IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CA~ WQ,CM~19,-)J, . . 3 (..'ljj -';:: ~,VI <1 L,i,_' __ I j lj ) 4 vs. ) DECISION AND~-R)¥i ) (Motion to Dismiss) 5 MARTIN ROSS LEON GUERRERO, ) ) 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 held I : "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 Ir), 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 May 23, 2010 and given a notice to appear with a date of
24 May 15, 2013. On March 10, 2011, the Complaint was filed and a Summons was issued on
25 March 25,2011 for an arraignment scheduled for April 27, 2010. After forty-eight (48) days had
26 passed from the filing of the Complaint, Defendant appeared and was appointed counsel at the
27 April 27, 2010 hearing. In order to provide Defendant the opportunity to meet and confer with 28
lof6 counsel, the arraignment was continued until June 1, 2011, thirty-five (35) days later. The 2 arraignment did not occur on June 1, 2011 due to absence of the arraignment magistrate; thus it 3 was continued for thirty-five (35) days later on July 6, 2011. Defendant was finally arraigned on 4 July 6, 2011, which is more than sixty (60) days after the Complaint was filed. 5 The time between the Complaint and the first appearance on April 27, 2010 does not 6 violate the 60 day rule announced in Rasauo II. However, the Court must determine if the time 7 between April 27, 2010 and July 6, 2011 constitutes good cause or if this case must be 8 dismissed for the 60 day rule violation. In particular, the Court must review what days, if any, 9 after May 9, 2011 constitute "good cause" under Rasauo II. 10 More specifically, the Court must first determine if the time the Court allows a defendant 11 to meet and confer with counsel prior to being arraigned is reasonable and constitutes good 12 cause and then determine if the time an arraignment is continued due to lack of an arraignment 13 magistrate constitutes good cause. 14 Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow 15 reasonable time to a defendant to meet and confer with counsel prior to being arraigned. 16 Meeting with and discussing this with counsel allows a defendant to understand the significance 17 of the arraignment process as well as the defendant's rights, which are asserted or waived at 18 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this 19 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct. 20 App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 21 1, are not present when a defendant is appointed counsel and the delay between the Complaint 22 and the arraignment is partially attributed to the time necessary for a defendant to meet and 23 confer with his appointed attorney. 2011 Guam 1 ~ 53 (quoted by Rasauo, 2011 Guam 14 ~ 10). 24 The Office of the Attorney General has argued in several cases that any delay of 25 arraignment occasioned by a continuance granted by the magistrate court should be excused for 26 good cause. The Court disagrees that a bright line rule of any delay caused by a court's 27 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's 28
1 This holding is hereinafter referred to as the "60 day rule."
20f6 Supreme Court makes it clear that it intended the court and its officers to be subject to the 2 prompt arraignment rule put forth in Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 3 80.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings 4 to the greatest degree that is consistent with the ends of justice"). See also People v. lleme/ong, 5 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 ~ 38. The Public Defender Service Corporation argued that a reasonable amount of 11 time for a defendant to meet and confer with an attorney prior to arraignment is no more than 12 one (1) week. See e.g. Decl. of PDSC Investigator Sea Aguon Cruz, CM319-11 (Dec. 19, 2011). 13 The Court finds that thirty-five (35) days2 is excessive amount of time for a court to 14 provide a defendant to meet and confer with his attorney prior to being arraigned. Since the 15 onus is on all judicial officers and the prosecuting attorneys to ensure that a defendant is 16 promptly arraigned, the Court holds that reasonable time, in the context of a continued 17 arraignment after a defendant is appointed counsel, means no more than thirty (30) days3. 8 18 GCA § 80.50(a). Thus, the delay in this case is per se unreasonable, hence this case should be 19 dismissed for the violation of the 60 day rule. 20 While not necessary to this decision, for purposes of thoroughness, the Court will also 21 address the thirty-five (35) day delay between the first continued arraignment date and the 22 actual arraignment. The Court took judicial notice of the unavailability of a magistrate available 23 to hear arraignments on June I, 2011. The delay in a criminal case due to the unavailability of a 24 judge has been found to be good cause in exceptional circumstances. Gill v. Superior Ct. of 25 Guam, 1996 WL 875781, *4 (D. Ct. Guam Oct. 4, 1996). However, there is no showing of 26
27 th 2 35 days between Apri127 and June I st. 28 3 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.
