February 25, 2020- State of New Mexico v. Kendra Frazier, No. A-1-CA-36860

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36860	4
KENDRA FRAZIER,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	7
Daylene A. Marsh, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
John J. Woykovsky, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
MJ Edge, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
MEDINA, Judge.	19
{1} 	Defendant Kendra Frazier entered a conditional plea to misdemeanor driving	20
while intoxicated (DWI), reserving the issue of whether the district court erred in	21
Court of Appeals of New Mexico
Filed 2/25/2020 11:53 AM

2
affirming the denial of her motion to dismiss her case in magistrate court for	1
violating Rule 6-506 NMRA.1 We affirm.	2
BACKGROUND	3
{2} 	The State’s criminal complaint against Defendant was filed on April 4, 2016,	4
and charged her with three misdemeanors, including DWI, driving with a suspended	5
license, and improper use of a license plate, as well as one fourth-degree felony for	6
receiving stolen property. Defendant was arrested on April 26, 2016, pursuant to a	7
warrant and made her first appearance in magistrate court the next day, where she	8
was appointed counsel, advised of the charges and possible penalties, and returned	9
to custody pending a preliminary hearing set for May 5, 2016. On May 5, 2016, the	10
preliminary 	hearing 	was 	continued, 	Defendant 	was 	released 	on 	her 	own	11
recognizance, and the hearing was reset for May 19, 2016. On the day of the hearing,	12
the State entered a nolle prosequi, by form order entitled “Notice of Dismissal,”	13
dismissing the felony count and two of the misdemeanor counts, leaving only the	14
misdemeanor DWI charge for prosecution. The magistrate court ordered that the	15
remaining DWI charge be “put on [the misdemeanor] docket” and vacated the	16
1 The district court applied, and the parties’ arguments are based on the 2013
amendment of Rule 6-506 that was in effect in 2016, the date of Defendant’s arrest.
This opinion applies the 2016 version of all rules cited to in this opinion unless
otherwise indicated.

3
scheduled preliminary hearing. Defendant was never formally arraigned. After two	1
pretrial conferences, trial was set for October 28, 2016.	2
{3} 	On October 26, 2016, Defendant moved to dismiss the case, arguing that 182	3
days had elapsed since her first appearance on April 27, 2016, in violation of Rule	4
6-506(B). The magistrate court denied the motion, but granted the State’s request to	5
vacate the trial date and Defendant’s request to set a change of plea hearing. On	6
November 10, 2016, Defendant failed to appear at the change of plea hearing, a	7
bench warrant was issued, and she was arrested on December 4, 2016. Defendant	8
ultimately entered a conditional plea of no contest to the DWI charge, reserving the	9
right to appeal the issue of whether the 182-day rule in Rule 6-506 was violated,	10
such that the magistrate court should have dismissed her case. Defendant appealed	11
to the district court, and the district court affirmed.	12
{4} 	The district court reasoned that “[w]hen . . . Defendant initially appeared	13
before the [m]agistrate [c]ourt on her misdemeanor charges on April 26, 2017, it was	14
within the context of an accompanying felony charge for which a preliminary	15
examination would be required . . . [and a]t that point, the [m]agistrate [c]ourt did	16
not yet have trial jurisdiction over [the misdemeanor charges; and t]herefore, [it] also	17
did not have the jurisdiction to arraign . . . Defendant on the misdemeanor charges.”	18
The district court therefore concluded that Rule 6-506(B) was not triggered on the	19
date of Defendant’s first appearance.	20

