Duran v. Eichwald

• Citation: 210 P.3d 238,2009 NMSC 030
• Decision Date: 17 June 2009
• Docket Number: No. 31,372.,31,372.
• Parties: Richard D. DURAN, Petitioner, v. Hon. George P. EICHWALD, District Court Judge, Thirteenth Judicial District Court, Respondent, and Boglarka Foghi, Assistant District Attorney, and Lemuel Martinez, Thirteenth Judicial District Attorney, Real Parties in Interest.
• Court: New Mexico Supreme Court

210 P.3d 238

2009 NMSC 030

Richard D. DURAN, Petitioner, v. Hon. George P. EICHWALD, District Court Judge, Thirteenth Judicial District Court, Respondent, and Boglarka Foghi, Assistant District Attorney, and Lemuel Martinez, Thirteenth Judicial District Attorney, Real Parties in Interest.

No. 31,372.

Supreme Court of New Mexico.

June 17, 2009.

Daniel J. Tallon, Albuquerque, NM, for Petitioner.

Boglarka Foghi, Assistant District Attorney, Bernalillo, NM, Lemuel Lawrence Martinez, District Attorney, Grants, NM, for Real Parties in Interest.

OPINION

PER CURIAM.

{1} We are faced in this case with the difficult task of dismissing a criminal prosecution without a trial on the merits because of the prosecution's failure to bring this matter to trial in a timely manner. The charges of child abuse alleged in this case are, of course, serious ones, which we do not dismiss lightly. But for the reasons set forth below, we conclude that dismissal is the only option available to us under the circumstances of this case. We nevertheless take this opportunity to express our dissatisfaction with the procedural dilemma posed by this case and take steps to provide our courts with greater discretion to address situations like this one in the future.

BACKGROUND

{2} The problem we must address in this extraordinary writ proceeding has its origins in a prior proceeding before this Court filed under Rule 5-604 NMRA of our Rules of Criminal Procedure for the District Courts. Rule 5-604(B), commonly referred to as the six-month rule, requires the commencement of trial in a criminal proceeding within six months of the latest of several different triggering events. If it becomes apparent that trial cannot commence within the six-month time period, the district court, for good cause shown, may extend the time for commencing trial up to an aggregate of six additional months. See Rule 5-604(C). Any additional extensions of time must be sought from this Court. See Rule 5-604(D).

{3} In the underlying criminal proceeding, the defendant (Petitioner, in this case), Richard D. Duran, was indicted for two counts of negligent child abuse resulting in great bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2005, as amended). Petitioner was arraigned on August 27, 2007, which therefore required the commencement of trial no later than February 27, 2008. See Rule 5-604(B)(1). Thereafter, the State petitioned and the district court granted a six-month extension of time, which extended the commencement of trial until August 27, 2008. On September 24, 2008, twenty-eight days after expiration of the trial deadline, the State filed a petition with this Court asking for an additional six-month extension of time until February 27, 2009. In its petition, the State represented that Mr. Duran objected to the petition for an extension of time and that the district court had set a definite trial setting for October 7, 2008. Mr. Duran did not file a response to the State's petition, and after the time for doing so had expired, this Court partially granted the State's request for an extension of time until November 28, 2008.

{4} On October 14, 2008, Mr. Duran filed with this Court a petition for a writ of prohibition or superintending control. Mr. Duran's petition asked this Court to reconsider its order granting the State an extension of time to commence trial and to enter an order prohibiting the district court from setting the underlying criminal proceeding for trial until this Court could rule on his petition. Mr. Duran represented that the State (1) never served him with a copy of the petition for extension of time filed in this Court, (2) never inquired whether he opposed the request for an extension of time, (3) failed to obtain a definite trial setting from the district court as required by Rule 5-604(E), and (4) failed to disclose in its petition to this Court that Mr. Duran had already filed a motion to dismiss in the district court for violation of the six-month rule. After receiving the State's response and Mr. Duran's subsequent reply, we set the matter for hearing.

{5} At the conclusion of the hearing, we announced our decision ordering the district court to dismiss the charges against Mr. Duran because the State failed to file a timely petition for extension of time and failed to establish any exceptional circumstances to excuse the delay. We also expressed our reluctance to dismiss the charges because of the public's interest in seeing the charges resolved on their merits. But because there was no alternative to dismissal under Rule 5-604, we also announced from the bench our decision to immediately suspend the operation of Paragraph F of the rule until further order of the Court, so that dismissal would not be automatically required in future cases like this one.

