1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 30,118 10 ALBERTO ROBLES, 11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Douglas R. Driggers, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Robert E. Tangora, L.L.C. 18 Robert E. Tangora 19 Santa Fe, NM
20 for Appellant 21 MEMORANDUM OPINION 22 FRY, Chief Judge. 23 Defendant appeals from his convictions for attempted murder, multiple counts 24 of kidnaping, multiple counts of aggravated assault, multiple counts of aggravated 25 battery, and two counts of child abuse. In this Court’s notice of proposed summary
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1 disposition, we proposed to affirm. Defendant has filed a memorandum in opposition, 2 pursuant to several extensions of time. We have considered Defendant’s arguments, 3 and as we are not persuaded by them, we now affirm. 4 The Right to a Fair and Impartial Jury 5 Defendant contends that he was deprived of his right to a fair and impartial jury. 6 [DS unnumbered page 5] Such claims of error must be preserved with specificity in 7 the district court in order to be reviewed on appeal. See State v. Riley, 8 2010-NMSC-005, ¶¶ 24-25, 147 N.M. 557, 226 P.3d 656. In our notice of proposed 9 summary disposition, we proposed not to address this issue because it did not appear 10 that Defendant preserved it. We stated that, to the degree that Defendant relied on 11 information discovered during his trial that certain jurors knew either the victim or a 12 family member of the victim, Defendant failed to explain what legal arguments he 13 made to the district court or what relief he sought from the district court as a 14 consequence of the discovery. To the degree that Defendant’s argument was based 15 on information he learned after trial about what certain jurors may have overheard or 16 may have discussed during trial, Defendant did not assert that he ever sought to bring 17 this information to the attention of the district court through a post-trial motion or 18 other means. Because there was no evidence that Defendant’s argument regarding any 19 deprivation of a right to a fair and impartial jury was preserved, we proposed to find 20 no error on this basis. 21 In Defendant’s memorandum in opposition, Defendant asserts that trial 22 counsel’s failure to explain in the docketing statement how the issue was preserved
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1 constitutes ineffective assistance of counsel that warrants either reversal on appeal or 2 assignment to the general calendar. [MIO 2-4] Defendant cites State v. Duran, 105 3 N.M. 231, 232, 731 P.2d 374, 375 (Ct. App. 1986), for the proposition that this Court 4 will presume ineffective assistance of counsel when counsel does not timely file a 5 notice of appeal. [MIO 3-4] Defendant also cites two cases from other states that 6 stand for the same proposition. [MIO 4] Because we apply New Mexico law and 7 because these out-of-jurisdiction cases are in accordance with New Mexico precedent, 8 we apply Duran, and will not discuss the out-of-jurisdiction cases separately. 9 In Duran, this Court held that when counsel fails to timely file a notice of 10 appeal from a conviction in a jury trial, this Court will apply a presumption of 11 ineffective assistance of counsel and hear the appeal. Id. Our rationale was based on 12 the principle that “criminal defendants are not to be deprived of an appeal as of right 13 where a procedural defect results from ineffective assistance of counsel on appeal.” 14 Id. First, we note that based on Duran, the remedy for ineffective assistance of 15 counsel in perfecting an appeal is not reversal of the defendant’s convictions, but 16 allowing the appeal to go forward. Therefore, Duran does not support Defendant’s 17 argument that reversal is warranted. Second, here, unlike in Duran, Defendant has not 18 been deprived of his right to appeal. We have heard Defendant’s appeal; we have 19 simply determined that Defendant has failed to demonstrate that his claim of error has 20 merit or warrants reversal. To the degree that trial counsel has been ineffective in his 21 presentation of Defendant’s claim to this Court and counsel’s ineffectiveness has
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1 prejudiced Defendant, Defendant may raise that argument in any collateral proceeding 2 he wishes to bring. 3 Defendant also asks that the case be assigned to the general calendar due to trial 4 counsel’s ineffectiveness in drafting his legal argument in the docketing statement. 5 We decline to do so, as assigning a case to the general calendar when a docketing 6 statement fails to include facts necessary to demonstrate error would tend to 7 encourage attorneys who are filing a docketing statement to shirk their duties and then 8 let the issues be sorted out by appellate counsel on the general calendar. This would 9 subvert the purpose of the summary calendar, which is to efficiently resolve those 10 cases in which the relevant facts are undisputed by the parties and the legal issues can 11 be decided under existing New Mexico precedent. To the degree that Defendant 12 asserts that appellate counsel was unable to develop Defendant’s arguments on appeal 13 because the docketing statement did not include all the necessary facts, we note that 14 Defendant could have sought access to the transcripts in order to determine what facts 15 were presented and what issues preserved. See State v. Ibarra, 116 N.M. 486, 488, 16 864 P.2d 302, 304 (Ct. App. 1993). Accordingly, we decline to assign this case to the 17 general calendar based on Defendant’s claim of ineffective assistance of counsel in 18 presenting his legal arguments in the docketing statement.
