State v. Castro

• Decision Date: 27 July 2016
• Docket Number: NO. 33,691,33,691
• Citation: 381 P.3d 694
• Parties: State of New Mexico, Plaintiff–Appellee, v. Jesus M. Castro, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

381 P.3d 694

State of New Mexico, Plaintiff–Appellee,

v.Jesus M. Castro, Defendant–Appellant.

NO. 33,691

Court of Appeals of New Mexico.

Filing Date: July 27, 2016

Certiorari Granted, September 23, 2016, No. S-1-SC-36062

Hector H. Balderas, Attorney General, Santa Fe, NM, Kenneth H. Stalter, Assistant Attorney General, Albuquerque, NM, for Appellee.

McGraw & Strickland, LLC, Margaret Strickland, Las Cruces, NM, for Appellant.

OPINION

GARCIA

, Judge.

{1} This case presents a unique appellate circumstance where Defendant's assertion of a constitutional violation of his right to a speedy trial is interrelated and potentially dependent upon his constitutional claim of ineffective assistance of counsel. Defendant appeals the district court's denial of his post-conviction motion to dismiss the indictment on speedy trial grounds, as well as his motion for a new trial challenging the effectiveness of his counsel under the Sixth Amendment. Because Defendant has established a prima facie factual basis to support a hearing regarding whether his trial counsel was ineffective by failing to sufficiently assert and preserve his right to a speedy trial under the Sixth Amendment, we reverse the denial of Defendant's post-trial motion for reconsideration and remand this case back to the district court for an evidentiary hearing.

BACKGROUND

{2} On February 9, 2009, the State charged Defendant by criminal complaint in Doña Ana County Magistrate Court with two counts of criminal sexual penetration in the third degree, in violation of NMSA 1978, Section 30–9–11(F) (2009)

. Defendant was arraigned and released on conditions after providing a secured bond of $20,000. On February 19, 2009, attorney Jonathan H. Huerta entered his appearance on Defendant's behalf. On May 28, 2009, Defendant was identically charged by indictment in Doña Ana County district court. The State dismissed its complaint in magistrate court the next day.

{3} Defendant was arraigned in district court on June 15, 2009, and was ordered to adhere to the same conditions of release and maintain the same bond amount set by the magistrate court. On August 4, 2009, prior to the December 1, 2009, trial setting previously ordered by the district court, the State filed a “motion to determine counsel” because no attorney had entered an appearance on Defendant's behalf in district court.

{4} On November 23, 2009, Defendant's same attorney, Mr. Huerta, formally entered his appearance on Defendant's behalf in district court. That same day, the State filed a motion to continue the trial setting, noting Mr. Huerta's failure to file an entry of appearance until November 23, 2009, and the State's case agent's unavailability due to a pre-planned vacation. Additionally, the State reminded the district court that Defendant was not being held in custody pending trial. Defendant did not oppose the State's request, and two days later filed his own motion to continue. In it, Defendant stated that his attorney, Mr. Huerta, had only recently become aware of the court's trial setting, and that a “key” character witness would not be able to attend the scheduled trial. The district court granted both motions to continue and reset the trial for January 21, 2010.

{5} That same day, November 23, 2009, the State filed a petition to extend Rule 5–604 NMRA's six-month deadline for conducting a trial (the six month rule was withdrawn after our Supreme Court's ruling in State v. Savedra , 2010–NMSC–025, 148 N.M. 301, 236 P.3d 20

). Defendant did not oppose the motion, which the district court granted in an order extending the deadline for holding a trial to June 15, 2010. A week later, the district court entered an order moving the trial from January 21, 2010, to April 7, 2010.

{6} As scheduled, Defendant was tried before a jury on April 7, 2010, but the trial resulted in a hung jury. After declaring a mistrial, the district court entered an order setting a second trial on September 29, 2010.

{7} On September 10, 2010, Defendant's attorney filed a motion to withdraw as counsel or in the alternative to have Defendant declared indigent, and offered to accept the district court's appointment to represent Defendant as a contracted public defender. At the time, Defendant had only paid $4,000 of the agreed—to $11,000 retainer for representation by Mr. Huerta in the first trial. Defendant's attorney hoped “that the county may assist [Defendant] in defraying the costs of providing for a legal defense.”

