Tuesday, July 22, 2014

Holdings: State v. Martinez: New Mexico Court of Appeals (Unpublished)

The New Mexico Court of Appeals analyzed several issues in State v. Martinez, a recently unpublished opinion released by the Court.  One issue was sufficiency of the evidence, while two other challenges went to the defendant's sentencing.

The Court ultimately upholds the defendant's convictions.

Holdings Regarding the Issue of Standard of Review for Sufficiency of Evidence Claims

"In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict."  State v. Cunningham, 2000-NMSC-009, p.26, 128 N.M. 711, 998 P.2d 1176.

The question is whether the trial court's "decision is supported by substantial evidence, not whether the trial court could have reached a different conclusion."  In re Ernesto M., Jr., 1996-NMCA-039, p.15, 121 N.M. 562, 915 P.2d 318.

"The reviewing court does not weigh the evidence or substitute its judgment for that of the fact finder as long as there is sufficient evidence to support the verdict."  State v. Mora, 1997-NMSC-060, p.27, 124 N.M. 346, 950 P.2d 789.

Holdings Regarding the Issue of Sufficiency of the Evidence to Support a Battery on a Peace Officer Conviction

Battery on a peace officer is defined as "the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent[,] or angry manner."  Section 30-22-24(A) (1971); UJI 14-2211 NMRA (jury instruction regarding battery on a household member).

The New Mexico Supreme Court has held that a conviction under Section 30-22-24 requires proof of injury or conduct that threatens an officer's safety or meaningfully challenges his or her authority.  State v. Padilla, 1997-NMSC-022, p. 11, 123 N.M. 216, 937 P.2d 492.

Spitting on a peace officer can constitute a threat to an officer's safety or a meaningful challenge to his authority depending on the context in which it occurred.  State v. Jones, 2000-NMCA-047, pp. 15, 18, 129 N.M. 165, 3 P.3d 142; see also State v. Martinez, 2002-NMCA-036, p.38, 131 N.M. 746, 42 P.3d 851.

The New Mexico Court of Appeals has held that there was a sufficient evidence from which the jury could find that the defendant's act of spitting presented a meaningful challenge to the officer's authority where the incident began with the defendant attempting to reject the officer's authority by pulling away from him while the officer led him to his cell and, after spitting, he continued to resist the officers trying to restrain him and kicked another officer.  State v. Martinez, 2002-NMCA-036, p.40, 131 N.M. 746, 42 P.3d 851.

Holdings Regarding the Issue of Double Jeopardy "Unit of Prosecution" Analysis

A "unit of prosecution" category of double jeopardy prohibits charging a defendant with multiple violations of a single statute based on a single course of conduct.  State v. DeGraff, 2006-NMSC-011, p.25, 139 N.M. 211, 131 P.3d 61.

An appellate court employs a two-step analysis in unit of prosecution cases.  State v. Boergadine, 2005-NMCA-028, p. 15, 137 N.M. 92, 107 P.3d 532.

The first step of a "unit of prosecution" analysis is whether the statute clearly defines the unit of prosecution.  State v. Soto, 2001-NMCA-098, p. 13, 131 N.M. 299, 35 P.3d 304.

"If a statute's unit of prosecution is clearly defined, we must look no further than the face of the statute."
State v. Boergadine, 2005-NMCA-028, p. 15, 137 N.M. 92, 107 P.3d 532.

NMSA 1978, Section 30-22-22 (1971) reflects a legislative intent to make each victim the subject of a separate charge,  Assault, including aggravated assault, is an offense committed against the person of another.  The interest protected by the assault statute is the mental harm to the victim caused by the threat of violence.  State v. Roper, 2001-NMCA-093, p.12, 131 N.M. 189, 34 P.3d 133 (stating that it is permissible to convict or sentence a defendant for two counts of assault for pointing a gun at two persons at the same time because the legislative focus of the assault statutes is the protection of victims from the mental harm); see also NMSA 1978, Section 30-3-1(B) (1963) (stating that assault consists of "any unlawful act, threat[,] or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery").

Holdings Regarding the Issue of Standard of Review of Cruel and Unusual Punishment Claims

"Whether a particular sentence amounts to cruel and unusual punishment raises a constitutional question of law that we review de novo on appeal."  State v. Ira, 2002-NMCA-037, p. 17, 132 N.M. 8, 43 P.3d 359.

