5/27 - State Bar

Transcription

5/27 - State Bar

May 27, 2015 • Volume 54, No. 21
Inside This Issue
Table of Contents..................................................... 3
Appellate Practice Section: Brown Bag Lunch
with Justice Richard C. Bosson ............................. 4
Board of Bar Commissioners:
Appointment to DNA –
People’s Legal Services, Inc................................ 4
May 8 Meeting Summary.................................. 5
Criminal Law Section:
Isotopes Child Hunger Benefit.............................. 5
Summer Law Camp Inspires Middle School
Students of All Backgrounds to Pursue Higher
Education, by Denise M. Chanez.......................... 7
Clerk’s Certificates..................................................15
From the New Mexico Supreme Court
2015-NMSC-010, No. 33,967:
State v. Montoya.................................................17
From the New Mexico Court of Appeals
2015-NMCA-029, No. 32,161:
State v. Tejeiro.....................................................27
2015-NMCA-030, No. 33,136:
Dalton v. Santander Consumer USA, Inc......33
Rose by Julia Crooks (see page 3)
www.trulyjuliedesigns.com
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Bar Bulletin - May 27, 2015 - Volume 54, No. 21
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Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Maureen S. Moore, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
May 27, 2015, Vol. 54, No. 21
Notices .................................................................................................................................................................4
Summer Law Camp Inspires Middle School Students of All Backgrounds to
Pursue Higher Education, by Denise M. Chanez......................................................................................7
Legal Education Calendar..............................................................................................................................9
Writs of Certiorari .......................................................................................................................................... 11
Court of Appeals Opinions List.................................................................................................................. 14
Clerk’s Certificates.......................................................................................................................................... 15
Recent Rule-Making Activity...................................................................................................................... 16
Opinions
2015-NMSC-010, No. 33,967: State v. Montoya.......................................................................... 17
2015-NMCA-029, No. 32,161: State v. Tejeiro.............................................................................. 27
2015-NMCA-030, No. 33,136: Dalton v. Santander Consumer USA, Inc............................ 33
Advertising....................................................................................................................................................... 38
Meetings
State Bar Workshops
May
May
28
Natural Resources, Energy and
Environmental Law Section BOD,
Noon, via teleconference
27
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
29
Immigration Law Section BOD,
Noon, State Bar Center
30
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
June
June
2
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
3
Divorce Options Workshop
2
Health Law Section BOD,
7 a.m., via teleconference
3
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
3
Employment and Labor Law Section BOD,
Noon, State Bar Center
10
Children’s Law Section BOD,
Noon, Juvenile Justice Center
10
Taxation Section BOD,
11 a.m., via teleconference
24
25
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist: Julia Crooks was admitted to the Bar in October 2013 and was honored to be the inaugural law clerk of
Justice Barbara J. Vigil, followed by a clerkship with Judge Michael Vigil of the Court of Appeals. She currently does contract
work as a freelance attorney. Julia enjoys painting acrylic on canvas and drawing portraits in charcoal.
3
Notices
Professionalism Tip
Court News
Ninth Judicial District Court
With respect to the courts and other tribunals:
Announcement of Vacancy
A vacancy on the Ninth Judicial
District Court will exist in Curry and
Roosevelt counties as of July 1, upon the
retirement of Hon. Stephen K. Quinn.
The judicial vacancy is for Division 1,
general jurisdiction with a heavy criminal
docket. Further inquiries regarding the
details or assignment of this judicial
vacancy should be directed to the chief
judge or the administrator of the court.
The dean of the UNM School of Law,
designated by the New Mexico Constitution to chair the Appellate Court Judicial
Nominating Committee, solicits applications for this position from lawyers
who meet the statutory qualifications in
Article VI, Section 14 of the New Mexico
Constitution. Applications and qualification information for the position, may
be obtained from the Judicial Selection
website: http://lawschool.unm.edu/
judsel/application.php. The deadline for
applications is 5 p.m., June 8. Applicants
seeking information regarding election or
retention if appointed should contact the
Bureau of Elections in the Office of the
Secretary of State. The Judicial Nominating Committee will meet at 1:30 p.m. on
June 16 at the Curry County Courthouse,
700 N. Main St, Clovis, to evaluate the
applicants for this position. The Commission meeting is open to the public
and members of the public who want to
be heard about any of the candidates will
have an opportunity at that time.
State Bar News
Attorney Support Groups
• June 1, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
I will attempt to resolve, by agreement, my objections to matters contained in
my opponent’s pleadings and discovery requests.
• June 8, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• June 15, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Appellate Practice Section
Brown Bag Lunch with
Justice Richard C. Bosson
Justice Richard Bosson will join the
Appellate Practice Section and the Young
Lawyers Division for their next brown bag
lunch at 12:30 p.m. on June 5 at the State
Bar Center. Justice Bosson will be coming
directly from the annual Judicial Conclave
so he will have plenty to talk about.
Justice Bosson became a member of the
New Mexico Supreme Court in December
2002. Before that he served as a judge on the
New Mexico Court of Appeals, including
two years as Chief Judge (2001-02). Justice
Bosson received his juris doctor from
Georgetown University Law Center in 1969
and his Master’s Degree in Judicial Process
from the University of Virginia School of
Law in 1998. He is a founding member
of the Mexican American Legal Defense
and Education Fund in Albuquerque. In
1975 he spent a year in Colombia, South
America, as a recipient of a Latin American
Teaching Fellowship, sponsored by the
Fletcher School of Law and Diplomacy,
following which he worked with the N.M.
Attorney General’s Office in the Consumer
Protection Division and as director of the
Civil Division from 1976-78. Justice Bosson
was a senior partner of Bosson & Canepa,
P.A. in Santa Fe from 1981-94. During his
years as a private attorney, Justice Bosson
served as bond counsel for the State of
New Mexico and the City of Santa Fe; New
Mexico Commissioner of Banking; and a
member of the New Mexico Constitution
Revision Commission in 1994-95.
These meetings are informal and attendees are encouraged to bring their own
“brown bag” lunch. Space is limited, so
R.S.V.P. to [email protected].
Bankruptcy Law Section
Golf Tournament and Reception
The Bankruptcy Law Section Board invites its members to play in the 15th Annual
Golf Outing, noon on June 5 at the Canyon
Club, formerly the Four Hills Country Club,
in Albuquerque. Cost is $65 and includes a
round of golf, a cart and hors d’oeuvres. A
cash bar will be available. Non-golfing section members are encouraged to attend the
reception at 5 p.m. For more information or
to register, contact Gerald Velarde, 505-2480050 or [email protected] by June 1.
Board of Bar Commissioners
Appointment to DNA – People’s
Legal Services, Inc.
The Board of Bar Commissioners will
make two appointments to the DNA –
People’s Legal Services, Inc., Board for
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the
years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded.
Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who
have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits
will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by
Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and
will be destroyed by Order of the Court.
Court
10th Judicial District Court
County of Quay
575-461-2764
4
Exhibits/Tapes
Tapes in Domestic Matters
For Years
1995-1999
May Be Retrieved Through
July 22, 2015
two-year terms. Members who want to
serve on the board should send a letter
of interest and brief résumé by June 1 to
Executive Director Joe Conte, State Bar of
New Mexico, PO Box 92860, Albuquerque,
NM 87199-2860; fax to 828-3765; or email
to [email protected].
Meeting Summary
The Board of Bar Commissioners met
on May 8 at the State Bar Center. Action
taken at the meeting was as follows:
•Approved the Dec. 10, 2014, meeting
minutes as submitted;
•Accepted the March 2015 financials and
executive summaries;
•Referred a request from a member
to revisit the fee waiver policy to the
Bylaws and Policies Committee for a
recommendation;
•Approved purchasing CDs, rather
than participating in a liquid insured
deposits program, to protect funds over
$250,000;
•Approved making a payment of $50,000
toward the mortgage on the Bar Center
at this time and depending on cash
flow, another payment of $50,000 will
be made later in the year;
• D iscussed the YLD Budget and
expenses submitted in the amount
of $6,094 for a regional summit and
board meeting in Colorado and
approved reimbursement for all
allowable expenses pursuant to the
State Bar Travel and Reimbursement
Policy;
•Reported that 98 percent of dues have
been collected to date; we received
some complaints regarding the 3 percent credit card processing fee which
the Bar previously covered at a cost
of $60,000; the fee was passed on to
members this year, so the Bar didn’t
incur any of those expenses;
•Reported that the audit is in process
and will be finalized for the July Board
meeting;
•Received a report on the Executive
Committee meeting;
•Held an executive session to discuss a
personnel matter;
•Received a report from the Personnel
Committee and approved amendments
to the Unlawful Harassment Policy
regarding procedures, investigation and
remedial measures;
•Received a report from the Bar Foundation/CLE Planning Committee
and a proposal on a Legal Incubator
Pilot Project; more information on the
program will be provided at the July
meeting;
•
Referred a request from a member to
take a position on instant reciprocity
for lawyer spouses of military members to the Board of Bar Examiners;
and
•Discussed holding a half-day strategic
planning retreat possibly during the
Annual Meeting in Colorado Springs
and will explore further for availability
and cost.
Note: The minutes in their entirety will
be available on the State Bar’s website following approval by the Board at the July
10 meeting.
Committee on Women and
the Legal Profession
Golf Instruction Program
The Committee would like to hear
from you if you are interested in a golf instruction program. The “Get Golf Ready”
program consists of five golf clinics for
women who are interested in improving
their skills and those who have never tried
playing golf. Instruction will be at Sandia
Golf Club for one hour per week for five
weeks on a weekday afternoon, 4-5 p.m.
The cost will be approximately $125 per
person, including rental clubs if needed.
This program is not limited to attorneys.
If you are interested in participating, email
Jocelyn Castillo at jocelyn@moseslaw.
com.
Tee Times at Sandia Golf Club
The Committee on Women and the
Legal Profession has reserved weekly
tee times at Sandia Golf Club. Play nine
holes at 4 p.m. on Wednesday afternoons.
This invitation is not limited to attorneys
and is open to all women golfers. Cost is
$30 per person (includes cart, greens fee
and practice balls). To reserve a spot on
a particular day, email Jocelyn Castillo at
[email protected].
Criminal Law Section
See a Game, Help the Hungry
The Criminal Law Section invites its
members to the Isotopes Child Hunger
Benefit on June 20, with a canned food
drive for Roadrunner Food Bank, tailgate
party and ticket to the baseball game.
Details are available by contacting Spirit
Gaines, [email protected], by
June 5.
Featured
Member Benefit
Auto and Home Insurance
SBNM members receive an exclusive group
discount off already competitive rates, extra
savings for insuring both car and home, and
discounts based on driving experience, car
and home safety features and much more.
Contact Edward Kibbee,
(505) 323-6200 ext. 59184, or visit
www.libertymutual.com/edwardkibbee.
UNM
Law Library
Hours Through Aug. 16
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
10 a.m.–6 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closures
May 25: Memorial Day
July 4: Independence Day
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Assistance
5
Other Bars
School of Law Alumni
Association
Albuquerque Bar Association
Roswell Area Happy Hour
The New Mexico Hispanic Bar Association, New Mexico Women’s Bar
Association, State Bar Young Lawyer’s
Division and UNM School of Law Alumni
Association are sponsoring a happy hour
event from 5:30–7 p.m. on May 28 at The
Liberty, 312 N. Virginia Ave, in Roswell.
R.S.V.P. at lawschool.unm.edu/roswell or
contact Melissa Lobato at 505-277-1457
for more information.
New Mexico Law Review
‘Breaking Bad’ Subject
of Special Issue
The New Mexico Law Review has
dedicated a special issue to legal questions
raised by the hit TV series “Breaking Bad.”
Eight articles present “quasi-traditional legal analyses of criminal law, constitutional
law, business law, ethical responsibilities
and professional conduct of lawyers,”
said Editor-in-Chief Matthew Zidovsky.
Subscription to the Law Review is available at http://lawschool.unm.edu/nmlr/
subscriptions.php, and the individual
“Breaking Bad” articles will be posted at
http://lawschool.unm.edu/nmlr/current
-issue.php.
June Membership Luncheon
Features Dean David Herring
UNM School of Law Dean David Herring will present “Fundamental Shifts in
Legal Education: Opportunities to Lead,”
at the June 2 Albuquerque Bar Association
membership luncheon at the Embassy
Suites Hotel in Albuquerque. Attendees are
invited to network from 11:30 a.m.–noon
and the lunch will be from noon–1 p.m.
Mark Fidel will present “E-Discovery &
Digital Forensics” (2.0 G) from 1:15–3:15
p.m. For more information or to register,
visit www.abqbar.org.
New Mexico Criminal Defense
Lawyers Association
Annual Meeting and Government
Misconduct CLE
The New Mexico Criminal Defense
Lawyers Association’s annual membership meeting, CLE and Driscoll Award
ceremony will take place on June 5 in
Albuquerque. The CLE is titled “Government Misconduct: How to Spot it, How
to Stop It” (5.7 G) and topics include:
search and seizure, case law update, grand
jury instructions, remedies for discovery
violations, civil forfeiture and more. Afterwards, NMCDLA members and their
families and friends are invited to the annual membership party and silent auction.
Visit www.nmcdla.org to join NMCDLA
and to register for the seminar.
New Mexico Hispanic Bar
Association
Luncheon and CLE at Season’s
The New Mexico Hispanic Bar Association presents “Hernandez v. Texas—A
Landmark Case for Mexican American
Civil Rights” (1.5 G) presented by Professor Michael A. Olivas, University of
Houston Law Center on May 29 at Seasons
Rotisserie & Grill in Albuquerque. Lunch
will be served from 11:45 a.m.–1:15 p.m.
and the CLE will be presented from 1:30–3
p.m. Professor Maria Velez will be the
guest speaker. For more information and
pricing, visit www.nmhba.net.
Paleta Party to Benefit the
NMHBA/UNM Summer Law Camp
The New Mexico Hispanic Bar Association and Aleli and Brian Colon are cosponsoring a fundraising event to benefit
the NMHBA/UNM Summer Law Camp
for middle school students. The event
will be from 5:30–7:30 p.m., June 1, at the
Colon’s home in Albuquerque. R.S.V.P. to
Brian Colon at [email protected] and
the address will be sent to you. All donations are tax-deductible.
Call For Nominations
State Bar of New Mexico 2015 Annual Awards
Nominations are being accepted for the 2015 State Bar of New Mexico Annual Awards to recognize those who have
distinguished themselves or who have made exemplary contributions to the State Bar or legal profession in 2014 or 2015.
The awards will be presented Oct. 1 during the 2015 Annual Meeting—Bench and Bar Conference at The Broadmoor in
Colorado Springs, Colo. All awards are limited to one recipient per year, whether living or deceased. Previous recipients for
the past five years, descriptions of each award, and nomination submission instructions can be found in the May 5 issue of
the Bar Bulletin (Vol. 54, No. 18) or online at www.nmbar.org > for Members > Annual Meeting.
Distinguished Bar Service Award-Lawyer
Distinguished Bar Service Award–Nonlawyer
Justice Pamela B. Minzner Professionalism Award
Outstanding Legal Organization or Program Award
Outstanding Young Lawyer of the Year Award
Robert H. LaFollette Pro Bono Award
Seth D. Montgomery Distinguished Judicial Service Award
Deadline for Nominations: July 17
6
Summer Law Camp Inspires
Middle School Students of All Backgrounds
To Pursue Higher Education
By Denise M. Chanez
Each summer many middle
school students take a break
from school and spend some
time at summer camps that are
mostly focused on sports or
other outdoor activities. But
for the past 13 years, some
New Mexico students have
chosen to spend one week
of their summer vacation
learning about the law at the
New Mexico Hispanic Bar
Association/University of
New Mexico Summer Law
Camp. You might think that
a camp focused on the law
would attract only a certain
type of student–one that is
already on a path for success.
While that is true for some
of the participants, the Summer Law Camp has inspired
Law Camp Mock Trial Session I with Judge Frank Sedillo and instructor Jason Rael
students of all backgrounds
to pursue higher education.
And, for some, it has changed the entire trajectory of their lives. cities from Northern, Southern and Central New Mexico and many
will come from low-income and first-generation households. The
Arturo Lozoya got his first exposure to higher education at Sum- students will also be ethnically diverse, which is a significant
mer Law Camp nine years ago. He described himself as an at-risk factor taken into account during the selection process. During
youth when he was accepted to Summer Law Camp. “I felt that their week-long camp, the students will get a taste of college
I would never amount to much of anything or even make it to life by staying on campus at the dorms. They will witness New
high school graduation for that matter,” says Arturo. His experi- Mexico’s legal system in action by meeting with judges and
ence at Summer Law Camp changed all of that. “[Summer Law practicing attorneys and visiting the federal and state courthouses.
Camp] helped me turn my life around and guided me in the right Throughout the week, the students will develop skills in leadership, team-building and mock trial. And,
direction. Prior to Law Camp, I thought
by the end of the camp, they will put their
that my life was set for me but because
new skills into action with a mock trial
[of Law Camp] I was able to change my
“I assumed that college wasn’t meant
before a sitting judge.
path for the better,” says Arturo. “I was
for me, but after meeting with camp
given an opportunity to think for myself
Among the students who participate
and to think better of myself. I assumed
counselors, interacting with actual
this year there may be others like Arturo
that college wasn’t meant for me, but
UNM School of Law faculty as well as
Lozoya, who do not believe they can go
after meeting with camp counselors,
judges and lawyers, I finally felt that I
to college or pursue a law degree. The
interacting with actual UNM School
belonged at UNM and that I deserved
goal of the camp is to make them believe
of Law faculty as well as judges and
that they can by exposing them to higher
lawyers, I finally felt that I belonged at
to be there just as much as anyone
education and to the legal profession. As
UNM and that I deserved to be there just
else.”—Arturo Lozoya
Arturo says, “There are future lawyers,
as much as anyone else.” Now, Arturo is
doctors, politicians and businessmen/
a senior at the University of New Mexico
businesswomen out there whothat don’t
studying Business Administration at the
Anderson School of Management. He credits the Summer Law think they deserve to be at UNM or even college, for that matter. It
Camp as giving him the “extra push” that he needed to pursue is our duty to help get them there and realize that they do belong.”
higher education.
The Summer Law Camp is provided at no cost to all students
On June 8, the next group of Law Campers will arrive at UNM to who are accepted to the program. This is possible because of the
participate in the Summer Law Camp. The students will represent support of donors and organizations such as Brian Colón (a coBar Bulletin - May 27, 2015 - Volume 54, No. 21
7
founder of the Summer Law Camp), the New Mexico Hispanic
Bar Association Foundation, the University of New Mexico,
ENLACE New Mexico, the State Bar of New Mexico’s Young
Lawyers Division and other generous sponsors. Each year, the
NMHBA and the other supporting organizations raise funds for
Law Camp. If you are interested in sponsoring a student to attend
Law Camp or making a donation of any amount, please visit
the NMHBA Foundation’s website at http://www.foundation.
nmhba.net/Programs/SummerLawCamp.aspx. All donations
are tax-deductible. You are also invited to join other Summer
Law Camp supporters at a fundraising “Paleta Party” on June 1
from 5:30-7:30 p.m. at the home of Aleli and Brian Colón. To
R.S.V.P., please send an email to [email protected] and he’ll
send you the address.
We hope you will support this special program so that it can continue to inspire New Mexico’s youth to pursue higher education.
Denise M. Chanez is president of the New Mexico Hispanic Bar
Association and a director at the Rodey Law Firm.
