People v. Tyquiengco

Opinion

lt~ .,.",'~t

~~I..; l ~ ~ li.·... Jt1 '.. ;~ \ I

IN THE SUPERIOR COURT OF GUAM Or CU/";il 2 ')C'll L0: r-'

,tu 2.fI! t.11 Q; Li 7 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM558-l1 3 )

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

5 KA YSHA-RAE REYES TYQUIENGCO, )

)

6 Defendant. ) 7

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 IF'), 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 fmd 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 7, 2010 and given a notice to appear ("NTA") with a 24 date of July 27, 2011. On May 4, 2011, the Complaint was filed, and on May 17, 2011 a 25 Summons was issued for an arraignment scheduled on June 15,2011. Defendant contacted the 26 Court and provided travel documents proving that she would not be on Guam at the time of the 27 scheduled arraignment set by the Summons, but was available and prepared to appear on the 28

lof4

NTA date. Defendant was verbally told to appear on the NTA date and disregard the Summons.

2 After eighty-four (84) days had passed from the filing of the Complaint, Defendant appeared 3 and was appointed counsel at the July 27, 2011 hearing. In order to provide Defendant the 4 opportunity to meet and confer with counsel, the arraignment was continued until August 24, 5 2011, twenty-eight (28) days later. One hundred twelve (112) days after the Complaint was 6 filed, Defendant was finally arraigned on August 24, 2011. 7 The time between the Complaint and the first appearance on July 27, 2011 does violate 8 the 60 day rule announced in Rasauo II. Therefore, the Court must review what days, if any, 9 after July 5, 2011 2 constitutes good cause or if this case must be dismissed for the 60 day rule 10 violation. 11 If Defendant had appeared and was arraigned on June 15, 2011, the date set by the 12 Summons, there would not be a violation of the 60 day rule. The People and the Court were 13 prepared to hold an arraignment for the Defendant, but Defendant's own actions made that 14 impossible. The Court applauds the Defendant contacting the Court prior to her off-island travel 15 and avoiding the necessity of an issuance of a bench warrant for failure to appear. Nonetheless, 16 the Court finds that the any delay caused by a defendant's failure to appear at an arraignment 17 that has been properly noticed3 is good cause. Therefore, the delay of arraignment from June 15, 18 2011 to July 27, 2011 caused by Defendant's failure to appear is good cause for purposes of the 19 60 day rule. People v. Flores, 2009 Guam 22 ~ 32 (citing People v. Johnson, 606 P.2d 738, 746 20 (Ca1.l980)). 21 Additionally, the Court must determine if the time the Court allows a defendant to meet 22 and confer with counsel prior to being arraigned is reasonable and constitutes good cause. Title 23 8 Guam Code Annotated section 45.30( c) provides that the Court shall allow reasonable time to 24 a defendant to meet and confer with counsel prior to being arraigned. Meeting with and 25

26 I This holding is hereinafter referred to as the "60 day rule."

27 2 The sixtieth day falls on Sunday, July 3,2011; thus pursuant to 8 GCA § 1.25(a) the sixtieth day is calculated as July 5,2011.

28 3 Proper notice includes any of the following circumstances: (i) notice provided by a properly served summons, (ii)

notice to appear is provided to a defendant, or (iii) notification that occurs when a defendant is present and hears the court determine the date and time of the continued arraignment.

discussing arraignment with counsel allows a defendant to understand the significance of the 2 arraignment process as well as the defendant's rights, which are asserted or waived at 3 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this 4 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743,744-45 (Ky. Ct. 5 App.2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 6 1, are not present when a defendant is appointed counsel and the delay between the Complaint 7 and the arraignment is partially attributed to the time necessary for a defendant to meet and 8 confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by Rasauo, 2011 Guam 14 ~ 10). 9 In this case, Defendant argued that a reasonable amount of time for a defendant to meet 10 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Dec!. of 11 PDSC Investigator Sea Aguon Cruz, CM558-11 (Dec. 19,2011). The Office of the Attorney 12 General has argued in several cases that any delay of arraignment occasioned by a continuance 13 granted by the magistrate court should be excused as good cause. The Court disagrees that a 14 bright line rule of any delay caused by a court's calendaring of a criminal matter is 15 automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it 16 intended the court and its officers to be subject to the prompt arraignment rule put forth in 17 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and 18 judicial officers .. , to expedite such proceedings to the greatest degree that is consistent with the 19 ends of justice"). See also People v. Ilemelong, CF150-10 (Super. Ct. Guam Jan. 13,2012). 20 Further, the Court rejects the contention that any length of delays caused by the time 21 provided to a defendant to meet and confer with an attorney is automatically good cause. The 22 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet 23 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009 24 Guam 22 ~ 38. Since the onus is on all judicial officers and the prosecuting attorneys to ensure 25 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 26 continued arraignment after a defendant is appointed counsel, means no more than thirty (30)

days4. 8 GCA § 80.50(a). Therefore, the Court fmds that twenty-eight (28) days is not an 2 excessive amount of time for a court to provide a defendant to meet and confer with her 3 attorney prior to being arraigned. Thus, the delay in this case is due to allowing Defendant time 4 to meet and confer with counsel prior to arraignment is reasonable and constitutes good cause. 5 There are one hundred twelve (l12) days between the filing of the Complaint and 6 Defendant's arraignment. Nonetheless, since there is good cause shown for the entire duration 7 of the violation of the 60 day rule, Defendant's Motion is DENIED. Rasauo, 2011 Guam 14, 8 14. A criminal trial setting shall occur on February 27,2012 at 9:30 a.m. 9

10 IT IS SO ORDERED this It.t of February, 2012. 11

12

I3 HONORABLEELUABETHBARRETT-ANDERSON 14 Judge, Superior Court of Guam 15

16

17

18

19

20

21

22

23

24

25

26

27

28 4 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with 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.