City of Artesia v. Hackett

• Court: New Mexico Court of Appeals
• Decided: September 16, 2009
• Docket: 29,592
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 CITY OF ARTESIA,

8 Plaintiff-Appellee,

9 v. NO. 29,592

10 LELAND W. HACKETT,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Thomas A. Rutledge, District Judge

14 McCormick, Caraway and Tabor, LLP 15 Susan M. Moore 16 Carlsbad, NM

17 for Appellee

18 Leland W. Hackett 19 Artesia, NM

20 Pro Se Appellant

21 MEMORANDUM OPINION

22 WECHSLER, Judge.

23 Defendant, filing pro se, appeals from the district court’s amended order 1 dismissing the motion to vacate and remanding to the municipal court for imposition

2 of the fine and costs it assessed. [RP 43] We issued a notice of proposed summary

3 disposition, proposing to affirm. Defendant has responded to our notice with a

4 memorandum in opposition. We have considered Defendant’s arguments and are not

5 persuaded that our proposed analysis is incorrect. We affirm.

6 On appeal, Defendant lists the following four arguments. First, Defendant

7 argues that the traffic citation failed to charge him with an offense, and, therefore,

8 deprived him of the opportunity to prepare a defense. [DS 2-3] Second, Defendant

9 argues that he does not fall within the scope of the traffic offense with which he was

10 charged. [DS 3] Third, Defendant argues that the judgment and sentence, fining him

11 $500, was in excess of the fine permitted by law. [Id.] Fourth, Defendant argues that

12 the district court failed to send the mandatory notice of dismissal that would have

13 alerted him to show cause why the appeal should not be dismissed. [Id.]

14 Our notice proposed to affirm on the grounds that none of Defendant’s issues

15 is properly before this Court because Defendant did not properly pursue any of the

16 mechanisms available for obtaining post-conviction relief. We offered examples of

17 the ways in which Defendant could have sought relief under the criminal rules and

18 failed to do so at every opportunity. [CN 3] We also noted that Defendant did not file

2 1 a timely appeal to this Court from the district court’s order dismissing his appeal. [Id.]

2 We noted that after the New Mexico Supreme Court denied his petition for a writ of

3 prohibition, Defendant’s subsequent attempt to seek relief under Rule 1-060(B)

4 NMRA was inappropriate. [Id.] We proposed to hold that this rule of civil procedure

5 does not provide Defendant with a remedy from the criminal judgment. [CN 4]

6 In response to our notice, Defendant argues that our Court has permitted relief

7 from criminal judgments argued to be void pursuant to Rule 1-060(B), after the

8 abolition of the writ of coram nobis. [MIO 1-2] Upon the adoption of the rules of

9 criminal procedure in 1972, any of the rules of civil procedure governing criminal

10 proceedings were repealed. See Compiler’s Annotations to Rule 5-101 NMRA. Since

11 the governance of the rules of criminal procedure over criminal proceedings, we have

12 refused to apply the rules of civil procedure to criminal matters, except to the extent

13 that the proceeding is arguably civil in nature and/or there is no criminal rule

14 governing the procedure at issue. See State v. Roybal, 2006-NMCA-043, ¶ 15, 139

15 N.M. 341, 132 P.3d 598. As our notice pointed out, there were several procedural

16 mechanisms available to Defendant under the criminal rules, see Rule 5-614 NMRA;

17 Rule 5-801 NMRA; Rule 7-709(B) NMRA, and the appellate rules of procedure, see

18 Rule 12-201(A)(2) NMRA; see also NMSA 1978, § 39-3-3(A)(1) (1972), to seek

3 1 relief from the fine imposed. Defendant does not persuade us that it is appropriate to

2 apply a civil rule to a procedure in a criminal proceeding that is clearly governed by

3 the criminal and appellate rules.

4 Our notice also proposed to refuse to construe Defendant’s Rule 1-060(B)

5 motion as a request for any sort of writ to address, at most, the amount of the fine

6 imposed, where the Supreme Court has already denied Defendant writ relief. See In

7 re Adoption of Baby Child, 102 N.M. 735, 737, 700 P.2d 198, 200 (Ct. App. 1985)

8 (noting that the New Mexico Supreme Court’s decision on a writ of prohibition was

9 an “implicit determination that the probation was illegal [that] became law of the case

10 and could not be reexamined by the Court of Appeals on appeal”). Defendant’s

11 response has not persuaded us to construe his Rule 1-060(B) motion as any other

12 appropriate means of seeking relief that this Court has the power to grant.

13 Lastly, we recognize that Defendant points out that an “aggrieved party” has the

14 absolute right to one appeal and that we may correct an unauthorized sentence at any

15 time. As with any claim, however, the appellant must bring his or her appeal and

16 challenge to the sentence appropriately. See State v. Upchurch, 2006-NMCA-076, ¶¶

17 3-4, 139 N.M. 739, 137 P.3d 679 (rejecting the state’s claim that it has an absolute

18 right to one appeal of a disposition contrary to law when the state failed to perfect its

4 1 appeal and noting that we will not excuse the state’s untimely appeal, as we

2 sometimes do for defendants, “because [the state] does not possess the constitutional

3 right of an accused to the effective assistance of counsel”). Unlike the supervisory

4 powers of the New Mexico Supreme Court over all inferior courts, in the absence of

5 procedural mechanisms that properly bring issues before this Court, we lack the power

6 to grant Defendant relief. See N.M. Const. art. VI, § 3.

7 For these reasons and those stated in our notice, we affirm the district court’s

8 order denying Defendant relief based on his motion filed under Rule 1-060(B). See

9 State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828 (holding that

10 the appellate court will affirm the district court’s decision if it is right for any reason,

11 so long as it is not unfair to the appellant).

12 IT IS SO ORDERED.

13 ________________________________ 14 JAMES J. WECHSLER, Judge

15 WE CONCUR:

16 _________________________________ 17 MICHAEL D. BUSTAMANTE, Judge

5 1 _________________________________ 2 TIMOTHY L. GARCIA, Judge