State v. Rosas

THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID No. 1909015360
)
OSCAR OLAN ROSAS, )
)
Defendant. )
MEMORANDUM ORDER
On this 10th day of March, 2021, upon consideration of Defendant, Oscar
Olan Rosas’ (“Defendant”) Motion to Dismiss and/or Reduction of Bail (the
“Motion”), 1 the State’s Response, 2 and the record in this case, it appears to the
Court that:
1. On December 13, 2018, the victim in this case disclosed to her mother
that she was assaulted by her paternal uncle, Defendant, approximately four years
prior. On December 14, 2018, the victim’s mother reported the incident to DFS.
Following the report, a forensic interview was conducted of the victim at the
Children’s Advocacy Center of Delaware on January 2, 2019.
2. On September 25, 2019, the State authorized the arrest of Defendant, and
he was arrested in the State of Florida by the U.S. Marshall’s Task Force, on or
about October 22, 2019.
1
D.I. 17 [hereinafter “Def.’s Mot.”].
2
D.I. 18 [hereinafter “State’s Resp.”]
3. On January 8, 2020, Defendant filed a Motion to Dismiss for lack of
indictment. On January 9, 2020, the State received Defendant’s Motion. On that
date, the State advised defense counsel that the case was already scheduled to be
heard by the New Castle County Grand Jury on January 21, 2020.
4. On January 21, 2020, Defendant was indicted on the following offenses:
Rape in the First Degree, Sexual Abuse of a Child by a Person in a Position of
Trust, Authority or Supervision, Dangerous Crime Against a Child and Unlawful
Sexual Contact First Degree.
5. On March 4, 2020, a scheduling order was issued by this Court, setting a
trial date of September 9, 2020. However, the trial date was postponed due to the
several orders issued by the Delaware Supreme Court and the Delaware Superior
Court declaring a judicial emergency.
6. On March 12, 2020, Governor John Carney issued a Declaration of a
State of Emergency for the State of Delaware due to the Public Threat created by
COVID-19. 3 On March 13, 2020, the Delaware Supreme Court issued an Order
Declaring Judicial Emergency, specifically ordering that “all time requirements
under the Speedy Trial Guidelines are hereby tolled.” 4 On March 22, 2020, the
Supreme Court issued Administrative Order Number 3, which closed all
3
Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat,
(Mar. 12, 2020), https://governor.delaware.gov/health-soe/state-of-emergency/.
4
Order Declaring a Judicial Emergency, Seitz, C.J. (Del. Mar. 13, 2020).
2
courthouses in the State of Delaware to the public from March 23, 2020 until April
15, 2020 or further order of the Chief Justice of the Supreme Court.5 Subsequent
extensions of this Order, have resulted in suspension and delays of grand jury
proceedings up until April 3, 2021.6
7. On January 29, 2021, Defendant filed this Motion to Dismiss and/or for
Reduction of Bail, asserting a lack of a speedy trial. The State filed its Response in
Opposition to the Motion on February 8, 2021.
Defendant’s Motion to Dismiss for Lack of a Speedy Trial
8. Under the Sixth Amendment of the U.S. Constitution, there exists a
constitutional right to a speedy trial. 7 There is a parallel right provided in the
Delaware Constitution, Article 1, section 7.8 Delaware Courts evaluate
constitutional speedy trial claims under the analysis established by the U.S.
5
Administrative Order No. 3, In re: COVID-19 Precautionary Measures (Del. Mar. 22, 2020).
6
Administrative Order No. 4, In re: COVID-19 Precautionary Measures (Del. Apr. 14, 2020);
Administrative Order No. 6, In re: COVID-19 Precautionary Measures (Del. May 14, 2020);
Administrative Order No. 7, In re: COVID-19 Precautionary Measures (Del. June 5, 2020);
Administrative Order No. 9, In re: COVID-19 Precautionary Measures (Del. Aug. 5, 2020);
Administrative Order No. 10, In re: COVID-19 Precautionary Measures (Del. Sept. 4, 2020);
Administrative Order No. 11, In re: COVID-19 Precautionary Measures (Del. Oct. 2, 2020);
Administrative Order No. 12, In re: COVID-19 Precautionary Measures (Del. Nov. 2, 2020);
Administrative Order No. 13, In re: COVID-19 Precautionary Measures (Del. Nov. 16, 2020);
Administrative Order No. 14, In re: COVID-19 Precautionary Measures (Del. Dec. 2, 2020);
Administrative Order No. 15, In re: COVID-19 Precautionary Measures (Del. Dec. 30, 2020);
Administrative Order No. 16, In re: COVID-19 Precautionary Measures (Del. Jan. 28, 2021);
Administrative Order No. 17, In re: COVID-19 Precautionary Measures (Del. Mar. 4, 2021).
