State v. Griego

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-37273 5 RICHARD S. GRIEGO, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 Louis P. McDonald, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Santa Fe, NM 14 L. Helen Bennett, P.C. 15 L. Helen Bennett 16 Albuquerque, NM

17 for Appellant 18 MEMORANDUM OPINION 19 VANZI, Judge.

1 {1} Defendant appeals the district court’s order revoking his probation. We issued 2 a notice of proposed summary disposition proposing to affirm, and Defendant has 3 responded with a timely memorandum in opposition, which we have duly considered. 4 We remain unpersuaded that our original proposed disposition was incorrect, and we 5 therefore affirm the district court. 6 DISCUSSION 7 {2} Defendant continues to argue that the district court erred in ruling that there was 8 no violation of Rule 5-805(H) NMRA when the State failed to timely hold the 9 adjudicatory hearing. [MIO 1-3] 10 {3} As previously described in our notice of proposed disposition, the procedural 11 history relevant to this issue is as follows. On May 5, 2017, the State filed a second 12 motion to revoke Defendant’s probation, alleging that Defendant violated his 13 probation by participating in an armed robbery and by failing to report this arrest to 14 his probation officer within forty-eight hours. [RP 162-164] On May 30, 2017, 15 Defendant was arraigned on these alleged probation violations, and was ordered held 16 without bond. [RP 187] However, the hearing on the motion to revoke probation was 17 not held until September 6, 2017. [RP 192] Defendant moved to dismiss on the basis 18 that the time to commence the hearing prescribed by Rule 5-805(H) had passed, and 19 the State had not sought an extension of time. [DS 2-3] See id. (“If the probationer is

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1 in custody and an adjudicatory hearing is not timely commenced as required by this 2 paragraph, upon its own motion or upon presentation of a release order without a 3 hearing required, the court shall order the probationer immediately released back to 4 probation supervision pending final adjudication. The adjudicatory hearing shall 5 commence no later than sixty (60) days after the initial hearing is conducted.”); Rule 6 5-805(K) (“Extensions of time for commencement of a hearing on a motion to revoke 7 probation may be granted in the court’s discretion upon the request of any party.”). 8 {4} We understand Defendant to continue to argue that Rule 5-805(H) required the 9 district court to dismiss the petition. We first note, however, that nothing in the text 10 of Rule 5-805(H) speaks to dismissal of a petition to revoke probation. Rather, this 11 section of the rule provides that, when the adjudicatory hearing is not timely 12 commenced and the probationer is in custody, “the court shall order the probationer 13 immediately released back to probation supervision pending final adjudication.” Id. 14 (emphasis added). Moreover, Rule 5-805(L) provides that “[i]n addition to any release 15 of the probationer that may be required by Paragraphs G or H of this rule, the court 16 may dismiss the motion to revoke probation for violating any of the time limits in this 17 rule.” (Emphasis added.) Dismissal of the motion to revoke probation for failure to 18 commence the adjudicatory hearing within sixty days is therefore discretionary with 19 the district court, and nothing in the record before this Court suggests that the district

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1 court abused its discretion in declining to dismiss the motion to revoke probation. See 2 State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that 3 we presume correctness in the trial court’s rulings and the burden is on the appellant 4 to demonstrate trial court error). 5 {5} Defendant contends that this Court’s reliance on Rule 5-805(L) for the 6 proposition that dismissal is discretionary “impermissibly modifies the rule by 7 reference to another provision of the rule that is not implicated and is therefore 8 inapplicable.” [MIO 2] However, as cited above, Rule 5-805(L) specifically refers to 9 “any release of the probationer that may be required by Paragraphs G or H,” and then 10 states that the district court may also dismiss the petition for a violation of any of the 11 time limits contained in Rule 5-805. Therefore, we reject Defendant’s argument that 12 Rule 5-805(L) is inapplicable to circumstances in which the adjudicatory hearing is 13 not timely commenced. 14 {6} Defendant next argues that the district court erred in taking judicial notice of 15 the indictment from Odyssey, as no certified copy was introduced into evidence. [MIO 16 3] Defendant argues specifically that, although the rules of evidence do not apply to 17 probation revocation hearings, the district court nonetheless errs when it relies on 18 unauthenticated evidence to make up for deficiencies in the State’s proof or to buttress 19 the State’s evidence. [MIO 3]

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1 {7} For the reasons set out in our notice of proposed summary disposition, we 2 continue to believe that Defendant has not shown that the district court erred in taking 3 judicial notice of the copy of the indictment. We also note that the State presented 4 witnesses and evidence other than the copy of the indictment at the probation 5 revocation hearing, and that evidence was sufficient to establish all the alleged 6 violations to a reasonable certainty. See State v. Guthrie, 2011-NMSC-014, ¶ 36, 150 7 N.M. 84, 257 P.3d 904 (recognizing that the accusation that a “probationer has 8 committed another crime must be tested in the crucible of cross examination”). 9 Therefore, even if there were error in the district court taking judicial notice of the 10 indictment, we perceive no prejudice to Defendant. See State v. Fernandez, 11 1994-NMCA-056, ¶ 13, 117 N.M. 673, 875 P.2d 1104 (“In the absence of prejudice, 12 there is no reversible error.”). 13 {8} Defendant next argues that the detention center’s failure to provide a way for 14 him to promptly notify his probation officer of his arrest must be reviewed for 15 fundamental error. [MIO 3-4] However, nothing in the record before this Court 16 establishes that the detention center failed to provide Defendant with a means for 17 contacting his probation officer. Defendant initially raised this issue as an argument 18 that the State failed to meet its burden of proof to establish a willful violation by 19 presenting affirmative evidence that he had an opportunity to call the probation

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1 department or had access to a telephone after his arrest. [DS 5] See State v. Leon, 2 2013-NMCA-011, ¶ 36, 292 P.3d 493 (“In a probation revocation proceeding, the 3 [s]tate bears the burden of establishing a probation violation with a reasonable 4 certainty.”). As we explained in the notice of proposed disposition, Defendant’s 5 probation officer testified at the revocation hearing that Defendant did not report his 6 arrest as required by the terms of his probation agreement. [DS 3] This was sufficient 7 to raise an inference that Defendant violated his probation willfully, and Defendant 8 then had the burden to show that his failure to do so was not willful. See id. (stating 9 that once the state establishes to a reasonable certainty that the defendant violated 10 probation, a reasonable inference arises that the defendant did so willfully, and it is 11 then the defendant’s burden to show that failure to comply was either not willful or 12 that he or she had a lawful excuse); see also State v. Parsons, 1986-NMCA-027, ¶ 25, 13 104 N.M. 123, 717 P.2d 99 (noting that it was the state’s burden to prove that the 14 defendant violated probation by not paying probation fees and costs, and once the 15 State did so, it was the defendant’s responsibility to demonstrate that non-compliance 16 was not willful). Defendant failed to present such evidence. However, there was no 17 evidence presented that the detention center did not provide Defendant with access to 18 a way to communicate with his probation officer, and this Court therefore rejects this 19 argument.

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1 {9} As to Defendant’s remaining issues, Defendant generally argues that our initial 2 proposed disposition was incorrect. For the reasons stated in our proposed notice, we 3 affirm on those issues as well. 4 CONCLUSION 5 {10} For these reasons, we affirm the district court’s order revoking Defendant’s 6 probation. 7 {11} IT IS SO ORDERED.

8 9 LINDA M. VANZI, Judge

10 WE CONCUR:

11 12 J. MILES HANISEE, Judge

13 14 JENNIFER L. ATTREP, Judge