IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM lO46-10' 3 ) 4 vs. ) DECISION AND ORDER ) (Motion to Reconsider) 5 SAM SUZUKI, ) 6 Defendant.
7 This Matter came before the HONORABLE SENIOR PRO TEMPORE ELIZABETH 8 BARRETT-ANDERSON on September 21, 2012 on Defendant's Motion to Reconsider 9
IO Defendant was not present, but was represented by Attorney Suresh Sampath. The People were
II represented by Assistant Attorney General James C. Collins. The Court having considered all of 12 the arguments, briefs and materials now issues its decision. 13 PROCEDURAL BACKGROUND 14 Defendant was arrested on or about December 5, 2009, and given a Notice to Appear 15
16 ("NTA") with a date of December 8, 20lO, a government holiday - Our Lady ofCamarin Day.1
17 The Complaint was filed on November 26, 2010, but no summons for appearance was issued at 18 the time,2 and instead the People relied upon the NTA as the date set for Defendant's first 19 appearance and arraignment. Defendant came to the courthouse on December 8th , but the Court 20
21 was officially closed. 3
22 The Court issued a Summons on December 29, 20lO with an arraignment schedule for
23 January 12, 2011. The Summons was a non-service. At arraignment the Magistrate Court 24 recommended a bench warrant, which was issued on January 24, 2011. The bench warrant was 25 I 1 GCA §1000. 26 2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a 27 probable cause determination is made. 8 GCA § 15.20(a). Also. 8 GCA § 60.1 O(a). The defendant shall be arraigned promptly after the indictment or information is filed or after the complaint is filed where prosecution by complaint is 28 required by § 1.15. 3 Mot. to Reconsider, Sam Suzuki Witness Statement served on Defendant on August 3, 2011. Defendant was arrested, brought before the Magistrate
2 Judge, appointed counsel, released and ordered to appear for arraignment on August 10, 2011.
3 Defendant was arraigned after two-hundred fifty-seven (257) days had passed from the filing of 4 the Complaint. 5 Defendant filed a Motion to Dismiss (hereinafter "The Motion) on October 31, 2011 and 6
the People filed their Opposition on December 27, 2011. The Court issued its decision and order 7
8 denying dismissal on February 24, 2012, and Defendant petitioned for reconsideration herein.
9 DECISION 10 Guam's Supreme Court held4 : "that unless good cause is shown, a complaint shall be 11 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 12
13 complaint." Defendant argues that pursuant to People v. Rasauo, 2011 Guam 14 (hereinafter
14 referred to as "Rasauo II"), this case should be dismissed with prejudice because Defendant 15 was not arraigned within (60) days after the Complaint was filed. See also 8 GCA §60.10. The 16 People argue that the Court should find good cause exists for the delay, and therefore, the 17 dismissal would be inappropriate. As required by Rasauo II, this Court will review the specific 18
19 facts in this case to determine whether or not there was good cause for the delay in arraigning
20 Defendant beyond the sixty (60) days after the Complaint was filed. s 21 The Court finds that the time between the Complaint and the first appearance on August 22 8, 2011 does present a prima facia violation the 60 day rule announced in Rasauo 11 The Court 23 must next re-review whether its prior determination of good cause is still valid in light of the 24
25 Defendant's reconsideration motion and arguments.
28 4 Rasauo, 2011 Guam 14'10, 16. This holding is hereinafter referred to as the "60 day rule." 5 Rasauo, 2011 Guam 14'10, 14.
2 Defendant for the first time states by affidavit facts, not previously brought to the
2 Court's attention, that he came to the courthouse on December 8th in compliance with his NTA,
3 and found the courthouse closed for the holiday. Defendant also argues that he has remained 4 employed at Bob's Nursery since the time of his arrest and still currently resides at the address 5 provided on his NTA, therefore, Summons should have been served without difficulty upon 6 him. 7
