State v. D Dixon

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 29,240 5 DALE RAY DIXON, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 8 James W. Counts, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellant

12 Hugh W. Dangler, Chief Public Defender 13 Allison H. Jaramillo, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellee

16 MEMORANDUM OPINION 17 KENNEDY, Judge. 18 Defendant seeks to appeal the district court’s judgment and sentence, entered 19 pursuant to a plea of no contest, convicting him for escape from jail, battery upon a 20 police officer, two counts of resisting, evading or obstructing an officer, escape from 21 the custody of a peace officer, and criminal damage to property, and enhancing

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1 Defendant’s sentence with prior felony convictions, for a total sentence of twenty 2 years, six months, less one day imprisonment. We issued a notice of proposed 3 summary disposition, proposing to summarily dismiss for filing the notice of appeal 4 in the improper tribunal from convictions based on an unconditional plea of no 5 contest, and alternatively proposing to affirm for the failure to reserve the issue in the 6 plea agreement. Defendant has responded to our notice with a memorandum in 7 opposition. We have considered Defendant’s arguments, and we are not persuaded 8 to extend the presumption of the ineffective assistance of counsel to Defendant’s 9 failure to file a notice of appeal in the proper tribunal. We dismiss. 10 To properly invoke this Court’s jurisdiction, a party must comply with the 11 appellate rules governing the time and place in which to file the notice of appeal. See 12 Govich v. North Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991); see also 13 Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 14 (establishing that the timely filing of a notice of appeal is a mandatory precondition 15 to our exercise of jurisdiction to hear an appeal). The Supreme Court has established 16 that our jurisdiction is not properly exercised where the appellant did not properly file 17 a notice of appeal with the clerk of the district court within thirty days of the final 18 order as provided by Rules 12-202(A) NMRA & 12-201(A)(2) NMRA. See Lowe v. 19 Bloom, 110 N.M. 555, 555, 798 P.2d 156, 156 (1990).

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1 In the present case, Defendant seeks to appeal the district court’s judgment and 2 sentence, which was entered on December 19, 2008, pursuant to a plea of no contest. 3 [RP 45-49, 95-98] Defendant filed a notice of appeal in this Court on Tuesday, 4 January 20, 2009, the day after the Martin Luther King, Jr., holiday. [Ct. App. file] 5 There is no indication that Defendant has filed a notice of appeal in district court, 6 contrary to his obligation under Rule 12-202(A) (“An appeal permitted by law as of 7 right from the district court shall be taken by filing a notice of appeal with the district 8 court clerk within the time allowed by Rule 12-201 NMRA.”). 9 We routinely excuse the untimely and improper filing of a notice of appeal in 10 criminal appeals we receive from represented criminal defendants, by presuming the 11 ineffective assistance of counsel. See State v. Duran, 105 N.M. 231, 232, 731 P.2d 12 374, 375 (Ct. App. 1986); see also State v. Upchurch, 2006-NMCA-076, ¶ 4, 139 13 N.M. 739, 137 P.3d 679 (“We do . . . routinely excuse untimely appeals of represented 14 criminal defendants and parents whose parental rights have been terminated, 15 presuming the ineffective assistance of counsel.”). We do not, however, extend the 16 Duran presumption to appeals from guilty or no contest pleas. See State v. Peppers, 17 110 N.M. 393, 399, 796 P.2d 614, 620 (Ct. App. 1990). We may overlook the 18 jurisdictional error under Peppers where unusual circumstances warrant it. See id. 19 In Peppers, we overlooked the untimely appeal from a no contest plea because it

