 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 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 30,248

10 KEVIN LAMONT RICHARD,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Stephen Bridgforth, District Judge

14 Gary K. King, Attorney General
15 Margaret McLean, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Karl Erich Martell, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        Defendant appealed from the district court’s order dismissing his appeal from

 2 magistrate court for lack of jurisdiction. We issued a notice of proposed summary

 3 disposition, proposing to reverse and remand for the district court to hold an

 4 evidentiary hearing on the validity of the plea Defendant entered in magistrate court.

 5 The State responded to our notice with a memorandum in opposition, directing this

 6 Court to the district court’s finding that Defendant acknowledged there were no

 7 constitutional infirmities surrounding his plea and arguing that no evidentiary hearing

 8 is therefore necessary. [State’s MIO 2] Although the record indicated that Defendant

 9 raised several constitutional arguments, we noted that Defendant did not challenge the

10 district court’s finding and neither party explained what Defendant argued at the

11 hearing on the State’s motion to dismiss. Consistent with our presumption of

12 correctness, we issued a second notice, presuming Defendant conceded there were no

13 constitutional problems with his plea at that hearing and proposed to affirm.

14        Defendant responded to our second notice, stating that the district court’s

15 finding was not supported by the facts and that the finding was language included in

16 an order submitted by the prosecutor. [Defendant’s MIO 3, 5] Defendant maintained

17 that defense counsel argued strenuously that the magistrate court violated his

18 constitutional rights by accepting and entering a plea that was not knowing,

19 intelligent, and voluntary. [Id.] We issued a third notice of proposed summary


                                              2
 1 disposition, noting that the record supports Defendant’s representations and the State

 2 made no factual representations explaining what facts supported the district court’s

 3 finding. We determined that under these circumstances there was record support for

 4 Defendant’s claims and no factual dispute between the parties, and therefore summary

 5 reversal was again appropriate.

 6         The State has responded to our third notice, indicating that no opposition to the

 7 proposed disposition will be filed and submitting that the appropriate remedy is a

 8 remand to the district court for an evidentiary hearing to determine whether

 9 Defendant’s plea in magistrate court was valid. [Response 1] We agree.

10         For the reasons stated in our first and third notices, we reverse the district

11 court’s order dismissing Defendant’s appeal and remand for the district court to hold

12 an evidentiary hearing and determine the validity of Defendant’s plea in magistrate

13 court. “If [after the hearing] the district court concludes that the plea is valid, then the

14 defendant is not an aggrieved party entitled to bring a de novo appeal to the district

15 court, and the district court must dismiss the appeal.”               State v. Spillman,

16 2010-NMCA-019, ¶ 5, 147 N.M. 676, 227 P.3d 1058.

17         IT IS SO ORDERED.

18                                            __________________________________
19                                            JONATHAN B. SUTIN, Judge
20 WE CONCUR:


                                                3
1 _________________________________
2 CELIA FOY CASTILLO, Judge

3 _________________________________
4 RODERICK T. KENNEDY, Judge




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