March 13, 2019- State of New Mexico v. Richard S. Griego, No. A-1-CA-37273

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATEOFNEWMEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-37273
5 RICHARD S. GRIEGO,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY.
8 Louis P. McDonald, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Santa Fe, NM
14 L. Helen Bennett, P.C.
15 	L. Helen Bennett
16 Albuquerque, NM
17 for Appellant
18
·19 VANZI, Judge.
MEMORANDUM OPINION
20 	{t} 	Defendant appeals the district court's order revoking his probation. We issued
21 	a notice of proposed summary disposition proposing to affirm, and Defendant has
22 responded with a timely memorandum in opposition, which we have duly considered.
Court of Appeals of New Mexico
Filed 3/13/2019 11:15 AM
Mark Reynolds

1 We remain unpersuaded that our original proposed disposition was incorrect, and we
2 therefore affirm the district court.
3 DISCUSSION
4 	{2} 	Defendant continues to argue that the district court erred in ruling that there
5 was no violation of Rule 5-805(H) NMRA when the State failed to timely hold the
6 adjudicatory hearing. [MIO 1-3]
7 	{3} 	As previously described in our notice of proposed disposition, the procedural
8 history relevant to this issue is as follows. On May 5, 2017, the State filed a second
9 motion to revoke Defendant's probation, 	alleging that Defendant violated his
10 probation by participating in an armed robbery and by failing to report this arrest to
11 	his probation officer within forty-eight hours. [RP 162-164] On May 30, 2017,
12 Defendant was arraigned on these alleged probation violations, and was ordered held
13 	without bond. [RP 187] However, the hearing on the motion to revoke probation was
14 not held until September 6, 2017. [RP 192] Defendant moved to dismiss on the basis
15 	that the time to commence the hearing prescribed by Rule 5-805(H) had passed, and
16 the State had not sought an extension of time. [DS 2-3] See id. ("If the probationer is
17 in custody and an adjudicatory hearing is not timely commenced as required ·by this
18 	paragraph, upon its own motion or upon presentation of a release order without a
19 hearing required, the court shall order the probationer immediately released back to
2

1 probation supervision pending final adjudication. The adjudicatory hearing shall
2 commence no later than sixty (60) days after the initial hearing is conducted."); Rule
3 5-805(K) ("Extensions of time for commencement of a hearing on a motion to revoke
4 probation may be granted in the court's discretion upon the request of any party.").
5 	{4} 	We understand Defendant to continue to argue that Rule 5-805(H) required the
6 district court to dismiss the petition. We first note, however, that nothing in the text
7 of Rule 5-805(H) speaks to dismissal of a petition to revoke probation. Rather, this
8 section of the rule provides that, when the adjudicatory hearing is not timely
9 commenced and the probationer is in custody, "the court shall order the probationer
10 	immediately released back to probation supervisionpendingfinal adjudication." Id
11 	(emphasis added). Moreover, Rule 5-805(L) provides that "[i]n addition to any
12 release of the probationer that may be required by Paragraphs G or Hof this rule, the
13 	court may dismiss the motion to revoke probation for violating any of the time limits
14 in this rule." (Emphasis added.) Dismissal of the motion to revoke probation for
15 	failure 	to 	commence the 	adjudicatory hearing 	within 	sixty 	days 	is therefore
16 discretionary with the district court, and nothing in the record before this Court
17 	suggests that the district court abused its discretion in declining to dismiss the motion
18 to revoke probation. SeeStatev. Aragon, 1999-NMCA-060, 110, 127N.M. 393,981
3

