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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,259
10 GILBERT MARTIN LOPEZ, JR.,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Teddy L. Hartley, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Max Shepherd, Assistant Attorney General 17 Albuquerque, NM
18 for Appellant
19 Hugh W. Dangler, Chief Public Defender 20 Kathleen T. Baldridge, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellee
23 MEMORANDUM OPINION
24 VIGIL, Judge. 1 Gilbert Martin Lopez, Jr. (Defendant) appeals from an order of the district
2 court revoking his probation. [RP 171-72] On appeal, Defendant raises four
3 issues: (1) the district court erred in failing to dismiss an addendum to a report of
4 probation violation; (2) insufficient evidence was presented to support probation
5 revocation; (3) Defendant’s right to confront the arresting officer was violated; and
6 (4) the district court erred by denying Defendant’s motion for reconsideration and
7 new trial. Having duly considered Defendant’s arguments, we affirm in part,
8 reverse in part, and remand to the district court for proceedings consistent with this
9 opinion.
10 BACKGROUND AND FACTS
11 In 2006, Defendant was placed on probation for five years. [RP 30-31] On
12 April 3, 2007, June 5, 2007, and June 23, 2007, Defendant violated the terms of his
13 probation. [RP 33-41] As a result of the violations, Defendant was incarcerated
14 for a period of time and placed back on probation on April 1, 2008. [RP 69-71]
15 Defendant allegedly violated the terms of his probation again on April 30, 2008
16 (testing positive for marijuana); July 20, 2008 (burglary); September 22, 2008
17 (testing positive for cocaine and opiates); and September 25, 2008 (speeding, being
18 out of county, and associating with a felon). [RP 72-73, 75-79, 103-05, 111-12]
2 1 On August 18, 2008, the probation division filed a report of probation
2 violation in district court, requesting that Defendant’s probation be revoked based
3 upon the July 20, 2008 burglary charge. [RP 75-77] On September 26, 2008, the
4 probation division filed an addendum to the report of probation violation,
5 recommending probation revocation for an incident on September 25, 2008 where
6 Defendant was pulled over in Roosevelt County for speeding and the passenger of
7 his car was a felon. [RP 103-05] On September 29, 2008, the probation division
8 filed a second addendum, recommending revocation because Defendant’s
9 September 22, 2008 urine test results showed the presence of cocaine and opiates.
10 [RP 111-12]
11 Following a probation revocation hearing, the district court found the
12 original report of probation violation, filed August 18, 2008, to be untimely under
13 Rule 5-805(F) NMRA. [RP 164] However, the district court held that the
14 addendum to the probation violation, filed September 26, 2008, was not tainted by
15 the untimeliness of the original report because it dealt with an entirely unrelated
16 incident. [RP 165] At the hearing, the district court took notice of Defendant’s
17 other infractions (positive drug tests), but based the revocation of Defendant’s
18 probation solely on the violations alleged in the September 26, 2008 addendum.
19 [RP 165]
3 1 ADDENDUM TO REPORT OF PROBATION VIOLATION
2 Defendant argues that because the report of probation violation filed August
3 18, 2008 was dismissed for untimeliness, the trial court should have also dismissed
4 the addendum to the probation violation that was filed September 26, 2008. [DS 6,
5 MIO 7-8] In our calendar notice, we proposed to affirm the district court’s ruling
6 that the procedural violation invalidating the original report did not taint the
7 addendum because the probation violations addressed in the addendum (speeding,
8 being outside of Curry County, associating with a felon) stemmed from an entirely
9 distinct incident from the violation contained in the first report (burglary). [CN 2-
10 3, RP 165] In his memorandum in opposition to our notice of proposed disposition,
11 Defendant renews his argument pursuant to State v. Franklin, 78 N.M. 127, 129,
12 428 P.2d 982, 984 (1967) and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1,
13 4-6 (Ct. App. 1985) (holding defense counsel has the duty to advance defendant’s
14 non-meritorious contentions on appeal.)
15 We affirm the district court’s ruling that the new charge was not affected by
16 the procedural deficiency of the original report. It appears the report filed
17 September 26, 2008 was titled “addendum” only because Defendant already had a
18 violation pending and not because it was connected in any way to the original
19 violation. [RP 165] The original report of probation violation was dismissed
4 1 pursuant to Rule 5-805(F) because it was untimely filed. [RP 164-65] The
2 addendum was filed in accordance with all procedural requirements. See NMSA
3 1978, § 31-21-15 (1989).
