IN THE SUPERIOR COURT OF GUAM
2 THE PEOPLE OF GUAM, ) 3 ) VS. ) 4 ) 5 ) DECISION AND ORDER ROLAND CLARK NGIRACHELSAU, ) (MOTION TO DISMISS) 6 ) Defendant. ) 7 ) 8
9 INTRODUCTION 10
11 This matter came before the HONORABLE VERNON P. PEREZ on May 31, 2012 0
12 Defendant's Motion to Dismiss. Attorney Frances C. DeCecco appeared on behalf of th 13 Government. Attorney Suresh Sampath represented Defendant, who was present. Havin 14 reviewed the pleadings, the arguments presented and the record, the Court now issues th 15
16 following Decision and Order.
18 BACKGROUND 19 Roland Clark Ngirachelsau ("Defendant") was arrested for DUI on September 5, 2009, 20 and taken into Guam Police Department ("GPD") custody. GPD released Defendant fro 21
22 custody and issued a Citation and Notice to Appear ordering him to appear in court 0
23 September 1, 2010. The Government filed a Complaint against Defendant on August 31, 2010 24 Defendant did not appear on September 1, 2010, and Magistrate Tolentino issued a bene 25 warrant on September 3, 2010. Marshals of the Superior Court of Gua 26 ("Marshals") served Defendant at Tiyan precinct nineteen months later on April 2, 2012. 27
28 is no information on file regarding the Marshals' efforts to execute the warrant before April 2
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-1O - Page 1 of9- 2012. Defendant was ordered to return to court for arraignment on April 4, 2012, upon whic 1
2 time Public Defenders Services Corporation ("PDSC") was appointed counsel and given time t
3 confer. Defendant was arraigned on April 11, 2012. 4 Defendant filed its Motion for the Dismissal of the Complaint ("Motion") on May 3 5 2012. The Government filed the People's Opposition to Motion to Dismiss ("Opposition") 0 6 May 14,2012. Defendant then filed its Reply to People's Opposition to Defendant's Motion fo 7
8 the Dismissal of the Complaint ("Reply") on May 23,2012.
9 Defendant requests dismissal as he argues that the time from the filing of the crimi 10 Complaint against him to the time he was arraigned was in violation of the Prompt Arraignmen 11 Rule recently handed down by the Supreme Court of Guam in People v. Rasauo, 2011 Guam 1 12
13 (hereinafter "Rasauo Ir).
15 DISCUSSION 16 Defendant argues this case must be dismissed, as it violates the rule set forth in Rasau 17 II. Rasauo II requires dismissal where a defendant is not arraigned within 60 days from the dat 18
19 of filing of a formal criminal complaint. Yet, as the Government argues, delay in arraignmen
20 may be excused where "good cause" is shown. 21 Defendant argues he was not promptly arraigned as provided by 8 GCA § 60.1O(a). 22 While Defendant accepts some responsibility for the delay, he attributes the extensive delay t 23 the Superior Court Marshals' failure to make reasonable and diligent attempts to execute th 24
25 bench warrant. Motion at 2-3. Defendant argues "good cause" expressed in Rasauo II does no
26 exist here, since the warrant was issued in September 2010 and not served until April 2012. Id. 27 at 4. Defendant notes that under 8 GCA § 80.50 "it shall be the duty of the all courts and judici 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 2 of9- officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree tha
2 is consistent with the ends of justice." Id at 2 Finally, Defendant cites Hawaii case law t
3 contend that the Rasauo 11 ruling is a bright line rule, and any delay over 60 days require 4 dismissal for "failure to prosecute for due diligence." Motion at 3; See State v. Mageo, 889 P.2 5 1092 (Haw. App. 1995) (holding that Penal summons issued in 1989 was not served until 1991 6 and thus the matter was dismissed for unreasonable delay); See State v. Lei, 21 P. 3d 880, (Haw 7
8 2001) (holding that although a bench warrant was served two years after Defendant failed t
9 appear, the delay was excused based on the volume of outstanding warrants). 10 The Government recognizes the "60 day rule" announced in Rasauo 11, which establishe 11 that criminal defendants must be arraigned within 60 days of the filing of an indictment 0 12 complaint. The Government further explains the prompt arraignment rule codified in 8 GC 13
14 60.10 is aligned with the Right to Speedy Trial time period found in Section 8 GCA 80.60(a)(3).
