IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) ) CRIMINAL CASE NO. CM0556-11 4 vs. ) 5 ) DECISION AND ORDER NEFOS NIKKEPWI, ) 6 ) Defendant. ) 7 ____________________________) 8
9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on the Defendant's motion to 11 dismiss, filed November 23, 2012. Oral arguments were denied on February 11, 2013. 12 Assistant Attorney General James C. Collins, Esq. appeared on behalf of the Government and 13 Assistant Public Defender Suresh Sampath, Esq. represented the Defendant. Having considered 14 the parties' briefs and the applicable law, the Court now issues the following Decision and
15 Order. 16 BACKGROUND 17 On May 4, 2011, the Government filed a complaint to charge Defendant with driving 18 under the influence of alcohol, improper storage of an open container and driving without a 19 license on or about July 24, 2010. On May 17, 2011, the Court entered a summons for 20 Defendant to appear on June 15, 2011. 1 Defendant failed to appear and the Court entered a 21 second summons for Defendant to appear on July 20, 2012, or seventy-seven (77) days after the 22 complaint was filed. 2 Defendant failed to appear and the Court entered a third summons for 23 Defendant to appear on September 21, 2011. 3 Defendant failed to appear and on September 29, 24 2011, the Court entered a bench warrant to procure Defendant's presence. 25 On April 11, 20 12, the bench warrant was served upon Defendant and the Court entered
27 1 The record contains no affidavit that this first summons was served or not served upon Defendant. 28 2 The record contains no affidavit that this second summons was served or not served upon Defendant. 3 The record contains no affidavit that this third summons was served or not served upon Defendant.
Page 1 of 5 a commitment order to confine him until a return of wanant hearing on April 23, 2012. 2 Defendant was appointed counsel and released at the return of warrant hearing on April 23, 3 2012. He was subsequently arraigned on April 30,2012. 4 On November 23, 2012, Defendant filed the present motion to dismiss, arguing he was 5 not promptly arraigned within sixty (60) days of the complaint pursuant to People v. Rasauo, 6 2011 Guam 14. Defendant posits that the delay is not excused by good cause and that the 7 complaint should be dismissed with prejudice. The Government argues that judicial delay and 8 the bench warrant constitute good cause to excuse the untimely arraignment and that the 9 complaint can only be dismissed with prejudice when the Defendant suffers from actual 10 prejudice, bad faith or misconduct. 11 DISCUSSION 12 Under Guam law, "unless good cause is shown, a complaint shall be dismissed where a 13 defendant is not promptly anaigned within 60 days of the filing of the complaint." Rasauo, 14 2011 Guam 14 ~ 16. This rule applies "the statutory speedy trial time period delineated in 8 15 GCA § 80.60(a)(3)," to the prompt arraignment requirement delineated in 8 GCA § 60.1 O(a). 16 !d. Good cause to delay a prompt arraignment is determined by the specific circumstances of 17 each case. !d. at~ 14. 18 1. Good Cause to Delay Prompt Arraignment 19 Guam law does not describe the specific circumstances that constitute good cause to 20 delay a prompt arraignment. In People v. Stephen, 2009 Guam 8 ~ 32, the Supreme Court 21 explained: "the prompt arraignment requirement of 8 GCA § 60.1 O(a) is a statutory expression 22 of the speedy trial right," and a speedy trial may be delayed by the following good causes: 1) 23 conduct of the defendant; 2) delay that benefits the defendant; 3) unforeseen circumstances; and 24 4) prompt disposition of pretrial motions. See e.g. People v. Flores, 2009 Guam 22 ~ 40; 25 Carver v. Superior Court, 1998 Guam 23 ~ 11; Quinata v. Superior Court, 2010 Guam 8 ~ 36. 26 In this case, Defendant was arraigned on April 30, 2012 and more than 60 days after the 27 complaint was filed on May 4, 2011. An initial delay was caused by the Court's calendar ofthe 28 first appearance seventy-seven (77) days after the complaint was filed because there was no
