State v. Vigil

• Decision Date: 12 March 2014
• Docket Number: 32,166.,No. 34,668.,34,668.
• Citation: State v. Vigil, 336 P.3d 380 (N.M. App. 2014)
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Charles VIGIL, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

336 P.3d 380

STATE of New Mexico, Plaintiff–Appellee

v.Charles VIGIL, Defendant–Appellant.

32,166.

No. 34,668.

Court of Appeals of New Mexico.

March 12, 2014.

Certiorari Granted, Sept. 26, 2014,

Gary K. King, Attorney General, Corinna Laszlo–Henry, Assistant Attorney General, Santa Fe, NM, for Appellee.

Lisa Torraco, Albuquerque, NM, for Appellant.

OPINION

FRY, Judge.

{1}DefendantCharles Vigil appeals from the district court's review of his on-record appeal from metropolitan court.On appeal to this Court, Defendant challenges the admission of an officer's testimony referencing a police report as violating the rules of evidence and his right to confrontation.This Court became aware of deficiencies with Defendant's notice of appeal when the matter came before the Court for calendaring.The Court ordered the parties to brief the issue of whether the conclusive presumption of ineffective assistance of counsel established in State v. Duran,1986–NMCA–125, ¶¶ 4–6, 105 N.M. 231, 731 P.2d 374, should apply to counsel's failure to file a timely notice of appeal from the district court's on-record review of a metropolitan court decision.¹We hold that a conclusive presumption of ineffective assistance of counsel applies to counsel's failure to file a timely notice of appeal following the district court's on-record review of a metropolitan court decision.As to Defendant's claim of error, we affirm.

BACKGROUND

{2}Defendant was convicted of driving while intoxicated (DWI), first offense, and speeding, following a bench trial in metropolitan court.At trial, Albuquerque Police Department OfficerKelly Enyart testified that she investigated and arrested Defendant for DWI.Officer Enyart, however, could not recall portions of Defendant's performance of the field sobriety tests that she administered during her DWI investigation.Over Defendant's objection, the metropolitan court judge allowed Officer Enyart to read from her police report what she had recorded concerning those portions of the field sobriety tests she could not recall.Officer Enyart's report itself was not admitted into evidence.The metropolitan court judge found Defendant guilty, based in part on Officer Enyart's testimony regarding Defendant's performance of the field sobriety tests, including what Officer Enyart had read from her police report.

{3}Defendant appealed the metropolitan court's decision by filing a timely notice of appeal in district court pursuant to Rule 7–703(A) NMRA.The district court conducted an on-record review of Defendant's appeal.On April 19, 2012, the district court issued a memorandum opinion affirming Defendant's conviction.Pursuant to NMSA 1978, Section 39–3–3(A)(1)(1972), andRule 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.Defendant's notice of appeal was therefore due on or before Monday, May 21, 2012.Defendant filed an untimely notice of appeal with the district court on Friday, May 25, 2012.

DISCUSSION

I.Defendant's Untimely Appeal

{4}Defendant asks this Court to apply a conclusive presumption of ineffective assistance of counsel and address the merits of his appeal.In response, the State challenges this Court's jurisdiction to entertain Defendant's appeal, regardless of its timeliness, and opposes extending a conclusive presumption of ineffective assistance of counsel to untimely appeals from the district court's on-record review of a metropolitan court decision.As an initial matter, we note that the State's jurisdictional argument was made prior to this Court's issuing its opinion in State v. Carroll,20–– –NMCA– ––––, ––– P.3d ––––, 2013 WL 5758055 (No. 32,909, Oct. 21, 2013).In Carroll,we held that NMSA 1978, Section 34–5–8(A)(3)(1983) vests this Court with jurisdiction to review the on-record appellate decisions of the district court in criminal cases.Id.¶ 5(“[T]his Court has been vested with jurisdiction over appeals in all criminal actions with the limited exception of those where a sentence of death or life imprisonment is imposed.Had the Legislature intended to limit our jurisdiction to preclude review of the on-record appellate decisions of the district court, we assume it would have explicitly done so.”).Given our recent decision in Carroll,we conclude that the State's challenge to this Court's jurisdiction is unavailing.

{5} Returning to the State's contention that a conclusive presumption of ineffective assistance of counsel should not apply in this case, the State advances multiple arguments against extending the Duran presumption.The State contends that the Duran presumption should only apply where a criminal defendant has both an appeal as of right and a right to counsel, which the State argues do not exist in appeals such as this.The State further contends that applying a conclusive presumption of ineffective assistance of counsel to an untimely appeal to this Court from the district court's on-record review of a metropolitan court decision would be an inappropriate extension of Duran.

