People v. Lujan

Opinion

." FILED SUPERIOR COURT

OF GUAM

IN THE SUPERIOR COURT OF GUAM 9 28 1011 fEB -8 N1 :

2 THE PEOPLE OF GUAM ) CRIMINAL CASE NO. CM0636-11 3 ) CLERK OF COURT VS. )

4 )

) DECISION AND ORDER 5 MARIO H. JULIAN, ) ON DEFENDANT'S MOTION TO 6 ) DISMISS " Defendant. )

7 )

)

8 ----------------------------)

9 This matter came before the HONORABLE VERNON P. PEREZ on November 16,2011 10 on Defendant's Motion to Dismiss. Attorney Raymond B. Dagan represented Defendant, wh 11 was present. Attorney Nelson J. Werner appeared on behalf of the Government. Havin 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 assault as a misdemeanor. Defendant requests dismissal as h 16 argues that the time from the filing of the criminal complaint against him to the time he w 17 arraigned was in violation of the recent decision handed down by the Supreme Court of Guam .

18 People v. Rasauo, 2011 Guam 14.

19 DISCUSSION

20 Defendant argues that the case be dismissed for violation of the rule put forth in People v.

21 Rasauo, 2011 Guam 14 (hereinafter "Rasauo 11'). See also 8 GCA §60.1O. The recent Suprem 22 Court decision requires dismissal where a defendant is not arraigned within 60 days of the dat 23 of filing of a formal criminal complaint. Yet, as the Government argues, delay in arraignmen 24 may be excused where "good cause" is shown. Id at '14. In Rasauo IL the Guam Suprem 25 Court found that delay from the Government continuing with a separate charge befor 26 proceeding on the second crime was not good cause delay. Here, the Government alleges th 27 prosecution of the case was not done in a negligent manner. The Government claims that i 28 expedited all proceedings as much as possible against Defendant. The Government believes tha

People v. Julian, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0636-11 - Page I of6-

good cause delay exists where the courts are at fault for setting first appearance hearings heyon 2 60 days from a formal complaint. In furtherance of that contention, the Government puts fo 3 that the Rasauo II decision is focused on prosecutorial delay and does not apply the same stric 4 standards for all Government bodies affiliated with criminal proceedings that exist for th 5 Speedy Trial Right. On the other hand, Defendant argues that even the courts and its officers ar 6 subject to the speedy arraignment right created in Rasauo 11 That is the crux of the issue hefor 7 the Court now. Does good cause delay exist where the Court system does not get a defendant t 8 the hearing for arraignment until 60 days after the complaint was filed? 9 Defendant argues that Rasauo II aligned prompt arraignment with the Speedy Trial Righ 10 by applying the same 60 day standard. Defendant cites to another Guam Supreme Court decisio 11 which the Rasauo II Court also quoted. In People v. Stephen, the Court stated that promp 12 arraignment is "a statutory expression of the speedy trial right. 2009 Guam 8 ,32. Defendan 13 argues that in dismissal requests arising from a violation of the Speedy Trial Right, the court 14 may also be responsible for the violation. In Speedy Trial Right violations, the remedy is th 15 same as if the Government created the delay, which is at minimum dismissal. Defendan 16 concludes in arguing that if the Supreme Court intended to align prompt arraignment with th 17 Speedy Trial Right, that the standards applying to the Speedy Trial Right also apply. 18 The Government argues that the intent behind Rasauo II was not to ensure that the co 19 promptly place all hearings for a Defendant's first appearance within 60 days. The Governmen 20 contends that the Guam Supreme Court meant only to deter prosecutorial delay. In addition, th 21 Government claims that it would be unreasonable to ask that the calendar for courts he subject t 22 a 60 day window for arraignments of criminal defendants. 23 The Court finds no relevant precedent in case law to base its decision, but finds i 24 abundantly clear that the Supreme Court did imply that the courts are also responsible fo 25 ensuring prompt arraignment. That intent is clear considering the Guam Supreme Co 26 declaring that "this principle is directly embodied in our statutory framework" and quoting 27 GCA §80.50(a) shortly after that statement, which provides: 28 "the welfare of the people of the territory of Guam requires that al

People v. Julian, Decision and Order (Defendant's Motion to Dismiss)

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proceedings in criminal cases shall be set for trial and heard an detennined at the earliest possible time, and it shall be the duty of al 2 courts and judicial officers and of all prosecuting attorneys to expedit 3 such proceedings to the greatest degree that is consistent with the ends 0 justice". (2010).

