A-1-CA-37672 | Omnilex

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Filed 1/30/2020 12:56 PM
2| STATE OF NEW MEXICO, f >
3 Plaintiff-A ppellee, fe fa
Ally. No. A-1-CA-37672
5] JOSEPH ALFONSE TORRES,
6 Defendant-Appellant.
7| APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8} Christina P. Argyres, District Judge
9} Hector H. Balderas, Attorney General
10] Santa Fe, NM
11] for Appellee
12} Roderick L. DeAguero

3} Albuquerque, NM

14] for Appellant

15 MEMORANDUM OPINION

16] VANZI, Judge.

17-43 Summary_affirmance_was_proposed_for the reasons stated in the notice_of
18] proposed summary disposition. No memorandum opposing summary affirmance has
19] been filed and the time for doing so has expired. AFFIRMED.

20] 93 IT IS SO ORDERED.

RESPONSE TO DISSENT

2143} The dissent is-meritless

3] 44; There is no basis for the dissent’s suggestion that this Court’s disposition
Al “foreclose[s]” or “jeopardiz[es] Defendant’s constitutional right to an appeal.” The
5 New Mexico Constitution does afford the “right to-one-appeal.” NM _Const.art--VI,

§ 2 ([A]n aggrieved party shall have an absolute nght to one appeal.”). But

Defendant has exercised that right. And this Court has “consider[ed] Defendant’s

issues_raised_on appeal”—even though his notice of appeal was not timely filed—

and addressed each of Defendant’s arguments for reversal in the previously issued

Six-page notice proposing summary affirmance (Notice), that underlies this

memorandum opinion (Opinion).

{5} The dissenting judge apparently believes that Defendant has been denied

something this Court is required to provide to litigants who exercise “the right to one

appeal” because the Notice “does not substantively address the issues raised on

appeal.” The dissent’s characterization of the Notice (including the statement that

the Notice “proposed to affirm on the basis that Defendant did not provide adequate

information in his docketing statement”’) 1s inaccurate, as is the suggestion that this

Court disposed of this appeal without considering “the merits.” The Notice explained

that this Court proposed to affirm because Defendant has not met his burden to

establish error in the judgment he appeals. See, e.g., State v. Aragon, 1999-NMCA-

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district court’s rulings” and that the defendant bears the “burden on appeal to

demonstrate any claimed error below” (alterations, internal quotation marks and

YMSC-048 117}

citation omitted): q 19 M4508
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873 P.2d 254 (“We remind counsel that we are not required to do their research, and

that this Court will not review issues raised in appellate briefs that are unsupported

by_cited_authority. When a criminal conviction is being challenged, counsel should

properly present this Court with the issues, arguments, and proper authority.”

(citations omitted)). And in addressing each argument Defendant raised on appeal,

the Notice cited well-established law that has been and continues to be applied in

countless New Mexico appellate decisions—decided on both the general and

summary calendars—including opinions the dissenting judge has authored and

concurred in.

{6} | New Mexico appellate courts routinely affirm orders and judgments based on

the appellant’s failure to meet various burdens imposed by law (including court

rules). That hardly means that those decisions have disposed of the “one appeal” to

which an appellant is constitutionally entitled without considering “the merits.” The

disposition of this appeal is no less “on the merits” than is the disposition of any

appeal in which an appellate court addresses the appellant’s arguments by applying
the principles and citing the case law the Notice applied and cited. If so inclined,
Defendant may “pursue his appeal” from this summary disposition through the
mechanisms afforded by the appellate rules. There is no basis to treat this Court’s
summary affirmance of the judgment below as an infringement of Defendant’s
constitutional “right to one appeal.”

