State v. Dorais

Decision Date21 May 2014
Docket NumberNo. 32,235.,32,235.
Citation370 P.3d 771
Parties STATE of New Mexico, Plaintiff–Appellee, v. Brian M. DORAIS, Defendant–Appellant.
CourtCourt of Appeals of New Mexico

Gary K. King, Attorney General, Yvonne M. Chicoine, Assistant Attorney General, Santa Fe, NM, for Appellee.

Dan Cron Law Firm, P.C., Kitren Fischer, Dan Cron, Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Brian Dorais (Defendant) was arrested in 2006 for driving under the influence of intoxicating liquor and/or drugs. Convicted after a jury trial in magistrate court, he timely appealed to the district court. After a trial de novo, he was convicted again and, in May 2008, sentenced to ninety days of incarceration and five years of probation. Defendant did not file a notice of appeal from the 2008 judgment. Four years later, Defendant was arrested again and the State sought to revoke his probation. After a hearing, however, the parties agreed that Defendant should have originally been sentenced to only three years of probation. As a result, the State dismissed the motion for revocation of probation and the district court entered a "Stipulated Corrected Sentence" reflecting a probation period of three years. Defendant then filed a notice of appeal from the Stipulated Corrected Sentence. Defendant now argues that his constitutional right to confront witnesses was violated in his district court trial. He also argues that he was denied his right to a speedy trial and that Rule 6–506(B) NMRA —the "six month rule"—was violated.

{2} The State makes a number of arguments to the effect that the district court lacked jurisdiction to enter the Stipulated Corrected Sentence and that this Court lacks jurisdiction to hear this appeal. We do not address these arguments because we conclude that the Duran presumption permits us to review Defendant's claims of error in the lower courts. We affirm the district court's denial of Defendant's motions to dismiss on speedy trial and six month rule grounds. But, concluding that Defendant's confrontation rights were violated, we reverse and remand for a new trial.

I. DISCUSSION
A. This Court has Jurisdiction to Hear Defendant's Appeal

{3} Before we address Defendant's challenges to his conviction, we address the State's contention that this Court lacks jurisdiction to hear the appeal. The State's argument is based on the somewhat convoluted procedural history behind the appeal. Hence, we first outline that history.

{4} The first trial was held in magistrate court in August 2007. The second trial was held four months later in district court. At the sentencing hearing, the district court orally stated that it would sentence Defendant to thirty days in jail and three years of probation, but when the judgment and sentence was filed a month later, it reflected a sentence of ninety days in jail and five years of probation. No notice of appeal or affidavit of waiver of appeal was filed at that point. See Rule 5–702(B) NMRA ("defense counsel shall ... file with the court ... (1) a notice of appeal ...; or (2) an affidavit ... signed and sworn to by defendant and witnessed by counsel stating defendant's decision not to appeal").

{5} Almost four years later, Defendant was arrested for driving while intoxicated and the State filed a motion to revoke probation. Defendant denied the probation violation and argued that the judgment and sentence did not reflect the district court's oral sentence of three years of probation. The district court scheduled a hearing for April 30, 2012. On the date of the hearing, however, the State dismissed the probation violation, stating that "[t]he probationary period for this matter has expired, and the act for which the State filed the motion to revoke probation ... was committed subsequent to the expiration of probation." The same day, the district court issued an order of release and a "Stipulated Corrected Sentence." The Stipulated Corrected Sentence was substantially the same as the original judgment and sentence, except that the term of incarceration was thirty days and the period of probation was three years, consistent with the district court's oral sentence four years earlier. The district court also remanded the case to the magistrate court "with instructions to close the file on this matter [,]" stating that "[t]he probationary time has expired on the sentence passed by this [c]ourt in this matter." Defendant filed a notice of appeal to the Court of Appeals within thirty days of the entry of the Stipulated Corrected Sentence.

