November 25, 2015 • Volume 54, No. 47 · 4 Bar Bulletin - November 25, 2015 - Volume 54, No. 47. Notices. c. ourt. N. ews. Professionalism Tip. Second Judicial District Court. Announcement

Through These Windows, by Melinda Silver (see page 3) Griffin Gallery Fine Art, Edina, Minn.

Inside This Issue

November 25, 2015 • Volume 54, No. 47

Table of Contents .................................................... 3

Second Judicial District Court: Announcement of Vacancy ................................... 4

2016 Budget Disclosure ......................................... 4

Appellate Practice Section: Brown Bag Lunch with Judge Linda M. Vanzi ....................... 4

Young Lawyers Division Election: Online Voting Open ............................................... 5

Outstanding Mediators .......................................... 6

Clerk’s Certificates ................................................ 12

From the New Mexico Court of Appeals

2015-NMCA-079, No. 33,599: Vigil v. The Public Employees Retirement Board ............................................ 17

2015-NMCA-080, No. 33,568: In the Matter of the Estate of Edward K. Mcelveny v. State .......................... 22

2015-NMCA-081, No. 32,928: State v. Flores .................................................... 25

2015-NMCA-082, No. 32,567: State v. Gutierrez .............................................. 30

2 Bar Bulletin - November 25, 2015 - Volume 54, No. 47

December

CENTER FOR LEGAL EDUCATION

Time is running out! State Bar Center • Preliminary schedule. Visit www.nmbar.org for more information.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

Have you earned all of your required CLE credit for 2015?

Trial Know-How! Courtroom Skills

from A to Z7.0 G

Co-sponsor: Trial Practice Section

3

Stuart Teicherthe CLE ‘Performer’

Morning session 3.0 EPAfternoon session 3.0 EP

Law Practice Sucession—

A Little Thought Now, A Lot Less

Panic Later2.0 EP

Navigating New Mexico Public Land Issues5.5 G, 2.0 EPCo-sponsor: NREEL Section

Mentorship2.0 EP

Details coming soon!

Upcoming 2016 Legislative

SessionDetails coming soon!

Ethicspalooza1.0-6.0 EP

Trials of the Centuryfeaturing Todd Winegar5.0 G, 1.0 EP

2015 Real Property Institute5.0 G, 1.0 EP The Trial Variety:

Juries, Experts and Litigation6.0 GCo-sponsor: Paralegal Division

4

18

25

16

30

7

14

21

28

6

13

26

10 11

17

31

8

15

22

29

Reciprocity in New Mexico4.5 G, 2.5 EP1

23 The Cybersleuth’s Guide to the Internet

featuring Carole Levitt and Mark Rosch, Internet for Lawyers5.0 G, 1.0 EP

Video Replays

Video Replays

Video Replays

Video Replays

Video Replays

Current Immigration Issues for the Criminal Defense Attorney5.0 G, 1.0 EP

http://www.nmbar.org

Bar Bulletin - November 25, 2015 - Volume 54, No. 47 3

Notices .................................................................................................................................................................4Outstanding Mediators ...................................................................................................................................6Legal Education Calendar ..............................................................................................................................7Writs of Certiorari ..............................................................................................................................................9Court of Appeals Opinions List ...................................................................................................................11Clerk’s Certificates ...........................................................................................................................................12Recent Rule-Making Activity .......................................................................................................................16Opinions

From the New Mexico Court of Appeals2015-NMCA-079, No. 33,599: Vigil v. The Public Employees Retirement Board ..............17

2015-NMCA-080, No. 33,568: In the Matter of the Estate of Edward K. Mcelveny v. State ....................................................22

2015-NMCA-081, No. 32,928: State v. Flores ................................................................................25

2015-NMCA-082, No. 32,567: State v. Gutierrez ..........................................................................30

Advertising ........................................................................................................................................................35

State Bar Workshops December

2 Divorce Options Workshop 6 p.m., State Bar Center, Albuquerque

2 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

9 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

10 Legal Resources for the Elderly Workshop 10–11:15 a.m., Presentation noon–2 p.m., Clinics Placitas Senior Center, Placitas

MeetingsNovember

26 Natural Resources, Energy and Environmental Law Section BOD, Noon, teleconference

December

1 Health Law Section BOD 7 a.m., teleconference

2 Animal Law Section BOD 5 p.m., State Bar Center

3 Employment and Labor Law Section Noon, State Bar Center

4 Criminal Law Section Noon, Law Offices of Kelley & Boone, Albuquerque

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 EditorsMaureen S. Moore, Chair Curtis HayesJamshid Askar Bruce HerrNicole L. Banks Andrew SefzikAlex Cotoia Mark StandridgeKristin J. Dalton Carolyn Wolf

State Bar Staff Executive Director Joe Conte Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2015, State Bar of New Mexico. No part of this publica-tion 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 Email: [email protected]. • www.nmbar.org

November 25, 2015, Vol. 54, No. 47

Cover Artist: Melinda Silver is a passionate painter who works in acrylics, encaustics and mixed media, painting layers and then destroying those layers to capture the tension and mystery geological, social, political, religious and personal change. She worked many years as a commercial artist for print media. Always interested in making this world a better place, she attended and graduated from the UNM School of Law, and practiced both locally and in Washington D.C. Now she works in her newly remodeled studio in Santa Fe. For inquiries or to arrange a studio visit, email Silver at [email protected] or visit www.melindasilverfineart.com.

mailto:[email protected]






http://www.melindasilverfineart.com


NoticesProfessionalism Tipcourt News

Second Judicial District CourtAnnouncement of Vacancy A vacancy exists in the Second Judicial District Court in Albuquerque as of Nov. 12 due to the appointment of Hon. Judith K. Nakamura to the New Mexico Supreme Court. This position will be a criminal division bench assignment. Inquiries regarding additional details or assignment of this judicial vacancy should be directed to the chief judge or the administrator of the court. Alfred Mathewson, chair of the Judicial Nominating Commission, solicits applications for this position from lawyers who meet the statutory qualifica-tions in Article VI, Section 14 of the New Mexico Constitution. Applications may be found at www.lawschool.unm.edu/judsel/application.php. The deadline for applications is 5 p.m., Dec. 1. 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 Commission will meet at 9 a.m., Dec. 7, at the Bernalillo County Courthouse, 400 Lomas NW, Room 338, Albuquerque, to evaluate the applicants. The Commission meeting is open to the public and anyone who wants to comment on any of the candidates will have an opportunity to be heard.

U.S. District Court for the District of New MexicoCourt Closure The U.S. District Court for the District of New Mexico will be closed Nov. 26–27 for the Thanksgiving holiday. Court will resume on Nov. 30. After-hours access to CM/ECF will remain available as regularly scheduled. Stay current with the U.S. Dis-trict Court for the District of New Mexico by visiting www.nmd.uscourts.gov.

Service on Court Panel Chief Judge M. Christina Armijo and the Article III District Judges for the Dis-trict of New Mexico solicit interest from Federal Bar members for service on the Magistrate Judge Merit Selection Panel. This Panel is responsible for the selection, appointment and reappointment of U.S. Magistrate Judges in the District. To be considered for appointment to the Panel, interested Federal Bar members in good standing should reply by Dec. 4 to the Clerk of Court, U.S. District Court, 333 Lomas Blvd. NW, Suite 270, Albuquerque,

With respect to parties, lawyers, jurors, and witnesses:

I will be courteous, respectful and civil in my opinions.

NM 87102; or by email to [email protected].

state bar NewsAttorney Support Groups• Dec. 7, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

• Dec. 14, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, King Room in the Law Library. To increase access, teleconfer-ence participation is now available. Dial 1-866-640-4044 and enter code 7976003#.

• Dec. 21, 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.

2016 Budget DisclosureDeadline to Challenge Expenditures Using the form provided on the last page of the budget disclosure document, submit written challenges on or before noon, Dec. 24, 2015, to: Executive Direc-tor Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199. Challenges may also be delivered in person to the State Bar Center, 5121 Masthead NE, Albuquerque; or emailed to [email protected]. The budget disclosure docu-ment is available in its entirety on the State Bar website at www.nmbar.org.

Animal Law SectionAnnual Meeting and Best in Show Viewing The Animal Law Section will hold its annual membership meeting from 5–7:30 p.m., Dec. 2, at the State Bar Center. The event will begin with hors d’oeuvres and a business meeting. Best in Show, a 2000 American “mockumen-tary” comedy film written and directed by Christopher Guest, will be shown after the business meeting. The film fol-lows five entrants in a prestigious dog

show and focuses on the slightly surreal interactions among the various owners and handlers as they travel to the show and compete, and after the show, as well as how the personalities and character-istics of the owners match those of their dogs. Attendees are welcome to bring well-socialized dogs. R.S.V.P. to Heather Kleinschmidt, [email protected].

Appellate Practice SectionBrown Bag Lunch with Judge Linda M. Vanzi Judge Linda M. Vanzi will join the Appellate Practice Section and the Young Lawyers Division for their next brown bag lunch at noon, Dec. 11, at the State Bar Center in Albuquerque. These meetings are informal and attendees are encouraged to bring their own lunch. Space is limited, so email [email protected] to R.S.V.P. Judge Vanzi graduated from Mary-mount College in 1977 with degrees in English and French. She received her J.D. from the University of New Mexico in 1995. After a clerkship with U.S. District Court Judge Edwin L. Mechem, Judge Vanzi went into private practice focusing on civil rights, labor and employment law, personal injury, child abuse and neglect and commercial law. In 2004, Judge Vanzi was appointed to the Second Judicial Dis-trict Court where she served in the civil division until she was appointed to the Court of Appeals in 2008. Judge Vanzi has chaired the Uniform Jury Instruction-Civil Committee, the Judicial Education Com-mittee, and has served as co-chair of the State Bar Alternative Dispute Resolution Committee.

Bankruptcy Law SectionWinter Social The Bankruptcy Law Section is host-ing a winter social event from 5–7 p.m., Dec. 16, at Soul and Vine, 109 Gold Ave. SW, Albuquerque. There will be buffet appetizers and one drink ticket available per attendee. The event is free to section members. No R.S.V.P. required.

http://www.lawschool.unm.edu/judsel/application.php

http://www.nmd.uscourts.gov




Board of Bar CommissionersOnline Voting for 2015 Election Voting in the 2015 election for the State Bar of New Mexico Board of Bar Commissioners began Nov. 10 and closes at noon Nov. 30. The First Bar Commis-sioner District (Bernalillo County) has a contested election with seven candidates running for four positions in the district. A link to the electronic ballot and in-structions was emailed to all members in the First Bar Commissioner District using email addresses on file with the State Bar. If you did not receive an email with a link to the ballot, contact April Armijo at 505-797-6086 or [email protected].

Seeking Nominees for Access to Justice Commission The Board of Bar Commissioners will make one appointment to the New Mexico Access to Justice Commission for a three-year term. Anyone who wants to serve on the commission should send a letter of interest and brief résumé by Nov. 30 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].

Indian Law SectionDonors Needed for Bar Preparation Scholarship Fund Since 2006, the Indian Law Section Bar Preparation Scholarship Fund has assisted third-year law students who plan to take the New Mexico Bar Exam and express an interest in practicing Indian Law. The Scholarship aims to alleviate some of the costs associated with preparing for and taking the Bar Exam. The size and number of scholar-ships greatly depends on the generosity of those who contribute to the fund. The Section urges members of the New Mexico legal community to consider donating to this fund. For more informa-tion, visit www.nmbar.org > About Us > Sections > Indian Law.

Young Lawyers DivisionOnline Voting for 2015 Election Voting in the 2015 election for the State Bar Young Lawyers Division Board of Directors closes on Nov. 30. The Director-at-Large, Position 3, 2016–2017 term is contested between Sean FitzPatrick and Michelle Garcia.

A link to the electronic ballot, bios and instructions was emailed to YLD members at the email address on file with the State Bar. If you did not receive a link to the ballot, contact April Armijo at 505-797-6086 or [email protected] The following members were elected by acclamation and will take office on Jan. 1, 2016: Evan Cochnar (Region 1 Director), Anna Rains (Region 3 Director), Al-lison Block-Chavez (Director-at-Large, Position1) and Robert Lara (Director at Large, Position 5).

uNmLaw LibraryHours Through Dec. 12Building & 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 ClosedClosures Thanksgiving holiday: Nov. 26–27

School of Law Alumni AssociationThird Annual Holiday Gathering The UNM School of Law invites faculty, students, staff, alumni and friends to its Third Annual Holiday Gathering from 5:30–7:30 p.m., Dec. 9, at the School of Law in Albuquerque. R.S.V.P. online at www.lawschool.unm.edu/alumni/events/holiday.php by Dec. 8.

other barsNew Mexico Criminal Defense Lawyers Association‘Blinded by Science’ and ‘The Brain’ CLE Courses The New Mexico Criminal Defense Lawyers Association presents two CLE courses in December. “Blinded by Sci-ence: An Update on Scientific Testimony, Cell Phones and Experts, Plus the Ethical Implications of Each” (4.0 G, 2.0 EP) will be Dec. 4 at the Greater Albuquerque Association of Realtors in Albuquerque. “The Brain: The Client’s, The Juror’s, The Judge’s and Yours” (3.0 G, 3.0 EP) will be Dec. 11 at the New Mexico Farm & Ranch Heritage Museum in Las Cruces. Registration is available at www.nmcdla.org.

New Mexico Lawyers aNd Judges assistaNce PrograM

Confidential help is available to lawyers, judges, and law students troubled by

substance abuse, depression, stress, and other issues. Contact Jill Ann Yeagley, 505-797-

6003 or visit http://www.nmbar.org/JLAP/JLAP.html. Free helpline services are available during non-business hours at 505-228-1948 or 1-800-860-4914 and through the Judges

Helpline at 1-888-502-1289.

Due to upcoming holiday closures, the Bar Bulletin has accelerated printing schedules. Submit notices by Dec. 17 for the Dec. 30 issue and by Dec. 22 for the Jan. 6, 2016, issue.

Submit content to [email protected].

Accelerated Bar Bulletin Holiday Deadlines

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court Email: attorneyinfochange @nmcourts.gov Fax: 505-827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarEmail: [email protected]: 505-797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

Address Changes




http://www.lawschool.unm.edu/alumni/events/holiday.php

http://www.nmcdla

http://www.nmbar.org/JLAP/


mailto:@nmcourts.gov




Outstanding Mediators

The Statewide ADR Commission presented awards for Outstanding Mediator of the Year. Commission Co-chairs Justice Edward L. Chávez, at top left, and David Levin, at bottom right, join the Commissioners in congratulating the four recipients. Robert Rambo, left, of the New Mexico Court of Appeals was named Mediator of the Year. Diane Grover of the 13th Judicial District was named Outstanding Mediator, as were Erin Anderson of the Second Judicial District and Ben Cross of the Ninth Judicial District.

New Mexico Defense Lawyers AssociationAnnual Civil Rights Seminar The New Mexico Defense Lawyers Association presents “2015 Annual Civil Rights Seminar “(5.5 G) from 8:30 a.m.–4:15 p.m., Dec. 4, at the Greater Albu-querque Jewish Community Center. This seminar is designed for the intermediate as well as advanced civil rights practitioner and adjuster. For registration and more information visit www.nmdla.org 505-797-6021.

New Mexico Women’s Bar AssociationLuncheon and ‘Getting to First Chair’ CLE The New Mexico Women’s Bar As-sociation presents a luncheon and CLE,

“Getting to First Chair: Strategies for Achieving Success in Your Practice” (3.0 G, pending MCLE approval) at the Albuquerque Country Club on Dec. 3. The luncheon will be noon–1 p.m. Antonia Roybal-Mack will speak on how a professional coach made her law practice profitable and her family life en-joyable. The CLE will be 1:15–4:30 p.m., presented by Louren Oliveros and Paula Maynes. The cost is $40 for NMWBA members and $90 for non-members. Non-members, male and female, may join the NMWBA for $50 prior to the CLE for the upcoming year and receive the member price. For more informa-tion, email [email protected] or visit the www.nmbar.org > for Members > Bars and Legal Groups.

other NewsNeighborhood Law Center CLE Conference in Santa Fe The Santa Fe Neighborhood Law Center presents the 8th annual Neigh-borhood Law CLE Conference, “Law and Policy for Neighborhoods” (10.0 G, 2.0 EP), Dec. 3–4, at the Santa Fe Con-vention Center. The program features Supreme Court Chief Justice Barbara J. Vigil and Court of Appeals Judge Linda M. Vanzi as mid-day speakers. Early registrants (before Nov. 27) will receive a reduced fee of $350 (standard registra-tion fee: $380). For more information, schedule and registration, visit www.sfnlc.com.

http://www.nmdla.org



http://www.sfnlc.com



Legal EducationNovember

30 Estate Planning for Digital Assets 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

December

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

1 Ethics in Claims and Settlements 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

2 Drafting Trust Distribution Clauses: Health, Education & Maintenance

1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3 2015 Real Property Institute 5.0 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3 Tax Traps in Business Formations 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3–4 Santa Fe Neighborhood Law Center Law And Policy For Neighborhoods Conference

10.0 G, 2.0 EP Santa Fe Convention Center Neighborhood Law Center www.sfnlc.com

4 The Trial Variety: Juries, Experts and Litigation

6.0 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

4 2015 Annual Civil Rights Seminar 5.5 G Albuquerque New Mexico Defense Lawyers

Association 505-797-6021 www.nmdla.org

8 2015’s Best Law Office Technology, Software and Tools-Improve Client Service, Increase Speed and Lower Your Costs

4.8 G, 1.2 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

8 Beyond Sticks and Stones (2015 Annual Meeting)

1.5 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

8 Judicial Panel Discussion (2015 Annual Meeting)

1.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

8 Invasion of the Drones: IP-Privacy, Policies, Profits (2015 Annual Meeting)


8 Criminal Procedure Update (2015 Annual Meeting)


8–9 Planning with Single Member LLCs, Parts 1–2


10 Trial Know-How Courtroom Skills from A to Z


10 Estate & Tax Planning for Estates Under the $10 Million Exemption Amount


11 Current Immigration Issues for the Criminal Defense Attorney

5.0 G, 2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org









http://www.nmdla.org











Legal Education www.nmbar.org

December

15 Get It Right—Use the Official Laws 2.0 EP New Mexico Compilation

Commission Albuquerque 505-827-4821 www.nmcompcomm.us

15–16 Drafting and Reviewing Commercial Leases, Parts 1–2


16 Law Practice Succession—A Little Thought Now, A Lot Less Panic Later

2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

17 Talking ‘Bout My Generation: Professional Responsibility Dilemmas Among Generations

3.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

17 What NASCAR, Jay-Z and The Jersey Shore Teach About Attorney Ethics


17–18 Ethics & Conflicts with Clients, Parts 1–2

2.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

18 Navigating New Mexico Public Land Issues

5.5 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

18 Last Chance—The Best of the Best Seminar

3.7 G, 2.0 EP Albuquerque and Santa Fe New Mexico Trial Lawyers’

Foundation 505-243-6003 www.nmtla.org

21 Trials of the Century 5.0 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

21 Drafting Stock Purchase Agreements


23 The Cybersleuth’s Guide to the Internet

5.0 G, 1.0 Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

28 Ethicspalooza 1.0–6.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org


http://www.nmcompcomm.us







http://www.nmtla.org






Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 35,562 Scott v. New COA 34,556 10/16/15No. 33,979 State v. Suskiewich COA 33,979 10/16/15No. 35,559 State v. Shelby COA 34,682 10/15/15No. 35,558 State v. Hernandez COA 33,525 10/13/15No. 35,555 Flores-Soto v. Wrigley 12-501 10/09/15No. 35,554 Rivers v. Heredia 12-501 10/09/15No. 35,552 Spurlock v. N.M. Board of Examiners

for Architects COA 34,833 10/09/15No. 35,550 State v. Ben COA 33,921 10/07/15No. 35,546 State v. Lefthand COA 33,396 10/05/15No. 35,545 State v. Lemanski COA 33,846 10/05/15No. 35,544 State v. Trujeque COA 34,519 10/05/15No. 35,542 City of Roswell v. Marin COA 34,286 10/02/15No. 35,540 Fausnaught v. State 12-501 10/02/15No. 35,539 State v. Herrera COA 33,255 10/02/15No. 35,537 State v, Reyes COA 34,700 10/02/15No. 35,538 State v. Gallegos COA 34,689 10/02/15No. 35,535 State v. Herrera COA 33,078/33,255 09/29/15No. 35,532 Woody Investments v.