Page 2 of5 proof that Defendant was served with a first and second summons to appear. The Government 2 contends this delay is excusable for good cause because it is not attributable to prosecutorial 3 delay. The Court does not agree. Pursuant to Rasauo, 2011 Guam 14 «J 12, courts, judicial 4 officers and prosecuting attorneys all share a duty under the constitutional guarantee to 5 promptly dispose criminal charges. !d. (citing Strunk v. US, 412 U.S. 434, 439, n. 2 (1973) 6 and 8 GCA § 80.50(a)). 4 For this reason, the untimely arraignment is not excused by more than 7 77 days of judicial delay and the complaint shall be dismissed pursuant to Rasauo, 2011 Guam 8 14. 5 9 2. Dismissal With or Without Prejudice 10 Guam law does not specify whether dismissal with prejudice or dismissal without 11 prejudice is the appropriate remedy for a violation of 8 GCA § 60.10(a) and Rasauo, 2011 12 Guam 14. The prompt arraignment requirement is an expression of the speedy trial right. 13 Stephen, 2009 Guam 8 «J 32. Absent clear guidance to dismiss an untimely arraignment with or 14 without prejudice, the Court shall consider the established speedy trial analyses in order to more 15 consistently weigh the circumstances of an untimely arraignment. See ld. at «J 21 (an 16 established rule or forewarning may be required to dismiss with prejudice). 17 Under Guam law, the Court must consider the following relevant factors to determine 18 whether a delay violates the Sixth Amendment right to a speedy trial: 1) the length of the delay; 19 2) the reason for the delay; and 3) the presence or absence of prejudice resulting from the delay. 20 People v. Flores, 2009 Guam 22 «J«J 41-42 (citing Barker v. Wingo, 407 U.S. 514, 521 (1972)). 21 When federal time limits to begin trial are violated, the following factors determine whether to 22 dismiss the prosecution with or without prejudice: 1) the seriousness of the offense; 2) the facts 23 and circumstances that led to dismissal; 3) the impact of reprosecution on the administration of 24 federal time limits and the administration of justice; and 4) the prejudice suffered by the 25
26 4 People v. Julian, 2012 Guam 26 ~ 22, entered before the present motion briefing closed, provides furthe 27 instruction. "For purposes of prompt arraignment under section 60.1 O(a) and Rasauo II delay, we attribute th court's delay to the People." !d. at~ 35. 28 5 Subsequent delays were caused by an inability to serve the Defendant with a third summons and a bench warrant
but this additional delay is immaterial to the delay is not excusable for good cause.
Page 3 of5 defendant from the delay. See US. v. Perez, Crim. No. 09-00025,2011 WL 2294194, at *3 (D. 2 Guam Jun. 8, 2011) (citing 18 U.S.C. § 3162(a)(2); US v. Taylor, 487 U.S. 326,336-337, 108 3 S.Ct. 2413, 101 L.Ed.2d 297 (1998); and US v. Lewis, 518 F.3d 1171,1176 (9th Cir. 2010)). 4 In this case, Defendant was arraigned on April 30, 2012, almost one year after the 5 complaint was filed on May 4, 2011. The length of this delay may give rise to a presumption of 6 prejudice. Flores, 2009 Guam 22 ~ 49. The delay was caused, in part, by judicial calendaring 7 and the responsibility for this delay weighs against the Government. !d. at ~~ 45-46.
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IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) ) CRIMINAL CASE NO. CM0556-11 4 vs. ) 5 ) DECISION AND ORDER NEFOS NIKKEPWI, ) 6 ) Defendant. ) 7 ____________________________) 8
9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on the Defendant's motion to 11 dismiss, filed November 23, 2012. Oral arguments were denied on February 11, 2013. 12 Assistant Attorney General James C. Collins, Esq. appeared on behalf of the Government and 13 Assistant Public Defender Suresh Sampath, Esq. represented the Defendant. Having considered 14 the parties' briefs and the applicable law, the Court now issues the following Decision and
15 Order. 16 BACKGROUND 17 On May 4, 2011, the Government filed a complaint to charge Defendant with driving 18 under the influence of alcohol, improper storage of an open container and driving without a 19 license on or about July 24, 2010. On May 17, 2011, the Court entered a summons for 20 Defendant to appear on June 15, 2011. 1 Defendant failed to appear and the Court entered a 21 second summons for Defendant to appear on July 20, 2012, or seventy-seven (77) days after the 22 complaint was filed. 2 Defendant failed to appear and the Court entered a third summons for 23 Defendant to appear on September 21, 2011. 3 Defendant failed to appear and on September 29, 24 2011, the Court entered a bench warrant to procure Defendant's presence. 25 On April 11, 20 12, the bench warrant was served upon Defendant and the Court entered
27 1 The record contains no affidavit that this first summons was served or not served upon Defendant. 28 2 The record contains no affidavit that this second summons was served or not served upon Defendant. 3 The record contains no affidavit that this third summons was served or not served upon Defendant.