15 Opposition at 3. In People v. Stephen, the Court stated that prompt arraignment is "a statuto 16 expression of the speedy trial right. 2009 Guam 8 ~32. The government also notes that th 17 Rasauo 11 decision does not expound on the definition of "good cause," which calls for th 18
19 necessity for case-by-case analysis. Opposition at 4. The government alleges that there wa
20 good cause for its failure to arraign the Defendant within 60 days. Id The Government note 21 the major interval between the filing of the complaint in Defendant's case and actual arraignmen 22 was approximately nineteen (19) months. Id at 5. To support its good cause argument, th 23 Government indicates it is universally held that the clock tolls in cases where defendants fail t 24
25 appear and cannot reasonably be located for further criminal process, and thus there is goo
26 cause to justifY the delay during this nineteen-month period. Id The Government finally note 27 that the language of HRPP 9(c)(3) conflicts with 8 GCA §15.70. Id at 5-6. While Hawaii' 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 3 of9 - statute explicitly states both warrants and summons must be executed "without unnecess
2 delay," 8 GCA § 15.70 does not impose such a requirement. Rather, Guam's warrant statute oni
3 requires warrants and summons to be served in the Territory and warrants executed by a peac 4 officer. 5 The Court agrees with the Government that 8 GCA §§§ 15.70, 60.10, or 80.50 do no 6 require peace officers to make a showing of attempts to execute warrants or summons. Absen 7
8 direct statutory language to the contrary, peace officers are presumed to fulfill their duties.
9 People v. Carpela, CM 1089-10 (Mach 5, 2012). Aside from Defendant's absence from th 10 criminal justice system for nineteen months, there are three other periods of delay: the one da 11 delay between the filing of the Complaint and Defendant's NTA hearing; the two day dela 12
13 between the return of warrant hearing on April 2, 2012, and Defendant's first arraignment 0
14 April 4, 2012; and the seven day delay between April 4, 2012, and Defendant's actu 15 arraignment on April 11, 2012. Opposition at 4. 16 On the date of Defendant's DUI, he was given a NTA scheduled for September 1, 2010 17 at 10:00 a.m. The Government filed a Complaint, August 31, 2010. Defendant did not appe 18
19 and subsequently a bench warrant was issued September 3, 2010. On April 2, 2012, Marshal
20 served the bench warrant on Defendant, a year and a half later, when he appeared at Tiyan polic 21 precinct. Defendant was arraigned on April 11, 2012. It is not clear whether or not Marshals pu 22 forth enough effort to locate Defendant which would create a good cause excuse for violation 0 23 the Prompt Arraignment Rule. It is abundantly clear, however, that if Defendant purposel 24 25 delayed service or intentionally failed to appear after being notified of a hearing date, good caus
26 would be found.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPERIOR COURT OF GUAM
2 THE PEOPLE OF GUAM, ) 3 ) VS. ) 4 ) 5 ) DECISION AND ORDER ROLAND CLARK NGIRACHELSAU, ) (MOTION TO DISMISS) 6 ) Defendant. ) 7 ) 8
9 INTRODUCTION 10
11 This matter came before the HONORABLE VERNON P. PEREZ on May 31, 2012 0
12 Defendant's Motion to Dismiss. Attorney Frances C. DeCecco appeared on behalf of th 13 Government. Attorney Suresh Sampath represented Defendant, who was present. Havin 14 reviewed the pleadings, the arguments presented and the record, the Court now issues th 15
16 following Decision and Order.
18 BACKGROUND 19 Roland Clark Ngirachelsau ("Defendant") was arrested for DUI on September 5, 2009, 20 and taken into Guam Police Department ("GPD") custody. GPD released Defendant fro 21
22 custody and issued a Citation and Notice to Appear ordering him to appear in court 0
23 September 1, 2010. The Government filed a Complaint against Defendant on August 31, 2010 24 Defendant did not appear on September 1, 2010, and Magistrate Tolentino issued a bene 25 warrant on September 3, 2010. Marshals of the Superior Court of Gua 26 ("Marshals") served Defendant at Tiyan precinct nineteen months later on April 2, 2012. 27
28 is no information on file regarding the Marshals' efforts to execute the warrant before April 2
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-1O - Page 1 of9- 2012. Defendant was ordered to return to court for arraignment on April 4, 2012, upon whic 1
2 time Public Defenders Services Corporation ("PDSC") was appointed counsel and given time t
3 confer. Defendant was arraigned on April 11, 2012. 4 Defendant filed its Motion for the Dismissal of the Complaint ("Motion") on May 3 5 2012. The Government filed the People's Opposition to Motion to Dismiss ("Opposition") 0 6 May 14,2012. Defendant then filed its Reply to People's Opposition to Defendant's Motion fo 7
8 the Dismissal of the Complaint ("Reply") on May 23,2012.
