1998 -NMCA- 9, State v. Dartez

• Decision Date: 14 October 1997
• Docket Number: No. 17104,17104
• Citation: 1998 NMCA 9,952 P.2d 450,124 N.M. 455
• Parties: , 1998 -NMCA- 9 STATE of New Mexico, Plaintiff-Appellee, v. Melvin DARTEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 450

952 P.2d 450

124 N.M. 455, 1998 -NMCA- 9

STATE of New Mexico, Plaintiff-Appellee, v. Melvin DARTEZ, Defendant-Appellant.

No. 17104.

Court of Appeals of New Mexico.

Oct. 14, 1997.

Certiorari Denied Jan. 8, 1998.

[124 N.M. 457] Tom Udall, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Tova Indritz, Albuquerque, for Defendant-Appellant.

OPINION

ALARID, Judge.

¶1 Defendant appeals his convictions for one consolidated count of misappropriation of public assistance and six counts of tampering with public records. On appeal, Defendant raises the following issues: (1) whether there was sufficient evidence to support the misappropriation of public assistance counts, because Defendant was not a public employee; (2) whether there was sufficient evidence to support the tampering with public records counts, because the Medicaid cards were not public records; (3) whether fundamental error occurred based on the admission of evidence regarding Defendant's prior drug sales; (4) whether the prosecutor's references to Defendant's prior drug sales and comments on Defendant's character in opening statement and closing argument constituted prosecutorial misconduct; (5) whether Defendant received ineffective assistance of counsel; (6) whether the trial court erred in refusing to instruct the jury on entrapment; (7) whether the trial court erred in refusing to instruct the jury on Medicaid fraud as a lesser-included offense; (8) whether the misappropriation sentence must merge with the tampering sentence; and (9) whether the six counts of tampering with public records merge into one count.

¶2 We hold that as a matter of law Defendant is not a public employee; therefore, we reverse his conviction for misappropriating public assistance. We further conclude that Defendant has made a prima facie showing of ineffective assistance of counsel, thus, we remand for an evidentiary hearing before the trial court for a determination of whether Defendant received ineffective assistance of counsel at trial.

MOTION TO STRIKE OR DISREGARD

¶3 The State has moved to strike or disregard a portion of Defendant's reply brief. The State contends that the argument in question in the reply brief should be disregarded because that argument was not advanced in the brief in chief in accordance with Rule 12-213, NMRA 1997. In its answer brief, the State contends that Defendant raised the defense of entrapment, and that certain otherwise objectionable character evidence was admissible as rebuttal of this defense. The portion of the reply brief the State urges this Court to strike is responsive to an argument made by the State in its answer brief. Therefore, we deny the State's motion to strike or disregard.

FACTS

¶4 Defendant was charged by criminal information with six counts of misappropriating public assistance, in violation of NMSA 1978, § 30-40-3(A) (1987) and six counts of tampering with public records, in violation of NMSA 1978, § 30-26-1(E) (1963). Defendant was tried before a jury.

¶5 Defendant, his wife, and their eight children (the Dartezes) were living in Bernalillo, New Mexico, in late 1994 and early 1995. They received $995 per month in assistance through Aid to Families with Dependent Children (AFDC). The Dartezes were part of the AFDC Unemployed Parents Program. This program requires the parent determined to be the primary wage earner to actively seek employment. If that parent has not found work within six weeks, he or she is enrolled as a participant in Project Forward.

¶6 Participants in Project Forward must undergo a program of counseling and orientation, and then are placed in a position for work experience, with the idea that the person will also actively seek employment elsewhere. The Human Services Department (HSD) has contracts with both public agencies and private firms for placement of Project Forward participants. Defendant was placed with the Bernalillo County HSD Income Support Division and was expected to work there at least 20 hours a week as a "workfare" participant.

¶7 While working at HSD Defendant had access to Medicaid cards that had been returned by the Post Office to HSD as undeliverable. On February 7, 1995, Defendant sold six Medicaid cards for $150 to Jerry Montoya, a state drug inspector for the New Mexico Board of Pharmacy, and Joseph Montano, an investigator of the New Mexico Attorney General's Medicaid Fraud Control Unit. Defendant was arrested the following day.