Page 1 of 5 a commitment order to confine him until a return of wanant hearing on April 23, 2012. 2 Defendant was appointed counsel and released at the return of warrant hearing on April 23, 3 2012. He was subsequently arraigned on April 30,2012. 4 On November 23, 2012, Defendant filed the present motion to dismiss, arguing he was 5 not promptly arraigned within sixty (60) days of the complaint pursuant to People v. Rasauo, 6 2011 Guam 14. Defendant posits that the delay is not excused by good cause and that the 7 complaint should be dismissed with prejudice. The Government argues that judicial delay and 8 the bench warrant constitute good cause to excuse the untimely arraignment and that the 9 complaint can only be dismissed with prejudice when the Defendant suffers from actual 10 prejudice, bad faith or misconduct. 11 DISCUSSION 12 Under Guam law, "unless good cause is shown, a complaint shall be dismissed where a 13 defendant is not promptly anaigned within 60 days of the filing of the complaint." Rasauo, 14 2011 Guam 14 ~ 16. This rule applies "the statutory speedy trial time period delineated in 8 15 GCA § 80.60(a)(3)," to the prompt arraignment requirement delineated in 8 GCA § 60.1 O(a). 16 !d. Good cause to delay a prompt arraignment is determined by the specific circumstances of 17 each case. !d. at~ 14. 18 1. Good Cause to Delay Prompt Arraignment 19 Guam law does not describe the specific circumstances that constitute good cause to 20 delay a prompt arraignment. In People v. Stephen, 2009 Guam 8 ~ 32, the Supreme Court 21 explained: "the prompt arraignment requirement of 8 GCA § 60.1 O(a) is a statutory expression 22 of the speedy trial right," and a speedy trial may be delayed by the following good causes: 1) 23 conduct of the defendant; 2) delay that benefits the defendant; 3) unforeseen circumstances; and 24 4) prompt disposition of pretrial motions. See e.g. People v. Flores, 2009 Guam 22 ~ 40; 25 Carver v. Superior Court, 1998 Guam 23 ~ 11; Quinata v. Superior Court, 2010 Guam 8 ~ 36. 26 In this case, Defendant was arraigned on April 30, 2012 and more than 60 days after the 27 complaint was filed on May 4, 2011. An initial delay was caused by the Court's calendar ofthe 28 first appearance seventy-seven (77) days after the complaint was filed because there was no
Page 2 of5 proof that Defendant was served with a first and second summons to appear. The Government 2 contends this delay is excusable for good cause because it is not attributable to prosecutorial 3 delay. The Court does not agree. Pursuant to Rasauo, 2011 Guam 14 «J 12, courts, judicial 4 officers and prosecuting attorneys all share a duty under the constitutional guarantee to 5 promptly dispose criminal charges. !d. (citing Strunk v. US, 412 U.S. 434, 439, n. 2 (1973) 6 and 8 GCA § 80.50(a)). 4 For this reason, the untimely arraignment is not excused by more than 7 77 days of judicial delay and the complaint shall be dismissed pursuant to Rasauo, 2011 Guam 8 14. 5 9 2. Dismissal With or Without Prejudice 10 Guam law does not specify whether dismissal with prejudice or dismissal without 11 prejudice is the appropriate remedy for a violation of 8 GCA § 60.10(a) and Rasauo, 2011 12 Guam 14. The prompt arraignment requirement is an expression of the speedy trial right. 13 Stephen, 2009 Guam 8 «J 32. Absent clear guidance to dismiss an untimely arraignment with or 14 without prejudice, the Court shall consider the established speedy trial analyses in order to more 15 consistently weigh the circumstances of an untimely arraignment. See ld. at «J 21 (an 16 established rule or forewarning may be required to dismiss with prejudice). 