People v. Petrache

Opinion

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8 IN THE SUPERIOR COURT OF GUAM 9

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10 PEOPLE OF GUAM, CRIMINAL CASE NO.: CF0064-17

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12 DECISION AND ORDER JENNY MARIE PETRACHE, (Defendant's Motion to Dismiss)

13 DOB: 08/08/1975 14 DEFENDANT.

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17 INTRODUCTION 18 This matter came before the Honorable Anita A. Sukola on January 22, 2018 on Jenny

19 IMarie Petrache's ("Defendant") Motion to Dismiss. The Defendant was represented by Assistant 20 . Public Defender Clyde Lemons Jr. Assistant Attorney General Matthew A. Phelps appeared on 21 behalf of the People of Guam ("People"). Upon review of the written and oral arguments and legal 22 authorities presented by the Parties, the Court hereby D E N I E S the Defendant's Motion to 23 Dismiss.

24 BACKGROUND 25 On July 9, 2016, officers from the Guam Police Department responded to a call for a 26 disturbance at a residence in Banigada. Def's Mot. Dismiss 2 (Dec. 1, 2017). On arrival, the 27 officers encountered the Defendant and her daughter. The officers ultimately recovered a pipe, 28

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CF0064-17 People ofGuam vs. Jenny Made Petrache 0HlG!nA1. Page 1 of 6 DECISION AND ORDER (Defendant'sMotion to Dismiss)

1 and sealed and unseeded straws with a substance inside, from die Defendant's room. Q The 2 substance in the straws was subjected to a field test which returned a presumptive positive reaction 3 to for the presence of methamphetamines. Q The Defendant was then arrested. Q 4 On July ll, 2016, the Defendant was released and given a Notice to Appear ("NTA") on 5 July 3, 2019. SeeDef's Mot. Dismiss Ex A (Dec. 1, 2017). On Febniary 9, 2017 a Superior Court 6 of Guam Grand Jury returned an Indictment charging the Defendant with POSSESSION OF A 7 SCHEDULE II CONTROLLED SUBSTANCE (As a 3rd Degree Felony). 8 Subsequently, on December 1, 2017 the Defendant filed the instant Motion to Dismiss the 9 Indictment. The People tiled an Opposition on December 11, 2017. The Defendant tiled a Reply to 10 the Opposition on December 20, 2017. The Court held a hearing and took the Motion to Dismiss 11 under advisement on January 22, 2018.

12 DISCUSSION 13 The Defendant argues the Indictment should be dismissed because the People did not file a

14 complaint and affidavit which the Defendant argues are required under Guam law, Def's Mot. 15 Dismiss 3 (Dec. 1, 2017). The Defendant relies primarily on 8 G.C.A. § 25.30 and, People v. 16 Villapondo, 1999 Guam 31, as the authorities in support of her Motion. In opposition, the People 17 argue that as long as "any Indictment to charge a case issues prior to the De facto statute of 18 limitations established by the NTA date on any defendant's citation, it is permissible that a felony 19 offense be charged via an Indictment returned by the territorial grand jury, rather than via a 20 complaint and supporting affidavits." People's Opp'n Def's Mot. Dismiss 4 (Dec. ll, 2017). Thus 21 this Court is confronted with the issue of whether a complaint is required to be tiled in a felony 22 prosecution where a defendant is released, and an NTA is issued. 23 In Guam, felonies and related misdemeanors are charged by information or indictment, all 24 other crimes are charged by complaint. 8 GCA § 1.15 (2017). To commence a charge against a 25 Defendant, Guam's criminal procedure statutory scheme provides inter alia that, "[i]n any case 26 where a person is not arrested upon a warrant and such person does not demand to be taken before 27 a judge, the arresting officer ... [m]ay release him pursuant to the procedure provided by [8 GCA 28

CF0064-17 People of Guam vs. Jenny Marie Petrache Page 2 of 6 DECISION AND ORDER (Defendant's Motion m Dismiss)

1 Chapter 25]." 8 GCA § 25.10 (2017). If the officers "determines that a person arrested should be 2 released, the officer shall prepare in duplicate a written notice to appear in court, containing the ... 3 time and place when and where the person shall appear in court...." 8 GCA § 25.20. 4 Once an individual is released from police custody with the NTA,

5 "[t]he officer shall forthwith deliver the copy of the notice to appear to the prosecuting attorney charged with the duty to prosecute the offense charged. At or 6 before the time which the person promised to appear, if the prosecuting attorney 7 determines that the offense should be prosecuted, he shall file the notice to appear and a complaint and affidavits which satisfy the requirements of § 45.20 in the 8 court in which the person has promised to appear...."