Law Campers at Metro Court: Session I with Chief Judge Julie Altweis
Mock Trial with Brian Colon, Kari Brandenburg and Judge Beatrice Brickhouse
8
Legal Education
June
1
Reciprocity in New Mexico
4.5 G, 2.5 EP
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
2
Options in Real Estate
Transactions—Buying Time to
Decide & Wait and See
1.0 G
National Teleseminar
505-797-6020
www.nmbar.org
4
“Ethical Wills”: Drafting Wills to
Reflect Clients Values
1.0 EP
505-797-6020
www.nmbar.org
5
Government Misconduct: How to
Spot it, How to Stop it
5.7 G, 0.0 EP
Albuquerque
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
9
The Scope of Arbitration—Court
Rulings and Legal Opinions
1.0 G
Live Seminar and Telecast
505-797-6020
www.nmbar.org
9
Civil Procedure Update and Recent
Developments in the U.S. Supreme
Court (2014)
3.0 G
Video Replay
505-797-6020
www.nmbar.org
9
2015 Ethicsplaooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
16–17 Drafting LLC/Partnership
Operating Agreements Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
17
Trust and Suspense: Challenges for
the Estate Planner with Oil and Gas
Interests
1.0 G
Live seminar and Telecast
505-797-6020
www.nmbar.org
9–10 Ethics in Litigation Update, Parts
1–2
2.0 EP
505-797-6020
www.nmbar.org
19
10–11 Great Adverse Depositions:
Principles and Principal
Techniques
6.0 G
Webinar
505-797-6020
www.nmbar.org
19
Ethics and Joint Representations
1.0 EP
505-797-6020
www.nmbar.org
11
2015 Estate Planning Update
1.0 G
505-797-6020
www.nmbar.org
9
25th Annual Appellate Practice
Institute (2014)
5.7 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
11–12 8th Annual Legal Service Providers
Conference
10.0 G, 2.0 EP
Live Seminar
505-797-6020
www.nmbar.org
9
Technology in the Courts (2014)
5.2 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
12
Like-Kind Exchanges of Business
Interests
1.0 G
505-797-6020
www.nmbar.org
Animal Law SectionLegislative
Roundup- Part 2
1.0 G
Live seminar and telecast
505-797-6020
www.nmbar.org
23
25th Annual Real Property
Institute (2014)
5.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
Internet Investigative/Legal
Research on a Budget and Legal
Tech Tips (2014)
6.0 G
Video Replay
505-797-6020
www.nmbar.org
23
23
Supreme Court Case Update and
New Rules Process
2.0 G
Video Replay
505-797-6020
www.nmbar.org
9
Legal Education
www.nmbar.org
June
23
2015 Ethicspalooza: Civility and
Professionalism
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
24–25 Attacking the Expert’s Opinion at
Deposition and Trial
6.0 G
Webinar
505-797-6020
www.nmbar.org
Trustees: Counseling Clients
About Individual and Institutional
Alternatives
1.0 G
505-797-6020
www.nmbar.org
14
New Mexico Constitution—Current
Issues (2014)
2.0 G
Video Replay
505-797-6020
www.nmbar.org
28
The 30th Annual Bankruptcy Year
in Review Seminar (2015)
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
14
28
2014 Probate Institute
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
23-24 Estate Planning for the Elderly,
Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
29
July
1
Outsourcing Agreements
1.0 G
505-797-6020
www.nmbar.org
2
Planning with Life Insurance Trusts
1.0 G
505-797-6020
www.nmbar.org
7
Business Planning with Series LLCs
1.0 G
505-797-6020
www.nmbar.org
The Brain-Smart Negotiator: Skills
and Practices for the Effective
Litigator (2015)
4.8 G, 1.2 EP
Video Replay
505-797-6020
www.nmbar.org
14
14
Employment and Labor Law
Institute (2014)
4.5 G, 1.5 EP
Video Replay
505-797-6020
www.nmbar.org
10
Ethics and Professionalism: Advice
from the Bench and Bar (2014)
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
14-15 Tax Planning for Real Estate, Parts
1–2
2.0 G
505-797-6020
www.nmbar.org
21
Restrictive & Protective Covenants
in Real Estate
1.0 G
505-797-6020
www.nmbar.org
22
Fiduciary Duties & Liability of
Nonprofit/Exempt Organization
Directors & Officers
1.0 G
505-797-6020
www.nmbar.org
28
Civil Procedure Update and Recent
Developments in the U.S. Supreme
Court (2014)
3.0 G
Video Replay
505-797-6020
www.nmbar.org
28
Law Practice Succession: A Little
Thought Now, a Lot Less Panic
Later
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
28-29 Business Planning with S Corps,
Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective May 15, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,296
No. 35,295
No. 35,294
No. 35,290
No. 35,285
No. 35,282
No. 35,279
No. 35,286
No. 35,284
No. 35,283
No. 35,278
No. 35,281
No. 35,275
No. 35,271
No. 35,143
No. 35,276
No. 35,274
No. 35,273
No. 35,272
No. 35,270
No. 35,268
No. 35,269
No. 35,266
No. 35,265
No. 35,258
No. 35,251
No. 35,261
No. 35,254
No. 35,252
No. 35,250
No. 35,239
No. 35,238
No. 35,237
No. 35,236
No. 35,177
No. 35,176
No. 35,175
No. 35,174
No. 35,173
No. 35,166
No. 35,248
No. 35,248
No. 35,247
No. 35,246
No. 35,235
No. 35,234
Date Petition Filed
State v. Tsosie
COA 34,351 05/15/15
State v. Renteria
COA 34,093 05/14/15
Khalsa v. Puri
COA 33,622 05/13/15
N.M. Environment Dept. v. Gila
Resource COA 33,238/33,237/33,245 05/08/15
State v. Henderson
COA 34,377 05/08/15
State v. Leyba
COA 34,177 05/08/15
N.M. Environment Dept. v. Gila
Resource COA 33,238/33,237/33,245 05/08/15
Flores v. Herrera COA 32,693/33,413 05/07/15
State v. Puente
COA 33,806 05/07/15
State v. Sanchez
COA 32,664 05/07/15
Smith v. Frawner
12-501 05/07/15
State v. Pacheco
COA 34,178 05/06/15
Firstenberg v. Monribot COA 32,549 05/06/15
Cunningham v. State
12-501 05/06/15
Simms v. State
12-501 05/06/15
State v. Doliber
COA 34,202 05/05/15
State v. Miller
COA 33,838 05/05/15
State v. Gallion
COA 34,018 05/04/15
State v. Dinapoli
COA 33,004 05/04/15
State v. Bersane
COA 34,094 05/04/15
Chip v. Chip
COA 33,958 05/01/15
Peterson v. Ortiz
12-501 04/29/15
Guy v.
12-501 04/30/15
N.M. Dept. of Corrections
Burke v.
COA 33,824/33,825/33,826 04/29/15
Jones
State v. Thompson
COA 34,137 04/28/15
State v. Padilla
COA 34,069 04/24/15
Trujillo v. Hickson
12-501 04/23/15
State v. Koreh
COA 34,263 04/23/15
State v. Vallejos
COA 33,928 04/23/15
State v. Ornelas
COA 33,919 04/23/15
State v. Woodard
COA 34,009 04/23/15
State v. Davidson
COA 32,795 04/23/15
State v. Martinez
COA 33,994 04/23/15
State v. Rodriguez
COA 34,125 04/23/15
State v. Campbell
COA 33,695 04/23/15
State v. Reyes
COA 33,059 04/23/15
State v. Putnam
COA 34,213 04/23/15
State v. Davenport
COA 33,546 04/23/15
State v. Garza
COA 34,072 04/23/15
State v. Tohsonie
COA 33,157 04/23/15
Duran v. Frawner
12-501 04/22/15
AFSCME Council 18 v.
Bernalillo Cty. Comm. COA 33,706 04/22/15
State v. Young
COA 33,751 04/22/15
State v. Aldaco
COA 33,799 04/22/15
State v. Campbell
COA 33,693 04/22/15
State v. Blackwater
COA 33,710 04/22/15
No. 35,233
No. 35,232
No. 35,195
No. 35,172
No. 35,171
No. 35,170
No. 35,165
No. 35,262
No. 35,244
No. 35,241
No. 35,230
No. 35,169
No. 35,167
No. 35,227
No. 35,168
No. 35,225
No. 35,213
No. 35,212
No. 35,217
No. 35,205
No. 35,198
No. 35,183
No. 35,159
No. 35,145
No. 35,116
No. 35,121
No. 35,106
No. 35,097
No. 35,084
No. 35,040
No. 35,099
No. 35,068
No. 34,949
No. 34,937
No. 34,932
No. 34,881
No. 34,913
No. 34,907
No. 34,885
No. 34,878
No. 34,680
State v. Aldaco
COA 33,811
State v. Shorty
COA 34,049
Citizen Action v.
N.M. Environment Dept. COA 33,517
Response filed 5/8/15
State v. Lydia A. COA 32,877/32,884
State v. Cuffee
COA 32,797
State v. Jimenez
COA 33,158
State v. Hobbs
COA 33,389
Sena v. Board of Finance
12-501
State v. Chico
COA 33,490
Rodriguez v.
COA 33,138/33,668
Williams
Turner v.
COA 33,303
First N.M. Bank
State v. Bouldin
COA 34,214
State v. Campbell
COA 33,128
Romero v. Frawner
12-501
State v. Garcia
COA 32,161
Baca v. State
12-501
Hilgendorf v. Chen
COA 33056
Response ordered; due 5/26/15
Guerin v. State
12-501
Hernandez v. Horton
12-501
Sotelo v. State
12-501
Noice v. BNSF
COA 31,935
State v. Tapia
COA 32,934
Jacobs v. Nance
12-501
State v. Benally
COA 31,972
Response ordered; filed 4/17/15
State v. Martinez
COA 32,516
State v. Chakerian
COA 32,872
Salomon v. Franco
12-501
Marrah v. Swisstack
12-501
Branch v. State
12-501
Montoya v. Wrigley
12-501
Keller v. Horton
12-501
Jessen v. Franco
12-501
State v. Chacon
COA 33,748
Pittman v.
12-501
N.M. Corrections Dept.
Gonzales v. Sanchez
12-501
Paz v. Horton
12-501
Finnell v. Horton
12-501
Cantone v. Franco
12-501
Savage v. State
12-501
O’Neill v. Bravo
12-501
Wing v. Janecka
12-501
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/20/15
04/20/15
04/17/15
04/16/15
04/16/15
04/16/15
04/15/15
04/13/15
04/09/15
04/06/15
04/06/15
04/03/15
04/01/15
03/27/15
03/18/15
03/12/15
03/02/15
02/25/15
02/13/15
02/04/15
01/26/15
01/16/15
12/15/14
12/11/14
11/25/14
10/27/14
10/20/14
10/16/14
10/08/14
09/22/14
09/11/14
09/08/14
08/26/14
07/14/14
11
Writs of Certiorari
No. 34,777
No. 34,790
No. 34,793
No. 34,775
No. 34,739
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
State v. Dorais
COA 32,235
Venie v. Velasquz
COA 33,427
Isbert v. Nance
12-501
State v. Merhege
COA 32,461
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Benavidez v. State
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
07/02/14
06/27/14
No. 35,049
No. 35,130
No. 35,101
No. 35,148
07/30/13
03/14/13
11/28/12
Certiorari Granted and Submitted to the Court:
10/29/12
09/28/12
07/12/12
06/07/12
(Parties preparing briefs) Date Writ Issued
COA 31,513 09/14/12
No. 33,725 State v. Pasillas
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
COA 30,938 01/18/13
No. 33,930 State v. Rodriguez
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
12-501 11/20/13
No. 34,274 State v. Nolen
No. 34,443 Aragon v. State
12-501 02/14/14
12-501 03/28/14
No. 34,522 Hobson v. Hatch
No. 34,582 State v. Sanchez
COA 32,862 04/11/14
COA 33,232 06/06/14
No. 34,694 State v. Salazar
No. 34,669 Hart v. Otero County Prison 12-501 06/06/14
COA 32,475 06/06/14
No. 34,650 Scott v. Morales
No. 34,784 Silva v. Lovelace Health
COA 31,723 08/01/14
Systems, Inc.
No. 34,726 Deutsche Bank v.
COA 31,503 08/29/14
Johnston
No. 34,668 State v. Vigil
COA 32,166 09/26/14
No. 34,855 Rayos v. State
COA 32,911 10/10/14
No. 34,728 Martinez v. Bravo
12-501 10/10/14
No. 34,812 Ruiz v. Stewart
12-501 10/10/14
No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14
No. 34,866 State v. Yazzie
COA 32,476 10/24/14
No. 34,854 State v. Alex S.
COA 32,836 10/24/14
No. 34,830 State v. Mier
COA 33,493 10/24/14
No. 34,826 State v. Trammel
COA 31,097 10/24/14
No. 34,997 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 12/19/14
No. 34,993 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 12/19/14
No. 34,978 Atherton v. Gopin
COA 32,028 12/19/14
No. 34,946 State v. Kuykendall
COA 32,612 12/19/14
No. 34,945 State v. Kuykendall
COA 32,612 12/19/14
No. 34,940 State v. Flores
COA 32,709 12/19/14
No. 34,929 Freeman v. Love
COA 32,542 12/19/14
No. 35,063 State v. Carroll
COA 32,909 01/26/15
No. 35,035 State v. Stephenson
COA 31,273 01/26/15
State v. Baca
COA 33,626
Moses v. Skandera
COA 33,002
Arencon v.
City of Albuquerque
COA 33,196
State v. Surratt
COA 32,881
Progressive Ins. v. Vigil COA 32,171
Dalton v. Santander
COA 33,136
El Castillo Retirement Residences v.
COA 31,701
Martinez
06/23/14
06/19/14
05/21/14
05/13/14
02/25/14
Certiorari Granted but Not Yet Submitted to the Court:
12
No. 35,016
No. 34,974
No. 35,069
01/26/15
01/26/15
02/27/15
02/27/15
03/23/15
03/23/15
04/03/15
(Submission Date = date of oral
Submission Date
argument or briefs-only submission)
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
COA 31,088 09/11/13
Group, Inc.
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
COA 31,421 11/14/13
No. 34,013 Foy v. Austin Capital
No. 34,085 Badilla v. Walmart
COA 31,162 12/04/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
No. 34,287 Hamaatsa v.
COA 31,297 03/26/14
Pueblo of San Felipe
No. 34,122 State v. Steven B. consol. w/
COA 31,265/32,136 08/11/14
State v. Begaye
No. 34,546 N.M. Dept. Workforce Solutions v.
COA 32,026 08/13/14
Garduno
No. 34,501 Snow v. Warren Power
COA 32,335 10/01/14
No. 34,554 Miller v.
Bank of America
COA 31,463 11/10/14
COA 32,994 12/17/14
No. 34,516 State v. Sanchez
No. 34,613 Ramirez v. State
COA 31,820 12/17/14
COA 28,219 01/14/15
No. 34,548 State v. Davis
No. 34,526 State v. Paananen
COA 31,982 01/14/15
COA 30,783 02/25/15
No. 34,549 State v. Nichols
No. 34,798 State v. Maestas
COA 31,666 03/25/15
No. 34,637 State v. Serros
COA 31,975 04/13/15
No. 34,630 State v. Ochoa
COA 31,243 04/13/15
No. 34,789 Tran v. Bennett
COA 32,677 04/13/15
No. 34,995 State v. Deangelo M.
COA 31,413 05/11/15
No. 34,400 State v. Armijo
COA 32,139 05/13/15
No. 34,843 State v. Lovato
COA 32,361 05/18/15
Opinion on Writ of Certiorari:
No. 34,447
Loya v. Gutierrez
Date Opinion Filed
COA 32,405 05/11/15
Petition for Writ of Certiorari Granted and Remanded to
District Court:
No. 35,122
No. 34,765
Lente v. State
Helfferich v. Frawner
Date Order Filed
12-501 05/11/15
12-501 05/11/15
Writs of Certiorari
Petition for Writ of Certiorari Denied:
Petition for Writ of Certiorari Quashed:
No. 34,772
No. 33,994
No. 33,863
No. 33,810
No. 34,769
No. 34,786
No. 35,005
Date Order Filed
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955 05/11/15
Gonzales v. Williams
COA 32,274 05/11/15
Murillo v. State
12-501 05/11/15
Gonzales v. Marcantel
12-501 05/11/15
State v. Baca
COA 32,553 05/11/15
State v. Baca
COA 32,523 05/11/15
State v. Archuleta
COA 32,794 05/11/15
No. 35,226
No. 35,209
No. 34,731
State v. Charlie
US Bank v. Martin
Helfferich v. Frawner
Date Order Filed
COA 32,504 05/11/15
COA 34,160 05/11/15
12-501 05/11/15
Member Benefits Resource Guide
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Visit www.nmbar.org for the most current member benefits and resources.
13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Published Opinions
No. 33568 1st Jud Dist Santa Fe PB-13-150, E MCELVENY v TAX & REV (affirm)
5/11/2015
Unublished Opinions
No. 33338 8th Jud Dist Taos CR-12-189, STATE v E EVENSEN (affirm)
5/11/2015
No. 34145 3rd Jud Dist Dona Ana CR-13-579, STATE v D ENRIQUEZ (affirm)
5/12/2015
No. 34153 5th Jud Dist Eddy CR-14-134, STATE v W MATA (affirm)
5/12/2015
No. 34163 2nd Jud Dist Bernalillo LR-13-35, STATE v J MEDINA (affirm)
5/12/2015
No. 34176 2nd Jud Dist Bernalillo LR-13-4, STATE v D CASS (affirm)
5/12/2015
No. 34186 2nd Jud Dist Bernalillo LR-13-40, STATE v M AMAYA (affirm)
5/12/2015
No. 33735 3rd Jud Dist Dona Ana CV-14-52, J TORREZ v T GARRISON (dismiss)
5/13/2015
No. 33780 13th Jud Dist Sandoval CV-11-2309, BANK OF NY v J HAMPTON (affirm)
5/13/2015
No. 34210 13th Jud Dist Sandoval CV-12-1895, D MCPHERSON v R MINGHELLI (dismiss)
5/13/2015
No. 34273 2nd Jud Dist Bernalillo CR-12-4634, STATE v A DUNN (affirm)
5/13/2015
No. 34290 WCA-13-2658, E HERNANDEZ v R ONTIVEROS (affirm)
5/13/2015
No. 34324 AD AD AD-14-38, K FRANKLIN v TAX & REV (affirm)
5/13/2015
No. 34368 10th Jud Dist Quay CV-13-8, K COLLINS v W GARRETT (reverse and remand)
5/13/2015
No. 34434 11th Jud Dist McKinley CV-11-407, R ARMSTRONG v J ELKINS (dismiss)
5/13/2015
No. 34446 10th Jud Dist Quay PB-12-5, W GARRETT v S GARRETT (reverse and remand) 5/13/2015
No. 34449 2nd Jud Dist Bernalillo CV-14-1367, D GONZALES v J JEFFRIES (affirm)
5/13/2015
No. 34205 8th Jud Dist Union CR-12-02, STATE v J SALAZAR (affirm in part and remand) 5/14/2015
No. 34317 6th Jud Dist Luna JQ-14-12, CYFD v JESSICA H (reverse and remand)
5/14/2015
No. 34316 6th Jud Dist Luna LR-14-6, STATE v R TINOCO (affirm)
5/14/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate of
Disbarment
Withdrawal
On May 11, 2015:
Gany Mike Bello
PO Box 1762
3918 N. Prince, #255 (88101)
Clovis, New Mexico
88102-1762
575-742-1410
253-595-3119 (fax)
Effective May 7, 2015:
Mark Bennett
Decision Resources Inc.
2909 Tennessee Street NE
Albuquerque, NM 87110
and
1435 Santa Cruz Drive
Santa Fe, NM 87505
On July 1, 2015:
Luis Quintana
PO Box 196
Corrales, New Mexico
87048-0196
505-243-6718
505-243-6717 (fax)
Effective April 29, 2015:
Solomon W. Brown
PO Box 40747
Effective May 11, 2015:
William D. Henslee
4233 Bell Tower Court
Orlando, FL 32812
and
1917 Westhill Run
Windermere, FL 34786
Bryan Lee Sample
Bryan L. Sample PC
13155 Noel Road, Suite 900
Dallas, TX 75240
and
1700 Commerce Street,
Suite 950
Dallas, TX 75201
Karl L. Sandoval
252 Elm Street, Apt. 4
San Carlos, CA 94070
and
3972 Jackdaw #103
San Diego, CA 92103
In Memoriam
As of May 4, 2015:
Marianne Bennett
4812 Madison Court NE
As of February 2, 2015:
Madeline E. Melka
200 Carolino Canyon Road
Tijeras, NM 87059
Correction
The clerk’s certificate of address
and telephone changes dated
April 29, 2015, reported incorrect telephone and fax numbers
for Frances Crockett Carpenter
and Hans P. Erickson. Their
correct telephone and fax numbers are follows:
Frances Crockett Carpenter
(frances@francescrockettlaw.
com)
Hans P. Erickson (hans@
francescrockettlaw.com)
Law Office of
Frances Crockett, LLC
925 Luna Circle NW
505-314-8884
505-835-5658 (fax)
Clerk’s Certificate
of Change to Inactive
Status
James E. Snead III
PO Box 2228
1800 Old Pecos Trail (87505)
Santa Fe, NM 87505
15
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Pending Proposed Rule Changes
Open for Comment:
Comment Deadline
Recently Approved Rule Changes Since
Release of 2015 NMRA:
Comment Deadline
For 2014 year-end rule amendments that became effective December 31, 2014, and which now appear in the 2015 NMRA, please
see the November 5, 2014, issue of the Bar Bulletin or visit the
New Mexico Compilation Commission’s website at http://www.
nmcompcomm.us/nmrules/NMRuleSets.aspx.
Rule No. Set/Title
Effective Date
Uniform Jury Instructions-Criminal
14 602
14 603
14 604
14 605
14 610
14 611
14 612
14 615
14 621
14 622
14 623
14 625
Withdrawn
Withdrawn
Withdrawn
Withdrawn
Withdrawn
Chart
Child abuse not resulting in death or great
bodily harm; essential elements
Child abuse resulting in great bodily harm;
essential elements
Child abuse resulting in death; child at least
12 but less than 18; essential elements
Child abuse resulting in death; reckless
disregard; child under 12; essential elements
Child abuse resulting in death; intentional
act; child under 12; essential elements
Jury procedure for various degrees of
child abuse resulting in death of a child
under twelve years of age
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
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16
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2015-NMSC-010
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
NATHAN MONTOYA,
Defendant-Appellant
No. 33,967 (filed March 12, 2015)
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
MICHAEL E. VIGIL, District Judge
JORGE A. ALVARADO
Chief Public Defender
NICOLE S. MURRAY
Assistant Appellate Defender
Santa Fe, New Mexico
for Appellant
Opinion
Barbara J. Vigil, Chief Justice
{1} This case presents another example of
the ongoing confusion created by our child
abuse jury instructions. Breandra Pena
(Baby Breandra), age seventeen months,
died while in the care of Nathan Montoya
(Defendant). Defendant was convicted of
intentional child abuse resulting in the
death of a child under twelve contrary
to NMSA 1978, Section 30-6-1(D), (H)
(2009) and sentenced to life imprisonment.
{2}In our review of Defendant’s conviction on direct appeal, we first hold that
the jury instructions used in Defendant’s
trial accurately instructed the jury of the
law and did not constitute reversible error.
We determine that, when considered as a
whole, the instructions used in this case are
distinguishable from those used in previous cases which we have reversed based on
erroneous child abuse jury instructions.
We also hold that reckless child abuse may,
in some cases, be a lesser included offense
of intentional child abuse resulting in the
death of a child under twelve, and disavow
New Mexico cases suggesting otherwise.
Accordingly, we determine that when a
jury is correctly instructed on both reckless and intentional child abuse resulting
in the death of a child under twelve, a
step-down instruction is appropriate.
GARY K. KING
Attorney General
JACQUELINE R. MEDINA
Assistant Attorney General
for Appellee
{3} Next, we hold that the admission of a
forensic pathologist’s expert testimony was
not in error and that sufficient evidence
was presented to convict Defendant. Finally, we hold that it was abuse of discretion for the district court judge to refuse
to consider mitigating the basic sentence
of life imprisonment, based on the court’s
mistaken understanding that the life
sentence was mandatory and could not
be altered. Defendant’s conviction for
intentional child abuse is affirmed and
the case is remanded to the district court
for resentencing with consideration of
potential mitigating circumstances.
