1 IN THE SUPERIOR COURT OF GUAM 2 2Gll JHl 13 PH ): 57 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CFtsO-tO 3 ) CLEFIK OF COURT vs. ) 4 ) DECISION AINaORDER ) ON DEFENDANT'S MOTION TO 5 TENISON ILEMELONG, ) DISMISS 6 ) Defendant. ) 7 ) 8 --------------------------~) 9 This matter came before the HONORABLE VERNON P. PEREZ on November 15,2011
10 on Defendant's Motion to Dismiss. Attorney Nicolas B. Barrett appeared on behalf of th
11 Government. Attorney Raymond B. Hagan represented Defendant, who was present. Hav'
12 reviewed the pleadings. the arguments presented and the record, the Court now issues th
13 following Decision and Order.
14 BACKGROUND
15 Defendant is charged with theft as a third degree felony. Defendant requests dismissal
16 he argues that the time from the filing of the criminal Complaint against him to the time he
17 arraigned was in violation of the Prompt Arraignment Rule recently handed down by th
18 Supreme Court of Guam in People v. Rasauo, 2011 Guam 14 (hereinafter "Rasauo 11').
19 DISCUSSION
20 Defendant argues that this case be dismissed for violation of the rule put forth in Rasau
21 II. See also 8 GCA §60.10. The recent Supreme Court decision Rasauo II requires dismis 22 where a defendant is not arraigned within 60 days of the date of filing of a formal c' .
23 complaint. Yet, as the Government argues, delay in arraignment may be excused where "g
24 cause" is shown. Id at ,14. In Rasauo IL the Guam Supreme Court found that delay creat
25 from the Government choosing to continue with a separate charge before proceeding on a secon
26 crime was not good cause delay. Here, the Government alleges that their office was no
27 negligent in dealing with the Defendant and did the most that it could do to expedite proc___~""
28 against Defendant. The Government believes that good cause delay exists where the courts all
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CFl50-IO - Page I of5- "
1 at fault for setting flrst appearance hearings beyond 60 days from a formal complaint. 2 furtherance of that contention, the Government puts forth that the Rasauo II decision is foe 3 on prosecutorial delay and does not apply the same strict standards for all Government agencie 4 affiliated with criminal proceedings that exist for the Speedy Trial Right. 8 GCA § 80.60. On th 5 other hand, Defendant argues that even the Court and its officers are subject to the Promp 6 Arraignment Right deflned in Rasauo 11 That is the crux of the issue before the Court now 7 Does good cause delay exist where the Prosecution immediately requests a summons be issu 8 upon filing a formal complaint, yet the Court system does not get a defendant to arraignmen 9 until 60 days after the complaint was filed? 10 Defendant argues that Supreme Court, in Rasauo IL aligned prompt arraignment with th 11 Speedy Trial Right by applying the same 60 day standard. Defendant cites to another G 12 Supreme Court decision which the Rasauo II Court also quoted. In People v. Stephen, the Co 13 stated that prompt arraignment is "a statutory expression of the speedy trial right. 2009 Guam 14 ,32. Defendant argues that in dismissal motions arising from a violation of the Speedy Tri 15 Right, the courts may also be responsible for the violation. In Speedy Trial Right violations, th 16 remedy is the same as if the Prosecution created the delay, which is at minimum dismissal whe 17 no good cause is found. Defendant concludes by arguing that if the Supreme Court intended t 18 align prompt arraignment with the Speedy Trial Right, that the standards applying to the Speed 19 Trial Right also apply. 20 The Government argues that the intent behind Rasauo II was not to ensure that the co 21 promptly place all hearings for a Defendant's first appearance within 60 days. The Governmen 22 contends that the Guam Supreme Court meant only to deter prosecutorial delay or negligence . 23 prosecuting cases. In addition, the Government claims that it would be unreasonable to ask tha 24 the calendar for many courts be subject to a 60 day window for arraignments of cri . 25 defendants. This Court interprets the Rasauo II decision such that the lower courts are required t 26 adjust their calendaring procedures in accordance with the Prompt Arraignment Rule put forth . 27 Rasauo II. 28 The Court flnds no relevant controlling precedent in case law to base its decision, bu