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1 appeared that the defendant was without counsel during the critical time for asserting 2 his appellate rights from the judgment and the denial of his motion to withdraw the 3 plea. Id. We have also presumed the ineffective assistance of counsel where a 4 defendant entered into a conditional plea agreement, reserving the right to appeal his 5 DWI conviction in magistrate court, and filed an untimely appeal in district court. See 6 State v. Eger, 2007-NMCA-039, ¶ 5, 141 N.M. 379 , 155 P.3d 784. In Eger, we 7 reasoned that the defendant “clearly express[ed] his intent to appeal,” by reserving his 8 right to appeal in the conditional plea agreement, and that therefore the Duran 9 presumption applies. 10 In his response to our notice, Defendant argues that his case is more similar to 11 a reservation in the plea agreement of the right to appeal in Eger, because, in the 12 present case, the district court judge, Judge Counts, informed defense counsel that 13 Defendant could challenge his denial of the motion to recuse again, in the event the 14 State filed a supplemental criminal information to enhance Defendant’s sentence as 15 an habitual offender. [MIO 2-4] We are not persuaded that Eger’s express 16 reservation of the right to appeal is analogous to the circumstances of this case. 17 Even assuming Judge Counts expressed a willingness to recuse himself at the 18 habitual offender hearing, Defendant was aware of this fact the day before he entered 19 the plea agreement, when Judge Counts denied Defendant’s motion to recuse. [DS 2-

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1 3, RP 45-49] Defendant did not reserve the right to challenge the denial of the motion 2 to recuse. [RP 45-46] In fact, in the plea agreement, Defendant agreed specifically to 3 waive his defenses and his right to appeal the district court’s entry of judgment and 4 imposition of a sentence consistent with the agreement. [Id.] The plea agreement also 5 included Defendant’s admission of his identity as to several prior felony convictions 6 the district court could use to enhance his sentence at the habitual offender hearing. 7 [Id.] 8 Contrary to Defendant’s request for relief on appeal [MIO 4], we have never 9 held that a motion for free process and appointment of counsel and the filing of a 10 docketing statement are sufficient to indicate an agreement and understanding of the 11 parties, and the district court, that Defendant has reserved an issue for an appeal from 12 an unconditional plea agreement. See State v. Hodge, 118 N.M. 410, 416-17, 882 13 P.2d 1, 7-8 (1994) (outlining the requirements for entering a conditional plea 14 agreement so as to reserve an issue for appellate review). As a result, Defendant has 15 not clearly expressed his intent to appeal the district court’s refusal to recuse and 16 enhancement of his sentence based on the prior felony convictions, which could 17 justify extending the Duran presumption of the ineffective assistance of counsel in 18 perfecting Defendant’s appeal. In addition, there is no indication that Defendant has 19 ever sought to withdraw his plea for Judge Counts’s refusal to recuse. For these

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1 reasons, Defendant has not satisfied his burden to demonstrate why we should 2 overlook the jurisdictional defect and presume the ineffective assistance of counsel, 3 as we did in Peppers. 4 Without presuming the ineffective assistance of counsel, we treat Defendant’s 5 appeal as we would any other untimely and improper appeal, and note that only in 6 exceptional circumstances beyond the control of the parties will we entertain an 7 untimely appeal. See In re Estate of Newalla, 114 N.M. 290, 296, 837 P.2d 1373, 8 1379 (Ct. App. 1992) (stating that “[o]ne such exceptional circumstance might be 9 reasonable reliance on a precedent indicating that the order not timely appealed was 10 not a final, appealable order); see also Trujillo, 117 N.M. at 278, 871 P.2d at 374 11 (holding that exceptional circumstances are those beyond the control of the parties, 12 such as delay caused by judicial error). Ignorance of the procedural rules is not an 13 unusual circumstance. Without any indication that this case presents unusual or 14 exceptional circumstances that would justify deviation from our mandatory procedural 15 rules, such as trial error resulting in a lack of representation during the crucial time for 16 appealing, see Peppers, 110 N.M. at 399, 796 P.2d at 620, we hold that Defendant 17 failed to properly and timely file a notice of appeal in district court. For the reasons 18 stated above and in our notice, we dismiss. 19 IT IS SO ORDERED.

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1 ___________________________________ 2 RODERICK T. KENNEDY, Judge

3 WE CONCUR:

4 ___________________________ 5 MICHAEL E. VIGIL, Judge

6 ___________________________ 7 LINDA M. VANZI, Judge