State v. Richard ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,248
10 KEVIN LAMONT RICHARD,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Stephen Bridgforth, District Judge
14 Gary K. King, Attorney General
15 Margaret McLean, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender
19 Karl Erich Martell, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 SUTIN, Judge.
1 Defendant appealed from the district court’s order dismissing his appeal from
2 magistrate court for lack of jurisdiction. We issued a notice of proposed summary
3 disposition, proposing to reverse and remand for the district court to hold an
4 evidentiary hearing on the validity of the plea Defendant entered in magistrate court.
5 The State responded to our notice with a memorandum in opposition, directing this
6 Court to the district court’s finding that Defendant acknowledged there were no
7 constitutional infirmities surrounding his plea and arguing that no evidentiary hearing
8 is therefore necessary. [State’s MIO 2] Although the record indicated that Defendant
9 raised several constitutional arguments, we noted that Defendant did not challenge the
10 district court’s finding and neither party explained what Defendant argued at the
11 hearing on the State’s motion to dismiss. Consistent with our presumption of
12 correctness, we issued a second notice, presuming Defendant conceded there were no
13 constitutional problems with his plea at that hearing and proposed to affirm.
14 Defendant responded to our second notice, stating that the district court’s
15 finding was not supported by the facts and that the finding was language included in
16 an order submitted by the prosecutor. [Defendant’s MIO 3, 5] Defendant maintained
17 that defense counsel argued strenuously that the magistrate court violated his
18 constitutional rights by accepting and entering a plea that was not knowing,
19 intelligent, and voluntary. [Id.] We issued a third notice of proposed summary
2
1 disposition, noting that the record supports Defendant’s representations and the State
2 made no factual representations explaining what facts supported the district court’s
3 finding. We determined that under these circumstances there was record support for
4 Defendant’s claims and no factual dispute between the parties, and therefore summary
5 reversal was again appropriate.
6 The State has responded to our third notice, indicating that no opposition to the
7 proposed disposition will be filed and submitting that the appropriate remedy is a
8 remand to the district court for an evidentiary hearing to determine whether
9 Defendant’s plea in magistrate court was valid. [Response 1] We agree.
10 For the reasons stated in our first and third notices, we reverse the district
11 court’s order dismissing Defendant’s appeal and remand for the district court to hold
12 an evidentiary hearing and determine the validity of Defendant’s plea in magistrate
13 court. “If [after the hearing] the district court concludes that the plea is valid, then the
14 defendant is not an aggrieved party entitled to bring a de novo appeal to the district
15 court, and the district court must dismiss the appeal.” State v. Spillman,
16 2010-NMCA-019, ¶ 5, 147 N.M. 676, 227 P.3d 1058.
17 IT IS SO ORDERED.
18 __________________________________
19 JONATHAN B. SUTIN, Judge
20 WE CONCUR:
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1 _________________________________
2 CELIA FOY CASTILLO, Judge
3 _________________________________
4 RODERICK T. KENNEDY, Judge
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