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CF150·1O • Page 2 of5· finds it abundantly clear that the Supreme Court did imply that the courts are also responsible fo 2 ensuring prompt arraignment. That intent is clear considering the Guam Supreme Court declarin 3 that "this principle is directly embodied in our statutory framework" and quoting 8 GC 4 §80.50(a) directly after that statement, which provides: 5 the welfare of the people of the territory of Guam requires that al proceedings in criminal cases shall be set for trial and heard an 6 determined at the earliest possible time, and it shall be the duty of al 7 courts and judicial officers and of all prosecuting attorneys to expedit such proceedings to the greatest degree that is consistent with the ends 0 8 justice. (2010). 9 Therefore, the Supreme Court made it clear that it intended the Superior Court and its officers t 10 be subject to the Prompt Arraignment Rule put forth in Rasauo II Here, there were more than 6 11 days from Complaint to arraignment and the Court created delay can require dismissal if there i 12 no good cause shown as determined above. The issue now becomes whether there was goo 13 cause for delay that the Court and its officers created in arraigning the Defendant? 14 The Government filed a summons the same day that it filed the Complaint, March 5 15 2010. The Court, through Deputy Clerk Evelyn B01ja, dated the arraignment hearing to b 16 March 24, 2010 at 10:00a.m.. Defendant did not show and it is not known whether or no 17 Defendant was adequately notified of that hearing. In a perfect world, the Defendant would hav 18 been arraigned less than 19 days after the Complaint was filed as scheduled by the court clerk 19 Yet, Defendant did not appear and it is not clear whether or not Marshals put forth enough effo 20 to locate Defendant which would create a good cause excuse for violation of the Promp 21 Arraignment Rule. It is abundantly clear, however, that if Defendant purposely delayed servic 22 or intentionally failed to appear after being notified of a hearing date, good cause would b 23 found. It is also clear that if the Defendant did nothing to delay service, or had no notice of 24 hearing date, and the Marshalls put forth lackluster efforts to notify Defendant then good caus 25 would not be found. 26 As the Supreme Court said only good cause would prevent dismissal, it becomes th 27 Government's burden to show good cause once the 60 day window has expired. Yet, th 28 Government cites to a number of attempts in which the Marshalls tried serving Defendant wit
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CF 150-1 0 - Page 3 of 5 - 1 the summons and eventually a bench warrant. Once the April 19, 2010 bench warrant w 2 issued, however, no attempts of service were logged until March 9, 2011 when Defendant wa 3 arrested on the bench warrant. Nearly a year passed in which zero efforts were logged as t 4 attempts to locate Defendant, but the need and existence of a bench warrant is very telling in thi 5 matter. The Court must assume that a bench warrant was issued because locating the Defendan 6 was difficult as at least two previous attempts at normal service failed to bring the Defendant t 7 court.
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1 IN THE SUPERIOR COURT OF GUAM 2 2Gll JHl 13 PH ): 57 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CFtsO-tO 3 ) CLEFIK OF COURT vs. ) 4 ) DECISION AINaORDER ) ON DEFENDANT'S MOTION TO 5 TENISON ILEMELONG, ) DISMISS 6 ) Defendant. ) 7 ) 8 --------------------------~) 9 This matter came before the HONORABLE VERNON P. PEREZ on November 15,2011
10 on Defendant's Motion to Dismiss. Attorney Nicolas B. Barrett appeared on behalf of th
11 Government. Attorney Raymond B. Hagan represented Defendant, who was present. Hav'
12 reviewed the pleadings. the arguments presented and the record, the Court now issues th
13 following Decision and Order.
14 BACKGROUND
15 Defendant is charged with theft as a third degree felony. Defendant requests dismissal
16 he argues that the time from the filing of the criminal Complaint against him to the time he
17 arraigned was in violation of the Prompt Arraignment Rule recently handed down by th
18 Supreme Court of Guam in People v. Rasauo, 2011 Guam 14 (hereinafter "Rasauo 11').
19 DISCUSSION
20 Defendant argues that this case be dismissed for violation of the rule put forth in Rasau
21 II. See also 8 GCA §60.10. The recent Supreme Court decision Rasauo II requires dismis 22 where a defendant is not arraigned within 60 days of the date of filing of a formal c' .
