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The case against a man charged with the rape of a girl who was younger than 10 was dismissed Monday in Harvey County District Court because of an appellate court ruling regarding speedy trials.
Margarito Cervantes-Aguilar, of Wichita and allegedly a citizen of Mexico and in the United States illegally, was charged with two counts of rape and three counts of aggravated indecent liberties with a child.
An immigration detainer was placed on Cervantes-Aguilar with the Harvey County Detention Center.
Until recently, courts and prosecutors assumed an immigration hold constituted a second reason for the defendant to be held. This would extend the deadline required by law for a speedy trial from 90 days to 180 days, Harvey County Attorney David Yoder said.
However, a recent ruling by an appeals court in a Lyons County case Kansas v. Montes-Mata said an immigration hold could not be considered a second charge against the defendant, which extends the speedy trial time.
Cervantes-Aguilar’s attorney, John Sullivan, argued the immigration detainer was only the expression of the intent of immigration to investigate or file charges in the future.
Yoder argued the hold meant Cervantes-Aguilar could not go free if he bonded out of jail or charges where dismissed. Therefore, it constituted a second reason the defendant was being held.
Judge Richard Walker said in his decision the court was in new waters as the Montes-Mata, which was being appealed to the Kansas Supreme Court, and a similar case in Ohio, Ohio v. Sanchez, were the only cases that addressed the issue of immigration holds and speedy trials.
Walker noted in the Ohio case, the court said immigration often argues in habeas corpus cases a hold does not mean the agency has the defendant in custody.
He said the hold was only a means to notify the agency of a pending release and not a charge against the defendant.
“In so many situations where there is a conflict of the law,” Walker said, “the state loses, and the defendant is given the benefit of the doubt.”
Walker said his decision also was based on a concern for judicial economy. If the Kansas Supreme Court supports the Montes-Mata appellate decision, then the victim in the case would have been put through a trial for nothing.
Although the case against Cervantes-Aguilar was dismissed, he still faces charges and possible deportation because of his immigration status.
The case against a man charged with the rape of a girl who was younger than 10 was dismissed Monday in Harvey County District Court because of an appellate court ruling regarding speedy trials.
Margarito Cervantes-Aguilar, of Wichita and allegedly a citizen of Mexico and in the United States illegally, was charged with two counts of rape and three counts of aggravated indecent liberties with a child.An immigration detainer was placed on Cervantes-Aguilar with the Harvey County Detention Center.Until recently, courts and prosecutors assumed an immigration hold constituted a second reason for the defendant to be held. This would extend the deadline required by law for a speedy trial from 90 days to 180 days, Harvey County Attorney David Yoder said.However, a recent ruling by an appeals court in a Lyons County case Kansas v. Montes-Mata said an immigration hold could not be considered a second charge against the defendant, which extends the speedy trial time.Cervantes-Aguilar’s attorney, John Sullivan, argued the immigration detainer was only the expression of the intent of immigration to investigate or file charges in the future.Yoder argued the hold meant Cervantes-Aguilar could not go free if he bonded out of jail or charges where dismissed. Therefore, it constituted a second reason the defendant was being held.Judge Richard Walker said in his decision the court was in new waters as the Montes-Mata, which was being appealed to the Kansas Supreme Court, and a similar case in Ohio, Ohio v. Sanchez, were the only cases that addressed the issue of immigration holds and speedy trials.Walker noted in the Ohio case, the court said immigration often argues in habeas corpus cases a hold does not mean the agency has the defendant in custody.He said the hold was only a means to notify the agency of a pending release and not a charge against the defendant.“In so many situations where there is a conflict of the law,” Walker said, “the state loses, and the defendant is given the benefit of the doubt.”Walker said his decision also was based on a concern for judicial economy. If the Kansas Supreme Court supports the Montes-Mata appellate decision, then the victim in the case would have been put through a trial for nothing.Although the case against Cervantes-Aguilar was dismissed, he still faces charges and possible deportation because of his immigration status.James Gutierrez, an immigration agent who testified at the hearing, said his investigation indicated Cervantes-Aguilar already had been deported twice from the United States and served probation for illegal re-entry to the United States.Yoder said he had discussed the possibility of the case being dismissed with Gutierrez before the hearing, and immigration officials indicated they would take Gutierrez into custody on immigration charges.If convicted of illegal re-entry into the United States, Cervantes-Aguilar could face five to 10 years in a federal prison.Yoder also expressed his desire to appeal Walker’s decision pending the decision of the Kansas Supreme Court on the Montes-Mata case.“This is very new, very unsettled law,” Yoder said. “I will pursue an appeal. I will not let this case go. I will not let this case go until they make me.”