I.BACKGROUND
A.Facts
{4}Baby Breandra was born to Melissa
Romero (Mother) and Andrew Pena on
September 24, 2009. Mother occasionally
asked her cousin, Edwardine Fernandez
(Fernandez), Breandra’s godmother, and
Defendant to look after Baby Breandra.
On March 4, 2011, when Baby Breandra
was seventeen months old, Fernandez
and Defendant picked up Baby Breandra
from Mother’s home in Albuquerque and
took her to their home in Española for the
weekend. When Fernandez and Defendant
picked up Baby Breandra from Mother, she
had no signs of bumps or bruises on her
body.
{5}On March 8, 2011, Fernandez was at
work by 7:00 a.m. at St. Vincent Hospital
in Santa Fe, leaving Defendant at home
alone with Baby Breandra. Fernandez
was in contact with Defendant regularly
throughout the day, about once an hour. At
about 9:00 a.m., Defendant’s friend Derek
Vigil (Vigil) visited Defendant at home.
Vigil left around 11:30 a.m. or noon. When
Vigil left, he did not see any signs that Baby
Breandra was in distress.
{6}Around 1:42 p.m., Defendant called
911 and told the operator that Baby Breandra had been teething, had not been feeling
well, had been throwing up, and was not
coming back. Defendant reported that
Baby Breandra still had a heartbeat. He
did not report that the baby had fallen in
the bathtub, or that he dropped her, as he
later claimed. Paramedics were dispatched
in response to a child having difficulty
breathing. While en route to the scene,
the paramedics received an update that the
child had stopped breathing, and a second
update that the child had no heartbeat.
{7} The paramedics arrived at Defendant’s
home at 1:48 p.m. When they arrived,
Defendant was standing in the doorway
holding Baby Breandra, who was limp,
nonresponsive, and pale. The paramedics
noted that Baby Breandra had bruising
throughout her body, including marks on
her chest and belly and a scrape on her
nose, and that her ears were red, bruised,
and swollen. The paramedics immediately
began life saving measures on Baby Breandra, but knew she was dead as soon as they
got her on the gurney in the ambulance.
{8} Randy Sanchez, one of the responding
paramedics, testified as an expert witness in the field of EMT paramedics. Mr.
Sanchez testified that based on her cool,
pale skin, he believed Baby Breandra was
deceased before Defendant placed the call
to 911. In his opinion, the baby’s injuries
were not consistent with choking. Mr.
Sanchez said it was fairly obvious that the
baby had sustained traumatic injuries.
{9} Deputy Jason Gallegos of the Rio Arriba County Sheriff ’s Office testified that
he was dispatched to a call regarding an
unresponsive baby at Defendant’s home.
Deputy Gallegos approached Defendant
and asked him what happened. Defendant
told Deputy Gallegos that he had been
watching Baby Breandra and she was
teething and grumpy. Defendant said he
and Baby Breandra were sitting on the bed,
eating cheese and crackers and watching
cartoons. Baby Breandra wouldn’t stop
crying, so Defendant decided to give her a
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bath. Defendant said that after the bath, he
decided to put the baby down for a nap, so
he laid her on the bed and gave her a sippy
cup of milk. Defendant said Baby Breandra
started choking on the milk and she threw
up a light brown substance. Defendant said
he patted her on the back to try to dislodge
whatever the baby was choking on. After
speaking to Deputy Gallegos, Defendant
cried and paced around the house, asking
if the baby was ok.
{10} In her statement to the police,
Fernandez said that Defendant called her
earlier that day and told her that Baby Breandra was fussy because she was teething.
Defendant told Fernandez that he gave
Baby Breandra Tylenol because she was
drooling and felt feverish, and he gave
her some Orajel. Defendant reported to
Fernandez that he suspected the Orajel
made Baby Breandra throw up, and he
called 911 because she threw up and was
choking. At trial, Fernandez recounted
that at 12:47 p.m., Defendant had called
to tell her that Baby Breandra had fallen
in the bathtub and scraped her nose, but
otherwise seemed fine. Fernandez said she
forgot to tell the police in her statement
that Defendant said Baby Breandra had
fallen in the tub.
{11} Agent Joey Gallegos interviewed
Defendant at the New Mexico State Police
Office in Española. Agent Gallegos testified
that after he told Defendant that Baby Breandra was dead, Defendant said, “I slapped
her. I got her by her ears and she didn’t
want to keep quiet.” When Agent Gallegos showed Defendant pictures of Baby
Breandra’s injuries and asked if Defendant
had caused them, Defendant responded,
“Yeah, that one that she has, yeah. I did
spank her and all of that. That’s what I’m
saying.” Later in his statement to the police,
Defendant claimed that the baby fell in the
bathtub, and that he accidentally dropped
her while running to the living room.
{12} Dr. Clarissa Krinsky, Assistant
Professor of Pathology at the University
of New Mexico and Medical Investigator
at the Office of the Medical Investigator,
testified as an expert in forensic pathology.
Dr. Krinsky supervised the autopsy of Baby
Breandra on March 9, 2011. Dr. Krinsky
observed abrasions covering large areas of
both sides of the baby’s head and contusions on both ears. Dr. Krinsky opined that
the injuries to Baby Breandra’s ears were
intentional, caused by someone grabbing
and pulling them, and could not have been
caused by the baby herself. Dr. Krinsky saw
between forty and fifty bruises on Baby
Breandra’s back, chest, and abdomen. The
baby also had subdural and subarachnoid
hemorrhages on both sides of the brain,
indicative of significant head trauma. Dr.
Krinsky said these types of injuries were
unlikely to be caused by a fall in a bathtub.
Dr. Krinsky also found significant internal
abdominal injuries, which she characterized as classic intentional injuries found in
children who were punched or kicked in
the stomach.
{13} Dr. Krinsky said that Baby Breandra’s death was the result of multiple blunt
force injuries. Dr. Krinsky concluded that
the constellation of injuries on Baby Breandra’s body was a result of intentional, nonaccidental trauma, and that the manner of
death was homicide, which she defined as
death at the hands of another.
B.Procedure
{14} Defendant was charged with abuse
of a child resulting in the death of Baby
Breandra, a child under twelve, caused by
knowingly, intentionally, or recklessly,1
and without justifiable cause, endangering,
torturing, or cruelly punishing the child
contrary to Sections 30-6-1(D)(1) or (2)
and (H). Defendant was convicted of intentional child abuse resulting in the death
of a child under twelve and sentenced to
life in prison. Defendant appealed directly
to this Court pursuant to Rule 12-102(A)
(1) NMRA and Article VI, Section 2 of
the New Mexico Constitution. Further
procedural background is provided below
as necessary.
II.DISCUSSION
{15} Defendant advances numerous arguments on appeal, including: that the jury
instructions used at trial were a misstatement of the law and misled the jury, that
the pathologist’s expert testimony about
a “constellation of injuries” on the baby
should not have been admitted, that the
State failed to present sufficient evidence
to support Defendant’s conviction, that he
received ineffective assistance of counsel,
and that the district court’s failure to consider potential mitigating circumstances
in sentencing Defendant was an abuse of
discretion. We address each argument in
turn.
A. Jury Instructions
{16} Defendant argues that jury instruction number three erroneously combined
the elements of both intentional and
reckless child abuse, which Defendant
asserts was a misstatement of the law,
was confusing to the jury, and constitutes
reversible error. We recently clarified an
aspect of our Uniform Jury Instructions
governing child abuse that “potentially
contribute[d] to jury confusion, resulting
in unjust child abuse convictions.” See Consaul, 2014-NMSC-030, ¶ 38 (holding that
the Legislature intended to require proof
of recklessness to sustain a conviction for
negligent child abuse and requiring juries
to be instructed using the reckless disregard standard). This case presents us with
a similar opportunity to clarify two other
aspects of our jury instructions. We clarify
when separate instructions are required to
prove reckless or intentional child abuse.
We also clarify that in some circumstances,
like in the case at bar, reckless child abuse
may be a lesser-included offense of intentional child abuse.
1. Procedural background
{17} The confusion caused by the dissonance between our case law and our
jury instructions for child abuse resulting
in the death of a child under twelve is
epitomized by the argument which took
place in the district court below regarding
the proper instructions. Just before closing arguments, the district court and the
parties held an extensive discussion about
the correct form of the jury instructions.
{18} The State began the discussion by
noting that “[i]n regards to the elements
of the child abuse charge—well, for the
record, this particular instruction should
have been changed per the higher Courts
back in the 90’s and it never was, so it’s
1 While we acknowledge that “negligent child abuse” was the language in use at the time of Defendant’s indictment and trial, we
now refer to it as “reckless child abuse” in accordance with our holding “that what has long been called ‘criminally negligent child
abuse’ should hereafter be labeled ‘reckless child abuse’ without any reference to negligence.” State v. Consaul, 2014-NMSC-030, ¶ 37,
332 P.3d 850. While we refer in the text and record citations only to “reckless,” we do not endeavor in this opinion to retrofit every
quotation containing reference to “negligent” with “reckless.” While Consaul addressed child abuse cases involving great bodily harm,
rather than death, the same statute containing the now-renounced negligence language is at issue here, and thus we now expressly
adopt the same rule that “‘criminally negligent child abuse’ should hereafter be labeled ‘reckless child abuse’ without any reference to
negligence” for cases of child abuse resulting in death. See id. ¶¶ 35-37.
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kind of a difficult instruction to work
with.” The State told the district court that
it did not “want to follow the [Uniform
Jury Instruction] [(]UJI[)] when it comes
to reckless disregard and intentional.” The
State recognized that “[w]hen it comes to
intentional child abuse and reckless child
abuse . . . the Jury has to make clear which
one they find,” but argued that there would
be no problem with an elements instruction containing both theories as long as
there was a special interrogatory. Thus,
the State proposed a single jury instruction
which contained elements of both intentional and reckless child abuse, along with
a special interrogatory form on which the
jury could indicate which type of abuse it
found.
{19} Defendant asserted that the elements of intentional and reckless should
be in two separate instructions. Defendant argued that the jury would need
to clearly indicate whether it found
intentional or reckless child abuse, and
therefore, “[t]here is a problem with
having two theories in one instruction.”
Defendant also argued that the jury
should first consider whether Defendant
was guilty of intentional child abuse, and
if not, consider whether he was guilty of
reckless child abuse, and if not, find him
not guilty. Thus, Defendant proposed two
instructions, one containing the elements
of intentional abuse and another for reckless abuse. Defendant also proposed a
step-down-type instruction to guide the
jury in considering each of the crimes in
turn.
{20} In ruling on the jury instructions,
the district court observed that if ten years
ago, this Court said the jury instructions
should be changed, “and the UJI Committee did not change it, it’s because they
didn’t think it needed to be changed. They
don’t just ignore cases.” The district court
thus surmised that the Committee and the
Court had discussed whether the instructions needed to be changed and decided
against it. The State noted that “[t]he UJI
is wrong. We don’t want to follow the UJI
when it comes to reckless disregard and
intentional,” and that “we’re all in agreement that this should have been changed.”
The district court nonetheless concluded
that “the [C]ommittee must have thought
[the problem with the combined elements
instruction] can [be] handled by a special
interrogatory where you ask the Jury to
designate on what theory.” Accordingly,
the district court rejected both of Defendant’s proposed instructions and accepted
the State’s combined elements instruction
and its special interrogatory form.
{21} The disputed elements instruction
submitted to the jury read as follows:
INSTRUCTION NO. 3
For you to find the defendant
guilty of child abuse resulting in
death as charged in Count 1, the
state must prove to your satisfaction beyond a reasonable doubt
each of the following elements of
the crime:
1.The defendant caused Breandra Pena to be placed in a
situation which endangered the
life or health of Breandra Pena,
or tortured or cruelly punished
Breandra Pena;
2. The defendant acted intentionally or with reckless disregard and
without justification. To find that
the defendant acted with reckless
disregard, you must find that
the defendant knew or should
have known the defendant’s conduct created a substantial and
foreseeable risk, the defendant
disregarded that risk and the defendant was wholly indifferent to
the consequences of the conduct
and to the welfare and safety of
Breandra Pena;
3.The defendant’s actions resulted in the death of Breandra
Pena;
4.Breandra Pena was under the
age of 12;
5. This happened in New Mexico,
on or about the 8[th] day of
March, 2011.
Instruction number four defined “intentionally” as set out in UJI 14-610 NMRA:
“A person acts intentionally when the
person purposely does an act. Whether
the defendant acted intentionally may
be inferred from all of the surrounding
circumstances, such as the defendant’s
actions or failure to act, conduct and
statements.”
{22} Instruction number thirteen was
a type of instruction“commonly referred
to as a ‘step-down’ instruction,” and directed the jury on the use of the special
interrogatory forms. See State v. Garcia,
2005-NMCA-042, ¶ 18, 137 N.M. 315, 110
P.3d 531 (discussing the proper use of UJI
14-250 NMRA, the step-down instruction used for varying levels of homicide
offenses). The instruction read as follows:
If you find the defendant guilty
of abuse of a child resulting in
death, then you must determine
whether the crime was committed intentionally or with reckless
disregard. You must complete
the special form to indicate your
finding. For you to make a finding that the crime was committed
intentionally, the state must prove
to your satisfaction beyond a
reasonable doubt that the crime
was committed intentionally. If
you decide the crime was committed intentionally, than [sic]
this is the only special form you
complete. If you have reasonable
doubt that the crime was committed intentionally, then you must
decide whether the crime was
committed with reckless disregard. For you to make a finding
that the crime was committed
with reckless disregard, the state
must prove to your satisfaction
beyond a reasonable doubt that
the crime was committed with
reckless disregard. If you decide
the crime was committed with
reckless disregard, then this is the
only special form youcomplete. If
you have reasonable doubt that
the crime was not committed
with intentionally or with reckless
disregard, then you must find the
defendant not guilty of abuse of a
child resulting in death.
The special interrogatory form read: “Do
you unanimously find beyond a reasonable doubt that the crime of abuse of a
child resulting in death was committed
intentionally? _______ (Yes or No).” The
jury foreperson wrote “yes” on the line. A
second special interrogatory form asked
the same question about reckless disregard. The jury did not complete this form.
{23} During its deliberation, the jury sent
a question to the district court requesting
the definition of reckless disregard comparable to the definition of intent provided
in instruction number four. The district
court suggested, and both parties agreed,
that there was no further definition the
district court could provide. Accordingly,
the district court told the jury that the
legal definition of reckless disregard was
already contained in instruction number
three, paragraph two.
{24} Defendant argues that the jury instructions misstated the law and confused
or misdirected the jury. We acknowledge
the inconsistencies between our case
law and our jury instructions noted by
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the district court and the attorneys in
the proceedings below. Nonetheless, we
find the facts of this case distinguishable
from previous cases in which we have
reversed convictions of child abuse based
on faulty jury instructions. We conclude
that the use of our current instructions,
as supplemented by the district court, was
sufficient to properly instruct the jury in
this case and therefore affirm Defendant’s
conviction.
2. Standard of review
{25} “The standard of review we apply
to jury instructions depends on whether
the issue has been preserved. If the
[issue] has been preserved we review
the instruction for reversible error.”
Cabezuela, 2011-NMSC-041, ¶ 21, 150
N.M. 654, 265 P.3d 705 (alteration in
original) (internal quotation marks and
citations omitted). In this case, Defendant preserved the issue by objecting
to the instruction which combined the
elements of intentional and reckless
abuse, and to the special interrogatory form. See id. (“In this case, defense
counsel preserved the jury instruction
claim when he objected to the inclusion
of the words ‘failure to act’ in Instruction No. 3, and therefore, we review
for reversible error.”). Accordingly, this
Court’s review of the instruction is for
reversible error. See id. “Reversible error arises if . . . a reasonable juror would
have been confused or misdirected.” Id.
¶ 22 (omission in original) (internal
quotation marks and citation omitted).
“[Jury instructions] are to be read and
considered as a whole and when so
considered they are proper if they fairly
and accurately state the applicable law.”
Id. ¶ 21 (alteration in original) (internal
3.The jury instructions in this case
do not constitute reversible error
{26} Defendant argues that Cabezuela
stands for the proposition that error occurs
where the elements of both intentional
and reckless child abuse are contained in
one instruction. Defendant misreads the
holding of Cabezuela. In Cabezuela, the
defendant was charged with intentional
child abuse resulting in the death of a
child under twelve years of age contrary to
Sections 30-6-1(D)(1) and 30-6-1(H). Cabezuela, 2011-NMSC-041, ¶¶ 16, 27. The
district court issued an elements instruction which read, in relevant part: “[The
defendant] caused [the baby] to be placed
in a situation which endangered the life or
health of [the baby]; . . . [the] defendant
20
acted intentionally; . . . [the defendant’s]
actions or failure to act resulted in the
[baby’s death].” Id. ¶ 18. The defendant
was convicted of intentional child abuse
resulting in death. Id. ¶ 15.
{27} This Court held that the elements
instruction was a misstatement of the
law because it included “failure to act,”
which was aligned with a theory of reckless child abuse, an offense with which the
defendant was not charged. Id. ¶¶ 33, 36.
The Court concluded that the jury was
misdirected by the instructions tendered
because the jury could have convicted the
defendant for intentional child abuse, the
only crime with which she was properly
charged, based on an instruction indicating a theory of reckless child abuse. Id. ¶
36.
{28} We find the error in Cabezuela
distinguishable from the purported error
in this case. The defendant in Cabezuela was not charged with reckless child
abuse, yet the jury instructions indicated
a theory of reckless child abuse. Id. ¶¶ 27,
34. Because the jury instructions used in
Cabezuela suggested two distinct theories
of child abuse, intentional and reckless,
and no definition of reckless abuse was
provided, the jury could have convicted
the defendant of intentional child abuse
based on a theory of recklessness. Id. ¶¶
34, 36. Therefore, we held that the jury
instructions constituted reversible error.
Id. ¶ 36.
{29} In the instant case, because the
special verdict forms clearly indicated
which crime Defendant was convicted of,
we hold that the jury instructions do not
constitute reversible error. In Cabezuela,
the jury instructions made it impossible
to discern whether the defendant was
convicted of intentional child abuse,
for which she was charged, or for reckless child abuse, for which she was not
charged. Id. ¶ 36. Here, Defendant was
charged with both intentional and reckless
child abuse. The jury was instructed on the
definitions of reckless acts, in Instruction
3, and intentional acts, in Instruction 4.
The special forms provided to the jury
made it very clear which crime Defendant
was convicted of: intentional child abuse
resulting in the death of a child under
twelve years of age.
{30} Defendant is correct in noting
that in Cabezuela, “we suggest[ed] that
there should be separate instructions for
negligent and intentional child abuse.”
Id. ¶ 37. Read in the context of the Cabezuela opinion, this suggestion was made
in order to avoid verdicts which do not
clearly indicate whether the jury finds
the defendant guilty of intentional or
reckless child abuse. In fact, we recently
noted in Consaul, albeit in the context of
child abuse resulting in great bodily harm,
not death, that the purpose of requesting
separate instructions is so that the jury’s
verdict is made clear. See 2014-NMSC030, ¶ 23 (“When two or more different or
inconsistent acts or courses of conduct are
advanced by the State as alternative theories as to how a child’s injuries occurred,
then the jury must make an informed and
unanimous decision, guided by separate
instructions, as to the culpable act the
defendant committed and for which he is
being punished.”).
{31} We emphasize that the overriding
concern in this case, as it was in Cabezuela, is that the jury’s verdict must be clear
about the crime of which the defendant
was convicted. As in Cabezuela, the distinction in this case between reckless and
intentional conduct is critical because
the child abuse resulted in the death of a
child under twelve. We have repeatedly
explained that the Legislature, in that limited circumstance, has chosen to impose
different punishments based solely on
the defendant’s mental state. See Consaul,
2014-NMSC-030, ¶¶ 21-23 (explaining
that the punishments for intentional and
reckless child abuse resulting in the death
of a child under twelve are life in prison
and 18 years in prison, respectively); Cabezuela, 2011-NMSC-041, ¶ 33 (same),
State v. Garcia, 2010-NMSC-023, ¶¶ 9-13,
148 N.M. 414, 237 P.3d 716 (same).
{32} Clear jury instructions with respect
to the defendant’s mental state, therefore,
are necessary when the abuse results
in the death of a child under twelve to
properly determine the offense of which
Defendant has been found guilty and to
guarantee that the verdict is not the result of confusion. We held in Cabezuela
that separate instructions are one way to
achieve that result. See 2011-NMSC-041, ¶
37 (suggesting that the UJI Committee for
Criminal Cases draft separate instructions
for intentional and reckless child abuse).
We hold that the district court’s approach
in this case was similarly effective, which
consisted of using our current jury instructions to clearly define reckless and intentional conduct and providing a step-down
instruction with special interrogatories
to ensure a unanimous verdict about the
element separating the two offenses. We
commend the district court for crafting a
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solution that harmonized our current jury
instructions with the concerns raised in
our case law.
{33} We also reiterate that, while the
distinction between reckless and intentional conduct was critical in this case,
that distinction is often immaterial when
the child abuse does not result in the death
of a child under twelve. As we recently
explained in Consaul, the Legislature
has chosen to punish all other types of
child abuse the same with respect to
the defendant’s mental state. See 2014NMSC-030, ¶ 22 (“Here, in contrast,
the punishment for child abuse resulting in great bodily harm, whether done
knowingly, intentionally, negligently, or
recklessly, is the same.”); see also NMSA
1978, § 30-6-1(E) (providing that, whether
committed knowingly, intentionally, or
negligently, child abuse resulting in great
bodily harm is a first-degree felony; that
a conviction for a first offense of child
abuse not resulting in death or great
bodily harm is a third degree felony; and
that all subsequent convictions are second
degree felonies); § 30-6-1(F) (providing
that negligent child abuse resulting in the
death of a child is a first degree felony);
§ 30-6-1(G) (providing that intentional
child abuse of a child twelve to eighteen
years of age is a first degree felony). As a
result, in most cases when the abuse does
not result in the death of a child under
twelve, it is not necessary to specify the
defendant’s mental state or to provide
separate jury instructions for reckless or
intentional conduct; evidence that the
defendant acted “knowingly, intentionally
or [recklessly]” will suffice to support a
conviction.2 Section 30-6-1(D) (emphasis
added); cf. Consaul, 2014-NMSC-030, ¶ 23
(“Notwithstanding this lack of difference
in penalty, child abuse resulting in great
bodily harm will sometimes also require
separate jury instructions . . . .” (emphasis added)). Accord Model Penal Code §
2.02(5) (“When recklessness suffices to
establish an element, such element also is
established if a person acts purposely or
knowingly.”).