9 8 GCA § 25.30. 10 I n Villapando, the case relied on by the Defendant, the Supreme Court of Guam expanded 11 on a previous interpretation of §25.30 in,People v. Palo ro, 1998 Guam 12. Thus this Court looks 12 . to both Padomo and Villapando for guidance in addressing the issue presented herein. 13 i I n Padomo th e S u p rem e Cou rt ad d ressed th e issu e of wh eth er th e p rosecu tion of a 14 m isdem eanor should be dism issed where a com plaint is filed after the date noted on a NTA 15 ' provided to a Defendant. The Supreme Court held that the date in the NTA "establishes a dh facto 16 2statute of limitations," P alo ro, 1998 Guam at *][ 14. Thus, under P alo ro, where a person is given 17 2 a NTA and is later charged with a misdemeanor via complaint, the complaint must be filed before 18 . the date noted on the NTA. Otherwise, the complaint should be dismissed. ac; 19 I n Villapando, the Supreme Court considered the issue of whether the dh facto statute of 20 limitations in a NTA also applies to the prosecution of a felony. Villapando, 1999 Guam 31 at 'll 21 . 22. The Supreme Court held that when the People prosecute a felony and the NTA procedure is 22 used, the De facto statute of limitations in the NTA recognized inPaloma, applies. L; at 'll 44. 23 However, the reasoning in Villapando is what is instructive to the instant case. The 24 Supreme Court discussed the issue of whether an indictment is a form of complaint. See at 'I 25 37. The Court looked to the definition of complaint, and held that like a complaint, "[a]n 26 indictment contains the essential facts constituting the offenses charged, in writing, signed by the 27 prosecutor and tiled with the court." Q (further reasoning "[i]t could be construed that an 28

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1 . indictment is a specific or more specialized type of complaint in that a complaint may simply be

2 prepared by the prosecuting attorney after some investigation, whereas other more stringent 3 . procedures are required in order to obtain an indictment."). Thus the Court held that the de facto 4 statute of limitations recognized inPalo ro applied to felonies, because an indictment is a form of 5 a complaint. 6 However, the Court implied that if an indictment is tiled before the date noted in the NTA, 7 | then the requirements of § 25.30 are met. See Villaoando, 1999 Guam 31 at '][ 44. This implied 8 : holding is clear because, as noted in Villapando, felonies are prosecuted by indictments, not by 9 complaint. Q at 'l[38. 10 In support of the holding in Villapando, the Court cited positively to the Federal Ninth 11 Circuit Court of Appeals' discussion of the difference between a petition in juvenile prosecutions, 12 and a complaint and indictment in adult prosecutions. See Villapando, 1999 Guam 31 at 'it 39. In, 13 People of TeMtorv of Guam v. Qui rata, 785 F.2d 812 (9th Cir. 1986), the Ninth Circuit reasoned 14 that the indictment at issue should not be dismissed for failure to comply with an applicable statute 15 . of limitations, because a petition was filed within the limitation period. Ouinata, 785 F.2d at 814. 16 The Qui rata Coin reasoned that a Petition meets the definition of a complaint or indictment 17 . because it is "meant to inform the defendant of the offense the state accuses him of having 18 cormnitted." Q at 813-14. The Ninth Circuit looked to the substance of the document, not the 19 caption. Li The Ninth Circuit reasoned the rules required that a juvenile prosecution commence by 20 petition and not a complaint. Ld, at 814. Thus, the court emphasized that both commence a 21 prosecution and thus the statute of limitations was not violated. at 814. 22 Here, the Coup finds the Defendant misinterprets the analysis in Villapando. The 23 Defendant posits that because Villapando held that the De facto statute of limitations in an NTA 24 applies to felony prosecutions where an NTA is issued, a complaint and affidavit are always 25 required in such cases. The Court finds the Supreme Court's analysis did not hold that an NTA 2 6 , controls the procedure for charging out a Defendant. Rather, the Supreme Court's analysis focused 27 on the requirement that a complaint being filed. The Court found that an indictment is a more 28