Holdings Regarding the Issue of Cruel and Unusual Punishment 

"In general, a lawful sentence does not constitute cruel and unusual punishment."  State v. Wacey C., 2004-NMCA-029, p. 9, 135 N.M. 186, 86 P.3d 611.

The test for cruel and unusual punishment is "[w]hether in view of contemporary standards of elemental decency, the punishment is of such disproportionate character to the offense as to shock the general conscience and violate principles of fundamental fairness."  In re Ernesto M. Jr, 1996-NMCA-039, p.22,  121 N.M. 562, 915 P.2d 318 (internal quotation marks and citation omitted).

"When the length of a sentence is disproportionate to the crime that is charged, it may constitute cruel and unusual punishment."  State v. Castillo, 2011-NMCA-046, p. 31, 149 N.M. 536, 252 P.3d 760.

In the absence of a compelling reason to do so, courts will not impose their own view in place of the Legislature's regarding the appropriate punishment for crimes.  State v. Rueda, 199-NMCA-033, p.6, 126 N.M. 738, 975 P.2d 351.

Read the entire case here:
http://www.nmcompcomm.us/nmcases/NMCAUnreported/2014/CA33242.pdf

Book Recommendation: Complications By Atul Gawande

To those who simply pick it up and scan the cover, Atul Gawande's Complications may seem like a medical text.  And, you couldn't blame those who would be fooled when taking the book's full title into account: Complications: A Surgeon's Notes On An Imperfect Science.  

However, Gawande only uses the medical field as a launchpad for a variety of life lessons.  A reader of the book doesn't need any specific medical knowledge to enjoy the stories contained in Complications. Stories that gravitate around one theme: how the complicated can be simplified with better understanding of the intricacies of a system.

Any system.

It's a book about misdiagnosis, burnout, cognitive learning, reflexive learning, mistakes, and redemption.

In the end, this is quite simply a philosophy book.  Think Malcolm Gladwell's Blink or The Tipping Point.  But where Gladwell comes to the subject (philosophy) using a variety of professional fields, Gawande attacks the subject from one specific endeavor: Medicine.

Great book.

Monday, July 21, 2014

Volekh's Site Article On Death Row Appeal Case

Strange article by Eugene Volekh over at the Washington Post regarding a questionable last-minute appeal made by an Arizona man to stop his execution.

And......the Ninth Circuit, it looks like, has granted the temporary stay.

Certainly a Ninth Circuit case, where strange motions, orders, and opinions are abound.   The writing that comes from the Ninth is the most interesting and informative take on the law in the country.  But remember, from those writings cases such Crawford and Riley and Strickland have been given life.

Here's the article:
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/20/ninth-circuit-stops-arizona-execution-so-inmate-can-pursue-a-first-amendment-claim/

Sunday, July 20, 2014

U.S. Supreme Court Hearings on Cell Phone Searches

Great arguments in two Unites States Supreme Court cases regarding cell phone searches.

Fantastic information on encryption, searches incident to arrest, and exigent circumstances.

Here's the oral argument in U.S. v. Wurie:
http://www.c-span.org/video/?319199-1/us-v-wurie-oral-argument

And, the argument in Riley v. California:
http://www.c-span.org/video/?319123-1/riley-v-california-oral-argument

Although the cases have been decided, the oral arguments offer a wealth of information on both sides of the aisle to support, or argue against, searches of technological devices in the future.

Chief Judge Alex Kozinski of the Ninth Circuit has written some of the best opinions in this area, and the written decisions by the U.S. Supreme Court, to include Riley and Wurie, have echoed Judge Kozinski's concerns.

Saturday, July 19, 2014

Holdings: State v. Nahle, New Mexico Court of Appeals (Unpublished)

A case dealing with how forgery is defined in New Mexico, State v. Nahle was one of the recent unpublished cases released in June by the New Mexico Court of Appeals.

Ultimately, the Court reverses the defendant's forgery conviction, while affirming his other convictions for possession of drug paraphernalia and concealing identity.

Holdings Regarding the Issue of Standard of Review for Statutory Interpretation

A question of statutory interpretation is reviewed de novo.  State v. Wasson, 1998-NMCA-087, 125 N.M. 656, 964 P.2d 820.