{3} The dissent cites the non-precedential decision in Dombos v. Stewart, No. S-
1-SC-37164, 92 (N.M. Sup. Ct. Dec. 12, 2019) (order), for the proposition that “New
Mexico has consistently followed a policy of construing rules liberally, to the end
that causes on appeal may be determined on the merits where it can be done without
impeding or confusing administration or perpetrating injustice.” (internal quotation
marks and citation omitted). This admonition has appeared in appellate decisions for
decades. But it has no application here. The cited policy is explicitly stated as
addressed “to the end that causes on appeal may be determined on the merits.”
Montgomery v. Cook, 1966-NMSC-073, { 23, 76 N.M. 199, 413 P.2d.477 (“It is also
well settled that this [C]ourt will construe its rules liberally to the end that causes on
appeal may be determined on the merits.”). And the decisions in which it appears—
Dombos included—are cases in which an appeal has been dismissed based on the

appellant’s failure to comply with a mandatory procedural rule, with no

consideration given to the appellant’s arguments for reversal. That did not happen
here. To the contrary, this Court considered and addressed “Defendant’s issues
raised on appeal” and “determined” them “on the merits.” But even if this Court had
dismissed Defendant’s appeal, dismissal is not a violation of the constitutional “right
to one appeal,” as our Supreme Court held in the case cited in Dombos for the
proposition the dissent relies on. See Olguin v. State, 1977-NMSC-034, { 2, 90 N.M.
303, 563 P.2d 97 (explaining that “[t]he right of appeal is provided for in the
Constitution while the means for exercising that right are properly controlled by
rules of procedure”; holding that “[t]he defendant’s constitutional right to appeal
was not abridged by the dismissal for failure to follow procedural rules” (citation
omitted)).

8} This Court, moreover, did not “decide [Defendant’|s appeal ‘on the merits’
based solely upon the fact that he filed no response within the window provided by
our appellate rules,” as the dissent asserts. Nor is the disposition of this appeal
predicated on a failure to comply with a mandatory procedural rule. As discussed,
the Notice upon which this Opinion is based considered and addressed each |
argument Defendant raised on appeal and concluded that Defendant has not met his
burden to demonstrate error in the judgment below. While Rule 12-210(D) NMRA

allows litigants to file memoranda in response to notices of proposed dispositions

within a stated time frame, it does not require such memoranda. Our Supreme Court
so held in State v. Simpson, 1993-NMSC-073, 116 N.M. 768, 867 P.2d 1150, in
which the state argued that the defendant’s appeal should be remanded to this' Court
because Rule 12-210(D) “required [the defendant] to respond” to this Court’s “two
calendar notices, both proposing summary affirmance[,]” and the defendant had not
responded to the second notice. 1993-NMSC-073, {ff 6-8. In rejecting this argument,
our Supreme Court held that Rule 12-210(D) allows a party to file a response to a
calendar notice within the time stated, but “contrary to the [s]tate’s assertion it does
not require a party to file a response.” Jd. 7. Our Supreme Court added, “[the
defendant] evidently saw no reason to prolong the debate with the Court of Appeals
and instead elected to take his chances by filing a petition for a writ of certiorari in
this Court. He was entitled to make that choice, and Rule 12-210(D)(3) did not
require him to do otherwise.” Jd. J 8.-Litigants in this Court, including criminal
defendants, regularly make similar decisions. This Court has previously treated Rule
12-210(D) as discretionary, and noted that “[fJailure to file a memorandum in
opposition constitutes acceptance of the disposition proposed in the calendar notice.”

Frick v. Veazey, 1993-NMCA-119, § 2, 116 N.M. 246, 861 P.2d 287. There is no

basis to treat the failure to file a memorandum in response to a calendar notic¢e as a

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rule violation (much less, grounds for a show cause order), any more than there
would be to treat the failure to file a reply brief as a rule violation.

993 No doubt the dissenting judge would remind us that she “would have issued
an order to show cause why Defendant’s attorney should not be sanctioned, pursuant
to Rule 12-312 NMRA, for failing to open and review our summary calendar notice |
before summarily affirming Defendant’s appeal on the merits.” But Rule 12-312
addresses “[flailure to comply with rules[,]” and the sanctions permitted by Rule 12-
312(D) are “[fjor any failure to comply with these rules or any order of the court[.]”
As discussed, no rule requires the filing of a memorandum in opposition. This
Court’s summary affirmance of the judgment below is in no way a sanction imposed
for failure to comply with an appellate rule. And the dissent identifies no rule
violation that could serve as grounds for a show cause order.