DISCUSSION

{6} As noted above, the State failed to request an extension of time to commence trial from this Court until twenty-eight days after the expiration of the prior extension of time granted by the district court. Rule 5-604(E) provides that a petition for extension of time to commence trial "may be filed within ten (10) days after the expiration of the applicable time limit if it is based on exceptional circumstances beyond the control of the parties or trial court which justify the failure to file the petition within the applicable time limit." Because the State's untimely petition did not fall within the ten-day grace period in Paragraph E of the rule, the State forfeited its right to seek an extension of time from this Court. Moreover, for the reasons set forth below, even if the State's petition had been filed within the ten-day grace period, the State failed to establish exceptional circumstances to justify its untimely request for an additional extension of time.

{7} Although the State filed its petition for extension of time with this Court twenty-eight days late, the petition failed to acknowledge the untimeliness nor did it recognize the need to establish exceptional circumstances justifying the untimely filing. During the hearing before this Court, the State conceded that the petition did not detail the exceptional circumstances justifying the delay in filing. In a belated attempt to provide that justification, the State sought to rely on the existence of ongoing plea negotiations and defense counsel's purported agreement several months earlier to concur in a request for an additional extension of time. We assume, without deciding, that plea negotiations were ongoing and that at one point defense counsel may have been willing to concur in an extension of time in furtherance of those plea negotiations. Nevertheless, neither circumstance explains nor justifies why it was beyond the State's control to at least request an extension of time from this Court in a timely manner. See State v. Sandoval, 2003-NMSC-027, ¶ 3, 134 N.M. 453, 78 P.3d 907 (recognizing that a timely petition is required under Rule 5-604 "[a]bsent exceptional circumstances beyond the control of the State or the trial court"); cf. State v. Dominguez, 2007-NMCA-132, ¶ 11, 142 N.M. 631, 168 P.3d 761 (noting that the prosecutor's inability to reach defense counsel to obtain and state the defendant's position with respect to a petition for extension of time, did not prevent the prosecutor from timely filing the petition).

{8} We also reject the State's attempt to equate inadvertence with an exceptional circumstance, justifying the filing of the untimely petition. To do otherwise would allow prosecutorial neglect to swallow the requirement in the rule that exceptional circumstances beyond the control of the parties or court must be present if an untimely petition for extension of time is to be considered. By definition, neglect or inadvertence simply are not matters beyond the control of the prosecution. See Dominguez, 2007-NMCA-132, ¶ 11 (rejecting prosecutorial inadvertence due to a heavy caseload as an exceptional circumstance justifying the late filing of a petition for extension of time).

{9} Given the State's complete failure to establish exceptional circumstances justifying its untimely petition, and given that the petition was nonetheless filed beyond the ten-day grace period in Rule 5-604(E), dismissal of the charges with prejudice is mandatory. See Rule 5-604(F) (providing that when the trial of a person is not commenced within the time limits prescribed by the rule "the information or indictment filed against such person shall be dismissed with prejudice" (emphasis added)); see also State v. Carreon, 2006-NMCA-145, ¶ 6, 140 N.M. 779, 149 P.3d 95 (noting the mandatory nature of the word "shall"). While dismissal is unavoidable in this case, we are troubled by an outcome that precludes a trial on the merits because of a procedural rule violation for which there has not been a clear showing of prejudice to the accused. We do not mean to suggest that unnecessary delay is of no consequence to the accused. The mere fact that unresolved charges remain hanging over the accused can cause a great deal of anxiety and financial burden. Cf. Salandre v. State, 111 N.M. 422, 425, 806 P.2d 562, 565 (1991) (recognizing within the speedy trial context the prejudice that the accused can suffer from a delay in trial even if the defense itself is not impaired by the delay).

{10} The six-month rule is the mechanism by which we "assure prompt disposition of criminal cases." State v. Cardenas, 2003-NMCA-051, ¶ 12, 133 N.M. 516, 64 P.3d 543 (internal quotation marks and citation omitted). Accordingly, application of the six-month rule should account for the delay inherent in bringing cases to trial, but because the...