23 complaint. Yet, as the Government argues, delay in arraignment may be excused where "g
24 cause" is shown. Id at ,14. In Rasauo IL the Guam Supreme Court found that delay creat
25 from the Government choosing to continue with a separate charge before proceeding on a secon
26 crime was not good cause delay. Here, the Government alleges that their office was no
27 negligent in dealing with the Defendant and did the most that it could do to expedite proc___~""
28 against Defendant. The Government believes that good cause delay exists where the courts all
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CFl50-IO - Page I of5- "
1 at fault for setting flrst appearance hearings beyond 60 days from a formal complaint. 2 furtherance of that contention, the Government puts forth that the Rasauo II decision is foe 3 on prosecutorial delay and does not apply the same strict standards for all Government agencie 4 affiliated with criminal proceedings that exist for the Speedy Trial Right. 8 GCA § 80.60. On th 5 other hand, Defendant argues that even the Court and its officers are subject to the Promp 6 Arraignment Right deflned in Rasauo 11 That is the crux of the issue before the Court now 7 Does good cause delay exist where the Prosecution immediately requests a summons be issu 8 upon filing a formal complaint, yet the Court system does not get a defendant to arraignmen 9 until 60 days after the complaint was filed? 10 Defendant argues that Supreme Court, in Rasauo IL aligned prompt arraignment with th 11 Speedy Trial Right by applying the same 60 day standard. Defendant cites to another G 12 Supreme Court decision which the Rasauo II Court also quoted. In People v. Stephen, the Co 13 stated that prompt arraignment is "a statutory expression of the speedy trial right. 2009 Guam 14 ,32. Defendant argues that in dismissal motions arising from a violation of the Speedy Tri 15 Right, the courts may also be responsible for the violation. In Speedy Trial Right violations, th 16 remedy is the same as if the Prosecution created the delay, which is at minimum dismissal whe 17 no good cause is found. Defendant concludes by arguing that if the Supreme Court intended t 18 align prompt arraignment with the Speedy Trial Right, that the standards applying to the Speed 19 Trial Right also apply. 20 The Government argues that the intent behind Rasauo II was not to ensure that the co 21 promptly place all hearings for a Defendant's first appearance within 60 days. The Governmen 22 contends that the Guam Supreme Court meant only to deter prosecutorial delay or negligence . 23 prosecuting cases. In addition, the Government claims that it would be unreasonable to ask tha 24 the calendar for many courts be subject to a 60 day window for arraignments of cri . 25 defendants. This Court interprets the Rasauo II decision such that the lower courts are required t 26 adjust their calendaring procedures in accordance with the Prompt Arraignment Rule put forth . 27 Rasauo II. 28 The Court flnds no relevant controlling precedent in case law to base its decision, bu
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CF150·1O • Page 2 of5· finds it abundantly clear that the Supreme Court did imply that the courts are also responsible fo 2 ensuring prompt arraignment. That intent is clear considering the Guam Supreme Court declarin 3 that "this principle is directly embodied in our statutory framework" and quoting 8 GC 4 §80.50(a) directly after that statement, which provides: 5 the welfare of the people of the territory of Guam requires that al proceedings in criminal cases shall be set for trial and heard an 6 determined at the earliest possible time, and it shall be the duty of al 7 courts and judicial officers and of all prosecuting attorneys to expedit such proceedings to the greatest degree that is consistent with the ends 0 8 justice. (2010). 9 Therefore, the Supreme Court made it clear that it intended the Superior Court and its officers t 10 be subject to the Prompt Arraignment Rule put forth in Rasauo II Here, there were more than 6 11 days from Complaint to arraignment and the Court created delay can require dismissal if there i 12 no good cause shown as determined above. The issue now becomes whether there was goo 13 cause for delay that the Court and its officers created in arraigning the Defendant? 14 The Government filed a summons the same day that it filed the Complaint, March 5 15 2010. The Court, through Deputy Clerk Evelyn B01ja, dated the arraignment hearing to b 16 March 24, 2010 at 10:00a.m.. Defendant did not show and it is not known whether or no 17 Defendant was adequately notified of that hearing. In a perfect world, the Defendant would hav 18 been arraigned less than 19 days after the Complaint was filed as scheduled by the court clerk 19 Yet, Defendant did not appear and it is not clear whether or not Marshals put forth enough effo 20 to locate Defendant which would create a good cause excuse for violation of the Promp 21 Arraignment Rule. It is abundantly clear, however, that if Defendant purposely delayed servic 22 or intentionally failed to appear after being notified of a hearing date, good cause would b 23 found. It is also clear that if the Defendant did nothing to delay service, or had no notice of 24 hearing date, and the Marshalls put forth lackluster efforts to notify Defendant then good caus 25 would not be found. 