Holdings Regarding the Issue of Controlling Precedent

"[C]ases are not authority for propositions not considered."  Padilla v. State Farm Mut. Auto Ins. Co., 2002-NMCA-001, p. 10, 131 N.M. 419, 38 P.3d 187 (internal quotation marks and citation omitted)).

Holdings Regarding the Issue of Standard of Review for Sufficiency of Evidence Claims

When reviewing a challenge to the sufficiency of the evidence to support a conviction, an appellate court must determine "whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction."  State v. Sutphin, 1988-NMSC-031, p. 21, 107 N.M. 126, 753 P.2d 1314.

An appellate courts views the evidence "in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict."  State v. Sutphin, 1988-NMSC-031, p. 21, 107 N.M. 126, 753 P.2d 1314.

An appellate courts will not weigh the evidence or substitute their judgment for that of the fact finder so long as there is sufficient evidence to support the verdict.  State v. Sutphin, 1988-NMSC-031, p. 21, 107 N.M. 126, 753 P.2d 1314.

Holdings Regarding the Issue of Forgery

Forgery is defined, in relevant part, as "falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud."  NMSA 1978, Section 30-16-10(A)(1) (2006).

The Court of Appeals has held that where the defendant's actions do not purport to be those of another, the defendant had not committed forgery.  State v. Cook, 1979-NMCA-070, p. 9, 93 N.M. 91, 596 P.2d 860.

The New Mexico Court of Appeals has aligned itself with cases concluding that "the signing of a fictitious name is not forgery if the signer does not intend that the signature be taken as the genuine signature of the person owning the assumed name." State v. Cook, 1979-NMCA-070, p. 7, 93 N.M. 91, 596 P.2d 860.

As recognized in State v. Sandoval, the New Mexico Court of Appeal's holding in Cook indicates that New Mexico applies a narrow definition of forgery.  State v. Sandoval, 2007-NMCA-103, p. 23, 142 N.M. 412, 166 P.3d 473.

Under a the narrow definition, "it must appear that the false signature is the act of someone other than the person actually making it[,]" as opposed to the broad definition, which criminalizes the signing of a false name with the requisite intent.  State v. Sandoval, 2007-NMCA-103, p. 22, 142 N.M. 412, 166 P.3d 473 (internal quotation marks and citation omitted).

Although a plain meaning reading of the forgery statute would support a broad definition of New Mexico's forgery statute, the New Mexico Court of Appeals has rejected this approach. State v. Sandoval, 2007-NMCA-103, p. 22, 142 N.M. 412, 166 P.3d 473 (acknowledging that the New Mexico Court of Appeals has affirmed a defendant's conviction forgery conviction where the defendant signed traffic citations with his brother's name, See State v. Wasson, 1998-NMCA-087, 125 N.M. 656, 964 P.2d 820, but also acknowledging that the issue of whether the forgery statute should be interpreted broadly or narrowly was not addressed by the in Wasson).

Holdings Regarding the Issue of Possession of Drug Paraphernalia

Possession of drug paraphernalia may be actual or constructive.  State v. Brietag, 1989-NMCA-019, p.10, 108 N.M. 368, 772 P.2d 898.

Constructive possession is established where it is shown that the defendant has knowledge of the drug paraphernalia and that he or she exercises control over it.  State v. Brietag, 1989-NMCA-019, p.11, 108 N.M. 368, 772 P.2d 898.

"Proximity alone does not constitute possession. . . . The New Mexico Court of Appeals must be able to articulate a reasonable analysis that the fact-finder might have used to determine knowledge and control."  State v. Garcia, 2005-NMSC-017, p.13, 138 N.M. 1, 116 P.3d 72 (alterations, internal quotation marks, and citation omitted).

"Knowledge" is generally circumstantial in nature and inferred from circumstances.  State v. Montoya, 1966-NMSC-224, p. 10, 77 N.M. 129, 419 P.2d 970.

Where a defendant was the driver of a vehicle, contraband found on the driver's side under the floor mat "[gave] rise to a certain influence of knowledge."  State v. Morales, 2002-NMCA-052, p.32, 132 N.M. 146, 45 P.3d 406, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

"When the accused does not have exclusive control over the premises where the drugs are found, the mere presence of the contraband is not enough to support an inference of constructive possession.  Additional circumstances or incriminating statements are required."  State v. Phillips, 2000-NMCA-028, p.8, 128 N.M. 777, 999 P.2d 421 (citation omitted).