30f6 exceptional circumstances for delay that commenced on June 1, 2011. It is also of note that 2 since the onus is on all judicial to ensure that a defendant is promptly arraigned, the arraignment 3 might have been continued to the following week, but instead it was continued for over a 4 month. Therefore, the Court finds that the unreasonable delay caused by the unavailability of a 5 magistrate to arraign Defendant is not good cause.
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IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CA~ WQ,CM~19,-)J, . . 3 (..'ljj -';:: ~,VI <1 L,i,_' __ I j lj ) 4 vs. ) DECISION AND~-R)¥i ) (Motion to Dismiss) 5 MARTIN ROSS LEON GUERRERO, ) ) 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 held I : "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 Ir), 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 May 23, 2010 and given a notice to appear with a date of
24 May 15, 2013. On March 10, 2011, the Complaint was filed and a Summons was issued on
25 March 25,2011 for an arraignment scheduled for April 27, 2010. After forty-eight (48) days had
26 passed from the filing of the Complaint, Defendant appeared and was appointed counsel at the
27 April 27, 2010 hearing. In order to provide Defendant the opportunity to meet and confer with 28
lof6 counsel, the arraignment was continued until June 1, 2011, thirty-five (35) days later. The 2 arraignment did not occur on June 1, 2011 due to absence of the arraignment magistrate; thus it 3 was continued for thirty-five (35) days later on July 6, 2011. Defendant was finally arraigned on 4 July 6, 2011, which is more than sixty (60) days after the Complaint was filed. 5 The time between the Complaint and the first appearance on April 27, 2010 does not 6 violate the 60 day rule announced in Rasauo II. However, the Court must determine if the time 7 between April 27, 2010 and July 6, 2011 constitutes good cause or if this case must be 8 dismissed for the 60 day rule violation. In particular, the Court must review what days, if any, 9 after May 9, 2011 constitute "good cause" under Rasauo II. 10 More specifically, the Court must first determine if the time the Court allows a defendant 11 to meet and confer with counsel prior to being arraigned is reasonable and constitutes good 12 cause and then determine if the time an arraignment is continued due to lack of an arraignment 13 magistrate constitutes good cause. 14 Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow 15 reasonable time to a defendant to meet and confer with counsel prior to being arraigned. 16 Meeting with and discussing this with counsel allows a defendant to understand the significance 17 of the arraignment process as well as the defendant's rights, which are asserted or waived at 18 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this 19 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct. 20 App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 21 1, are not present when a defendant is appointed counsel and the delay between the Complaint 22 and the arraignment is partially attributed to the time necessary for a defendant to meet and 23 confer with his appointed attorney. 2011 Guam 1 ~ 53 (quoted by Rasauo, 2011 Guam 14 ~ 10). 24 The Office of the Attorney General has argued in several cases that any delay of 25 arraignment occasioned by a continuance granted by the magistrate court should be excused for 26 good cause. The Court disagrees that a bright line rule of any delay caused by a court's 27 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's 28
1 This holding is hereinafter referred to as the "60 day rule."
20f6 Supreme Court makes it clear that it intended the court and its officers to be subject to the 2 prompt arraignment rule put forth in Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 3 80.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings 4 to the greatest degree that is consistent with the ends of justice"). See also People v. lleme/ong, 5 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 ~ 38. The Public Defender Service Corporation argued that a reasonable amount of 11 time for a defendant to meet and confer with an attorney prior to arraignment is no more than 12 one (1) week. See e.g. Decl. of PDSC Investigator Sea Aguon Cruz, CM319-11 (Dec. 19, 2011). 13 The Court finds that thirty-five (35) days2 is excessive amount of time for a court to 14 provide a defendant to meet and confer with his attorney prior to being arraigned. Since the 15 onus is on all judicial officers and the prosecuting attorneys to ensure that a defendant is 16 promptly arraigned, the Court holds that reasonable time, in the context of a continued 17 arraignment after a defendant is appointed counsel, means no more than thirty (30) days3. 8 18 GCA § 80.50(a). Thus, the delay in this case is per se unreasonable, hence this case should be 19 dismissed for the violation of the 60 day rule. 20 While not necessary to this decision, for purposes of thoroughness, the Court will also 21 address the thirty-five (35) day delay between the first continued arraignment date and the 22 actual arraignment. The Court took judicial notice of the unavailability of a magistrate available 23 to hear arraignments on June I, 2011. The delay in a criminal case due to the unavailability of a 24 judge has been found to be good cause in exceptional circumstances. Gill v. Superior Ct. of 25 Guam, 1996 WL 875781, *4 (D. Ct. Guam Oct. 4, 1996). However, there is no showing of 26
27 th 2 35 days between Apri127 and June I st. 28 3 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.
