May 21, 2019- State of New Mexico v. Joseph Cummings, No. A-1-CA-35956

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Court of Appeals of New Mexico
Filed 5/21/2019 11:20 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO,

STATE OF NEW MEXICO,

Plaintiff-Appellee,
v. | ; No. A-1-CA-35956
JOSEPH CUMMINGS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
David N. Williams, District Judge

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM
for Appellee
Aarons Law Firm PC
Stephen D. Aarons
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
B. ZAMORA, Judge.
41}. Defendant Joseph Cummings appeals his conviction for criminal sexual

contact of minor, contrary to NMSA 1978, Section 30-9-13(B) (2003). The district

court did not rule on the motion for new trial filed by Defendant below, making

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appellate review premature. Therefore, we dismiss Defendant’s appeal for lack of
finality.

BACKGROUND

(23, On May 6, 2016, the jury returned a guilty verdict on the charge of criminal
sexual contact of a minor. The district court then sentenced Defendant on May 10,
2016, and filed a judgment, sentence, and commitment on May 13, 2016. On May
16, 2016, Defendant timely filed a motion for new trial pursuant to Rule 5-614
NMRA and filed a supplement to the motion on May 25, 2016. Based on our review
of the record, the district court never ruled on Defendant’s motion nor has Defendant
withdrawn his motion. Defendant then filed a notice of appeal on June 10, 2016. On
February 25, 2019, Defendant’s current counsel filed a motion to allow withdrawal
and substitution of counsel, which this Court denied without prejudice pursuant to
Rule 12-309(C) NMRA.

{3} | We issued an order to show cause on April 9, 2019, requiring Defendant to
explain why this Court should not dismiss his appeal for lack of a final order. On
April 22, 2019, Defendant filed a pro se response to our order to show cause. On
April 24, 2019, Defendant’s current counsel filed an untimely response to the order
to show cause and Defendant’s pro se response. In his response, Defendant’s counsel

agrees that the district court failed to rule on the motion for new trial. Without citing

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to any authority, Defendant's counsel siesests “li]t may be appropriate to grant a
limited remand to the district court to rule upon the pending motion.”
DISCUSSION

{4 The issue before us is whether the district court’s failure to rule on
Defendant’s motion for new trial bars his appeal for lack of finality. “With narrow
and well-defined exceptions, appellate court jurisdiction is limited to timely appeals
from final judgments or orders that are properly filed of record with the lower court.”
State v: Lohberger, 2008-NMSC-033, § 19, 144 N.M. 297, 187 P.3d 162. This Court
must dismiss a case when it does not have jutiedlodion, See Thornton v. Gamble,
1984-NMCA-093, § 15, 101 N.M. 764, 688 P.2d 1268 (stating “[i]f we do not have
jurisdiction, we must dismiss.”). Although neither party raised this issue, it is
incumbent upon this Court to raise questions of jurisdiction sua sponte. State v.
Romero, 2014-NMCA-063, {] 4, 327 P.3d 525.

{5} Defendant timely filed his motion for new trial pursuant to Rule 5-614(A),
which permitted the district court to “grant a new trial if required in the interest of
justice.” See also 5-614(C) NMRA (“A motion for new trial based on . . . grounds
[other than newly discovered evidence] shall be made within ten (10) days after
verdict or finding of guilty or within such further time as the court may fix during

the ten (10) day period.”). Defendant’s filing of the motion for new trial under Rule

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5-614 “threaten[ed] the finality of the underlying judgment.” Capco Acquisub, Inc.
v. Greka Energy Corp., 2007-NMCA-011, 19, 140 N.M. 920, 149 Pd 1017.

{6 Rule 12-201(D)(1) NMRA provides that, when certain post-trial motions are
filed, such as a motion for new trial, “the full time prescribed in this rule for the
filing of the notice of appeal shall commence to run and be computed from the filing
of an order expressly disposing of the last such remaining motion.” (emphasis
added); see also Rule 12-201(D)(1)(b) (indicating that a motion for new trial filed
pursuant to Rule 5-614 implicates Rule 12-201(D)(1)). Appellate review is
premature when a timely-filed motion for new trial has not been expressly disposed
of by district court order or withdrawn by the defendant. See 12-201(D)(4) (stating
“[a] timely notice of appeal filed before the express disposition by order, the
automatic denial, or the withdrawal of any timely filed motion . . . does not divest
the district court of jurisdiction to dispose of the motion.”); Romero, 2014-NMCA-
063, J 13 (concluding that the defendant’s timely filing of a post-judgment motion,
and the district court’s failure to enter a written ruling thereupon, “effectively
render[s] the underlying proceedings non-final and the instant appeal|] premature”).
It is immaterial to our conclusion that Defendant filed a notice of appeal before the
district court ruled on the motion for new trial because the notice of appeal did “not

divest the district court of jurisdiction to dispose of’ the motion. Rule 12-201(D)(4).

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{7} Defendant’s' case lacks the finality required for appellate review and, |
accordingly, this appeal is dismissed. We note that dismissal of this appeal does not
precludé Defendant from filing another appeal once there is a final judgment. See
Romero, 2014-NMCA-063, { 8 (concluding that the timely filing of a post-judgment
motion pursuant to Rule 5-801 NMRA suspends the finality of the preceding
judgment and sentence until a written ruling upon the motion is entered).
Consequently, we urge the district court to expeditiously rule on Defendant’s motion
for new trial. Moreover, any future motions to withdraw as counsel and/or requests
for appointment of a public defender should be filed with the district court.
CONCLUSION

{83} For the foregoing reasons, we dismiss Defendant’s appeal for lack of a final | .
order and remand to the district court for further proceedings.

93 ITISSO ORDERED.

WE CONCUR: