 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                                           NO. 29,509

10 DEBORAH M. PULITI,

11          Defendant-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Douglas R. Driggers, District Judge

14 Gary K. King, Attorney General
15 Anita Carlson, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 The Pickett Law Firm, LLC
19 Mollie C. McGraw
20 Las Cruces, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 WECHSLER, Judge.
 1        The State appeals from the district court denial of its petition for an extension

 2 of time and dismissal of the charges against Defendant for violation of the six-month

 3 rule. This Court entered a memorandum opinion affirming the district court on

 4 October 5, 2009. The State sought review of our decision by our Supreme Court

 5 through a petition for writ of certiorari. The Supreme Court issued a writ of certiorari,

 6 held this matter in abeyance pending its decision in State v. Savedra, 2010-NMSC-

 7 025, 148 N.M. 301, 236 P.3d 20, and, following its decision in Savedra, quashed the

 8 writ of certiorari and remanded the matter back to this Court for further proceedings.



 9        On remand, this Court considered the State’s appeal in light of our Supreme

10 Court’s decision in Savedra and its withdrawal of the six-month rule provisions set

11 forth in Rule 5-604(B)-(E) NMRA, and issued a second calendar notice proposing to

12 reverse. Defendant filed a memorandum in opposition. Based on Defendant’s

13 arguments and the addition of committee commentary to Rule 5-604 indicating what

14 cases Savedra may have been intended to apply to–this Court issued a third calendar

15 notice proposing to conclude that Savedra’s withdrawal of the six-month rule did not

16 apply to the present case because it was not pending in the district court at the time

17 Savedra was issued. We therefore proposed to rely on the analysis contained in our

18 October 5, 2009 opinion to affirm. The State has filed a memorandum in opposition

                                               2
 1 to this Court’s third calendar notice proposing summary affirmance. We have duly

 2 considered each of the State’s arguments in support of reversal. Unpersuaded, we

 3 affirm.

 4 DISCUSSION

 5        The State raises four challenges to this Court’s notice of proposed disposition:

 6 (1) Defendant’s case is a pending case under Savedra and, thus, the six-month rule

 7 should not apply; (2) this Court erred in relying on State v. Yates, 2008-NMCA-129,

 8 144 N.M. 859, 192 P.3d 1236, aff’d by Savedra, 2010-NMSC-025; (3) the State was

 9 entitled to a new six-month period pursuant to State v. Heinsen, 2005-NMSC-035, 138

10 N.M. 441, 121 P.3d 1040; and (4) the district court abused its discretion in not

11 granting the State an extension pursuant to Rule 5-604. We address each of the

12 State’s arguments in turn.

13 I.     Defendant’s Case Was Not Pending When Savedra Was Decided

14        In this Court’s third calendar notice, we relied on the annotation to Rule 5-604

15 which states that “[p]ursuant to State v. Savedra, 2010-NMSC-025, ¶ 9, Paragraphs

16 B, C, D and E of Rule 5-604 NMRA were withdrawn for cases pending in the district

17 court on or after May 12, 2010.” Rule 5-604 (revised 2010) Compiler’s Note. [3dCN

18 3-4] We also relied on case law holding that a “case must be pending in the tribunal

19 that will be affected by the rule change for Article IV, Section 34 [stating that no act


                                              3
 1 of the legislature shall affect the right or remedy of either party, or change the rules

 2 of evidence or procedure, in any pending case] to apply.” N.M. Mining Comm’n v.

 3 United Nuclear Corp., 2002-NMCA-108, ¶ 4, 133 N.M. 8, 57 P.3d 862 (emphasis

 4 omitted); see also State v. DeBaca, 90 N.M. 806, 808, 568 P.2d 1252, 1254 (Ct. App.

 5 1977) (explaining that Article IV, Section 34 applies to Court rules as well as

 6 legislation); but see State v. Pieri, 2009-NMSC-019, ¶ 35, 146 N.M. 155, 207 P.3d

 7 1132 (holding that Article IV, Section 34 does not have the effect of a legislative act

 8 and applying rule change prospectively with limited retroactivity). As Defendant’s

 9 case was on appeal at the time the rule change was announced, we proposed to follow

10 the Supreme Court’s lead and analyze Defendant’s claims under the old rule as in

11 Savedra. See, e.g., Savedra, 2010-NMSC-025, ¶ 10 (abolishing the six-month rule for

12 district courts but applying the old rule to the defendants’ cases).

13        While the State argues that the Compilation Commission’s annotation to Rule

14 5-604 is not controlling, we find the commentary persuasive. Moreover, given our

15 cases holding that a case must be pending in the tribunal that will be affected by the

16 rule change, we conclude that Defendant’s case was not pending pursuant to Savedra.

