State v. Celusniak

• Decision Date: 15 April 2004
• Docket Number: No. 23973.,23973.
• Citation: 2004 NMCA 70,135 N.M. 728,93 P.3d 10
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Linda CELUSNIAK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

93 P.3d 10

135 N.M. 728

2004 NMCA 70

STATE of New Mexico, Plaintiff-Appellee, v. Linda CELUSNIAK, Defendant-Appellant.

No. 23973.

Court of Appeals of New Mexico.

April 15, 2004.

Patricia A. Madrid, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, for Appellee.

Adam D. Rafkin, Adam D. Rafkin, P.C., Ruidoso, for Appellant.

OPINION

PICKARD, J.

{1} Defendant entered a conditional plea in magistrate court, reserving the right to appeal her motion to suppress. This case is before us on appeal following the district court's decision to deny the motion. The procedural posture of the case gives us the opportunity to clarify the approach for litigating reserved issues when a conditional plea is entered in the magistrate court. The merits of Defendant's challenge of the district court's denial of her motion to suppress give us the opportunity to explore issues of abandonment and consent when a passenger leaves a purse in a car that is searched upon the driver's consent. We reverse.

FACTS AND PROCEDURAL HISTORY

{2} The female Defendant was a passenger in a car that contained two male passengers and a female driver. A state police officer pulled the car over when he observed that the driver was not wearing a seat belt. While speaking to the driver, the officer noticed the strong odor of burnt marijuana. He asked the driver to exit the vehicle and inquired about the odor that he had noticed. The driver did not admit to marijuana use, and she told the officer something to the effect of, "If there is marijuana in the vehicle, please do find it."

{3} The officer began his search of the vehicle in the driver's area. He asked the two male passengers to exit the vehicle while he proceeded clockwise to search the front passenger area and the rear passenger area behind it, where the males were sitting. Finding nothing, he asked Defendant to exit the vehicle while he searched the driver's side rear seat area where Defendant had been seated. In front of where Defendant was sitting, he found a woman's purse "crammed" underneath the driver's seat. He opened the purse and immediately noticed a bag of marijuana. The officer exited the vehicle and asked Defendant if this was her purse. Defendant stated that it was hers. The officer arrested Defendant and released the others with a citation to the driver for the seat belt violation.

{4} Defendant was charged with one petty misdemeanor count of possession of marijuana (one ounce or less), contrary to NMSA 1978, § 30-31-23(B)(1) (1990). With the case proceeding in magistrate court, Defendant filed a motion to suppress the marijuana, which was denied. Defendant entered a plea of no contest. Defendant and the State agree that the plea was conditioned on an appeal of the motion to suppress, although the judgment and sentence issued by the magistrate court does not indicate the condition in writing. Defendant filed a notice of appeal with the district court. The district court heard the motion de novo and denied it.

{5} Defendant appealed the district court's denial of the motion to suppress to this Court. In our first calendar notice, we proposed to hold that "the district court should have disposed of the appeal by entry of an order dismissing the appeal and remanding the cause to the magistrate court for enforcement of its judgment and sentence." Defendant prepared such an order and submitted it to the district court. However, the district court refused to sign the order, apparently interpreting our calendar notice as requiring Defendant to dismiss her appeal in this Court before proceeding to straighten out the procedural issues below. Defendant submitted a motion to dismiss to this Court, and we clarified that Defendant was not required to move for dismissal of her appeal to this Court. Instead, we ordered Defendant to "obtain an order from the district court dismissing and remanding to the magistrate court to enforce its judgment and file it with this Court within twenty (20) days." The district court again refused to issue an order dismissing the appeal, stating that its decision on the motion to suppress was not dispositive of the case. On the district court's suggestion, Defendant entered a new conditional plea of no contest in the district court, reserving the right to appeal the denial of the motion to suppress to this Court. The district court also entered a judgment and sentence on the plea which was the same as that entered by the magistrate court. We accepted these documents as the basis of this appeal and assigned the case to the general calendar, asking the parties to brief the procedural issue in the case.

