DocketNumber: No. P1-08-3576A
Judges: CARNES J.
Filed Date: 5/29/2009
Status: Precedential
Modified Date: 7/6/2016
Joseph Dwyer, from the Public Defender's office, entered his appearance on behalf of the Defendant on February 20, 2008. The case was reassigned on February 22 and 29, 2008, due to Defense counsel's unavailability. On March 11, 2008, the cases were reassigned due to the prosecutor's unavailability. On March 19 and 20, 2008, a violation/bail hearing was conducted before a justice of the Superior Court. At the conclusion of the hearing, the judge found that the elements of Article I, section IX were satisfied. After examining the Defendant's record before him, the judge ordered the Defendant held without bail because he believed the Defendant posed a significant danger to the community. The Court also found that the State had presented enough evidence to establish that the Defendant did not keep the peace and be of good behavior and converted the filing into one year to serve at the Adult Correctional Institution (ACI), effective retroactive to February 8, 2008.
At the close of the hearing, counsel for the State inquired of Mr. Dwyer whether Defendant would be interested in waiving indictment of the new charges. Mr. Dwyer indicated he was willing to consider this proposal; however, he was concerned with the mental competency of his client and his ability to assist in his own defense. Attorney Dwyer asked that the Court order a competency examination and continue the case until April 24, 2008. The day after the hearing, Defendant attempted to commit suicide and was thereafter closely monitored by ACI officials. On May 15, 2008, the competency report was complete and furnished to both parties. Counsel for the State again inquired as to whether Defendant was willing to waive the indictment on the new charge in exchange for a reduced sentence. Mr. Dwyer indicated that he was willing to explore this option but needed to speak with his client and also had lingering concerns regarding his client's mental competency. *Page 3
In July of 2008, counsel for Defendant indicated to the State that there was a potential for a pre-indictment disposition. In late August, the State and Defense counsel discussed resolving the case pre-indictment but were unsuccessful in coming to an agreement.
On August 25, 2008, Defendant, by his new counsel, Mr. DiMaio, filed a motion to set bail in District Court, with a copy sent to the Attorney General's office (AG). On September 4, 2008, the District Court informed counsel for the State that Attorney DiMaio had filed a motion to set bail on the pending District Court complaint. The motion and Mr. DiMaio's entry of appearance had both been sent to the District Court Unit of the AG's office and not to the assigned prosecutor. The issue was passed and to the State's understanding, the issue of bail was passed as well.
On September 11, 2008, counsel for the State and Attorney DiMaio conferenced with the Court on the motion to set bail. At that time, the State relayed the travel of the case, and Attorney DiMaio asked the Court for a continuance to confirm this information. On that day, it was agreed that the Defendant was not interested in waiving the indictment, and the State indicated it would present the case as soon as possible. The case was scheduled for Grand Jury presentation in early October but had to be rescheduled as necessary witnesses were not available. The complaining witness, for instance, had medical issues that prevented his attendance. The next available date was November 12, 2008.
On October 14, 2008, the bail hearing was reassigned due to defense counsel's unavailability. On October 29, the State was unavailable for a conference, and the motion was continued to November 19, 2008.
Due to a trial that the State was involved with, the State was unavailable for the Grand Jury presentation, and that was continued to November 18, 2008. On November 19, 2008, *Page 4
defense and State's counsel met with this Court to discuss the motion to set bail, and the Defendant informed the State that regardless of whether the State could produce an indictment, the Defendant intended to proceed with his motion requesting the Defendant be bailed or released due to the alleged violation of §
On November 25, 2008, the Grand Jury returned an official report to the Court indicating a twenty-two (22) count indictment against Defendant. These counts included charges of first degree sexual assault, felony assault, and kidnapping. The arraignment was set for December 17, 2008. On December 2, 2008, the Defendant was arraigned on the indictment, and the matter was rescheduled until December 5, 2008, for a conference on Defendant's motion to set bail.
On May 8, 2009, the motion to set bail was scheduled for hearing; however, the Defendant, through no fault of his own, was not present. The hearing was rescheduled for May 15, 2009. This Court heard oral arguments by both parties on May 15, 2009.
The State's attorney has argued that "shall" is not always mandatory and in some instances, such as bail hearings, the language is directory. As she contends, there is no law on §
This Court must first interpret §
In Rhode Island, the Supreme Court has consistently held that certain statutory time limitations are directory rather than mandatory. SeeLawrence,
Although the case before this Court concerns a different statute, this Court finds some of the facts analogous. This Court is satisfied by the evidence introduced that defense counsel Dwyer represented to the State that he was willing to consider a plea agreement with the State.2
The State continuously asserts that the only reason it did not move forward and bring the charges before a Grand Jury was that the State and Attorney Dwyer agreed not to move forward while he *Page 7
discussed the plea agreement with his client. This Court finds that the State must be allowed to reasonably rely upon the assertions of defense counsel made on behalf of his client. See State v. Austin,
Attorney DiMaio next argued that once he moved for the bail hearing, the State still took an unreasonably long time to arraign the Defendant. In late August, Attorney DiMaio became counsel for the Defendant. He very quickly moved for a bail hearing due to the fact that Defendant had been held without bail for over six months. The Defendant argues that he filed his motion in District Court on August 25, 2008, and sent a copy to the Attorney General's office on that same day. Counsel for the State argues she was not made personally aware that the Defendant was not interested in a plea agreement until September 4, 2008, when she received a phone call from District Court. She further argues that from the time she was made aware that the Defendant was no longer interested in a plea agreement, she did not unreasonably delay in scheduling and pursuing the indictment and arraignment.
This Court finds that even if it relies on the longer timeline — from August 25, 2008 to December 2, 2008 — this amount of time was not an unreasonable delay. This time period was shortly over three months, a time period that was much less than the six-month limit in §
This Court further relies on the fact that when the Defendant was brought before the Superior Court for a violation hearing, that judge determined that the Defendant was a danger to society and required he be held without bail. This Court has no reason to doubt the determination made by the prior justice in regard to the danger this Defendant poses to society. This Court will not bail defendant or release him under §