8 Assigning Defendant an NTA date on an official governmental holiday was clear error.
9 The facts of this case are the exception to the thousands of NTAs issued annually by the police IO department, and therefore, this decision on reconsideration should be narrowly read and applied. II Good cause for delaying a criminal trial rests within the discretion of the Court. 6 There 12
13 are some general principles that have been recognized in determining what constitutes good
14 cause. 7 For instance, delay caused by Defendant or for Defendant's benefit, as well as 15 unforeseen circumstances is understood as good cause and avoids dismissal. Delay at the fault 16 of the prosecution or improper court administration does not constitute good cause. 8 In this case, 17 GPD assigned the NTA date on an official government holiday. The error is that of the 18
19 government, and as such, the burden should be suffered by the People in the same manner as
20 lapses in the administration of justice, especially where the Defendant has been compliant. 21 Next, the Court must determine whether the People's effort on December 16th III 22 requesting a Summons for a new appearance date for the Defendant satisfies good cause under 23 Rasauo II. The Court finds it does not. The People were on notice by their pleadings on 24
25 November 26, 2010, that there was an error existing in the Defendant's NTA date. The
26 6People v. Flores 2009, Guam 22 ,32 and People v. Johnson, 606 P.2d 738, 746 (Cal. 1980), citing «People v. 27 McFarland (1962) 209 Cal.App.2d 772, 776, 26 Cal.Rptr. 596; see In re Lopez (1952) 39 Cal.2d 118, 120,245 P.2d 1; People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1007, 122 Cal.Rptr. 267.) 28 7Id 8 Id citing, Herrick v. Municipal Court (1957) 151 Cal.App.2d 804, 810, 312 P.2d 264.)
3 argument offered by the People is simply that they filed for a Summons on December 16th • This
2 is eight (8) days after the NTA, and twenty (20) days after filing of the Complaint The effort in
3 filing a request for a summons does not correct initial the NTA error. 4 The Court frods that the timing of the request for a Summons disfavors the People. Had 5 the request been made prior to December 8th the Court would be more sympathetic. However, 6 once the Defendant complied with the NTA the burden necessarily shifted to the People to show 7
8 the Court why it should be relieved from so glaring an error. It is difficult for the Court to
9 excuse both the police officer's error on the NTA date, and the People's failure to correct the 10 error in a timely manner. 11 With regard to service of the Summons, the Court finds that reasonable and diligent 12
13 efforts were taken to serve Defendant with the summons,9 but these efforts cannot cure the
14 faulty NTA date assigned by GPD, nor government's untimely summons request 15 The People argue that Defendant's Motion to Reconsider is untimely, in violation of the 16 promulgated scheduling order. to The Motion Deadline set by the Court was July 16th, 2012. 17 While the Motion was dated by Defendant as July 16th, 2011, it was received by the Court the 18
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IN THE SUPERIOR COURT OF GUAM 2 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM lO46-10' 3 ) 4 vs. ) DECISION AND ORDER ) (Motion to Reconsider) 5 SAM SUZUKI, ) 6 Defendant.
7 This Matter came before the HONORABLE SENIOR PRO TEMPORE ELIZABETH 8 BARRETT-ANDERSON on September 21, 2012 on Defendant's Motion to Reconsider 9
IO Defendant was not present, but was represented by Attorney Suresh Sampath. The People were
II represented by Assistant Attorney General James C. Collins. The Court having considered all of 12 the arguments, briefs and materials now issues its decision. 13 PROCEDURAL BACKGROUND 14 Defendant was arrested on or about December 5, 2009, and given a Notice to Appear 15
16 ("NTA") with a date of December 8, 20lO, a government holiday - Our Lady ofCamarin Day.1
17 The Complaint was filed on November 26, 2010, but no summons for appearance was issued at 18 the time,2 and instead the People relied upon the NTA as the date set for Defendant's first 19 appearance and arraignment. Defendant came to the courthouse on December 8th , but the Court 20
21 was officially closed. 3
22 The Court issued a Summons on December 29, 20lO with an arraignment schedule for
23 January 12, 2011. The Summons was a non-service. At arraignment the Magistrate Court 24 recommended a bench warrant, which was issued on January 24, 2011. The bench warrant was 25 I 1 GCA §1000. 26 2 Unlike the facts in Rasauo II, the Court notes that a summons is now required to automatically be issued on all misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a 27 probable cause determination is made. 8 GCA § 15.20(a). Also. 8 GCA § 60.1 O(a). The defendant shall be arraigned promptly after the indictment or information is filed or after the complaint is filed where prosecution by complaint is 28 required by § 1.15. 3 Mot. to Reconsider, Sam Suzuki Witness Statement served on Defendant on August 3, 2011. Defendant was arrested, brought before the Magistrate