26 As the Supreme Court said only good cause would prevent dismissal, it becomes th 27 Government's burden to show good cause once the 60 day window has expired. Yet, th 28 Government cites to a number of attempts in which the Marshalls tried serving Defendant wit
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CF 150-1 0 - Page 3 of 5 - 1 the summons and eventually a bench warrant. Once the April 19, 2010 bench warrant w 2 issued, however, no attempts of service were logged until March 9, 2011 when Defendant wa 3 arrested on the bench warrant. Nearly a year passed in which zero efforts were logged as t 4 attempts to locate Defendant, but the need and existence of a bench warrant is very telling in thi 5 matter. The Court must assume that a bench warrant was issued because locating the Defendan 6 was difficult as at least two previous attempts at normal service failed to bring the Defendant t 7 court. The Court must also assume that good cause exists for delay beyond the 60 days where 8 defendant cannot reasonably be located as many jurisdictions have found similarly. See People v. 9 Rock, 403 N.Y.S. 2d 110 (N.Y.A.D. 1978); Carrier v. State, 815 So. 2d 1222, 1224-24 (Miss 10 App. 2001); See also Henson v. State, 832 S.W. 2d 269 (Ark. App. 1992); See also State v. 11 Vailencour, 914 P.2d 767 (Wash. App. 1996). 12 After Defendant was served a copy of the bench warrant and arrested on March 9,2011
13 he was not arraigned until April 13, 2011 which is more than 30 days after any good caus 14 argument would cease to toll. While including the 18 days from Complaint to the arraignmen 15 hearing scheduled and the 35 days from Defendant's arrest via bench warrant to date 0 16 arraignment, there is only a total of 53 days expired l . The Court would find that 7 days were Ie 17 on the clock if good cause is found to exist in the inability to properly serve and bring Defendan
18 to Court. Yet, here there were numerous efforts to serve the Defendant a summons and eventual 1 19 a bench warrant was issued for his arrest. The Court must find good cause to exist where eve 20 effort possible was made to contact Defendant, notify him of the arraignment hearing and ge
21 him to court. Absent other evidence the Court must presume that public officers have fulfille 22 their official duties. us. v. Chemical Foundation, 272 U.S. 1, 6 (1926); See The Confiscatio 23 Cases, 87 U.S. 92 (1873). Here, nothing suggests the Marshals were inadequate in their attempt 24 to locate and serve Defendant and Defendant brought no evidence or made suggestion
25 otherwise. Thus, there must be good cause found for the delay that went beyond the 53 days tha 26 expired as the Marshalls made attempts to serve Defendant and are presumed to have carried ou 27
28 I 8 GCA § 1.25(a) discusses the method in which computation of time is done. The ftrst day in which the event or time to be calculated begins is not included in the determination.
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CF150-10 - Page 4 of5- their duties. Good cause existed in the time frame from issuance of the bench warrant to servic 2 of that warrant. Defendant's Prompt Arraignment Right was not violated as less than 60 day 3 expired where good cause was not found to excuse the delay. Thus, the Court could subject 4 criminal case to dismissal by scheduling arraignment outside the 60 day window, but that did no 5 happen in the present case and all delay over 53 days was attributable to good cause. 6 CONCLUSION 7 For the foregoing reasons, the Court DENIES Defendant's Motion to Dismiss. As to th 8 desired information regarding what efforts were put forth by the Marshals to notify Defendant 0 9 his summons, the Court suggests that in the future the Government attempt to get a record of th 10 efforts taken to notify Defendants not otherwise included in the Court's file. The Court believe 11 that with the shear number of motions based on the Rasauo II decision, the Government may b 12 interested in obtaining more detailed records of the efforts put forth by the Marshals in servin
13 criminal process. 14 So ORDERED this \3~ day of January, 2012. 15 16 17 HONO BLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM 18 19 / / 20 21 22 ............. ... 1*,...,..,tIIt.. ~
................. ." oIIItof. . ~CMltIJf6lllt. / / 23 24 25 / / 26 27 28
People v. Ilemelong, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CF 150-1 0 - Page 5 of 5 -