{34} We conclude that the step-down
instruction and special forms used in
this case sufficiently clarified that the jury
found Defendant guilty of intentional
child abuse resulting in the death of a child
under twelve years of age. Accordingly,
Defendant’s conviction is affirmed.
4.Reckless child abuse resulting in
the death of a child under twelve is
a lesser-included offense of
intentional child abuse resulting in
the death of a child under twelve
{35} Our conclusion that the district
court properly instructed the jury in this
case compels us to clarify another aspect
of our case law related to our child abuse
jury instructions: whether reckless child
abuse may be a lesser-included offense of
intentional child abuse. Several opinions
of this Court and of the Court of Appeals
have touched on this issue, though none
have addressed it conclusively. We do so
now to avoid confusion about our approval
of the district court’s use of a step-down
instruction, a type of instruction typically
reserved for lesser-included offenses. See
UJI 14-250 (providing the jury procedure
for various degrees of homicide); Garcia,
2005-NMCA-042, ¶ 18 (discussing the
proper procedure under UJI 14-250);
UJI 14-6002 NMRA (providing the jury
procedure for considering a “necessarily
included offense”).
{36} Our Court of Appeals first addressed
this issue, although somewhat obliquely, in
State v. Schoonmaker, when it had to decide
the analytically opposite question for double jeopardy purposes: whether intentional
child abuse is a lesser-included offense of
reckless child abuse. See 2005-NMCA012, ¶¶ 14-16, 136 N.M. 749, 105 P.3d 302
(“Schoonmaker I”), rev’d on other grounds
by State v. Schoonmaker, 2008-NMSC-010,
¶¶ 1, 54, 143 N.M. 373, 176 P.3d 1105
(“Schoonmaker II”), overruled by Consaul,
2014-NMSC-030, ¶ 38. The Court rightly
observed that “the statutory elements
for intentional and negligent child abuse
reveal[] that each offense contains an element that the other does not: the mens rea
element.” Id. ¶ 25. It further reasoned “that
these two statutes are mutually exclusive—
one cannot commit an intentional act and
an unintentional but substantially risky
act at the same time, even though the act
is voluntary as to both and the evidence
may be sufficient to charge both offenses
as alternative theories.” Id. ¶ 27. The Court
of Appeals therefore “[held] that the crime
of intentional child abuse is not the same
crime or lesser included crime of negligent
child abuse,” and affirmed the defendant’s
convictions. Id. ¶¶ 27, 38.
{37} We granted certiorari and reversed
the Court of Appeals on different grounds.
See Schoonmaker II, 2008-NMSC-010, ¶
1 (reversing the defendant’s convictions
and remanding for a new trial due to
ineffective assistance of counsel). However, we addressed the defendant’s double
jeopardy argument “to avoid repetition
of any similar errors on retrial.” Id. ¶¶ 41,
46-49. In a footnote to that discussion,
“[w]e agree[d] with the Court of Appeals’
analysis . . . and its holding that intentional
child abuse is not the same crime as, or a
lesser included offense of, negligent child
abuse.” Id. ¶ 46 n.4. We also explicitly approved of the Court of Appeals’ reasoning
that intentional and reckless child abuse
are “mutually exclusive” crimes. Id.
{38} Schoonmaker I’s holding that these
crimes are mutually exclusive, which we
endorsed in Schoonmaker II, became the
basis for the proposition not only that
intentional child abuse is not a lesserincluded crime of reckless child abuse,
but also that reckless child abuse is not
a lesser-included crime of intentional
child abuse. See State v. Davis, 2009NMCA-067, ¶ 9, 146 N.M. 550, 212 P.3d
438 (“[N]egligent [now “reckless”] child
abuse is not a lesser-included offense of
intentional child abuse.” (citing Schoonmaker II, 2010-NMSC-010, ¶ 46 n.4)). We
continue to agree that intentional child
abuse is not a lesser-included offense of
reckless child abuse, but we now clarify
that the Court of Appeals’ conclusion that
the two offenses are mutually exclusive
went too far. As we explain below, the
statutory elements of reckless child abuse
2 We recently found error in Consaul when the district court failed to provide separate instructions for reckless and intentional
child abuse resulting in great bodily harm because “the State’s theories of how that harm occurred were different and inconsistent.”
2014-NMSC-030, ¶ 26. Separate instructions were necessary because the State advanced two “different or inconsistent acts or courses
of conduct . . . as alternative theories as to how [the] child’s injuries occurred.” Id. ¶ 23. The State originally argued that the defendant
recklessly swaddled the child too tightly and laid him face down in his crib. See id. ¶ 24. After the State’s own experts testified that
such conduct could not have caused the child’s injuries, the State sought to prove for the first time that the defendant intentionally
smothered the child by placing his hand or a pillow over the child’s mouth. See id. We held that giving a single instruction that allowed
the jury to pick between the State’s two inconsistent factual theories was reversible error because it made it impossible to determine
which theory the jury relied on to convict the defendant. See id. ¶¶ 25-26.
21
Advance Opinions
twelve are a subset of the statutory elements of intentional child abuse resulting
in the death of a child under twelve. We
therefore hold that reckless child abuse
twelve is a lesser-included offense of
death of a child under twelve.
{39} A lesser-included offense is “a less
serious crime than the one charged, but one
that an accused necessarily committed in
carrying out the more serious crime.” Bryan
A. Garner, Garner’s Dictionary of Legal Usage, 539, 3rd ed. 2011. In State v. Meadors,
1995-NMSC-073, ¶¶ 6, 12, 121 N.M. 38, 908
P.2d 731, this Court “set[] forth the test for
determining whether one offense is a lesser
included offense of another.” State v. Collins, 2005-NMCA-044, ¶ 9, 137 N.M. 353,
110 P.3d 1090, overruled on other grounds
by State v. Willie, 2009-NMSC-037, ¶ 18,
146 N.M. 481, 212 P.3d 369. “In Meadors
we explained that New Mexico follows two
distinct approaches for analyzing whether
one crime constitutes a lesser-included
offense of another.” State v. Campos, 1996NMSC-043, ¶ 20, 122 N.M. 148, 921 P.2d
1266. One is the cognate approach, which
“requires that only those crimes for which
the elements are sufficiently described in
the charging document, and for which
supporting evidence is adduced at trial,
are presented to the jury as lesser-included
offenses.” Id. ¶ 21; see also Meadors, 1995NMSC-073,¶ 11 (clarifying that we refer to
this “test simply as the cognate approach.”).
Having already concluded that, under the
facts of this case, the jury was properly
instructed on both theories of child abuse,
we need not analyze the cognate approach.
We therefore turn to the strict elements test,
under which we conclude that reckless child
abuse is a lesser-included offense of intentional child abuse. Under the strict elements
test, “an offense [is] a lesser-included offense
of another only if the statutory elements of
the lesser offense are a sub-set of the statutory elements of the greater offense such
that it would be impossible ever to commit
the greater offense without also committing
the lesser offense.” Campos, 1996-NMSC043, ¶ 20.
{40} Section 30-6-1(D) includes the
crimes of both intentional and reckless
child abuse:
Abuse of a child consists of a person knowingly, intentionally or
[recklessly], and without justifiable cause, causing or permitting
a child to be:
22
(1) placed in a situation that may
endanger the child’s life or health;
(2) tortured, cruelly confined or
cruelly punished; or
(3) exposed to the inclemency
of the weather.
Although this statute lists the mental states
of “knowingly, intentionally, or [recklessly]” together in Section 30-6-1(D), describing various crimes of child abuse, the
crimes of intentional and reckless abuse
twelve are distinguished by their respective
sentences. Reckless child abuse resulting
in the death of a child under twelve years
of age is a first degree felony punishable
by eighteen years imprisonment. NMSA
1978, § 30-6-1(F) (2009) (“A person who
commits [reckless] abuse of a child that
results in the death of the child is guilty
of a first degree felony.”); NMSA 1978, §
31-18-15(A)(3) (2003) (stating that the
basic sentence for a first degree felony is
eighteen years imprisonment). Conversely,
death of a child under twelve is punishable
by life imprisonment. Section 30-6-1(H)
(“A person who commits intentional abuse
of a child less than twelve years of age that
results in the death of the child is guilty of
a first degree felony resulting in the death
of a child.”); NMSA 1978, Section 31-1815(A)(1) (2005) (stating that the basic sentence for a first degree felony resulting in
the death of a child is life imprisonment).
All of the elements of these two crimes
are contained in one Section: Section 306-1-(D). However, the sentences for these
crimes are contained in separate Sections,
which distinguish one crime from the other on the sole basis of the level of mens rea
required. See §§ 30-6-1(F) (reckless) and
30-6-1(H) (intentional). Thus, we agree
with Schoonmaker I that the only distinction between the two crimes is the level
of mens rea required: either intentional
or reckless. See 2005-NMCA-012, ¶ 25.
{41} However, we disagree that intentional and reckless conduct are “mutually
exclusive.” One can commit child abuse
recklessly without acting intentionally,
but one cannot intentionally commit child
abuse without “consciously disregard[ing]
a substantial and unjustifiable risk,” the
definition of recklessness. See Consaul,
2014-NMSC-030, ¶ 37 (citing Model Penal
Code Section 2.02(2)(c) for definition of
“recklessly”); cf. State v. Garcia, 1992NMSC-048, ¶ 21, 114 N.M. 269, 837 P.2d
862 (“Even though an intentional killing
includes the element of knowledge of a
strong probability of death or great bodily
harm, the converse is not necessarily true;
a killing with knowledge of the requisite
probability does not necessarily include
an intentional killing.”). We therefore
disavow the reasoning in Schoonmaker
I and all other precedent agreeing that
intentional and reckless child abuse are
mutually exclusive crimes. We clarify that
of a child under twelve is a lesser-included
offense of intentional child abuse resulting
in the death of a child under twelve.
{42} We emphasize that when district
courts are required to determine whether
to grant a requested instruction on a lesserincluded offense, Meadors requires analysis of both the strict elements test and the
cognate approach, which “focuses upon
both the charging instrument and the evidence adduced at trial.” 1995-NMSC-073,
¶¶ 6, 11, 12. When a defendant is charged
with intentional child abuse resulting in
the death of a child under twelve, the instruction on the lesser-included offense of
reckless child abuse should only be given if
the evidence could support such a theory.
See State v. Ulibarri, 1960-NMSC-102, ¶ 8,
67 N.M. 336, 355 P.2d 275 (stating that “the
trial court must instruct the jury in every
degree of the crime charged when there
is evidence in the case tending to sustain
such degree.”). We further conclude that,
when it is appropriate to instruct the jury
on the lesser-included crime, it is also appropriate to provide a step-down instruction providing the process by which the
jury should consider each charge. Because
we hold that both offenses were correctly
instructed in this case, we conclude that
the use of a step-down instruction was
appropriate.
{43} Our holding may have important
implications in the charging of future child
abuse offenses. “When one offense is a
lesser included offense of a crime named
in a charging document, the defendant is
put on notice that he [or she] must defend
not only against the greater offense as
charged but also against any lesser included offense.” Collins, 2005-NMCA-044,
¶ 8; see also Davis, 2009-NMCA-067, ¶ 8
(“It is improper to instruct the jury as to a
crime not formally charged if that crime
is not a lesser[-]included offense of the
crime formally charged.” (alteration in
original)). “The defendant’s constitutional
right to notice of the crime against which
he must defend is a consideration that
arises when . . . the State requests a jury
instruction on a lesser-included offense
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Advance Opinions
over the defendant’s objection.” Meadors,
1995-NMSC-073, ¶ 5. Therefore, when
a defendant is charged with intentional
under twelve, he or she will be on notice
to defend against both intentional and
of a child under twelve when the abuse
results from the same conduct or course
of conduct. Cf. Consaul, 2014-NMSC-030,
¶ 24 (requiring separate instructions when
the State advanced two “different and
inconsistent theories” as to the conduct
or course of conduct amounting to child
abuse).
B. Admission of Expert Testimony
{44} Defendant alleges that the district
court erred by allowing the expert forensic
pathologist to testify that Baby Breandra
died of a “constellation of injuries” and that
“it was impossible to tell which one might
have been the lethal injury or in which
order they may have been inflicted.” He
asserts that the testimony lacked specificity
and allowed the jury to speculate on the
cause of death. Defendant’s argument is
not developed beyond this bald assertion,
and he makes only vague reference to
Rules 11-702 to -704 NMRA to support it.
Those rules establish the criteria for expert
opinion testimony, but Defendant does not
explain how they were violated or otherwise support his contention. Nonetheless,
we address this argument.
1.Preservation
{45} “In order to preserve an issue for
appeal, a defendant must make a timely
objection that specifically apprises the trial
court of the nature of the claimed error
and invokes an intelligent ruling thereon.”
State v. Walters, 2007-NMSC-050, ¶ 18,
142 N.M. 644, 168 P.3d 1068 (internal
quotation marks and citation omitted);
Rule 12-216(A) NMRA (“To preserve a
question for review it must appear that a
ruling or decision by the district court was
fairly invoked . . . .”). As the State points
out, Defendant failed to object to this
testimony and therefore failed to preserve
this claim of error for appeal.
{46} Because Defendant did not preserve
this argument, we review it for plain error.
“Under [Rule 11-103(D)-(E) NMRA], this
Court may review evidentiary questions
although not preserved if the admission of
the evidence constitutes plain error.” State
v. Contreras, 1995-NMSC-056, ¶ 23, 120
N.M. 486, 903 P.2d 228. “The plain-error
rule, however, applies only if the alleged
error affected the substantial rights of the
accused.” Id. To find plain error, the Court
“must be convinced that admission of the
testimony constituted an injustice that
created grave doubts concerning the validity of the verdict.” Id. (internal quotation
marks and citation omitted). Further, “[i]n
determining whether there has been plain
. . . error, we must examine the alleged
errors in the context of the testimony as a
whole.” State v. Dylan J., 2009-NMCA-027,
¶ 15, 145 N.M. 719, 204 P.3d 44 (omission
in original) (internal quotation marks and
citation omitted).
3.The admission of Dr. Krinsky’s
testimony was not plain error
{47}In State v. Lucero, we reviewed the
admission of expert testimony for plain
error. 1993-NMSC-064, ¶ 13, 116 N.M.
450, 863 P.2d 1071. The expert in that case
was a psychologist who interviewed a child
who complained about sexual abuse by her
uncle. Id. ¶¶ 2-3. The State asked that the
expert interview the child prior to trial to
determine the child’s competency. Id. ¶ 3.
The expert testified that the child suffered
from post traumatic stress syndrome and
that many of the child’s symptoms were
consistent with those found in children
who have been sexually abused. Id. ¶ 4. The
sexual abuse, the expert testified, caused
the post traumatic stress syndrome. Id. As
part of this testimony, the expert recounted
several statements the child made directly
to her, and commented on the demeanor
and credibility of the child. Id. ¶¶ 6-7.
{48} We held that the admission of this
testimony was not harmless error “[b]ecause
[the expert] repeated so many of the complainant’s statements regarding the alleged
sexual abuse by the defendant and because
she commented directly and indirectly upon
the complainant’s truthfulness.” Id. ¶ 22.
We reasoned that the expert’s “testimony in
[that] case really amounted to a repetition
of the complainant’s statements regarding
sexual abuse made to her during her evaluation” and “[i]n so many words, [the expert]
testified that the complainant had in fact
been molested.” Id. ¶ 21. In addition, “[the
expert] went a step further and stated that
it was the defendant who abused the complainant,” and “[s]he also commented that
the complainant’s statements were truthful.”
Id. We concluded that because the child’s
credibility was a central issue in the case,
and because she and her uncle were the only
witnesses to the alleged abuse, it was likely
that the jury was swayed by the expert’s testimony. Id. ¶ 22. Accordingly, we expressed
“grave doubts concerning the validity of the
verdict and the fairness of the trial.” Id.
{49} In the case at bar, the record reflects
that the piece of Dr. Krinsky’s testimony
that Defendant selectively relies on to support his argument comes from a colloquy
in which Dr. Krinsky identified “multiple
blunt force injuries” as the cause of Baby
Breandra’s death. Dr. Krinsky intimated
that a brain injury could have in fact been
the fatal blow, but affirmatively asserts
that the cause of death was the multiple
blunt force injuries. While Dr. Krinsky
identified several injuries, she was specific
in stating that the injuries together were
the cause of death. We find it difficult to
imagine how this testimony could lead to
jury speculation about the cause of death.
Further, Dr. Krinsky made no assertions
that Defendant caused these injuries, unlike in Lucero, where the expert stated the
child’s uncle molested her. Finally, unlike
Lucero, where the expert likely sealed the
defendant’s fate with her testimony alone,
in this case there is ample evidence outside
of Dr. Krinsky’s testimony to support the
jury’s finding of guilt. Accordingly, we
hold that the admission of Dr. Krinsky’s
testimony was not plain error.
C. Sufficiency of the Evidence
{50} Defendant claims that the State
failed to present sufficient evidence to
prove beyond a reasonable doubt that
Baby Breandra’s injuries were intentional
or recklessly inflicted, rather than accidental. Defendant argues that although the
evidence presented established that Baby
Breandra suffered a constellation of injuries, there was no evidence presented to
show that Defendant caused those injuries,
either intentionally or recklessly. Defendant cites no cases regarding sufficiency
of evidence in support of this argument,
and instead cites State v. Franklin, 1967NMSC-151, 78 N.M. 127, 428 P.2d 982 and
State v. Boyer, 1985-NMCA-029, 103 N.M.
655, 712 P.2d 1. Beyond this, Defendant’s
argument is undeveloped.
{51} The State argues that the evidence
presented was sufficient to support Defendant’s conviction. The State asserts
that the evidence that Baby Breandra was
uninjured before being left alone with
Defendant, that the medical experts determined that the types of injuries Baby
Breandra suffered could not have been
accidental, and that Defendant admitted to
hitting the baby, was sufficient to support
Defendant’s conviction.
{52} In reviewing the sufficiency of the
evidence, “[t]he reviewing court view[s]
the evidence in the light most favorable to
23
Advance Opinions
the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in
the evidence in favor of the verdict.” State
v. Guerra, 2012-NMSC-027, ¶ 10, 284
P.3d 1076 (second alteration in original)
(internal quotation marks and citation
omitted). “The test for sufficiency of the
evidence is whether substantial evidence
of either a direct or circumstantial nature exists to support a verdict of guilty
beyond a reasonable doubt with respect
to every element essential to a conviction.” Id. (internal quotation marks and
citation omitted). “The question before
[the] reviewing [c]ourt is not whether
[the court] would have had a reasonable
doubt [about guilt] but whether it would
have been impermissibly unreasonable
for a jury to have concluded otherwise.”
Id. (second and fourth alterations in
original) (internal quotation marks and
citation omitted). “In our determination
of the sufficiency of the evidence, we are
required to ensure that a rational jury could
have found beyond a reasonable doubt the
essential facts required for a conviction.”
State v. Duran, 2006-NMSC-035, ¶ 5, 140
N.M. 94, 140 P.3d 515 (internal quotation
marks and citation omitted). “Contrary
evidence supporting acquittal does not
provide a basis for reversal because the
jury is free to reject Defendant’s version
of the facts.” Id. (internal quotation marks
and citation omitted). We do “not evaluate
the evidence to determine whether some
hypothesis could be designed which is
consistent with a finding of innocence,”
and we do “not weigh the evidence [or]
substitute [our] judgment for that of the
fact finder so long as there is sufficient
evidence to support the verdict.” State v.
Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M.
126, 753 P.2d 1314.
{53} “[T]he test to determine the sufficiency of evidence in New Mexico . . .
is whether substantial evidence of either
a direct or circumstantial nature exists
to support a verdict of guilt beyond a
reasonable doubt with respect to every
element essential to a conviction.” Id.
“Substantial evidence is relevant evidence
[that] a reasonable mind might accept
as adequate to support a conclusion.” In
re Gabriel M., 2002-NMCA-047, ¶ 22,
132 N.M. 124, 145 P.3d 64 (alteration
in original) (internal quotation marks
and citation omitted). “Just because the
evidence supporting the conviction was
circumstantial does not mean it was not
substantial evidence.” Id. (internal quotation marks and citation omitted). “Intent
24
is subjective and is almost always inferred
from other facts in the case, as it is rarely
established by direct evidence.” State v.
Sosa, 2000-NMSC-036, ¶ 9, 129 N.M. 767,
14 P.3d 32 (internal quotation marks and
citation omitted).
2.The evidence presented was
sufficient to support Defendant’s
conviction for intentional child
abuse
{54} In order to present sufficient evidence for the jury to convict Defendant
of intentional child abuse resulting in the
death of a child under twelve,
the State was required to prove
beyond a reasonable doubt that
(1) Defendant caused Baby [Breandra] to be placed in a situation
which endangered her life or
health, or tortured or cruelly
confined or punished Baby [Breandra]; (2) Defendant acted
intentionally; . . . (3) Defendant’s
actions resulted in the death of
or great bodily harm to Baby
[Breandra];
(4) Baby Breandra was under the age of
twelve; and (5) this happened in New
Mexico. Walters, 2007-NMSC-050, ¶ 28;
see also UJI 14-602 NMRA; § 30-6-1(H).