4 The violation alleged in the addendum did not depend upon the factual or
5 procedural postures of the original report and could have been filed independently
6 as a stand-alone report of probation violation. See State v. Devine, 2007-NMCA-
7 097, ¶ 14, 142 N.M. 310, 164 P.3d 1009 (holding the procedural rights of the
8 parties are renewed upon the filing of a new charge following a mistrial.) We
9 therefore hold that the district court did not abuse its discretion in ruling on the
10 violation contained in the addendum despite the procedural deficiency of the
11 original report. See Devine, 2007-NMCA-097, ¶ 14; see also State v. Padilla, 106
12 N.M. 420, 422, 744 P.2d 548, 550 (Ct. App. 1987) (holding that the trial court
13 retains jurisdiction to revoke a suspended sentence for good cause shown at any
14 time subsequent to the entry of judgment and prior to the expiration of the
15 sentence.)
16 SUFFICIENCY OF EVIDENCE AND RIGHT TO CONFRONTATION
17 Defendant argues that insufficient evidence was presented at the probation
18 revocation hearing to support a finding that he knowingly associated with a felon
19 and the district court abused its discretion by allowing evidence of an alleged
5 1 probation violation to be entered into the record without the presence of the
2 arresting officer. [DS 6-7] Our calendar notice proposed to reverse. [CN 3-5] In
3 its memorandum in opposition, the State concedes that it failed to produce
4 sufficient evidence to support the revocation and that Defendant was not afforded
5 the right to confront the witness against him. [State’s MIO 5]
6 At a probation revocation hearing, a defendant has the right to confront and
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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 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,259
10 GILBERT MARTIN LOPEZ, JR.,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Teddy L. Hartley, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Max Shepherd, Assistant Attorney General 17 Albuquerque, NM
18 for Appellant
19 Hugh W. Dangler, Chief Public Defender 20 Kathleen T. Baldridge, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellee
23 MEMORANDUM OPINION
24 VIGIL, Judge. 1 Gilbert Martin Lopez, Jr. (Defendant) appeals from an order of the district
2 court revoking his probation. [RP 171-72] On appeal, Defendant raises four
3 issues: (1) the district court erred in failing to dismiss an addendum to a report of
4 probation violation; (2) insufficient evidence was presented to support probation
5 revocation; (3) Defendant’s right to confront the arresting officer was violated; and
6 (4) the district court erred by denying Defendant’s motion for reconsideration and
7 new trial. Having duly considered Defendant’s arguments, we affirm in part,
8 reverse in part, and remand to the district court for proceedings consistent with this
9 opinion.
10 BACKGROUND AND FACTS
11 In 2006, Defendant was placed on probation for five years. [RP 30-31] On
12 April 3, 2007, June 5, 2007, and June 23, 2007, Defendant violated the terms of his
13 probation. [RP 33-41] As a result of the violations, Defendant was incarcerated
14 for a period of time and placed back on probation on April 1, 2008. [RP 69-71]
15 Defendant allegedly violated the terms of his probation again on April 30, 2008
16 (testing positive for marijuana); July 20, 2008 (burglary); September 22, 2008
17 (testing positive for cocaine and opiates); and September 25, 2008 (speeding, being
18 out of county, and associating with a felon). [RP 72-73, 75-79, 103-05, 111-12]
2 1 On August 18, 2008, the probation division filed a report of probation
2 violation in district court, requesting that Defendant’s probation be revoked based
3 upon the July 20, 2008 burglary charge. [RP 75-77] On September 26, 2008, the
4 probation division filed an addendum to the report of probation violation,
5 recommending probation revocation for an incident on September 25, 2008 where
6 Defendant was pulled over in Roosevelt County for speeding and the passenger of
7 his car was a felon. [RP 103-05] On September 29, 2008, the probation division
8 filed a second addendum, recommending revocation because Defendant’s
9 September 22, 2008 urine test results showed the presence of cocaine and opiates.
10 [RP 111-12]
11 Following a probation revocation hearing, the district court found the
12 original report of probation violation, filed August 18, 2008, to be untimely under
13 Rule 5-805(F) NMRA. [RP 164] However, the district court held that the
14 addendum to the probation violation, filed September 26, 2008, was not tainted by
15 the untimeliness of the original report because it dealt with an entirely unrelated
16 incident. [RP 165] At the hearing, the district court took notice of Defendant’s
17 other infractions (positive drug tests), but based the revocation of Defendant’s
18 probation solely on the violations alleged in the September 26, 2008 addendum.
