People v. Paras

Opinion

Territorial Law Library IN THE SUPERIOR COURT OF GUAM

2 PEOPLE OF GUAM, ) CRIMINAL CASE NC>. CM285- H· 3 )

vs. ) DECISION AND ORDER 4 ) (Motion to Dismiss)

RANIEL PARAS, )

5 )

6 Defendant.)

7

8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on

9 January 23, 2012 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 heIdI: "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,-r 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo Ir), 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 find 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,-r,-r 10, 14.

23 Defendant was arrested on May 23, 2010 and given a notice to appear ("NTA") with a

24 date of May 11, 2011. On March 10, 2011, the Complaint was filed, but no summons was

25 issued2 . Id. at ,-r 7. Defendant appeared on May 11, 2011, sixty-two (62) days after the

26

27 1 This holding is hereinafter referred to as the "60 day rule."

2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all 28 misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a probable cause determination is made. 8 GCA § 15.20(a). Also, currently, all persons arrested for DUI charge are

lof6

Complaint, and was appointed counsel. In order to provide Defendant the opportunity to meet 2 and confer with counsel, the arraignment was continued until June 8, 2011, twenty-eight (28)

3 days later. Defendant was finally arraigned on June 8, 2011, which is ninety (90) days after the

4 Complaint was filed.

5 Unlike many cases based on Rasauo II, the Court notes that the People do not concede

6 that there is no good cause for the delay between the filing of the Complaint and the NTA date.

7 This amount of delay does violate the 60 day rule announced in Rasauo II; thus the Court will

8 review the all of the delays to determine if the time after May 9, 2011 constitutes good cause or

9 if this case must be dismissed for the 60 day rule violation. 10 The Court must first determine if the delay attributed to the non-issuance of a summons,

11 and merely relying upon the NTA date is good cause. The People argue that it is the Court's

12 burden to issue a summons once a complaint with affidavits to establish probable cause are filed

13 with the court. 8 GCA §§ 25.30, 15.20(a). The Court agrees that pursuant to 8 GCA § 15.20(a),

14 it is the Court's duty to issue a summons with or without the People requesting one at the time

15 of filing a complaint. While the delay cannot be attributed to the People, or their unwillingness

16 to arraign Defendant; nonetheless, the Court disagrees that a bright line rule of any delay caused

17 by a court's failure to issue a summons on a complaint filed pursuant to 8 GCA § 25.30 is

18 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it

19 intended the court and its officers to be subject to the prompt arraignment rule put forth in

20 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and

21 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the

22 ends of justice"). See also People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13, 2012).

23 Therefore, the Court determines that the delay attributed to waiting until the NTA date is not

24 good cause and this case must be dismissed for violation of the 60 day rule.

25 The Court must also determine if the time the Court allows a defendant to meet and

26 confer with counsel prior to being arraigned is reasonable and constitutes good cause. For all of

27

28 brought before a magistrate for a probable cause determination prior to being released; therefore, a NTA is not issued.

the following reasons, the Court detennines that the first delay of twenty-eight (28) days that the 2 Court allowed Defendant to meet and confer with counsel prior to being arraigned is 3 unreasonable and does not constitute good cause. Title 8 Guam Code Annotated section 4 45.30( c) provides that the Court shall allow reasonable time to a defendant to meet and confer 5 with counsel prior to being arraigned. Meeting with and discussing this with counsel allows a 6 defendant to understand the significance of the arraignment process as well as the defendant's 7 rights, which are asserted or waived at arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). 8 It is critical for a defendant to have this understanding at time of arraignment. See e.g. Huston v. 9 Com., 171 S.W.3d 743, 744-45 (Ky. Ct. App. 2005). Further, the concerns of Guam's Supreme 10 Court in People v. Rasauo, 2011 Guam 1, are not present when a defendant is appointed counsel 11 and the delay between the Complaint and the arraignment is partially attributed to the time 12 necessary for a defendant to meet and confer with his appointed attorney. 2011 Guam 1 ,-r 13 53( quoted by Rasauo, 2011 Guam 14 ,-r 10). 14 In this case, Defendant argued that a reasonable amount of time for a defendant to meet 15 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Decl. of 16 PDSC Investigator Sea Aguon Cruz, CM285-11 (Jan. 27, 2011). The Office of the Attorney 17 General has argued in several cases that any delay of arraignment occasioned by a continuance 18 granted by the magistrate court should be excused as good cause. The Court disagrees that a 19 bright line rule of any delay caused by a court's calendaring of a criminal matter is 20 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 21 intended the court and its officers to be subject to the prompt arraignment rule put forth in 22 Rasauo II. Rasauo, 2011 Guam 14,-r 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 23 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the 24 ends of justice"). See also People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13,2012). 25 Further, the Court rejects the contention that any length of delays caused by the time 26 provided to a defendant to meet and confer with an attorney is automatically good cause. The 27 Court fmds that a reasonable amount of delay attributed to the time a defendant needs to meet 28 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009