4
{5} 	The district court further concluded that “the [m]agistrate [c]ourt obtained	1
trial jurisdiction over Defendant’s DWI charge, on May 19, 2016, when the State	2
entered its nolle prosequi of the felony and two other misdemeanor charges.” The	3
district court then determined that when the magistrate placed Defendant’s DWI	4
charge on its trial docket, the magistrate court effectively entered a plea of not guilty	5
on Defendant’s behalf, at which time Defendant was constructively arraigned.	6
{6} 	Thus, the district court ruled that the trial should have commenced within 182	7
days of May 19, 2016, or by November 17, 2016; and that the November 10, 2016	8
change of plea hearing fell within the time limit of Rule 6-506(B). The district court	9
further determined that Defendant’s arrest on December 4, 2016, for her failure to	10
appear was the latest triggering event under Rule 6-506(B)(5). Therefore, resolution	11
of the case was required within 182 days of Defendant’s December 4, 2016 arrest,	12
or by June 4, 2017; and Defendant’s case was timely resolved on January 26, 2017,	13
well within that time. Defendant appealed to this Court.	14
DISCUSSION	15
{7} 	The sole issue on appeal is whether Defendant’s right to the resolution of her	16
case in magistrate court within 182 days, as prescribed by Rule 6-506, was violated.	17
It is undisputed that a formal arraignment, which would have triggered the rule, did	18
not occur in this case. Nonetheless Defendant argues as she did in the proceedings	19
below, that the rule was triggered by her first appearance, which “operate[d] as an	20

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implied waiver of arraignment[,]” and, based on that date, her case did not timely	1
proceed to resolution as prescribed by the rule.	2
{8} 	“We review de novo questions of law concerning the interpretation of [our]	3
Supreme Court rules and the district court’s application of the law to the facts of the	4
case.” State v. Sharp, 2012-NMCA-042, ¶ 5, 276 P.3d 969. “When construing our	5
procedural 	rules, 	we 	use 	the 	same 	rules 	of 	construction 	applicable 	to 	the	6
interpretation of statutes.” Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d 806.	7
“We first look to the language of the rule.” Id. (internal quotation marks and citation	8
omitted). “If the rule is unambiguous, we give effect to its language and refrain from	9
further interpretation.” Id. (internal quotation marks and citation omitted). “We also	10
seek guidance from the rule’s language, history, and background.” Id.	11
{9} 	The time limit for commencing a trial in the magistrate court is governed by	12
Rule 6-506, which requires the magistrate court to commence trial within 182 days.	13
Rule 6-506(B), in pertinent part, provides:	14
The trial of a criminal citation or complaint shall be commenced within	15
one hundred eighty-two (182) days after whichever of the following	16
events occurs latest:	17
(1) 	the 	date 	of 	arraignment 	or 	the 	filing 	of 	a 	waiver 	of	18
arraignment of the defendant;	19
. . . .	20
(5) if the defendant is arrested for failure to appear or surrenders	21
in this state for failure to appear, the date of arrest or surrender of the	22
defendant[.]	23

6
The rule further provides: “In the event the trial of any person does not commence	1
within the time limits provided in this rule, including any court-ordered extensions,	2
the case shall be dismissed with prejudice.” Rule 6-506(E)(2). Our Supreme Court’s	3
stated purpose for the rule is “to effectuate a criminal defendant’s right to a speedy	4
trial and to assure prompt disposition of criminal cases.” State v. Savedra, 2010-	5
NMSC-025, ¶ 5, 148 N.M. 301, 236 P.3d 20 (internal quotation marks and citation	6
omitted).	7
{10} 	Defendant argues that her first appearance essentially operated as an implied	8
waiver of arraignment, which should have triggered the rule. In support of her	9
argument, Defendant asserts that her first appearance actually entailed features of an	10
arraignment—she was present and was given a recitation of her rights. Defendant	11
similarly 	asserted 	below 	that 	“[a]rraignments 	and 	[f]irst 	[a]ppearances 	are	12
substantively the same proceeding” citing Rule 6-501(A) NMRA, and “arraignments	13
and first appearances are listed together basically because the same thing happens at	14
both: with the exception of entering a plea, the [defendant is] advised of [her] rights,	15
the [defendant is] advised of the charges, [and] . . . the defendant would have an	16
opportunity to discuss bond, the only difference being the entering of a plea.”	17
{11} 	The district court determined that because of the pending felony charge, the	18
magistrate court did not have trial jurisdiction at Defendant’s first appearance, and	19
for this reason, it did not have jurisdiction to arraign her on any of the charges. We	20

