State v. Leon

Citation292 P.3d 493
Decision Date02 January 2013
Docket NumberNo. 31,067.,31,067.
PartiesSTATE of New Mexico, Plaintiff–Appellee, v. Mario LEON, Defendant–Appellant.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Gary K. King, Attorney General, Olga Serafimova, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Eleanor Brogan, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VANZI, Judge.

{1} Defendant Mario Leon appeals the district court's order revoking his probation. This case requires us to decide whether (1) Defendant's untimely appeal can be heard, (2) the conditions of probation set by the New Mexico Corrections Department (Corrections Department) were lawfully imposed on Defendant and were reasonably related to Defendant's rehabilitation, (3) there was sufficient evidence to support the revocation of Defendant's probation, and (4) Defendant's sentence was appropriately enhanced under the Habitual Offender Statute. We conclude that we can consider Defendant's appeal despite the fact that it was untimely filed. However, finding no error in the district court's rulings, we affirm.

BACKGROUND

{2} After entering a plea of no contest, Defendant was convicted of one count of contributing to the delinquency of a minor, in violation of NMSA 1978, Section 30–6–3 (1990), and one count of selling or giving alcoholic beverages to a minor, contrary to NMSA 1978, Section 60–7B–1(A)(1) (2004). On May 14, 2008, Defendant was sentenced to three years of incarceration followed by one year of parole. The district court partially suspended Defendant's sentence and entered an order placing him on supervised probation and listing conditions of that probation. These conditions included that Defendant not possess alcoholic beverages, that he complete alcohol and substance abuse counseling, and that he comply with any other reasonable condition specified by the probationdivision of the Corrections Department.

{3} Defendant had a prior felony conviction for a sex offense. As a result of that conviction and pursuant to state law, Defendant is a registered sex offender. At the direction of his probation officer and pursuant to a Corrections Department policy regarding offenders with previous sex offenses, Defendant signed the New Mexico Corrections Department Sex Offender Supervision Behavioral Contract (SOSBC) and was placed under the supervision of the sex offender unit. This level of supervision required, in part, that Defendant receive permission from his probation officer before missing any counseling session and that he obtain written approval from his probation officer before having unsupervised contact with children under eighteen.

{4} On August 25, 2008, Defendant's probation officer filed a preliminary probation violation report after visiting Defendant's home and observing alcohol and empty alcohol containers there. Between September 19, 2008, and January 14, 2009, Defendant's probation officer filed three more preliminary probation violation reports based on Defendant's failure to timely re-register as a sex offender and for his failure to attend two mandated counseling sessions without notifying the officer. On November 23, 2009, Defendant was arrested for violating the conditions of his probation after he allegedly had unsupervised contact with children under eighteen without prior written permission of his probation officer. At that time, Defendant's probation officer filed a report of violation and recommended that his probation be revoked.

{5} On December 11, 2009, the State filed a petition to revoke Defendant's probation based on all of the alleged probation violations outlined in the probation officer's reports. The State also filed a supplemental criminal information stating that due to Defendant's prior conviction, Defendant is a habitual offender, and his sentence should be enhanced pursuant to the Habitual Offender Statute, NMSA 1978, § 31–18–17(A) (2003). Defendant moved to dismiss, and the district court denied the motion. The district court then held a hearing to determine whether Defendant had violated the conditions of his probation. After taking testimony, the district court concluded that Defendant had violated the terms and conditions of his probation as charged by the State. The court revoked Defendant's probation and, applying the habitual offender statute, sentenced Defendant to a total term of five years followed by a period of supervised probation. Sixty-two days after the entry of the order, Defendant filed a notice of appeal.

DISCUSSION

{6} Before addressing the merits of Defendant's case, we must first decide whether this Court can hear Defendant's untimely appeal. Concluding that we can consider his appeal, we then address whether the conditions of Defendant's probation were reasonably related to his rehabilitation and were lawfully imposed as part of the court's order. We then examine the record to determine whether the revocation of Defendant's probation was supported by sufficient evidence and whether the enhancement of Defendant's sentence under the Habitual Offender Statute was proper.

