State v. House

• Decision Date: 28 March 1996
• Docket Number: No. 16638,16638
• Citation: 1996 NMCA 52,918 P.2d 370,121 N.M. 784
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 370

918 P.2d 370

121 N.M. 784

STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.

No. 16638.

Court of Appeals of New Mexico.

March 28, 1996.

Certiorari Denied May 29, 1996.

[121 N.M. 785] Tom Udall, Attorney General, Daniel F. Haft, Ass't Attorney General, Santa Fe, for Appellee.

Ray Twohig, Ray Twohig, P.C., Albuquerque, for Appellant.

OPINION

PICKARD, Judge.

1. The trial court denied Defendant's request for bail pending appeal of his convictions for driving while intoxicated (DWI) (second offense), reckless driving, great bodily injury by vehicle (alternatively by reckless driving or DWI), and four counts of vehicular homicide (alternatively by reckless driving or DWI). Defendant has filed a motion in this Court to review conditions of release pursuant to SCRA 1986, 12-205(B) (Repl.1992). This case presents us with an opportunity to determine the constitutionality of NMSA 1978, Section 31-11-1(C) (Cum.Supp.1995), the appeal-bond statute, and to decide how it should be interpreted.

The Appeal-Bond Statute and the Appeal-Bond Rule

2. Section 31-11-1(C) provides as follows:

If a defendant is convicted of a noncapital offense other than a violent offense [as defined in subsection D of this statute] and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:

(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if releases; and

(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

3. SCRA 1986, 5-402(C) (Repl.1992) of the District Court Rules of Criminal Procedure states in pertinent part:

Release after sentencing. After imposition of a judgment and sentence, the court, upon motion of the defendant, may establish conditions of release pending appeal or a motion for new trial. The court may utilize the criteria listed in Paragraph B of Rule 5-401, and may also consider the fact of defendant's conviction and the length of sentence imposed. The defendant shall be detained unless the district court after a hearing determines that the defendant is not likely to flee and does not pose a danger to the safety of any other person or the community if released.

4. District Court Judge Blackmer found by clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety of any other person or the community if he is released pending appeal. Judge Blackmer also found that Defendant's appeal is not for the purpose of delay. These findings satisfy all but one element of Section 31-11-1(C) and SCRA 5-402(C)--the requirement of Section 31-11-1(C)(2) that the trial court find that the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial. Judge Blackmer's finding against Defendant on this component was the sole reason for his decision to deny bail pending appeal.

5. Defendant contends that Section 31-11-1(C)(2) is not applicable because it unconstitutionally intrudes upon the judicial branch's power to prescribe rules of judicial procedure. See generally N.M. Const. art. III, § 1 (separation of powers of the government); State ex rel. Anaya v. McBride, 88 N.M. 244, 246, 539 P.2d 1006, 1008 (1975) ("Certainly statutes purporting to regulate practice and procedure in the courts cannot be made binding, for the constitutional power is vested exclusively in this court."). Defendant argues that SCRA 5-402(C) alone is controlling and that he must be released pending appeal because Judge Blackmer found that he met the requirements of the rule promulgated by our Supreme Court. We analyze this issue mindful of Defendant's burden to demonstrate the invalidity of the statute. See State v. Castleman, 116 N.M. 467, 470, 863 P.2d 1088, 1091 (Ct.App.), cert. quashed, 115 N.M. 796, 858 P.2d 1275 (1993).

6. In 1988, New Mexico voters removed entirely any constitutional right to post-conviction bail through a constitutional amendment which provides that "[a]ll persons shall, before conviction be bailable by sufficient sureties, except for capital offenses." N.M. Const. art. II, § 13 (emphasis added). That same year the legislature enacted Section 31-11-1 in its present form, denying the right to bail pending appeal for those convicted of certain offenses and granting a limited and conditional right to bail for those convicted of other offenses, including the offenses involved in this case. Section 31-11-1(C) is not inconsistent with Article II, Section 13. In fact, the legislative creation of that limited and conditional right to bail appears to be a new right, not provided under the New Mexico Constitution. Thus, the statute appears substantive in nature. See Cruz v. Liberty Mut. Ins. Co., 119 N.M. 301, 303, 889 P.2d 1223, 1225 (1995) (citing Gray v. Armijo, 70 N.M. 245, 248, 372 P.2d 821, 823 (1962)). It is not the province of New Mexico courts to invalidate substantive policy choices made by the legislature. Eturriaga v. Valdez, 109 N.M. 205, 209, 784 P.2d 24, 28 (1989).

