 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                            NO. 28,677 consolidated with
10                                                                   28,731

11 ORLANDO M.,

12          Child-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
14 Donald C. Schutte, District Judge

15 Gary K. King, Attorney General
16 Francine A. Chavez, Assistant Attorney General
17 Santa Fe, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Allison H. Jaramillo, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 GARCIA, Judge.
 1        Orlando M. (Child) appeals from the revocation of his juvenile probation. He

 2 argues that the district court made the following errors: (1) deprived him of a fair and

 3 impartial probation revocation hearing; (2) incorrectly admitted hearsay testimony in

 4 violation of his confrontation rights; (3) did not have substantial evidence to support

 5 the revocation; and (4) abused its discretion at sentencing. We hold the district court

 6 erred by violating Child’s fundamental right to a fair and unbiased hearing. Since this

 7 first issue is dispositive of Child’s appeal, we refrain from addressing his remaining

 8 arguments. We reverse and remand to the district court for further proceedings.

 9 BACKGROUND

10        Subsequent to a guilty plea entered on November 28, 2007, Child was

11 committed to the legal custody of the Children, Youth, and Families Department

12 (CYFD) for an indeterminate period not to exceed two years. This sentence was

13 suspended on the condition that Child be placed on supervised probation for two years

14 pursuant to certain terms and conditions of probation.

15        In January 2008, new adult criminal charges were filed against Child, and a

16 bench warrant was issued for his arrest. In April, the State also filed a petition to

17 revoke Child’s juvenile probation, and the district court issued a bench warrant for

18 Child’s arrest based on Child’s failure to comply with the conditions of his probation.

19 Several weeks later, the court held a hearing to address both the probation revocation


                                              2
 1 and the new criminal charges. Prior to the hearing, the State and Child reached a plea

 2 agreement to resolve both the juvenile probation revocation case and the new adult

 3 criminal charges, and they presented the proposed plea agreement to the court. The

 4 court rejected the plea agreement at the hearing, stating:

 5        I advised [Child] that he had one last break as a juvenile and despite my,
 6        probably my inclination, I agreed to the terms that were provided at that
 7        time for intensive supervision and that time I specifically talked to
 8        [Child] and had him assure me that he could follow through with those
 9        terms. He obviously did not. I am not going to accept this agreement.

10 The court continued:

11        Given the background of this matter, and I reviewed these files again this
12        morning, it appears that in the time that these cases have been pending,
13        [Child] has done nothing but flaunt the chances that he has been given,
14        and then when he is finally called to task . . . he flees and then he
15        commits a new crime as an adult also apparently flaunting the system,
16        and I’m not inclined to accept this agreement.

17 The parties and the court discussed other possible dispositions, and the court

18 concluded, “I see no reason why the citizens of Quay County should pay for [Child’s]

19 incarceration for the next six months. There are state facilities to take care of that.”

20        After the district court’s rejection of the plea agreement and the above

21 statements, the court proceeded with an arraignment on the criminal charges followed

22 seconds later with the probation revocation hearing. The court entered a not guilty

23 plea on Child’s behalf at the arraignment since Child had not seen the criminal

24 information prior to the hearing. At the subsequent probation revocation hearing, the

                                              3
 1 court heard testimony from one State witness, Child’s juvenile probation officer. At

 2 the close of the evidence, the court found that Child had violated the terms of his

 3 probation agreement. The State recommended a one-year commitment for Child, and

 4 Child asked for a return to probation or a fifteen-day commitment. The court then

 5 committed Child to the custody of CYFD for a period not to exceed two years.

 6 DISCUSSION

 7 Judicial Bias Amounting to Fundamental Error

 8        Child argues that the district court prejudged his case and, therefore, deprived

 9 him of his right to a fair and impartial revocation hearing. Child acknowledges that

10 his argument was not preserved at the probation revocation hearing. However, Rule

11 12-216(B)(2) NMRA permits review of unpreserved arguments involving

12 fundamental error or fundamental rights of a party.

13        As stated in State v. Pacheco, 85 N.M. 778, 780, 517 P.2d 1304, 1306 (Ct. App.

14 1973),

15               Every litigant is entitled to a fair and impartial trial. A fair and
16        impartial trial, the very desideratum of the administration of justice, is a
17        judicial process by which a court hears before it decides; by which it
18        conducts a dispassionate inquiry, and renders judgment only after trial.
19        The antithesis of a fair and impartial trial is prejudgment by a court. A
20        tendency to prejudge, or a prejudgment of a particular controversy, or of
21        a class or character of cases only sucks the administration of justice
22        down into the eddy of disrepute.

23 (internal quotation marks and citation omitted). The fundamental right to a fair and

                                               4
 1 impartial trial applied to Child’s probation revocation hearing. See NMSA 1978, §

 2 32A-2-24(B) (1993) (amended 2009) (“[P]roceedings to revoke probation shall be

 3 governed by the procedures, rights and duties applicable to proceedings on a

 4 delinquency petition.”); In re Aaron L., 2000-NMCA-024, ¶ 21, 128 N.M. 641, 996

 5 P.2d 431 (“In [juvenile] probation revocation proceedings, the right to a trial may be

 6 construed to be the right to a hearing[.]”); Pacheco, 85 N.M. at 780, 517 P.2d at 1306

 7 (determining that the defendant was deprived of “his fundamental right of a fair

 8 hearing before an impartial tribunal” at a probation violation hearing). Because

 9 Child’s argument involves a fundamental right to a fair and impartial hearing and

10 because we have concerns that this right was violated, we address the merits of

11 Child’s argument. See Rule 12-216; In re Aaron L., 2000-NMCA-024, ¶ 11

12 (reviewing under the fundamental right exception the child’s due process argument

13 stemming from a probation violation hearing even though the issue was not

14 preserved).

