State v. Edwards

• Court: New Mexico Court of Appeals
• Decided: March 7, 2017
• Docket: 35,778
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 35,778

5 JUAN R. EDWARDS,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Mary Marlowe Sommer, District Judge

9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Juan R. Edwards 14 Santa Fe, NM

15 Pro se Appellant

16 MEMORANDUM OPINION

17 GARCIA, Judge.

18 {1} Self-represented Defendant Juan R. Edwards appeals from his convictions of 1 aggravated driving while under the influence of intoxicating liquor or drugs (DWI),

2 contrary to NMSA 1978, Section 66-8-102 (2010), and speeding, contrary to NMSA

3 1978, Section 66-7-301 (2015). In this Court’s second notice of proposed disposition,

4 we proposed to summarily affirm. Defendant filed a memorandum in opposition

5 (MIO), which we have duly considered. Remaining unpersuaded, we affirm

6 Defendant’s convictions.

7 {2} In his MIO, Defendant continues to argue that the district court erred in denying

8 him a jury trial because he has a constitutional right to one and because he had a

9 legitimate expectation of a jury trial, thus resulting in structural error and/or

10 cumulative error. However, Defendant fails to point out how this Court’s analysis in

11 its second calendar notice was incorrect in fact or law. [See CN 2–3 (explaining that

12 there is no constitutional right to a jury trial when the maximum period of

13 imprisonment a defendant faces is less than six months)] See Hennessy v. Duryea,

14 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“[The appellate] courts have

15 repeatedly held that, in summary calendar cases, the burden is on the party opposing

16 the proposed disposition to clearly point out errors in fact or law.”); State v.

17 Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that “[a]

18 party responding to a summary calendar notice must come forward and specifically

19 point out errors of law and fact[,]” and the repetition of earlier arguments does not

2 1 fulfill this requirement), superseded by statute on other grounds as stated in State v.

2 Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. Although pleadings from self-

3 represented litigants are viewed with tolerance, “a [self-represented] litigant, having

4 chosen to represent himself, is held to the same standard of conduct and compliance

5 with court rules, procedures, and orders as are members of the bar.” Newsome v.

6 Farer, 1985-NMSC-096, ¶ 18, 103 N.M. 415, 708 P.2d 327; Bruce v. Lester, 1999-

7 NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84 (indicating that self-represented litigants

8 must comply with the rules and orders of the court and will not be treated differently

9 than litigants with counsel).

10 {3} With regard to Defendant’s continued argument that the error was structural

11 error and/or cumulative error, we note that both types of error first require error and,

12 as we explained in our calendar notice, there was no error in the fact that there was no

13 jury trial in the present case. [See CN 2–3] Such non-error does not rise to the level

14 of structural error or cumulative error. See State v. Hobbs, 2016-NMCA-006, ¶ 11,

15 363 P.3d 1259 (noting that “[a] structural error is a defect affecting the framework

16 within which the trial proceeds, rather than simply an error in the trial process itself”

17 (internal quotation marks and citation omitted)); State v. Salas, 2010-NMSC-028,

18 ¶ 39, 148 N.M. 313, 236 P.3d 32 (“The doctrine of cumulative error applies when

19 multiple errors, which by themselves do not constitute reversible error, are so serious

3 1 in the aggregate that they cumulatively deprive the defendant of a fair trial. In New

2 Mexico the doctrine of cumulative error is strictly applied. It cannot be invoked when

3 the record as a whole demonstrates that the defendant received a fair trial.” (emphasis

4 added) (internal quotation marks and citations omitted)); see also Arizona v.

5 Fulminante, 499 U.S. 279, 310 (1991) (indicating that a structural error is a

6 “constitutional deprivation[ ] . . . affecting the framework within which the trial

7 proceeds, rather than simply an error in the trial process itself” (Emphasis added)).

8 {4} With regard to Defendant’s continued argument that he had a legitimate

9 expectation that he would have a jury trial and was thus entitled to one, we note that

10 we are aware of no authority that creates a right to a jury trial based solely on a

11 defendant’s purported legitimate expectation to one, and Defendant cites no such

12 authority. As such, we assume none exists. See State v. Casares, 2014-NMCA-024,

13 ¶ 18, 318 P.3d 200 (stating that “[w]e will not consider an issue if no authority is cited

14 in support of the issue, because absent cited authority to support an argument, we

15 assume no such authority exists”).

16 {5} With regard to Defendant’s argument that the State did not file a timely

17 memorandum in opposition to our first calendar notice, we briefly note that the record

18 does not reflect that this is the case. Our first calendar notice was filed December 6,

19 2016, and the State’s motion for an extension was filed on December 28, 2016, which

4 1 was within the twenty plus three days allowed for memoranda in response to notices

2 of proposed disposition to be filed. See Rule 12-210(D)(3) NMRA (providing twenty

3 days to respond to a notice of proposed disposition); Rule 12-308(B) NMRA

4 (providing an additional three days for deadlines when service is made by mail). The

5 extension was granted by this Court to January 5, 2017, and the State’s memorandum

6 in opposition was thereafter timely filed on January 5, 2017.

7 {6} Finally, we note that Defendant does not respond to our proposed disposition

8 with regard to the second issue raised by Defendant in his docketing statement. [See

9 CN 3–6] We therefore consider such issue abandoned. See State v. Johnson, 1988-

10 NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (explaining that, when a case is decided

11 on the summary calendar, an issue is deemed abandoned when a party fails to respond

12 to the proposed disposition of that issue).

13 {7} As Defendant has not shown error, see State v. Aragon, 1999-NMCA-060, ¶ 10,

14 127 N.M. 393, 981 P.2d 1211 (stating that the party claiming error bears the burden

15 of showing error), we affirm Defendant’s convictions.

16 {8} IT IS SO ORDERED.

17 ________________________________ 18 TIMOTHY L. GARCIA, Judge

19 WE CONCUR:

5 1 _______________________________ 2 JAMES J. WECHSLER, Judge

3 _______________________________ 4 J. MILES HANISEE, Judge