{55} The State proved the first and second
elements with Defendant’s own statement
that “I slapped her. I got her by her ears
and she didn’t want to keep quiet.” This
statement demonstrates that Defendant
endangered the baby’s health, and that
he acted intentionally. Further, with the
forensic pathologist’s testimony that the
constellation of injuries on Baby Breandra’s body were intentional and that the
manner of death was homicide, the State
showed that the injuries she suffered could
not have been caused by accident. Contra
Consaul, 2014-NMSC-014, ¶ 56 (finding
insufficient evidence of child abuse resulting in great bodily harm by intentional suffocation when “expert medical testimony
provided the only evidence that [the child]
may have been smothered—that a crime
had occurred—and that [the child] had
not been injured by other, noncriminal
causes.”). The State proved the third element, that Defendant’s actions resulted
in the baby’s death, with testimony from
Defendant’s friend Derek Vigil that he had
visited Defendant at home on March 8,
2011, and when he left around 11:30 a.m.
or noon, he did not see any signs that Baby
Breandra was in distress. This shows that
the baby was in good health before she was
left alone with Defendant. In conjunction,
these facts show that Defendant was the
only person with the baby when she was
intentionally injured, proving that Defendant’s acts caused the baby’s death. The
State proved element four by showing that
Baby Breandra’s birthday was September
24, 2009, and she died on March 8, 2011.
Finally, the State proved the fifth element
by showing that these events occurred in
Española, New Mexico.
{56} Viewing the evidence in the light
most favorable to the verdict, the evidence the State presented in support of
Defendant’s conviction is enough that a
rational juror could have found beyond
a reasonable doubt the essential facts required for conviction. We therefore hold
that sufficient evidence was presented to
support Defendant’s conviction.
D. Ineffective Assistance of Counsel
{57} Defendant claimed that he was
denied effective assistance of counsel.
Claims of ineffective assistance of counsel
are reviewed de novo. State v. Boergadine,
2005-NMCA-028, ¶ 33, 137 N.M. 92, 107
P.3d 532. Defendant abandoned this claim,
therefore we do not address it. Although
we do not now comment on the merits
of this claim, Defendant remains free to
raise this issue in a collateral proceeding.
See State v. Baca, 1997-NMSC-059, ¶ 25,
124 N.M. 333, 950 P.2d 776 (“A record on
appeal that provides a basis for remanding
to the trial court for an evidentiary hearing
on ineffective assistance of counsel is rare.
Ordinarily, such claims are heard on petition for writ of habeas corpus . . . .”); State
v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M.
593, 973 P.2d 845 (“Defendant’s proper
avenue of relief [from ineffective assistance
of counsel] is a post-conviction proceeding
that can develop a proper record”).
E.Sentencing
{58} Defendant argues that the district
court’s failure to consider mitigating circumstances during sentencing constitutes
an abuse of discretion, and asks this Court
to remand the case for a new sentencing
hearing. The State concedes that Defendant was entitled to present mitigating
circumstances prior to sentencing. While
we are not bound by the State’s concessions
on appeal, we agree with the parties and
remand to the district court for resentencing, as we discuss below. See State v. Foster,
1999-NMSC-007, ¶ 25, 126 N.M. 646,
974 P.2d 140 (stating that appellate courts
are not bound by the State’s concessions),
abrogated on other grounds by Kersey v.
Hatch, 2010-NMSC-020, ¶ 17, 148 N.M.
381, 237 P.3d 683.
Advance Opinions
1. Procedural background
{59} Defendant argues that during
sentencing, the district court misunderstood its authority to alter the basic
sentence of life imprisonment based
on mitigating circumstances pursuant
to Section 31-18-15.1(A)(1), and that
such misunderstanding was an abuse
of discretion. The State concedes this
point, agreeing with Defendant that the
district court misunderstood the law. The
State acknowledges that Defendant was
entitled to present claims of mitigating
circumstances prior to sentencing, but
does not agree that the district court
should have altered Defendant’s sentence
based on the mitigating circumstances
presented.
{60} After dismissing the jury, the district
court proceeded immediately to sentencing. Upon being asked for its recommendation, the State asserted that the district
court had no choice but to impose a life
sentence. The State presented some of Baby
Breandra’s family members, including her
mother, father, grandmother, and uncle,
who all requested the maximum sentence
of life in prison. Defendant presented his
mother and godmother, who spoke to
Defendant’s good character.
{61} Defense counsel then requested
that the district court consider mitigating
circumstances under NMSA 1978, Section 31-18-15.1(A) (2009) (enhancement
based on aggravating factors recognized as
unconstitutional by State v. Frawley, 2007NMSC-057, ¶ 29, 143 N.M. 7, 172 P.3d
144). [4 Tr. 196:5-6] Defendant argued that
the mitigating circumstances included the
fact that he called the ambulance, cooperated with the police, and had spent a lot
of time taking care of Baby Breandra and
was close with her. Defendant asked the
district court to mitigate up to one-third
of the basic sentence.
{62} The district court noted that “the law
has reserved the stiffest penalties that the
State of New Mexico can give [for cases
in which] somebody injures or hurts or
kills our most vulnerable, our children.”
The district court then stated that it did
not believe it had the authority to alter
the sentence because it believed the law
required a mandatory life sentence. Accordingly, the district court imposed a life
sentence. The State reminded the district
court that Defendant had one prior felony
conviction, subjecting him to a one-year
habitual offender enhancement, which the
district court then added to Defendant’s
life sentence.
{63} “We review the trial court’s sentencing for an abuse of discretion.” State v.
Sotelo, 2013-NMCA-028, ¶ 37, 296 P.3d
1232 (internal quotation marks and citation omitted). “The district court has an
obligation to consider mitigating factors
in sentencing. Failure to do so, whether
based on a misapprehension of the authority given by statute or a belief that a
formal motion is required, is an abuse of
discretion.” Id. ¶ 45.
3.Defendant is entitled to
resentencing because the district
court’s misunderstanding of its
authority to alter the basic sentence
based on mitigating circumstances
was an abuse of discretion
{64} “A person who commits intentional
abuse of a child less than twelve years of
age that results in the death of the child is
guilty of a first degree felony resulting in
the death of a child.” Section 30-6-1(H).
“[T]he basic sentence . . . for a first degree
felony resulting in the death of a child [is]
life imprisonment.” Section 31-18-15(A)
(1). “The appropriate basic sentence of
imprisonment shall be imposed upon a
person convicted and sentenced pursuant to [Section 31-18-15(A)], unless the
court alters the sentence pursuant to the
provisions of the Criminal Sentencing
Act.” NMSA 1978, § 31-18-15(B) (2007).
“The court shall hold a sentencing hearing
to determine if mitigating or aggravating
circumstances exist and take whatever
evidence or statements it deems will aid
it in reaching a decision to alter a basic
sentence.” Section 31-18-15.1(A). “The
judge may alter the basic sentence as prescribed in Section 31-18-15 . . . upon . . .
a finding by the judge of any mitigating
circumstances surrounding the offense
or concerning the offender.” Section 3118-15.1(A), (A)(1). The amount by which
the sentence may be mitigated must be
determined by the judge, but may not
exceed one-third of the basic sentence.
Section 31-18-15.1(G) (2009).
{65} We recently addressed the issue of
whether a district court may mitigate a life
sentence for a conviction of child abuse
twelve in State v. Juan, 2010-NMSC-041,
148 N.M. 747, 242 P.3d 314. The defendant
in Juan was convicted of “child abuse
twelve years of age.” Id. ¶ 10. The district
court declined to consider mitigating
circumstances, concluding “that the Legislature intended that a life sentence be
mandatory for child abuse resulting in
death, reasoning that the statute provided
that the alteration of a sentence could not
exceed one-third of the basic sentence and
one-third of a life sentence could not be
calculated.” Id. ¶ 35.
{66} On appeal to this Court, the defendant in Juan claimed that the district court
erred by failing to consider mitigating
circumstances. Id. ¶ 36. We observed that
“Sections 31-18-15 and 31-18-15.1 explicitly grant the trial court the authority to
alter the basic sentence for all noncapital
felonies, including those that carry a basic sentence of life imprisonment.” Juan,
2010-NMSC-041, ¶ 39. We noted that “[a]
statute must be construed so that no part
of the statute is rendered surplusage or
superfluous,” and concluded that in order
to conclude that district courts lacked authority to mitigate a basic life sentence for a
conviction of child abuse resulting in death,
we would have “to read Subsections (A)(1)
and (A)(2) out of Section 31-18-15, which
we cannot and will not do.” Juan, 2010NMSC-041,¶ 39 (internal quotation marks
and citation omitted). Thus, we held that
“Sections 31-18-15 and 31-18-15.1 grant
the trial court the authority to alter the basic
sentence of life imprisonment for noncapital felonies.” Juan, 2010-NMSC-041, ¶ 39.
Further, we held “that the thirty-year term
for parole eligibility is the proper numerical standard by which to measure the trial
court’s authority to alter a basic sentence
of life imprisonment,” and district courts
could therefore reduce a life sentence by up
to one-third of thirty, or ten years. Id. ¶ 41.
{67}In Juan, we also highlighted the Legislature’s distinction between noncapital
felonies, which carry a basic sentence of
life imprisonment, and capital felonies,
which carry a mandatory sentence of life
imprisonment. Id. ¶ 42. The basic sentence
of life imprisonment for a first degree
felony resulting in the death of a child is
set out in the noncapital felony sentencing
statute, Section 31-18-15(A)(1). Accordingly, we held that “[u]nlike a mandatory
sentence of life imprisonment, a basic
sentence of life imprisonment is subject
to alteration . . . if the trial court finds ‘any
mitigating circumstances surrounding the
offense or concerning the offender.’” Juan,
2010-NMSC-041, ¶ 42 (quoting Section
31-18-15.1(A)(1)). We determined that
the district court “improperly failed to
consider mitigating evidence at [the d]
efendant’s sentencing hearing pursuant to
Sections 31-18-15 and 31-18-15.1.” Juan,
2010-NMSC-041, ¶ 43.
25
Advance Opinions
{68} Here, the district court’s misunderstanding of its authority and obligation
to consider mitigating circumstances,
which resulted in its failure to consider
altering the basic sentence, was an abuse
of discretion. Therefore, we reiterate
that when issuing a basic life sentence
subject to alteration, district courts have
the authority, and the obligation, to consider potential mitigating circumstances,
and we remand to the district court for
resentencing to determine whether the
sentence should be altered.
III.CONCLUSION
{69} While we acknowledge that it would
have been ideal for the district court below
to issue two completely separate instructions for the elements of intentional and
reckless child abuse, we hold that the
instructions issued, along with the special
verdict forms, were sufficient as a whole
to accurately instruct the jury on the law
26
and do not constitute reversible error. In
order to clarify our cases on child abuse
jury instructions, we further hold that
of a child under twelve is a lesser-included
offense of intentional child abuse resulting
in the death of a child under twelve, and
defendants should accordingly be on notice to defend against both. If a defendant
is charged with intentional child abuse,
and the evidence presented could support
a theory of either intentional or reckless abuse, separate instructions for the
elements of each theory should be given,
along with a step-down instruction on the
procedure for considering each theory.
{70} Next, we find no error in the district
court’s admission of Dr. Krinsky’s expert
testimony, and we find that sufficient
evidence was presented to support Defendant’s conviction. Finally, we hold that the
district court’s refusal to consider mitigat-
ing factors when sentencing Defendant,
based on its belief that the sentence could
not be altered, was an abuse of discretion.
Thus, finding no reversible error, we affirm
Defendant’s conviction for intentional
under twelve, and remand to the district
court for resentencing to decide whether
Defendant’s sentence should be altered
based on the district court’s consideration
of potential mitigating factors.
{71} IT IS SO ORDERED.
BARBARA J. VIGIL, Chief Justice
WE CONCUR:
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
Advance Opinions
Opinion Number: 2015-NMCA-029
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ALEX TEJEIRO,
Defendant-Appellant
Docket No. 32,161 (filed December 22, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
STAN WHITAKER, District Judge
GARY K. KING
Attorney General
SRI MULLIS
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
Opinion
Michael D. Bustamante, Judge
{1}Defendant Alex Tejeiro appeals from
the district court’s ruling on his motion
to set aside his guilty plea. He argues that
he received ineffective assistance from his
attorney, who failed to inform him of the
immigration consequences of his plea. We
agree. Accordingly, we reverse.
BACKGROUND
{2}Defendant, a Cuban immigrant,
pleaded guilty to a single count of drug
trafficking in November 2003. He received
a conditional discharge, which he completed successfully, and the matter was
dismissed with prejudice on August 13,
2007. He subsequently learned that his plea
had possible immigration consequences
and filed a motion to set aside his guilty
plea on the grounds that his attorney had
been ineffective in failing to inform him
of that fact. His motion was filed in March
2011. Because the entry of the plea and
the motion to withdraw it were heard by
different judges, hereafter the court that
accepted the guilty plea will be referred
to as the “trial court,” and the court that
heard Defendant’s motion to withdraw as
the “district court.”
{3}The district court initially denied
Defendant’s motion, declining to apply
Paredez retroactively to his plea agreement, which occurred the year before
Paredez was decided. State v. Paredez,
BEN A. ORTEGA
for Appellant
2004-NMSC-036, 136 N.M. 533, 101 P.3d
799. The district court later reconsidered
and set an evidentiary hearing to investigate the merits of Defendant’s claim.
At that hearing, the district court again
denied Defendant’s motion, stating that
Defendant’s counsel was ineffective under
Paredez but that Defendant had not been
prejudiced by his counsel’s incompetence
in accepting the guilty plea. Defendant
appealed.
DISCUSSION
{4} When a defendant moves to withdraw
his guilty plea, the district court’s denial of
that motion is reviewed for abuse of discretion. State v. Carlos, 2006-NMCA-141, ¶ 9,
140 N.M. 688, 147 P.3d 897. An abuse of
discretion occurs when a district court’s
ruling is clearly erroneous or “based on a
misunderstanding of the law[,]” State v. Sotelo, 2013-NMCA-028, ¶ 37, 296 P.3d 1232,
or when the court ignored “undisputed
facts [that] establish[ed] that the plea was
not knowingly and voluntarily given.”
Paredez, 2004-NMSC-036, ¶ 5 (internal
{5}The voluntariness of a guilty plea
depends on whether counsel performed
“ ‘within the range of competence demanded of attorneys in criminal cases.’ ”
Id. ¶ 13 (quoting Hill v. Lockhart, 474 U.S.
52, 56 (1985)) An otherwise valid plea
can thus be undermined by ineffective
assistance from counsel. Garcia v. State,
2010-NMSC-023, ¶ 46, 148 N.M. 414, 237
P.3d 716. Indeed, we have found that when
a defendant enters a plea upon the advice
of his attorney, “the voluntariness and intelligence of the defendant’s plea generally
depends on whether the attorney rendered
ineffective assistance in counseling the
plea.” State v. Barnett, 1998-NMCA-105, ¶
12, 125 N.M. 739, 965 P.2d 323 (emphasis
added). As a result, we must assess a motion of this kind on the merits of its claim
of ineffective assistance of counsel; such
claims are mixed questions of law and fact,
and are reviewed de novo. Id. ¶ 13.
{6}The United States Supreme Court
has established a two-prong inquiry for
determining whether a defendant received
ineffective assistance of counsel: (1) the
trial counsel’s performance fell below the
objective standard of reasonability, and (2)
counsel’s incompetence prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Hester, 1999NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d
729. The defendant must demonstrate the
satisfaction of both prongs to prove that
his plea was not knowing and voluntary
and should be set aside.
A.Defendant’s Counsel Was
Incompetent Under Paredez
{7}Our Supreme Court has recognized
the paramount importance of informing
defendants of immigration consequences
stemming from any guilty pleas. Paredez,
2004-NMSC-036. A defendant’s attorney
has “an affirmative duty” to determine the
specific risk of deportation for his client
and to inform his client of the possible
impact on his immigration status if he
accepts a guilty plea. Id. ¶ 1. If an attorney
provides incorrect advice or misrepresents
the consequences of a plea to his client, his
performance is objectively unreasonable
under Strickland; we require “a definite
prediction as to the likelihood of deportation based on the crimes to which a defendant intends to plead and the crimes listed
in federal law for which a defendant can
be deported.” Carlos, 2006-NMCA-141,
¶ 14. Additionally, the Supreme Court
concluded that “an attorney’s non-advice
to an alien defendant on the immigration
consequences of a guilty plea would also
be deficient performance.” Paredez, 2004NMSC-036, ¶ 16. An attorney who failed
to meet his affirmative burden in providing
his client with information about deportation risks would thus necessarily satisfy
the first prong of the Strickland analysis.
Paredez, 2004-NMSC-036, ¶ 16.
{8}The United States Supreme Court
has also confirmed a defendant’s right
to be informed of specific immigration
27
Advance Opinions
consequences that may stem from guilty
pleas, but has not done so as broadly as
New Mexico. State v. Favela, 2013-NMCA102, ¶ 18, 311 P.3d 1213, cert. granted,
2013-NMCERT-010, 313 P.3d 251. In
Padilla v. Kentucky, the United States Supreme Court held that the duty to inform
a defendant of immigration consequences
arises when “the deportation consequence
is truly clear[.]” 559 U.S. 356, 369 (2010).
We have established more stringent
requirements for defense attorneys, requiring them to inform their clients of
consequences short of deportation and to
provide guidance even in cases in which
implications for immigration status are not
“truly clear.” Favela, 2013-NMCA-102, ¶
18.
{9} Paredez was decided in 2004, a year
after Defendant pleaded guilty. We have
since concluded that the standards regarding ineffective assistance of counsel outlined in Paredez apply retroactively. State
v. Ramirez, 2012-NMCA-057, ¶ 5, 278 P.3d
569, aff ’d sub. nom. Ramirez v. State, 2014NMSC-023, 333 P.3d 240. These standards
are thus applicable to Defendant’s guilty
plea.
{10} Applying Paredez, we review the record for evidence that Defendant was given
appropriate advice regarding the potential
impact of a guilty plea on his immigration
status. We agree with the district court that
such evidence is “[c]learly absent.” Defendant insisted in his own testimony that
he had never been informed of the risk of
deportation or other possible immigration
consequences. His attorney was required to
provide him with such information, even
for those collateral consequences short
of clear deportation risk. Favela, 2013NMCA-102, ¶ 18. He failed to do so.
{11} The record does contain the suggestion that both the trial court and defense
counsel wrongly believed the conditional
discharge would address deportation concerns. Contemplating the consequences
to Defendant if he was “a citizen of another country,” the trial court informed
him that he faced possible immigration
consequences in case of “a conviction on
this charge, especially a deferred or suspended sentence[.]” (emphasis added).
It then elected to release Defendant on a
conditional discharge for a period of five
years, and informed Defendant that if he
successfully completed probation “the
charge will be dismissed and you honestly
can tell the world that you do not have the
felony conviction[.]” The district court
commented that there was a “global under28
standing at th[e] time” of Defendant’s plea
that successful completion of a conditional
discharge would allow him to avoid immigration consequences. Defendant later
testified that he too operated under this
mistaken belief. This understanding was
not correct. See 8 U.S.C. § 1101(a)(48)(A)
(i) (2012).
{12} The trial court’s mistaken beliefs as
to the immigration consequences for Defendant may account for counsel’s failure
to provide accurate advice—but it does not
excuse it. Carlos, 2006-NMCA-141, ¶ 14.
Defendant did indeed face possible deportation to Cuba as a result of his guilty plea,
irrespective of whether he was afforded a
conditional discharge, and it was incumbent on his attorney to know and inform
him of that. Paredez, 2004-NMSC-036, ¶
1; see 8 U.S.C. § 1101(a)(48)(A)(i) (incorporating guilty pleas into the definition of
“conviction” for immigration purposes,
even if no conviction arises under state
law).
{13} For these reasons, the district court
correctly found Defendant’s attorney
incompetent under the first prong of
Strickland.
B.Defendant Was Prejudiced by
Ineffective Counsel
{14} When an attorney fails to advise
his client of the specific immigration
consequences of his case, it satisfies the
Strickland standard “if the defendant suffers prejudice by the attorney’s omission.”
Paredez, 2004-NMSC-036, ¶ 19. In order
to demonstrate such prejudice, a defendant must show that the outcome of the
plea process was affected by his counsel’s
deficient performance. Id. ¶ 20. Our recent
jurisprudence adopts “a broad approach
to how a defendant can demonstrate
prejudice.” Favela, 2013-NMCA-102, ¶ 20.
According to the United States Supreme
Court in Padilla, the petitioner need only
show “that a decision to reject the plea
bargain would have been rational under
the circumstances.” 559 U.S. at 372. This
approach, which is in keeping with New
Mexico law, contemplates not merely the
possibility of success at trial, but also the
opportunity for renegotiation of the plea;
it thus focuses on the rationality of rejecting the plea offer rather than the State’s
evidence or a defendant’s maximum exposure compared to the actual offer. Favela,
2013-NMCA-102, ¶ 21.
{15} A defendant’s testimony may comprise part of the evidence for his claim of
prejudice, but generally the claim cannot
rest solely on uncorroborated self-serving
statements. Patterson v. LeMaster, 2001NMSC-013, ¶ 29, 130 N.M. 179, 21 P.3d
1032. Corroborating evidence may include
pre-conviction statements or actions that
indicate the defendant’s preferences or
intentions. Id. ¶ 30. A defendant’s behavior
after the plea has been entered may also
corroborate his statements, e.g. if he acts
quickly to withdraw his acceptance of the
plea agreement upon learning of immigration consequences. Paredez, 2004-NMSC036, ¶ 22. Our courts have placed no limit
on the types of relevant evidence a defendant may provide to demonstrate that
he would have rejected the plea if given
appropriate advice. State v. Edwards, 2007NMCA-043, ¶ 36, 141 N.M. 491, 157 P.3d
56. This portion of the Strickland analysis
cannot be made according to “mechanical
rules,” but must incorporate a variety of
factors in order to determine what effect
counsel’s incompetent assistance may have
had. Barnett, 1998-NMCA-105, ¶ 32.