¶8 The jury merged the six counts of misappropriation of public assistance, and found Defendant guilty of one count of misappropriation of public assistance and six counts of tampering with public records. The trial court ruled that the six counts of tampering merged into one count, and sentenced Defendant to eighteen months on that count. Defendant was also sentenced to eighteen months on the misappropriation count, the sentence to run consecutive to the tampering sentence. After adjudication as a habitual offender, four years were added to the sentence for a total sentence of seven years.

DISCUSSION

MISAPPROPRIATION OF PUBLIC ASSISTANCE

¶9 Defendant claims that there was insufficient evidence to convict him on the charges of misappropriation of public assistance because the trial court should have decided as a matter of law that he was not a "public employee." A "public employee" is defined in the criminal code as "any person receiving remuneration for regular services rendered to the state or any of its political subdivisions." NMSA 1978, § 30-1-12(J) (1963). The jury instructions included this definition of public employee. In order to determine whether Defendant was receiving remuneration for regular services rendered to HSD, we look to the relationship established pursuant to the Project Forward Program in which Defendant was a participant.

¶10 Since HSD mandates that one of the parents undergo work experience in order to retain benefits for the family, agencies and businesses accepting workers sign a Community Work Experience Training Agreement with HSD. The agreement states:

4. That participants are not employees of the training/work site and will receive no compensation or employee benefits from the training/work site.

The training/work site does not pay the workers, and HSD Project Forward has explicitly agreed that the workers are not employees of the training/work site. The only agreements are between the worker and HSD and HSD and the training/work site. HSD sets the minimum hours that the worker must work and provides workers' compensation benefits. The training/work site, on the other hand, gives the worker assignments, supervises the worker, and has the right to control what the worker does and when it is to be done.

¶11 Many aspects typically expected of an employer-employee relationship are absent under this arrangement. Participants do not receive a salary, vacation or sick leave. Benefits are determined by family size, lack of income and other assets, not by qualifications or job duties. Additionally, workfare participants do not qualify for retirement programs. This creates a unique work situation where the incidents of an employer-employee relationship are mixed among the three participating entities.

¶12 The New Mexico Supreme Court in Benavidez v. Sierra Blanca Motors, 1996 NMSC 045, 122 N.M. 209, 922 P.2d 1205, provides further guidance for our analysis of whether Defendant should be considered an employee of HSD. There the Court considered the question whether a prisoner participating in an inmate-release program who is injured while performing work at a private job site may be considered an employee of that private business entitled to workers' compensation benefits under the New Mexico Workers' Compensation Act. Id. 1996 NMSC 045, 122 N.M. at 210, 922 P.2d at 1206.

¶13 In determining whether the prisoner was an employee, the Court first looked at whether the prisoner's obligation to provide work was voluntary. Id. at 211-12, 922 P.2d [124 N.M. 459] at 1207-08; cf. Joyce v. Pecos Benedictine Monastery, 119 N.M. 764, 767, 895 P.2d 286, 289 (Ct.App.1995) (in order to establish a contract of hire, "there must be mutual assent, express or implied."). The Court overruled Scott v. City of Hobbs, 69 N.M. 330, 332, 366 P.2d 854, 856 (1961) overruled by Benavidez v. Sierra Blanca Motors, 122 N.M. 209, 922 P.2d 1205 (1996), which held that a prisoner who worked for the city under an ordinance requiring that judges order physically-fit prisoners to work in exchange for credit on his fine was not entitled to workers' compensation benefits for injuries sustained by him while working for the city. In Scott community service could be involuntarily imposed, while under the present statutory scheme prisoners are allowed "to volunteer to work for private employers at going market rates." Benavidez, 122 N.M. at 213, 922 P.2d at 1209. Scott was overruled insofar as it holds that a prisoner's status as an inmate precluded the existence of an employer-employee relationship for the purposes of workers' compensation, but appears to still be good law insofar as it holds that work must be voluntary for an employment relationship to exist. See Benavidez, 122 N.M. at 215, 922 P.2d at 1211.

¶14 In this case, Defendant was required to work as a workfare participant with the Project Forward Program. If Defendant declined to participate in this program, his wife would be required to participate in order to continue the family's AFDC benefits. If his wife also declined to participate, the AFDC benefits would be terminated. Under these circumstances, the work for HSD by Defendant cannot reasonably be characterized as voluntary. Instead, Defendant was compelled to work in order to receive AFDC benefits for his family.

¶15 The Supreme Court of Rhode Island in Durand v. City of Woonsocket, 537 A.2d 129 (R.I.1988), reviewed a similar question regarding whether work was voluntary. I...