{6} The State focuses on the fact that Defendant appealed from the Stipulated Corrected Sentence entered four years after the original judgment and argues that this Court lacks jurisdiction over the appeal for four reasons. First, the district court itself lacked jurisdiction to issue the Stipulated Corrected Sentence under the rules of criminal procedure and therefore that action was void. See Rule 5–801(A), (B) NMRA (stating the rules for correction of an illegal sentence and modification of a sentence); State v. Lucero, 2001–NMSC–024, ¶ 7, 130 N.M. 676, 30 P.3d 365 (stating that the "time requirement for the filing of a motion to modify a sentence is jurisdictional"). Second, appeal of the Stipulated Corrected Sentence is moot "because Defendant has fully served his term of incarceration and probation regardless of [which] judgment and sentence ... controls." Third, the Stipulated Corrected Sentence did not render Defendant an aggrieved party because Defendant was not harmed or prejudiced by the corrected sentence. Fourth, neither the district court's exercise of personal jurisdiction over Defendant nor any error in the district court renders an appeal from the original judgment and sentence timely. These arguments depend, for the most part, on analysis of the rules governing modification of sentences under Rule 5–801 as well as New Mexico case law evincing an interest in finality and clarity of judgments. See, e.g., Montoya v. Ulibarri, 2007–NMSC–035, ¶ 29, 142 N.M. 89, 163 P.3d 476 (recognizing the public interest in finality of judgments); State v. Soutar, 2012–NMCA–024, ¶ 13, ––– N.M. ––––, 272 P.3d 154 (stating that an oral sentence is not a final order); Rule 5–801(A), (B). We need not enter the thicket presented by these arguments, however, because we conclude that the presumption of ineffective assistance of counsel set out in State v. Duran permits this Court to address the merits of Defendant's appeal. 1986–NMCA–125, 105 N.M. 231, 731 P.2d 374.

{7} In Duran, this Court created a conclusive presumption of ineffective assistance of counsel "where defense counsel fails to timely file either a notice of appeal or an affidavit of waiver of appeal [as] required by [Rule 5–702(B) ]." Duran, 1986–NMCA–125, ¶ 3, 105 N.M. 231, 731 P.2d 374. When the presumption applies, this Court may hear an appeal on the merits notwithstanding the untimely filing of the notice of appeal. Id. ¶ 6. Since Duran, the presumption has been applied "routinely" to reach the merits of untimely appeals. State v. Vigil, 2014–NMCA––––, ––– N.M. ––––, 336 P.3d 380, ¶ 7, 2014 WL 982513 (No. 32,166, Mar. 12, 2014). As noted, Defendant here filed neither an appeal nor an affidavit of waiver after the original judgment and sentence was entered. Nor did Defendant's counsel file an affidavit stating that Defendant had been advised of his right to appeal and refused to file a notice of appeal or affidavit of waiver, which would have prevented a conclusion that the attorney was ineffective. See Duran, 1986–NMCA–125, ¶ 4, 105 N.M. 231, 731 P.2d 374 (stating that an attorney may file an affidavit to avoid being "faced with a ‘Hobson's choice’ of filing a frivolous appeal or facing the consequences of being labeled as ‘ineffective’ "). Therefore, the essential conditions for applying the Duran presumption have been met. But does the presumption still apply after four years of inaction by Defendant? We conclude that it does for three reasons.

{8} The first and foremost reason that the passage of time alone does not prevent application of the Duran presumption is based on the fundamental premise of that case: that the rights implicated by the presumption—the right to appeal and the right to effective assistance of counsel—protect a defendant's fundamental liberty interest in a fair trial. See State v. Leon, 2013–NMCA–011, ¶ 17, ––– N.M. ––––, 292 P.3d 493 (stating that the "guiding factor" behind cases extending the Duran presumption is the presence of a "fundamental liberty interest, in combination with circumstances in which a defendant has not waived his right to appeal"). This interest is no less significant after the deadline for appeal than it was before the deadline, nor does it diminish over time. Cf. State v. Romero, 1966–NMSC–126, ¶ 24, 76 N.M. 449, 415 P.2d 837 ("It is only logical that a void conviction cannot be vitalized by the lapse of time." (discussing timing requirements for Rule 1–060(B) NMRA motions for relief from judgment)).

{9} Second, in adopting the conclusive presumption, the Duran court declined the state's invitation to set an "outside time limit" on application of the presumption. 1986–NMCA–125, ¶¶ 5, 6, 105 N.M. 231, 731 P.2d 374 (choosing not to adopt an outside time limit on the presumption pursuant to the State's argument). In addition, the court noted that "there have been cases reinstated on our docket by the federal courts or by our [S]upreme [C]ourt because defendants have, in factual hearings held years after the appeal should have been taken, established their entitlement to delayed appeals. These cases sometimes take years to reach us." Id. ¶ 5. Thus, the Duran holding—which has been "firmly rooted in this State's jurisprudence" for almost thirty years—itself contemplated the possibility of encompassing within the presumption appeals filed years beyond the deadline. State v. Cannon, 2014–NMCA–058, ¶ 9, ––– N.M. ––––, 326 P.3d 485, ...

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