{16} The district court’s analysis in this
case focused on three factors: (1) the
absence of pre-conviction statements in
which Defendant “maintained his innocence” or expressed a “desire[] to fight the
charges and take the case to trial[,]” (2) the
benefits of the plea, and (3) the strength
of the State’s case against Defendant. It
did not determine whether Defendant’s
testimony was merely self-serving or not
and limited its evaluation of corroboration to particular types of pre-conviction
evidence. It also placed inappropriate
emphasis on the strength of the State’s
case and the probable similarity of result
if Defendant had chosen to exercise his
trial rights. Because Favela, in which this
Court clarified how a defendant might
demonstrate prejudice, was decided in
2013, the district court lacked the benefit
of this clarification at the time of its decision in 2012, and thus improperly relied
on these factors, particularly the strength
of the State’s case, in its decision. Favela,
2013-NMCA-102, ¶ 20.
{17} Guided by Padilla and Favela, we
review the record for a demonstration
of prejudice. There are several factors in
addition to Defendant’s testimony that
corroborate his claims and demonstrate
prejudice. First, we consider the harshness of deportation and attribute proper
weight to that harshness as an element of
any immigrant’s decision-making process.
Paredez, 2004-NMSC-036, ¶ 18. Second,
we evaluate Defendant’s testimony itself,
which is corroborated in the record at the
time of Defendant’s plea, with references
Advance Opinions
both oblique and direct to Defendant’s
concern about his immigration status and
his attachment to this country. We also
recognize that Defendant’s post-conviction behavior weighs in his favor, though
less significantly in this case than the
pre-conviction circumstances. Third, we
determine that the factors considered by
the district court, when afforded their due
weight under our current legal standards,
were both factually and legally inadequate
grounds for disposing of Defendant’s claim
of prejudice. Taken in conjunction with his
own testimony, the totality of the factors
presented firmly establishes a reasonable
probability that Defendant would have
rejected the plea offer if his attorney had
competently advised him. Finally, we
conclude that under these circumstances
Defendant’s plea was not made knowingly
and voluntarily and that it was, therefore,
error to accept it.
i.Harshness of Immigration
Consequences
{18} As the Supreme Court noted in Paredez, “Deportation can often be the harshest
consequence of a non-citizen criminal
defendant’s guilty plea[.]” Paredez, 2004NMSC-036, ¶ 18. The extremity—and
often finality—of deportation exposure
heightens the probability of prejudice because it is “a particularly severe penalty”
and can be “the most important” result of
a guilty plea for non-citizen defendants.
Padilla, 559 U.S. at 364-65.
{19} Defendant testified that he had
been a political prisoner in Cuba and that
he feared he would face the same fate if
forced to return. He stated that the Cuban government had deprived him of all
his property when he came to the United
States. He described himself as “not in
agreement with Fidel [Castro],” which he
believed would result in cruel treatment
in his native country even if he avoided
imprisonment. The district court apparently agreed that conditions in Cuba are
“particularly horrific.”
{20} The record indicates that the district
court considered the actual probability of
Defendant’s deportation to Cuba, noting,
“They don’t deport people back to Cuba
from the United States technically.” The
State expressed a similar opinion that “the
United States and Cuba do not have an
agreement to return convicted felons back
to Cuba under any circumstances[.]”
{21} The arrangements for deportation
between the United States and Cuba are a
political matter outside the control of either
the court or Defendant and are subject
to change. Moreover, the district court’s
statements do not accurately reflect the
current status of Cuban immigrants convicted of deportable offenses. See 8 U.S.C.
§ 1231(a)(3), (6) (2012); see also, e.g., Perez
v. State, 120 So. 3d 49, 50 (Fla. Dist. Ct. App.
2013) (stating that the defendant’s counsel
wrongly advised that the defendant could
not be deported because he was Cuban,
when in fact deportation consequences
were “inevitable” for his drug offenses).
Defendant himself attempted to inform
the district court of this fact.
{22} Irrespective of the likelihood of
actual deportation to countries such as
Cuba, deportable aliens may be detained
within the United States pending their
removal. Zadvydas v. Davis, 533 U.S. 678,
701 (2001); 8 C.F.R. § 241.4, 241.5 (2012).
In this case, Defendant pleaded guilty to
a charge of drug trafficking. Though he
successfully completed a conditional discharge and has no criminal record in the
state of New Mexico, this plea constituted a
conviction of an aggravated felony for immigration purposes. 8 U.S.C. § 1101(a)(43)
(B); 8 U.S.C. § 1101(a)(48)(A)(i); 18 U.S.C.
§ 924(c)(2) (2012). Federal law mandates
his detention and attempted deportation
as a result. 8 U.S.C. § 1226(c)(1)(B) (2012).
He is not eligible for asylum regardless of
the conditions and consequences he may
face if returned to Cuba. 8 U.S.C. § 1158(b)
(2)(B)(i) (2012). Defendant has not yet
been detained or removed, but immigration proceedings have been initiated. Regardless of the state of those proceedings,
it is the possibility of deportation—in addition to other immigration consequences
short of deportation—that we assess for
purposes of determining prejudice. Carlos,
2006-NMCA-141, ¶ 16. We recognize that
deportation is a particularly difficult and
harsh result for many defendants, Paredez,
2004-NMSC-036, ¶ 18, and this Defendant
in particular testified that he was “abused
in Cuba” and imprisoned for his political
views. For reasons like these, we analyze
prejudice in immigration-based ineffective assistance of counsel claims differently from other types of claims. Favela,
2013-NMCA-102, ¶ 21. The district court
failed to account for the severity of this
punishment and the increased likelihood
that a person faced with deportation might
reconsider his decision to accept a guilty
plea. Paredez, 2004-NMSC-036, ¶ 18.
ii.Defendant’s Testimony and
Corroborating Evidence
{23} Defendant argues that he was prejudiced “by accepting a plea that made cer-
tain his deportation with the prospect of
indefinite detainment to a country where
he had been a political prisoner, where he
had no employment, family[,] or property,
[and] where he was subjected to abuse[.]”
He claims that there is a reasonable probability that he would instead have elected
to go to trial, which “would have provided
him [the] opportunity to maintain his employment, to stay close to his family, and
to live as a free resident[.]” He consistently
maintained that his immigration status
within this country is of utmost importance to him, and stated that he acted to
set aside his guilty plea upon realizing that
it carried negative consequences for that
status. He also asserted that he would have
rejected the plea offer at the outset if he
had known of the possibility of deportation. We find corroboration for several of
Defendant’s claims in the record.
{24} “Deportation can often be the harshest consequence of a non-citizen criminal
defendant’s guilty plea,” Paredez, 2004NMSC-036, ¶ 18, particularly in cases
like Defendant’s, where the immigrant
has established roots within this country.
For over a decade, Defendant has lived
in the United States with his family. We
consider Defendant’s attachment to the
United States as one of the types of evidence he may present to corroborate his
current claims. Edwards, 2007-NMCA043, ¶ 36; see also United States v. Couto,
311 F.3d 179, 191 (2d Cir. 2002), abrogated
on other grounds by Padilla, 559 U.S. 356
(recognizing “[the d]efendant’s overriding
concern is remaining in the United States
and hence she very likely would not have
pleaded guilty if she had understood the
deportation consequences of [her] plea”);
Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct.
App. 2007) (finding a reasonable probability that the defendant would have
rejected the plea if properly advised due
to the “special circumstances” that he had
a child and wife in the United States).
{25} In his testimony, Defendant identified that seeing his children, who reside
in the United States, was always a priority.
The trial court’s personal notes corroborate
the assertion that Defendant expressed
that sentiment prior to the court’s acceptance of his guilty plea, and that he made
the court aware that he had a daughter
residing in Miami. It is evident from these
notes and the record that all parties, including the court, realized that Defendant’s
immigration status was threatened.
{26} Defendant’s attorney provided incompetent advice regarding the impact of
29
Advance Opinions
the conditional discharge, as the district
court properly concluded, and the trial
court itself made statements suggesting it
believed that Defendant would not have
a conviction if he successfully completed
the conditional discharge. The trial court
coupled this explanation with references
to Defendant’s foreign citizenship—clearly
implying that all present knew of or suspected his status and intended to provide
Defendant an option that preserved it. The
trial court’s notes reveal that it specifically
considered sentencing options in light
of Defendant’s immigration status and
the possibility of deportation. In noting
that Defendant requested the conditional
discharge, the court listed only two facts:
that Defendant was deportable and that he
had a daughter in Miami. The record thus
corroborates Defendant’s claim that the
threat of deportation ranked high amongst
his concerns in these proceedings, and that
he communicated that fact to both his attorney and the trial court.
{27} Defendant’s pre-conviction efforts to
inform the trial court of his circumstances
and his clear, acknowledged intent to
avoid deportation and other immigration
consequences at all times during the plea
proceedings strongly support the conclusion that he would have rejected the plea
if properly advised. See Kovacs v. United
States, 744 F.3d 44, 53 (2d Cir. 2014) (stating that prejudice was demonstrated where
defense counsel had negotiated the plea in
a certain way “for the sole reason that defense counsel believed it would not impair
[the defendant’s] immigration status”). The
district court erred in neglecting these
portions of the record in its analysis.
{28} Furthermore, Defendant is not
limited to pre-conviction behavior in his
demonstration of prejudice; the district
court should also have considered his
post-conviction behavior. Edwards, 2007NMCA-043, ¶ 36. In Paredez, our Supreme
Court held that the speed of a defendant’s
post-conviction reaction upon discovering
the adverse immigration consequences of
his guilty plea could be considered when
weighing the reasonable probability that he
would have acted differently with competent advice. Paredez, 2004-NMSC-036, ¶
21 (stating that such an inference of prejudice is “logical” but not “conclusive[]”).
{29} In this case, Defendant claims that
his goal is to obtain citizenship. He did
apply for naturalization, but was determined ineligible. The letter informing
him of this fact also contained reference
to the possibility that he was “amenab[le]
30
to removal,” bolstering the likelihood that
Defendant discovered the threat to his immigration status only upon receipt of the
letter in November 2010. He testified that
he researched the issue himself and then
immediately obtained a lawyer. He moved
to withdraw his guilty plea in early 2011.
Though these actions cannot be “conclusive[,]” we consider them alongside the
other corroborating evidence Defendant
presented to demonstrate prejudice and
recognize that they further support his
claim that he would have rejected the plea
offer if provided reasonable assistance. Id.
{30} The district court failed to consider
Defendant’s post-conviction actions at all.
It assessed only pre-conviction statements,
and further narrowed its evaluation to two
methods for Defendant to demonstrate
prejudice: (1) protestations of innocence,
and (2) expressions of his desire to go to
trial. Though either of these two methods
could have been employed to demonstrate
prejudice, Defendant may use a wide array
of other evidence to show the prejudicial
effect of the incompetent counsel. Edwards, 2007-NMCA-043, ¶ 36. The district
court improperly overlooked the other undisputed corroboration within the record.
It thus clearly erred in saying that the “only
evidence presented in this case [was] the
hearing testimony of [D]efendant.”
iii.The District Court Improperly
Relied on Lesser Factors
{31} The district court placed particular
emphasis on the strength of the State’s
case in determining whether Defendant
had suffered prejudice. The State had a
convincing prima facie case against Defendant; a person cooperating with the
police arranged a purchase of five hundred
dollars’ worth of crack-cocaine, which
resulted in law enforcement officers arresting Defendant as he arrived with 52 rocks
worth approximately five hundred dollars.
{32} In conjunction with the strength of
the State’s case, the district court considered the favorability of the plea agreement.
In Paredez, the Court observed that the
defendant received a “substantial benefit”
from his plea agreement, which did not
require incarceration; “It is conceivable
that a non-citizen might opt to plead
guilty and accept deportation to avoid
serving a prison sentence, rather than face
the possibility of both incarceration and
deportation.” 2004-NMSC-036, ¶ 22. In
this case, the decision was arguably further
simplified when Defendant received the
conditional discharge rather than a term
of imprisonment.
{33} The district court weighed the favorability of the plea agreement against
Defendant’s “likely conviction” on the
facts as presented at the plea colloquy,
which may have exposed Defendant to
immigration proceedings regardless, and
determined that Defendant did not demonstrate prejudice. Its ruling also faulted
Defendant for not “maintain[ing] his innocence” or expressing a desire for trial prior
to conviction. We note that protestations
of innocence and expressions of desire for
trial are both possible examples of preconviction behavior that, if present, would
be a valid part of the prejudice analysis.
Patterson, 2001-NMSC-013, ¶ 30 (stating
that the defendant’s claims of innocence
were examples of pre-conviction behavior
that may indicate disposition to reject the
plea, and were considered alongside other
evidence). Neither, however, is required to
show prejudice, nor do they constitute an
exhaustive list of ways in which a defendant may demonstrate prejudice. Edwards,
2007-NMCA-043, ¶ 36. We also find that
the district court’s heavy, almost exclusive
reliance on the strength of the State’s case
and the benefits of the plea was improper
because it contradicts the standard set
forth in Favela. 2013-NMCA-102, ¶ 21.
{34} The strength of the State’s case may
be considered as part of a larger analysis
of prejudice, Carlos, 2006-NMCA-141, ¶
20, but “should not weigh as heavily, because the relevant initial inquiry is simply
whether, given fully accurate information
about the collateral consequence, it is reasonably probable that the defendant would
have rejected the plea offer.” Favela, 2013NMCA-102, ¶ 21 (alteration, omission,
internal quotation marks, and citation
omitted). Even in cases in which acquittal
is unlikely and the possible penalty for
conviction at trial is severe, non-citizen
defendants “rationally could have been
more concerned about a near-certainty of
multiple decades of banishment from the
United States than the possibility of [conviction].” United States v. Orocio, 645 F.3d
630, 645 (3d Cir. 2011), abrogated on other
grounds by Chaidez v. United States, 133 S.
Ct. 1103 (2013); State v. Sandoval, 249 P.3d
1015, 1022 (Wash. 2011) (en banc) (rejecting the plea even at the risk of conviction
at trial would be particularly reasonable
for a defendant who “had earned permanent residency and made this country his
home”).
{35} The district court expressed the
opinion that, based on the State’s presentation, “Chances were pretty high that
Advance Opinions
[the] evidence was going to be presented
to a jury, that he’s going to be convicted.”
The court stated that Defendant “got . . .
the benefit of the plea” and received “everything that his attorney promised, but
for this unforeseen, by everybody, consequence.” It called the situation “tragic.”
{36} However, the district court also
agreed that Defendant probably did not
obtain a better result by his plea than he
would have at trial. At the time of the
plea, the trial court considered only three
options: suspended sentence, deferred
sentence, and conditional discharge. All
parties agreed that probation was appropriate for Defendant, including the State.
In addition to offering a sentence without
any incarceration time, the State did not
object to arguments for a conditional discharge. As the district court itself acknowledged, had a trial taken place, Defendant
“probably would have gotten probation”
because he “was really a mule.” The risk
that Defendant faced at trial was therefore
a minimal one, as he was likely to attain
substantially the same result but would
retain the chance to avoid immigration
consequences—a chance he might rationally have preferred to the then-unknown
automatic consequences of his guilty plea.
{37} During his testimony at the evidentiary hearing in 2012, Defendant asserted
an affirmative defense to the trafficking
charge, claiming he operated as a mule
under duress. He admitted that he had not
discussed with his attorney the possibility
of using this defense at trial, as his attorney
strongly encouraged him to accept the
plea. Though the existence of an affirmative defense in this case would increase
the probability that Defendant might have
gone to trial rather than face immigration
consequences, Defendant’s lawyer never
testified and so could offer no evidence
regarding the possible existence of an affirmative defense. Both parties agreed that
the attorney could not remember the case
after the significant time lapse. Without
further corroboration of the elements of
this defense and its likelihood of succeeding at trial, we cannot weigh it against the
strength of the State’s evidence at the time
of the plea proceeding. Hill, 474 U.S. at
59 (stating that for ineffective assistance
of counsel claims involving affirmative
defenses, “the resolution of the ‘prejudice’
inquiry will depend largely on whether
the affirmative defense likely would have
succeeded at trial”).
{38} Whether or not the affirmative
defense had merit, the record contains
clear indications that the parties identified
substantial mitigation in the case, which
they considered in both plea negotiations
and sentencing before agreeing that Defendant merited probation. At the guilty plea
hearing, Defendant’s attorney referenced a
meeting in chambers, reminding the court
that it was “aware of how it came down”
and thus asking the court for a conditional
discharge. The attorney further stated, “He
was—in discussions in chambers, as you’ll
recall, Judge, the indication was, he was
a mule[.]” The court also specifically reminded Defendant that he was not to discuss whether the cocaine belonged to him
or whether he was “only helping somebody
else” in his colloquy, stating only whether
he had possessed it. These references are
substantial enough to corroborate portions of Defendant’s recent testimony and
to underline that Defendant received no
extreme benefit from pleading guilty as
compared to his probable trial results.
The district court agreed, but found that
in either circumstance Defendant would
have been exposed to the same possibility
of deportation—and therefore he was not
prejudiced by his plea. “[W]e don’t have
anything that could have been different,”
it stated.
{39} The district court manifestly applied
the wrong standard to Defendant’s motion.
It weighed Defendant’s probable result at
trial against the terms of his current plea,
concluding that they were essentially the
same. This conclusion ignores the possibility that an affirmative defense might
have existed that could have impacted
the results of the trial. Defendant is not
required to demonstrate that he would
have obtained a better result at trial
than he received from his plea. Edwards,
2007-NMCA-043, ¶ 34. He need only
demonstrate a reasonable probability that
he would have rejected the plea as offered
had he known of its immigration consequences. Favela, 2013-NMCA-102, ¶ 21.
Had Defendant rejected the plea, he would
have had the opportunity to renegotiate its
terms—perhaps, e.g., agreeing to plead to
an offense that would not be defined as an
aggravated felony under federal immigration law—or take his case to trial, where
any result may have been obtained. Id.
{40} The district court’s undue emphasis
on the strength of the State’s case and the
apparent appeal of the plea offer, which
resulted in a relatively favorable disposition of the conditional discharge, also fails
to account for both the unique hardship
of immigration consequences and the
normal operation of plea bargain negotiations. Id. ¶ 20. Possible deportation is such
a drastic result that, in cases in which a defendant is unlikely to receive much prison
time, he “is usually much more concerned
about immigration consequences than
about the term of imprisonment.” Paredez,
2004-NMSC-036, ¶ 18 (internal quotation
marks and citation omitted). Defendant’s
rejection of the plea offer in this case would
have been entirely rational if he had been
aware that he might be deported as a result
of accepting it; both the factual aspects
of the record and the Defendant’s own
expressed eagerness to defend his immigration status suggest that there is indeed a
reasonable probability that he would have
behaved differently if afforded the effective
counsel to which he was entitled.
{41} All parties appear to have been
acting with the conscious intent to preserve Defendant’s immigration status but
pursued that end operating on mistaken
beliefs. Under these circumstances, a plea
to a lesser charge was a distinct possibility if Defendant and his counsel had been
properly informed. Certain possession
charges, for example, are not aggravated
felonies under federal law and would
have resulted in less dramatic collateral
consequences. 8 U.S.C. § 1227(a)(2)(B)(i)
(2012) (stating that controlled substance
offenses short of aggravated felonies do
not require mandatory deportation). We
therefore reject the district court’s finding
that there was no prejudice to Defendant.
iv.Voluntariness of Plea When
Counsel Is Ineffective
{42} The voluntariness of a guilty plea
depends on whether counsel provided the
effective assistance to which defendants
are constitutionally entitled. Garcia, 2010NMSC-023, ¶ 46; Barnett, 1998-NMCA105, ¶ 12. Improper advice regarding immigration consequences can undermine
the knowing and voluntary nature of a
guilty plea and render it invalid. Paredez,
2004-NMSC-036, ¶ 19. In this case, “undisputed facts” in the record established
that Defendant never received competent
counsel but rather received incorrect
advice regarding the immigration consequences of his plea. Id. ¶ 5. Defendant also
established a “reasonable probability” that
he would have rejected the plea if aware of
those consequences, thus demonstrating
prejudice. Patterson, 2001-NMSC-013, ¶
18 (internal quotation marks and citation
omitted). In these circumstances, Defendant’s plea could not have been knowing
and voluntary, and it was thus manifest
31
Advance Opinions
error to accept it. Barnett, 1998-NMCA105, ¶ 12; Sotelo, 2013-NMCA-028, ¶ 37.
{43} In analogous circumstances regarding sex offender registration, we found that
a defendant demonstrated prejudice when:
(1) he later testified that he “would have
fought” the charge if he had known it was
a sex offense that would subject him to registration; (2) he presented other evidence
that the State and his own attorney failed
to realize the offense would require registration—and consequently did not advise
him of that fact; and (3) the consequences,
namely sex offender registration, were
harsh. State v. Trammell, 2014-NMCA107, ¶ 18, 336 P.3d 977 (internal quotation
marks and citation omitted), cert granted,
2014-NMCERT-010, 339 P.3d 426. We
concluded that, in such circumstances,
sex offender registration prejudiced the
defendant because “it constituted a breakdown in the fundamental fairness of the
proceedings.” Id.
{44} In this case, Defendant testified
unequivocally at the evidentiary hearing,
“I would rather be in prison here, other
than going back to Cuba.” He claims that
he would have rejected the plea outright
had he known of the consequences for
his immigration status. He also presented
32
evidence, which indeed persuaded the
district court, that his lawyer and the trial
court both seemed unaware of the specific
impacts that would stem from a guilty
plea, and that no one provided him with
effective, reasonable advice with which he
might make an informed decision. In both
of these respects, the present case closely
mirrors our ruling in Trammell; the possible result of deportation, however, has
been acknowledged a uniquely grave consequence. Favela, 2013-NMCA-102, ¶ 20.