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5 Therefore, the Guam Supreme Court made it clear that it intended the court and its officers to b 6 subject to the prompt arraignment rule put forth in Rasauo II Here, there clearly was more t 7 60 days from complaint to arraignment and court created delay can require dismissal if there i 8 no good cause. The issue now becomes whether there was good cause for the delay the court an 9 its officers created in getting Defendant to arraignment? 10 The Government filed the complaint, May 26, 2011 without requesting a summons b 11 issued from the Court. The Court first issued a summons on June 8, 2011 ordering Defendant t 12 appear July 13, 2011 at 10:00a.m.. Defendant did not show and it is not clear whether or no 13 Defendant was notified of that hearing. In a perfect world, the Defendant would have bee 14 arraigned 48 (from May 26, 2011- July 13, 2011) days after the complaint was filed. Yet 15 Defendant did not appear and it is not clear whether or not Marshals put forth enough effort t 16 locate Defendant or whether or not a good cause excuse existed for the violation of promp 17 arraignment. It is abundantly clear that if Defendant purposely delayed service or intentionall 18 failed to appear after being notified of a hearing date, good cause would be found. It is also cle 19 that if the Defendant did nothing to delay service, or had no notice of a hearing date, and th 20 Marshalls put forth lackluster efforts to notify Defendant then good cause would not be found. 21 Here, with 12 days left before a violation of the Prompt Arraignment Right the Court issued jus 22 its second summons with a hearing date set for August 31, 2011 more than a month beyond th 23 60 day limit. 24 As the Supreme Court said only good cause would prevent dismissal, it becomes th 25 Government's burden to show good cause once the 60 day window has expired. Here, n 26 evidence suggests that Defendant was notified of the summons or that he actively evaded servic 27 or intentionally failed to appear at court. Therefore, the Government cannot claim good caus 28 where evidence exists indicating a failure to put forth reasonable efforts to notify Defendant 0

People v. Julian, Decision and Order (Defendant'S Motion to Dismiss)

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1 his hearing date. Once the summons was reissued on July 15 2011 however no aft mpts 0

2 service were logged until the date of Defendant s first expected appearance expired which w 3 August 31 2011. In the second summons the Court required Defendant to appear on August 31

4 2011 which is far in excess of the 60 day limit In additio~ the file i void of any failed attemp 5 at service. There is simply not a single attempt to serve the summons on the Defendant from th

6 date of the second summons issued on July 13 2011 to August 31 20 II. On eptember 1 2011

7 the Court is ued a bench warrant. Defendant was arrested on th bench warrant the same day 8 less than five h urs after the bench warrant was issued. Presumably the Marshals w re able t

9 find Defendant fairly easiJy once th y began looking for him. Absent a showing of som I0 inclination that Defendant was evading service or otherwise hard to find, the Court cannot fin

11 good cause. In additio~ th Court and the Marshals have Defendant s addre s on fiJe the sam 12 address used to locate Defendant to serve upon him the bench warrant Evidently no attempt

13 were made to serve the Defendant with the second summon or locat the Defendant until on

14 month beyond th expiration of the 60 day limit.

15 Th Court generally must assume that a bench warrant was issued because locating th ]6 Defendant was difficult but here no documented attempts at normal service were made to brio

17 th D fenrlant to court. The Court must also assume that good cause exists for delay beyond th 18 60 days where a defendant cannot reasonably be located as many jurisdictions haVi foun

19 similarly. See People v. Rock, 403 .Y.S. 2d 110 (N.V.A.D. 1978)' arrier v. State, 815 o. 2 20 1222 1224-24 (Miss. App. 2001)' See also Henson v. Stale 832 .W. 2d 269 (Ark. App. 1992) 21 See also Stale v. Vailencow; 914 P.2d 767 (Wash. App. 1996). However th re is no evidence tha 22 Defendant could not be reasonably located. On th contrary Defendant was found the same da 23 the bench warrant went out and his address was on file. No attempts at service were made an

24 the Government appears to have failed in making a reasonable search.