7
U.S. Const., Amend. VI.
8
Del. Const., Art. 1, § 7.
3
Supreme Court in Barker v. Wingo (“Barker”). 9 Under Barker, speedy trial claims
are assessed using a four-pronged balancing test examining: “(1) the length of
delay, (2) the reason for the delay, (3) the defendant's assertion of the right to a
speedy trial, and (4) prejudice to the defendant.” 10
9. In addressing Defendant’s Motion to Dismiss, the Court looks to the first
factor of the Barker analysis: the length of delay. A determination of the length of
delay must be made before undertaking a full assessment of the three remaining
Barker factors. The Delaware Supreme Court has stated that "[t]he length of the
delay is the trigger that necessitates the consideration of the other three Barker
factors. [U]ntil there is some delay which is presumptively prejudicial, there is no
necessity for inquiring into the other factors that go into the balance.’” 11 A
defendant’s right to speedy trial attaches at the moment of his arrest, indictment or
information, whichever comes first. In this case, the Defendant was arrested in
Florida on October 22, 2019. The first trial date was scheduled for September 9,
2020, which is less than one year from his arrest. On August 13, 2020, the State
tendered a plea offer to defense counsel, prior to the first case review date which
was scheduled on August 20, 2020. On August 13, 2020, a First Case Review
9
407 U.S. 514 (1972).
10
Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002) (citing Barker, 407 U.S. at 530).
11
Dabney v. State, 953 A.2d 159, 164 (Del. 2008) (quoting Hughey v. State, 522 A.2d 335, 341
(Del. 1987) (citing Barker, 407 U.S. at 530))
4
Waiver was filed, and Defendant set the case for Final Review.12 To date, no trial
date has been set. The Court takes into account that the initial trial date was set to
occur within one year of Defendant’s arrest, but it was postponed and not yet
rescheduled which takes it beyond a year of his arrest. Hence, the delay is
presumptively prejudicial and necessitates consideration of the remaining Barker
factors.
10. The Court next addresses the second factor of the Barker analysis: the
reason for the delay. The delay in this case is a direct result of the pandemic.
Although the pandemic has delayed Defendant’s trial date, and has diminished the
ability for the parties to engage in productive case reviews, the extended delay
does not weigh against the State. According to the Emergency Judicial Order “all
time requirements under the Speedy Trial Guidelines are hereby tolled.”13 This
issue was recently addressed in State v. Duonnolo, 14 where this Court denied the
defendant’s motion to dismiss for lack of a speedy trial.
11. In Duonnolo, the Court considered the federal Speedy Trial Act. 15 In
reaching its conclusion to deny the defendant’s motion to dismiss, the Court noted
that “[e]very federal court that has dealt with a speedy trial argument in light of the
coronavirus pandemic has held that the delay caused by the closing of courthouses
12
D.I. 15.
13
Order Declaring a Judicial Emergency, Seitz, C.J. (Del. Mar. 13, 2020).
14
2020 WL 2467077 (Del. Super. May 13, 2020).
15
Id. at *2.
5
and unavailability of juries is ‘excludable time’ for purposes of the federal Speedy
Trial Act.” 16 In furtherance of theses findings, the delay in this case cannot be
attributed to the State, or anything other than the COVID-19 pandemic. Therefore,
this factor does not weigh against the State.
12. The Court next addresses the third factor of the Barker analysis: the
assertion of the right to a speedy trial by the accused. Defendant first moved to
dismiss his case on January 8, 2020 on the basis of a failure to indict. That issue
was rendered moot, however, because the matter was already scheduled and was
indicted on January 21, 2020. Subsequently, Defendant asserted his speedy trial
rights in this Motion. However, the reason behind the delay of Defendant’s trial is
so compelling and outside of the control of either party, that the Court does not
assign significant weight to Defendant’s assertion of this right. Hence, this factor
balances out in favor of both parties.