Although a driver's status as the registered owner of the vehicle has been relied on to show his or her exclusive control over the vehicle, the New Mexico Court of Appeals has never held as a matter of law that the ownership of the vehicle is required to prove control.  State v. Lopez, 2009-NMCA-127, p.35, 147 N.M. 364, 223 P.3d 361 ("[T]he only evidence presented suggested exclusivity:  [the d]efendant was the registered owner of the vehicle as well as the only occupant."); State v. Morales, 2002-NMCA-052, pp. 27, 32, 132 N.M. 146, 45 P.3d 406, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110 (stating that the defendant was in control of the vehicle despite not being the registered owner).

The Nahle decision can be found here:
http://www.nmcompcomm.us/nmcases/NMCAUnreported/2014/CA31759.pdf

Holdings: State v. Cobarrubio, New Mexico Court of Appeals (Unpublished)

One of the unpublished opinions released by the New Mexico Court of Appeals in June was State v. Cobarrubio, in which the Court overturned a district court's denial of a motion to suppress.  The case deals with the seizure of a passenger in a vehicle.  However, the main thrust of the case deals with subsidiary matters that are often referred to quickly in appellate decisions but not analyzed fully.  Thankfully the Court in Cobarrubio offers a few more citations on those issues.

The defendant's convictions were overturned.

Holdings Regarding the Law of Search and Seizure In Regards to Traffic Stops

"A traffic stop is not a consensual encounter, but is instead a seizure of the vehicle and its occupants."  State v. Portillo, 2011-NMCA-079, p.12, 150 N.M. 187, 258 P.3d 466.

In order to expand the interaction between the officer and driver to the officer and a passenger in a vehicle, an officer must have "reasonable suspicion that the passenger is involved in criminal activity" or the passenger is "implicated in the investigation related to the initial stop."  State v. Affsprung, 2004-NMCA-038, pp.16-19, 135 N.M. 306, 87 P.3d 1088; State v. Rubio, 2006-NMCA-067, p.16, 139 N.M. 612, 136 P.3d 1022.

The New Mexico Court of Appeals "has previously held that once a defendant has established that the state stopped his vehicle and conducted a warrantless search and seizure, the state has the burden of coming forward with evidence to show that there was a valid basis for the stop and that the search and seizure came within the ambit of a recognized exception to the search warrant requirements imposed by the Fourth Amendment."  State v. Porras-Fuerte, 1994-NMCA-114, p. 36, 119 N.M. 180, 889 P.2d 215.

Holdings Regarding the Issue of An Appellate Court Affirming a Lower Court's Decision Based on Arguments Not Raised In The Lower Court or During Initial Briefing

"Although we may affirm a trial court's ruling on a ground not relied upon by the court or argued by the parties, we will not do so if reliance on the new ground would be unfair to the appellant[.]"  State v. Barragan, 2001-NMCA-086, p. 17, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

"In particular, it would be unfair to an appellant to affirm on a fact-dependant ground not raised below."
State v. Barragan, 2001-NMCA-086, p. 17, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110 (internal quotation marks and citation omitted).

Holdings Regarding the Issue of Summary Calendar Dispositions

When the facts that the appellate court has to review are not in dispute, a case may be appropriately be decided on the summary calendar.  Taylor v. Van Winkle's IGA Farmer's Market, 1996-NMCA-111, 122 N.M. 486, 927 P.2d 41.

Holdings Regarding Burden of Persuasion in Motions of Opposition'

The opposing party to a summary disposition must come forward and specifically point out errors in fact and in law.  State v. Sisneros, 1982-NMSC-068, p. 7, 98 N.M. 201, 647 P.2d 403.

Holdings Regarding the Issue of Arguments of Counsel Not Being Evidence

Where a party has a burden, the record and evidence must be sufficient to carry such a burden, and arguments of counsel are insufficient to satisfy the party's burden.  State v. Wacey C., 2004-NMCA-029, p. 13, 135 N.M. 186, 86 P.3d 611 ("Arguments of counsel are not evidence and cannot be used to prove a fact.").

