 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CITY OF RIO RANCHO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 30,365

10 MICHAEL WORLEY,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 John F. Davis, District Judge

14   City of Rio Rancho
15   James C. Babin, City Attorney
16   Gina R. Mandredi, Assistant City Attorney
17   Rio Rancho, NM

18 for Appellee

19   Bowles and Crow
20   Monnica Garcia
21   Jason Bowles
22   B.J. Crow
23   Albuquerque, NM

24 for Appellant

25                                 MEMORANDUM OPINION
 1 SUTIN, Judge.

 2        Defendant appeals from the district court’s dismissal of his appeal from

 3 municipal court to district court, arguing that the district court erred by failing to apply

 4 the conclusive presumption of ineffective assistance of counsel established in State

 5 v. Duran, 105 N.M. 231, 731 P.2d 374 (Ct. App. 1986). This Court issued a calendar

 6 notice proposing to reverse the district court’s order dismissing Defendant’s appeal.

 7 Defendant has filed a memorandum in support of this Court’s proposed disposition,

 8 and the City of Rio Rancho has filed a memorandum in opposition.                   Having

 9 considered the arguments of both parties, we reverse.

10        In this Court’s calendar notice, we proposed to conclude that State v. Eger,

11 2007-NMCA-039, ¶ 2, 141 N.M. 379, 155 P.3d 784, required the district court to

12 apply a presumption of ineffective assistance of counsel to defense counsel’s untimely

13 filing of Defendant’s notice of appeal.          We noted that the deadline for filing

14 Defendant’s notice of appeal under Rule 8-703(A) NMRA was August 19, 2009, but

15 that counsel did not file the notice until August 21, 2009. [CN 2] We further noted

16 that in Duran, 105 N.M. at 231-32, 731 P.2d at 374-75, this Court adopted a

17 conclusive presumption of ineffective assistance of counsel where a late notice of

18 appeal is filed. [CN 3] Further, we noted that in Eger, 2007-NMCA-039, ¶ 2, this

19 Court extended the conclusive presumption of ineffective assistance of counsel to de



                                                2
 1 novo appeals from magistrate court to district court. [Id.] We proposed to conclude

 2 that there was no basis for distinguishing the present case from Eger, and we proposed

 3 to reverse the district court for its failure to apply the conclusive presumption. [CN

 4 3-4]

 5        In its memorandum in opposition to our proposed disposition, the City urges

 6 this Court to disregard Duran and Eger in favor of a technical application of the rules.

 7 [MIO 2-3] The City contends that if this Court expects a pro se litigant to know and

 8 follow all the rules and procedures of the court, that a litigant with counsel should not

 9 be treated differently. [MIO 3] The City’s argument fails to take into account this

10 Court’s reasoning in Duran that “criminal defendants are not to be deprived of an

11 appeal as of right where a procedural defect results from ineffective assistance of

12 counsel.” Duran, 105 N.M. at 232, 731 P.2d at 375 (citing Evitts v. Lucey, 469 U.S.

13 387 (1985)). We are unpersuaded by the City’s argument and decline to overrule our

14 precedent by ruling as the City requests.

15        For the reasons stated in this opinion and in this Court’s proposed disposition,

16 we reverse the district court’s order dismissing Defendant’s appeal for lack of

17 jurisdiction and remand to the district court for further proceedings consistent with

18 this opinion.

19        IT IS SO ORDERED.


                                               3
1                               __________________________________
2                               JONATHAN B. SUTIN, Judge

3 WE CONCUR:




4 _______________________________
5 CELIA FOY CASTILLO, Judge




6 _______________________________
7 LINDA M. VANZI, Judge




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