7
note that the magistrate court need not have jurisdiction for a first appearance, where	1
the explanation of the defendant’s rights occurs. See Rule 6-501(A) (enumerating	2
the explanation of rights required at the defendant’s first appearance “in response to	3
a summons, warrant or arrest”). However, because Defendant argues that her first	4
appearance constituted an arraignment, we must determine whether the magistrate	5
court needed to have trial jurisdiction to arraign her.	6
{12} 	Both the applicable statute and magistrate court rule support the district	7
court’s conclusion. The applicable statute provides: “Magistrates have jurisdiction	8
in all cases of misdemeanors and petty misdemeanors . . . . In any criminal action in	9
the magistrate court which is beyond the jurisdiction of the magistrate court, the	10
magistrate may commit to jail, discharge or recognize the defendant to appear before	11
the district court as provided by law.” NMSA 1978, § 35-3-4(A), (C) (1985). Thus,	12
by statute, “[t]he magistrate court does not have jurisdiction to prosecute felonies.”	13
State v. Loya, 2011-NMCA-077, ¶ 9, 150 N.M. 373, 258 P.3d 1165. The magistrate	14
court rules provide that when the charges are not within the magistrate court’s	15
jurisdiction, upon a finding of probable cause, the court must bind the defendant over	16
for trial on those charges in the district court. See Rule 6-202(D)(3) NMRA (“If the	17
court finds that there is probable cause to believe that the defendant committed one	18
or more offenses not within magistrate court trial jurisdiction, the court shall bind	19
the defendant over for trial in the district court.” (emphasis added)). Indeed, felony	20

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charges are not within the magistrate court’s jurisdiction except for purposes of a	1
first appearance, preliminary examination or waiver thereof, and binding the	2
defendant over for trial in district court when it finds probable cause to do so. See	3
Rule 6-501(A).	4
{13} 	Having determined that the magistrate court did not have trial jurisdiction	5
until it dismissed the felony charge, we now examine the effect of the magistrate	6
court’s act of placing Defendant’s DWI charge on its trial docket, and whether that	7
constituted 	a constructive 	arraignment. 	The 	magistrate 	court 	rules 	governing	8
arraignment provide that where the charges are within the magistrate court’s	9
jurisdiction, the court must require the defendant to plead, or enter a not guilty plea	10
on his behalf. See Rule 6-501(B) (“If the offense charged is within the court’s trial	11
jurisdiction, the court shall require the defendant to plead to the complaint, pursuant	12
to Rule 6-302 NMRA, and if the defendant refuses to answer, the court shall enter a	13
plea of ‘not guilty’ for the defendant.” (emphasis added)). Consistent with this, Rule	14
6-302(B) gives the magistrate court authority, and in fact requires it, to enter a not	15
guilty plea on behalf of a defendant “[i]f the defendant fails to enter a plea.” When	16
the magistrate court entered the nolle prosequi, dismissing the felony charge, it	17
obtained jurisdiction over the remaining DWI misdemeanor charge. 	Because	18
Defendant was never formally arraigned, it was not error to conclude that for the	19
purposes of Rule 6-506, Defendant was constructively arraigned on the DWI charge	20

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on May 19, 2016, when the magistrate court placed the DWI charge on its trial	1
docket, effectively entering a not guilty plea on Defendant’s behalf. See State v.	2
Miller, 2008-NMCA-048, ¶ 14, 143 N.M. 777, 182 P.3d 158 (“An arraignment is a	3
proceeding at which an accused enters a plea to a charged offense, including pleas	4
of not guilty, not guilty by reason of insanity, guilty, or no contest.”).	5
{14} 	Relying on State v. Marquez, 2003-NMCA-115, ¶ 7, 134 N.M. 402, 77 P.3d	6
557, Defendant contends that the magistrate court did not need to have jurisdiction	7
over the case for the entire 182 days to dismiss under the rule, and that it only needed	8
jurisdiction at the time her charges were dismissed. In Marquez, the defendants were	9
charged with both misdemeanor and felony charges on March 26, 2002. Id. ¶ 2. At	10
the preliminary hearing on May 3, 2002, the magistrate court dismissed the felony	11
charges and the cases were set for trial on the remaining misdemeanor charges. Id.	12
Following two trial continuances obtained by the state, on September 20, 2002, the	13
magistrate court dismissed the misdemeanor charges for violation of the 182-day	14
rule, which the district court affirmed. Id. The applicable triggering event, based on	15
the rule in effect at the time, was the filing of the complaint. See id. ¶ 2 (“ ‘Any	16
criminal citation or complaint within magistrate court trial jurisdiction, which is	17
pending for more than one hundred eighty-two days from the date of the arrest of	18
the defendant or the filing of a complaint or citation against the defendant . . . shall	19
be dismissed . . . unless, after a hearing the magistrate finds that the defendant was	20

