People v. Kosam

Opinion

IN THE SUPERIOR COURT OF GUAM 2 2012 ftO 23 f.: I [;: l: I PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM460-l i 3 ) 4 vs. ) DECISION AND ORDER ) (Motion to Dismiss) 5 DARRELL TONGAN KOSAM, ) ) 6 Defendant. ) 7

8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on

9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion").

10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were

11 represented by Assistant Attorney General James C. Collins. The Court having considered all

12 the oral 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 July 2, 2010 and given a notice to appear ("NTA") with a 2 24 date of June 22,2011. On April 26, 2011, the Complaint was filed, but no summons was issued . 25

26 I This holding is hereinafter referred to as the "60 day rule." 27 2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a 28 probable cause determination is made. 8 GCA § 15.20(a). Also, currently, all persons arrested for DUl charge are brought before a magistrate for a probable cause determination prior to being released; therefore, a NTA is not issued.

lof4 Id. at ~ 7. The Magistrate Court appointed Defendant representation on June 22, 2011 and set 2 the continued arraignment for July 20, 2011. Defendant was arraigned after eighty-five (85) 3 days had passed from the filing of the Complaint. 4 The Court notes that the People concede that there is no good cause for the delay 5 between the filing of the Complaint and the NTA date fifty-seven (57) days later. This amount 6 of delay does not violate the 60 day rule announced in Rasauo II; thus the Court will review the 7 other delays to determine if the time after June 27,2011 3 constitutes good cause or if this case 8 must be dismissed for the 60 day rule violation. 9 More specifically, the Court must first determine if the time the Court allows a defendant 10 to meet and confer with counsel prior to being arraigned is reasonable and constitutes good 11 cause. Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow 12 reasonable time to a defendant to meet and confer with counsel prior to being arraigned. 13 Meeting with and discussing this with counsel allows a defendant to understand the significance 14 of the arraignment process as well as the defendant's rights, which are asserted or waived at 15 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this 16 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct. 17 App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 18 1, are not present when a defendant is appointed counsel and the delay between the Complaint 19 and the arraignment is partially attributed to the time necessary for a defendant to meet and 20 confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by Rasauo, 2011 Guam 14 ~ 10). 21 In this case, Defendant argued that a reasonable amount of time for a defendant to meet 22 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Decl. of 23 PDSC Investigator Sea Aguon Cruz, CM460-11 (Dec. 19, 2011). The Office of the Attorney 24 General has argued in several cases that any delay of arraignment occasioned by a continuance 25 granted by the magistrate court should be excused as good cause. The Court disagrees that a 26 bright line rule of any delay caused by a court's calendaring of a criminal matter is 27

28 3 The sixtieth day falls on Saturday, June 25, 2011; thus pursuant to 8 GCA § I.25(a) the end of the 60 day rule is June 27, 2011.

20f4 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 2 intended the court and its officers to be subject to the prompt arraignment rule put forth in 3 Rasauo II. Rasauo, 2011 Guam l4,-r 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 4 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 5 ends of justice"). See also People v. Ilemeiong, CF150-10 (Super. Ct. Guam Jan. 13,2012). 6 Further, the Court rejects the contention that any length of delays caused by the time 7 provided to a defendant to meet and confer with an attorney is automatically good cause. The 8 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet 9 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009 10 Guam 22 ,-r 38. Since the onus is on all judicial officers and the prosecuting attorneys to ensure 11 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 12 continued arraignment after a defendant is appointed counsel, means no more than thirty (30) 13 days4. 8 GCA § 80.50(a). Therefore, the Court fmds that twenty-eight (28) days is not an 14 excessive amount of time for a court to provide a defendant to meet and confer with his attorney 15 prior to being arraigned. Thus, the delay in this case is due to allowing Defendant time to meet 16 and confer with counsel prior to arraignment is reasonable and constitutes good cause. 17 II 18 II 19 II 20

28 4 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 thirty (30) days is reasonable.

30f4 There are eighty-five (85) days between the filing of the Complaint and Defendant's 2 arraignment. Nonetheless, since there is good cause shown for the entire duration of the 3 violation of the 60 day rule, Defendant's Motion is DENIED. Rasauo, 2011 Guam 14 ~ 14. A 4 criminal trial setting shall occur on February 27,2012 at 9:30 a.m. 5

6 IT IS SO ORDERED this _ of February, 2012. 7

9 HONORABLE ELIZABETH BARRETT- ANDERSON 10 Judge, Superior Court of Guam 11

23 GhIlricJ.M 24

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