Sovereign Eagle COA 32,830 09/29/15No. 35,526 State v. Mitchell COA 34,573 09/24/15No. 35,525 State v. Ashley COA 32,974 09/23/15No. 35,523 McCoy v. Horton 12-501 09/23/15No. 35,522 Denham v. State 12-501 09/21/15No. 35,520 Deutsche Bank v. Huerta COA 34,337 09/21/15No. 35,519 State v. York COA 33,462 09/21/15No. 35,518 State v. Yanke COA 34,474 09/21/15No. 35,515 Saenz v.

Ranack Constructors COA 32,373 09/17/15No. 35,506 Alonso v. Hatch 12-501 08/31/15No. 35,495 Stengel v. Roark 12-501 08/21/15No. 35,480 Ramirez v. Hatch 12-501 08/20/15No. 35,479 Johnson v. Hatch 12-501 08/17/15No. 35,474 State v. Ross COA 33,966 08/17/15No. 35,422 State v. Johnson 12-501 08/10/15No. 35,466 Garcia v. Wrigley 12-501 08/06/15No. 35,454 Alley v. State 12-501 07/29/15No. 35,440 Gonzales v. Franco 12-501 07/22/15No. 35,422 State v. Johnson 12-501 07/17/15No. 35,416 State v. Heredia COA 32,937 07/15/15No. 35,415 State v. McClain 12-501 07/15/15No. 35,411 Tayler v. State 12-501 07/10/15No. 35,399 Lopez v. State 12-501 07/09/15No. 35,374 Loughborough v. Garcia 12-501 06/23/15No. 35,375 Martinez v. State 12-501 06/22/15No. 35,372 Martinez v. State 12-501 06/22/15No. 35,370 Chavez v. Hatch 12-501 06/15/15No. 35,369 Serna v. State 12-501 06/15/15No. 35,368 Griego v. Horton 12-501 06/15/15No. 35,353 Collins v. Garrett COA 34,368 06/12/15No. 35,335 Chavez v. Hatch 12-501 06/03/15No. 35,341 Martin v. State 12-501 05/28/15

No. 35,371 Pierce v. Nance 12-501 05/22/15No. 35,271 Cunningham v. State 12-501 05/06/15No. 35,266 Guy v. N.M. Dept. of

Corrections 12-501 04/30/15No. 35,261 Trujillo v. Hickson 12-501 04/23/15No. 35,217 Hernandez v. Horton 12-501 04/03/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,099 Keller v. Horton 12-501 12/11/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,680 Wing v. Janecka 12-501 07/14/14No. 34,777 State v. Dorais COA 32,235 07/02/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but Not Yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,877 State v. Alvarez COA 31,987 12/06/12 No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,929 Freeman v. Love COA 32,542 12/19/14No. 35,063 State v. Carroll COA 32,909 01/26/15No. 35,016 State v. Baca COA 33,626 01/26/15No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/23/15No. 35,101 Dalton v. Santander COA 33,136 03/23/15

Effective October 16, 2015


Writs of CertiorariNo. 35,148 El Castillo Retirement Residences v.

Martinez COA 31,701 04/03/15No. 35,198 Noice v. BNSF COA 31,935 05/11/15No. 35,183 State v. Tapia COA 32,934 05/11/15No. 35,145 State v. Benally COA 31,972 05/11/15No. 35,121 State v. Chakerian COA 32,872 05/11/15No. 35,116 State v. Martinez COA 32,516 05/11/15No. 34,949 State v. Chacon COA 33,748 05/11/15No. 35,298 State v. Holt COA 33,090 06/19/15No. 35,297 Montano v. Frezza COA 32,403 06/19/15No. 35,296 State v. Tsosie COA 34,351 06/19/15No. 35,286 Flores v. Herrera COA 32,693/33,413 06/19/15No. 35,255 State v. Tufts COA 33,419 06/19/15No. 35,249 Kipnis v. Jusbasche COA 33,821 06/19/15No. 35,248 AFSCME Council 18 v. Bernalillo

County Comm. COA 33,706 06/19/15No. 35,214 Montano v. Frezza COA 32,403 06/19/15No. 35,213 Hilgendorf v. Chen COA 33056 06/19/15No. 35,279 Gila Resource v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,289 NMAG v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,290 Olson v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,349 Phillips v. N.M. Taxation and

Revenue Dept. COA 33,586 07/17/15No. 35,302 Cahn v. Berryman COA 33,087 07/17/15No. 35,318 State v. Dunn COA 34,273 08/07/15No. 35,386 State v. Cordova COA 32,820 08/07/15No. 35,278 Smith v. Frawner 12-501 08/26/15No. 35,398 Armenta v.

A.S. Homer, Inc. COA 33,813 08/26/15No. 35,427 State v.

Mercer-Smith COA 31,941/28,294 08/26/15No. 35,446 State Engineer v.

Diamond K Bar Ranch COA 34,103 08/26/15No. 35,451 State v. Garcia COA 33,249 08/26/15No. 35,438 Rodriguez v.

Brand West Dairy COA 33,104/33,675 08/31/15No. 35,426 Rodriguez v.

Brand West Dairy COA 33,675/33,104 08/31/15No. 35,499 Romero v.

Ladlow Transit Services COA 33,032 09/25/15No. 35,456 Haynes v. Presbyterian

Healthcare Services COA 34,489 09/25/15No. 35,437 State v. Tafoya COA 34,218 09/25/15No. 35,395 State v. Bailey COA 32,521 09/25/15

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13

No. 34,146 Madrid v. Brinker Restaurant COA 31,244 12/09/13

No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,549 State v. Nichols COA 30,783 02/25/15No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,637 State v. Serros COA 31,975 04/13/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,668 State v. Vigil COA 32,166 08/10/15No. 34,974 Moses v. Skandera COA 33,002 08/12/15No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/24/15No. 34,826 State v. Trammel COA 31,097 08/26/15No. 34,866 State v. Yazzie COA 32,476 08/26/15No. 35,049 State v. Surratt COA 32,881 10/13/15No. 35,035 State v. Stephenson COA 31,273 10/15/15No. 35,478 Morris v. Brandenburg COA 33,630 10/26/15No. 34,946 State v. Kuykendall COA 32,612 11/12/15No. 34,945 State v. Kuykendall COA 32,612 11/12/15

Opinion on Writ of Certiorari:

Date Opinion FiledNo. 34,995 State v. Deangelo M. COA 31,413 10/15/15

Writ of Certiorari Quashed:

Date Order FiledNo. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 10/15/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,509 Bank of New York v.

Borrego COA 33,988 10/16/15No. 35,269 Peterson v. Ortiz 12-501 10/15/15No. 35,517 State v. Lopez COA 34,166 10/13/15No. 35,513 State v. Wyatt B. COA 33,297 10/13/15No. 35,505 Wild Horse Observers v.

N.M. Livestock Board COA 34,097 10/13/15No. 35,504 Wild Horse Observers v.

N.M. Livestock Board COA 34,097 10/13/15No. 35,262 Sena v. Board of Finance 12-501 10/13/15No. 35,260 Duran v. Frawner 12-501 10/13/15


OpinionsAs 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

Effective November 13, 2015Unublished Opinions

No. 33241 11th Jud Dist San Juan CR-12-1066, STATE v M TERRAZAS (affirm) 11/9/2015 No. 34702 3rd Jud Dist Dona Ana CR-13-286, STATE v D HENRY (affirm) 11/12/2015No. 33281 11th Jud Dist San Juan CR-11-1027, STATE v E KENNETH (affirm) 11/12/2015

Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

http://coa.nmcourts.gov/documents/index.htm

Clerk’s CertificatesFrom the Clerk of the New Mexico Supreme CourtJoey D. Moya, Chief Clerk New Mexico Supreme Court

PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860


Dated Nov. 6, 2015

Clerk’s Certificate of Address and/or

Telephone Changes

Rachel Irene Walker Al-Yasi503 Slate Avenue NWAlbuquerque, NM 87102505-247-2972505-842-6945 (fax)[email protected]

Kevin J. BanvilleMcCoy Leavitt Laskey LLC1803 Rio Grande Blvd. NW, Suite CAlbuquerque, NM [email protected]

Sara M. BonnellKenneth C. Leach & Associates, PC320 Osuna Road NE, Suite G-4Albuquerque, NM 87107505-883-2702 Ext. [email protected]

Bradford A. Borman600 Bosque Verde Lane NWAlbuquerque, NM [email protected]

Patricia Ann Bradley1212 Pennsylvania Street NEAlbuquerque, NM 87110505-266-8787505-255-4029 (fax)[email protected]

James M. BursonPueblo of LagunaPO Box 19422 Capital RoadLaguna, NM 87026505-552-6654505-552-6941 (fax)[email protected]

Gabriel A. ChavezU.S. Department of Transportation-Maritime Administration1200 New Jersey Avenue SEMAR-225, W24-202Washington, DC [email protected]

Daniel L. Cleavinger819 W. Manhattan AvenueSanta Fe, NM [email protected]

James E. DoryDory-Garduño Law Firm, LLCPO Box 4583510320 Cottonwood Park NW, Suite E (87114)Rio Rancho, NM 87174505-480-0624505-435-9029 (fax)[email protected]

Latisha K. FrederickDavis Miles McGuire Gardner, PLLC320 Gold Avenue SW, Suite 1401Albuquerque, NM 87102505-948-5050505-243-6448 (fax)[email protected]

Anne GibsonOffice of the Seventh Judicial District Attorney855 Van Patten StreetTruth or Consequences, NM [email protected]

Anthony David GriegoJustice Legal Group1516 San Pedro Drive NEAlbuquerque, NM [email protected]

Marc G. HuffordOffice of the Second Judicial District Attorney5100 Second Street NWAlbuquerque, NM 87107505-222-1172505-241-1172 (fax)[email protected]

Drew InmanOffice of the Third Judicial District Attorney845 N. Motel Blvd., Suite DLas Cruces, NM 88007575-524-6370 Ext. 1105575-524-6379 (fax)[email protected]

Arash Kashanian3521 Vail Avenue, Suite BAlbuquerque, NM [email protected]

Lauren E. KollecasOffice of the Third Judicial District Attorney845 N. Motel Blvd., Suite DLas Cruces, NM 88007575-524-6370 Ext. 1195575-524-6379 (fax)[email protected]

Tammi M. LambertStetson Law Offices, PC1305 Rio Grande Blvd. NWAlbuquerque, NM 87104505-256-4911505-256-5177 (fax)[email protected]

Charlotte A. LamontLittler Mendelson, PC201 Third Street NW, Suite 500Albuquerque, NM 87102505-944-9682505-944-9681 (fax)[email protected]

Corinna Laszlo-HenryNew Mexico Legal Aid, Inc.PO Box 1454932 Gallinas Street, Suite 109Las Vegas, NM 87701505-718-3025505-718-3026 (fax)[email protected]

Roxann T. Liccione2412 Plaza Vizcaya NWAlbuquerque, NM [email protected]

Ramon Julian MaestasOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM [email protected]

Phillip Evan Marbury37 Pine StreetWolfeboro, NH [email protected]

Jacqueline Marrast-Simpson751 Hanford StreetRichland, WA [email protected]

Hon. Melissa Miller-Byrnes (ret.)2040 Arlington AvenueLas Cruces, NM [email protected]

Linda J. MottDepartment of Justice-Office of the U.S. Attorney1830 Second AvenueRock Island, IL [email protected]

Benjamin Anthony NucciBrownstein Hyatt Farber Schreck, LLP410 Seventeenth Street, Suite 2200Denver, CO [email protected]

Richard Bruce Pener6200 Montaño Plaza Drive NW #1827Albuquerque, NM [email protected]




























Clerk’s Certificates

Edna Frances SpragueAtkinson & Kelsey, PAPO Box 30702155 Louisiana Blvd. NE, Suite 200 (87110)Albuquerque, NM 87190505-883-3070505-889-3111 (fax)[email protected]

Matthew TuckerWhitener Law Firm4110 Cutler Avenue NEAlbuquerque, NM [email protected]

Johnna L. WalkerOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM 87102505-222-1043505-241-1043 (fax)[email protected]

Christopher William WestenbergerLaw Offices of the Public Defender206 Sudderth DriveRuidoso, NM [email protected]

Hessel E. Yntema IVN.M. General Services Dept.-Risk Management DivisionPO Box 68501100 St. Francis Drive (87505)Santa Fe, NM [email protected]

Steven B. Bennett788 N. Bradley DriveChandler, AZ [email protected]

Kimberly Anne CurryKimberly A. Curry, Attorney at Law1014 Fifth Street NWAlbuquerque, NM [email protected]

David Brian DenoyerDenoyer Patent Agency4716 Cumberland Road NWAlbuquerque, NM [email protected]

Trent Dimas2032 Calle Pajaro AzulAlbuquerque, NM [email protected]

Megan P. DuffyRoepke Law Firm, LLC2501 San Pedro Drive NE, Suite 205Albuquerque, NM 87110505-323-0515505-883-3239 (fax)[email protected]

Charles Nicholas FisherThe Law Office of Charles Fisher105 Bryn Mawr Drive SEAlbuquerque, NM 87106505-247-4099505-268-1162 (fax)[email protected]

Rory Allen FoutzLaw Offices of the Public Defender1601 N. Turner Street, Suite 300Hobbs, NM 88240575-236-2272575-318-2004 (fax)[email protected]

Cerene Macklin Howard10061 Riverside Drive #457Toluca Lake, CA 91602

Jessica Maupin237 Rio Bravo DriveLos Alamos, NM [email protected]

Elijah Richardson2579 Calle DelfinoSanta Fe, NM 87505

Cynthia D. Williams274 Spear DriveFort Bragg, NC [email protected]

Jason Flores Williams1851 Bassett Street #509Denver, CO [email protected]

Amanda Rene Galbraith AndraskoPO Box 5721Clovis, NM [email protected]

Leslie Gayle Schaar1363 Addison StreetBerkeley, CA [email protected]

Jeanne Marie Smith201 Twelfth Street NWAlbuquerque, NM 87102505-243-3222505-242-7002 (fax)[email protected]

Clerk’s Certificate of Name Change

As of November 4, 2015Jocelyn Barrett-Kapin f/k/a Jocelyn BarrettRothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & BienvenuPO Box 81801215 Paseo de Peralta (87501)Santa Fe, NM 87504505-988-8004505-982-0307 (fax)[email protected]

In Memoriam

As of November 4, 2015:Phillip T. BrewerPO Box 298Roswell, NM 88202

As of October 13, 2015:Leland B. Franks615 Ridge Place NEAlbuquerque, NM 87106

Clerk’s Certificate of Change to

Inactive Status

Effective October 26, 2015:Claire Dickson8768 E. 25th DriveDenver, CO 80238505-228-4321

Effective November 2, 2015:Leslie Anne Fernandez455A NMSR 72Raton, NM 87740575-445-2846575-445-8810 (fax)[email protected]

Effective October 28, 2015:Linda Fischer17 Lomita Drive, Box 15Silver City, NM [email protected]

Effective October 31, 2015:Larry M. Reecer4327 Prairie Loft Way NEAlbuquerque, NM [email protected]

Clerk’s Certificate of Reinstatement to Active Status

As of November 6, 2015:Amy Brianne HauryPO Box 53633Albuquerque, NM [email protected]

Clerk’s Certificate of Admission

On November 10, 2015:Jonathan Christopher WorbingtonGray Reed & McGraw, PC1300 Post Oak Blvd., Suite 2000Houston, TX 77056713-986-7197713-730-5860 (fax)[email protected]


























Dated Nov. 13, 2015

Clerk’s Certificate of Address and/or

Telephone Changes

Ozymandias AdamsOffice of the Fourth Judicial District Attorney130 S. Fourth StreetSanta Rosa, NM [email protected]

Hon. Richard C. Bosson (ret.)1470 N. Miracerros LoopSanta Fe, NM [email protected]

Cristina ChavezOffice of the Attorney General111 Lomas Blvd. NW, Suite 300Albuquerque, NM [email protected]

Lisa Marie Enfield515 Don Gaspar Avenue, Suite ASanta Fe, NM 87505505-501-8288 (phone and fax)[email protected]

Tony E. FloresOffice of the City Prosecutor16081 N. Civic Center Plaza, Suite 104Surprise, AZ 85374623-222-1151523-222-1141 (fax)[email protected]

Herman Chico Gallegos127 Bridge StreetLas Vegas, NM 87701505-425-9477505-425-9369 (fax)[email protected]

Brian G. GraysonKeller & Keller505 Marquette Avenue NW, Suite 1300Albuquerque, NM 87102505-938-2300505-938-2301 (fax)bgrayson@2keller@com

Christopher David LeeLaw Office of Christopher D. Lee, LLC7125 Prospect Place NEAlbuquerque, NM 87110505-888-4878505-884-6362 (fax)[email protected]

Julia L. MacciniSCM PartnersPO Box 9043Albuquerque, NM [email protected]

Hon. Jill M. MartinezBernalillo County Metropolitan CourtPO Box 133401 Lomas Blvd. NW (87102)Albuquerque, NM 87103505-841-8293505-222-4808 (fax)

Ryan James McCordLaw Offices of the Public Defender285 S. Boardman Drive, Suite AGallup, NM 87301505-726-4534505-726-4566 (fax)[email protected]

Christopher McNairU.S. District Court - District of New Mexico333 Lomas Blvd. NW, Suite 670Albuquerque, NM 87102505-348-2270505-348-2275 (fax)[email protected]

Devon P. MoodyO’Brien and Padilla, PC6000 Indian School Road NE, Suite 200Albuquerque, NM 87110505-883-8181505-883-3232 (fax)[email protected]

