasauo II decision; however, the Court accepts that up to 28 thirty (30) days is reasonable. 3 This issue was raised in other cases addressing Rasauo II.
30f5 citations omitted). See also Stephens, 2009 Guam 8 ~ 2l(discussing dismissal for unnecessary 2 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61- 3 70( discussing dismissal based on fmding the People acted in bad faith). In this case, there is no 4 4 alleged government misconduct or bad faith on the part of the People . Instead, there is a 5 violation of the 60 day rule, which was recently announced in Rasauo II, which requires
6 dismissal, but not necessarily dismissal with prejudice.
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[In) rA:~c; IN THE SUPERIOR COURT cfr. GUAM "__ ~"t· ')': 2 PEOPLE OF GUAM, ) CRIMINAL CASE'NO: 'CM1068-11 ) 3 DECISION AND ORDER vs. ) 4 ) . (Motion to Dismiss) HILDA PASTRANA HILL, ) 5 ) 6 Defendant. )
8 In the interest of judicial economy and after revlewmg the filed documents, the
9 Honorable ELIZABETH BARRETT-ANDERSON is hereby denying oral argument for 10 Defendant's Motion to Dismiss ("Defendant's Motion") pursuant to Local Rules of the Superior 11 Court of Guam Rule 7.1(e)(I) and 8 GCA § 1.07(c). The Court having considered all the oral 12 arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court heIdI: "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo IF'), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was
22 filed. Rasauo, 2011 Guam 14 ~~ 10, 14. 23 Defendant was arrested on September 30, 2011. On October 21, 2011 the Complaint was 24 filed. A Summons was issued on December 1, 2011 for an arraignment scheduled for January 4, 25 2012. After seventy-five (75) days had passed from the filing of the Complaint, Defendant 26 appeared and was appointed counsel at the January 4, 2012 hearing. In order to provide
28 I This holding is hereinafter referred to as the "60 day rule."
Iof5 Defendant the opportunity to meet and confer with counsel, the arraignment was continued. 2 Defendant was finally arraigned on January 25, 2012, which is more than sixty (60) days after
3 the Complaint was filed. 4 The time between the Complaint and the Defendant's arraignment does violate the 60
5 day rule announced in Rasauo II. Therefore, the Court must review what days, if any, after 6 December 20,2011 constitutes good cause or if this case must be dismissed for the 60 day rule
7 violation. 8 The People maintain that once a request for a summons is presented "the People retain
9 no control over the court's decision about when to calendar the date on which a defendant is to 10 return to court." People's Opp'n to Mot. to Dismiss, p.5 (Feb. 21, 2012). Thus, the People II advocate that any delay attributed to the court's calendaring of an arraignment should be found 12 to be good cause and not cause the case to be dismissed pursuant to Rasauo II. The Court 13 disagrees that a bright line rule of any delay caused by a court's calendaring of a criminal matter 14 is automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 15 intended the court and its officers to be subject to the prompt arraignment rule put forth in 16 Rasauo JJ. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 17 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 18 ends of justice"). See e.g. People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13, 2012). 19 Since the onus is on all judicial officers, in addition to the prosecuting attorneys, to ensure that a 20 defendant is promptly arraigned, the Court holds that the delay created by the Court scheduling 21 the arraignment date after more than sixty (60) days had passed from the filing of the Complaint 22 is not good cause. The Defendant was not promptly arraigned; therefore, this case must be
23 dismissed. Rasauo, 2011 Guam 14. 24 While not necessary for this decision, for purposes of thoroughness, the Court finds that
25 twenty-one (21) days are not, by themselves, an excessive amount of time for a court to provide
26 a defendant to meet and confer with his attorney prior to being arraigned. Since the onus is on 27 all judicial officers and the prosecuting attorneys to ensure that a defendant is promptly
28 arraigned, the Court holds that reasonable time, in the context of a continued arraignment after a
20f5 defendant is appointed counsel, means no more than thirty (30) days2. 8 GCA § 80.50(a). The
2 Court finds that the delay between January 4, 2012 and the continued arraignment on January
3 25,2012 is reasonable and constitutes good cause. 4 Lastly, the Court must determine if the dismissal should be with or without prejudice. 5 The Court is persuaded by the People's argumene that the dismissal should be without
6 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires 7 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case 8 should be dismissed with or without prejudice should be decided in the first instance by the trial 9 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where 10 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re- 11 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v. 12 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 13 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory
14 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~~ 35-36. 15 Therefore, the Court considers "a showing of prejudice or any other factors" to 16 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 17 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162(a)(2). Defendant does not make a 18 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 19 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 20 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used
21 to determine if dismissal with prejudice is required here. 22 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed
23 for alleged government misconduct which occurs outside the Complaint process because such 24 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of
25 justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(internal
27 2 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with appointed counsel of two (2) weeks or less in light of the Rasauo II decision; however, the Court accepts that up to 28 thirty (30) days is reasonable. 3 This issue was raised in other cases addressing Rasauo II.
30f5 citations omitted). See also Stephens, 2009 Guam 8 ~ 2l(discussing dismissal for unnecessary 2 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61- 3 70( discussing dismissal based on fmding the People acted in bad faith). In this case, there is no 4 4 alleged government misconduct or bad faith on the part of the People . Instead, there is a 5 violation of the 60 day rule, which was recently announced in Rasauo II, which requires
6 dismissal, but not necessarily dismissal with prejudice. 7 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 8 message to prosecutors who have consistently violated defendants' rights and force them to 9 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 10 2011). Stephens, 2009 Guam 8 ~ 2l("If a court is to apply the harsh rule of dismissing a II criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 12 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 13 arraignment right is not an issue this Court has been asked to address in relation to arraignments 14 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 15 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 16 to believe that the People do not require a strong message from this Court to ensure that they are 17 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of
18 dismissal without prejudice. 19 Further, in this circumstance, dismissal without prejudice can not be seen as condoning 20 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at 21 the time of the delay of the Defendant's prompt arraignment. Id. This factor weighs in favor of
22 dismissal without prejudice. 23 In this scenario, Defendant's constitutional rights are not implicated, thus the Court 24 should weigh the violation of Defendant's right to a prompt arraignment with the competing 25 interest "of society to be secure from crime through the regular enforcement of the criminal 26 laws." Gutierrez, 2005 Guam 19 ~ 68(intemal citation and quotation omitted). Upon balancing
28 4 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.
40f5 these factors as well as taking into consideration of lack of showing of prejudice the Court
2 determines that dismissal without prejudice is most appropriate.
3 In conclusion, the days between the filing of the Complaint and Defendant's first
4 appearance and arraignment do violate the 60 day rule, and no good cause is shown. As
5 indicated above, the days between Defendant's first appearance and Defendant's actual
6 arraigmnent is not an unreasonable delay and is good cause. Nonetheless, since there is not
7 good cause shown for the entire duration ofthe violation of the 60 day rule, Defendant's Motion
8 is GRANTED in part. Rasauo, 2011 Guam 14 ~ 16. The Court fmds that Defendant was not
9 promptly arraigned pursuant to 8 GCA § 60.10(a); therefore, the Court is DISMISSING this
10 case without prejudice. II IT IS SO ORDERED this <{~March, 2012. 12
14 HONORABLE ELIZABETH BARRETT- ANDERSON Judge, Superior Court of Guam 15
22 MAR ~8 2012 23
50f5