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                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 16:52:07 2017.01.18

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-005

Filing Date: July 12, 2016

Docket No. 34,653

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DANIEL G. ARAGON,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Mary L. Marlowe Sommer, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Tonya Noonan Herring, Assistant Attorney General
Albuquerque, NM

for Appellee

Gregory Gahan
Albuquerque, NM

for Appellant

                                          OPINION

SUTIN, Judge.

{1}     On appeal, Defendant Daniel G. Aragon attempts to have a misdemeanor driving
while intoxicated (DWI) conviction in a de novo bench trial in district court dismissed
because the DWI charge and a traffic citation were not joined under the compulsory joinder
rule, Rule 5-203(A) NMRA. We hold that the compulsory joinder rule does not require
joinder in this case, and therefore the district court did not err in denying Defendant’s motion
to dismiss.


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BACKGROUND

{2}    Defendant was stopped by Officer Adrian Diaz for driving 111 miles per hour in a
55 miles-per-hour zone. During the traffic stop, Officer Diaz determined that Defendant was
impaired, and he placed Defendant under arrest for DWI.

{3}    Defendant was arraigned on a third degree felony DWI charge in the Santa Fe County
Magistrate Court, but the charge was quickly dismissed without prejudice pending the
outcome of the prosecution’s investigation into whether the DWI was Defendant’s sixth
offense, which would be a third degree felony. See NMSA 1978, § 66-8-102(I) (2010). The
speeding charge was filed in a separate magistrate court cause two days after the dismissal
without prejudice of the DWI felony charge, and Defendant pleaded no contest to the
speeding charge and agreed to pay the fine and fees.

{4}    Approximately three months after Defendant’s plea to the speeding citation, the State
determined, based on its felony investigation, that the DWI should be charged as a
misdemeanor second offense and not a felony sixth offense. Thereafter, the State filed a
misdemeanor DWI (0.08) second offense charge against Defendant in the original magistrate
court DWI cause. Defendant filed and the magistrate court denied a motion to dismiss based
on Rule 5-203(A), which is a district court rule.1 Compare Rule 5-203(A), with Rule 6-
306(A) NMRA (Rules of Criminal Procedure for the Magistrate Courts). Defendant was
convicted by a jury of DWI (0.08) second offense, and he appealed to the district court.

{5}    In his district court appeal, Defendant filed a motion to dismiss under Rule 5-203(A),
again arguing that the misdemeanor charge should be dismissed because it had not been
joined with the speeding citation. The district court denied the motion, and after a de novo
bench trial, the court entered an order finding Defendant guilty and remanding the matter to
magistrate court for imposition of that court’s sentence.

{6}    On appeal to this Court from the district court’s orders denying his motion to dismiss
and finding Defendant guilty and remanding the matter to the magistrate court to impose
sentence, Defendant argues that the prosecution of the DWI charge was barred by Rule 5-
203(A) (and perhaps, but not clearly, also by the magistrate court compulsory joinder Rule
6-306(A)), as interpreted and applied in State v. Gonzales, 2013-NMSC-016, ¶¶ 25-33, 301
P.3d 380.

DISCUSSION

{7}    Whether a criminal statute applies to particular conduct is a question of law to be
reviewed de novo. State v. Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-029,


       1
         The applicable rule was magistrate court compulsory joinder Rule 6-306(A), which
is virtually identical to Rule 5-203(A).

                                             2
¶ 13, 285 P.3d 622.

{8}    The critical issue is whether Rule 5-203(A) was violated when the DWI and traffic
offense were not joined. Rule 5-203(A), broadly states:

       Two or more offenses shall be joined in one complaint, indictment[,] or
       information with each offense stated in a separate count, if the offenses,
       whether felonies or misdemeanors or both:

             (1)     are of the same or similar character, even if not part of a single
       scheme or plan; or

              (2)    are based on the same conduct or on a series of acts either
       connected together or constituting parts of a single scheme or plan.

Gonzales provides no limitations, but states the purpose of compulsory joinder.

       The purpose of a compulsory joinder statute, viewed as a whole, is twofold:
       (1) to protect a defendant from the governmental harassment of being
       subjected to successive trials for offenses stemming from the same criminal
       episode; and (2) to ensure finality without unduly burdening the judicial
       process by repetitious litigation.

Gonzales, 2013-NMSC-016, ¶ 26 (alteration, internal quotation marks, and citation omitted).
We conclude that nothing in the language of Rule 5-203(A) required compulsory joinder in
this case.2

{9}     The uniform traffic citation for speeding containing a hearing notice is a complaint.
NMSA 1978, § 66-8-128 (2013); NMSA 1978, § 66-8-131 (1990); see also NMSA 1978,
§ 66-8-116(A)(7) (2011, amended 2016) (setting the penalty assessments for speeding more
than 35 miles per hour over the speed limit at $200). We see no reason why the State could
not proceed with and resolve the traffic citation in magistrate court with Defendant’s no
contest plea. Nor do we see any reason why later, after determining that the DWI should not


       2
          In his special concurrence, Chief Judge Vigil concludes that Rule 5-203(A) does
not apply because the traffic offense was not pending concurrently with the DWI charge in
the district court. We did not adopt the Chief Judge’s interpretation because the compulsory
joinder rule focuses on the similarity in character or conduct of offenses and does not state
that compulsory joinder only applies to related offenses that are concurrently pending. If the
relevant inquiry was whether charges were concurrently pending, prosecutors would be able
to avoid the compulsory joinder rule by making sure only one charge is pending at any given
time. That sort of piecemeal approach to prosecuting appears to be what the compulsory
joinder rule seeks to prevent.