1 P.2d 1211 (stating that we presume correctness in the trial court's rulings and the
2 burden is on the appellant to demonstrate trial court error).
3 	{5} 	Defendant contends that this Court's reliance on Rule 5-805(L) for the
4 proposition that dismissal is discretionary "impermissibly modifies the rule by
5 reference to another provision of the rule that is not implicated and is therefore
6 inapplicable." [MIO 2] However, as cited above, Rule 5-805(L) specifically refers to
7 "any release of the probationer that may be required by Paragraphs G or H," and then
8 states that the district court may also dismiss the petition for a violation of any of the
9 time limits contained in Rule 5-805. Therefore, we reject Defendant's argument that
10 Rule 5-805(L) is inapplicable to circumstances in which the adjudicatory hearing is
11 	not timely commenced.
12 	{6} 	Defendant next argues that the district court erred in taking judicial notice of
13 	the indictment from Odyssey, as no certified copy was introduced into evidence.
14 	[MIO 3] Defendant argues specifically that, although the rules of evidence do not
15 	apply to probation revocation hearings, the district court nonetheless errs when it
16 relies on unauthenticated evidence to make up for deficiencies in the State's proof or
17 to buttress the State's evidence. [MIO 3]
18 	{7} 	For the reasons set out in our notice of proposed summary disposition, we
19 continue to believe that Defendant has not shown that the district court erred in taking
4

1 judicial notice of the copy of the indictment. We also note that the State presented
2 witnesses and evidence other than the copy of the indictment at the probation
3 revocation hearing, and that evidence was sufficient to establish all the alleged
4 violations to a reasonable certainty. See Statev. Guthrie, 2011-NMSC-014,, 36, 150
5 N.M. 84, 257 P.3d 904 (recognizing that the accusation that a "probationer has
6 committed another crime must be tested in the crucible of cross examination").
7 Therefore, even if there were error in the district court taking judicial notice of the
8 indictment, we perceive no prejudice to Defendant. 	See ·State 	v. 	Fernandez,
9 	1994-NMCA-056,, 13, 117 N.M. 673, 875 P.2d 1104 ("In the absence of prejudice,
10 there is no reversible error.").
11 	{8} 	Defendant next argues that the detention center's failure to provide a way for
12 him to promptly notify his probation officer of his arrest must be reviewed for
13 	fundamental error. [MIO 3-4] However, nothing in the record before this Court
14 establishes that the detention center failed to provide Defendant with a means for
15 	contacting his probation officer. Defendant initially raised this issue as an argument
16 that the State failed to meet its burden of proof to establish a willful violation by
17 presenting affirmative evidence that he had an opportunity to call the probation
18 	department or had access to a telephone after his arrest. [DS 5] See State v. Leon,
19 	2013-NMCA-Ol 1,, 36, 292 P.3d 493 ("In a probation revocation proceeding, the
5

1 [s]tate bears the burden of establishing a probation violation with a reasonable
2 certainty."). As we explained in the notice of proposed disposition, Defendant's
3 probation officer testified at the revocation hearing that Defendant did not report his
4 arrest as required by the terms of his probation agreement. [DS 3] This was sufficient
5 to raise an inference that Defendant violated his probation willfully, and Defendant
6 then had the burden to show that his failure to do so was not willful. See id. ( stating
7 that once the state establishes to a reasonable certainty that the defendant violated
8 probation, a reasonable inference arises that the defendant did so willfully, and it is
9 then the defendant's burden to show that failure to comply was either not willful or
10 that he or she had a lawful excuse); seealsoStatev. Parsons, 1986-NMCA-027, ,2s,
11 	104 N.M. 123, 717 P.2d 99 (noting that it was the state's burden to prove that the
12 	defendant violated probation by not paying probation fees and costs, and once the
13 	State did so, it was the defendant's responsibility to demonstrate that non-compliance
14 was not willful). Defendant failed to present such evidence. However, there was no
15 	evidence presented that the detention center did not provide Defendant with access
16 to a way to communicate with his probation officer, and this Court therefore rejects
17 this argument.
6

1 {9} 	As to Defendant's remaining issues, Defendant generally argues that our initial
2 proposed disposition was incorrect. For the reasons stated in our proposed notice, we
3 affirm on those issues as well.
4 CONCLUSION
5 	{to} 	For these reasons, we affirm the district court's order revoking Defendant's
6 probation.
7 	{11}
8
9
IT IS SO ORDERED.
10 WE CONCUR:
11 	,r;..~
12 J. M{LES HANISEE, Judge
13 	~~ 	-
14 JEN~L.ATTREP, Jud
7