Kari E. OlsonMontgomery & Andrews, PAPO Box 2307325 Paseo de Peralta (87501)Santa Fe, NM 87504505-986-2686505-982-4289 (fax)[email protected]

Nataley I. QuintanaSocial Security AdministrationODAR ABQ NHC201 Third Street NW, Suite 400Albuquerque, NM [email protected]

Theresa Lorraine RomeroOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM 87102505-222-1379505-241-1379 (fax)[email protected]

Bill RussellPO Box 70083Albuquerque, NM 87197505-268-4357505-268-5305 (fax)[email protected]

Regina A. RyanczakOffice of the Attorney GeneralPO Box 1508408 Galisteo Street (87501)Santa Fe, NM 87504505-827-3883505-827-6685 (fax)[email protected]

Petra Benavides Schwartz712 Sonora Road NERio Rancho, NM [email protected]

Kirby A. WillsLaw Offices of the Public Defender2395 N. Florida AvenueAlamogordo, NM 88310575-551-7209575-446-4671 (fax)[email protected]

Andrew P. YarringtonRose L. Brand & Associates, PC7430 Washington Street NEAlbuquerque, NM 87109505-833-3036505-833-3040 (fax)andrew.yarrington@ roselbrand.com

Douglas Alan AzarAzar Law Office, PC315 Fifth Street NWAlbuquerque, NM 87102505-332-4028505-323-3661 (fax)[email protected]

Rod D. BakerLaw Office of Rod D. Baker12126 Highway 14 N., Suite A-7Cedar Crest, NM 87008505-286-9700505-281-6333 (fax)[email protected]

Florence Athene BergerPO Box 91260Santa Barbara, CA 93190

Peggy L. Bird124 Turquoise DriveKewa, NM [email protected]

Linda ChmarThe Fryer Law Firm921 Amsterdam Avenue NEAtlanta, GA [email protected]

Mark J. FidelPO Box 93923Albuquerque, NM [email protected]

Calvin Lee Jr.PO Box 4008Yahtahey, NM [email protected]

Charles P. Price IIIPO Box 6514Albuquerque, NM 87197505-999-1084866-519-5280 (fax)[email protected]

Joanne Reuter250 Palm Coast Pkwy. NE, Suite 607 #110Palm Coast, FL [email protected]




























Rachel L. WinstonWalcott, Henry & Winston, PC200 W. Marcy Street, Suite 203Santa Fe, NM 87501505-982-9559505-982-1199 (fax)[email protected]

Jeanine S. Copperstone14837 S.E. Rupert DriveMilwaukie, OR [email protected]

Devin Delrow212 Thirteenth Street SEWashington, DC [email protected]

Ray F. SharbuttOffice of the Seventh Judicial District AttorneyPO Box 706903 N. Fifth StreetEstancia, NM [email protected]

Carla SkeenLaw Offices of Carla Skeen, PA1520 Paseo de PeraltaSanta Fe, NM 87501505-989-8616 (phone and fax)[email protected]

Jeannette Martinez WhittakerMcCarthy & Holthus, LLP6501 Eagle Rock Avenue NE, Suite A-3Albuquerque, NM [email protected]

A. Michael ChapmanNewbold Chapman & Geyer PCPO Box 2790150 E. Ninth Street, Suite 400 (81301)Durango, CO 81302970-247-3091970-247-3100 (fax)[email protected]








Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court

Effective October 28, 2015

Pending Proposed Rule Changes Open for Comment:

Comment DeadlineRule 5 401. [Bail] Pretrial release. 11/12/15Rule 5 408. Pretrial release by designee. 11/12/15Rule 6 408. Pretrial release by designee. 11/12/15Rule 7 408. Pretrial release by designee. 11/12/15Rule 8 408. Pretrial release by designee. 11/12/15Form 9 302A. Order for release on recognizance by designee. 11/12/15

Recently Approved Rule Changes Since Release of 2015 NMRA:

For 2014 year-end rule amendments that became effective Decem-ber 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

Rules of Civil Procedure for the District Courts

1-005.2 Electronic service and filing of pleadings and other papers. 07/01/15

Uniform Jury Instructions-Criminal

14 602 Withdrawn 04/03/1514 603 Withdrawn 04/03/1514 604 Withdrawn 04/03/1514 605 Withdrawn 04/03/1514 610 Withdrawn 04/03/1514 611 Chart 04/03/1514 612 Child abuse not resulting in death or great

bodily harm; essential elements 04/03/1514 615 Child abuse resulting in great bodily harm;

essential elements 04/03/1514 621 Child abuse resulting in death; child at least

12 but less than 18; essential elements 04/03/1514 622 Child abuse resulting in death; reckless

disregard; child under 12; essential elements 04/03/1514 623 Child abuse resulting in death; intentional

act; child under 12; essential elements 04/03/1514 625 Jury procedure for various degrees of

child abuse resulting in death of a child under twelve years of age 04/03/15

Code of Judicial Conduct

21-402 Political and campaign activities of judicial candidates in public elections. 11/01/15

21-404 Campaign committees. 11/01/15

Local Rules of the Second Judicial District Court

LR2-303 Electronic filing authorized. 07/01/15

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.

http://www

http://nmsupremecourt.nmcourts.gov

http://www.nmcompcomm.us


Advance Opinions http://www.nmcompcomm.us/

From the New Mexico Supreme Court and Court of Appeals

Certiorari Denied, August 4, 2015, No. 35,390


Opinion Number: 2015-NMCA-079

PATRICIA VIGIL,Petitioner-Appellant,

v.THE PUBLIC EMPLOYEES RETIREMENT BOARD,

Respondent-AppelleeDocket No. 33,599 (filed May 4, 2015)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY RAYMOND Z. ORTIZ, District Judge

LINDA G. HEMPHILLTHE HEMPHILL FIRM, P.C.

Santa Fe, New Mexicofor Appellant

CHARLES RENNICKROBLES, RAEL & ANAYA, P.C.

Santa Fe, New Mexicofor Appellee

Opinion

Cynthia A. Fry, Judge{1} In this case we review a decision of the Public Employees Retirement Board (the Board) denying duty-related disability retirement benefits to Petitioner-Appellant Patricia Vigil. The parties do not dispute that Ms. Vigil is disabled and that her dis-ability was “solely and exclusively” a result of her work. The dispute concerns whether a pre-existing condition was “a significant contributing factor material to the disabil-ity.” 2.80.1000.7(E) NMAC (9/30/2010). While a hearing officer recommended finding that Ms. Vigil had established by a preponderance of evidence that no pre-existing condition significantly contributed to her disability, the Board did not accept that recommended finding. Instead, with-out reviewing the transcript of the eviden-tiary hearing, the Board entered additional, contrary findings, concluded that Ms. Vigil had failed to satisfy her burden, and denied her application for benefits. On appeal, the district court affirmed. We granted Ms. Vigil’s petition for a writ of certiorari and hold that the Board’s decision was arbitrary and capricious. We therefore reverse.BACKGROUNDFirst Application for Disability Retirement Benefits{2} Ms. Vigil, who was employed as a rec-reational therapist with the New Mexico

Behavioral Health Institute in Las Vegas, New Mexico, submitted an application to the Public Employees Retirement Associa-tion (PERA) for disability retirement ben-efits in April 2011. In the application, she alleged that she was being treated badly at work as a result of a grievance she had filed and that she was experiencing depression and other symptoms as a consequence. She also submitted an examining physician’s form statement in support of her applica-tion, which was completed by psychiatrist Jasmin Breitung, M.D. In this statement, Dr. Breitung diagnosed Ms. Vigil as hav-ing major depressive disorder, recurrent. Dr. Breitung checked “Yes” on the form in response to the question, “Do you consider this disability to have occurred as the result of causes arising, solely and exclusively out of and in the course of the claimant’s employment?” Dr. Breitung then wrote, “The claimant’s employment is largely responsible but not solely, since we cannot discount genetic factors. This may not have occurred if the stress at work had not.”{3} PERA’s consulting psychiatrist, Dr. Douglas Puryear, reviewed Ms. Vigil’s ap-plication and Dr. Brietung’s statement and recommended that Ms. Vigil be awarded one year of non-duty disability. He recom-mended non-duty benefits because “this is a recurrent condition” and the stressors at work “[were] not the sole and exclusive cause and[,] therefore[,] this cannot be a

duty-related disability.” PERA’s disability review committee met and agreed with Dr. Puryear’s recommendation, whereupon the committee notified Ms. Vigil that it was recommending non-duty disability benefits “because [she] did not establish to the satisfaction of the [c]ommittee that [her] disability [was] the ‘natural and proximate result of causes arising solely and exclusively out of and in the course of ’ [her] performance of [her] job duties.” Because Ms. Vigil did not terminate her employment within forty-five days of the date of the committee’s letter, her applica-tion file was closed.Second Application for Disability Retirement Benefits{4} Ms. Vigil again submitted an applica-tion for disability retirement benefits in September 2011, which was virtually the same as her prior application. Dr. Breitung filled out another examining physician’s form statement, in which she again in-dicated that Ms. Vigil’s disability was the result of her employment. Dr. Breitung fur-ther stated, “The stress at work triggered her depression and anxiety though it is not the sole cause.” Ms. Vigil also submitted a letter from her therapist, Lela M. McNicol, LISW, which stated that Ms. Vigil had been treated for PTSD and depression. Once again, Dr. Puryear reviewed the applica-tion on behalf of PERA and recommended non-duty disability benefits because of Dr. Breitung’s statement “that the work is not the sole cause of her psychiatric prob-lems[.]” The disability review committee again recommended non-duty benefits, and Ms. Vigil appealed.{5} PERA apparently allowed Ms. Vigil to supplement her application, and she submitted a letter from Dr. Breitung, which stated, “Even though [Ms. Vigil] has had a pre[-]existing prior depressive episode in 2006[,] that episode had completely re-solved. This recurrent episode of [2011] is a direct result of stressors from her job. . . . As a matter of fact[,] her prior depression was also triggered by work[,] but that is not under discussion here.” Dr. Breitung’s letter concluded, “Any pre[-]existing condition was not a significant factor in causing her disability.” Dr. Puryear reviewed this letter and changed his recommendation to duty-related disability benefits. He stated, “Since the statute requires that pre-existing condi-tions were not a substantial contributor and that the problems would not have occurred without the stresses of the job, and that the

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http://www.nmcompcomm.us/Advance Opinionsjob is the sole and exclusive cause of the current problems, based on the updated information from the psychiatrist[,] it ap-pears that [Ms. Vigil] would at this time meet the requirements for a duty-related disability.” Despite Dr. Puryear’s change of mind, the disability review committee met again and recommended non-duty benefits.Administrative Appeal{6} Ms. Vigil’s appeal proceeded to an evidentiary hearing before a hearing officer. Dr. Breitung testified and ex-plained her written notations on the two examining physician forms that had been submitted with Ms. Vigil’s two applica-tions for retirement disability benefits. With respect to the first form, on which Dr. Breitung had stated that Ms. Vigil’s employment “[was] largely responsible [for her disability] but not solely,” Dr. Breitung explained that she meant this to be a “generic statement” because “as a psychiatrist, we generally believe that there are some genetic factors even if we can’t prove it.” As for her written com-ment that Ms. Vigil’s “[p]rior history of a depressive episode put her more at risk for further depressive episodes,” Dr. Breitung testified that this related to the depressive episode Ms. Vigil experienced in 2006 or 2007 and that the prior episode was also the result of work stressors. She went on to testify that the prior episode had “resolved completely” by the time Ms. Vigil came to see her in 2011.{7} With respect to the second form pre-pared by Dr. Breitung and submitted with Ms. Vigil’s second application, Dr. Breitung explained her statement that “[t]he stress at work triggered her depression [and] anxi-ety though it is not the sole cause.” Again, Dr. Breitung testified that she meant that Ms. Vigil “had genetic factors.” She stated that the form did not ask whether any pre-existing condition was a significant factor in Ms. Vigil’s disability. Dr. Breitung further testified that she later became aware that PERA was denying Ms. Vigil duty-related disability benefits because of the forms Dr. Breitung had prepared. After being made aware of this fact and of the regulatory standards applicable to duty-related dis-ability, Dr. Breitung wrote a letter to PERA to clarify her previous statements, in which she stated that “[a]ny pre[-] existing condi-tion was not a significant factor in causing [Ms. Vigil’s] disability.” Dr. Breitung testi-fied that she stands by the opinion stated in that letter. She opined that Ms. Vigil’s work “was so substantial a factor in the disability that she would not have become disabled

without it.” She further testified that noth-ing in her treatment, diagnosis, or evalu-ation of Ms. Vigil led her to believe “that she had any pre[-] existing condition that was a significant factor in her disability.”{8} Dr. Breitung testified regarding sev-eral past incidents Ms. Vigil mentioned in her therapy sessions, including a panic attack Ms. Vigil had when she was in her twenties; her father’s physical discipline of her when she was a child; her boyfriend’s alleged affair in 2006 or 2007; the physical abuse by a former partner, who was the father of her first child; the fact that she has three freezers full of food (purportedly because of food insecurity she experienced as a child); and her brother’s death in 2011. Dr. Breitung concluded that, for a variety of reasons, none of these incidents constituted a pre-existing condition that significantly contributed to Ms. Vigil’s disability.{9} Ms. Vigil’s social worker-therapist, Ms. McNicol, also testified at the hearing. Ms. McNicol treated Ms. Vigil during her first depressive episode in 2007 and opined that all of her reported problems then were work-related. During this time period, Ms. Vigil received a letter saying that her boyfriend was having an affair, but Ms. McNicol thought Ms. Vigil was more focused on who sent the letter than on the letter’s allegations because her relationship with her boyfriend was going well. After a mediation at work took place, Ms. Vigil expressed uncertainty about continuing counseling, and she did not return to therapy with Ms. McNicol until early 2011.{10} Regarding the therapy in 2011, Ms. McNicol testified that any childhood is-sues Ms. Vigil may have had were not a significant factor in causing her disabling depression or anxiety. Ms. Vigil viewed her upbringing as fairly normal, although she mentioned an incident where her father hit her. However, this abuse was not recurrent, and Ms. McNicol opined that Ms. Vigil had dealt with her childhood issues prior to treatment. While Ms. Vigil’s brother died during her treatment with Ms. McNicol in 2011, Ms. McNicol testified that Ms. Vigil experienced normal bereavement that did not contribute to her depression. She concluded that Ms. Vigil’s work was so substantial a factor in her disability that she would not have become disabled with-out it and that no pre-existing condition was a significant factor in her disability.{11} The final witness at the hearing was Dr. Puryear, the psychiatrist who had reviewed Ms. Vigil’s disability applica-

tions for PERA. Dr. Puryear read into the record his written report, in which he discussed his prior recommendations of non-duty disability benefits. He stated that he gave significant weight to Dr. Breitung’s statements in her form reports that Ms. Vigil’s depression was not solely caused by stressors at work and that she had a history of depression. He explained that he changed his recommendation to duty-related disability benefits after receiving Dr. Breitung’s letter in which she stated that Ms. Vigil’s job was the sole and ex-clusive cause of her disability and that the prior depression had completely resolved.{12} Dr. Puryear then explained that after he recommended duty-related benefits, he reviewed “voluminous material,” apparently in preparing for the appeal hearing, including the notes of Dr. Breitung and Ms. McNicol. This material caused Dr. Puryear to consider “two possible scenarios that could be supported by the evidence[.]” Those scenarios were:

A. [Ms. Vigil] had childhood PTSD and continued to suffer from some symptoms, and this was exacerbated by her work stress, as well as somewhat by her brother’s death and prob-lems with her boyfriend. She appears to have developed a chronic adjustment disorder and exacerbation of her PTSD symptoms.

B. [Ms. Vigil] was doing fine until work problems arose and caused a chronic adjust-ment disorder probably with features of a major depression, with probable revival of her previous PTSD symptoms.

{13} He went on to opine: In either scenario, her problems would have resulted from:

1. her stresses, stresses largely but probably not solely from work[;]

2. a vulnerability and a predis-position to symptoms because of her childhood abuse and presumed PTSD[;]

3. her way of experiencing the work problems which was colored by childhood—feeling powerless, degraded, disre-garded[;]

4. and from the interaction of her compulsive personality type with her work situation.



http://www.nmcompcomm.us/Advance Opinions{14} He then concluded:

[T]he first scenario was most sup-ported by the evidence[,] which seemed to belie the second, but that in either scenario[,] the job was not the sole and exclusive cause of her problems. It seemed that the work situation was bad, but that absent her personality type and possible disorder, her childhood abuse and presumed PTSD, and her tendency to de-pression, she probably would have . . . experienced stress but not likely [to] have developed symptoms, especially of this ex-treme severity.

{15} Dr. Puryear elaborated on Ms. Vigil’s “personality type,” which he characterized as an “obsessive-compulsive” personality “style” that he would guess everyone at the appeal hearing, including himself, would “probably have.” By this he meant a style that was “detail oriented, conscientious, responsible, mostly honest, scrupulous, meticulous, rigid, judgmental and criti-cal, and particularly sensitive to issues of power and of injustice.” This personality style would mean that Ms. Vigil, in a “lousy work environment[,] is going to have really severe difficulty coping with all the stuff that seemed irresponsible and immoral[.]” It would also mean that she would “have more difficulty coping with . . . stress[.]”{16} The hearing officer prepared a rec-ommended decision, which included rec-ommended findings of fact and conclusions of law. He noted that Ms. Vigil and PERA agreed that Ms. Vigil is disabled and that her disability was solely and exclusively the result of her work but that they disputed whether a pre-existing condition was a significant contributing factor. The hear-ing officer rejected Dr. Puryear’s opinion that childhood PTSD contributed to her current disability because “[t]he medical evidence in this case does not indicate that [Ms. Vigil] was diagnosed with PTSD as a result of childhood trauma or abuse.” While Ms. McNicol diagnosed PTSD, she testified that “it was a result of stressors at work” and opined that “childhood trauma was not a pre[-]existing condition significant[ly] contributing to [Ms. Vigil’s] work-related disability.” The hearing officer found that “Dr. Breitung did not diagnose PTSD from childhood trauma” and testified that any “PTSD symptoms possibly related to childhood trauma [were] not a pre-existing condition that [were] a significant contrib-uting factor material to the disability.”

{17} The hearing officer went on to find that “Dr. Puryear appears to be discount-ing PTSD as a correct diagnosis while at the same time using PTSD (or at least PTSD symptoms) as a pre[-]existing con-dition in his analysis.”{18} He further found:

Dr. Puryear’s testimony appears to be, in certain instances, based on speculation and his own theories. Dr. Puryear’s theory that [Ms. Vigil] had either PTSD or symptoms of PTSD from childhood abuse, and that this was a pre[-]existing condition significantly contributing to [Ms. Vigil’s] 2011 depression and adjustment disorder, is contrary to the testimony of [Ms. Vigil’s] treating physician and therapist. His testimony that [Ms. Vigil] has some obsessive-compulsive disorder, or tendencies on that spectrum, is contrary to the testi-mony of her treating psychiatrist, and Dr. Puryear testified it would be incorrect for him to diagnose this alleged disorder.