17 Under Guam law, the Court must consider the following relevant factors to determine 18 whether a delay violates the Sixth Amendment right to a speedy trial: 1) the length of the delay; 19 2) the reason for the delay; and 3) the presence or absence of prejudice resulting from the delay. 20 People v. Flores, 2009 Guam 22 «J«J 41-42 (citing Barker v. Wingo, 407 U.S. 514, 521 (1972)). 21 When federal time limits to begin trial are violated, the following factors determine whether to 22 dismiss the prosecution with or without prejudice: 1) the seriousness of the offense; 2) the facts 23 and circumstances that led to dismissal; 3) the impact of reprosecution on the administration of 24 federal time limits and the administration of justice; and 4) the prejudice suffered by the 25
26 4 People v. Julian, 2012 Guam 26 ~ 22, entered before the present motion briefing closed, provides furthe 27 instruction. "For purposes of prompt arraignment under section 60.1 O(a) and Rasauo II delay, we attribute th court's delay to the People." !d. at~ 35. 28 5 Subsequent delays were caused by an inability to serve the Defendant with a third summons and a bench warrant
but this additional delay is immaterial to the delay is not excusable for good cause.
Page 3 of5 defendant from the delay. See US. v. Perez, Crim. No. 09-00025,2011 WL 2294194, at *3 (D. 2 Guam Jun. 8, 2011) (citing 18 U.S.C. § 3162(a)(2); US v. Taylor, 487 U.S. 326,336-337, 108 3 S.Ct. 2413, 101 L.Ed.2d 297 (1998); and US v. Lewis, 518 F.3d 1171,1176 (9th Cir. 2010)). 4 In this case, Defendant was arraigned on April 30, 2012, almost one year after the 5 complaint was filed on May 4, 2011. The length of this delay may give rise to a presumption of 6 prejudice. Flores, 2009 Guam 22 ~ 49. The delay was caused, in part, by judicial calendaring 7 and the responsibility for this delay weighs against the Government. !d. at ~~ 45-46. Another 8 possible cause for the delay may have been an inability to locate and serve Defendant, but the 9 entire record is devoid of the information necessary to determine whether this delay was 10 deliberate, negligent or justified; and the responsibility for the delay does not weigh in favor of 11 either party. ld. Most importantly, there is no actual prejudice suffered by the delay in this 12 matter. Although Defendant spent twelve (12) days in pre-trial incarceration, he does not allege 13 or demonstrate that this time was oppressive or caused particular anxiety and concern. ld. at ~~ 14 49-51 (five years of pre-trial incarceration does not establish constitutional violation without 15 particulars of prejudice). Finally, Defendant does not allege that the delay has impaired his 16 defense. !d. at 52-56. These circumstances weigh against a constitutional violation and against 17 the Defendant's request for dismissal with prejudice. 18 Furthermore, a dismissal without prejudice is warranted in light of the relatively less 19 serious misdemeanor and petty misdemeanor offenses, the aforementioned slight impact of the 20 delay, the absence of clear Government neglect, and the aforementioned absence of prejudice 21 suffered by Defendant. See Perez, 2011 WL 2294194, at *3-8. For all of these reasons, the 22 complaint shall be dismissed without prejudice. 23 Ill 24 Ill 25 Ill 26
Page 4 of5 CONCLUSION 2 Based upon the foregoing, the Defendant's motion to dismiss is hereby GRANTED and 3 the complaint is dismissed without prejudice for the failure to promptly arraign the Defendant 4 pursuant to 8 GCA § 60.10(a) and People v. Rasauo, 2011 Guam 14. 5
6 SO ORDERED this (Y!H day of April, 2013. 7
9 /~~ IO HbN. JAMES L. CANTO II Judge, Superior Court of Guam II
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