Holdings Regarding the Issue of the Inevitable Discovery Doctrine

The inevitable discovery doctrine applies where evidence that was obtained through unlawful police conduct inevitably would have been otherwise discovered through a different and independent lawful means.  State v. Saiz, 2008-NMSC-048, p.20, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v. Belanger, 2009-NMSC-025, p. 36 & n.1, 146 N.M. 357, 210 P.3d 783.

In Barragan, we refused to uphold the trial court's ruling on the basis of inevitable discovery, [b]ecause application of the inevitable discovery doctrine requires a trial court to make factual determinations[.]" State v. Barragan, 2001-NMCA-086, p. 17, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

In Barragan, the New Mexico Court of Appeals noted that in order for a trial court to make a ruling in favor of the State, "the court would be required to make at least three factual findings:  (1) whether, without the illegally seized evidence, the officers had probable cause to arrest [the d]efendant; (2) whether the officers would in fact have made the arrest under such circumstances, and (3) whether an inventory that would have revealed the items was standard procedure."  State v. Barragan, 2001-NMCA-086, p. 17, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Where a proper record is not made in the power court to support the inevitable discovery doctrine, a reviewing court will not consider that doctrine as an alternative ground for upholding a trial court's decision, as well as the right for any reason doctrine.  State v. Barragan, 2001-NMCA-086, p. 17, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Read the full opinion here:  http://www.nmcompcomm.us/nmcases/NMCAUnreported/2014/CA33034.pdf

Friday, July 18, 2014

Holdings: State v. Cannon (New Mexico Court of Appeals)

State v. Cannon is a recent case issued by the New Mexico Court of Appeals dealing with a defendant's right to a jury trial when the defendant is charged with a DWI First Offense.

Defendant was convicted for the crime of DWI, First Offense, following a bench trial in district court.

The Court of Appeals held that a defendant is not entitled to a jury trial for a DWI, first offense, because that particular crime is not a serious offense as contemplated by the Sixth Amendment of the United States Constitution.

Although the question answered above is the most important portion of the decision for practicing attorneys, the case's central focus is whether ineffective assistance of counsel is presumed where there is an untimely appeal from a de novo trial in district court following a conviction in magistrate court.

Holdings Regarding the Lack of Authority for Counsel's Arguments

Where a party cites no authority to support an argument, a court may assume no such authority exists.  In re Adoption of Doe, 1984-NMSC-024, p.2, 100 N.M. 764, 676 P.2d 1329.

Holdings Regarding the Definition of a De Novo Trial

A de novo trial is one "in which the whole case is gone into as if no trial whatever had been had in the court below."  Miera v. Waltemeyer, 1982-NMCA-007, p. 18, 97 N.M. 588, 642 P.2d 191 (internal quotation marks and citation omitted).

Holdings Regarding the Issue of Ineffective Assistance of Counsel for Untimely Filed Appeals

In Duran, the New Mexico Court of Appeals created a conclusive presumption of ineffective assistance of counsel where counsel filed an untimely appeal following a defendant's conviction in district court.  State v. Duran, 1986-NMCA-125, pp 4-6, 105 N.M. 231, 731 P.2d 374.

This conclusive presumption of ineffective assistance of counsel is based, in part, on the New Mexico Court of Appeals' understanding that "[c]riminal defendants convicted at trial generally file a notice of appeal."  State v. Peppers, 1990-NMCA-057, p.20 110 N.M. 393, 796 P.2d 614.

The New Mexico Court of Appeals has reasoned that, because in an appeal from a criminal conviction counsel must "timely file either a notice of appeal or an affidavit of waiver of appeal[,]" Duran, 1986-NMCA-125, p.3 (citing NMSA 1978, Crim. P. Rule 54(b) (Repl. 1985), now Rule 5-702(B) NMRA), "the absence of a notice of appeal and an affidavit of waiver strongly suggests the failure of trial counsel to consult adequately with the client concerning the right to appeal." State v. Peppers, 1990-NMCA-057, p.20, 110 N.M. 393, 796 P.2d 614 (discussing Duran).