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1 specialized type of complaint, and therefore § 25.30 did apply to felony prosecutions where the

2 NTA procedure is used. Villapando, 1999 Guam 31 at 'I 37. 3 The Villapando Court did not hold that the People are required to file a complaint and 4 affidavit in every felony prosecution resulting from the issuance of an NTA. The Court held that a 5 prosecution is required to be commenced within the time set by the De facto statute of limitations 6 in the NTA. However, the Villapando Court was clear in recognizing felony prosecutions are 7 initiated by indictment and not by complaint. Thus, the Supreme Court in discussing Qui rata and 8 the overall statutory scheme, acknowledged, at least implicitly, that an indictment returned before 9 the date in the NTA satisfies thedef ac e statute of limitations in 8 GCA §25.30. 10 Therefore this Court finds that in this type of felony prosecution, where an NTA is issued, 11 § 25.30 and Villapando are satisfied where an indictment is filed before the date noted on the 12 NTA. If this Court were to require a complaint and affidavit in this type of case, the requirement 13 would be meaningless. If a Defendant is released, and a grand jury finds cause to believe a crime 14 was committed and the Defendant committed it, then a SUMMONS is issued for that Defendant to 15 answer to the charges. See 8 GCA § 15.40. The complaint and affidavit would have no effect on 16 the proceedings as the indictment already commenced the prosecution, gives notice of the charges, 17 and the grand jury found the required cause to charge the Defendant. SeeNote to 8 GCA § 15.10 18 ("In felony cases, the principal function of the complaint is to serve as an application for a warrant 19 of arrest or a summons. However, it also serves a foundation for preliminary examination. It does 20 not serve as an accusatory pleading, i.e. the prosecution of a felony must be based on either an 21 indictment or an information. In cases where a felony is not charged the complaint serves as the 22 accusatory pleading and is therefore subject to the same rules of pleading as an indictment or 23 information."). Because the Defendant was not detained and instead was released as allowed 24 under 8 GCA Chapter 25, there is no requirement that a magistrate find probable cause here. 25 Instead, because the People charge the Defendant with a felony, the grand jury made the requisite 26 finding by returning the indictment. 27 28

CF0064-17 People of Guam vs. Jenny Marie Petrache Page 5 of 6 DECISION AND ORDER (Defendant's Motion to Dismiss)

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1 Thus in Villapando, the Supreme Court held that when an NTA is issued under the 2 provisions of 8 GCA Chapter 25, the initiation of a prosecution must be commenced by the date 3 set out in the NTA. This creates a defaezo statute of limitations. However, the Grand Jury's return 4 of an indictment satisfies 8 GCA § 25.30 because the indictment is a form of complaint, and an 5 indictment is the charging instrument which initiates the prosecution in felony cases. Therefore the 6 Court DENIES the Defendant's Motion to Dismiss for failure of the People to file a complaint in 7 this matter. The Court finds an indictment was returned before the date noted in the NTA. 8 CONCLUSION 9 By preponderance of the evidence and based on the foregoing reasons, the Court DENIES 10 the Defendant's Motion to Dismiss.

11 A Criminal Trial Setting is set for April 24, 2018 at 10:00a.m. 12

13 so ORDERED I AFR 122018 14

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16 The Honorable Anita A. Sukola Judge, Superior Court of Guam 17

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20 SFRVICE vIA COURT BOX

21 I acknovkdgs that s '.~,;y of the odglml h "o was Wand in the 22

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DECISION AND ORDER (Defendant'sMotion [O Dismiss)