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1 Speedy Trial 2 Defendant asserts that he was “deprived of . . . a fair trial due to the failure of 3 the state to bring him to trial in a manner dictated by the constitution.” [DS 4 unnumbered page 5] Based on other information in the docketing statement, we 5 understand this issue to raise a claim that Defendant was deprived of his right to a 6 speedy trial. In our notice of proposed summary disposition, we proposed to find no 7 speedy trial violation. In Defendant’s memorandum in opposition, he continues to 8 argue in support of reversal on this basis, pursuant to State v. Franklin, 78 N.M. 127, 9 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 10 1, 4-6 (Ct. App. 1985). [MIO 4-6] 11 We apply a four-part balancing test for evaluating speedy trial claims. See State 12 v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387. These four factors are 13 the length of delay, the reasons for delay, the defendant’s assertion of his right, and 14 the prejudice to the defendant. Id. “In considering each of these factors, we defer to 15 the [district] court’s factual findings but review de novo the question of whether [the 16 d]efendant’s constitutional right was violated.” State v. O’Neal, 2009-NMCA-020, 17 ¶ 14, 145 N.M. 604, 203 P.3d 135 (filed 2008) (internal quotation marks and citation 18 omitted). 19 Defendant was arrested and indicted on November 23, 2005, and he filed his 20 motion to dismiss on December 27, 2007. [RP 32, 157] Therefore the length of the 21 delay at the time of the motion was just over twenty-four months. See State v. 22 Maddox, 2008-NMSC-062, ¶ 10, 145 N.M. 242, 195 P.3d 1254 (indicating that the
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1 right to a speedy trial attaches “when the defendant becomes an accused, that is, by 2 a filing of a formal indictment or information or arrest and holding to answer” 3 (internal quotation marks and citation omitted)). 4 We examine the complexity of the case in order to determine whether a delay 5 triggers the presumption of prejudice. Garza, 2009-NMSC-038, ¶ 23. Here, 6 regardless of whether this case is simple, of intermediate complexity, or complex, the 7 twenty-four-month delay triggered the presumption of prejudice, requiring an analysis 8 of the speedy trial factors. See id. ¶¶ 47-48, 50 (changing the lengths of time that will 9 be considered presumptively prejudicial and applying the change to motions to 10 dismiss on speedy trial grounds initiated on or after August 13, 2007). 11 Although the length of the delay in this case was quite long, on balance, a 12 weighing of the speedy trial factors does not indicate that Defendant’s right to a 13 speedy trial was violated. We believe this case is similar to Maddox. There, our 14 Supreme Court held that the defendant’s speedy trial right was not violated in spite of 15 what it termed an “extraordinary” delay of twenty-eight months, because much of the 16 delay was attributable to the defendant, the defendant made only a weak assertion of 17 his right to a speedy trial, and the defendant did not produce any evidence of undue 18 prejudice resulting from the delay. 2008-NMSC-062, ¶¶ 12, 23, 31, 35, 37. Similarly, 19 here, much of the delay was attributable to Defendant, since he requested multiple 20 continuances of the trial date and stipulated to some of the State’s requested 21 continuances. The trial in this case was originally set for June 5, 2006. [RP 49] The 22 date was reset by the district court for August 7, 2006, apparently on request of a co-
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1 defendant. [RP 62, 165-66] On August 2, 2006, Defendant filed a motion to continue 2 the trial because he had not yet conducted witness interviews. [RP 70] The trial date 3 was set for October 31, 2006. [RP 74] On October 25, 2006, the State filed a motion 4 for a continuance because one of its witnesses was scheduled to be tried on the date 5 of Defendant’s trial. [RP 80] The State failed to obtain Defendant’s position on this 6 motion. [RP 80] The trial was reset for February 7, 2007. [RP 99] On January 30, 7 2007, the State filed a motion for a continuance, and Defendant stipulated to the 8 motion. [RP 105] The trial was reset for May 8, 2007. [RP 110] On May 3, 2007, 9 Defendant filed a motion to continue the