Defendant's Untimely Appeal

{7} Pursuant to NMSA 1978, Section 39–3–3(A)(1) (1972), and Rule 12–201(A)(2) NMRA, a criminal defendant must file his notice of appeal from the final judgment of a district court within thirty days of the entry of that judgment. The timely filing of a notice of appeal is a mandatory precondition to this Court's exercise of jurisdiction. Trujillo v. Serrano, 117 N.M. 273, 277–78, 871 P.2d 369, 373–74 (1994). The district court may grant an extension of time for an appellant to file a notice of appeal upon a showing of good cause if the request is filed prior to the expiration of the time for filing, or upon a showing of excusable neglect if filed outside of that period but within sixty days from the entry of the appealable order. Rule 12–201(E)(1), (2).

{8} There is no dispute that Defendant's notice of appeal was filed in the district court more than sixty days after the entry of the order revoking his probation and was thus untimely. Furthermore, Defendant's motion to accept the appeal as timely was filed more than sixty days after the district court's order revoking his probation; therefore, the district court was without jurisdiction to grant Defendant's motion to extend his time for filing. SeeRule 12–201(E)(2), (4). Nevertheless, Defendant urges us to consider his appeal on the grounds that the untimely filing of a notice of appeal from an order revoking probation is per se ineffective assistance of counsel.

{9} In State v. Duran, 105 N.M. 231, 232, 731 P.2d 374, 375 (Ct.App.1986), this Court first established a conclusive presumption of ineffective assistance of counsel when a notice of appeal from a criminal conviction is untimely filed. As a result, in that case, we treated the defendant's appeal as if timely filed and reached the merits of the defendant's arguments. Here, Defendant asks us to extend the presumption of ineffective assistance of counsel to the untimely filing of a notice of appeal from an order revoking Defendant's probation. As the State points out, however, a claim for ineffective assistance of counsel is based on a defendant's right to counsel in the first place. See Evitts v. Lucey, 469 U.S. 387, 396 n. 7, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); State ex rel. Children, Youth & Families Dep't v. Amanda M., 2006–NMCA–133, ¶ 19, 140 N.M. 578, 144 P.3d 137. The State argues that a defendant has no right to counsel in an appeal from the revocation of probation and, thus, there can be no ineffective assistance. Because the presumption can only apply in situations where a defendant has a right to counsel, before we can make a determination of whether Defendant's untimely appeal was due to ineffective assistance of counsel, we must first determine whether Defendant had a right to counsel at all. For the reasons that follow, we conclude that Defendant had a right to counsel at his probation revocation proceedings and that the filing of the notice of appeal was that counsel's responsibility. Accordingly, we apply a conclusive presumption of ineffective assistance of counsel where the notice of appeal is untimely filed. We begin with three cases relevant to our decision.

{10} In Blea v. Cox, 75 N.M. 265, 267, 403 P.2d 701, 703 (1965) (per curiam), overruled on other grounds by State v. Mendoza, 91 N.M. 688, 579 P.2d 1255 (1978), our Supreme Court held that a defendant had a constitutional right to counsel at his hearing on the revocation of a suspended sentence. The Court concluded that failure to provide a defendant with counsel in that case constituted a violation of his constitutional rights. Id. In so doing, the Court stated that [t]he need for and right to be represented by counsel, unless intelligently and knowingly waived, is as much a requisite in a hearing seeking revocation of a suspended sentence as in the other mentioned stages of the proceedings.” Id. In its decision, the Court noted that this right was guaranteed by the Sixth Amendment of the federal constitution but that [a]side” from the federal right, “the guaranty that an accused shall have the right to appear and defend himself in person, and by counsel is likewise contained in Art. II, § 14 of the New Mexico Constitution.” Id. at 266, 403 P.2d at 702–03 (alteration, internal quotation marks, and citation omitted).

{11} After Blea was decided, the United States Supreme Court announced a more limited due process right to counsel in probation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 789–91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon, the Supreme Court considered “whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at [those] hearings.” Id. at 783, 93 S.Ct. 1756. Although the due process right was not found under...

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