{10} There also is no basis to treat as established facts the dissent’s assumptions
that (1) Defendant’s attorney “never opened”! an email from the Court’s electronic
filing service (EFS) transmitting the Notice; (2) Defendant “could not have been

made aware of our proposed disposition or that he was under a deadline to respond”;

'The author has no idea if or how it is possible to determine conclusively that
Defendant’s attorney “never opened” the EFS email transmitting the Notice, or why
the Court employee who made this assertion did so. The author can say, anecdotally,
that it is possible with at least some email programs to “review” the contents of
emails without actually “opening” them.

(3) “Defendant’s ability to pursue his appeal has been hampered by his attorney’s

error’; and (4) there is “serious harm at stake for Defendant.” Nor is there any reason
to “envision a variety of reasons” for that alleged “error,” much less any basis for
“fa] show cause order [that] would allow us to unearth the cause and fashion an
appropriate remedy to redress the attorney’s failure to open and review the notice”
as a purportedly preferable alternative to “later habeas proceedings.”

41133 Even if there were grounds for any of these postulations, no appellate rule
states that attorneys must “open and review” EFS communications. Rule 12-307.2
NMRA requires that attorneys representing parties in this Court must register with
the EFS and “add service contacts for those parties that they represent in cases
governed by this rule.” Rule 12-307.2(B)(4). The Rule further requires that such
attorneys must “provide a valid, working, and regularly checked email address for
the EFS” and also makes explicit that this “Court shall not be responsible for
inoperable email addresses or unread email sent from the EFS.” Rule 12-
307.2(B)(5).

{12}, The dissent asserts that “we can and often do. . . review whether an attorney
has received and opened a document served by this Court, . . . particularly when a
party’s failure to respond raises a question about whether notice was ever received

in the first place.” The author is not aware that this Court has previously “review[ed]

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whether an attorney has received and opened a document served by this Court.” The
Olguin Court did note that “[the d]efendant’s appointed counsel was called several
times by the clerk of the Court of Appeals in an attempt to correct the [failure to file
a docketing statement].” 1977-NMSC-034, { 1. But the reasons for communications
from this Court in prior cases are not matters of record. Regardless, two things are
abundantly clear: The even-handed application of the law (including court rules),
and the “independent, fair, and impartial judiciary [that] is indispensable to our
system of justice[,]” Rule 21-001(A) NMRA (Preamble), are not possible if
individual judges act on behalf of certain litigants in certain cases while leaving other
litigants to bear the consequences of the rules. And this Court’s scant resources
cannot possibly be expended on investigations and/or show cause proceedings

initiated to determine whether every attorney has “opened and reviewed” every

A M. VANZI

document sent from this Court’s EFS.

IT CONCUR:

REG R. MEDINA, Judge

MEGAN P. DUFFY, Judge (dissenting).
9

DUFFY, Judge (dissenting).

Maurin fa the CaAnrdce of MHOWIN thi 2

a2
{13} urn

attorney was sent electronic notice of our proposed summary affirmance on October

29, 2019, but never opened the email. Under the circumstances, I would have issued

an order to show cause whv Defendant’s a
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to Rule 12-312 for failing to open and review our summary calendar notice before

summarily affirming Defendant’s appeal on the merits.