May 8 trial. [RP 120] The trial was reset for 10 August 15, 2007. [RP 126] On August 7, 2007, the State filed a motion to continue, 11 noting that Defendant did not oppose the motion. [RP 143] The trial was reset for 12 January 8, 2008, and then, in an amended notice of hearing, for February 4, 2008. [RP 13 146, 156] On December 27, 2007, Defendant filed his motion to dismiss on speedy 14 trial grounds. [RP 157] On the same date, he filed a motion to continue, asserting that 15 he had not yet completed witness interviews. [RP 161] Although some of the delay 16 in this case weighs against the State, much of it weighs against Defendant, since it was 17 he who sought or stipulated to continuances. To the degree that Defendant blames the 18 State for failing to make its witnesses available for interviews, it appears that the 19 district court could have credited the State’s factual representations that the difficulties 20 in scheduling interviews were in part caused by Defendant. [RP 169-70] 21 Furthermore, if Defendant had wanted to set up interviews, we do not see why he did 22 not avail himself of the procedures outlined by Rule 5-503(A) NMRA, which permit
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1 a party to obtain a statement from any person other than a defendant in a case by 2 serving a notice of statement on the person, along with a subpoena. This process 3 would not have required coordination with the State, and we do not believe that 4 Defendant’s failure to employ the means he had available to prepare for trial should 5 be blamed on the State. 6 We also note that Defendant’s assertion of his right to a speedy trial was quite 7 weak. Defendant apparently never even filed a pro forma motion for a speedy trial 8 and therefore asserted his right for the first time in his motion to dismiss. 9 Furthermore, at the same time he filed his motion to dismiss on speedy trial grounds, 10 he also filed a separate motion asserting that he was not prepared for trial. Such a 11 belated and ambivalent assertion of the desire for a speedy trial does not weigh in 12 Defendant’s favor. 13 Finally, Defendant made no assertion of undue prejudice in the district court, 14 relying solely on the presumption of prejudice. The presumption of prejudice does 15 not establish the requisite actual prejudice needed to maintain a speedy trial claim. 16 See Garza, 2009-NMSC-038, ¶ 21. Where, as here, “Defendant failed to show 17 prejudice, and the other factors do not weigh heavily in Defendant’s favor,” 18 Defendant’s right to a speedy trial was not violated. Id. ¶ 40. 19 Discovery Violations 20 Defendant contends that he was deprived of his right to a fair trial due to 21 discovery violations by the State. [DS unnumbered page 5] Defendant appears to 22 base this claim on (1) the fact that, at trial, the State gave Defendant a statement of one
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1 of the State’s witnesses and the statement had not been disclosed prior to trial; and (2) 2 the fact that the State did not set up witness interviews in the manner that Defendant 3 wished. In our notice of proposed summary disposition, we propose not to address 4 these issues because Defendant had not explained how he brought these claims of 5 error to the attention of the district court, what legal arguments he made, or what relief 6 he sought as a consequence of the State’s alleged failures. In order to preserve an 7 issue for appeal, Defendant must make a timely objection that specifically apprises the 8 trial court of the nature of the claimed error and invokes an intelligent ruling thereon. 9 See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. 10 In Defendant’s memorandum in opposition, he argues that trial counsel was 11 ineffective in his presentation of these issues on appeal, such that the case should be 12 remanded or placed on the general calendar. This is the same argument Defendant 13 made with respect to his first argument on appeal, and we reject it for the reasons 14 provided earlier in this opinion. 15 Therefore, for the reasons stated in this opinion and in our notice of proposed 16 summary disposition, we affirm. 17 IT IS SO ORDERED.
18 19 CYNTHIA A. FRY, Chief Judge
20 WE CONCUR:
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2 RODERICK T. KENNEDY, Judge
3 4 TIMOTHY L. GARCIA, Judge