{19} The hearing officer also found that “[Ms. Vigil’s] 2007 depressive episode was work-related. Dr. Breitung’s testimony that the prior depressive episode resolved prior to 2011 is not inconsistent with the medi-cal evidence.”{20} In summary, the hearing officer found that “greater weight is given to the testimony of the treating physician (and therapist) [than to Dr. Puryear’s testimony] because her opinion is also supported by medical records and diagnosis.”{21} The hearing officer submitted rec-ommended conclusions of law, including the following:

A preponderance of the evidence of record supports a determina-tion that [Ms. Vigil] is perma-nently and totally incapacitated for continued employment, and that the disability arose from proximate causes arising solely and exclusively from her job. A preponderance of credible evidence supports a finding that no pre[-]existing condition was a significant contributing factor material to [Ms. Vigil’s] disabil-ity. . . . [Ms. Vigil] is entitled to duty disability at this time, and her [a]ppeal should be granted.

{22} The Board filed an order stating that it had reviewed the hearing officer’s

recommended decision, PERA’s written exceptions to the decision, and the hearing officer’s response. The order then stated:

5. [Ms. Vigil] received medicine and social work therapy for a 2007 depressive episode.

6. [Ms. Vigil] chose to stop taking the medicine and attending social work therapy. . . .

7. PERA’s expert psychiatrist [(Dr. Puryear)] concluded that [Ms. Vigil’s] 2007 depressive episode was not resolved. . . .

8. [Ms. Vigil] has failed to satisfy her burden and her appeal for “duty” disability retirement benefits is DENIED in accor-dance with PERA statutes and rules.

{23} Ms. Vigil appealed the Board’s deci-sion to district court, which affirmed. This Court granted certiorari.DISCUSSIONStandard of Review{24} We review a decision of the Board “under the same standard of review used by the district court while also determin-ing whether the district court erred in its review.” Paule v. Santa Fe Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, ¶ 26, 138 N.M. 82, 117 P.3d 240. Under this standard, we determine “whether the [Board] acted fraudulently, arbitrarily or capriciously; whether the [Board]’s decision is sup-ported by substantial evidence; or whether the [Board] acted in accordance with the law.” Id.; see NMSA 1978, § 39-3-1.1(D) (1999). In this case, we conclude that the Board’s decision was arbitrary and capri-cious.The Board’s Decision Was Arbitrary and Capricious{25} We begin with the legal framework applicable to Ms. Vigil’s claim. Under NMSA 1978, Section 10-11-10.1 (2013), the PERA disability review committee may approve disability retirement benefits if it “finds the disability to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member’s performance of duty with an affiliated public employer.” Section 10-11-10.1(B)(4)(b). Regulations define “solely and exclusively” as “[(1)] the member’s work is so substantial a factor of the disability that the disability would not have occurred at the time without it and [(2)] a pre-existing condition is not a significant contributing factor material to the disability.” 2.80.1000.7(E) NMAC. The parties do not dispute that Ms. Vigil



http://www.nmcompcomm.us/Advance Opinionsestablished the first criterion, and the ques-tion is therefore whether a pre-existing condition significantly contributed to the disability.{26} In considering whether an adminis-trative decision is arbitrary or capricious, “we review the whole record to ascertain whether there has been unreasoned action without proper consideration or disregard of the facts and circumstances.” Paule, 2005-NMSC-021, ¶ 30 (internal quotation marks and citation omitted). Put another way, a decision is arbitrary and capricious “if it provides no rational connection between the facts found and the choices made, or entirely omits consideration of relevant factors or important aspects of the problem at hand.” Atlixco Coal. v. Maggiore, 1998-NMCA-134, ¶ 24, 125 N.M. 786, 965 P.2d 370; see Johnson v. Pub. Emps. Ret. Bd., 1998-NMCA-174, ¶ 21, 126 N.M. 282, 968 P.2d 793 (“An administra-tive decision may be found to be arbitrary and capricious if, when viewed in the light of the whole record, it is unreasonable or does not have a rational basis.”). The decision-making agency may not “select and discuss only that evidence which favors [its] ultimate conclusion or fail to consider an entire line of evidence to the contrary.” Atlixco, 1998-NMCA-134, ¶ 24.{27} The regulations governing the Board’s consideration of disability retire-ment benefits serve to prevent arbitrary and capricious decision making. They pro-vide that “[t]he [Board] shall approve, dis-approve or modify the [hearing officer’s] recommended decision, and shall enter a final order concerning the matter being appealed.” 2.80.1500.10(D)(7) NMAC (9/30/2010). Where, as here, “the [B]oard wishes to modify the proposed findings of fact, it may do so only after review of the record before the hearing officer. The [B]oard shall provide a reasoned basis for changing the hearing officer’s recommen-dation.” Id.{28} In this case, the Board’s final order recited that it had reviewed the hearing officer’s recommended decision, PERA’s exceptions to the decision, and the hearing officer’s response to the exceptions. Notably, the order did not state that the Board re-viewed the record before the hearing officer, as required by regulation. Yet, despite hav-ing failed to review the record, the Board

entered new findings of fact that contra-dicted the hearing officer’s recommended findings. It entered new findings that (1) Ms. Vigil was treated with medicine and therapy for a depressive episode in 2007; (2) she “chose to stop taking the medicine and attending the social work therapy[;]” and (3) Dr. Puryear “concluded that [Ms. Vigil’s] 2007 depressive episode was not resolved.” Based on these three new find-ings, while implicitly disapproving of all of the hearing officer’s twenty-one findings, the Board concluded that Ms. Vigil “failed to satisfy her burden” and denied her claim for duty-related disability benefits.{29} The Board’s denial of benefits was arbitrary and capricious for two reasons. First, it was made in violation of the ap-plicable regulations, which require the Board both to review the entire record before it can modify the hearing officer’s recommended findings and to “provide a reasoned basis for changing the hearing of-ficer’s recommendation.” 2.80.1500.10(D)(7) NMAC. The Board’s order said nothing about reviewing the record, and it offered no explanation, much less a reasoned one, for why it modified the hearing officer’s completely contrary findings.1 Second, the Board’s denial of benefits “entirely omit[ted] consideration of relevant fac-tors or important aspects of the problem at hand.” Atlixco, 1998-NMCA-134, ¶ 24.{30} The hearing officer’s findings in-cluded the following:

[Dr. Breitung] also indicated that [Ms. Vigil’s] prior depressive episode in 2007 was a result of work stressors, was a milder de-pression, and that it had resolved prior to the time [Ms. Vigil] came to see her in 2011.. . . .[Ms. McNicol] first saw [Ms. Vigil] June 25, 2007, . . . [when Ms. Vigil] sought treatment for excessive stress at work. . . . [Ms. Vigil] apparently went to a work mediation and then indicated she was unsure about continu-ing counseling. . . . Ms. McNicol had no reason to believe [Ms. Vigil] continued to suffer from depression, anxiety or PTSD after 2007 and before she returned to therapy in February 2011.

. . . .Dr. Puryear questioned whether [Ms. Vigil’s] 2007 depressive epi-sode was solely caused by work, and he also questioned whether [her] 2007 depressive episode was resolved prior to 2011, although pointing to no specific evidence concluding it was not. . . . Dr. Pur-year testified it was “plausible” the depression was resolved because the records show no treatment of [Ms. Vigil] from August 2007 to early 2011.

The hearing officer’s recommended findings make no mention of Ms. Vigil’s choosing to stop medication and therapy in 2007, as found by the Board.{31} Thus, the Board’s finding that Ms. Vigil “chose to stop taking the medicine and attending social work therapy” is completely contrary to the hearing officer’s recommended findings, and the Board of-fered no explanation for this contradiction other than a bare reference to an exhibit comprising sixty-eight pages of Ms. Mc-Nicol’s office notes, most of which were hand-written and difficult to decipher. More important, Ms. McNicol herself con-tradicted this finding with her testimony that she had no reason to believe that Ms. Vigil’s depression continued during the time she was not in therapy between 2007 and 2011.{32} In making its new findings of fact, the Board “select[ed] and discuss[ed] only that evidence which favor[ed its] ultimate conclusion”—i.e., Dr. Puryear’s testimony—and it “fail[ed] to consider an entire line of evidence to the contrary.” Atlixco, 1998-NMCA-134, ¶ 24. This is, by definition, conduct that is arbitrary and capricious. Id.{33} Moreover, the Board’s new findings had no rational basis in light of the whole record. See Johnson, 1998-NMCA-174, ¶ 21 (“An administrative decision may be found to be arbitrary and capricious if, when viewed in the light of the whole record, it is unreasonable or does not have a rational basis.”). Dr. Puryear himself did not rely on the 2007 depressive episode for his opinion supporting denial of benefits to Ms. Vigil. Instead, he relied on two “sce-narios,” the more likely of which was that Ms. Vigil suffered from “childhood PTSD

1While Ms. Vigil did not raise this point in her briefing, we nonetheless address it because it is in the general public interest to ensure that the Board acts in compliance with its own regulations and bases decisions that are contrary to the recommendations of its hearing officers on the evidentiary record. Rule 12-216(B)(1) NMRA (stating that appellate court may, in its discretion, review unpreserved questions involving general public interest).



http://www.nmcompcomm.us/Advance Opinions. . . exacerbated by her work stress, as well as somewhat by her brother’s death and problems with her boyfriend.” Yet both Ms. Vigil’s treating psychiatrist and her treating therapist testified that, in childhood, Ms. Vigil was disciplined by her father rather than abused and that neither her brother’s death nor any alleged problems with her boyfriend constituted pre-existing condi-tions that significantly contributed to her disability. Dr. Breitung rejected a diagnosis of PTSD, and while therapist Ms. McNicol diagnosed PTSD, she attributed the disor-der to stressors at work.{34} Dr. Puryear also opined that, while Ms. Vigil’s “work situation was bad, . . . absent her personality type, . . . presumed PTSD, and her tendency to depression,” she likely would not have experienced the severe symptoms that she did. Because Dr. Breitung and Ms. McNicol testified either

that Ms. Vigil did not have PTSD or that her PTSD was caused by her work, and because they agreed that her only previ-ous depressive episode had completely resolved, the only remaining potential “pre-existing condition,” according to Dr. Puryear, was Ms. Vigil’s “personality type.” And because Dr. Puryear described this personality type as one “probably” shared by every person in attendance at the appeal hearing, we can surmise that, in Dr. Pur-year’s view, no one with a college education could ever qualify for PERA duty-related disability retirement based on a mental health disorder.{35} In summary, the Board violated its own regulations by failing to review the record before the hearing officer and by failing to provide a reasoned basis for its new findings of fact. In addition, the Board’s decision, “when viewed in the light

of the whole record, . . . [was] unreasonable [and did] not have a rational basis.” John-son, 1998-NMCA-174, ¶ 21. The decision was therefore arbitrary and capricious and must be reversed.CONCLUSION{36} For the foregoing reasons, we reverse the Board’s order denying duty-related disability retirement benefits to Ms. Vigil, and we reverse the district court’s judgment affirming the Board’s order. This matter is remanded to the Board with instructions to implement the hearing of-ficer’s proposed decision.{37} IT IS SO ORDERED.

CYNTHIA A. FRY, Judge

WE CONCUR:LINDA M. VANZI, JudgeM. MONICA ZAMORA, Judge



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Certiorari Granted, July 17, 2015, No. 35,349



IN THE MATTER OF THE ESTATE OF EDWARD K. McELVENY, Deceased, MICHAEL PHILLIPS, as Personal Representative of the

Estate of Edward K. McElveny,Petitioner-Appellee,

v.STATE OF NEW MEXICO, ex rel. DEPARTMENT OF TAXATION AND REVENUE,

Respondent-AppellantDocket No. 33,568 (filed May 11, 2015)

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTYRAYMOND Z. ORTIZ, District Judge

CRISTY J. CARBÓN-GAULLAW OFFICE OF

CRISTY J. CARBÓN-GAULALBUQUERQUE, New Mexico

CARMELA D. STARACESTARACE LAW

Albuquerque, New Mexicofor Appellee

HECTOR H. BALDERASAttorney GeneralPETER A. BREEN

Special Assistant Attorney GeneralSanta Fe, New Mexico

for Appellant

Opinion

Michael E. Vigil, Chief Judge{1} This case presents a question of first impression: whether the district court in a formal proceeding under the Uniform Probate Code (UPC), NMSA 1978, §§ 45-1-101 to -404 (1975, as amended through 2011) has jurisdiction to order the Depart-ment of Taxation and Revenue (Depart-ment) to deliver estate assets to a personal representative when the assets are in the Department’s custody pursuant to the Uniform Unclaimed Property Act (UPA), NMSA 1978, §§ 7-8A-1 to -31 (1975, as amended through 2006). We conclude that the district court has jurisdiction to do so, and affirm the order of the district court.BACKGROUND{2} Edward McElveny (Decedent) died intestate in 1991, and his heirs consist of seven adult grandchildren and one adult great-grandchild. In 2013, Michael Phillips, one of the adult grandsons, filed an applica-tion in the Santa Fe probate court to open an informal probate for his grandfather and to be appointed personal representative of Decedent’s estate (Estate). The remaining

heirs renounced their right to be appointed personal representative and nominated Michael Phillips to be appointed personal representative of the Estate. The application states that Decedent “has property which was transferred to the . . . Department as unclaimed property” and that “[a]s part of the probate administration, Applicant will claim the unclaimed property for Decedent’s Estate.” It is undisputed that the Department is holding property in the name of Decedent valued at “a little less than $70,000” pursu-ant to the UPA. The probate court issued an order appointing Mr. Phillips personal rep-resentative (PR) of the Estate and ordered the Department to “release the unclaimed property of the Decedent to Applicant as [PR] of the Estate of Decedent.”{3} The PR attached a copy of the probate court order to a blank claim form used by the Department under the UPA and submit-ted it to the unclaimed property office of the Department, demanding that the money be released to the PR to be administered under the UPC and distributed to the heirs. The Department rejected the claim as “incom-plete” on the grounds that “[w]e do not have appropriate documentation showing that the property in question would devolve to

Mr. Phillips alone under the applicable law of heirship” and that “the application should be made directly to [the] Department as unclaimed property custodian rather than probate.” The Estate responded by pointing out that the demand was not made on behalf of Mr. Phillips personally, but in his capac-ity as PR of the Estate so the money could be distributed to the heirs. In addition, the Estate disputed that the exclusive method for acquiring estate assets in the custody of the Department under the UPA is through the Department’s own administrative process rather than the UPC. The Estate therefore contended that the application was “complete” and demanded that the funds be delivered to the PR no later than ninety days after the claim was initially submitted to the Department, or the Estate would return to court and seek enforcement of the probate court order in addition to sanctions.{4} The Department failed to respond to the Estate’s demand, and the probate court thereupon transferred the probate case to the district court “for determination of all disputed issues” subject to being remanded back to the probate court for completion after resolution of the disputed issues. See N.M. Const. art. VI, § 23 (stating that the probate court “shall not have jurisdiction in civil causes in which the matter in contro-versy shall exceed in value three thousand dollars ($3,000.00) exclusive of interest and cost[.]”). The Estate then filed a motion in the district court to enforce the probate court order and for sanctions, with notice to the Department. The Department respond-ed by moving to dismiss on the ground that the district court had no jurisdiction to grant the relief requested. First, the Department asserted that the UPA is the “exclusive mode” for disbursing unclaimed property and that a court order issued under the UPC is inef-fective. Second, the Department asserted the district court lacked jurisdiction because the Estate failed to exhaust its administrative remedies under the UPA before it obtained the order from the probate court. Finally, the Department asserted that because it was not served with process, the probate court failed to obtain jurisdiction over the Department.{5} Following a hearing at which the De-partment appeared, the district court de-nied the Department’s motion to dismiss, enforced the order of the probate court, and ordered the Department to deliver the personal property of Decedent to the PR of the Estate. The Department appeals.DISCUSSION{6} As a prelude to our analysis, we pro-vide a brief overview of the UPA and how it



http://www.nmcompcomm.us/Advance Opinionsgenerally operates. Property is “presumed abandoned” if it is “unclaimed” by its ap-parent owner for a specified period of time. Section 7-8A-2. A “holder” of property that is “presumed abandoned” is required to send written notice to the apparent owner stating that the holder is in posses-sion of property that is subject to the UPA, make a report to the Department that it is in possession of such property and, ultimately, deliver custody of the prop-erty to the Department. Sections 7-8A-4; 7-8A-7; 7-8A-8. Upon payment or delivery of property to the Department, “the state assumes custody and responsibility for the safekeeping of the property.” Section 7-8A-10(b). The Department is then re-quired to publish a notice stating in part that “property of the owner is presumed to be abandoned and has been taken into the protective custody of the [Department.]” Section 7-8A-9(a)(3). The notice must also state that “information about the property and its return to the owner is available to a person having a legal or beneficial interest in the property, upon request to the [Department].” Section 7-8A-9(a)(4). The property does not escheat to the State. The Department is required to deposit all money and proceeds from the sale of abandoned property, minus expenses, into the tax administration suspense fund and retain it in an unclaimed property fund containing at least one hundred thousand dollars ($100,000) from which the De-partment “shall pay claims duly allowed.” Section 7-8A-13.{7} Against this general background, the Department contends that the order of the district court must be reversed, arguing: (1) the district court had no jurisdiction, apart from the UPA, to order the Depart-ment to release the unclaimed property to the Estate; (2) the district court order is void because the Department was not served with process; and (3) for additional reasons, which we address summarily.Standard of Review{8} Arguments made by the Department require us to engage in statutory inter-pretation, which requires de novo review. Oldham v. Oldham, 2011-NMSC-007, ¶ 10, 149 N.M. 215, 247 P.3d 736. In addi-tion, whether a district court has subject matter jurisdiction likewise presents a question of law, with de novo review. State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251, 208 P.3d 896. Finally, questions

relating to sufficiency of service of process are also reviewed de novo. See Edmonds v. Martinez, 2009-NMCA-072, ¶ 8, 146 N.M. 753, 215 P.3d 62. We now turn to the argu-ments made by the Department.Subject Matter Jurisdiction{9} We first address whether the district court had jurisdiction, independent of the UPA, to order the Department to deliver the property of Decedent to the PR of the Estate. When the probate case was opened and the PR was appointed for the Estate, the PR was automatically granted certain powers and obligations. The PR acquired “the same power over the title to property of the estate that an absolute owner would have” which could be exercised “without notice, hearing or order of the court.” NMSA 1978, Section 45-3-711 (1975). In addition, the UPC directs that “every personal representative has a right to, and shall take possession or control of, the decedent’s property” and the PR “may maintain an action to recover possession of property[.]” NMSA 1978, Section 45-3-709 (1975). Thus, the PR acted in accordance with his statutory obligation in seeking an order from the probate court directing the Department to deliver Decedent’s property to the Estate. After the Department refused to honor the order, the case was transferred to the district court for enforcement of the pro-bate court order. When the hearing was held in the district court with notice to the Department, it was a “formal proceeding” under the UPC. Section 45-1-201(A)(19) (defining “formal proceedings” under the UPC as “proceedings conducted before a district judge with notice to interested per-sons”). Section 45-1-302(B) then expressly provides:

The district court in formal pro-ceedings shall have jurisdiction to determine title to and value of real or personal property as between the estate and any inter-ested person, including strangers to the estate claiming adversely thereto. The district court has full power to make orders, judgments and decrees and to take all other action necessary and proper to administer justice in matters that come before it.

