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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                   No. A-1-CA-35508

 5 RONALD JULIAN FUENTES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Freddie J. Romero, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VARGAS, Judge.
                                                                                         


 1   {1}   Defendant Ronald Julian Fuentes appeals the district court’s determination

 2 that he was incompetent to stand trial and dangerous, pursuant to NMSA 1978,

 3 Section 31-9-1.2(B), (C) (1999). He raises two issues: (1) the district court erred by

 4 failing to sua sponte order a hearing to determine whether Defendant was mentally

 5 retarded as defined in NMSA 1978, Section 31-9-1.6(E) (1999); and (2) that

 6 defense counsel was ineffective for failing to request such a hearing. We

 7 previously remanded this matter for a determination of whether Defendant is

 8 mentally retarded, and whether a civil commitment should have been ordered. On

 9 remand, and after conducting an evidentiary hearing, the district entered an order

10 finding that Defendant was not mentally retarded. We dismiss Defendant’s appeal

11 as moot.

12 BACKGROUND

13   {2}   In the approximate two-year period between March 2013 and May 2015,

14 Defendant’s competence was evaluated four times. In 2016 the district court

15 entered a decision and order (order) on Defendant’s competency, pursuant to

16 NMSA 1978, Section 31-9-1.5 (1999). Based on the pleadings, exhibits,

17 evaluations, testimony of witnesses and arguments of counsel, and notwithstanding

18 that the parties had twice stipulated that Defendant was incompetent and dangerous

19 pursuant to Section 31-9-1.2(B), (C), the district court “independently” found by

20 clear and convincing evidence that Defendant was incompetent and dangerous.


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 1 Based on its findings, the district court committed Defendant to the New Mexico

 2 Behavioral Health Institute for a period of twelve years, with hearings to be

 3 conducted every two years on the issues of trial competency and criminal

 4 dangerousness. This appeal followed. Defendant’s appeal initially challenged only

 5 the district court’s ruling on dangerousness.

 6   {3}   During the summary calendar process, on March 21, 2017, this Court filed a

 7 second notice of proposed summary disposition in which we remanded for “a

 8 determination of whether Defendant is mentally retarded, and whether a civil

 9 commitment should have been ordered in this case.” Thereafter, and upon an oral

10 motion by Defendant, the district court entered an ex parte order for a confidential

11 forensic evaluation, directing the Department of Health to evaluate Defendant, to

12 address “[i]ssues regarding competency to stand trial and for issues regarding

13 mental retardation.” Following evaluations by two separate experts and after an

14 evidentiary hearing, the parties agreed that a third evaluation would be done. The

15 third expert evaluated Defendant and issued a report stating that Defendant did not

16 meet the definition of mentally retarded set out in Section 31-9-1.6(E). The parties

17 stipulated to the findings in the report and defense counsel stipulated that the

18 defense would be unable to establish by a preponderance of the evidence that

19 Defendant fit the definition. The district court entered an order setting forth the

20 above findings and concluding that “Defendant does not meet the definition set


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 1 forth in [Section] 31-9-1.6(E) for a finding of mental retardation.” The district

 2 court further concluded that “Defendant’s appeal is now moot and this matter shall

 3 proceed in [d]istrict [c]ourt pending final resolution.” Defendant nonetheless

 4 argues that we should consider the issue raised in his appeal because it is “on[e] of

 5 substantial importance that may affect defendants around the [s]tate whose cases

 6 are evading the [Section 31-9-1.6] procedure.”

 7   {4}   As a general rule, appellate courts do not decide moot cases. Republican

 8 Party of N.M. v. N.M. Taxation and Revenue Dep’t, 2012-NMSC-026, ¶ 10, 283

 9 P.3d 853. However, New Mexico courts recognize two exceptions to the rule that

10 moot cases should be dismissed: cases presenting an issue of substantial public

11 interest, and cases that are capable of repetition, yet evade review. See id.

12 (explaining a substantial public interest involves a constitutional question or affects

13 a fundamental right, and capable of repetition refers to an issue likely to arise in a

14 future lawsuit regardless of the identity of the parties). “The [appellate c]ourt’s

15 review of moot cases that either raise an issue of substantial public interest or are

16 capable of repetition yet evading review is discretionary.” Id. Defendant contends

17 that just as the trial court in this case failed to follow the procedures in the New

18 Mexico Mental Illness and Competency Code, other cases like his “may be

19 avoiding review because they were not appealed.” Thus, he argues, we should

20 exercise our discretion to give trial courts guidance on proper procedure in cases


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 1 where a defendant is found incompetent and his incompetence may be attributable

 2 to mental retardation, rather than mental illness. We note that Section 31-9-1.6 sets

 3 out a procedure to obtain a ruling to determine whether a defendant is mentally

 4 retarded. See § 31-9-1.6(A) (“Upon motion of the defense requesting a ruling, the

 5 court shall hold a hearing to determine whether the defendant has mental

 6 retardation.”). To the extent Defendant asks us to expand the statute to require

 7 district courts to order a hearing sua sponte to make a determination of mental

 8 retardation, we decline to do so. Defendant points to no facts or legal authority to

 9 suggest the district courts are in need of guidance beyond that which has already

10 been statutorily provided, and we have found none. See ITT Educ. Servs., Inc. v.

11 Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969.

12 (concluding this Court will not consider propositions that are unsupported by

13 citation to authority.) We decline to exercise our discretion to address a moot

14 argument.

15   {5}   Defendant’s appeal is dismissed.

     {6}   IT IS SO ORDERED.

16                                                _____________________________
17                                                JULIE J. VARGAS, Judge


18 WE CONCUR:


19 ________________________________

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1 LINDA M. VANZI, Judge


2 ________________________________
3 KRISTINA BOGARDUS, Judge




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