{8} On September 27, 2010, the district court held a hearing on Defendant's attorney's motion to withdraw. Afterward, the district court orally denied the motion, citing the court's standing policy of refusing to entertain motions to withdraw and permitting only motions to substitute. The next day, the State filed a motion to continue the September 29 trial setting. As grounds, the State mentioned the court's denial of Mr. Huerta's motion to withdraw, and announced the unavailability of its own DNA analyst. Defendant did not oppose the State's motion and it was granted by the district court. Trial was reset for November 30, 2010.

{9} November 30, 2010, came and went. Due to a scheduling error, there was neither a trial nor any order by the district court setting a new trial date. The district court docket lacks entries between November 30, 2010, and February 17, 2011, when the State filed a notice of substitution of counsel. Nor is there anything in the record that suggests an explanation for this period of delay. The first mention within the record regarding the delay appears in the district court's June 27, 2013, order denying Defendant's motion to dismiss on speedy trial grounds, in which the district court found that the November trial date had been vacated, but explained that the court simply neglected to set another trial date. In the same order, the district court also faulted the State for failing to request a new trial setting.

{10} The record next reveals that on February 22, 2012, the district court set a new trial for July 11, 2012, nearly twenty months after the previous trial setting. On May 30, 2012, Defendant's attorney filed a renewed motion to withdraw and a separate request seeking a hearing on the motion to withdraw. As grounds, Defendant's attorney reiterated Defendant's failure to pay the full $11,000 retainer for the first trial. Also, Defendant's attorney raised for the first time Defendant's “fail[ure] to keep in contact with the undersigned attorney[,] hindering the attorney's ability to prepare for trial.”

{11} On June 19, 2012, the district court held a hearing on Mr. Huerta's renewed motion to withdraw. Although Defendant attended the hearing in person, Defendant's attorney failed to appear. The district court denied the motion, citing Defendant's attorney's absence and again noting the district court's policy of refusing to entertain motions to withdraw without substitute counsel having already entered an appearance. The district court encouraged Defendant to apply to the public defender's office for a substitute attorney.

{12} On July 11, 2012, the day of trial, the district court called Defendant's case but did not select a jury or hold a trial. Instead, a different judge sitting in for the assigned district judge heard further argument concerning Mr. Huerta's motion to withdraw. Mr. Huerta reiterated his desire to withdraw from representing Defendant and also stated that he had been unable to contact Defendant, who was also present at the hearing. The district court then admonished Defendant to stay in contact with his attorney, noting that regular contact with his attorney was part of Defendant's conditions of release. The substitute judge also stated that he would relay the case's status to the original trial judge, and that he was “pretty sure [the original judge] is gonna set this case relatively quickly in his calendar” because the case was already “relatively old.”

{13} On September 25, 2012, the district court set another hearing for October 17, 2012, on Mr. Huerta's motion to withdraw. On the same day, the district court also set a new trial date for December 5, 2012.

{14} Neither Defendant, nor his attorney, appeared at the new October 17 hearing. The district court saw no indication in the file that the September 25, 2012, notice was sent to Defendant, but nonetheless issued a bench warrant for Defendant's arrest because it “believed” that Defendant must have been notified.

{15} The district court held a status conference on October 18, 2012, and both Defendant and his attorney appeared. The court again orally denied Mr. Huerta's motion to withdraw. The court also withdrew the warrant for Defendant's arrest after Defendant explained why he did not appear at the previous day's hearing.

{16} Defendant's second trial proceeded as scheduled on December 5, 2012. The jury acquitted Defendant of the first count in the indictment and convicted him on the second count. Afterward, Defendant obtained substitute counsel and on April 19, 2013, filed a motion to extend the time to file a motion for a new trial. On April 24, 2013, Defendant filed a motion to dismiss on speedy trial grounds.

{17} On June 27, 2013, the district court denied Defendant's motion to dismiss. The district court found that the three year, ten-month delay from the date Defendant was arrested (February 6, 2009) and the second trial (December 5, 2012) triggered a speedy trial analysis, but that Defendant's constitutional right to a speedy trial was not violated after applying the four-factor analysis set out in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)

.

{18} On July 31, 2013, Defendant filed a motion to reconsider the denial of his motion to dismiss, attaching a supporting affidavit signed by Defendant. The district court denied Defendant's motion to reconsider on August 1, 2013. On April 14, 2014, the district court sentenced Defendant. This appeal timely followed.

DISCUSSION

{19} Defendant raises several...