Since Duran, the New Mexico Court of Appeals has extended the conclusive presumption of ineffective assistance of counsel to de novo appeals from magistrate court to district court, State v. Eger, 2007-NMCA-039, p.2, 141 N.M. 379, 155 P.3d 784: to appeals from an order revoking probation, State v. Leon, 2013-NMCA-011, 292 P.3d 493, cert. quashed 2013-NMCERT-010, 313 P.3d 251; and to appeals from determinations of abuse and neglect termination of a rental rights; State ex. rel. Children, Youth, and Families Department v. Amanda M., 2006_NMCA-133, p.22, 140 N.M. 578, 144 P.3d 137 (abuse and neglect); State ex del. Children, Youth, and Families Department v. Ruth Anne E., 1999_NMCA-035, p.10, 126 N.M. 670, 974 P.2d 164 (termination proceedings).

In Vigil, this Court extended the Duran presumption to untimely appeals to the New Mexico Court of Appeals following a district court's on-record review of metropolitan court decision.  State v. Vigil, 2014-NMCA-_______, ______ P.3d _______ (No. 32, 166, Mar. 12, 2014).

In Flores-Ortega, the United States Supreme Court concluded that a bright-line rule for determining ineffective assistance of counsel for failure to file a timely notice of appeal was improper given that Strickland v. Washington, 466 U.S. 668 (1984), requires that a court look at the specific circumstances surrounding counsel's actions.  Roe v. Flores-Ortega, 528 U.S. 470 (2000).

While Duran was based, in part, on federal case law discussing a defendant's right to counsel and right to appeal, Duran was also premised on New Mexico's rules of criminal procedure.  See 1986-NMCA-125, p. 3 (stating that "[t]his [C]ourt is mindful of the holding of the United States Supreme Court in Evitts v. Lucey, [469 U.S. 387 (1985)], to the effect that criminal defendants are not to be deprived of an appeal as of right where a procedural defect results from ineffective assistance of counsel on appeal"); Duran, 1986-NMCA-125, p.4 (discussing how an attorney who fails to either file a notice of appeal or affidavit of waiver of appeal as required by the rules of criminal procedure "can be said to have neglected his duty and a conclusive presumption of ineffective assistance arises").  State v. Duran, 1986-NMCA-125, p. 4, 105 N.M. 231, 731 P.2d 374.

The New Mexico Rules of Criminal Procedure places a greater obligation on counsel than the Federal Constitution.  State v. Cannon, New Mexico Court of Appeals, No. 32, 127, March 13, 2014.

"[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal); or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.  Roe v. Flores-Ortega, 528 U.S.  470, 480 (2000).

The United States Supreme Court marked the difference between this constitutionally imposed obligation and the bright-line rule utilized by the First and Ninth Federal Judicial Districts by stating that the bright-line rule "effectively imposes an obligation on counsel in all cases either (1) to file a notice of appeal, or (2) to discuss the possibility of an appeal with the defendant, ascertain his wishes, and act accordingly." Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)(characterizing the First and Ninth Circuit Courts as having imposed a bright-line rule requiring that "[c]ounsel...file a notice of appeal unless the defendant specifically instructs otherwise; failing to do so is per se deficient").

The United States Supreme Court has noted that, "while [s]tates are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented," [w]e cannot say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient."  Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).

NMRA 5-702(B) requires counsel for either filing a notice of appeal or obtaining an affidavit of waiver of appeal from a defendant.

The New Mexico Supreme Court has imposed a duty on counsel an obligation to consult with a criminal defendant regarding the defendant's right to appeal.  See Rule 5-702(B); see also State v. Duran, 1986-NMCA-125, p. 4, 105 N.M. 231, 731 P.2d 374 (noting that counsel may file "his own affidavit in the district court stating that he has advised his client of his right to appeal and that the client has neither authorized an appeal nor signed an affidavit of waiver" in order to comply with the requirements of the rule and not be deemed ineffective).

Ultimately, Rule 5-702(B) itself creates a requirement similar to the obligation imposed by a bright-line rule that the United States Supreme Court determined was not constitutionally required in Flores-Ortega.  Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).

The application of a conclusive presumption of ineffective assistance of counsel where counsel fails to file a timely notice of appeal provides the greatest protection of a criminal defendant's right to appeal with the least judicial burden.  State v. Duran, 1986-NMCA-125, pp. 5-6, 105 N.M. 231, 731 P.2d 374.

Holdings Regarding the Issue of a Defendant's Right to a Jury Trial

In Duncan v. Louisiana, 391 U.S. 145 (1968), the United States Supreme Court "dr[e]w a line separating petty offenses from serious crimes, [and] held that certain petty offenses are not subject to the [S]ixth [A]mendment jury trial provision and should not be subject to the [F]ourteenth [A]mendment jury trial requirement applied to the states."  State v. Sanchez, 1990-NMSC-012, 109 N.M. 428, 786 P.2d 42.