7. Defendant relies on Justice Montgomery's dissent in Maples v. State, 110 N.M. 34, 791 P.2d 788 (1990), for the proposition that the issue as to whether a statute or a court rule should prevail "should be decided by referring to the purpose of the particular statute and the extent of intrusion upon the courts' ability to discharge their functions, not by categorizing the rule as either 'substantive' or 'procedural.' " Id. at 39, 791 P.2d at 793 (Montgomery, J., dissenting). For the following reasons, we believe the appeal-bond statute does not unduly burden or interfere with our courts' responsibilities, and thus, even under Justice Montgomery's analysis, the statute is constitutional.

8. Defendant asserts that the purpose of bail is (1) to preserve the court's jurisdiction over a defendant and (2) to assure that a fair process is followed during the course of the appeal. We agree that the purposes behind setting bail include assurance that the defendant will appear. See State v. Montoya, 116 N.M. 297, 307-08, 861 P.2d 978, 988-89 (Ct.App.), cert. denied, 116 N.M. 364, 862 P.2d 1223 (1993). However, Section 31-11-1(C), by limiting those situations in which a trial court may even consider setting bail pending appeal, is designed to accomplish the additional goal of preserving the effectiveness and efficiency of the criminal justice system in the face of convicted defendants' efforts to delay statutory punishment. Cf. State v Gonzales, 105 N.M. 238, 243, 731 P.2d 381, 386 (Ct.App.1986) ("There is a presumption of rectitude and regularity in the proceedings below."), cert. quashed, 105 N.M. 211, 730 P.2d 1193 (1987); In re Estate of Martinez, 96 N.M. 619, 621, 633 P.2d 727, 729 (Ct.App.) ("justice delayed is justice denied"), cert. denied, 97 N.M. 140, 637 P.2d 571 (1981).

9. That goal of effective and efficient administration of justice is one which the judicial branch typically pursues. See generally State v. Jones, 39 N.M. 395, 398, 48 P.2d 403, 405 (1935) (due administration of justice means due conviction and punishment or due acquittal and discharge as justice may require plus the due course of proceedings); State v. Bourland, 116 N.M. 349, 350-51, 862 P.2d 457, 458-59 (Ct.App.) (because plea bargains involve the integrity of the criminal justice system and thus involve the court, neither the state nor the defendant should rely on the bargain until the court has approved it), cert. denied, 116 N.M. 364, 862 P.2d 1223 (1993). In our view, Section 31-11-1(C)(2) poses no threat to New Mexico courts' abilities to carry out their constitutional duties in that regard. In fact, additional preliminary attention to the merits of an appeal may enhance our courts' ability to perform their essential functions. Cf. State ex rel. Bliss v. Greenwood, 63 N.M. 156, 160-63, 315 P.2d 223, 226-27 (1957) (statute limiting amount of fine for contempt without a jury substantially impaired the power of the courts to punish for contempt).

10. In sum, we hold that Section 31-11-1(C)(2) does not violate the separation of powers. We turn next to the interpretation and application of that statute.

Interpretation of Section 31-11-1(C)(2)

11. No reported New Mexico case has interpreted the "substantial question" element of Section 30-11-1(C)(2). However, the language of subsection (C), which is part of the amendments enacted by the legislature in 1988, is practically identical to that contained in 18 U.S.C.A. § 3143(b) (West 1985 & Supp.1995). Therefore, cases construing the federal statute are persuasive authority. See State v. Anderson, 110 N.M. 382, 383, 796 P.2d 603, 604 (Ct.App.), cert. denied, 109 N.M. 232, 784 P.2d 419 (1989).

12. Defendant has urged us to interpret "substantial question" in light of the analysis announced in United States v. Miller, 753 F.2d 19, 23 (3d Cir.1985) (A substantial question is "one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful."). The Third Circuit itself refined the Miller analysis to make it clear that an issue does not become substantial simply because there exists no controlling precedent. See United States v. Smith, 793 F.2d 85, 88-90 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 832 (1987). The Third Circuit now uses a historically-based "fairly debatable" interpretation of the term "substantial." Id. at 89.

13. The Tenth Circuit considered the Miller approach in United States v. Affleck, 765 F.2d 944, 952-53 (10th Cir.1985), and chose to apply a "somewhat stricter" interpretation than Miller of what constitutes a substantial question of law or fact in view of the intent of the Federal Bail Reform Act to make the standards for granting appeal more stringent than the...