(14) At stake is a criminal defendant’s constitutional right to_an_ appeal. See State

v. Garcia, 2019-NMCA-056, 49 40, 450 P.3d 418 (“In New Mexico, a defendant’s

right to appeal is established by Article VI, Section 2 of the New Mexico

Constitution. The United States Supreme Court has made clear that where a state

provides a right to appeal, the procedures used in deciding appeals must comport

with the demands of the Due Process and Equal Protection Clauses of the

Constitution.” (internal quotation marks and citation omitted)), cert. denied, 2019-

NMCERT-__ (No. S-1-SC-37766, Sept. 10, 2019). In this case, as a result of his

attorney’s failure to open our calendar notice, Defendant was never given the

opportunity to consider whether to respond to our proposed affirmance—he could

not have been made aware of our proposed disposition or that he was under a

deadline to respond. The majority will nevertheless decide his appeal “on the

292

merits’* based solely upon the fact that he filed no response within the window

will have fifteen days after our opinion issues to file a motion for rehearing if he

wishes to pursue his appeal, we risk permanently foreclosing his constitutional right

to-do-soif his-attorney—the same_attorney_who failed _to-o

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notice—does not receive or timely open our opinion here. Rule 12-404 NMRA

(discussing procedures to request a rehearing).

45} While I agree with the majority _that_our_appellate_rules_must_be_ applied

consistently, our Supreme Court recently cautioned and reminded this Court that

“New Mexico has consistently followed a policy of construing rules liberally, to the

end that causes on appeal may be determined on the merits where it can be done

without impeding or confusing administration or perpetrating injustice.” Dombos,

No. S-1-SC-37164, § 2 (N.M. Sup. Ct. Dec. 12, 2019) (reversing this Court’s

dismissal of a civil appeal based on the appellant’s failure to timely file a brief in

chief (internal quotation marks and citation omitted)); see also Rule 12-312(D)

(providing for a variety of sanctions for failure to comply with rules). In my view,

“proceed[ing| to decide the case summarily” under Rule 12-210(D)(4) fails to

*Although the disposition of this appeal is technically “on the merits,” this

Opinion does not substantively address the issues raised on appeal. Ihe prior
calendar notice proposed to affirm on the basis that Defendant did not provide
adequate information in his docketing statement.

accomplish that purpose here, given that Defendant’s ability to pursue his appeal has

response to our proposed summary affirmance, we cannot know under these

circumstances that he did not wish to do so. Rather than deferring that issue to later

ADE AS
TaAOVUaS

inquire why the omission occurred before undertaking a course of action that could

further jeopardize Defendant’s rights. Moreover, this approach may actually serve

to expedite the_ultimate appellate process here_and avoid the unfortunate _result_in

Dombos, where our dismissal of an appeal languished in our Supreme Court for over

a year before being reversed and remanded to this Court for full consideration of the

merits.

{16 Electronic service is now mandatory under our appellate rules, both as the

method for filing documents with this Court and for receiving service of documents

from this Court. See Rule 12-307.2; see also Rule 16-104 NMRA (stating that a

lawyer shall “promptly inform the client of any decision or circumstance with

respect to which the client’s informed consent” is required by the Rules of

Professional Conduct). Notwithstanding this, I can envision a variety of reasons why

Defendant’s attorney failed to open the email service in this case, ranging in

culpability from inadvertent to egregious. For example, the email may have been

diverted to his spam folder, or he may be suffering from some lasting injury or

diligence and competence in representing Defendant. A show cause order would

allow us to unearth the cause and fashion an appropriate remedy to redress the

constitutional right to an appeal. As the appellate rules do not require us to proceed

upon a summary calendar notice within any particular time frame, and we have a

variety. of tools and discretion to ensure that the parties and attorneys comply with

our rules, a brief inquiry poses little harm to this Court, as compared to the serious

harm at stake for Defendant.

a7 And finally, while we are under no obligation to review whether an attorney

has received and opened a document electronically served by this Court, the reality

is that we can and often do, particularly when a party’s failure to respond raises a

question about whether notice was ever received in the first place. Justice is not

served by turning a blind eye to this information in this case. For these reasons, I

respectfully dissent.

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Judge

—
ies)

January 30, 2020- State of New Mexico v. Joseph Alfonse Torres, No. A-1-CA-37672

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