2 Judge, appointed counsel, released and ordered to appear for arraignment on August 10, 2011.
3 Defendant was arraigned after two-hundred fifty-seven (257) days had passed from the filing of 4 the Complaint. 5 Defendant filed a Motion to Dismiss (hereinafter "The Motion) on October 31, 2011 and 6
the People filed their Opposition on December 27, 2011. The Court issued its decision and order 7
8 denying dismissal on February 24, 2012, and Defendant petitioned for reconsideration herein.
9 DECISION 10 Guam's Supreme Court held4 : "that unless good cause is shown, a complaint shall be 11 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 12
13 complaint." Defendant argues that pursuant to People v. Rasauo, 2011 Guam 14 (hereinafter
14 referred to as "Rasauo II"), this case should be dismissed with prejudice because Defendant 15 was not arraigned within (60) days after the Complaint was filed. See also 8 GCA §60.10. The 16 People argue that the Court should find good cause exists for the delay, and therefore, the 17 dismissal would be inappropriate. As required by Rasauo II, this Court will review the specific 18
19 facts in this case to determine whether or not there was good cause for the delay in arraigning
20 Defendant beyond the sixty (60) days after the Complaint was filed. s 21 The Court finds that the time between the Complaint and the first appearance on August 22 8, 2011 does present a prima facia violation the 60 day rule announced in Rasauo 11 The Court 23 must next re-review whether its prior determination of good cause is still valid in light of the 24
25 Defendant's reconsideration motion and arguments.
28 4 Rasauo, 2011 Guam 14'10, 16. This holding is hereinafter referred to as the "60 day rule." 5 Rasauo, 2011 Guam 14'10, 14.
2 Defendant for the first time states by affidavit facts, not previously brought to the
2 Court's attention, that he came to the courthouse on December 8th in compliance with his NTA,
3 and found the courthouse closed for the holiday. Defendant also argues that he has remained 4 employed at Bob's Nursery since the time of his arrest and still currently resides at the address 5 provided on his NTA, therefore, Summons should have been served without difficulty upon 6 him. 7
8 Assigning Defendant an NTA date on an official governmental holiday was clear error.
9 The facts of this case are the exception to the thousands of NTAs issued annually by the police IO department, and therefore, this decision on reconsideration should be narrowly read and applied. II Good cause for delaying a criminal trial rests within the discretion of the Court. 6 There 12
13 are some general principles that have been recognized in determining what constitutes good
14 cause. 7 For instance, delay caused by Defendant or for Defendant's benefit, as well as 15 unforeseen circumstances is understood as good cause and avoids dismissal. Delay at the fault 16 of the prosecution or improper court administration does not constitute good cause. 8 In this case, 17 GPD assigned the NTA date on an official government holiday. The error is that of the 18
19 government, and as such, the burden should be suffered by the People in the same manner as
20 lapses in the administration of justice, especially where the Defendant has been compliant. 21 Next, the Court must determine whether the People's effort on December 16th III 22 requesting a Summons for a new appearance date for the Defendant satisfies good cause under 23 Rasauo II. The Court finds it does not. The People were on notice by their pleadings on 24
25 November 26, 2010, that there was an error existing in the Defendant's NTA date. The
26 6People v. Flores 2009, Guam 22 ,32 and People v. Johnson, 606 P.2d 738, 746 (Cal. 1980), citing «People v. 27 McFarland (1962) 209 Cal.App.2d 772, 776, 26 Cal.Rptr. 596; see In re Lopez (1952) 39 Cal.2d 118, 120,245 P.2d 1; People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1007, 122 Cal.Rptr. 267.) 28 7Id 8 Id citing, Herrick v. Municipal Court (1957) 151 Cal.App.2d 804, 810, 312 P.2d 264.)