On its face, Section 45-1-302(B) expressly and unambiguously grants jurisdiction to the district court to do exactly what it did here.

{10} The UPC notwithstanding, the Department asserts that the district court lacked subject matter jurisdiction because the UPA contains an express declaration that the Estate must utilize its procedure to acquire Decedent’s property. The sole authority cited to us is Subsection (a) of Section 7-8A-15. This statute provides:

A person, excluding another state, claiming property paid or delivered to the [Department] may file a claim on a form pre-scribed by the [Department] and verified by the claimant.

The Department argues that because an estate is included in the definition of a “person” in the UPA under Section 7-8A-1(12), the Legislature expressed its intent that an estate must follow the Department’s procedures to the exclusion of the UPC in collecting estate assets in its custody under the UPA. At oral argument the De-partment added that it contends the word “may” in the statute really means “shall.”1 We are not persuaded.{11} Our task in construing a statute is to give effect to the intent of the Legisla-ture. Oldham, 2011-NMSC- 007, ¶ 10. To ascertain the Legislature’s intent, we look first to the plain language of the statute, unless the Legislature indicates that a con-trary meaning was intended. Id. “[W]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 40, 320 P.3d 1 (internal quotation marks and citation omitted). Here, there is nothing to indicate that the Legislature intended the word “may” to mean anything other than what it plainly means. Plainly, the word “may” is permis-sive and not mandatory. See Webster’s Third New Int’l Dictionary 1396 (unabridged ed. 2002). Moreover, the Legislature has spe-cifically stated in the Uniform Statute and Rule Construction Act, NMSA 1978, §§ 12-2A-1 to - 20 (1997), that when “may” is used in a statute, it “confers a power, author-ity, privilege or right” but when “shall” or “must” are used in a statute, they “express a duty, obligation, requirement or condition precedent.” Sections 12-2A-4(A) and (B).{12} Because the words “may” and “shall” have such different meanings, “a fundamen-tal rule of statutory construction states that in interpreting statutes, the words ‘shall’ and ‘may’ should not be used interchangeably

1The Department also repeatedly asserted at oral argument that its procedures for determining whether a person is entitled to property in its custody under the UPA are superior to a district court’s. We do not comment further on this assertion, as it is not supported by reference to any facts or legal authorities.



http://www.nmcompcomm.us/Advance Opinionsbut should be given their ordinary mean-ing.” Thriftway Mktg. Corp. v. State, 1992-NMCA-092, ¶ 9, 114 N.M. 578, 844 P.2d 828. Thus, “[w]here the terms ‘shall’ and ‘may’ have been juxtaposed in the same statute, ordinarily it must be concluded that the [L]egislature was aware of and intended differ-ent meanings.” Id. In this regard, we note that in Section 7-8A-15(b), which immediately follows Subsection (a) on which the Depart-ment relies, the Legislature used these words in just this fashion.2 We therefore conclude that the Legislature intentionally used “may” and “shall” in Sections 7-8A-15(a) and (b) to respectively convey permissive and manda-tory meanings. See Vaughn v. United Nuclear Corp., 1982-NMCA-088, ¶ 23, 98 N.M. 481, 650 P.3d (stating that a statutory amendment “substituting ‘may’ for ‘shall’ manifests a clear intent to make the act referred to per-missive instead of mandatory”).{13} Here, Section 7-8A-15(a) unambigu-ously states that a claim “may” be filed with the Department; it does not state that a claim “must” be filed with the Department. Moreover, we conclude that the UPA and the UPC can operate together and that no intent was expressed by the Legislature that the UPA supersede the UPC in the circum-stances of this case. Thus, in the exercise of its duty to act “for the best interests of [the] successors to the estate” under Section 45-3-703(A), the PR had discretion to either file a claim with the Department under Section 7-8A-15(a) or invoke the jurisdiction of the district court under Section 45-1-302(B). We therefore reject the Department’s argu-ment and hold that the district court had jurisdiction to act as it did. See In re Estate of Harrington, 2000-NMCA-058, ¶ 17, 129 N.M. 266, 5 P.3d 1070 (concluding, on the basis of the language in Section 45-1-302, that “the Legislature intended to confer upon district courts general civil jurisdic-tion in formal probate proceedings”).Service of Process{14} The Department contends that the order of the probate court directing it to deliver Decedent’s property to the Estate and the order of the district court enforcing the order was ineffectual and void because the Department was never served with process as required by Rule 1-004 NMRA. For the following reasons, we disagree.{15} Probate proceedings are in rem special statutory proeedings. See In re Estate of Harrington, 2000-NMCA-058, ¶

14 (stating that probate proceedings are special statutory proceedings); In re Es-tates of Salas, 1987-NMCA-018, ¶ 11, 105 N.M. 472, 734 P.2d 250 (“The procedure for probating wills and testaments in New Mexico is strictly statutory and is an action in rem.”), abrogated on other grounds by In re Estate of Harrington, 2000-NMCA-058; In re Hickok’s Will, 1956-NMSC-035, ¶ 30, 61 N.M. 204, 297 P.2d 866 (“A probate pro-ceeding is a special, statutory proceeding.”). Here, the PR opened an informal probate for his deceased grandfather pursuant to the UPC, and the probate court properly is-sued an order directing the PR to collect the Estate’s assets so they could be administered through probate. Property of Decedent was in the custody of the Department and, in keeping with the UPC, the Department was properly ordered to deliver the property to the PR. In this respect, the Department stands in the same shoes as any other cus-todian of property belonging to an estate, such as a bank. The Estate did not sue the Department, nor did it attempt to obtain personal jurisdiction over the Department for the purpose of stating a claim against the Department. Thus, the district court was not required to obtain personal jurisdiction over the Department by service of process. All that was required was that it have in rem jurisdiction over Decedent’s estate property—and there is no argument that it did not. Nowhere does the UPC require service of process upon a custodian of a decedent’s property in such circumstances.{16} Under the UPC, “each proceeding before the district court or probate court is independent of any other proceeding involving the same estate” unless it is a su-pervised administration. Section 45-3-107. When a hearing is held, “the petitioner shall cause notice of the time and place of hearing of any petition to be given to any person having an interest in the subject of the hear-ing.” Section 45-1-401(A). As custodian of Decedent’s property, the Department had an interest in the subject of the hearing, and it was entitled to notice of the hearing and an opportunity to be heard. That is precisely what was done here. At oral argument, the Department conceded it had notice of the proceedings and that it had a full and fair opportunity to be heard in the district court. If the Department had any concerns about whether the Estate was the rightful owner of the property, it had a full and fair opportu-

nity to present those concerns to the court. The public policy of New Mexico, as ex-pressed in the UPA, is to locate and restore property to its owner rather than to claim it by escheat. See In re Estate of Tischler, 97 Cal. Rptr. 510, 516 (Ct. App. 1971) (stating that by adopting the UPA, California’s public policy is to restore property to the owner rather than claim it by escheat). By ordering the property to be delivered to the Estate, the district court acted in conformance with our public policy. And the district court properly ordered the property to be delivered to the Estate to be administered in accordance with the UPC so title could pass to Decedent’s heirs. See Clovis Nat’l Bank v. Callaway, 1961-NMSC-129, ¶ 17, 69 N.M. 119, 364 P.2d 748 (stating that before title to personal property of a decedent passes, there must be a determination of heirship and an order of distribution in a probate case).Remaining Arguments{17} The Department asserts that the dis-trict court had no jurisdiction because the Estate did not exhaust its administrative remedies. The short answer to this argu-ment is that the Estate was not required to proceed under the UPA, and exhaustion of administrative remedies is not a prerequi-site for enforcing a probate court order in the district court.{18} Finally, the Department argues that the Estate’s claim to the property is insuf-ficient to overcome the statutory presump-tion that the property is abandoned. We disagree. The Estate made a claim to the property pursuant to the UPC, and despite having been given the opportunity to contest the Estate’s ownership of the property, the Department chose not to. Moreover, in its brief, the Department concedes that it “has roughly $70,000 of unclaimed property in its custody . . . which colorably belonged to [Decedent].” There is no factual dispute that the property belongs to the Estate, and we therefore reject the Department’s argument.CONCLUSION{19} The order of the district court is af-firmed.{20} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Judge

WE CONCUR:CYNTHIA A. FRY, JudgeRODERICK T. KENNEDY, Judge

2Section 7-8A-15(b) states: “Within ninety days after a claim is filed, the [Department] shall allow or deny the claim and give written notice of the decision to the claimant. If the claim is denied, the [Department] shall inform the claimant of the reasons for the denial and specify what additional evidence is required before the claim will be allowed. The claimant may then file a new claim with the [Department] or maintain an action under Section [7-8A-16].” (Emphasis added.)







STATE OF NEW MEXICO,Plaintiff-Appellee,

v.ROBERT J. FLORES,

Defendant-AppellantDocket No. 32,928 (filed May 20, 2015)

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTYFERNANDO R. MACIAS, District Judge

HECTOR H. BALDERASAttorney General

Santa Fe, NMRALPH E. TRUJILLO

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

CAREN I. FRIEDMANSanta Fe, NM

MARK L. PICKETTTHE PICKETT LAW FIRMLas Cruces, New Mexico

for Appellant

Opinion

Timothy L. Garcia, Judge{1} A jury found Defendant Robert J. Flores guilty of reckless child abuse result-ing in death, in violation of NMSA 1978, § 30-6-1(D)(1), (F) (2009), and tampering with evidence, in violation of NMSA 1978, § 30-22-5(A) (2003). Defendant raises sev-eral issues on appeal involving sufficiency of the evidence, whether statements he made to the police should have been sup-pressed, the State’s destruction of evidence, and his constitutional right to a speedy trial. Because we conclude that Defendant’s constitutional right to a speedy trial was violated, we need not address the other issues Defendant raises. We reverse and remand to the district court for dismissal of the charges.BACKGROUND{2} This case involves the tragic suffoca-tion death of Kalynne Flores, Defendant’s four-and-one-half-month-old daughter. Defendant was entrusted with Kalynne’s care one evening while the baby’s mother worked the night shift. At about 10:30 p.m., Defendant wanted to leave the home to go to the store. He did not want to take

Kalynne with him and he did not want to put her in the bed where she usually slept1 because he did not want the neighbors to hear her cry while he was away. He placed Kalynne on top of clothing in a laundry basket, put the laundry basket inside of a walk-in closet inside of a bedroom, and left the home. Defendant returned home forty-five minutes later, but did not check on Kalynne until a few hours later, at which time he found her dead. The medi-cal examiner ruled that the cause of death was asphyxia. Defendant was arrested for Kalynne’s death the next day, on December 7, 2007. His trial began more than five years later on January 30, 2013.DISCUSSIONA. Speedy Trial General Principles{3} The Sixth Amendment of the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. The New Mexico Constitution affords a similar right: “In all criminal prosecutions, the accused shall have the right to . . . a speedy public trial.” N.M. Const. art. II, § 14. However, “[a] defendant has no duty to bring himself to trial[.]” Barker v. Wingo, 407 U.S. 514, 527 (1972). “[I]t is ultimately the [s]tate’s responsibility

to bring a defendant to trial in a timely man-ner.” State v. Stock, 2006-NMCA-140, ¶ 17, 140 N.M. 676, 147 P.3d 885.{4} The United States Supreme Court pro-vided four factors to consider in Barker: (1) length of delay, (2) reasons for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. 407 U.S. at 530. “Each of these factors is weighed either in fa-vor of or against the [s]tate or the defendant, and then balanced to determine if a defen-dant’s right to a speedy trial was violated.” State v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272. Because none of these factors alone is sufficient to establish a violation, we analyze speedy trial claims on a case-by-case basis. State v. Garza, 2009-NMSC-038, ¶ 23, 146 N.M. 499, 212 P.3d 387; State v. Palacio, 2009-NMCA-074, ¶ 9, 146 N.M. 594, 212 P.3d 1148. In analyzing these factors, we defer to the district court’s factual findings that are supported by substantial evidence, but we independently review the record to determine whether a defendant was denied his speedy trial right and we weigh and balance the Barker factors de novo. State v. Montoya, 2015-NMCA-___, ¶ 12, ___ P.3d ___ (No. 32,525, Feb. 25, 2015).B. Length of Delay{5} The length of delay serves two pur-poses in our analysis. First, it acts as a mechanism triggering “further inquiry into the Barker factors once the delay has reached a specified amount of time, depending on the difficulty of the case.” Spearman, 2012-NMSC-023, ¶ 20 (internal quotation marks and citation omitted). A delay of trial of twelve months is presump-tively prejudicial in simple cases, fifteen months in intermediate cases, and eighteen months in complex cases. Id. ¶ 21. Second, we consider how long the delay extends be-yond this presumptively prejudicial period, because “the greater the delay the more heavily it will potentially weigh against the [s]tate.” Garza, 2009-NMSC-038, ¶ 24. We calculate the length of delay from the time the defendant “becomes an accused, that is, by a filing of a formal indictment or information or arrest and holding to answer.” State v. Urban, 2004-NMSC-007, ¶ 12, 135 N.M. 279, 87 P.3d 1061 (internal quotation marks and citation omitted).{6} The district court found that this was a complex case. Defendant contends that it was a case of intermediate complex-ity because it involved only “two counts against a single defendant.” We defer to the district court’s finding that this was

1Kalynne had a crib, but the mother testified that she did not use it and that the baby generally slept in the bed with her and Defendant.



http://www.nmcompcomm.us/Advance Opinionsa complex case because it was in the best position to make that determination. See State v. Manzanares, 1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714 (“The question of the complexity of a case is best answered by a trial court familiar with the factual circumstances, the contested issues and available evidence, the local judicial machinery, and reasonable expectations for the discharge of law enforcement and prosecutorial responsibilities.”).{7} Defendant was arrested on December 7, 2007. His trial began nearly five years and two months later on January 30, 2013. This nearly sixty-two month delay extends almost forty-four months beyond the presumptively prejudicial threshold of eighteen months for a complex case. Once the presumptively prejudicial threshold has been exceeded, the state must present evidence to show that a defendant’s right to a speedy trial has not been violated. See Garza, 2009-NMSC-023, ¶ 16. This delay was considered extraordinary and weighs heavily in Defendant’s favor unless suf-ficiently tempered by a consideration and analysis of all four Barker factors. See State v. Maddox, 2008-NMSC-062, ¶¶ 12, 37, 145 N.M. 242, 195 P.3d 1254 (addressing a twenty-eight month delay as “extraordi-nary” and evaluating all four Barker factors in detail to determine whether the unique facts significantly tempered the prejudice to the defendant), abrogated on other grounds by Garza, 2009-NMSC-038, ¶¶ 47-48.C. Reasons for Delay{8} “Closely related to length of delay is the reason the government assigns to jus-tify the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citation omitted). The reasons for the delay “may either heighten or temper the prejudice to the defendant caused by the length of the delay.” Id. (internal quotation marks and citation omitted). Generally, different reasons for delay are accorded different weight. Id. Bad faith or deliberate delay in order to hamper the defense or gain some impermissible advantage at trial is weighed heavily against the state. Id. Valid reasons for delay, such as a missing wit-ness, reasonable time needed to oppose the defendant’s pretrial motions, and a defen-dant “go[ing] into hiding” may be “wholly justifiable” and not weighed against the state. Id. ¶ 27 (internal quotation marks and citation omitted). More neutral rea-sons for delay, such as “negligent or ad-ministrative delay . . . caused, for example, by overcrowded courts, the reassignment of judges, or governmental negligence[,]”

State v. Steinmetz, 2014-NMCA-070, ¶ 7, 327 P.3d 1145 (internal quotation marks and citation omitted), weighs against the state, though “less heavily.” Garza, 2009-NMSC-038, ¶ 26.{9} However, our tolerance of negligent or administrative delay “varies inversely with its protractedness[.]” Id. ¶ 26 (internal quotation marks and citation omitted). Thus, where the government’s negligence and administrative burdens cause an ex-cessively protracted delay, we weigh such delay heavily against the state. See State v. Taylor, 2015-NMCA-012, ¶ 25, 343 P.3d 199 (concluding that delays caused by the state’s negligence and lack of diligence weigh heavily against the state where there was an “excessively long” two-year delay in a simple case); Steinmetz, 2014-NMCA-070, ¶ 7 (“The degree of weight we assign against the prosecution for negligent delay is closely related to the length of the delay; the longer the delay, or the greater the threat to the fairness to the defendant, the less tolerant we are of the delay.” (alterations, internal quotation marks, and citation omitted)).{10} We proceed by dividing the nearly sixty-two month delay in this case into di-gestible portions and discussing the reasons for each portion. We note that the district court’s order denying Defendant’s second speedy trial motion did not include findings specific to particular periods of delay except for the State’s interlocutory appeal, which the district court found was “a valid reason” for delay. As to the remainder of the delay, the order contained only a general finding that “the majority of the delay [was] due to both parties filing numerous motions and conducting discovery” and that the delays were not “deliberate attempts to delay the trial in order to hamper the defense.”1. December 2007 to May 2008{11} During the first six months after Defendant’s arrest on December 7, 2007, and the first five months after he waived his arraignment on January 2, 2008, the record shows no activity initiated by the State to prosecute this case other than a request to review Defendant’s conditions of release because he was seen at a local basketball game. During this time, Defendant sub-mitted three letters to the State asking for discovery because none had been provided within ten days of his arraignment waiver, contrary to Rule 5-501(A) NMRA. Al-though the State provided many requested materials by February 18, 2008, it did not respond to Defendant’s additional requests until May and June 2008. Furthermore,