10
responsible for the failure of the court to commence trial.’ ” (quoting Rule 6-	1
506(E)))2. This Court interpreted the language “any criminal citation or complaint	2
within magistrate court trial jurisdiction” to require that “a magistrate court have	3
jurisdiction to try any [and not all the] charges in the citation or complaint that are	4
ultimately 	dismissed.” 	Marquez, 	2003-NMCA-115, 	¶ 3 	(emphasis 	added)	5
(alteration, internal quotation marks, and citation omitted).	6
{15} 	Relying on an earlier case and prior version of the rule, which stated “[a]ny	7
criminal charge which is pending[,]” N.M.Magis.R.Crim.P. 17(b) (recompiled and	8
amended as Rule 6-506 in 1986), and the subsequent amendment to the rule after	9
that case—adding the phrase “within magistrate court trial jurisdiction,” Rule 6-	10
506(E), we determined that the amendment was intended to “clarify that a magistrate	11
court must have jurisdiction to try any charge dismissed pursuant to the [r]ule[,]”	12
and not that it needed trial jurisdiction for the entire 182 days. Marquez, 2003-	13
NMCA-115, ¶¶ 2-4. Accordingly, we 	rejected 	the state’s argument 	that the	14
magistrate court had to have “trial jurisdiction ab initio over the misdemeanor	15
charges when the complaint contained both felony and misdemeanor charges.” Id. ¶	16
4.	17
2 We observe that the 2002 version of rule applied in this case. To the extent
this Court referenced “2003,” the 1999 amendment to Rule 6-506 was in effect in
both 2002 and 2003.

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{16} 	Importantly, the decision in Marquez was governed by the 2002 version of the	1
rule, which required trial to commence within 182 days of either the date of the arrest	2
or the filing of a complaint or citation. Id. ¶ 7. In Marquez, the rule was triggered by	3
the filing of the complaint, for which the magistrate court need not have trial	4
jurisdiction. See Rule 6-201(D) NMRA (stating that “the complaint shall be filed	5
with the magistrate court” in “all criminal cases, including cases that are not within	6
magistrate court trial jurisdiction” (emphasis added)). For that reason, it was	7
irrelevant whether the magistrate court had trial jurisdiction over the accompanying	8
felony charges when the complaint was filed. The essential factors for the Marquez	9
holding, given the 2002 rule in effect at the time, were that the complaint had been	10
pending for more than 182 days since its filing, through no fault of the defendant,	11
and the magistrate court had trial jurisdiction over the complaint, containing solely	12
the misdemeanor charges, at the time it was dismissed. See Marquez, 2003-NMCA-	13
115, ¶ 4. In contrast, the version of the rule applicable in this case is triggered not by	14
the filing of the complaint, but by arraignment, and as discussed above, the	15
magistrate court cannot arraign a defendant unless it has trial jurisdiction over the	16
charges, or gains jurisdiction by binding the defendant over for trial in district court	17
for any charges not within its jurisdiction. See Rule 6-202(D)(3); Rule 6-501(B).	18
{17} 	Because we conclude that the magistrate court did not have trial jurisdiction	19
at Defendant’s first appearance to arraign Defendant, we need not address the	20