30f6 exceptional circumstances for delay that commenced on June 1, 2011. It is also of note that 2 since the onus is on all judicial to ensure that a defendant is promptly arraigned, the arraignment 3 might have been continued to the following week, but instead it was continued for over a 4 month. Therefore, the Court finds that the unreasonable delay caused by the unavailability of a 5 magistrate to arraign Defendant is not good cause. Thus, this delay in this case is per se 6 unreasonable, hence this case should be dismissed for the violation of the 60 day rule. 7 Lastly, the Court must determine if the dismissal should be with or without prejudice. 8 4 The Court is persuaded by the People's argument that the dismissal should be without 9 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires 10 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case 11 should be dismissed with or without prejudice should be decided in the first instance by the trial 12 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where 13 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re- 14 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v. 15 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 16 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory 17 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 mr 35-36. 18 Therefore, the Court considers "a showing of prejudice or any other factors" to 19 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 20 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162(a)(2). Defendant does not make a 21 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 22 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 23 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used
24 to determine if dismissal with prejudice is required here. 25 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed 26 for alleged government misconduct which occurs outside the Complaint process because such 27 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of 28
40f6 justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(intemal 2 citations omitted). See also Stephens, 2009 Guam 8 ~ 21(discussing dismissal for unnecessary 3 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 mr 61- 4 70(discussing dismissal based on finding the People acted in bad faith). In this case, there is no 5 alleged government misconduct or bad faith on the part of the People5 . Instead, there is a 6 violation of the 60 day rule, which was recently announced in Rasauo II, which requires 7 dismissal, but not necessarily dismissal with prejudice. 8 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 9 message to prosecutors who have consistently violated defendants' rights and force them to 10 reduce pretrial delays in general. u.s. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 11 2011). Stephens, 2009 Guam 8 ~ 21("If a court is to apply the harsh rule of dismissing a 12 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 13 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 14 arraignment right is not an issue this Court has been asked to address in relation to arraignments 15 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 16 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 17 to believe that the People do not require a strong message from this Court to ensure that they are 18 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of 19 dismissal without prejudice. 20 Further, in this circumstance, dismissal without prejudice can not be seen as condoning 21 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at 22 the time of the delay of the Defendant's prompt arraignment. !d. This factor weighs in favor of 23 dismissal without prejudice. 24 In this scenario, Defendant's constitutional rights are not implicated, thus the Court 25 should weigh the violation of Defendant's right to a prompt arraignment with the competing 26 interest "of society to be secure from crime through the regular enforcement of the criminal 27
28 4 This issue was raised orally, not in the written opposition.
50f6 laws." Gutierrez, 2005 Guam 19 ,-r 68(intemal citation and quotation omitted). Upon balancing 2 these factors as well as taking into consideration of lack of showing of prejudice the Court 3 determines that dismissal without prejudice is most appropriate. 4 There are one hundred eighteen (118) days between the filing of the Complaint and 5 Defendant's arraignment. The forty-eight (48) days between the filing of the Complaint and 6 Defendant's first appearance do not violate the 60 day rule. As indicated above, the thirty-five 7 (35) days between Defendant's first appearance and Defendant's first scheduled continued 8 arraignment is an unreasonable delay and is not good cause. Further, the additional thirty-five 9 (35) days between the first scheduled arraignment and his actual arraignment is an unreasonable 10 delay and is not good cause. Since there is not good cause shown for the entire duration of the 11 violation of the 60 day rule, Defendant's Motion is GRANTED in part. Rasauo, 2011 Guam 14 12 ,-r 16. The Court finds that Defendant was not promptly arraigned pursuant to 8 GCA § 60.10(a); 13 therefore, the Court is DISMISSING this case without prejudice. 14
15 IT IS SO ORDERED this 10th of February, 2012. 16
18 HONORABLE ELIZABETH BARRETT-ANDERSON 19 Judge, Superior Court of Guam 20
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.
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