the State did not file its initial witness list until May 21, 2008, and only did so after Defendant submitted a fourth letter re-questing the State to disclose its witnesses so he could interview them.{12} The State’s duties under Rule 5-501(A) are not optional, nor are they triggered by Defendant’s requests. See Rule 5-501(A) (providing that “within ten (10) days after arraignment or the date of filing of a waiver of arraignment, . . . the state shall disclose or make available to the defendant [an enumerated list of discoverable materials and a list of witnesses it intends to call at trial]” (emphasis added)). Accordingly, we attribute this six-month delay, during which the State did not timely fulfill its du-ties to Defendant and then did so only in response to Defendant’s urging, as conduct that weighs against the State. Cf. Garza, 2009-NMSC-038, ¶ 28 (concluding that a “delay of four months in which th[e] case sat in magistrate court before the [s]tate . . . refiled in district court” was “negligent and weigh[ed] against the [s]tate”).2. May 2008 to January 2009{13} The trial was first set for June 3, 2008. On May 22, 2008, the State filed a petition to extend the trial date by six months, up to and including January 2, 2009, because the prosecutor was scheduled for another jury trial for a different case during that time and Kalynne’s autopsy report had “only recently been made available to the State and defense counsel.” Although Defendant stipulated to this extension, the reasons for it were wholly attributable to the State—its prosecutor was scheduled for another trial and the State did not explain why the autopsy report was not available to the parties earlier. We therefore classify this six-month delay as administra-tive delay that weighs against the State. See Steinmetz, 2014-NMCA-070, ¶ 7 (weighing administrative delay against the state); State v. Moreno, 2010-NMCA-044, ¶¶ 28-29, 148 N.M. 253, 233 P.3d 782 (concluding that, even though defense counsel stipulated to continuances requested by the state due to delay caused by the state, the delay weighed against the state).3. January 2009 to March 2009{14} In the fall of 2008, the district court rescheduled the trial for February 3, 2009, and then rescheduled it again for March 30, 2009 because more days were needed for trial. In January 2009, the State filed the first of several petitions to our Supreme Court to extend the time in which to try Defendant based on the six-month rule that existed at that time. See Rule 5-604 (B)(1), (D) NMRA (2008) (requiring that



http://www.nmcompcomm.us/Advance Opinionscriminal trials be commenced within six months after arraignment unless the Supreme Court grants an extension). The Supreme Court granted an extension until May 2, 2009.{15} In early March 2009, about four weeks before trial, Defendant filed three pretrial motions: a motion to suppress, a motion for a supplemental juror questionnaire, and a motion to dismiss one of the charges. De-fendant did not ask for a trial continuance. Three weeks later, the State moved for an extension of time to respond to Defendant’s motions, stating that “[a]dditional time is necessary for the State to research case law to adequately prepare and file a response.” The district court granted the motion, extend-ing the time for the State’s response until April 15, 2009, necessitating another trial continuance. In late March 2009, Defendant filed his first speedy trial demand in which he detailed the delays that had occurred up to that time. The State filed its responses on May 4, 2009.{16} The fact that a defendant files pre-trial motions does not automatically weigh against him in a speedy trial analysis. We instead determine whether the reasons for the delay in disposing of the motions are attributable to the defendant or to the state. See, e.g., State v. Winters, 690 N.W.2d 903, 909 (Iowa 2005) (concerning Iowa’s statutory speedy trial right, stating that “the deter-mination of whether pretrial motions . . . excuse a failure to comply with the speedy-trial rule essentially rests on the strength of the underlying reasons for the delay in disposing of the motions . . . , not the mere existence of the motions” and concluding that, in the absence of an explanation of why motions made six weeks before the trial deadline could not be heard before the deadline, “the only ground in the record to support the [trial] continuance was the filing of the motions[,]” which was “insufficient”). In this case, Defendant filed three pretrial motions four weeks before the March 30, 2009 trial setting and well within the time allocated by rule for the State to respond to the motions. See Rule 5-120(E) NMRA (“Unless otherwise specifically provided in these rules, a written response shall be filed within fifteen (15) days after service of the motion.”). The reason cited by the State for its inability to timely respond to these motions was that it needed more time to research case law and to prepare its response. Therefore, this three-month delay is attrib-utable to, and weighs against, the State. See Garza, 2009-NMSC-038, ¶ 29 (stating that delays caused by administrative burdens

such as an understaffed prosecutor’s office weigh against the state).4. April 2009 to mid-July 2009{17} The district court rescheduled trial a fourth time for July 13, 2009, in order to deal with the pending motions. On May 22, 2009, the Supreme Court granted the State’s second Rule 5-604 extension, which gave the State until August 2, 2009 to commence trial. On June 18, 2009, about a month before trial, but three days before the hearing on Defendant’s suppression motion, the State moved to exclude testi-mony from Defendant’s expert. This mo-tion had to be resolved before Defendant’s March 2, 2009 suppression motion because Defendant intended to call his expert as a defense witness at the suppression hearing. Although the district court attempted to resolve the pending motions before the July 13, 2009 trial setting, it ran out of time and had to finish the motions hear-ing on July 15, 2009, necessitating another trial continuance. Defendant then filed his second speedy trial demand.{18} The district court’s inability to re-solve the parties’ motions prior to the July 13, 2009, trial setting is an administrative delay we attribute to its congested docket and the State’s delay in filing a motion to exclude Defendant’s expert witness report that was prepared on January 15, 2009. Therefore, we weigh this three-and-one-half-month delay against the State. See Garza, 2009-NMSC-038, ¶ 29 (stating that delays caused by administrative burdens such as congested dockets weigh against the state).5. Mid-July 2009 to Late November

2009{19} The district court rescheduled trial a fifth time for November 30, 2009. On Au-gust 18, 2009, the Supreme Court granted the State’s third Rule 5-604 extension peti-tion, over Defendant’s written opposition, giving the State until January 2, 2010 to try Defendant. On September 24, 2009, Defendant filed his first motion to dismiss for violation of his speedy trial right.{20} In October and November of 2009, Defendant moved twice for a change of venue due to the extensive coverage of the case by the local media. The district court denied the first motion, but granted the second motion in late November 2009, changing the venue to Bernalillo County and necessitating a sixth trial setting. Be-cause the November 30, 2009 trial setting was vacated due to Defendant’s meritori-ous venue change motion, we weigh this four-month delay neutrally. See Garza,

2009-NMSC-038, ¶ 27 (recognizing that delay for a valid reason may be “wholly justifiable” (internal quotation marks and citation omitted)).6. December 2009 to September 2010{21} On December 18, 2009, the State pe-titioned the district court to extend the trial date until July 2, 2010, which would have been eight months after the venue change, stating that resetting the trial “will require special arrangements to be made with the [c]ourt in Bernalillo County” to accommo-date the five-to-seven-day trial. (Emphasis added.) The district court granted the extension. However, the record shows that no trial date was obtained in the new venue until May 2010—five months after the extension was granted—at which time, the trial was further delayed until September 2, 2010. Although we expect a venue change to cause some delay, the ten-month delay here is significant considering Defendant’s trial had already been delayed for two years and he had asserted his speedy trial right three times. Nothing in the record indicates that the State attempted to secure an earlier trial date. To the contrary, the language in the State’s extension petition shows that the State had not yet attempted any ac-commodations with the new venue before it filed the petition. Furthermore, there was an additional five-month delay in setting the September 2010 trial date with the new venue. Therefore, we attribute the six-month delay between late November 2009, when the court granted the venue change, and late May 2010, when the September 2010 trial date was finally scheduled, as negligent delay against the State. See Garza, 2009-NMSC-038, ¶ 29 (stating that delays caused by administrative burdens such as congested dockets weigh against the state).7. September 2010 to March 2011{22} On August 5, 2010, the judge that had been assigned to this case recused himself. Another judge was assigned on August 20, 2010, but she recused herself on August 24, 2010. The case was not assigned to a third judge until September 14, 2010. Accordingly, the September 2, 2010 trial setting was vacated.{23} The district court held a status con-ference on September 17, 2010. The status conference order stated that Defendant intended to file two additional motions and that his pending motions were ready to be heard. It ordered that Defendant’s final motions be filed by October 15, 2010, and that it would resolve those and other previously pending motions at a hearing on November 2, 2010, “if time permits[.]”



http://www.nmcompcomm.us/Advance OpinionsThe district court delayed in setting a trial date until December 8, 2010, three months after the status conference, at which time, the trial was set for April 6, 2011.{24} On February 16, 2011, the State moved to continue the April 6, 2011 trial setting because the prosecutor assigned to the case had been appointed to the judicia-ry, another prosecutor would need time to prepare for the trial, and the state’s budget crisis required special appropriations from the Legislature “to cover the extraordinary expenses . . . result[ing] from the change of venue in this case.” Defendant objected to the continuance.{25} On March 10, 2011, the district court denied the State’s continuance mo-tion. Two days later, however, it partially granted Defendant’s motion to exclude certain evidence, including evidence that the reason Defendant had left the home on the night of Kalynne’s death was for the purpose of buying beer. The State filed a motion to reconsider the ruling, which was denied. The State then filed a notice of appeal as to that ruling, necessitating vacation of the April 6, 2011 trial setting.{26} Although Defendant sought to file two additional pretrial motions after the September 2, 2010 trial setting was va-cated, he had not asked for a continuance of the September 2, 2010 trial. This trial setting was vacated due to the recusal of judges, which is an administrative delay that weighs against the State. See Steinmetz, 2014-NMCA-070, ¶ 7 (“[N]egligent or ad-ministrative delay . . . caused, for example, by overcrowded courts, the reassignment of judges, or governmental negligence” is weighed against the state “because the ultimate responsibility for such circum-stances rests with the government rather than with the defendant.” (alterations, internal quotation marks, and citations omitted)). Adding to the delay, the district court did not obtain a new trial date for several months, until December 8, 2010, at which time, the trial was further delayed until April 6, 2011. Accordingly, we weigh the nearly seven-month delay between the September 2, 2010 trial setting and the State’s notice of appeal in late March 2011 as an administrative delay against the State. See Garza, 2009-NMSC-038, ¶ 29 (stat-ing that delays caused by administrative burdens such as congested dockets weigh against the state).8. March 2011 to July 2012{27} From the filing of the State’s notice of appeal on March 23, 2011, to the Court of Appeals mandate issued on July 23, 2012,

the district court was without jurisdic-tion to try the case. We must determine whether this sixteen-month delay weighs against the State.{28} “The Barker test furnishes the flex-ibility to take account of the competing concerns of orderly appellate review on the one hand, and a speedy trial on the other.” Unites States v. Loud Hawk, 474 U.S. 302, 314 (1986). “The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate review safeguards both the rights of defendants and the ‘rights of public justice.’” Id. at 313. Given these important public interests, “an interlocu-tory appeal by the [g]overnment ordinarily is a valid reason that justifies delay.” Id. at 315. In evaluating “the purpose and rea-sonableness of such an appeal,” courts may consider factors including “the strength of the [g]overnment’s position on the ap-pealed issue, the importance of the issue in the posture of the case, and—in some cases—the seriousness of the crime.” Id. The state’s appeal of a “clearly tangential or frivolous” issue would weigh heavily against the government and “the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal.” Id. at 315-16.{29} Defendant asserts that the State’s appeal was “weak[.]” However, he does not allege or show that the appeal was brought in “bad faith” or for a “dilatory purpose.” Id. at 316. Although this Court ultimately affirmed the district court’s or-der on the basis that the evidence sought to be suppressed would have been more prejudicial than probative, it concluded that the district court had erred in part when it found that the evidence was not relevant. State v. Flores, No. 31,205, mem. op. **3-4 (N.M. Ct. App. Apr. 26, 2012) (non-precedential). Moreover, the district court relaxed Defendant’s conditions of re-lease while the appeal was pending, despite the seriousness of the charged offenses. See Loud Hawk, 474 U.S. at 316. Therefore, we weigh the sixteen-month delay due to the State’s interlocutory appeal neutrally.9. July 2012 to the January 30, 2013

Trial{30} On August 21, 2012, Defendant moved again to dismiss the charges based on violation of his speedy trial right. At the October 17, 2012 hearing during which the district court denied Defendant’s speedy trial motion, it made the following comments regarding its trial scheduling for this case:

The court will proceed at this time to identify a [trial] date. Again, the court had not done that . . . because, quite frankly, the court had gotten a little tired ask-ing for the Second Judicial Dis-trict to set aside, I believe it was a ten-day trial, and then cancelling it on them. So, at this point, I believe that we are prepared to go to trial. I don’t believe that the court, based on its docket for the balance of the year, is going to be able to set this matter before January. And, again, the court does not believe that it would be appropriate to ask the Second Judicial District to vacate the tri-als scheduled up in that district in order to accommodate the dates for this trial. Therefore, the court will try and bring this matter to trial as expeditiously as possible, but with the understanding that it will have to rely on the Second Judicial District to identify an appropriate period of time that they can accommodate us.

The district court then obtained a trial date in Albuquerque on October 22, 2012—three months after it regained jurisdiction—at which time, the trial was set for January 30, 2013. We attribute this six-month delay to the district court’s ad-ministrative decision to delay obtaining a trial date for purposes of accommodating the Second Judicial District and its own docket. We therefore weigh this delay against the State. See Garza, 2009-NMSC-038, ¶ 29 (stating that delays caused by administrative burdens such as congested dockets weigh against the state).D. Assertion of the Right{31} A defendant who fails to assert his speedy trial right does not waive that right. Id. ¶ 31. Instead, the strength of a defen-dant’s assertion of his speedy trial right is considered with the other Barker factors. Id. ¶ 31. We generally assess the timing and manner in which the right was asserted in order to determine whether the defendant was “denied needed access to [a] speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.” Id. ¶ 32. Although we “accord weight to the ‘frequency and force’ of the defendant’s objections to the delay[,]” the force of a defendant’s assertions is mitigated where he filed motions that were “bound to slow down the proceedings,” such as a motion asking for additional time, a motion to appoint new



http://www.nmcompcomm.us/Advance Opinionscounsel, a motion to reset the trial, or other “procedural maneuvers[.]” Id. (internal quotation marks and citations omitted).{32} As we have stated in our discus-sion of the reasons for delay, Defendant specifically asserted his right to a speedy trial at least four times within the sixty-two-month period of delay in this case. His first two assertions came in the form of detailed speedy trial demands placing the State and the district court on notice of the repeated delays in this case and Defendant’s desire to timely face trial. His third and fourth assertions were made as timely motions to dismiss for violation of his speedy trial right. Although Defendant did not formally oppose the State’s delays early on, he routinely opposed them as the delay increased. The pretrial motions that Defendant filed around the time he asserted his speedy trial right were not numerous, frivolous, untimely, or the kind of motions that are “bound to slow down the proceedings[.]” Id.(internal quotation marks and citation omitted). Therefore, we conclude that Defendant adequately asserted his right, and we weigh this factor heavily in Defendant’s favor.E. Prejudice and Balancing the

Factors{33} We analyze the prejudice factor under three interests: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. State v. Lujan, 2015-NMCA-___, ¶ 20, ___ P.3d ___ (No. 33,349, Feb. 18, 2015). Beside the prejudicial factor of the nearly sixty-two month delay that is deemed extraordinary in this case, we must also consider any factors that might temper the prejudice to Defendant. See Maddox, 2008-NMSC-062, ¶ 37 (recognizing that the factors tempering prejudice must be carefully considered). We weigh this factor in a defendant’s favor only where there is a particularized showing of undue prejudice. Garza, 2009-NMSC-038, ¶ 35.{34} In his second speedy trial mo-tion, Defendant asserted that the delay prejudiced his defense because one of the State’s expert witnesses—the doctor who supervised Kalynne’s autopsy—testified in a deposition that he was “unable to recall what information he reviewed in arriving at his opinions” and that even after the pros-ecutor attempted to refresh the doctor’s memory, “[he] still could not remember the evidence he reviewed.” Defense counsel also included affidavits of Defendant and

his mother with the motion detailing the anxiety and concern he had suffered. In his affidavit, Defendant stated that he had difficulty obtaining employment while the charges were pending and that he lost one job in early 2008 “due to harassment [his] employer received from individu-als”; he and his family “experienced severe financial restraints due to this case”; the conditions of release imposed upon him earlier in the case, along with “emotional trauma, stress and anxiety” he experienced prevented him from continuing his college education, although he was able to resume his studies in August 2011; he “had a hard time finding an apartment” because he was turned away when landlords found out about the charges against him; he experi-enced difficulty in school and trouble sleep-ing because he worried about his criminal case “most of the time”; he “had to seek medical attention” for his anxiety, includ-ing “two trips to the emergency room” and a prescription for anti-anxiety medication; extensive media attention about the case had “severely tarnished” his and his family’s reputation; and he had “received threats” because of the case that “frighten[ed him] and [his] family.” His mother’s affidavit vouched for Defendant’s anxiety, his trips to the emergency room, his anti-anxiety medication, and his difficulty concentrat-ing on school work.{35} The district court’s order denying the speedy trial motion found that “in terms of undue prejudice to . . . [D]efendant, the [c]ourt has been very generous in terms of the leniency on the restrictions imposed during this period of [delay]”; “every de-fendant goes through a level of anxiety”; and Defendant “has not met the burden of showing a speedy trial violation[.]” We interpret this language to mean that the district court found that the prejudice suffered by Defendant was ameliorated by a relaxing of his conditions of release over the course of the delay, and was therefore not undue. The order did not address Defendant’s assertion that the delay ham-pered his defense.{36} We note that Defendant’s showing of the anxiety and concern category of prejudice was vague with regard to the time frames in which he suffered it, thus making it difficult to determine whether and how much of it occurred before or after the eighteen-month presumptively prejudicial threshold. See Spearman, 2012-NMSC-023, ¶ 39. However, we need not determine whether Defendant sufficiently showed un-due prejudice because the remaining three

Barker factors weigh so heavily in his favor; undue prejudice is presumed under such circumstances. See Garza, 2009-NMSC-038, ¶ 39 (“[I]f the length of delay and the reasons for the delay weigh heavily in [the] defendant’s favor and [the] defendant has asserted his right and not acquiesced to the delay, then the defendant need not show prejudice for a court to conclude that the defendant’s right has been violated.”); Tay-lor, 2015-NMCA-012, ¶ 25 (holding that the defendant’s speedy trial right was vio-lated without a particularized showing of prejudice because the nearly two-year delay in a simple case was “excessively long[,]” the state was responsible for most of this delay due to neglect and lack of diligence, and the defendant adequately asserted his right); see also United States v. Mendoza, 530 F.3d 758, 764 (9th Cir. 2008) (“[E]xcessive delays can ‘compromise[] the reliability of a trial in ways that neither party can prove or, for that matter, identify.’ Due to these concerns, ‘no showing of prejudice is required when the delay is great and attributable to the gov-ernment.’ Instead, we presume prejudice.” (quoting Doggett v. United States, 505 U.S. 647, 655 (1992) and United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992))).CONCLUSION{37} The nearly sixty-two month delay in bringing this case to trial was extraor-dinary. It exceeded the presumptively prejudicial threshold by almost forty-four months. Because the delay in this case was extraordinary and at least thirty-six months of it was attributable to the State’s negligence and administrative burdens, we weigh the length of delay and reasons for the delay factors heavily against the State. Defendant consistently and definitely ex-pressed his objections to the State’s delays and his assertion of the right to be given a speedy trial. Because the first three Barker factors weigh so heavily in Defendant’s favor, we presume undue prejudice and no further showing of prejudice is required. Despite this presumption, Defendant did present evidence of various particular forms of prejudice that he suffered during the long delay in this case. We therefore conclude that Defendant’s speedy trial right was violated. We reverse Defendant’s con-victions and remand this case to the district court to dismiss the charges against him.{37} IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeRODERICK T. KENNEDY, Judge







STATE OF NEW MEXICO,Plaintiff-Appellee,

v.JOHNNY M. GUTIERREZ,

Defendant-AppellantDocket No. 32,567 (filed May 26, 2015)

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTYLISA C. SCHULTZ, District Judge