Guam 22 ~ 38. Since the onus is on all judicial officers and the prosecuting attorneys to ensure 2 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 3 continued arraignment after a defendant is appointed counsel, means no more than thirty (30) 4 days 3. 8 GCA § 80.50(a). Therefore, the Court fmds that twenty-eight (28) days is not an 5 excessive amount of time for a court to provide a defendant to meet and confer with his attorney 6 prior to being arraigned; hence the Court fmds good cause for the delay attributed to this. 7 Lastly, the Court must determine if the dismissal should be with or without prejudice. 8 The Court is persuaded by the People's argument that the dismissal should be without prejudice. 9 Guam's Supreme Court declined to hold that all violations of the 60 day rule requires a 10 dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case 11 should be dismissed with or without prejudice should be decided in the first instance by the trial 12 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where 13 the case was dismissed with prejudice based upon a fmding that there was a statutory bar to re- 14 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v. 15 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 16 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory 17 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~~ 35-36. 18 Therefore, the Court considers "a showing of prejudice or any other factors" to 19 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 20 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.c. § 3162(a)(2). Defendant does not make a 21 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 22 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 23 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used

24 to determine if dismissal with prejudice is required here. 25 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed 26

27 3 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.

for alleged government misconduct which occurs outside the Complaint process because such 2 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of 3 justice.'" People v. Marada, 1995 WL 604365, * 1 (D. Guam App. Div. Sep. 18, 1995)(intemal 4 citations omitted). See also Stephens, 2009 Guam 8 ,-r 21(discussing dismissal for unnecessary 5 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19,-r,-r 61- 6 70(discussing dismissal based on fInding the People acted in bad faith). In this case, there is no 7 alleged government misconduct or bad faith on the part of the People4 . Instead, there is a 8 violation of the 60 day rule, which was recently announced in Rasauo II, which requires 9 dismissal, but not necessarily dismissal with prejudice. 10 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 11 message to prosecutors who have consistently violated defendants' rights and force them to 12 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 13 2011). Stephens, 2009 Guam 8 ,-r 21("If a court is to apply the harsh rule of dismissing a 14 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 15 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 16 arraignment right is not an issue this Court has been asked to address in relation to arraignments 17 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 18 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 19 to believe that the People do not require a strong message from this Court to ensure that they are 20 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of 21 dismissal without prejudice. 22 Further, in this circumstance, dismissal without prejudice can not be seen as condoning 23 the People's behavior, because neither the People nor the Court were aware ofthe 60 day rule at 24 the time of the delay of the Defendant's prompt arraignment. Id. This factor weighs in favor of 25 dismissal without prejudice. 26 In this scenario, Defendant's constitutional rights are not implicated, thus the Court 27

28 4 All of the procedural facts of this case occurred before the promulgation of Rasauo II, therefore, there can be no finding that the People intentionally violated the 60 day rule.

should weigh the violation of Defendant's right to a prompt arraignment with the competing 2 interest "of society to be secure from crime through the regular enforcement of the criminal 3 laws." Gutierrez, 2005 Guam 19 ,-r 68(intemal citation and quotation omitted). Upon balancing 4 these factors as well as taking into consideration of lack of showing of prejudice the Court 5 determines that dismissal without prejudice is most appropriate. 6 There are ninety (90) days between the filing of the Complaint and Defendant's 7 arraignment. As indicated above, there is not good cause shown for the entire duration of the 8 violation of the 60 day rule. Therefore, Defendant's Motion is GRANTED in part. Rasauo, 2011 9 Guam 14,-r 16. The Court finds that Defendant was not promptly arraigned pursuant to 8 GCA § 10 60.10(a); therefore, the Court is DISMISSING this case without prejudice.

11

12 IT IS SO ORDERED this.1 of March 2012.

13

14

15 HONORABLE ELIZABETH BARRETT-ANDERSON Judge, Superior Court of Guam 16

17

18

19

20

, ,

21 ~

22

23

24

25

26

27

28

60[6