25 As to the time period aft r Defi ndant was appointed ounsel to actual arraignment, th 26 ourt finds good cause to exist. Attorney s must be given time to get up to speed on a client

27 case and be given ample opportunity to explain th events to the client so that defendants facin

28 criminal cbarg s understand the system, complaint and upcoming procedures. Here the Co

People v . Julian , Dec" 'on d Order (Defendant's Motion to Dismiss) Criminal Case No. CM0636-11 • Page 4 of6·

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scheduled 20 days between appointment of Counsel to arraignment and that appears to be fai 2 under the circumstances. Any period of time significantly larger than that and the Court wow 3 be hard-pressed to find good cause. 4 In a recent decision by this Court, the discussion was based on similar grounds. In tha 5 case, dismissal was denied because throughout the delay, the Marshalls recorded several attemp 6 at personal service and this Court found good cause. In this instance, not a single attempt a 7 service was re~Br.i.in th~,ffl1J:~;ttie~~!ls'apresumption that the Marshalls performed their dutie ... fJ't '" 'J"" v<>- ~_ >~, i<-~ ~ ,,I.

if _1I_ 10

8 diligently, but in this circumstance, the Court sees no effort at all put forth and no indication tha 9 Defendant was hard to find. 1 Where there is no indication either way, the Court will assume tha 10 the Marshals, as any Court Officer, performed their duties. The presumption is voided where th 11 existing evidence indicates a lack of effort on behalf of the Marshals. The Court believes that i 12 most of these cases, the Defendant should be required to show that he did not purposefully evad f''''; -t ;{' { i' '_

13 service.· Here;< this CourUs.bonfident that the Marshalls and the Court itself could have done 14 great deal more to arraign Defendant sooner. 15 Even after Defendant was served a copy of the bench warrant and arrested on Septembe 16 1,2011, he was not given an arraignment date until September 7, 2011. 104 days expired fro 17 May 26, 2011 to September. 2 The Court is unable find any days remaining on the clock afte 18 good cause is considered in allowing Defendant's attorney to get up to speed. Here, n 19 document, record or statement indicates efforts put forth to locate the Defendant by th 20 Government or by court officers at any time after the complaint was filed. The Court finds n 21 good cause for any delay from the filing of the complaint to appointment of Counsel. 22 The Courts recognize that the Rasauo II decision is very recent and that most of th 23 failures to arraign defendants promptly are not in bad faith as the Government and court staff di 24 not previously know of the 60 day limit. Thus, the Court would be remiss to dismiss this cas 25 with prejudice without showing some negligence to prosecute cases on behalf of the Govemmen 26 27 1 Absent other evidence, the Court must presume that public officers have fulfilled their official duties. us. v.

Chemical Foundation, 272 U.S. 1,6 (1926); See The ConfIScation Cases, 87 U.S. 92 (1873).

28 2 8 GCA § 1.25(a) discusses the method in which computation of time is done. The first day in which the event or time to be calculate begins is not included in the determination.

People v. Julian, Decision and Order (Defendant'S Motion to Dismiss)

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1 or some knowledge of the 60 day limit by the court staff. This case is dismissed withou

2 prejudice. 3 CONCLUSION

4 For the foregoing reasons, the Court GRANTS Defendant's Motion to Dismiss.

S(fS"16fi of February, 2012.

5 6 So ORDERE

fm

7 8 HO 0 BLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM 9 10 / / 140 Mmy I:utlfy tllal the forcaoillC I. a full d ,orrect copy of the 11 orllli 00 m .. III tb~ oWn of tilt'

def of tile Su .....rior COlirt of G. . .

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12 / / 13 EB () 2012 a _elM S.C. '7A~

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People v. Julian, Decision and Order (Defendant's Motion to Dismiss)