HECTOR H. BALDERASAttorney General

Santa Fe, New MexicoJANE A. BERNSTEIN

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

JORGE A. ALVARADOChief Public Defender

NINA LALEVICAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

Opinion

Michael E. Vigil, Judge{1} The district court judge in this case, on her own motion and without notice to Defendant or an opportunity to present evidence or argument on the question, re-versed the prior determination of another district court judge that Defendant was not competent to stand trial, that it was unlikely he would attain competence in the future, and that he was dangerous. We reverse and remand for civil commitment proceedings to be commenced.1

BACKGROUND{2} Defendant was indicted in 2005 on twenty-three charges related to an incident in Las Cruces, wherein he and two other men trapped four adults and two children in a trailer and threatened them with firearms for several hours. Specifically, Defendant was charged with six counts of attempted first-degree murder, NMSA 1978, § 30-2-1(A)(2) (1994) and NMSA 1978, § 30-28-1 (1963); one count of con-spiracy to commit first-degree murder, NMSA 1978, § 30-28-2 (1979) and § 30-2-1(A)(2); six counts of kidnapping with

a firearm enhancement, NMSA 1978, § 30-4-1 (2003) and NMSA 1978, § 31-18-16 (1993); four counts of aggravated assault with a firearm enhancement, NMSA 1978, § 30-3-2(A) (1963) and § 31-18-16; four counts of aggravated battery, NMSA 1978, § 30-3-5(A) and (C) (1969); and two counts of intentional child abuse, NMSA 1978, § 30-6-1(D) (2009).{3} After over two years of continuances, including those due to repeated changes in defense counsel, Defendant’s attorney in-formed the district court that his client was unable to understand previous plea offers. A preliminary evaluation performed by Dr. Janette Castillo found that Defendant had an intelligence quotient (IQ) of sixty-two. As a result, defense counsel requested a hearing to determine whether Defendant was competent to accept a plea or to stand trial.{4} Defendant then underwent a second evaluation at the State’s request. Judge Douglas Driggers, who was then presid-ing over the case, held a determination of competency hearing in accordance with NMSA 1978, § 31-9-1.1 (1993) (1.1 hear-ing) on September 15, 2008, to determine whether Defendant was competent to

stand trial. Judge Driggers concluded that Defendant was incompetent and danger-ous, and ordered him committed to the New Mexico Behavioral Health Institute (NMBHI) in Las Vegas for treatment to attain competency, in accordance with NMSA 1978, § 31-9-1.2 (1999).{5} In February 2009, Judge Driggers held a ninety-day review in accordance with NMSA 1978, § 31-9-1.3 (1999) (1.3 hear-ing) to assess Defendant’s progress toward attaining competency and to review the reports from the NMBHI. The purpose of the hearing was to determine whether De-fendant remained incompetent, whether he continued to be a danger to himself or others, and whether he could be treated to attain competency within nine months of being found incompetent. Id. Dr. Marianne Holman, Defendant’s treatment supervisor at the NMBHI, submitted a fo-rensic report detailing her conclusions that Defendant was incompetent, dangerous, and unlikely to benefit from any further inpatient treatment due to the “severe and chronic” nature of his cognitive impair-ments. Based on her report and the hearing at which both parties stipulated to all three facts, Judge Driggers found Defendant was still incompetent, dangerous, and that he did not have a substantial probability of be-coming competent. Dr. Holman had also provisionally diagnosed Defendant with mental retardation, and Judge Driggers granted Defendant’s motion for a hear-ing to determine whether Defendant had mental retardation under NMSA 1978, § 31-9-1.6 (1999) (1.6 hearing).{6} Defendant’s case was reassigned to Judge Lisa Schultz on April 8, 2009. The State requested an independent evalua-tion of Defendant for mental retardation, which Judge Schultz granted in May 2009, and the hearing on whether Defendant had mental retardation occurred in November 2009. The expert testimony and argument at the hearing explicitly and exclusively centered on one issue: whether Defendant was a person with “mental retardation” as defined in Section 31-9-1.6(E).{7} Despite the limited focus of the 1.6 hearing, Judge Schultz on her own motion, and without notice to the parties, took up the issue of competency once again and found that Defendant was competent to stand trial “beyond a reasonable doubt.”

1Defendant also argues that the evidence is insufficient to support the convictions on three aggravated assault counts. Our dis-position is without prejudice to Defendant raising this argument again in any future proceeding, should one be commenced against him in the future. NMSA 1978, Section 30-1-10 (1963) (“The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment.”).



http://www.nmcompcomm.us/Advance OpinionsDefendant moved for reconsideration, pointing out that the issue of compe-tency had already been determined and stipulated to by the parties and that no competency evidence was presented at the hearing. Furthermore, Defendant empha-sized, he had no notice or an opportunity to be heard on Defendant’s competency, in violation of his right to due process. Judge Schultz denied the motion, and the case was placed on the docket for a jury trial, which occurred in May 2012. Defendant was found guilty of all twenty-three counts charged and sentenced to a prison term of 193 years.{8} In her denial of Defendant’s motion to reconsider, Judge Schultz stated that it would “shock the conscience” if she did not revisit the earlier competency ruling and limited herself to considering only whether Defendant had mental retar-dation. In her opinion, Defendant was “clearly competent.”DISCUSSION{9} Both federal and New Mexico consti-tutional law have “long recognized that it is a violation of due process to prosecute a defendant who is incompetent to stand trial.” State v. Rotherham, 1996-NMSC-048, ¶ 13, 122 N.M. 246, 923 P.2d 1131. To be considered competent, a defendant must (1) understand the nature and signifi-cance of the proceedings, (2) have a factual understanding of the charges, and (3) be able to assist in his own defense. State v. Flores, 2005-NMCA-135, ¶ 16, 138 N.M. 636, 124 P.3d 1175.{10} Competency determinations such as this one implicate procedural due process rights: the United States Supreme Court has held specifically that a state court vio-lates a defendant’s due process rights when it fails to inquire into competency after the defendant presents enough evidence to entitle him to a hearing on the issue. Pate v. Robinson, 383 U.S. 375, 385 (1966). Such a hearing cannot be dispensed with based on factors like the defendant’s demeanor before the court but is, rather, a procedural right. United States v. Cornejo-Sandoval, 564 F.3d 1225, 1233 (10th Cir. 2009); Pate, 383 U.S. at 385. As such, it requires adequate notice, an adversarial hearing before an independent decision-maker, and a written statement from the fact finder clarifying the evidence relied upon and reasons for the decision. Vitek v. Jones, 445 U.S. 480, 494-95 (1980).{11} Under New Mexico’s statutory scheme, when a defendant’s competence is at issue, he must be evaluated by a quali-

fied professional, such as a psychologist or psychiatrist, whom the district court rec-ognizes as an expert. Section 31-9-1.1. If, following a hearing and receipt of a written report from the expert evaluator, the dis-trict court determines that a defendant is not competent but is dangerous, the court may commit the defendant to a secure facility for treatment to attain competency. Section 31-9-1.2(B). Within ninety days, the district court must conduct a review hearing to assess whether a defendant remains incompetent and dangerous and whether he is responding to treatment. Section 31-9-1.3(A).{12} If a defendant continues to be both incompetent and dangerous and does not respond to treatment, the district court conducts an evidentiary hearing in ac-cordance with NMSA 1978, § 39-9-1.5 (1.5 hearing) in order to determine whether there is clear and convincing evidence that he is guilty of the accused crime. Section 31-9-1.5. If such evidence does exist, the defendant will be detained in a secure facil-ity until either the “expiration of the period of time equal to the maximum sentence to which [he] would have been subject had [he] been convicted in a criminal proceed-ing” or the district court orders otherwise. Section 31-9-1.5(D)(2).{13} At a defendant’s request, the court may also conduct a 1.6 hearing to deter-mine whether he has mental retardation. If it is determined that a defendant has mental retardation, civil commitment procedures will be initiated pursuant to NMSA 1978, § 43-1-1 (1999), and the criminal charges are dismissed. Section 31-9-1.6(D).{14} In this case, Defendant presented sufficient evidence of incompetency to trigger his procedural due process rights, and Judge Driggers conducted an initial competency hearing on September 15, 2008. At that hearing, Defendant was required to show by a preponderance of the evidence that he was incompetent under the three-part incompetency test. Flores, 2005-NMCA-135, ¶ 16. Dr. Castillo performed an evaluation of Defendant on behalf of the court, and the State provided an independent evaluation from Dr. Marc Caplan. Both experts testified that Defen-dant was mildly mentally retarded. Dr. Caplan added that Defendant scored in the “clinically significant range of impairment” during testing.{15} Dr. Castillo testified that, due to De-fendant’s low scores in verbal comprehen-sion, he “would be unable to comprehend”

any information shared with him verbally. This would make understanding in-court proceedings or documents with compli-cated legal language, such as a plea agree-ment, “very difficult.” Dr. Castillo also administered tests specific to competency evaluation, the Examination for Compe-tency to Stand Trial, Revised (ECST-R) and the Revised Competency Assessment Instrument (RCAI). She observed that Defendant did not understand his current charges or the adversarial nature of the legal process and that he was overly reliant on his attorney because he was not able to assist in the planning of his defense. Based on her evaluation of Defendant, Dr. Cas-tillo concluded that he was not competent.{16} Dr. Caplan also administered tests specific to determinations of competency when conducting his evaluation, including the MacArthur Competence Assessment Tool, Criminal Adjudication (MacCAT-CA). His results generally mirrored Dr. Castillo’s. He found that Defendant’s factual understanding of the proceedings was flawed and that Defendant struggled to identify the roles of various people in the courtroom. He also found Defen-dant’s ability to reason “marginal at best.” Besides his low scores in intelligence and comprehension, Defendant had a previous neurological injury and mentioned suf-fering from hallucinations, for which he received medication. Dr. Caplan ultimately concluded that Defendant “sits on the line” between competence and incompetence.{17} In addition to the expert testimony at the September 2008 hearing, Judge Driggers received written reports from both experts and heard testimony from two of Defendant’s former lawyers. On the basis of the evidence presented, he found that Defendant was incompetent. Both parties stipulated, because of the severe nature of the charges, that Defendant was also dangerous. Therefore, in keeping with the procedure outlined in Section 31-9-1, Judge Driggers committed Defendant to the NMBHI for treatment and evaluation. Section 31-9-1.2.{18} Generally, within ninety days of an incompetent defendant’s detainment, his treatment supervisor must submit a written “progress report” detailing any advancements the defendant has made toward attaining competency, as well as whether he meets the criteria for dangerousness as defined in Section 31-9-1.2. Section 31-9-1.3. The district court then conducts a 1.3 hearing to de-termine whether the defendant remains



http://www.nmcompcomm.us/Advance Opinionsincompetent and is not likely to become competent within nine months of the original finding of incompetency. Section 31-9-1.3(E).{19} Defendant resided at the NMBHI for several months under the supervision of Dr. Holman and, in accordance with the statutory requirements, she provided a forensic report to Judge Driggers in February 2009. She included her determi-nations as to Defendant’s competency and likelihood of becoming competent, based on several tests and the observations she and others at NMBHI had made of De-fendant’s behavior in the months during which he was detained there. She stated in her report: “It is my clinical opinion that, due to the severe and chronic nature of his impairment, [Defendant] will likely remain unable to attain competency to stand trial in the future.” Dr. Holman also stated that “further inpatient treatment would be largely unproductive” because Defendant suffered considerable deficits in his memory, language ability, and the speed at which he processed new informa-tion. She recommended that Defendant no longer receive such inpatient psychi-atric treatment, as it would not aid him in attaining competency. The State did not contest Dr. Holman’s conclusions at any time, and Judge Driggers ultimately agreed.{20} On February 23, 2009, Judge Drig-gers conducted a 1.3 hearing on the is-sue. By that time, over five months had passed since Defendant was first found incompetent. At that hearing, both parties agreed to stipulate that Defendant was not competent, was dangerous, and that he was not likely to become competent. They acknowledged the department of health’s recommendation that Defendant no longer required inpatient treatment at NMBHI, and agreed to hold a 1.5/1.6 hear-ing as a result of that recommendation. Judge Driggers issued an order reaffirming Defendant’s incompetency and stating that “[t]here is not a substantial probability that . . . Defendant will become competent to proceed within one year of the date of the original finding of incompetency.” (However, the statute requires only that a defendant demonstrate that there is not a substantial probability that he will regain competency within nine months. Section 31-9-1.3(E)).{21} Determinations that a defendant will likely not regain competency are made by a preponderance of the evidence. Section 31-9-1.6(B). At the February 23, 2009

hearing on the matter, this burden was easily met; only Dr. Holman’s forensic report addressed the issue, and both par-ties stipulated to their agreement with its conclusions.{22} We now proceed to our discussion of: (1) procedural due process, (2) sub-stantive due process, (3) proof of mental retardation, and (4) the proper remedy.Procedural Due Process{23} Whether Defendant was afforded procedural due process is a question subject to de novo review on appeal. See State v. Dominguez, 2008-NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834; State ex rel. Children, Youth & Families Dep’t v. Maria C., 2004-NMCA-083, ¶ 36, 136 N.M. 53, 94 P.3d 796.{24} Procedural due process under both the United States Constitution and the New Mexico Constitution requires that a defendant be given reasonable notice and a fair opportunity to defend. See State v. Baldonado, 1998-NMCA-040, ¶ 21, 124 N.M. 745, 955 P.2d 214. See also Rutherford v. City of Albuquerque, 1992-NMSC-027, ¶ 7, 113 N.M. 573, 829 P.2d 652 (“The es-sence of procedural due process is that the parties be given notice and an opportunity for a hearing.”). This includes a right to be heard in a meaningful manner, which “generally includes an opportunity to re-view and present evidence, confront and cross examine witnesses, and consult with counsel, either by way of an informal or formal hearing.” Maria C., 2004-NMCA-083, ¶ 26.{25} In Titus v. City of Albuquerque, 2011-NMCA-038, ¶ 42, 149 N.M. 556, 252 P.3d 780, we stated that essential elements of the adversary process, some or all of which may be required as part of the due process afforded, include:

(1) adequate notice of the charges or basis for government action; (2) a neutral decision-maker; (3) an opportunity to make an oral presentation to the decision-maker; (4) an opportunity to present evidence or witnesses to the decision-maker; (5) a chance to confront and cross-examine witnesses or evidence to be used against the individual; (6) the right to have an attorney pres-ent the individual’s case to the decision-maker; (7) a decision based on the record with a state-ment of reasons for the decision.

(quoting Bd. of Educ. v. Harrell, 1994-NMSC-096, ¶ 25, 118 N.M. 470, 882 P.2d

511). It is clearly evident that many of these constituent elements of procedural due process are absent in this case.{26} The hearing held before Judge Schultz on November 17, 2009, was for the narrow purpose of determining mental retardation under Section 31-9-1.6. Both parties agreed that “the issue is not com-petency anymore. The issue is retardation.” Under Section 31-9-1.6(E), “ ‘mental re-tardation’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive be-havior. An intelligence quotient of seventy or below on a reliably administered intel-ligence quotient test shall be presumptive evidence of mental retardation.” Id.; see State v. Trujillo, 2009-NMSC-012, ¶ 10, 146 N.M. 14, 206 P.3d 125 (“[T]here are two prongs to the New Mexico statutory definition of mental retardation: (1) sig-nificantly subaverage general intellectual functioning and (2) deficits in adaptive behavior.”).{27} The parties also agreed that Dr. Cas-tillo and Dr. Siegel would both be qualified as experts “for the purposes of today’s hearing with respect to the specific areas so mentioned”: i.e., whether Defendant has mental retardation as defined by Section 31-9-1.6 and Trujillo. Neither the district court nor the parties attempted to qualify the witnesses as experts regarding compe-tency, even though Dr. Castillo had been qualified as such in previous hearings.{28} When it requested an evaluation for the 1.6 hearing, the State acknowledged that Defendant had already been evaluated for incompetence; then, at the NMBHI, he was evaluated for dangerousness and whether or not he was treatable; and finally the 1.6 hearing would determine whether Defendant had mental retardation or would instead require a 1.5 hearing for long-term criminal commitment. There was no testimony or argument as to any other issue at the 1.6 hearing.{29} Following the 1.6 hearing, Judge Schultz ruled, on her own motion, without notice, and without any argument from the State, that Defendant had been proved competent “beyond a reasonable doubt.” Defendant was denied his procedural right to effective and timely notice and the opportunity to present arguments and evi-dence before having a decision rendered against him. “[N]otice is essential to afford [a defendant] an opportunity to challenge the contemplated action and to understand the nature of what is happening to him.” Vitek, 445 U.S. at 496.



http://www.nmcompcomm.us/Advance Opinions{30} Moreover, Judge Schultz did not include—either in her original opinion or when she addressed Defendant’s mo-tion to reconsider—any findings of fact or conclusions of law that established an adequate basis for a ruling on competency. It contains no mention of any of the three factors for determining competency that a valid decision would require. Thus, in violation of Defendant’s due process rights, the district court never provided Defendant with any justification for the district court’s decision and the subsequent actions taken. Wolff v. McDonnell, 418 U.S. 539, 564 (1974).{31} When Judge Driggers determined Defendant was incompetent following the September 2008 hearing, Defendant satisfied his burden of proving that he was incompetent. See State v. Santillanes, 1978-NMCA-051, ¶ 8, 91 N.M. 721, 580 P.2d 489 (stating that a defendant has the burden of proving his incompetence claim by a pre-ponderance of the evidence). Judge Drig-gers reaffirmed the finding of Defendant’s incompetency following the 1.3 hearing in February 2009. The burden therefore shifted to the State to prove that Defendant was competent to stand trial. Santillanes, 1978-NMCA-051, ¶ 10. However, Judge Schultz effectively required Defendant to re-prove his incompetence at the 1.6 hear-ing, without affording Defendant any op-portunity to present evidence or argument. This was fundamental error. Santillanes, 1978-NMCA-051, ¶ 23 (stating that requir-ing a defendant to prove his competency a second time while the first determination of competency remains in effect constitutes fundamental error). The procedure Judge Schultz followed in ruling that Defendant was no longer incompetent violated fun-damental precepts of due process and was essentially unfair. Her ruling cannot stand.Substantive Due Process{32} The prosecution of a defendant who is incompetent to stand trial violates due process. Rotherham, 1996-NMSC-048, ¶ 13. Again, under Santillanes, once Judge Driggers adjudicated Defendant incom-petent to stand trial, the burden shifted to the State to prove that Defendant was competent. 1978-NMCA-051, ¶ 10. As we discuss more fully below, the State never introduced evidence to overcome the presumption, and in fact stipulated that Defendant was incompetent. Moreover, the evidence at the 1.6 hearing, which Judge Schultz relied on, was insufficient to overcome the presumption. Accordingly, Defendant’s convictions must be set aside.

