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

 2 STATE OF NEW MEXICO,

 3                  Plaintiff-Appellant,

 4 v.                                                                    No. A-1-CA-35949

 5 GREGORY MACKAY,

 6                  Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Jacqueline Flores, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Bennett J. Baur, Chief Public Defender
15 Kathleen T. Baldridge, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee

18                                 MEMORANDUM OPINION

19 GARCIA, Judge.
 1   {1}   The State appeals an order of dismissal entered by the district court pursuant to

 2 the Interstate Agreement on Detainers (IAD), which requires that a defendant “be

 3 brought to trial within one hundred eighty days after . . . his request for a final

 4 disposition[.]” NMSA 1978, § 31-5-12 Art. 3(A) (1971). On appeal, the State

 5 contends that Defendant did not trigger that statutory deadline. [DS 5-6; MIO 14] This

 6 Court issued a calendar notice proposing to affirm on three independent bases, and the

 7 State has filed a memorandum in opposition to that proposed summary disposition.

 8 Having duly considered that memorandum, we are unpersuaded and now affirm.

 9   {2}   In our notice of proposed summary disposition, we quoted the district court’s

10 findings that Defendant “believed and was told by officials in Idaho that he requested

11 final disposition of this cause on September 5, 2014.” [CN 4 quoting RP 141] That

12 finding appears to have been based upon the sole piece of evidence described in the

13 State’s docketing statement, which was Defendant’s testimony that he discussed such

14 a request with prison officials in Idaho. [CN 4; DS 4] We then acknowledged the

15 ambiguity of the material available in the record proper dealing with communications

16 between Idaho and New Mexico before pointing out that:

17         A review of both the record proper and the docketing statement filed by
18         the State does not resolve the question of whether anything else was
19         communicated to prosecutorial authorities in New Mexico regarding
20         Defendant’s request for disposition in the fall of 2014. . . . To the extent
21         that the State contends that it was not informed of Defendant’s intention
22         to request a final disposition in 2014, any memorandum in opposition

                                                2
 1         that the State chooses to file should include a summary of any evidence
 2         relevant to that question.

 3 [CN 5-6 (emphasis added)]

 4   {3}   Rather than summarize any of the evidence received by the district court,

 5 however, the memorandum filed by the State merely provides a description of

 6 documents appearing in the record proper before turning to a discussion of the IAD’s

 7 requirements and an argument that Defendant did not establish that he had triggered

 8 that statute. [MIO 2-13, 15-20, 20-25] In fact, the memorandum’s only

 9 acknowledgment that any evidence was received below is contained in a footnote

10 reciting that Defendant was the sole witness at the hearing on his motion, and

11 asserting the State’s assessment that none of the evidence offered provides “any

12 additional information that would materially alter the analysis in this appeal.” [MIO

13 12 n.4]

14   {4}   The State’s failure to describe any of the evidence received by the district court

15 deprives this Court of any opportunity to review the sufficiency of that evidence to

16 support that court’s findings and, ultimately, any opportunity to review the order on

17 appeal. Our rules require that an appellant provide this Court with a “statement of the

18 case summarizing all facts material to a consideration of the issues presented[.]” Rule

19 12-208(D)(3) NMRA. Where, as here, the issues presented include a claim that a party

20 has failed to carry his burden of proof, the “facts material” to our consideration will

                                               3
 1 include, at a minimum, a summary of the evidence relied upon by the court below.

 2 Thornton v. Gamble, 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688 P.2d 1268. Failure

 3 to do so will generally result in a denial of relief in this Court. State v. Chamberlain,

 4 1989-NMCA-082, ¶ 11,109 N.M. 173, 783 P.2d 483.

 5   {5}   In cataloging the contents of the record proper in this case, the State’s

 6 memorandum confirms this Court’s prior conclusion that the record does not contain

 7 sufficient information to resolve the issues raised by the State. [CN 5] From the

 8 State’s view, this means that “[t]he record lacks substantial evidence of proper notice

 9 . . . prior to . . . May 27, 2016.” [MIO 23] That record does disclose, however, that the

10 district court conducted a hearing to address Defendant’s motion on August 30, 2016.

11 [RP 138] And, although the State concedes that testimony, and perhaps other

12 evidence, was received at that hearing [see MIO 12 n.4], the record contains no tape

13 log of any testimony nor even an exhibit receipt that might disclose what type of

14 evidence was before the district court when it granted Defendant’s motion. The record

15 does, however, include the district court’s order dismissing this case three days after

16 that hearing. [RP 141]

17   {6}   As a result, it appears the district court dismissed this case on the basis of

18 whatever evidence was received at a single hearing, conducted on August 30, 2016.

19 That evidence included Defendant’s testimony about a conversation he had with Idaho


                                               4
 1 prison officials. [DS 4] In this appeal, we do not know whether Defendant’s testimony

 2 covered any other topic, but we do know that no other witnesses testified. [MIO 12

 3 n.4] We also cannot say for sure what other documents may have been received in

 4 evidence, although it does appear that a collection of certified mail receipts were

 5 before the court in some form, as the State has now asked us to judicially notice a fact

 6 regarding an address appearing on one of those receipts. [MIO 7 n.2]

 7   {7}   In any event, read collectively, the record proper, the State’s docketing

 8 statement, and the State’s memorandum in opposition to summary affirmance do not

 9 provide this Court with sufficient information to review the central question raised by

10 the State’s appeal: whether Defendant triggered the IAD’s one-hundred-eighty-day

11 deadline. As a result, the State has not carried its burden on appeal, “to clearly point

12 out errors in fact or law” contained in our original notice of proposed summary

13 disposition. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d

14 683. Accordingly, we affirm the district court’s order of dismissal.

15   {8}   IT IS SO ORDERED.

16                                                ________________________________
17                                                TIMOTHY L. GARCIA, Judge

18 WE CONCUR:

19 _______________________________
20 LINDA M. VANZI, Chief Judge


                                              5
1 _______________________________
2 STEPHEN G. FRENCH, Judge




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