{6} Before addressing the State's arguments, we observe that Defendant has not responded in any detail to those arguments.Despite the absence of developed arguments by the defense, we have undertaken our own analysis of the issue, given its quasi-jurisdictional nature.SeeState v. McNeece,1971–NMCA–012, ¶ 2, 82 N.M. 345, 481 P.2d 707(explaining that “lack of jurisdiction at any stage of a proceeding is a controlling consideration to be resolved before going further” and that the issue may be raised sua sponte (alteration, internal quotation marks, and citation omitted)).

A.The Duran Presumption

{7} The timely filing of a notice of appeal is a mandatory precondition to this Court's exercise of jurisdiction.SeeTrujillo v. Serrano,1994–NMSC–024, ¶ 14, 117 N.M. 273, 871 P.2d 369.Accordingly, “we will excuse an untimely appeal only in exceptional circumstances beyond the control of the parties, which we have determined would include errors on the part of the court.”State v. Dominguez,2007–NMCA–132, ¶ 10, 142 N.M. 631, 168 P.3d 761.In addition, this Court has routinely excused untimely and improperly filed notices of appeal in criminal appeals where the defendant is represented by counsel.

{8} In Duran,this Court established a conclusive presumption of ineffective assistance of counsel when a notice of appeal from a criminal conviction obtained in district court is untimely filed.1986–NMCA–125, ¶ 4, 105 N.M. 231, 731 P.2d 374.Our holding in Duran was premised on our concern that an appeal as of right following conviction “is established precisely to assure that only those who are validly convicted have their freedom drastically curtailed” and that the right to appeal not be extinguished “because another right of the appellant—the right to effective assistance of counsel—has been violated.”Evitts v. Lucey,469 U.S. 387, 399–400, 105 S.Ct. 830, 83 L.Ed.2d 821(1985), cited inDuran,1986–NMCA–125, ¶ 3, 105 N.M. 231, 731 P.2d 374.

B. Duranand the Right to Appeal

{9}The State contends that the Duran presumption should not apply because there is no appeal as of right to this Court from a district court's on-record review of a metropolitan court decision.The State contends that it is implicit from prior cases applying Duran that a conclusive presumption of ineffective assistance of counsel requires that the defendant possess an appeal as of right.This Court recently addressed this issue in Carroll.In Carroll,we held that Section 39–3–3(A)(1) provides criminal defendants with the right to appeal a district court's on-record review of a metropolitan court decision.Carroll, 20–– –NMCA– ––––, ¶¶ 7–9, ––– P.3d ––––(“[W]e conclude that Section 39–3–3(A)(1) is intended to include a defendant's right to appeal a district court's review of an on-record metropolitan court decision.”).Thus, to the extent the State contends that cases applying the Duran presumption have required there be an appeal as of right for the presumption to apply, we rely on our holding in Carroll.Consequently, the State's argument that Duran should not apply because Defendant does not possess an appeal as of right is unavailing.

C. Duranand the Right to Counsel

{10}The State also argues that a conclusive presumption of ineffective assistance of counsel cannot lie where a right to counsel does not exist.The State contends that, because Duran relied on federal due process rights in creating the conclusive presumption of ineffective assistance of counsel, any extension of Duran is limited to “the boundaries of that right ... so clearly defined by United States Supreme Court precedent.”According to the State, federal law provides that a defendant only has a right to the effective assistance of counsel in his or her “first appeal as of right.”SeeEvitts,469 U.S. at 393–94, 105 S.Ct. 830(recognizing that where a state affords a right to appeal “to make that appeal more than a ‘meaningless ritual’ ”the state must “supply[ ] an indigent appellant in a criminal case with an attorney [,]” but noting that “[t]his right to counsel is limited to the first appeal as of right”);Pennsylvania v. Finley,481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539(1987)(“Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.”).Consequently, we understand the State to argue that the Duran presumption would apply to an appeal taken from the metropolitan court to the district court, but that the presumption should not apply to a second appeal taken from the district court to this Court.While we agree with the State's assertion that the extension of a conclusive presumption of ineffective assistance of counsel should only occur where a right to counsel exists, seeState v. Leon,2013–NMCA–011, ¶ 9, 292 P.3d 493(stating that “the presumption can only apply in situations where a defendant...