3 argument offered by the People is simply that they filed for a Summons on December 16th • This
2 is eight (8) days after the NTA, and twenty (20) days after filing of the Complaint The effort in
3 filing a request for a summons does not correct initial the NTA error. 4 The Court frods that the timing of the request for a Summons disfavors the People. Had 5 the request been made prior to December 8th the Court would be more sympathetic. However, 6 once the Defendant complied with the NTA the burden necessarily shifted to the People to show 7
8 the Court why it should be relieved from so glaring an error. It is difficult for the Court to
9 excuse both the police officer's error on the NTA date, and the People's failure to correct the 10 error in a timely manner. 11 With regard to service of the Summons, the Court finds that reasonable and diligent 12
13 efforts were taken to serve Defendant with the summons,9 but these efforts cannot cure the
14 faulty NTA date assigned by GPD, nor government's untimely summons request 15 The People argue that Defendant's Motion to Reconsider is untimely, in violation of the 16 promulgated scheduling order. to The Motion Deadline set by the Court was July 16th, 2012. 17 While the Motion was dated by Defendant as July 16th, 2011, it was received by the Court the 18
19 morning of July 17, 2011. The People admit they too have violated such scheduling deadlines in
20 other matters. While a failure to comply with the Local Rules of the Superior Court of Guam 21 can leave parties subject to sanctions, refusing to entertain such a motion is an extreme remedy 22 in light of the infraction. Given the merits of this matter the Court agrees to reconsider its 23 earlier decision in this matter. 24
26 9 In the People's Response to Defendant's Motion to Reconsider, the AS400 ledger shows an attempt to serve the summons on Defendant prior to January 12, 20 II and that the declaration and recommendation of the Magistrate 27 Court provides that reasonable and diligent attempts were made by the marshalls. Peope v. Atson Ata Seti! (CM- 0571-11) at 2-3 ("The court accepts the Magistrate Court's declaration fo reasonable and diligent efforts by the 28 Deputy Marshal to effect service of the summons). 10 People's Supplemental Opposition to Motion to Reconsider p. 2,2.
4 The People also argue Defendant's failure to raise a Rasauo dismissal earlier should be
2 consider as a waiver of these arguments. II A Rasauo challenge addresses constitutional
3 guarantees of procedural safeguards that cannot be waived. The Supreme Court of Guam 4 declared, "The public interest in a broad sense, as well as the constitutional guarantee, command 5 prompt disposition of criminal charges. 12" The Court goes on to state that this principle has been 6 woven into Guam's statutory framework, and that "it is the duty of all courts and judicial 7
8 officers and all prosecuting attorneys to expedite such proceedings to the greatest degree that is
9 consistent with the ends of justice. 13" Rasauo 1 was request for post-conviction relief where the 10 Supreme Court of Guam required the defendant to prove unjust delay and prejudice to overturn 11 a conviction. Rasaou 11 sought pretrial relief 14 The Supreme Court of Guam heard both cases 12
I3 on the merits. Thus, the challenge can be made at any point.
14 CONCLUSION 15 The Court agrees on reconsideration that there were two hundred fifty-seven (257) days 16 between the filing of the complaint and Defendant's arraignment, and that no good cause exists 17 to excuse the delay. Defendant's case is hereby DISMISSED without prejudice. 18
19 IT IS SO ORDERED: NOV 2 1 2012 20
24 II Id pg. 3,1 25 12 People v. Rasauo, 2011 WL 4021385 (Guam Terr.) citing Strunk v. United States, 412 U.S. 434, 439 n. 2 (1973), and in United States v. Clay, 481 F.2d 133, (7 th Cir. 1973). 26 13 Id 14 2011 WL 4021385 (Guam Terr. 2011). In Rasaou II, The Supreme Court of Guam considered whether reversal of 27 a conviction was an appropriate remedy. The Court reflected on their holding in Rasauo I, a request for post- conviction relief. In Rasaou I, the court held Defendant must show that that there was both unjustifiable delay and 28 prejudice due to that delay. Rasauo II sought pre-trial relief; the Court held Rasauo II was only required to show unjust delay.