13. Finally, the Court addresses the last factor of the Barker analysis: the
prejudice to the accused. In Middlebrook v. State, 17 the Delaware Supreme Court
noted that in assessing prejudice under Barker, courts must consider: “(1)
16
Duonnolo, 2020 WL 2467077, at *2 (citing United States v. Kemprud, 2020 WL 2128585(E.D. CA May 5, 2020) (time exclusion granted in light of the emergence of coronavirus and the
dangers to the public); United States v. Rubaba, 2020 WL 1446910 (D. Kan. Mar. 25, 2020);
United States v. Lynch, 2020 WL 1492827 (M.D. Ala. Mar. 24, 2020) (finding that the ends of
justice served by granting a continuance of this trial outweigh the interest of the public and the
Defendant in a speedy trial); United States v. Hughes, 2020 WL 1331027 (W.D. Wash. Mar. 23,
2020)).
17
802 A.2d 268 (Del. 2002).
6
preventing oppressive pretrial incarceration; (2) minimizing the anxiety and
concern of the accused; and (3) limiting the possibility that the defenses will be
impaired.” 18 In this case, the delay at issue is not attributable to the State, but
rather to the Judicial Emergency that has impacted the scheduling of criminal
trials.
14. Further, the Court is not convinced by Defendant’s arguments that his
pretrial detention is especially oppressive because of COVID-19. First, Defendant
has not highlighted any inherent health issues that make him more uniquely at risk
in these circumstances. Second, the Department of Correction (“DOC”) has
undergone various efforts and steps to prevent and minimize the spread of COVID-
19 within the correctional institutions, since the inception of the pandemic.
Moreover, as stated by this Court in Duonnolo, although incarceration itself is
considered prejudicial, such prejudice is “suffered by all pretrial detainees . . . .”19
Third, even though Defendant’s trial has not yet been scheduled, at this time the
expectation is that trials will resume in the not too distant future. Importantly, it
bears repeating and re-emphasizing that the delay is solely based on the
coronavirus pandemic that necessitated closures and postponements beyond the
control of anyone.
18
Middlebrook, 802 A.2d at 276.
19
Duonnolo, 2020 WL 2467077, at *2.
7
Thus, the Court finds that Defendant has failed to establish that the prejudice he
articulates is especially oppressive, unique to his case or rises to a level that
warrants dismissal. Therefore, this factor weighs against Defendant.
Defendant has not set forth a valid basis to establish that he has been
unconstitutionally denied his right to a speedy trial. Accordingly, Defendant’s
Motion to Dismiss is DENIED.
Defendant’s Motion for Bail Reduction
15. The Court next considers Defendant’s request for a reduction in bail.
The Eighth Amendment to the United States Constitution and Article 1, Section 11
of the Delaware Constitution provide that excessive bail shall not be required. 20
The Eighth Amendment’s prohibition against excessive bail is applicable to the
states through the due process clause of the Fourteenth Amendment. 21
16. Defendant is currently held on $270,000 cash bail that was imposed
after his return to Delaware following his apprehension by the Marshall’s Task
Force in the State of Florida. Such bail was issued to ensure Defendant’s
appearance at trial and to ensure the safety of the victim and the public.
17. The Court acknowledges Defendant’s financial hardships and
previously limited criminal background. However, Defendant is charged with
violent sexual offenses against a minor child who was living with her family in
20
U.S. Const., Amend. VIII; Del. Const., Art. 1, § 11.
21
Sistrunk v. Lyons, 646 F.2d 64, 70 (3d Cir. 1981).
8
Defendant’s apartment. Further, Defendant’s action of moving to Florida, days
after his confrontation with the victim’s mother, indicate that he may be a flight
risk. This risk is exacerbated by the fact that Defendant is facing significant
minimum mandatory jail time if convicted. 22
18. Further, although the Court acknowledges Defendant’s concerns surrounding
the Coronavirus, as stated previously, DOC has taken aggressive measures to
minimize and prevent the spread within correctional institutions. Defendant has
not presented any immediate health risks that require him to be isolated.
Accordingly, Defendant’s Motion to for Bail Reduction is also DENIED.
IT IS SO ORDERED.
Sheldon K. Rennie, Judge
Original to Prothonotary
Cc: Oscar Olan Rosas (SBI #00919410)
Monika G. Germono, Esq.
Cari Chapman, Esq.
Investigative Services
22
See 11 Del. C. § 773; see also 11 Del. C. § 778(1) or (2).
9