State v. Ngo

2001 NMCA 041, 27 P.3d 1002, 130 N.M. 515
CourtNew Mexico Court of Appeals
DecidedMay 16, 2001
Docket21,263
StatusPublished
Cited by16 cases

This text of 2001 NMCA 041 (State v. Ngo) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ngo, 2001 NMCA 041, 27 P.3d 1002, 130 N.M. 515 (N.M. Ct. App. 2001).

Opinions

OPINION

BUSTAMANTE, Judge.

{1} This case came before us in an unusual procedural posture and involves the law of criminal contempt and the punishment that may be imposed on an attorney by the trial court for contemptuous conduct. Defense counsel filed a direct appeal from the sanctions order and subsequently filed a petition for a writ of error, which this Court granted. We consolidated the appeals, but now quash the order granting the writ of error and proceed to address the issues raised under the direct appeal. We affirm the sanctions order in part, reverse it in part, and remand for proceedings consistent with this opinion.

BACKGROUND AND FACTS

{2} Briefly stated, the facts are as follows. In the context of a criminal trial in which the defendant was accused of assault upon a jail guard, the trial court first sanctioned defense counsel for failing to disclose a witness and then later for disobeying an evidentiary ruling during cross-examination of a corrections officer. The latter events led the trial court to declare a mistrial. The court entered an order declaring a mistrial on January 26, 2000, and an order for sanctions on February 7, 2000. The order for sanctions required defense counsel to pay the sanctions in full within thirty days of the entry of the order or be suspended from practicing in the Fifth Judicial District. On February 22, 2000, the court entered an order suspending defense counsel from practice in the Fifth Judicial District.

{3} On February 18, 2000, defense counsel filed a notice of appeal from the order for a mistrial and the order for sanctions. Defense counsel also filed a petition for a writ of prohibition and/or superintending control with the New Mexico Supreme Court, which was denied. Upon the filing of the writ of prohibition, the trial court stayed the orders for sanctions and suspension and then reimposed them when the writ was denied. Defense counsel filed a petition for a writ of error with this Court on April 24, 2000, appealing the reimposition of those orders.

{4} Defense counsel raised four issues in his docketing statement in the direct appeal. Two of those issues addressed the trial court’s rulings declaring a mistrial and the denial of a pre-trial motion to dismiss, and the other two addressed the order for sanctions. Defense counsel raised an additional three issues in the petition for writ of error relating to the reimposition of the orders for sanctions and of suspension. The direct appeal and the petition for writ of error were opened as two separate files in this Court. Noting the two files were related, this Court, as a housekeeping matter, told the parties it would address the collateral issues relating to sanctions and suspension under the ease number assigned to the writ of error. This Comb then dismissed the portion of the direct appeal pertaining to the issues arising from the underlying criminal trial, as there was no final order in that case.

DISCUSSION

{5} Five issues are before this Court on appeal: (1) whether the issues are properly before this Court on the writ of error or on direct appeal, (2) whether defense counsel’s failure to list a witness was inadvertent and whether the trial court erred in sanctioning him in the manner it did, (3) whether defense counsel’s questioning of a witness willfully violated the court’s evidentiary ruling and whether the trial court erred in sanctioning him and threatening to suspend counsel from practicing before the Fifth Judicial District, (4) whether the trial court erred in sanctioning defense counsel for violating its evidentiary ruling and threatening to suspend him without a hearing, and (5) whether the trial court erred in suspending defense counsel from the practice of law.

Jurisdiction

{6} Defense counsel argues that the issues raised are properly before this Court both on direct appeal and as set forth in the petition for a writ of error. The State responds that defense counsel abandoned his direct appeal and that the petition is both time-barred and an inappropriate means of appeal in this ease

{7} Rule 12-503(E)(2) NMRA 2001 states that a petitioner for a writ of error must demonstrate that the order appealed from “(a) conclusively determines the disputed question; (b) resolves an important issue completely separate from the merits of the action; and (c) would be effectively unreviewable on appeal from a final judgment because the remedy by way of appeal would be inadequate.” Defense counsel argues that a writ of error is necessary in this case to appeal from the order reimposing sanctions because the reimposition of sanctions “was not and likely could not be raised in the docketing statement.” He argues, therefore, that the order is therefore “effectively unreviewable on appeal.” Canillo v. Rostro, 114 N.M. 607, 613, 845 P.2d 130, 136 (1992). The State counters, and we agree, that the original order for sanctions, which was in part a contempt order and in part similar to a contempt order, and the order for suspension were both final and appealable when entered. See Purpura v. Purpura, 115 N.M. 80, 81, 847 P.2d 314, 315 (Ct.App.1993) (addressing an appeal from an order holding attorney in direct criminal contempt entered during a civil case). Accordingly, the issues raised in this case were not unreviewable on appeal from the final orders entered. Therefore, we now quash the order granting the petition for a writ of error as improvidently granted and do not reach the question of whether the petition was time-barred.

{8} The State also argues, however, that defense counsel abandoned his direct appeal from the order of suspension when he did not respond to this Court’s notice proposing to summarily dismiss the appeal filed in the underlying criminal case. Our calendar notice proposing to dismiss the appeal in the criminal ease stated that the docketing statement filed in that case “rais[ed] issues concerning the merits of Defendant’s case and collateral issues concerning the trial court’s sanctioning of Defendant’s attorney.” We then stated that the issues concerning sanctions would be addressed in our calendar notice responding to the petition for a writ of error which had been filed by then and which also addressed the sanctions. Similarly, in our first calendar notice responding to the petition, this Court stated that the issues concerning sanctions raised in the docketing statement filed in the criminal case would be addressed in the case responding to the petition. Thus all parties were notified of this procedure, and we will not penalize defense counsel for not opposing summary dismissal of the direct appeal when our actions encouraged him to act as he did, especially when the State received notice of the appeal and our subsequent actions.

{9} The notice of appeal filed in the underlying criminal case stated that it was appealing both the order declaring a mistrial and the order for sanctions, both of which were attached to the notice as exhibits. The State received notice of that appeal.

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Bluebook (online)
2001 NMCA 041, 27 P.3d 1002, 130 N.M. 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ngo-nmctapp-2001.