Therefore, the same logic applies here as
in Trammell—the collateral consequences
to which Defendant is now exposed constitute a breakdown in the fundamental
fairness of the plea process and require
that his guilty plea be set aside. Trammell,
2014-NMCA-107, ¶ 18.
CONCLUSION
{45} The district court properly concluded that Defendant’s counsel acted
incompetently, but in its prejudice analysis it failed to consider the evidence that
Defendant’s testimony was not merely
“self-serving,” but could be corroborated
by the record. Patterson, 2001-NMSC-013,
¶ 29. It also applied an improper standard
for assessing the likelihood that Defendant
would have rejected the plea. Noting the
likelihood that Defendant would obtain a
similar sentence to the one he received under the plea agreement if he went to trial,
the district court here improperly asked
“[w]ould the result reasonably [have] been
different than it is today?” rather than
whether there was a “reasonable probability” that Defendant would have rejected
the plea with competent advice. Defendant
was not obligated to show that he might
have obtained a “different result” at trial
than he obtained with his plea; he was only
required to show that rejecting the plea
was a rational, reasonably likely course of
action in light of his circumstances. Favela,
2013-NMCA-102, ¶ 20. We determine that
he did so.
{46} For this reason, and in light of the
similarities to Trammell, we reverse the
district court’s denial of Defendant’s motion to set aside his guilty plea and remand
for further proceedings in keeping with
this decision.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
MICHAEL E. VIGIL, Judge
TIMOTHY L. GARCIA, Judge
Advance Opinions
Certiorari Granted, March 23, 2015, No. 35,101
Opinion Number: 2015-NMCA-030
EILEEN J. DALTON,
Plaintiff-Appellee,
v.
SANTANDER CONSUMER USA, INC.,
Defendant-Appellant,
and
PERFORMANCE AUTOMOTIVE GROUP, INC.
d/b/a PERFORMANCE BUICK PONTIAC GMC; LAWRENCE BARELA;
JASON HICKS; BDF ACQUISITIONS OF NEW MEXICO, INC.
d/b/a SIERRA SANTA FE GMC BUICK;
TRAVELERS CASUALTY AND SURETY COMPANY; and BRADFORD D. FURRY,
Defendants
Docket No. 33,136 (filed December 30, 2014)
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
SARAH M. SINGLETON, District Judge
ROB TREINEN
TREINEN LAW OFFICE, P.C.
ADRIAN ALVAREZ
PUBLIC JUSTICE, P.C.
Washington, D.C.
for Appellee
Opinion
Linda M. Vanzi, Judge
{1} In this case, we determine whether an
arbitration scheme in a vehicle financing
contract that carves out exceptions from
mandatory arbitration for self-help and
small claims remedies is substantively unconscionable. We also determine whether
the district court improperly shifted the
burden of proof and whether, according
to our Supreme Court’s interpretation of
federal law, a finding of unconscionability
under these circumstances is preempted by
the Federal Arbitration Act (FAA).
{2} The dispute here arose when Eileen Dalton (Plaintiff) filed suit against
Santander Consumer USA, Inc. (Defendant) for fraud, conversion, breach of contract, breach of warranty of title, and various violations of the Uniform Commercial
ROSS L. CROWN
JASON C. BOUSLIMAN
LEWIS ROCA ROTHGERBER LLP
MARGARET A. GRIGNON
TERRY B. BATES
KASEY J. CURTIS
REED SMITH LLP
Los Angeles, California
for Appellant
Code (UCC) and the Unfair Practices Act.
Defendant moved to compel arbitration of
Plaintiff ’s claims. The district court determined that the self-help and small claims
carve-out provisions were unreasonably
one-sided, rendering the arbitration
clause unenforceable pursuant to Rivera v.
American General Financial Services, Inc.,
2011-NMSC-033, 150 N.M. 398, 259 P.3d
803, and its progeny. We affirm. We hold
that the arbitration clause is substantively
unconscionable because the practical effect
of the carve-out provisions is to mandate
arbitration of Plaintiff ’s most important
and most likely claims while exempting
from arbitration Defendant’s most important judicial and non-judicial remedies.
We further hold that the district court did
not shift the burden of proof and that the
FAA does not preclude the application of
our generally applicable unconscionability
doctrine under these circumstances.
BACKGROUND
{3}Defendant is an Illinois-based subprime auto finance entity. Plaintiff ’s allegations involve a series of at least two
finance contracts that were apparently sold
to Defendant by a car dealership operated
by Performance Automotive Group (Performance). The finance contracts contain
identical arbitration clauses, which state,
in relevant part:
Any claim or dispute, whether in
contract, tort, statute or otherwise . . . between you and us or
our employees, agents, successors
or assigns, which arises out of or
relates to your credit application,
purchase or condition of this vehicle, this contract or any resulting transaction or relationship
(including any such relationship
with third parties who do not sign
this contract) shall, at your or our
election, be resolved by neutral,
binding arbitration and not by a
court action.
Despite this sweeping language, a separate
clause then expressly exempts certain
disputes from mandatory arbitration,
providing that:
You and we retain any rights
to self-help remedies, such as
repossession. You and we retain
the right to seek remedies in
small claims court for disputes
or claims within that court’s jurisdiction, unless such action is
transferred, removed or appealed
to a different court. Neither you
nor we waive the right to arbitrate
by using self-help remedies or
filing suit.
The contracts also provide that the arbitration clauses “shall be governed by the
[FAA].”
{4}Plaintiff ’s complaint alleged that she
purchased a Cadillac from Performance,
who then sold the finance contract to
Defendant. Despite Plaintiff ’s timely
payments according to the terms of her
contract, the Cadillac was repossessed
eight months later by another creditor
because Performance had failed to pay off
a prior lien on the vehicle. In response to
the repossession, Performance agreed to
credit Plaintiff the $4,500 she had paid
on the Cadillac toward the purchase of
a substitute vehicle. Plaintiff returned to
Performance, selected a Pontiac G6, and
signed a second purchase agreement and
finance contract, now providing for a
higher monthly payment. Although the
33
Advance Opinions
facts are in dispute, the Pontiac finance
contract, like the Cadillac contract before
it, may have been sold to Defendant.
Shortly thereafter, and for reasons that are
not clear, the Pontiac was also repossessed.
Plaintiff was left without a vehicle, and her
$4,500 was never returned.
{5}Plaintiff filed suit against a number
of corporate entities and individuals
involved in these transactions, including
Defendant, alleging fraud, conversion,
breach of contract, breach of warranty of
title, and violations of the UCC and the
Unfair Practices Act. Defendant moved
to compel arbitration pursuant to the
identical arbitration clauses in the Cadillac
and Pontiac contracts. The district court
denied Defendant’s motion, reasoning that
the carve-out provisions were substantially
similar to the exceptions from arbitration
that our Supreme Court examined in
Rivera. The district court concluded that
self-help remedies are of absolutely no
use to consumers like Plaintiff and that
small claims remedies are similarly onesided, rendering the arbitration provision
substantively unconscionable. Defendant
timely appealed.
DISCUSSION
Standard of Review
{6}This Court reviews de novo both the
denial of a motion to compel arbitration
and the issue of unconscionability of a
contract. Cordova v. World Fin. Corp. of
N.M., 2009-NMSC-021, ¶ 11, 146 N.M.
256, 208 P.3d 901. We also apply a de novo
standard of review to the interpretation of
statutes, including the FAA. Strausberg v.
Laurel Healthcare Providers, LLC, 2013NMSC-032, ¶ 25, 304 P.3d 409.
Unfairly One-Sided Carve-Out
Provisions Are Substantively
Unconscionable
{7} “[A] finding of unconscionability may
be based on either procedural or substantive unconscionability, or a combination
of both.” Rivera, 2011-NMSC-033, ¶ 47. In
this case, the district court’s ruling and the
arguments on appeal have only addressed
the issue of substantive unconscionability.
“Substantive unconscionability concerns
the legality and fairness of the contract
terms themselves, and the analysis focuses
on such issues as whether the contract
terms are commercially reasonable and
fair, the purpose and effect of the terms,
the one-sidedness of the terms, and other
similar public policy concerns.” Id. ¶ 45
(internal quotation marks and citation
omitted). Thus, contract provisions that
unreasonably benefit one party over an34
other have been held to be substantively
unconscionable. Id. ¶¶ 46, 53-54.
{8}In Cordova, our Supreme Court held
that a one-sided arbitration provision
in a consumer loan agreement was void
as unconscionable. 2009-NMSC-021,
¶ 1. The arbitration clause at issue was
wholly one-sided on its face. In the event
of default, it reserved the lender’s option
to avail itself of any and all “remedies in
an action at law or in equity, including
but not limited to, judicial foreclosure
or repossession[,]” while simultaneously
denying access to the courts to borrowers
for any reason whatsoever. Id. ¶¶ 26-27
(internal quotation marks omitted). This
“self-serving arbitration scheme” was so
unreasonably one-sided that it could not
be enforced. Id. ¶¶ 32-34.
{9}Two years later, the Supreme Court
reaffirmed this principle in Rivera when
it corrected this Court’s “overly narrow
construction” of the unconscionability
doctrine. 2011-NMSC-033, ¶¶ 1, 39-54.
The arbitration clause in the car title loan
contract addressed in Rivera exempted
from mandatory arbitration the lender’s
self-help and judicial remedies, such as
repossession or foreclosure, “with respect
to any property that secures [the loan.]” Id.
¶ 3. This Court attempted to distinguish
Cordova on the basis that the arbitration
clause in Rivera was not completely onesided because it still allowed borrowers to
compel arbitration of any of the lender’s
claims that arose from disputes about the
loan note itself. See Rivera v. Am. Gen. Fin.
Servs., Inc., 2010-NMCA-046, ¶¶ 9-10, 148
N.M. 784, 242 P.3d 351, rev’d, 2011-NMSC033. We thus reasoned that the exemption
only applied to disputes over the lender’s
interest in the collateral that secured the
loan and that those actions were so heavily regulated by Article 9 of the UCC that
their exemption was reasonable. Id. ¶¶
12-13. In upholding the arbitration clause,
we expressed concern that, “without
access to these judicial and extra-judicial
procedures, [the lender] would lose many
of the statutory protections it enjoyed as a
secured creditor.” Id. ¶ 13.
{10} Our Supreme Court expressly rejected our reasoning and reversed. Rivera,
2011-NMSC-033, ¶¶ 50-52. Notwithstanding the lender’s status as a secured
creditor, the Court held that the lender’s
ability to access the courts for its likeliest claims while forcing the plaintiff to
arbitrate the claims that she may have
was unreasonably one-sided. Id. ¶ 53. The
Supreme Court explained that “[a]s a mat-
ter of law arbitrators have broad authority
and are deemed capable of granting any
remedy necessary to resolve a case” and
that “[p]arties may effectively pursue any
remedy or relief in arbitration including
statutory, common law, injunctive, equitable, and all other lawful remedies and
relief.” Id. ¶¶ 51-52 (internal quotation
marks and citation omitted). Thus, since
“an arbitrator can be given the authority
to address any claims a lender may have
against a borrower[,]” including a secured
creditor’s Article 9 claims, the one-sided
arbitration exemptions were unreasonable
and void under state law. See id. ¶¶ 52-54.
Facially Bilateral Carve-Outs
{11}After Rivera, we subsequently applied the unconscionability doctrine to
invalidate a series of ostensibly bilateral
arbitration clauses in admission agreements between nursing homes and their
residents. See Figueroa v. THI of N.M. at
Casa Arena Blanca, LLC, 2013-NMCA077, ¶¶ 33-35, 306 P.3d 480 (invalidating
a clause that exempted all guardianship
proceedings as well as collections and
eviction actions); Ruppelt v. Laurel Healthcare Providers, LLC, 2013-NMCA-014, ¶¶
10-18, 293 P.3d 902 (invalidating a clause
that exempted disputes pertaining to
collections or discharge of residents); cf.
Bargman v. Skilled Healthcare Group, Inc.,
2013-NMCA-006, ¶ 24, 292 P.3d 1 (examining a clause identical to that in Ruppelt
but remanding to give the defendant an
opportunity to present evidence that the
one-sided clause was nonetheless reasonable).
{12} While Cordova and Rivera dealt with
arbitration clauses where one-sidedness
was evident on the face of the agreement,
the clauses in the nursing home cases were
facially bilateral. The nursing home carveouts excluded from arbitration various
claims that either party could technically
bring, but that were, as a practical matter,
unlikely to be brought by a resident. See
Figueroa, 2013-NMCA-077, ¶¶ 26, 28-30;
Ruppelt, 2013-NMCA-014, ¶¶ 3, 15-18. In
both Figueroa and Ruppelt, we determined
that the “practical effect” of the ostensibly
bilateral clauses was to unreasonably favor
the nursing homes. Figueroa, 2013-NMCA077, ¶ 29 (stating that the practical effect of
the agreement “is no different from Cordova
and Rivera: the resident is precluded from
bringing any claims that he or she would
likely have, while the most likely claims
the nursing home would have against the
resident are excluded from arbitration”);
Ruppelt, 2013-NMCA-014, ¶ 18 (stating
Advance Opinions
that “although the exemption provision
may facially appear to apply evenhandedly,
its practical effect unreasonably favors [the
d]efendants, and the provision’s bilateral
appearance is inaccurate”). We thus refused
to uphold the entire arbitration scheme in
both cases.
{13} Applying these principles, we agree
with the district court that the carve-out
provisions in this case, while purportedly
bilateral, are unfairly and unreasonably
one-sided in favor of Defendant and thus
render the agreement to arbitrate substantively unconscionable. However, we
first acknowledge the differences between
the carve-outs at issue here and those in
Rivera.
{14} The carve-out provision in the car
title loan contract in Rivera stated, in relevant part:
[The plaintiff] cannot elect to
arbitrate [the l]ender’s self-help
or judicial remedies including,
without limitation, repossession
or foreclosure, with respect to any
property that secures any transaction . . . . In the event of a default
. . . , [the l]ender can enforce its
rights to [the plaintiff ’s] property
in court or as otherwise provided
by law, and [the plaintiff] cannot
require that [the l]ender’s actions
be arbitrated.
2011-NMSC-033, ¶ 3 (internal quotation
marks omitted). There are two differences
between Rivera and the present case. First,
the clause in Rivera facially distinguished
between the rights of the lender and the
borrower, expressly exempting from arbitration only the lender’s “self-help or
judicial remedies” with respect to the collateral. In contrast, the clause in this case
is facially neutral. However, this difference
is superficial. As discussed previously in
this Opinion, we do not rely on ostensible
neutrality; rather, we look to the practical
effect of a carve-out. See Figueroa, 2013NMCA-077, ¶ 29; Ruppelt, 2013-NMCA014, ¶ 18.
{15} Second, unlike Rivera, the clause
at issue here does not exempt judicial
remedies. Instead, it exempts all remedies
in small claims court. Under the current
circumstances, we conclude that this is a
distinction without a meaningful difference. While we acknowledge that a fair
reading of Rivera evinces concern about
one-sided access to the courts, see, e.g.,
2011-NMSC-033, ¶¶ 39, 46, 48-49, 53, it
is apparent that the small claims carveout has the practical effect of preserving
Defendant’s most important claims as a
secured creditor while severely limiting a
borrower’s access to judicial redress. We
explain.
The Practical Effect of the Small Claims
Carve-Out Renders the Arbitration
Scheme Substantively Unconscionable
{16} We conclude that the small claims
carve-out renders Defendant’s arbitration
scheme unconscionable for two reasons.
First, it preserves Defendant’s access to the
courts to assert its most important claims
as a secured creditor. When a consumerborrower defaults on her payments, the
secured party to a used car financing
contract—in this case Defendant—may
repossess the car pursuant to Article 9
of the UCC. See NMSA 1978, § 55-9-609
(2001). If the repossession can be effected
without a breach of the peace, for instance,
if the borrower keeps the car in a driveway as opposed to a garage, the secured
party can simply take the vehicle without
judicial process. See § 55-9-609(b). Socalled “self-help” repossession does not
usually end the dispute, as the creditor,
seeking to recover its loss, may then sell
the vehicle in a commercially reasonable
manner. See NMSA 1978, § 55-9-610(a)
(2001). After sale, the creditor typically
sues the borrower for any remaining balance owed. If the parties have signed a
mutually binding arbitration agreement,
the dispute over any deficiency would
then be brought before an arbitrator. But
in this case, Defendant has carved out
a small claims exception in a financing
contract for cars valued at $13,297.93 and
$15,965.32, respectively. The amounts
actually financed on the vehicles were
$11,074.93 and $14,305.74. Thus, Defendant could safely assume that any
ordinary suit for a post-reasonable-sale
deficiency judgment would claim damages
of less than $10,000 and would therefore
be exempt from arbitration by the terms
of the small claims carve-out. See NMSA
1978, § 35-3-3(A) (2001) (establishing
the jurisdictional limits of the magistrate
courts); NMSA 1978, § 34-8A-3(A)(2)
(2001) (establishing jurisdictional limits
of the metropolitan court). As drafted,
this scheme affords Defendant the option
to forego arbitration during the entire
typical default process from repossession
to sale to deficiency suit to garnishment
of wages in the magistrate courts. See
Cordova, 2009-NMSC-021, ¶ 26 (stating
that cases of default are the most likely
reason for lenders to take action against
their borrowers).
{17} In an alternative scenario, the borrower keeps the car in a garage where it
cannot be repossessed without a breach of
the peace or a court order. Even in these
cases, however, Defendant’s arbitration
scheme preserves important access to
judicial redress for Defendant. The small
claims carve-out, which by its terms applies to any “remedies in small claims
court,” also reserves access to the courts for
Defendant to judicially foreclose on either
vehicle by replevying the collateral if the
fair market value of the vehicle falls below
$10,000. See NMSA 1978, § 35-11-1 (1975)
(providing for the civil remedy of replevin
in the magistrate courts). Depending on
the values of the Cadillac or Pontiac at
the time of default, these claims would
not always be available to Defendant, but
they would likely be available during the
greater part of the life of either loan, and
they thus contribute to a determination of
substantive unconscionability. See Rivera,
2011-NMSC-033, ¶¶ 53-54 (concluding
that a creditor’s carve-out for judicial
repossession is unfairly one-sided); Ruppelt, 2013-NMCA-014, ¶ 14 (focusing
on fairness rather than “complete onesidedness”).
{18} Second, our Supreme Court has identified a borrower’s typical claims against a
lender to include the exact types of claims
that were brought in this case: fraud and
misrepresentation, “claims based on federal or state consumer protections, such
as the New Mexico Unfair Practices Act,
and tortious debt-collection causes of action[.]” Cordova, 2009-NMSC-021, ¶ 27. In
contrast to Defendant’s likely claims, these
claims, which are protective of consumers
and often provide for punitive damages,
attorney fees, statutory damages, or injunctions, are unlikely to meet the jurisdictional
limits of small claims court. See generally
NMSA 1978, § 57-12-10 (2005) (setting
forth the statutory remedies available for
unfair trade practices); NMSA 1978, §
55-9-625 (2001) (describing the remedies
available when a secured party fails to comply with Article 9 of the UCC); Romero v.
Mervyn’s, 1989-NMSC-081, ¶¶ 31-34, 109
N.M. 249, 784 P.2d 992 (holding that punitive damages may be available in contract
claims when overreaching, malicious, or
wanton conduct is involved). Thus, the
claims that Defendant has subjected to
mandatory arbitration are the same claims
“a borrower is most likely to litigate in a
dispute with a lender, and the very ones
the lender is least likely to want to litigate.”
Cordova, 2009-NMSC-021, ¶ 27.
35
Advance Opinions
{19} Given Defendant’s access to judicial
redress for its most likely claims, the arbitration clause’s one-sided application to
claims for injunctive relief is particularly
concerning. This is evident in the context
of a typical dispute between a secured
creditor and a borrower. When a secured
creditor wants to stop a borrower from
using the collateral, it need not seek an
injunction because it can simply repossess
the collateral. Thus, Article 9 shifts the
burden of initiating judicial action—or in
this case, arbitration—to the borrower. See
Edward L. Rubin, The Code, the Consumer,
& the Institutional Structure of the Common Law, 75 Wash. U. L.Q. 11, 37 (1997).
For instance, it is the aggrieved borrower
who must sue to enjoin the creditor from
conducting an unlawful sale. See § 55-9625. However, this important borrower’s
remedy is uniquely subject to Defendant’s
arbitration clause since the small claims
courts cannot issue injunctions. Section
35-3-3(C)(6).1
{20} A recent decision of a federal court
applying California’s unconscionability
doctrine to an arbitration scheme identical
to that in this case is in accord with our
analysis. See Trompeter v. Ally Fin., Inc.,
914 F. Supp. 2d 1067 (N.D. Cal. 2012). In
Trompeter, the court noted that the defendant’s carve-outs for self-help repossession
and small claims remedies operated in tandem to allow the defendant the option to
forego arbitration during typical disputes
with its borrower. Id. at 1073-74. “If the
consumer stops paying on the debt,” the
court stated, “his or her vehicle will likely
be repossessed and the consumer could
be held liable for any deficiency after disposition of the repossessed vehicle[.]” Id.
at 1073. Meanwhile, the borrower’s likely
remedies, such as injunctions or statutory
lemon law claims were all subject to the
arbitration clause. Id. at 1073-74. This contributed to a finding of unconscionability.
Id.
{21}The bulk of Defendant’s argument
urges us to ignore the self-help carveout. Defendant contends that “[t]he
arbitration provision does not exempt
from arbitration [the] right to proceed
with self-help repossession. It simply
notes the existence of such remedies.”
In other words, according to Defendant,
the language exempting self-help applies
to a non-judicial, non-arbitrable right is
thus superfluous and therefore cannot be
unconscionable.