19 [RP 165]
3 1 ADDENDUM TO REPORT OF PROBATION VIOLATION
2 Defendant argues that because the report of probation violation filed August
3 18, 2008 was dismissed for untimeliness, the trial court should have also dismissed
4 the addendum to the probation violation that was filed September 26, 2008. [DS 6,
5 MIO 7-8] In our calendar notice, we proposed to affirm the district court’s ruling
6 that the procedural violation invalidating the original report did not taint the
7 addendum because the probation violations addressed in the addendum (speeding,
8 being outside of Curry County, associating with a felon) stemmed from an entirely
9 distinct incident from the violation contained in the first report (burglary). [CN 2-
10 3, RP 165] In his memorandum in opposition to our notice of proposed disposition,
11 Defendant renews his argument pursuant to State v. Franklin, 78 N.M. 127, 129,
12 428 P.2d 982, 984 (1967) and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1,
13 4-6 (Ct. App. 1985) (holding defense counsel has the duty to advance defendant’s
14 non-meritorious contentions on appeal.)
15 We affirm the district court’s ruling that the new charge was not affected by
16 the procedural deficiency of the original report. It appears the report filed
17 September 26, 2008 was titled “addendum” only because Defendant already had a
18 violation pending and not because it was connected in any way to the original
19 violation. [RP 165] The original report of probation violation was dismissed
4 1 pursuant to Rule 5-805(F) because it was untimely filed. [RP 164-65] The
2 addendum was filed in accordance with all procedural requirements. See NMSA
3 1978, § 31-21-15 (1989).
4 The violation alleged in the addendum did not depend upon the factual or
5 procedural postures of the original report and could have been filed independently
6 as a stand-alone report of probation violation. See State v. Devine, 2007-NMCA-
7 097, ¶ 14, 142 N.M. 310, 164 P.3d 1009 (holding the procedural rights of the
8 parties are renewed upon the filing of a new charge following a mistrial.) We
9 therefore hold that the district court did not abuse its discretion in ruling on the
10 violation contained in the addendum despite the procedural deficiency of the
11 original report. See Devine, 2007-NMCA-097, ¶ 14; see also State v. Padilla, 106
12 N.M. 420, 422, 744 P.2d 548, 550 (Ct. App. 1987) (holding that the trial court
13 retains jurisdiction to revoke a suspended sentence for good cause shown at any
14 time subsequent to the entry of judgment and prior to the expiration of the
15 sentence.)
16 SUFFICIENCY OF EVIDENCE AND RIGHT TO CONFRONTATION
17 Defendant argues that insufficient evidence was presented at the probation
18 revocation hearing to support a finding that he knowingly associated with a felon
19 and the district court abused its discretion by allowing evidence of an alleged
5 1 probation violation to be entered into the record without the presence of the
2 arresting officer. [DS 6-7] Our calendar notice proposed to reverse. [CN 3-5] In
3 its memorandum in opposition, the State concedes that it failed to produce
4 sufficient evidence to support the revocation and that Defendant was not afforded
5 the right to confront the witness against him. [State’s MIO 5]
6 At a probation revocation hearing, a defendant has the right to confront and
7 cross-examine a witness unless there is a specific showing of good cause for the
8 adverse witness’ absence. See State v. Vigil, 97 N.M. 749, 751, 643 P.2d 618, 620
9 (Ct. App. 1982). A mere reading of an account of a probation violation by the
10 probation officer is insufficient where there has been no showing of good cause for
11 not allowing a defendant to confront and cross-examine the arresting officer. State
12 v. Phillips, 2006-NMCA-001, ¶ 12, 138 N.M. 730, 126 P.3d 546.