9 Defendant requests dismissal as he argues that the time from the filing of the crimi 10 Complaint against him to the time he was arraigned was in violation of the Prompt Arraignmen 11 Rule recently handed down by the Supreme Court of Guam in People v. Rasauo, 2011 Guam 1 12
13 (hereinafter "Rasauo Ir).
15 DISCUSSION 16 Defendant argues this case must be dismissed, as it violates the rule set forth in Rasau 17 II. Rasauo II requires dismissal where a defendant is not arraigned within 60 days from the dat 18
19 of filing of a formal criminal complaint. Yet, as the Government argues, delay in arraignmen
20 may be excused where "good cause" is shown. 21 Defendant argues he was not promptly arraigned as provided by 8 GCA § 60.1O(a). 22 While Defendant accepts some responsibility for the delay, he attributes the extensive delay t 23 the Superior Court Marshals' failure to make reasonable and diligent attempts to execute th 24
25 bench warrant. Motion at 2-3. Defendant argues "good cause" expressed in Rasauo II does no
26 exist here, since the warrant was issued in September 2010 and not served until April 2012. Id. 27 at 4. Defendant notes that under 8 GCA § 80.50 "it shall be the duty of the all courts and judici 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 2 of9- officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree tha
2 is consistent with the ends of justice." Id at 2 Finally, Defendant cites Hawaii case law t
3 contend that the Rasauo 11 ruling is a bright line rule, and any delay over 60 days require 4 dismissal for "failure to prosecute for due diligence." Motion at 3; See State v. Mageo, 889 P.2 5 1092 (Haw. App. 1995) (holding that Penal summons issued in 1989 was not served until 1991 6 and thus the matter was dismissed for unreasonable delay); See State v. Lei, 21 P. 3d 880, (Haw 7
8 2001) (holding that although a bench warrant was served two years after Defendant failed t
9 appear, the delay was excused based on the volume of outstanding warrants). 10 The Government recognizes the "60 day rule" announced in Rasauo 11, which establishe 11 that criminal defendants must be arraigned within 60 days of the filing of an indictment 0 12 complaint. The Government further explains the prompt arraignment rule codified in 8 GC 13
14 60.10 is aligned with the Right to Speedy Trial time period found in Section 8 GCA 80.60(a)(3).
15 Opposition at 3. In People v. Stephen, the Court stated that prompt arraignment is "a statuto 16 expression of the speedy trial right. 2009 Guam 8 ~32. The government also notes that th 17 Rasauo 11 decision does not expound on the definition of "good cause," which calls for th 18
19 necessity for case-by-case analysis. Opposition at 4. The government alleges that there wa
20 good cause for its failure to arraign the Defendant within 60 days. Id The Government note 21 the major interval between the filing of the complaint in Defendant's case and actual arraignmen 22 was approximately nineteen (19) months. Id at 5. To support its good cause argument, th 23 Government indicates it is universally held that the clock tolls in cases where defendants fail t 24
25 appear and cannot reasonably be located for further criminal process, and thus there is goo
26 cause to justifY the delay during this nineteen-month period. Id The Government finally note 27 that the language of HRPP 9(c)(3) conflicts with 8 GCA §15.70. Id at 5-6. While Hawaii' 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 3 of9 - statute explicitly states both warrants and summons must be executed "without unnecess
2 delay," 8 GCA § 15.70 does not impose such a requirement. Rather, Guam's warrant statute oni
3 requires warrants and summons to be served in the Territory and warrants executed by a peac 4 officer. 5 The Court agrees with the Government that 8 GCA §§§ 15.70, 60.10, or 80.50 do no 6 require peace officers to make a showing of attempts to execute warrants or summons. Absen 7
8 direct statutory language to the contrary, peace officers are presumed to fulfill their duties.