                                              3
be filed as a felony, the State could not then file a misdemeanor DWI charge in magistrate
court.3 Further, the speeding offense played no part in the per se 0.08 charge and conviction.
Thus, the offenses are not of the same or similar character, nor are the offenses based on the
same conduct. See Rule 5-203(A). In addition, to hold that joinder here was compulsory
would, in our view, not be a rational disposition. American Bar Association (ABA)
Standards for Criminal Justice Section 13-2.3(d) (2d ed. 1980) and Model Penal Code
Section 1.11(2) (Am. Law Inst. 2015), each side with the view that a defendant’s entry of
a no contest plea to a lesser offense such as the traffic citation here does not bar a subsequent
prosecution of an additional, greater offense even if the two offenses occur during one
episode. See ABA Standards § 13-2.3(d) (“Entry of a plea of guilty or nolo contendere to one
offense does not bar the subsequent prosecution of any additional offense based upon the
same conduct or the same criminal episode.”); Model Penal Code § 1.11(2) (stating that a
prosecution is not barred where the “former prosecution was procured by the defendant
without the knowledge of the appropriate prosecuting officer and with the purpose of
avoiding the sentence that might otherwise be imposed”). A defendant should not be allowed
to bar his later prosecution simply by rushing to plead to a considerably lesser traffic
offense.4

CONCLUSION

{10} The district court did not err in denying Defendant’s motion to dismiss the DWI
charge based on the compulsory joinder rule. We affirm the district court’s sentencing-
related order.

{11}    IT IS SO ORDERED.

                                                ____________________________________
                                                JONATHAN B. SUTIN, Judge

I CONCUR:



        3
          Defendant has at no time suggested that the State was required to dismiss the
citation without prejudice along with the DWI charge and to then bring both charges in one
proceeding.
        4
         An analysis of Gonzales and of the compulsory joinder rule’s breadth and lack of
reasonable limitations, as well as related expectations and concerns about the consequences,
and case-by-case court imposed limitations on the rule, is contained in Ryan C. Schotter,
State v. Gonzales: Reinvigorating Criminal Joinder in New Mexico, 44 N.M. L. Rev. 467
(2014). Schotter makes good points in his article and brings to light the breadth of Rule 5-
203(A) with its lack of reasonable limitations, requiring case-by-case considerations of
reasonable limitations. Schotter, supra, at 500.

                                               4
____________________________________
LINDA M. VANZI, Judge

MICHAEL E. VIGIL, Chief Judge (specially concurring).

VIGIL, Chief Judge (specially concurring).

{12} The majority states that the “critical issue is whether Rule 5-203(A) was violated
when the DWI and traffic offense were not joined.” Majority Op. ¶ 8. I disagree with this
characterization of the issue because I conclude there was no traffic offense to join with the
DWI charge in the district court. For this reason I conclude that Rule 5-203(A) did not apply
and therefore specially concur.

{13} We do not have copies of all the pleadings filed in the magistrate court. See Rule 5-
826(F)(2) NMRA (requiring the magistrate court clerk to file with the district court clerk a
copy of all papers and pleadings filed in the magistrate court in appeals from the magistrate
court to the district court). For the factual background, we are therefore required to rely on
Defendant’s motion to dismiss and the State’s response. According to these pleadings,
Defendant was issued a citation for speeding and arrested and charged with felony DWI
(sixth offense) in the Santa Fe County Magistrate Court on November 24, 2012. Defendant
was arraigned in the magistrate court on the felony DWI charge on November 26, 2012, and
on December 5, 2012, the felony DWI charge was dismissed without prejudice so that the
State could investigate how many prior DWI convictions Defendant actually had. There is
no allegation that this was done for any improper purpose. On March 25, 2013, Defendant
pleaded no contest to the speeding charge. The DWI charge was re-filed in the magistrate
court on July 10, 2013, as a misdemeanor DWI (second offense), and trial on the re-filed
DWI case was held in the magistrate court on April 18, 2014.

{14} When Defendant pleaded no contest to the speeding charge on March 25, 2013, that
was the only charge pending because the separately filed felony DWI had been dismissed.
When the misdemeanor DWI charge was re-filed on July 10, 2013, that was the only charge
pending because the speeding case was already resolved. Thus, the joinder requirement of
the magistrate court, Rule 6-306(A), was not applicable. There never were two or more
offenses to join.

{15} But that does not end the matter. Defendant was found guilty of the misdemeanor
DWI charge in the magistrate court on April 18, 2014. He was found guilty of the only
charge pending against him, and he appealed that conviction to the district court for a de
novo trial. This meant that the case was to be tried in the district court anew as if no trial had
been held in the magistrate court. State v. Armijo, No. 34,400, 2016 WL 3266595, 2016-
NMSC-___, ¶ 28, ___ P.3d ___ (June 13, 2016). Defendant moved the district court to
dismiss the DWI with prejudice “based on [Rule 5-203(A),] the compulsory joinder rule[.]”
When Defendant filed his motion to dismiss in the district court, there was only one
charge—the DWI—and there was no other crime that could be joined with the DWI under

                                                5
Rule 5-203(A). The district court therefore properly denied Defendant’s motion.

{16} The majority does not explain how mandatory joinder under Rule 5-203(A) should
be considered under these circumstances. I conclude it does not and that there was no error
in denying Defendant’s motion to dismiss. Even if mandatory joinder could somehow be
invoked, Defendant would not be entitled to relief under the harmless error rule set forth in
Rule 6-303(A) NMRA and Rule 6-704 NMRA. Moreover, I respectfully submit that the
majority’s discussion of ABA Standards Section 13-2.3(d) and Model Penal Code Section
1.11(2) is purely advisory under the circumstances.

                                              ____________________________________
                                              MICHAEL E. VIGIL, Chief Judge




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