13 Here, the only evidence in the record proper of the violations upon which the
14 district court revoked Defendant’s probation appears to have come from the
15 probation officer’s testimony. [RP 145-48] There is no record that the district
16 court made a finding of good cause for the arresting officer’s failure to appear.
17 [RP 163-65] Based upon the minimum standard of due process required at a
18 probation revocation hearing, the district court could not rely upon the evidence
19 presented in the absence of the arresting officer. Phillips, 2006-NMCA-001, ¶ 12.
6 1 The remaining evidence is insufficient to support the district court’s findings. See
2 State v. Kent, 2006-NMCA-134, ¶10, 140 N.M. 606, 145 P.3d 86 (holding
3 substantial evidence review requires analysis of whether a rational fact finder could
4 have found that each element of the crime was established beyond a reasonable
5 doubt.) Accordingly, we reverse the ruling of the district court.
6 MOTION FOR RECONSIDERATION AND NEW TRIAL
7 Defendant argues that the district court abused its discretion by denying his
8 motion for reconsideration and new trial based upon newly discovered evidence.
9 [Defendant’s MIO 8] There is no ruling on the motion for reconsideration in the
10 record but Defendant states that the motion was denied via letter on January 6,
11 2009. [DS 4]
12 Defendant’s basis for seeking a new hearing is newly discovered evidence.
13 [Defendant’s MIO 8] A motion for a new trial upon the ground of newly
14 discovered evidence calls for the exercise of the sound discretion of the trial court
15 and is properly denied unless the newly discovered evidence is such that (1) it will
16 probably change the result if a new trial is granted; (2) it must have been
17 discovered since the trial; (3) it must be such that it could not have been discovered
18 before trial by the exercise of due diligence; (4) it must be material to the issue; (5)
7 1 it must not be merely cumulative; and (6) it must not be merely impeaching or
2 contradictory. State v. Ramirez, 79 N.M. 475, 477, 444 P.2d 986, 988 (1968).
3 Defendant’s newly discovered evidence consists of a Probation Information
4 Form showing a map of Curry and Roosevelt Counties accompanied by a statement
5 that a probationer or parolee must obtain prior permission to travel outside of
6 Roosevelt and Curry Counties. [RP 168-70] The form was signed by a probation
7 officer, Liz Queener, in 2002. [RP 170] According to Defendant, the form
8 “appears to be a blanket policy” that applies to all probationers in Curry County.
9 [Defendant’s MIO 9] Defendant argues on appeal that if his motion for a new
10 hearing had been granted, Liz Queener could have testified that Defendant was
11 allowed to travel freely between Roosevelt and Curry counties. [Defendant’s MIO
12 10] However, Defendant knew that the probation revocation hearing concerned, in
13 part, a violation based upon traveling out of Curry County. [RP 123] Traveling
14 out of his county of residence is listed as a violation of the terms of his probation.
15 [RP 30] Further, Defendant had been ordered on September 16, 2008 not to leave
16 Curry County. [RP 91]
17 As discussed in the first calendar notice, the form allowing probationers to
18 travel freely between Roosevelt and Curry Counties is not linked to Defendant.
19 [CN 6] If, as Defendant claims, it was standing policy for Curry County
8 1 probationers to be able to travel to Roosevelt County without permission of their
2 probation officers, it seems likely that the probation officer who testified at the
3 hearing would have known it. Defendant concedes that trial counsel could have
4 discovered the form prior to the hearing. [Defendant’s MIO 9] The newly
5 discovered evidence does not meet the standard set forth in Ramirez, and district
6 court’s denial of Defendant’s motion for a new hearing was not an abuse of
7 discretion.
8 CONCLUSION
9 To the extent that the State requests this Court to order the district court to
10 conduct a new hearing on the matter, we note that this Court will not issue advisory
11 opinions. State v. Wyrostek, 117 N.M. 514, 523, 873 P.2d 260, 269 (1994).
12 For the foregoing reasons, we affirm the rulings of the district court as to
13 Issues 1 and 4, reverse on Issues 2 and 3, and remand to the district court for
14 proceedings consistent with this opinion.
15 IT IS SO ORDERED.
16 17 MICHAEL E. VIGIL, Judge 18 WE CONCUR:
9 1 JONATHAN B. SUTIN, Judge
2 3 RODERICK T. KENNEDY, Judge