9 People v. Carpela, CM 1089-10 (Mach 5, 2012). Aside from Defendant's absence from th 10 criminal justice system for nineteen months, there are three other periods of delay: the one da 11 delay between the filing of the Complaint and Defendant's NTA hearing; the two day dela 12
13 between the return of warrant hearing on April 2, 2012, and Defendant's first arraignment 0
14 April 4, 2012; and the seven day delay between April 4, 2012, and Defendant's actu 15 arraignment on April 11, 2012. Opposition at 4. 16 On the date of Defendant's DUI, he was given a NTA scheduled for September 1, 2010 17 at 10:00 a.m. The Government filed a Complaint, August 31, 2010. Defendant did not appe 18
19 and subsequently a bench warrant was issued September 3, 2010. On April 2, 2012, Marshal
20 served the bench warrant on Defendant, a year and a half later, when he appeared at Tiyan polic 21 precinct. Defendant was arraigned on April 11, 2012. It is not clear whether or not Marshals pu 22 forth enough effort to locate Defendant which would create a good cause excuse for violation 0 23 the Prompt Arraignment Rule. It is abundantly clear, however, that if Defendant purposel 24 25 delayed service or intentionally failed to appear after being notified of a hearing date, good caus
26 would be found. It is also clear that if the Defendant did nothing to delay service, or had n 27 notice of a hearing date, and the Marshals put forth lackluster efforts to notify Defendant the 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 4 of9- good cause would not be found.
2 As the Supreme Court said only good cause would prevent dismissal, it becomes th
3 Government's burden to show good cause once the 60 day window has expired. Once th 4 September 3,2010, bench warrant was issued, however, no attempts of service were logged unti 5 April 2, 2012, when Defendant was arrested on the bench warrant. Nearly a year and a hal 6 passed in which zero efforts were logged as to attempts to locate Defendant, but the need an 7
8 existence of a bench warrant is very telling in this matter. The Court must assume that a benc
9 warrant was issued because locating the Defendant was difficult as he did not appear for his NT 10 date and his address listed on the NTA citation differed from that listed on the Return of Warran 11 dated April 2, 2012. The Court must also assume that good cause exists for delay beyond the 6 12 days where a defendant cannot reasonably be located, as many jurisdictions have foun l3
14 similarly. See People v. Rock, 403 N.Y.S. 2d 110 (N.Y.A.D. 1978); Carrier v. State, 815 So. 2
15 1222, 1224-24 (Miss. App. 2001); See also Henson v. State, 832 S.W. 2d 269 (Ark. App. 1992); 16 See also State v. Vailencour, 914 P.2d 767 (Wash. App. 1996). After Defendant was served 17 copy of the bench warrant and arrested on April 2, 2012, he was not arraigned until April 11 18
19 2012. Though the total period from Complaint to Arraignment totals nearly a year and a half
20 most of the delay is attributed to Defendant's failure to appear and the necessity of a benc 21 warrant and its service upon Defendant. The Defendant's absence from the judicial proces 22 would necessarily delay arraignment. Although it is unclear what efforts the Marshals pursue 23 prior to service on April 2, 2012, efforts to serve Defendant would have been frustrated by th 24
25 incorrect address listed on his Citation and Notice to appear. The Court must find good cause t
26 exist where every effort possible was made to contact Defendant, notify him of the arraignmen 27 hearing and get him to court. The Court must find good cause where every effort possible wa 28
People v. Ngirachelsau. Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-IO - Page 5 of9- made to contact Defendant, notify him of the arraignment hearing and get him to court. An
2 absent other evidence, the Court must presume that public officers have fulfilled their officia
3 duties. us. v. Chemical Foundation, 272 U.S. 1,6 (1926); See The Confiscation Cases, 87 U.S. 4 92 (1873). 5 In an earlier case, People v. Carpela, CM 1089-10, this Court found good cause for 6
7 delay over 60 days where Defendant was difficult to locate, and the Marshals made severa
8 attempts to serve a bench warrant. Here, Defendant contends the Marshals' efforts wer 9 inadequate serving the bench warrant, because there is no documentation of the Marshals effo 10 up until April 2, 2012. But lack of documentation is not dispositive of the Marshals efforts, eve 11 without listing attempts, Marshals are presumed to carry out their duties. Barring flagrant error 12
13 the Marshals are presumed to have carried out their duties. Here, Defendant listed a differen
14 address at the time of citation from the one listed at the time the bench warrant was served. Eve 15 if unintentional, this conduct would have frustrated the Marshals attempts at service. Good caus 16 existed from issuance of the bench warrant to service of that warrant. Defendant's Promp 17 Arraignment Right was not violated as less than 60 days expired where good cause was no 18 19 found to excuse the delay.