{33} The State never offered evidence to rebut the presumptions that Defendant was incompetent, dangerous, and unlikely to attain competency in the future; on the contrary, the State consistently expressed agreement with and even stipulated to those facts. Further, the only purpose of the 1.6 hearing, as we have already stated, was to determine if Defendant had mental retardation. In fact, prior to the hearing, the State specified that “[w]here we are is at the 1.5/1.6 part of the statutes in reference to [Defendant’s] condition.” The experts’ testimony in the 1.6 hearing was thus strictly and deliberately limited.{34} Dr. Siegel was never qualified as an expert in competency in any proceeding on this matter. When the State requested an independent evaluation from Dr. Sie-gel, it was specifically and explicitly for the purposes of the 1.6 hearing, which the State described as “totally different” from competency hearings. The State argued that Dr. Siegel would be asked to evaluate Defendant based on the two-prong test set forth in Trujillo, an analysis specific to retardation. The State was granted an independent evaluation of Defendant from Dr. Siegel on these limited grounds, and Dr. Siegel testified at the 1.6 hearing that he believed the is-sue of competence had been settled prior to his involvement.{35} At the conclusion of Dr. Siegel’s tes-timony, Judge Schultz asked him whether he was “saying that it’s [his] opinion that [D]efendant is currently competent to stand trial[.]” He responded, “I am.” This was the only question at the hearing regarding Defendant’s competency, and it was irrelevant to the purpose of the hearing. Moreover, Dr. Siegel, who had not been qualified as an expert in com-petency at any time, did not elaborate on what foundation, if any, his opinion rested upon, and he was asked no follow-up questions about it.{36} Though Dr. Castillo had been qualified as an expert in competency at an earlier hearing, she offered no opinion and was asked no questions regarding Defendant’s competency to stand trial. In-stead, because the intelligence assessments showed that Defendant has an IQ below seventy, Dr. Castillo explicitly limited her testimony to whether Defendant exhibited deficits in adaptive behavior according to the Diagnostic and Statistical Manual of Mental Disorders (DSM).{37} The standards in our case law establish a clear difference in methods

and standards for determining mental retardation as compared to competency. See, e.g., Trujillo, 2009-NMSC-012, ¶ 10 (setting forth a two-prong test for mental retardation); Flores, 2005-NMCA-135, ¶ 16 (setting forth a three-prong test for determining competency). Due to the specificity of the three-prong test for competency, competency evaluations are specialized instruments. For the earlier incompetency hearings, Defendant under-went a series of tests, three of which were specific to competency: ECST-R; RCAI; and the MacCAT-CA. No testimony was offered regarding any of the above tests at the 1.6 hearing due to the focus on mental retardation, which involved Defendant’s IQ test and scores on the Vineland II as-sessment for adaptive behavior deficits.{38} The State neither offered testimony nor made any argument as to Defendant’s competency to stand trial at the 1.6 hear-ing. Judge Schultz heard no testimony regarding competency from the experts at the 1.6 hearing with the exception of a single sentence from Dr. Siegel. In addi-tion, while she received copies of certain written reports that included competency findings, Judge Schultz made no findings of fact on any of the three prongs of com-petency listed in Flores; in fact, she made no mention of those factors either directly or indirectly. Nonetheless, Judge Schultz concluded that Defendant “is competent to stand trial beyond a reasonable doubt.”{39} We also note that at the close of the 1.6 hearing, Judge Schultz stated that, according to her interpretation of Section 31-9-1.6, she could make a determination regarding Defendant’s likelihood of attain-ing competency in the future. The State responded that only mental retardation had been argued at the hearing because the NMBHI report from Dr. Holman stated Defendant did not have a substantial probability of becoming competent. The defense agreed and added that IQ, the basis of the presumption of Defendant’s mental retardation, was unlikely to improve: “When you have people like this with this number, there is nothing you can do to that particular number.”{40} Despite this apparent opportunity to revisit the issue, the State still provided no argument that Defendant was treatable to attain competency; on the contrary, it made clear that any evidence to that effect had not been and could not be presented without serious reconsideration: “I don’t know if that might be reopened, and may-be [Defendant] could be reassessed for that



http://www.nmcompcomm.us/Advance Opinionsback at Las Vegas [NMBHI] or by another clinician.” As no such “reassessments” had been obtained, the only evidence on Defendant’s likelihood of attaining com-petency continued to be the conclusions in the forensic report from Dr. Holman, to which both parties had stipulated. Dr. Holman’s forensic report unambiguously determined that Defendant did not benefit from treatment and would remain incom-petent due to the severe and chronic nature of his cognitive impairment.{41} Judge Schultz did not make a specific ruling as to whether Defendant demon-strated a substantial probability of attain-ing competency. She also made no finding of fact as to whether Defendant had made progress from prior incompetency. In this case, the only evaluation of treatability came from Dr. Holman, who found him unlikely to benefit from any further treat-ment due to chronic impairment. The State neither argued nor presented evidence to suggest that Defendant had made or could make progress toward competency, and Judge Schultz heard no testimony on the matter before disregarding the prior ruling made by Judge Driggers that it was unlikely Defendant would attain competency in the future.{42} The only testimony that Judge Schultz relied on was the testimony from the 1.6 hearing. However, that evidence was not offered by the State, nor was it sufficient to rebut the existing presump-tion that Defendant was incompetent to stand trial. The result is that Defendant re-mained incompetent, and his trial violated due process. Consequently, Defendant’s convictions must be set aside for this ad-ditional reason.Proof of Mental Retardation{43} Judge Schultz made no finding re-garding the evidence presented on whether Defendant has mental retardation because, as we have already discussed, she ruled that Defendant was competent to stand trial. We would ordinarily remand for a deter-mination of this issue. However, because the facts are not in dispute, and the record is sufficient to make this determination as a matter of law, a remand is not necessary. Moreover, rulings on mental retardation under Section 31-9-1.6 are reviewed de novo. Trujillo, 2009-NMSC-012, ¶ 9. And

a determination should be made as soon as possible about the propriety of Defendant serving a prison term in the penitentiary as opposed to treatment under a civil com-mitment. Id.{44} Section 31-9-1.6 defines what “mental retardation”means. Subsection (E) states:

As used in this section, ‘mental retardation’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behav-ior. An intelligence quotient of seventy or below on a reliably ad-ministered intelligence quotient test shall be presumptive evidence of mental retardation.

As noted by our Supreme Court, the first sentence of the definition sets forth a two-prong test for the statutory definition of mental retardation: “(1) significantly subaverage general intellectual function-ing and (2) deficits in adaptive behavior.” Trujillo, 2009-NMSC-012, ¶ 10. However, under the explicit terms of the second sentence, a reliably administered IQ test resulting in an IQ of seventy or below “shall be presumptive evidence of mental retardation.” Section 31-9-1.6(E). There-fore, an IQ test of seventy or below creates a statutory presumption that both prongs are satisfied, and the burden shifts to the State to prove by a preponderance of the evidence that a person does not have mental retardation. See State v. Trujillo, 2007-NMCA-056, ¶¶ 4, 21, 141 N.M. 668, 160 P.3d 577 (concluding that based on an IQ test score estimated to be in the high fifties to low sixties, there was a statutory presumption that the defendant had men-tal retardation, which the State failed to rebut), aff ’d, 2009-NMSC-012, ¶13; State v. Jones, 1975-NMCA-078, ¶ 7, 88 N.M. 110, 537 P.2d 1006 (holding that “a true presumption shifts the burden of proof ” (internal quotation marks and citation omitted)); Section 31-9-1.6(B) (stating that mental retardation must be proven by a preponderance of the evidence).{45} The evidence on this question is undisputed and unrebutted. Defendant consistently scored below seventy on all his intelligence assessments over the course of a year and a half. One doctor found that

Defendant has a full-scale IQ of sixty-two, and two others found Defendant to be in the “mild mental retardation” range with scores in the lowest percentile on verbal comprehension. Thus, we conclude that the evidence demonstrates that Defendant has mental retardation as a matter of law.The Proper Remedy{46} Defendant’s convictions must be set aside because they were obtained in violation of his rights to procedural and substantive due process. Nevertheless, Defendant was adjudicated incompetent to stand trial; Defendant remains incompe-tent to stand trial and is unlikely to become competent; Defendant is dangerous; and Defendant has mental retardation. The question remains as to the proper disposi-tion of the case.{47} Our Supreme Court has held that criminal commitment cannot be applied to a defendant who meets the definition of mental retardation under Section 31-9-1.6. Trujillo, 2009-NMSC-012, ¶ 25. Once a defendant is found to have mental retarda-tion, the statute requires a department of health evaluation regarding whether the defendant poses a serious threat of harm to himself or others. Section 31-9-1.6(B). If the department of health finds that the defendant is dangerous, then Section 43-1-1 civil commitment proceedings must be commenced. Section 31-9-1.6(C); Trujillo, 2009-NMSC-012, ¶ 24 (extending the prohibition on criminal commitment to all defendants who are incompetent due to mental retardation, dangerous, and untreatable).{48} The statutory requirements have therefore been satisfied and Section 43-1-1 civil commitment proceedings must follow. Section 31-9-1.6.CONCLUSION{49} For the above reasons, we reverse the district court’s ruling as to competency and mental retardation and remand for further proceedings in keeping with this Opinion.{50} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Judge

WE CONCUR:CYNTHIA A. FRY, JudgeJ. MILES HANISEE, Judge



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CYFD Attorney’sThe Children, Youth and Families Depart-ment is seeking to fill two vacant Children’s Court Attorney Senior Positions. Salary range is $39-$69K annually, depending on experience and qualifications. The attorney will represent the department in abuse/neglect and termination proceedings and related matters. The ideal candidates will have experience in the practice of law totaling at least three years and New Mexico licensure is required. The first Children’s Court Attorney Senior position is located in Alamogordo, New Mexico, and also covers Ruidoso. The second Children’s Court Attorney Senior position will be located in Silver City, New Mexico. Benefits include medical, dental, vi-sion, paid vacation, and a retirement package. Please contact the following for information on how to apply and to ascertain the clos-ing date for the position. Lynne Jessen (575) 373-6403 or [email protected]. The state of New Mexico is an EOE. To apply for these positions go to www.state.nm.us/spo/ and click on JOBS, then click on Apply for a Job Online.

Associate AttorneyEstablished Rio Rancho law firm is seeking an associate attorney with three to seven years of experience to join our firm. Our practice areas include real estate, corporate/business law, and trust/will/probate. Real estate expe-rience is strongly preferred. Compensation is DOE. Please submit a resume, three refer-ences and writing sample to P. O. Box 15698, Rio Rancho, NM 87174 or via email to [email protected]. All replies kept confidential.

Associate AttorneyScott & Kienzle, P.A. seeks associate attorney with 0 to 5 years of experience. Practice areas include foreclosure, litigation, collections, bankruptcy, insurance, and Indian law. Re-sponsibilities include opening a file through pretrial, arbitration, trial, and appeal. Please email a letter of interest, salary require-ments, and résumé to Paul Kienzle at [email protected].

AttorneyLittle, Bradley & Nesbitt, PA, is seeking attorney to handle residential foreclosure cases, including litigation. No billable hours requirement. Prior foreclosure, real estate title, bankruptcy, collection &/or litigation experience preferred. Send cover letter, re-sume, salary requirements & references to [email protected], fax to 254-4722 or mail to PO Box 3509, Alb 87190.

Associate AttorneySmall well established plaintiff’s personal injury law firm in Los Lunas seeks associ-ate attorney with 1-5 years of experience, preferably in personal injury and/or medical malpractice. Will consider new attorney if candidate has previous paralegal experience. Salary commensurate with experience. All responses kept strictly confidential. Please send your cover letter, resume and references to Office Manager, PO Box 2416, Los Lunas, NM 87031.

Lawyer-A (Position #10693) DOHThe New Mexico Department of Health –Office of General Counsel. This Layer-A Position is full-time, permanent, and classi-fied position. The salary range is $44,782.40-$77,916.80 annually, depending upon experi-ence and qualifications. The purpose of this position is to provide staff level professional legal services for the Department of health in litigation. Must have Juris Doctorate Degree for an accredited school of law and five (5) years of experience in the practice of law. Applicant must be in good standing with the State Bar of NM. Apply at http://www.spo.nm.us/ to be considered for this position.

Las Cruces AttorneyHolt Mynatt Martínez, P.C., an AV-rated law firm in Las Cruces, New Mexico is seeking an associate attorney with 3-5 years of experi-ence to join our team. Duties would include providing legal analysis and advice, preparing court pleadings and filings, performing legal research, conducting pretrial discovery, pre-paring for and attending administrative and judicial hearings, civil jury trials and appeals. The firm’s practice areas include insurance defense, civil rights defense, commercial litiga-tion, real property, contracts, and governmen-tal law. Successful candidates will have strong organizational and writing skills, exceptional communication skills, and the ability to in-teract and develop collaborative relationships. Salary commensurate with experience, and benefits. Please send your cover letter, resume, law school transcript, writing sample, and references to [email protected].

Assistant District AttorneyThe Fifth Judicial District Attorney’s of-fice has an immediate position open to a new or experienced attorney. Salary will be based upon the District Attorney Person-nel 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 Dianna Luce, District Attorney, 301 N. Dalmont Street, Hobbs , NM 88240-8335 or e-mail to [email protected].

Law ClerkThe New Mexico Court of Appeals, Albu-querque, is recruiting for a law clerk. The job description can be viewed at: http://www.nmcourts.gov/newface/hr/job_desc/Law%20Clerk%20(At-Will).pdf. The position is a full-time, at-will position. The annual salary is: $56,328.48. Under general supervision, the law clerk will work directly with Judge Sutin on assigned cases, perform legal research and analysis, and write and edit opinions. Attention to detail and a strong work ethic are critical and required. Required Education: Must be a graduate of a law school meeting the standards of accreditation of the American Bar Association. Experience: At least one (1) year of experience performing legal re-search, analysis, writing, and editing. General knowledge of substantive and procedural law; manual and online legal research, analysis and writing; proper English usage, grammar and punctuation; computer applications; legal terminology; proofreading and editing; judi-cial ethics; and general office practices, filing systems, and office equipment; New Mexico case law and statutes and court jurisdiction. Other: Completion of a post offer background check may be required. Resume, references, law school and undergraduate transcripts should be emailed to [email protected].


http://www.amafca.org


http://www.state.nm.us/spo/


http://www



http://www



Services

Orthopedic SurgeonOrthopedic Surgeon available for case review, opinions, exams. Rates quoted per case. Send inquiries to: [email protected]

Office Space620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial 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.

Legal Secretary/AssistantWell established civil litigation firm seeking Legal Secretary/Assistant with minimum 3- 5 years’ experience, including knowledge of local court rules and filing procedures. Excel-lent clerical, organizational, computer & word processing skills required. Fast-paced, friendly environment. Benefits. If you are highly skilled, pay attention to detail & enjoy working with a team, email resume to: [email protected]

Experienced Litigation ParalegalLewis, Brisbois, Bisgaard and Smith, LLC in Albuquerque, is accepting resumes for an experienced litigation paralegal. Will assist attorneys in all aspects of legal case prepa-ration and file management including legal research, drafting routine documents and collection of information relevant to cases. May conduct routine investigations and re-view and analyze various reports, responses and records. Must be well organized and be able to work independently. Must be able to file electronically in state and federal court. Associates Degree or equivalent combination of relevant education and work experience required. Minimum 2 years paralegal and litigation experience required. Knowledge of Medical Terminology a plus. Please send resumes to [email protected]

WantedHardworking paralegal/administrative as-sistant to assist a four-attorney civil litigation department in a mid-size law firm specializing in estate and trust litigation and contested guardianships and conservatorships. We rep-resent real people who need compassionate and experienced legal help. We are looking for a quality, good-natured person who will work hard and be a team player. Our future team member will be: honest, reliable, pleas-ant, hard-working, professional, proficient in Word, and familiar with New Mexico’s civil court system and e-filing. He or she will have excellent telephone skills, a command of the rules of grammar, the ability to proofread, will enjoy working collaboratively and, impor-tantly, will be positive in the face of a Friday 5 pm deadline. We in turn will offer competi-tive pay, paid vacation and PTO plus Federal holidays and a comfortable work environment with room for growth. If you are looking to start a promising career, this is the place. Please email resume to [email protected].

Attention ParalegalsIf you are a top-notch litigation paralegal with solid experience, we have a great job with great benefits in a pleasant environment. Please mail resume, cover letter and refer-ences to Comeau, Maldegen, Templeman & Indall, LLP, PO Box 669, Santa Fe, NM 87504 or email to [email protected]

Wanted for Immediate Hire a Bilingual (Spanish/English) Associate!Our busy Albuquerque workers' compensa-tion and personal injury firm seeks a junior associate to assist senior attorneys and paralegals with: Assisting with discovery re-quests, depositions, hearings and mediations; Researching and drafting motions, pleadings, memoranda of law and other legal documents - Covering hearings, depositions and me-diations; Communicating and meeting with clients; Related duties. Excellent opportunity to grow for the right person! Requirements:- You must be a member of the New Mexico Bar; You must be Spanish/English bilingual; You must be enthusiastic; You must be a reli-able team player that is willing to learn; You must be client-driven and highly motivated. Benefits offered include medical, dental, vi-sion and life insurance, as well as 401k, paid firm holidays and paid time off. Compensa-tion commensurate with experience. Please send resume to [email protected]

Legal AssistantCivil defense firm seeks full-time legal as-sistant with minimum four years experience in insurance defense and civil litigation. Position requires a team player with excep-tional paralegal skills, proficiency with Word Perfect and Word, electronic filing experience and superior clerical and organizational skills. Competitive salary and benefits. Send resume and references to Riley, Shane & Keller, P.A., Office Manager, 3880 Osuna Rd., NE, Albuquerque, NM 87109 or e-mail to [email protected]

Experienced Legal AssistantGUEBERT BRUCKNER P.C. busy litigation firm looking for experienced Legal Assistant to support 11 attorneys. Candidate will co-ordinate with various members of the staff to accomplish the needs of attorneys. Duties include but are not limited to: finalizing documents for submission to clients, State and Federal courts. Excellent communica-tion skills required in order to meet deadlines and to comply with various client guidelines. Strong writing and proof reading skills, as well as knowledge of court rules required. Hours 8:30 to 5:30. Firm uses Microsoft Word, Excel, and Outlook. Please submit resume and salary requirement to Kathleen A. Guebert, POB 93880, Albuquerque, NM 87109.

Uptown Square Single Offices Available 1-2 offices with secretarial space available. One shared with other attorneys and one shared with building owners. Both offices have reception, conference room, kitchen or coffee bar. Full service lease. Please call John Whisenant or Ron Nelson for more information (505) 883-9662.

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Litigation ParalegalSutin, Thayer & Browne has a immedi-ate opening for a litigation paralegal with background in replevins and collections. Experience with document management, drafting pleadings and ability to interact with clients and opposing parties is a plus but is not required. Position’s responsibilities expandable based on individual’s ability and ambition. Opportunity for highly motivated, task and detail oriented professional to work for established, well respected firm. Resumes may be sent to [email protected]











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November 25, 2015 • Volume 54, No. 47 · 4 Bar Bulletin - November 25, 2015 - Volume 54, No. 47. Notices. c. ourt. N. ews. Professionalism Tip. Second Judicial District Court. Announcement