ISSUE ONE: Proper procedure for obtaining a final, appealable order from a magistrate court appeal

{6} In the present case, the magistrate court had original jurisdiction because Defendant was charged with a petty misdemeanor. NMSA 1978, § 35-3-4(A)(1985) (conferring magistrate jurisdiction). Defendant moved for suppression of evidence of the marijuana, arguing that it was obtained through an illegal search. See Rule 6-304(C)(1) NMRA 2004 (permitting persons aggrieved by a search and seizure to move for suppression in the magistrate court). When that motion was denied, Defendant entered a no contest plea on the condition that she could appeal the decision on the motion to suppress.

a. Conditional pleas in magistrate court

{7} A voluntary no contest plea ordinarily operates as a waiver of the right to appeal. See State v. Hodge, 118 N.M. 410, 414, 882 P.2d 1, 5 (1994). However, New Mexico recognizes the conditional plea as the "proper procedure to enable a defendant to reserve a significant pretrial issue for appeal in a case in which conviction seems certain unless the defendant prevails on the pretrial issue." Id. at 416, 882 P.2d at 7. A defendant enters a conditional plea by (1) preserving the error through a pretrial motion, (2) obtaining consent of the prosecution, and (3) obtaining approval of the court. Id. Appellate courts can recognize a conditional plea without written evidence thereof when the record reveals that the defendant has fulfilled the spirit of the rule by meeting these three requirements. Id. at 417, 882 P.2d at 8.

{8} While our rules have codified the conditional plea in district court and for certain offenses in metropolitan court, New Mexico does not have a rule formally codifying the conditional plea in magistrate court. See Rule 5-304(A)(2) NMRA 2004 (conditional plea in district court); Rule 7-502(A)(3) NMRA 2004 (conditional plea for offenses tried on the record in metropolitan court); Rule 6-502(A) NMRA 2004 (pleas in magistrate court). We do not read this as a prohibition against conditional pleas in magistrate court, especially in light of our courts' general approval of conditional pleas as an efficient use of court resources. See Hodge, 118 N.M. at 416,882 P.2d at 7. It is likely that the conditional plea procedure was not written into the magistrate court rules because appeals from magistrate court, as well as appeals from cases in metropolitan court, except those involving domestic violence and driving while intoxicated, are tried de novo. Rules 6-703(J); 7-703(J) NMRA 2004. However, we see no reason why the same benefits of efficiency and conservation of resources should not be obtainable in de novo appeals from magistrate court. Conditional pleas in magistrate court should meet the same requirements of issue preservation and reservation, prosecutorial consent, and court approval as those in district and metropolitan courts. Then, whatever issue is reserved should be heard de novo. While there may be cases, as here, in which the State and the defendant agree orally that a conditional plea has been entered, we note that a written conditional plea is preferable in magistrate court because there is no formal record of proceedings to facilitate appellate review.

b. Procedure for appeals following conditional pleas in magistrate court

{9} Generally, when a defendant has been convicted of a crime in magistrate court, he or she has 15 days to appeal to the district court. Rule 6-703(A). The district court hears the appeal de novo. Rule 6-703(J). The district court then enters a judgment or order disposing of the appeal, which may be accompanied by a formal or memorandum opinion. Rule 6-703(O). The parties may appeal the decision of the district court to this Court at this point. Rule 6-703(Q). After the district court issues an order, if there is no motion for rehearing after 15 days, Rule 6-703(O)(2), and no appeal after 30 days, Rule 12-201(A)(2) NMRA 2004, the district court issues a mandate to the magistrate court to enforce the district court's judgment. Rule 6-703(P). If the parties appeal the district court's decision, the district court does not issue a mandate to the magistrate court until the final disposition of the appeal. Rule 6-703(O)(3). On remand, the magistrate court proceeds with the case in keeping with the mandate of the district court.

{10} The mechanics of this process easily adapt to a case involving a conditional plea. In magistrate court, the defendant may enter a conditional plea of guilty or no contest, reserving one or more issues for appeal. The magistrate court then enters a judgment and sentence that embodies the provisions of the plea agreement. Rule 6-502(D)(3) (plea agreement procedure in magistrate court). The judgment should also expressly set out the issues reserved for appeal. See Form 9-408C NMRA 2004 (conditional plea). The defendant has 15 days to file his or her notice of appeal to the district court. The district court hears only the matters reserved, and it hears these de novo. The district court then issues an order resolving the matters before it. For example, on a motion to suppress, if the court rules in the defendant's favor, it will enter an order granting the motion to suppress; if not, it will enter an order denying it and, as it has ruled on all...