20 Furthermore, Defendant's contention that Rasauo II, 8 GCA §§80.50, and 15.70 evade 21 good cause argument by statutorily requiring expediency "without unnecessary delay," like i 22 Hawaii, is unsound. None of the above sections impose such a duty on any public officer. 'f, 23 impart such a duty would be asking the Court to usurp the role of the legislature as lawmakers. 24
25 As such, though Defendant's argument is persuasive, it bears no weight on the manner 0
26 execution of warrants and summons. Thus, the proper analysis of the delay remains a 27 evaluation of good cause. 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 6 of9- The next question is if the delay between April 4 and April 11, 2012 amounts to good
2 cause for purposes of the 60 day rule. More specifically, the Court must determine if the time
3 the Court allows a defendant to meet and confer with counsel prior to being arraigned is 4 reasonable and constitutes good cause. Title 8 Guam Code Annotated section 45.30(c) requires 5 that the Court shall allow reasonable time to a defendant to meet and confer with counsel prior 6 to being arraigned. Meeting with and discussing this with counsel allows a defendant to 7
8 understand the significance of the arraignment process as well as the defendant's rights, which
9 are asserted or waived at arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical 10 for a defendant to have this understanding at time of arraignment. See e.g. Huston v. Com., 171 11 S.W.3d 743, 744-45 (Ky. Ct. App. 2005). Further, the concerns of Guam's Supreme Court in 12
13 People v. Rasauo, 2011 Guam 1, are not present when a defendant is appointed counsel and the
14 delay between the Indictment and the arraignment is partially attributed to the time necessary 15 for a defendant to meet and confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by 16 Rasauo, 2011 Guam 14 ~ 10). 17 The Court disagrees that a bright line rule of any delay caused by a Court's calendaring 18
19 of a criminal matter is automatically good cause under the 60 day rule. Guam's Supreme Court
20 makes it clear that it intended the court and its officers to be subject to the prompt arraignment 21 rule put forth in Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a) ("It shall be the duty 22 of all courts and judicial officers ... to expedite such proceedings to the greatest degree that is 23 consistent with the ends of justice"); See also People v. Ilemelong, CF150-10 (Super. Ct. Guam 24
25 Jan. 13,2012). Further, the Court rejects the contention that any length of delays caused by the
26 time provided to a defendant to meet and confer with an attorney is automatically good cause. 27 The Court finds that a reasonable amount of delay attributed to the time a defendant needs to 28
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-IO - Page 7 of9- meet and confer with an attorney is good cause for purposes of the 60 day rule. Cf. Flores, 2009 1
2 Guam22~38.
3 The Public Defender Service Corporation argued in some of the numerous motions to 4 dismiss based on Rasauo II, before this Court, that a reasonable amount of time for a defendant 5 to meet and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. 6 Decl. of PDSC Investigator Sea Aguon Cruz, CM538-11 (Dec. 20, 2011); Decl. of PDSC 7
8 Investigator Sea Aguon Cruz, CM285-11 (Jan. 27, 2012). In this case, Defendant's Motion did
9 not address if any delay attributed to time for the Defendant to meet and confer with counsel is 10 good cause. Instead, Defendant's Motion argues that no good cause exists for the violation of 11 the 60 day rule in this case. 12
13 The Court finds that seven (7) days is not an excessive amount of time to provide a
14 defendant time to meet and confer with his attorney prior to being arraigned. Since the onus is 15 on all judicial officers and the prosecuting attorneys to ensure that a defendant is promptly 16 arraigned, the Court holds that reasonable time, in the context of a continued arraignment after a 17 defendant is appointed counsel, means no more than thirty (30) days. 8 GCA § 80.50(a). Thus, 18
19 the delay in this case is reasonable; hence, this case should be not dismissed for the violation of
20 the 60 day rule. 21 In other decisions recently handed out by this Court regarding Rasauo II motions, thi 22 Court denied or granted dismissal based on the evidence to support a good faith effort by th 23 Marshals to locate and serve Defendant. If Defendant appeared hard to locate as evidenced b 24
25 any record of non-service or other indication, like what was present in the instant case, the cas
26 should not be dismissed. If evidence reflects on the ease of finding the Defendant, then thi 27 Court likely will dismiss the matter. Here, the Court is confident from the record that Defendan 28
People v. Ngirachelsau. Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-10 - Page 8 of9- was difficult to locate. Therefore, this Court finds there were no more than 60 days 0
2 inexcusable delay.
3 CONCLUSION 4 For the foregoing reasons, the Court DENIES Defendant's Motion to Dismiss. 5 Criminal Trial Setting is scheduled for August 28, 2012, at 9:00 a.m. 6
7 So ORDERED this 13th day of August 2012. 8
10 HON B VERNON P. PEREZ 11 JUDGE, SUPERIOR COURT OF GUAM
19 20
22 23
People v. Ngirachelsau, Decision and Order (Defendant's Motion to Dismiss) Criminal Case No. CM0732-1O - Page 9 of9-