People v. Oilouch

Opinion

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IN THE SUPERIOR COURT OF GU M

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2 PEOPLE OF GUAM, ) CRIMINAL CA'S Net. M565-1l )

3 DECISION AND ORDER vs. )

) (Motion to Dismiss)

4 ALISA DONG OILOUCH, )

5 )

Defendant. )

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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 11'), 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 [md 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 August 11, 2010 and given a notice to appear ("NTA") with a

24 date of August 13, 2011. On May 4, 2011, the Complaint was filed; and on May 18, 2011, a 25 Summons was issued for an arraignment scheduled on June 15,2011. After forty-two (42) days 26 had passed from the filing of the Complaint, Defendant appeared and was appointed counsel at

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28 1 This holding is hereinafter referred to as the "60 day rule."

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the June 15, 2011 hearing. In order to provide Defendant the opportunity to meet and confer 2 with counsel, the arraignment was continued until July 13, 2011, twenty-eight (28) days later. 3 Seventy (70) days after the Complaint was filed, Defendant was finally arraigned on July 13, 4 2011. 5 The time between the Complaint and the first appearance on June 15, 2011 does not 6 violate the 60 day rule announced in Rasauo II. However, the Court must determine if the time 7 between June 15, 2011 and July 13, 2011 constitutes good cause or if this case must be 8 dismissed for the 60 day rule violation. 9 More specifically, the Court must determine if the time the Court allows a defendant to 10 meet and confer with counsel prior to being arraigned is reasonable and constitutes good cause. 11 Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow reasonable 12 time to a defendant to meet and confer with counsel prior to being arraigned. Meeting with and 13 discussing arraignment with counsel allows a defendant to understand the significance of the 14 arraignment process as well as the defendant's rights, which are asserted or waived at 15 arraignment. Hamilton v. Alabama, 368 u.S. 52 (1961). It is critical for a defendant to have this 16 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct. 17 App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 18 1, are not present when a defendant is appointed counsel and the delay between the Complaint 19 and the arraignment is partially attributed to the time necessary for a defendant to meet and 20 confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by Rasauo, 2011 Guam 14 ~ 10). 21 In this case, Defendant argued that a reasonable amount oftime for a defendant to meet 22 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Decl. of 23 PDSC Investigator Sea Aguon Cruz, CM565-11 (Dec. 19, 2011). The Office of the Attorney 24 General has argued in several cases that any delay of arraignment occasioned by a continuance 25 granted by the magistrate court should be excused as good cause. The Court disagrees that a 26 bright line rule of any delay caused by a court's calendaring of a criminal matter is 27 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 28 intended the court and its officers to be subject to the prompt arraignment rule put forth in

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Rasauo II. Rasauo, 2011 Guam l4,-r 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 2 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 3 ends of justice"). See also People v.llemelong, CF150-l0 (Super. Ct. Guam Jan. 13,2012). 4 Further, the Court rejects the contention that any length of delays caused by the time 5 provided to a defendant to meet and confer with an attorney is automatically good cause. The 6 Court fmds that a reasonable amount of delay attributed to the time a defendant needs to meet 7 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009 8 Guam 22 ,-r 38. Since the onus is on all judicial officers and the prosecuting attorneys to ensure 9 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 10 continued arraignment after a defendant is appointed counsel, means no more than thirty (30) 11 days2. 8 GCA § 80.50(a). Therefore, the Court fmds that twenty-eight (28) days is not an 12 excessive amount of time for a court to provide a defendant to meet and confer with his attorney 13 prior to being arraigned. Thus, the delay in this case is due to allowing Defendant time to meet 14 and confer with counsel prior to arraignment is reasonable and constitutes good cause. 15 There are seventy (70) days between the filing of the Complaint and Defendant's 16 arraignment. There is good cause shown for the twenty-eight (28) days after the Defendant was 17 appointed counsel at the June 15,2011 hearing. Therefore, since the Court determines that there 18 delay is justified and this case should not be dismissed Defendant's Motion is DENIED. 19 Rasauo, 2011 Guam l4,-r 14. A criminal trial setting shall occur on February 27,2012 at 9:30

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21 IT IS SO ORDERED this ~ofFebruary, 2012.

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24 FEB Z 4 201 HONORABLE ELIZABETH BARRETT- ANDERSON Judge, Superior Court of Guam 25

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27 2 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with 28 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.

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