People v. Ngirachelsau

Opinion

SUP,- F!( D

2 3

6 IN THE SUPERIOR COURT OF GUAM 7

8 PEOPLE OF GUAM, CRIMINAL CASE NO. CM732-10 9 V.

10 DECISION AND ORDER ROLAND CLARK NGIRACHELSAU, 1I Defendant. 12 13 INTRODUCTION 14 This matter came before the Honorable Vernon P. Perez on June 30, 2014 on 15 Defendant's Motion to Reconsider. Attorney All N. Nusbaum appeared on behalf of the 16 Defendant, who was present. Assistant Attorney General Christopher Odoca appeared on 17 behalf of the Government. Both counsels submitted on the briefs. Having reviewed the 1s pleadings, the arguments therein, and the record, the Court now issues the following Decision 19 and Order. 20 BACKGROUND 21 Roland Clark Ngirachelsau ("Defendant") was arrested for DUI on September 5, 2009 22 and taken into Guam Police Department ("GPD") custody. GPD released Defendant from 23 custody and issued a Citation and Notice to Appear ordering him to appear in court on 24 September 1, 2010 ("NTA hearing"). The Government filed a Complaint against Defendant on 25 August 31, 2010 charging him with the following offenses: (1) Driving under the influence of alcohol (As a Misdemeanor); (2) Driving under the influence of alcohol (B.A.C.) (As a Misdemeanor); and (3) Reckless Driving (As a Petty Misdemeanor). Defendant did not appear

People v. Ngirachelsau Case No. CM732-10 Decision and Order

Page 1 of 5 on September 1, 2010, and Presiding Judge Alberto C. Lamorena III subsequently issued a 2 bench warrant for Defendant's arrest. The Court's file indicates that Defendant was not served 3 with the warrant until April 2, 2012, roughly nineteen months later. There is no information on 4 file regarding the marshal's efforts to execute the warrant before April 2, 2012. Defendant was 5 ordered to return to court for arraignment on April 4, 2012. Defendant appeared on that date 6 and the Public Defenders Services Corporation ("PDSC") was appointed as counsel and given 7 time to confer with Defendant. Defendant was finally arraigned on April 11, 2012, roughly 589 8 days from the filing of the complaint. 9 On May 3, 2012, Defendant filed a Motion to Dismiss the Complaint based on the 10 decision in People v. Rasauo, 2011 Guam 14, where the Guam Supreme Court held that II "[u]nless good cause is shown, a complaint shall be dismissed where a defendant is not i2 promptly arraigned within 60 days of the filing of the complaint" People v. Rasauo, 2011 13 Guam 14 ¶ 14. Having considered the pleadings and the arguments presented, this Court denied 14 Defendant's Motion in a written Decision and Order issued on August 13, 2012. The Court 15 agreed with the Government in that peace officers were not required to make a showing of 16 attempts to execute warrants or summons, and further, absent direct statutory language to the 17 contrary, peace officers are presumed to fulfill their duties. (See Dec. & Order at 4, Aug 13, 18 2012). Additionally, the Court held that lack of documentation is not dispositive of the 19 marshal's efforts because even without recording any attempts, the marshals are presumed to 20 have carried out their duties. Id. at 6. The Court ultimately found that good cause existed as 21 Defendant listed a different address at the time of the citation from the one listed at the time the 22 bench warrant was served. Id. Even if unintentional, the Court considered that such conduct 23 would have frustrated the marshal's attempt at service. Id. 24 On August 17, 2012, Defendant filed a verified petition for permission to appeal. The 25 Supreme Court denied the petition stating that the "issue presented in this case has been 26 clarified by this court in People v. Julian, 2012 Guam 26 122." On May 7, 2013, Defendant 27 filed a Motion to Reconsider, arguing that in light of the Supreme Court's decision in Julian, the 28 previous Motion to Dismiss should have been granted because no evidence was adduced that

People v. Ngirachelsau Case No. CM732-1 O Decision and Order

Page 2of5 diligent attempts at service were made and therefore the Government did not meet its burden of 2 proof on good cause. On June 19, 2013, the Court orally denied Defendant's Motion to 3 Reconsider based on Defendant's failure to appear the NTA hearing. (Digital Recording at 4 9:35:45-9:36:33, Hr'g Mot. Recons., Jun. 19, 2013). The Court then granted Defendant's 5 motion to stay the proceedings in anticipation of another Guam Supreme Court decision dealing 6 with similar issues. On May 5, 2014, the Supreme Court issued a decision in People v. Leon 7 Guerrero, 2014 Guam 10. Based on that decision, Defendant filed a second motion to s reconsider, which the Court heard and took under advisement on June 30, 2014. 9 DISCUSSION to At issue is whether the Supreme Court's decision in Leon Guerrero constitutes a change II in law since this Court's previous denial of Defendant's Motion to Dismiss such that 12 reconsideration of the Court's decision is now warranted. 13 Reconsideration is permitted when there has been an intervening change in controlling 14 law. See People v. Gutierrez, 2005 Guam 19 ¶ 41. In Leon Guererro, the Supreme Court 15 affirmed the trial court's dismissal of the complaint. In that case, there was no evidence 16 presented of any attempt to serve the bench warrant on the Defendant or to otherwise reach her. 17 Leon Guerrero, 2014 Guam 10 ¶ 15. The Supreme Court recognized that "[t]hough the court's 18 marshals typically serve such warrants, we have held that delay attributable to the court is held 19 against the prosecution and cannot constitute good cause." Id. (citing People v. Julian, 2012 20 Guam 26 ¶ 22). Further, the Court acknowledged that the Government could have, among other 21 things, "contacted the marshals to determine the status of the bench warrant .... " Id. Finally, 22 the Court ultimately held that "failure to appear at an NTA hearing is not per se fatal to a later 23 motion to dismiss and that delay in arraignment due to failure to make any efforts to serve a 24 bench warrant may be attributed to the people." Leon Guerrero, 2014 Guam 10 ¶ 18. 25 In the present case, Defendant argues that the Supreme Court's holding in People v. 26 Leon Guerrero, and People v. Julian, 2012 Guam 26 warrants the Court's reconsideration and 27 granting of the Defendant's previous Motion to Dismiss. The Government opposes and 28 maintains that the issue in this case is still whether or not there was good cause under Rasauo to

