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

 2 CITY OF ROSWELL,

 3          Plaintiff-Appellee,

 4 v.                                                                           No. A-1-CA-35874

 5 FRANK LUCERO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 James M. Hudson, District Judge

 9 Office of the City Attorney
10 Aaron S. Holloman
11 Roswell, NM

12 Paul V. Sanchez
13 Roswell, NM

14 for Appellee

15 Frank Lucero
16 Roswell, NM

17 Pro Se Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant has appealed from numerous convictions, including unlawful use of

 2 a license (suspended), lack of proof of financial responsibility, lack of evidence of

 3 registration, failure to display current valid license plate, and a stop lamp/signal device

 4 violation. [RP 19] We previously issued a notice of proposed summary disposition in

 5 which we proposed to reverse in light of the apparent absence of a valid waiver of

 6 counsel. Plaintiff (the City) has filed a response in opposition.              After due

 7 consideration, we remain unpersuaded. We therefore reverse.

 8   {2}   As an initial matter, we deny the City’s motion to supplement the record. The

 9 information it seeks to present pertains to separate matters, and as a result, it is not

10 properly incorporated in the record before us. See generally Rule 12-209(A), (C)

11 NMRA (defining the record to include the papers and pleadings filed in the district

12 court, and providing for supplementation “[i]f anything material to either party is

13 omitted from the record proper by error or accident”).

14   {3}   The relevant background information was previously set forth in the notice of

15 proposed summary disposition. We will not reiterate at length here. Instead, we will

16 focus on the content of the memorandum in opposition.

17   {4}   We understand the City to concede that Defendant was entitled to advisement

18 of the right to counsel, to acknowledge that no signed waiver was obtained below, and

19 to agree that this suggests structural error. [MIO 1] However, the City contends that

                                                2
 1 “Defendant manufactured the error” [MIO 1] by a subterfuge. It asserts that Defendant

 2 deceived the magistrate court into believing that he had signed the waiver of counsel

 3 form, when in reality he had merely written “not guilty” on the document. [MIO 3]

 4 The City contends that this was deliberate gamesmanship on Defendant’s part,

 5 intended to allow him to proceed without counsel while simultaneously creating an

 6 avenue for relief on appeal. [MIO 4] Pursuant to the doctrine of invited error, the City

 7 urges this Court to reject Defendant’s challenge. [MIO 2-7]

 8   {5}   To the extent that the City’s characterization of Defendant’s conduct is

 9 accurate, it is very concerning. See State v. Arellano, 1998-NMSC-026, ¶¶ 8, 18-19,

10 125 N.M. 709, 965 P.2d 293 (expressing disdain for gamesmanship where the defense

11 elected not to alert the trial court to claimed “fundamental structural error” and waited

12 for the verdict before objecting). However, as the City acknowledges, “the dry,

13 context-free” documents contained within the limited record of the magistrate court

14 proceeding does not substantiate the alleged artifice. [MIO 4] This is problematic. See

15 generally State v. Swafford, 1989-NMCA-069, ¶ 27, 109 N.M. 132, 782 P.2d 385

16 (“Our review is limited to the record presented on appeal.”).

17   {6}   Mechanisms do exist by which the relevant events at the magistrate court level

18 could be established. See State v. Baca, 2015-NMSC-021, ¶ 28, 352 P.3d 1151

19 (recognizing the authority of the district courts as factfinders to reconstruct magistrate


                                               3
 1 court nonrecord proceedings); State v. Gallegos, 2007-NMCA-112, ¶¶ 13, 19, 142

 2 N.M. 447, 166 P.3d 1101 (recognizing that the district courts have authority on appeal

 3 to supplement magistrate court records, with the assistance of the magistrate judge’s

 4 testimony, to determine the facts necessary to assess the legal validity of a waiver).

 5 In this case, however, we conclude that any such exercise would be academic.

 6   {7}   In his docketing statement, Defendant asserted that when he appealed to the

 7 district court for a trial de novo, he was never advised of the right to counsel, he never

 8 waived counsel, and no Faretta hearing was held. [DS 2] Nowhere in its

 9 memorandum in opposition does the City dispute this assertion. We therefore accept

10 it as true. See Lopez v. State, 1988-NMSC-062, ¶ 3, 107 N.M. 450, 760 P.2d 142

11 (“When a case is assigned to summary calendar, the facts in the docketing statement

12 are accepted as true unless contested.”).

13   {8}   A defendant is entitled to advisement of the right to counsel in successive

14 judicial proceedings. See NMSA 1978, § 31-16-4(B) (1968) (“Upon commencement

15 of any later judicial proceeding relating to the same matter, the presiding officer shall

16 clearly inform the person so detained or charged of the right of a needy person to be

17 represented by an attorney at public expense.”). Accordingly, the advisement and

18 waiver, if any, at the magistrate court level cannot be said to have effectuated

19 advisement or waiver of the right to counsel in the subsequent de novo proceedings


                                               4
 1 before the district court. Cf. State v. Martin, 1969-NMCA-079, ¶ 2, 80 N.M. 531, 458

 2 P.2d 606 (holding, where both the magistrate court and the district court advised of

 3 the right to counsel and where the defendant affirmatively waived counsel in both

 4 courts, the defendant effectively waived his right to counsel). And as previously

 5 indicated, we cannot presume such a waiver. See Gallegos, 2007-NMCA-112, ¶ 17

 6 (“Presuming waiver from a silent record is impermissible. The record must show, or

 7 there must be an allegation and evidence which show, that an accused was offered

 8 counsel but intelligently and understandingly rejected the offer. Anything less is not

 9 a waiver.” (internal quotation marks and citation omitted)). Under the circumstances,

10 we must reverse. See generally State v. Rivera, 2012-NMSC-003, ¶ 20, 268 P.3d 40

11 (observing that structural errors, such as complete denial of the right to counsel,

12 “infect the entire trial process, and necessarily render [the proceedings] fundamentally

13 unfair[,]” thereby warranting “automatic reversal” (internal quotation marks and

14 citation omitted)).

15   {9}    Accordingly, for the reasons stated in the second notice of proposed summary

16 disposition, we reverse and remand for further proceedings consistent with this

17 opinion.

18   {10}   IT IS SO ORDERED.

19                                          ___________________________________
20                                          JONATHAN B. SUTIN, Judge

                                              5
1 WE CONCUR:

2 _______________________________
3 TIMOTHY L. GARCIA, Judge

4 _______________________________
5 M. MONICA ZAMORA, Judge




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