36
1
{22} Even assuming that self-help repossession is necessarily non-arbitrable—
which in our view is not entirely clear,
see Rivera, 2011-NMSC-033, ¶ 51 (“As a
matter of law arbitrators have broad authority and are deemed capable of granting
any remedy necessary to resolve a case.”);
see also Buffalo Forge Co. v. United Steelworkers of Am., AFL-CIO, 428 U.S. 397,
405-06 (1976) (stating that a court would
be permitted to enjoin a self-help labor
strike if the strike arose from a dispute
that was subject to binding arbitration);
Greene v. Alliance Auto., Inc., 435 S.W.3d
646, 653 (Mo. Ct. App. 2014) (examining
a clause requiring arbitration prior to exercise of a creditor’s self-help repossession
remedy), the fact remains that Defendant
is a secured creditor that can generally act
outside the judicial process to foreclose
on its collateral. Including an arbitration
clause in a vehicle financing contract
would normally subject to mandatory
arbitration Defendant’s most important
remaining remedies: the ability to sue for
a deficiency judgment or the ability to judicially foreclose on the vehicles when selfhelp repossession cannot be completed
without a breach of the peace. In this case,
however, Defendant has carved out a small
claims exception that encompasses both of
these remedies. Thus, Defendant’s small
claims carve-out, viewed in the context of
Defendant’s self-help right—whether preexisting or also carved out—renders the
agreement to arbitrate unfairly one-sided.
{23} While ostensibly bilateral on its
face, the practical effect of Defendant’s
decision to exempt small claims remedies,
much like the “collections” exceptions
at issue in our nursing home cases, is to
create a choice of forum for its preferred
claims, while relegating a borrower’s most
likely claims to mandatory arbitration. See
Figueroa, 2013-NMCA-077, ¶ 29; Ruppelt,
2013-NMCA-014, ¶ 18. Under these circumstances, we hold that the arbitration
clauses in the Cadillac and Pontiac finance
agreements are substantively unconscionable as a matter of law.
The District Court Did Not Shift the
Burden of Proof to Defendant
{24} Defendant next argues that the district court improperly allocated to it the
burden to prove the absence of unconscionability. Specifically, Defendant contends
that the district court raised and decided
the issue of the small claims exemption
“sua sponte” and without any evidence
from Plaintiff, thereby impermissibly shifting the burden of proof. We disagree.
{25}The parties do not dispute that the
proponent of the affirmative defense of
unconscionability bears the burden of proof.
Strausberg, 2013-NMSC-032, ¶ 48. Strausberg was decided after the parties completed
their briefing on Defendant’s motion to
compel arbitration but five days before the
district court held its hearing on the motion.
At the hearing, Plaintiff, through her attorney, provided the court with a copy of the
Strausberg decision and informed the court
that she bore the burden of proving unconscionability. Plaintiff then analogized this
case to Rivera in light of the nursing home
cases and their recognition of the “practical
effect” of arbitration provisions. The district
court did not hold an evidentiary hearing
to determine whether the borrower in a
vehicle financing contract is less likely than
the lender to file suit in small claims court.
Instead, for some of the reasons discussed
in this Opinion, the district court concluded
that the arbitration clause at issue here is
substantially similar to that in Rivera and
is therefore unconscionable.
{26} We note first that the district court
was entitled to raise the small claims issue
and request argument from counsel at the
hearing on Defendant’s motion to compel
arbitration. We can find no authority to the
effect that a court shifts the burden of proof
by asking counsel a question at a hearing sua
sponte. “The theory of pleadings is to give
the parties fair notice of the claims and defenses against them, and the grounds upon
which they are based.” Schmitz v. Smentowski, 1990-NMSC-002, ¶ 9, 109 N.M.
386, 785 P.2d 726. In Plaintiff ’s response
to the motion, she pleaded as an affirmative defense that the arbitration clause was
unconscionable. Her pleading specifically
stated that the small claims exemption does
not diminish the impact of the self-help
repossession carve-out because Defendant
“still has an unlimited right to access the
courts for the claims it is most likely to
bring, while a consumer still is forced into
arbitration for the claims that a consumer
would most likely want to bring.” Defendant
was on sufficient notice that the court would
have to consider the value to consumers of
the small claims carve-out in order to make
its ruling on Plaintiff ’s affirmative defense.
Both parties argued the point at the hearing,
and the court was persuaded by Plaintiff. We
find no error here.
When an injunction is granted by the arbitrator, Defendant’s arbitration clause then singles it out as an appealable award.
Advance Opinions
{27} Second, the district court was not
required to hold an evidentiary hearing on
the small claims issue. See State ex rel. King
v. B & B Inv. Grp., Inc., 2014-NMSC-024,
¶ 32, 329 P.3d 658 (stating that “substantive unconscionability can be found by
examining the contract terms on their
face”). The court’s conclusion was based
on substantial similarities to exemptions
deemed unconscionable by our appellate
courts. While it is true that Plaintiff bore
the burden of persuasion on the issue,
Plaintiff argued pursuant to our precedents that it is self-evident that a small
claims exception unfairly favors lenders
under these circumstances. See Figueroa,
2013-NMCA-077, ¶ 31. Defendant failed
to adequately rebut that argument. A
similar situation arose in Figueroa, where
we stated:
In further support of its claim,
[the d]efendant asserts that [the
p]laintiff failed to present evidence that the arbitration agreement exempts the most likely
claims [the d]efendant would
bring against a resident. We
conclude that the inference that
guardianship, collection, and
eviction proceedings would be
the most likely claims of the nursing home is self-evident.
Id. Given the value of the collateral in this
case and the ability of a secured creditor
to sue for a deficiency judgment in small
claims court, we conclude that the usefulness of the small claims carve-out to Defendant is similarly self-evident. Moreover,
given our Supreme Court’s determination
that a borrower’s most likely claims against
a lender include fraud and misrepresentation, “claims based on federal or state
consumer protections, such as the New
Mexico Unfair Practices Act, and tortious
debt-collection causes of action[],” Cordova, 2009-NMSC-021, ¶ 27, and in light
of our statutes and precedents that make
available injunctions, punitive damages, or
trebled damages in those types of cases, we
conclude that the small claims carve-out is
not similarly suitable for borrowers. Therefore, as in Figueroa, we reject Defendant’s
contention that a lack of evidence requires
reversal. See 2013-NMCA-077, ¶ 31. If
Defendant desired to factually dispute the
general precedent that was established by
our appellate courts, it had the right to
present evidence to distinguish the exception in this particular case. See Bargman,
2013-NMCA-006, ¶¶ 22-24 (recognizing
the right to address the issue of unconscionability by presenting evidence regarding
the neutral and other legitimate reasons
for an exception to mandatory arbitration). Defendant’s failure to utilize its opportunity to factually rebut the apparent
one-sidedness of the carve-out exception
to arbitration was of its own choosing and
will not be second guessed on appeal. See
id. ¶ 17 (clarifying that there is no inflexible rule that one-sided clauses are always
unreasonable and cannot be reviewed on
a case-by-case basis).
Our Conclusion Is Not Preempted by
the FAA
{28} “The FAA was enacted in 1925 in
response to widespread judicial hostility
to arbitration agreements.” AT&T Mobility
LLC v. Concepcion, ___ U.S. ___, ___, 131
S. Ct. 1740, 1745 (2011). The FAA requires
courts to enforce a valid arbitration agreement unless the agreement is revocable
under established principles of contract
law. See 9 U.S.C. § 2 (2013) (“A written
provision in . . . a contract . . . to settle by
arbitration a controversy thereafter arising
out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the
revocation of any contract.”). This “savings
clause” permits state courts to invalidate
agreements to arbitrate via “generally applicable contract defenses, such as fraud,
duress, or unconscionability, but not by
defenses that apply only to arbitration or
that derive their meaning from the fact
that an agreement to arbitrate is at issue.”
AT&T Mobility, ___ U.S. at ___, 131 S.
Ct. at 1746 (internal quotation marks and
citation omitted).
{29} In accordance with the FAA, our
Supreme Court has consistently upheld
the application of our generally applicable
unconscionability doctrine to one-sided
arbitration agreements. See Strausberg,
2013-NMSC-032, ¶¶ 49-50 (holding that
a special rule that applies only to nursing
home arbitration agreements is preempted
by the FAA, but stating that “a court may,
consistent with the FAA . . . invalidate an
arbitration agreement through the application of an existing common law contract
defense such as unconscionability”); see
also Flemma v. Halliburton Energy Servs.,
Inc., 2013-NMSC-022 (same), ¶ 19, 303
P.3d 814; Rivera, 2011-NMSC-033, ¶¶ 1518 (same); Cordova, 2009-NMSC-021, ¶¶
35-38 (same).
{30} The parties argue the merits of a recent decision of the Tenth Circuit Court of
Appeals, which determined that our state
courts are applying the unconscionability
doctrine based on an impermissible “perceived inferiority of arbitration to litigation as a means of vindicating one’s rights.”
THI of N.M. at Hobbs Ctr., LLC v. Patton,
741 F.3d 1162, 1169 (10th Cir. 2014). We
do not address this issue. Appeals in this
Court are governed by the decisions of the
New Mexico Supreme Court—including
decisions involving federal law, and “even
when a United States Supreme Court decision seems contra.” State v. Manzanares,
1983-NMSC-102, ¶ 3, 100 N.M. 621, 674
P.2d 511; see State ex rel. Martinez v. City
of Las Vegas, 2004-NMSC-009, ¶ 20, 135
N.M. 375, 89 P.3d 47 (stating that this
Court is bound by our Supreme Court
precedent); State v. Wilson, 1994-NMSC009, ¶ 5, 116 N.M. 793, 867 P.2d 1175
(same). As discussed previously in this
Opinion, our Supreme Court has already
expressly rejected Defendant’s precise
argument that applying the unconscionability doctrine to a carve-out exempting
Article 9 rights is somehow inconsistent
with the FAA. Rivera, 2011-NMSC-033,
¶¶ 50-52. We are bound by that decision.
{31} Accordingly, we conclude that
the arbitration provisions are unfairly
one-sided and unenforceable. Since “the
exemptions of certain claims from arbitration are so central to the agreement that
they are incapable of separation from the
agreement to arbitrate,” the arbitration
clause must be stricken from the contract
in its entirety. Figueroa, 2013-NMCA-077,
¶ 39.
CONCLUSION
{32} The order of the district court is affirmed.
LINDA M. VANZI, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
TIMOTHY L. GARCIA, Judge
37
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[email protected].
Turner Law Office is currently seeking a fulltime associate attorney to handle Public Defender cases out of Dona Ana County, Luna
County, Hidalgo County and Grant County.
Please send resume to smvturnerlaw@
qwestoffice.net, fax to 575-546-9014, or mail
Attention: Robert F. Turner, 900 S. Platinum,
Deming, NM 88030, 575-544-4306.
Senior Trial Attorney - This position requires
substantial knowledge and experience in criminal prosecution, rules of criminal procedure and
rules of evidence, as well as the ability to handle
a full-time complex felony caseload. Admission
to the New Mexico State Bar and a minimum
of five years as a practicing attorney are also
required. Assistant Trial Attorney - The 13th
Judicial District Attorney’s Office is accepting
applications for an entry to mid level attorney to
fill the positions of Assistant Trial Attorney. This
position requires misdemeanor and felony caseload experience. Associate Trial Attorney - an
entry level position for Cibola (Grants), Sandoval
(Bernalillo) or Valencia (Belen) County Offices.
The position requires misdemeanor, juvenile and
possible felony cases. Upon request, be prepared
to provide a summary of cases tried. Salary for
each position is commensurate with experience.
Send resumes to Kathleen Colley, District Office
Manager, PO Box 1750, Bernalillo, NM 87004,
or via E-Mail to: [email protected].
Deadline for submission of resumes: Open until
positions are filled.
Summer Law Clerk Position
Busy litigation Firm looking for Summer
Law Clerk with a desire to work in tort and
insurance litigation. If interested, please send
resume and recent writing sample to: Hiring
Partner, Guebert Bruckner P.C., P.O. Box
93880, Albuquerque, NM 87199-3880. All
replies are kept confidential. No telephone
calls please.
Lawyer Position
Guebert Bruckner P.C. seeks an attorney with
up to five years experience and the desire to
work in tort and insurance litigation. If interested, please send resume and recent writing
sample to: Hiring Partner, Guebert Bruckner
P.C., P.O. Box 93880, Albuquerque, NM
87199-3880. All replies are kept confidential.
No telephone calls please.
Patent Attorney
HAYES SOLOWAY P.C., a multi-office boutique IP firm seeks EE (or equivalent) patent
attorney with 2-5 years minimum experience
for our Tucson office. More details about our
firm can be found at www.hayes-soloway.
com. Salary commensurate with experience.
Please submit a resume and cover letter to Stephen Mosier at [email protected].
Assistant District Attorney
The Fifth Judicial District Attorney’s office has
an immediate position open to a new or experienced attorney. Salary will be based upon the
District Attorney Personnel and Compensation
Plan with starting salary range of an Associate Trial Attorney to a Senior Trial Attorney
($41,685.00 to $72,575.00). Please send resume
to Janetta B. Hicks, District Attorney, 400 N.
Virginia Ave., Suite G-2, Roswell, NM 882016222 or e-mail to [email protected].
Indian Law Commercial
Transactions Attorney
Albuquerque firm focusing on federal Indian
law representation is seeking an associate attorney with 5+ years’ experience representing
clients in commercial transactions. Applicants must be licensed in a state jurisdiction.
Position requires substantial experience in
commercial transactions, preferably in the
areas of federal Indian law and tribal law.
Applicants must be motivated, hard-working,
able to work independently and as part of a
team, and must be passionate about serving
Native American individuals, tribes, pueblos
and their business enterprises. To apply, submit a cover letter, resume, three references
and a writing sample to Johnson Barnhouse
& Keegan LLP at kgriego@indiancountrylaw.
com.
Indian Law Litigation Attorney
Law Firm Office Manager
Deputy District Attorney
Paralegal/Legal Assistant –
Reproductive Freedom Fellow
Albuquerque firm focusing on federal
Indian law representation is seeking an associate attorney with 5+ years’ experience
in litigation. Applicants must be licensed
in a state jurisdiction. Position requires
substantial experience in litigation, preferably in the areas of federal Indian law and
tribal law. Applicants must be motivated,
hard-working, able to work independently
and as part of a team, and must be passionate about serving Native American individuals, tribes, pueblos and their business
enterprises. To apply, submit a cover letter,
resume, three references and a writing
sample to Johnson Barnhouse & Keegan
LLP at [email protected].
Deputy District Attorney wanted for immediate employment with the Seventh Judicial
District Attorney’s Office, which includes Catron, Sierra, Socorro and Torrance counties.
Employment will based primarily in Socorro
County (Socorro). Must have a minimum
of 6 years criminal law experience, including 2 years of supervision/administration
experience, and must be willing to relocate
within 6 months of hire. Salary will be based
on the NM District Attorneys’ Personnel &
Compensation Plan and commensurate with
experience and budget availability. Send resume to: Seventh District Attorney’s Office,
Attention: J.B. Mauldin, P.O. Box 1099, 302
Park Street, Socorro, New Mexico 87801.
Staff Attorney
New Mexico Appleseed seeks a staff attorney
to work on a variety of poverty-related issues
such as hunger, homelessness, and foster
care. Primary responsibilities include legal
research and writing, policy analysis and
advocacy, legislative drafting, negotiation,
community education, and collaboration
with non-profit, community-based, and
governmental organizations. This position
does not involve litigation or individual client representation. Diverse candidates are
encouraged to apply. Send a cover letter, law
school transcript, writing sample and resume
to Jennifer Ramo at [email protected],
or contact us for details.
Experienced Office Manager needed. Position
is temporary with the potential to become
permanent. Responsibilities include maintenance of personnel files, payroll management,
administration of employee benefits; and
oversight of the firm’s accounting activities.
Requires experience and proficiency with
Microsoft Office, Timeslips and Quickbooks.
Must have exceptional attention to detail,
excellent organizational skills, and superior
interpersonal and client service skills. Competitive salary and benefits. Please send cover
letter, resume and three references to cbs@
stetsonlaw.com.
The American Civil Liberties Union (ACLU) of
New Mexico seeks a full-time Paralegal/Legal
Assistant, based in Albuquerque. This position
provides administrative, clerical and research
support for attorneys who litigate civil rights cases. For the full position announcement and how
to apply: www.aclu-nm.org/job-announcementparalegallegal-assistant/2015/05/ Applications
accepted until June 5, 2015.
Services
Briefs, Research, Appeals—
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
Available for Research and
Writing Assignments
Attorney with 7 years appellate court experience available for research and writing
assignments. Reliable and thorough: motions,
briefs, research. Email llhouselaw@gmail.
com or call 505-715-6566 or 505-281-9293.
Orthopedic Surgeon
Orthopedic Surgeon available for case review,
opinions, exams. Rates quoted per case. Send
inquiries to: [email protected]
Translation Services
Paralegal
Litigation paralegal with background in
large volume document control/management, trial experience, and familiar with
use of computerized databases. This is an
opportunity for a highly motivated, task &
detail-oriented professional to work for an
established, well-respected downtown law
firm. Competitive benefits. Email resume to:
[email protected]
Former paralegal available for translation
services (English to Spanish, Spanish to
English), available for office consultations
and documents transcription/translation.
Call Miriam at 505-506-6292.
Legal Asst/Paralegal Avail
for Contract Work
General/Civil Litigation; E-File; Familiar w/
Court Procedures Client Contact; Reliable &
Professional [email protected]
41
Office Available for Rent
Office Space
1905 Lomas Blvd NW
ABQ NM 87104
Law Offices for rent. Great location. Very
close to downtown courthouses. Property
features: conference room, copier/scanner/
printer/fax, Comcast internet/phone, janitorial service. Filing room, extra cubicles,
receptionist area, waiting room, mini
kitchen, crystal springs service, courtyard.
Rent is $475.00 per month. Damage Deposit
is $100.00.
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
One office available for rent, including secretarial area, at 2040 4th St. NW (I-40 & 4th
St.), ABQ. Rent includes receptionist, use of
conference rooms, high speed internet, phone
system, free parking for staff and clients, use
of copy machine, fax machine and employee
lounge. Contact Jerry or George at 505-2436721 or [email protected]
Miscellaneous
Will Search
I am searching for a Last Will and Testament of William Richard Letteris. Anyone
with knowledge of such a document please
contact the Law Office of Benjamin Hancock
at 505-508-4343, or via e-mail at benjamin.
[email protected].
Prominent Office in the Albuquerque Plaza
Office Building (affectionately known as the
Bank of Albuquerque building). Plaza500’s
ready-to-go offices, at 201 3rd Street NW,
are centrally located near all courthouses.
Monthly fee includes covered parking, VoiP
phone, phone line, high speed internet, free
Wi-Fi, conference room hours, Starbucks
coffee and water service, printer and fax
use, professional reception service, 24-hour
secure access, utilities and janitorial services.
Drop by or contact Sandee at 505-999-1726/
[email protected] to make an appointment.
NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM (JLAP)
Through JLAP, I’ve been given the freedom to become
the person that I’ve always wanted to be. This
program saved my life and my family.
–SM
Thanks to JLAP, I am happier, healthier and stronger
than I have ever been in my entire life!
–KA
Free, confidential assistance to help identify
and address problems with alcohol, drugs,
depression, and other mental health issues.
Help and support are only a phone call away.
Confidential assistance – 24 hours every day.
Judges call 888-502-1289
Lawyers and law students call 505-228-1948 or 800-860-4914
www.nmbar.org
42
We’re ready
to print YOUR
business package!
MAILING ADDRESS:
PO Box 3070
Albuquerque, NM 87190-3070
Mary Ann R. Burmester
PHYSICAL ADDRESS:
City Place | Suite 2000
2155 Louisiana NE
(505) 881-2566
201 Third St. NW, Suite 500, Albuquerque, NM 87102 • P: 505.944.9030 • F: 505.944.9091 • [email protected]
NM Divorce & Custody Law LLC
201 Third St. NW, Suite 500, Albuquerque, NM 87102 • P: 505.944.9030 • F: 505.944.9091 • [email protected]
Mary Ann R. Burmester
2727 San Pedro NE, Suite 114
Attorney
CITY PLACE SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070
87190
201 Third St. NW, Suite 500
Tatiana D. Engelmann
(505) 881-2566
2727 San Pedro NE | Suite 114
attorney at law
Mary T. Torres
201 Third St. NW, Suite 500
We help families solve problems.
CITY PLACE | SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070 (87190-3070)
P: 505.944.9030
F: 505.944.9091
[email protected]
(505) 883-3070
Fax (505) 889-3111
e-mail: [email protected]
web: www.atkinsonkelsey.com
[email protected]
www.nmdivorcecustody.com
Law Offices of
Peter F. Staiti, llc
7400 Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109
Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]
Law Offices of
Peter F. Staiti,
FrankllcA. Baca
Attorney at Law
7400 Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109
Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]
Law Offices of
2727 San Pedro NE, Suite 114, Albuquerque, NM 87110
www.nmdivorcecustody.com
Telephone (505) 883-3070 | Facsimile (505) 889-3111
www.AtkinsonKelsey.com
Suite 39
7400 Montgomery Blvd. NE,
Frank A. Baca
Law Offices of
Attorney at Law
Wills, Probate & Real Estate
Transactions
7400 Montgomery Blvd. NE, Suite 39
Tel: (505) 243-9290 • Fax: (505) 715-5845
[email protected]
7601 Jefferson St. NE, Ste. 380
505.400.5588 • [email protected]
Quality, full-color printing.
Local service with fast turnaround.
7601 Jefferson St. NE, Ste. 380, Albuquerque, NM 87109
505.400.5588 • [email protected]
For more information, contact Marcia Ulibarri
at 505-797-6058 or [email protected]
Ask about your member discount.
DIGITAL PRINT CENTER
43
2015-2016
Bench & Bar Directory
Ships to members
in early June.
Order extra directories!
Members
Nonprofit Organization/Government Entities
Other
Order form available at
www.nmbar.org
$50/copy
$55/copy
$60/copy

5/27 - State Bar

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