Page 3 of 5 delay the Defendant's arraignment, which the Court already ruled on. The Government points 2 out that the Court already decided that Defendant's conduct (in listing a different address at the 3 time he was cited) would have frustrated the Marshal's attempts at service. Because the Court 4 has already identified good cause for the delay, the Government maintains that the nothing in 5 Leon Guerrero alters the Court's finding of good cause, and therefore, the Court should deny 6 Defendant's motion. 7 The Court acknowledges its initial finding that Defendant's conduct, even if 8 unintentional, would have frustrated the marshal's service. However, the Court arrived at that 9 conclusion having assumed that a bench warrant was issued because locating the Defendant was 10 difficult as he did not appear for his NTA hearing date. (See Dec. & Order at 5, Aug. 13, 2012). II Considering that, the Court opined that most of the delay was attributed to Defendant's failure 12 to appear and the necessity of a bench warrant and its service upon Defendant. Id. Thus, the 13 Court placed significant weight on Defendant's initial failure to appear and opined that it was a 14 large part of the delay in his arraignment. Leon Guerrero, however, instructs the Court that I5 "failure to appear at an NTA hearing is not per se fatal to a later motion to dismiss for failure to 16 promptly arraign, although it is certainly a factor for the trial court to consider in its analysis of 17 good cause." Leon Guerrero, 2014 Guam 10 ¶ 14. Therefore, while Defendant's failure to 18 appear is a factor to be considered in a good cause analysis, the Court is to consider all of the 19 circumstances surrounding the delay. 20 Here the Court must consider that Defendant was found at an address different from that 21 which he listed on the citation and notice to appear. (See People's Opp'n Mot., Ex. 1, Jun. 24, 22 2014). Next, the Court must consider that there is nothing on file to indicate that the marshals 23 attempted any service upon Defendant, even at the address initially listed. Lastly, the Court 24 must consider Defendant's initial failure to appear, which, as mentioned above, is not fatal to a 25 later motion to dismiss but only a mere factor to consider when analyzing good cause. 26 All things considered, the Court is compelled to agree with the Defendant at this time. 27 While the Court does not condone Defendant's initial failure to appear, nor is the Court

28 interested in rewarding evasiveness, the Court is unsettled at the lack of any evidence of

Page 4 of 5 S r I attempts to serve Defendant. In Julian, the Supreme Court stated: "Although the trial judge 2 suggests a diligent effort by the marshal to serve Salvador, the mere three attempts to serve 3 without explanation as to the failures does not itself justify good cause for the delay to promptly 4 arraign Salvador." Julian, 2012 Guam 26 ¶ 29. Of course, the salient distinction in that case 5 was that the marshals actually attempted service, yet the court still did not find good cause. 6 Here, in its initial Decision and Order, the Court held that lack of documentation was not 7 dispositive of the marshal's efforts because even without listing attempts, marshals are 8 presumed to carry out their duties. The decision in Julian would seem to have the Court rule 9 otherwise. The Court found good cause without having considered the possibility of locating 10 Defendant early on, if any attempts were made to serve him at the listed address. Furthermore, II the Court simply denied Defendant's initial Motion for Reconsideration based solely on 12 Defendant's failure to appear at the NTA hearing, which is contrary to the decision in Leon 13 Guerrero. On those bases, the Court is compelled to reconsider its initial decision, which found 14 good cause for Defendant's delay simply on Defendant's initial failure to appear, Defendant 15 being located at an address different from that which he initially provided, and the presumption 16 that the marshals carried out their duties. 17 CONCLUSION 18 For the foregoing reasons, the Court GRANTS Defendant's motion to reconsider.

19 Accordingly, the case is hereby dismissed without prejudice. 20 IT IS SO ORDERED this __ day of September, 2014. 21

22 23 SERVICE VIA COURT BOX I acknowledge that a copy of the Original hereto was placed in the 24 c rtk x o r / /. HO RABLE VERNON P. PEREZ V � l r Judge, Superior Court of Guam 25 -J , 11

27 Deputy Clerk.SuperiorCuun of Guam

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