15        Child had the unequivocal right to a fair probation revocation hearing before

16 an impartial judge. See State v. Orquiz, 2003-NMCA-089, ¶ 16, 134 N.M. 157, 74

17 P.3d 91 (“The right to be heard by a neutral and detached hearing officer is among the

18 minimum due process requirements of a revocation hearing.”); see also Rule 5-106(G)

19 NMRA (“No district judge shall sit in any action in which the judge’s impartiality


                                             5
 1 may reasonably be questioned under the provisions of the Constitution of New

 2 Mexico or the Code of Judicial Conduct, and the judge shall file a recusal in any such

 3 action.”); Rule 21-400(A) NMRA (“A judge is disqualified and shall recuse himself

 4 or herself in a proceeding in which the judge’s impartiality might reasonably be

 5 questioned[.]”). “A reasonable and impartial mind is one which hears before it

 6 condemns, which proceeds on inquiry, and only renders a decision after hearing all

 7 the evidence.” Pacheco, 85 N.M. at 780, 517 P.2d at 1306. “If a judge represents,

 8 before a hearing, that he or she has made definite findings, it is an indication that the

 9 judge is not neutral.” Orquiz, 2003-NMCA-089, ¶ 16; see Purpura v. Purpura, 115

10 N.M. 80, 83, 847 P.2d 314, 317 (Ct. App. 1993) (“[A] fair and impartial tribunal

11 requires that the trier of fact be disinterested and free from any form of bias or

12 predisposition regarding the outcome of the case.” (internal quotation marks and

13 citation omitted)).

14        The record from Child’s rejected plea agreement proceeding demonstrates that

15 prior to his probation revocation hearing, the court had already decided that Child had

16 violated his probation. Based on Child’s apparent willingness to plead guilty to the

17 new criminal charges, the court determined that Child “obviously did not” follow

18 through with the terms of his probation. The court made this conclusion before it had

19 been presented with any evidence of Child’s probation violation.


                                               6
 1        The court also indicated that he had already considered the disposition for

 2 Child’s probation violation. Prior to the probation revocation hearing, the parties

 3 discussed potential dispositions. The court then indicated that it could find no reason

 4 to commit Child to a detention facility in Quay County where the citizens of the

 5 county would have to pay the incarceration costs. Instead, the court wanted to commit

 6 Child to a state facility. The court later carried out this predetermined sentence at

 7 Child’s probation revocation hearing when it committed Child to no more than two

 8 years in CYFD custody. As further evidence of its bias and predetermination against

 9 Child, the court dismissed the State’s recommendation for a one-year commitment.

10        The court’s comments and ruling indicate that it had already made a decision

11 regarding the outcome of the probation revocation hearing before the hearing even

12 began. Its pre-hearing statements about Child’s guilt in violating probation and the

13 resulting disposition demonstrate that the court was not impartial going into the

14 hearing. As a result, Child was denied a fair and impartial hearing in violation of his

15 constitutional rights. See Orquiz, 2003-NMCA-089, ¶ 16 (reversing and remanding

16 the revocation of the defendant’s probation because the district court made an

17 unequivocal, definite finding on the record prior to the revocation hearing indicating

18 that the court had prejudged the defendant prior to the defendant having an

19 opportunity to be heard at the revocation hearing); Pacheco, 85 N.M. at 780, 517 P.2d


                                              7
 1 at 1306 (concluding that to make arrangements for defendant’s incarceration with the

 2 deputy warden prior to the probation hearing was a denial of his fundamental right to

 3 a fair hearing because it prejudged the probation revocation hearing); see also State

 4 v. Bonilla, 2000-NMSC-037, ¶ 15, 130 N.M. 1, 15 P.3d 491 (reversing the defendant’s

 5 sentence upon evidence that the district court had prejudged his sentence based on the

 6 defendant’s decision to have a jury trial). By denying Child the fundamental right to

 7 a fair and impartial probation revocation hearing, a miscarriage of justice occurred that

 8 rose to the level of fundamental error. See State v. Barber, 2004-NMSC-019, ¶ 8, 135

 9 N.M. 621, 92 P.3d 633 (explaining that fundamental error applies to prevent a

10 miscarriage of justice and “must go to the foundation of the case or take from the

11 defendant a right which was essential to his defense” (internal quotation marks and

12 citation omitted)).

13 CONCLUSION

14        We reverse the revocation of Child’s probation and remand to the district court

15 for such further proceedings as may be necessary.

16        IT IS SO ORDERED.



17                                                 ________________________________
18                                                 TIMOTHY L. GARCIA, Judge



                                               8
1 WE CONCUR:



2 ___________________________
3 JONATHAN B. SUTIN, Judge


4 ___________________________
5 ROBERT E. ROBLES, Judge




                                9