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argument that Defendant’s assertion of her right to counsel at that hearing—seeking	1
assistance of an attorney to provide her an adequate defense—amounted to a	2
declaration she was contesting the charges against her, and was tantamount to a not	3
guilty plea. We nevertheless note, however, that a defendant may retain an attorney	4
to assist in negotiating a plea agreement and not solely for the purpose of proceeding	5
to trial. See State v. Druktenis, 2004-NMCA-032, ¶ 9, 135 N.M. 223, 86 P.3d 1050	6
(“[The d]efendant retained an attorney to negotiate a plea agreement.”). Thus, we	7
cannot say that an assertion of the right to counsel necessarily constitutes an	8
indication of readiness for trial, and thus a waiver of arraignment.	9
{18} 	We also decline to address Defendant’s assertion that by specifying time	10
limits for arraignment following dismissal of felony charges, the current version to	11
Rule 6-506 undermines the district court’s theory that the State’s dismissal of the	12
charges operated as a constructive arraignment. Defendant recognizes that the	13
current version to Rule 6-506 does not apply here and beyond claiming the	14
amendment “undermines” the district court’s decision, however, Defendant does not	15
develop this argument. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 071	16
(“This Court has no duty to review an argument that is not adequately developed.”).	17
The 2017 amendment merely adds a subsection specifying the time limit in which	18
to arraign a defendant following the dismissal of felony charges. See Rule 6-	19
506(A)(3) (2019) (“If all felony charges against the defendant have been dismissed	20

13
or discharged, and the only remaining charges are within magistrate court trial	1
jurisdiction, the defendant shall be arraigned within thirty (30) days after the date of	2
dismissal or discharge if the defendant is not in custody, or two (2) days after the	3
date of dismissal or discharge if the defendant is in custody.”). We cannot discern,	4
and Defendant does not explain, how the 2017 amendment undermines the district	5
court’s decision. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137	6
N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what	7
his arguments might be.”). In fact, the district court’s decision seems consistent with	8
the current version of the rule’s prompt time limits, given that it determined	9
Defendant was constructively arraigned on the same date the felony charge was	10
dismissed.	11
{19} 	Lastly, to the extent Defendant also argues the rule of lenity should apply, we	12
disagree. Defendant argues that the 2016 version of Rule 6-506 applicable in this	13
case does not directly address whether her first appearance or the magistrate court’s	14
investment 	of 	jurisdiction 	triggers 	the 	182-day 	rule, 	thus 	resulting 	in 	an	15
insurmountable ambiguity. See State v. Wilson, 1998-NMCA-084, ¶ 9, 125 N.M.	16
390, 	962 	P.2d 	636 	(“The 	rule 	of 	lenity 	provides 	for 	the 	resolution 	of 	an	17
insurmountable ambiguity concerning the intended scope of the rule in favor of the	18
defendant.”). Defendant therefore argues that the reasoning in Marquez and the rule	19
of lenity support a determination that her first appearance triggered the 182-day rule.	20

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We have determined that based on the language of the rule, the applicable statute,	1
and the magistrate court rules, the magistrate court must have trial jurisdiction for	2
arraignment; there is no ambiguity in the law in this regard. That Rule 6-506(B) does	3
not include a defendant’s first appearance as an event commencing the 182-day rule	4
constitutes a modification of the prior rule, not an ambiguity. See State v. Cotton,	5
1990-NMCA-025, ¶ 18, 109 N.M. 769, 790 P.2d 1050 (“Where the [L]egislature has	6
amended a statute or omitted a portion of an act, it is presumed to have intended to	7
modify the act.”); see also Allen, 2012-NMSC-001, ¶ 11 (“When construing our	8
procedural 	rules, 	we 	use 	the 	same 	rules 	of 	construction 	applicable 	to 	the	9
interpretation of statutes.”). Considering the plain language of the rule and our	10
interpretation of case law, we are not persuaded that the rule of lenity applies.	11
{20} 	Thus, we conclude that the magistrate court first obtained jurisdiction and the	12
ability to arraign Defendant on the misdemeanor DWI charge after the State entered	13
its nolle prosequi on the felony charge, in particular, and the two other misdemeanor	14
charges; and on that date, Defendant was arraigned for purposes of Rule 6-506(B).	15
Prior to that date, the magistrate court lacked jurisdiction to arraign Defendant for	16
charges that included a felony. For these reasons, we affirm the district court’s order.	17

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{21} 	IT IS SO ORDERED.	1
_________________________________	2
JACQUELINE R. MEDINA, Judge	3
WE CONCUR:	4
_________________________	5
LINDA M. VANZI, Judge	6
_________________________	7
BRIANA H. ZAMORA, Judge	8