In distinguishing between a petty offense and serious crime, the United States Supreme Court relied on the objective criteria of maximum authorized penalty, "finding it to be the most relevant and reflective of the seriousness with which society regards an offense."  State v. Sanchez, 1990-NMSC-012, p. 7, 109 N.M. 428, 786 P.2d 42, citing to Duncan.

The United States Supreme Court held that "a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of 'petty' so as to permit a defendant to demand a trial by jury."  State v. Duran, 1986-NMCA-125, p. 7, 105 N.M. 231, 731 P.2d 374 (quoting Baldwin v. New York, 399 U.S. 66, 69, n.6 (1970) (plurality opinion) (internal quotation marks and citation omitted)).

The United States Supreme Court has noted that in determining the severity of a penalty for purposes of assessing a defendant's right to a jury, "the word 'penalty[]...do[es] not refer solely to the maximum prison term authorized for a particular offense." Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989).

"A legislature's view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense" rather than just the maximum length of incarceration or the classification of said offense, i.e. petty or otherwise. Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989).

The United States Supreme Court instructed that it is "appropriate to presume for purposes of the Sixth Amendment that society views [an offense carrying a maximum prison term of six months or less] as "petty.""  Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989).

Where the maximum period of incarceration is less than six months, "[a] defendant is entitled to a jury trial...only if he can demonstrate that any additional statutory penalties,viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a "serious" one.  Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989).

The New Mexico Supreme Court has acknowledged that '[t]he crime for of DWI as defined by our Legislature is not a 'minor crime' as contemplated by the misdemeanor arrest rule" and held that "the crime of DWI should be treated as a felony for purposes of warrantless arrests."  City of Santa Fe v. Martinez, 2010-NMSC-033, p.13, 148 N.M. 708, 242 P.3d 275.

The New Mexico Supreme Court has provided that [a]lthough a DWI offender who has had less than three convictions would only be guilty of a misdemeanor, such a classification makes no difference in the severity of the offense's consequences, nor does it dilute the public's concern; a first DWI or subsequent offense can have the same deadly results as a fourth offense.  City of Santa Fe v. Martinez, 2010-NMSC-033, p.14, 148 N.M. 708, 242 P.3d 275.

"New Mexico has a serious problem with drunk drivers, with one of the highest rates in the nation of DWI-related fatalities.  Our citizens are obviously concerned by this dangerous situation, and through their elected representatives have established a system providing punishment for drunk drivers along with remedial measures for the protection of the population."  Sate ex rel. Schwartz v. Kennedy, 1995-NMSC-069, p. 9, 120 N.M. 619, 904 P.2d 1044.

"In New Mexico, the elimination of driving while intoxicated and its related offenses is a matter of grave concern to society in general, and to our courts and Legislature in particular."  State v. Contreras, 2003-NMCA-129, p.14, 134 N.M. 503, 79 P.3d 1111 (internal quotation marks and citation omitted).

In Blanton, the United States Supreme Court analyzed a Nevada DWI statute where the legislature in that state had imposed the following penalties on a DWI first offense: (1) 'a minimum term of two days' imprisonment and a maximum terms of six months imprisonment' or, alternatively, "[forty-eight] hours of work for the community while dressed in distinctive garb which identifies him as [a [DWI] offender]"; (2) "a fine ranging from $200 to $1,000"; (3) revocation of the defendant's driver's license, and (4) attendance of "an alcohol abuse education course" at the defendant's expense.  However, despite the combination of a maximum six months' imprisonment and the additional penalties listed above, the United States Supreme Court determined that the Nevada legislature had not clearly indicated that DWI was a serious offense. Blanton v. City of N. Las Vegas, 489 U.S. 538, 544 (1989).

In determining whether a crime is a "serious offense" in order for a defendant's jury trial rights to attach, the "primary emphasis....must be placed on the maximum authorized period of incarceration."
Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989).

Holdings Regarding the Issue of Appeals from Magistrate Court

An appeal from magistrate court to district court must be in the form of a trial de novo.  See Rules 6-703(A); 5-826(J) NMRA.