17 We therefore analyze Defendant’s claims under the old rule, as in Savedra.

18 II.    This Court May Still Rely Yates

19        Having determined that the six-month rule applies, we turn to the State’s


                                              4
 1 argument that this Court should not rely on Yates in reviewing whether the district

 2 court erred in dismissing the charges against Defendant. Specifically, the State argues

 3 that Yates marks a departure from New Mexico’s previous six-month-rule cases, and

 4 because our Supreme Court did not apply Yates, but relied on previous six-month-rule

 5 cases, the Supreme Court implicitly rejected the analysis in Yates. We disagree with

 6 the State’s characterization of our decision in Yates as a radical departure from

 7 previous six-month-rule jurisprudence. As we noted in Yates, our decision in that case

 8 is consistent with our previous decisions in that the Court must conduct a balancing

 9 test when determining whether to restart the six-month period. Yates, 2008-NMCA-

10 129, ¶ 9. We noted in Yates that “[i]n openly acknowledging that this balancing

11 occurs, we are not creating new law.” Id. Consequently, we are unpersuaded by the

12 State’s argument that this Court should not apply Yates. Furthermore, because we

13 disagree that Yates marks a departure from previous case law, we also reject the

14 State’s argument that Yates should only be applied prospectively and should not be

15 applied to Defendant’s case. [State’s MIO 12]

16 III.   Application of Heinsen Does Not Require Reversal

17         The State contends that under Heinsen it was entitled to a restart of the six-

18 month period with Defendant’s arraignment in district court. The State contends that,

19 unlike Savedra and State v. Carreon, 2006-NMCA-145, ¶ 7, 140 N.M. 779, 149 P.3d


                                              5
 1 95, it did not rely on a policy of dismissing cases in magistrate court and refiling in

 2 district court when a defendant asserted his or her right to a jury trial by refusing to

 3 plead. [State’s MIO 8-9 (stating that the “prosecutor emphatically denied that the

 4 Third Judicial District was following the policy of avoiding duplicative trials”)]

 5 Instead, the State contends that it dismissed the charges in magistrate court and refiled

 6 in district court because it wished to avoid the risk of Defendant raising a motion to

 7 suppress at trial and the State being faced with a “poor and unappealable suppression

 8 ruling by a magistrate judge, who is not a trained lawyer.” [State’s MIO 9] The State

 9 concedes that no suppression motion had been made by Defendant at the time the

10 State dismissed the charges filed in magistrate court. [State’s MIO 14] However, the

11 State contends that pursuant to State v. Lozano, 2008-NMCA-082, 144 N.M. 250, 185

12 P.3d 1100, no suppression ruling need be filed to permit the restarting of the six-

13 month period pursuant to Heinsen. [State’s MIO 14]

14        In Lozano, this Court determined that the State was entitled to a new six-month

15 period in district court even though – as the State points out – a motion to suppress

16 had not yet been filed when the State dismissed the charges in magistrate court. Id.

17 ¶ 7. In making its determination, a panel of this Court decided that there was no six-

18 month rule violation where there was testimony that the dismissal was done as early

19 in the process as possible, and that “cases were not brought to district court to get


                                               6
 1 more favorable treatment and that it was only in some number of cases that the six-

 2 month rule was exceeded[.]” Id. ¶ 6. We held that this testimony “ma[de] all the

 3 difference,” because it “gave the district court a factual basis for finding that there

 4 was no intent to circumvent the six-month rule or other improper motive for the

 5 State’s actions.” Id. ¶ 6.

 6        In contrast, the present case presents a different procedural posture from

 7 Lozano. In Lozano, the defendant was appealing an adverse ruling denying his motion

 8 to dismiss, and this Court upheld that ruling, in part, on a factual determination

 9 regarding the intent of the prosecuting attorney. Here, the State asserts that it

10 emphatically argued to the district court that it had dismissed the charges in magistrate

11 court and refiled in district court to avoid an unfavorable ruling on a suppression

12 motion Defendant had not yet filed. [State’s MIO 9] The district court’s findings and

13 conclusions do not indicate that the Court accepted the State’s purported reason for

14 refiling. [RP 176-80] Instead, the only reason for refiling reflected in the district

15 court’s findings and conclusions is Defendant’s invocation of her right to a jury trial.

16 [RP 179, col 2] Thus, to the extent the State is arguing that the district court erred in

17 not accepting the good-faith basis the State presented to support its dismissal and

18 refiling of the charges against Defendant, this Court defers to the district court on

19 “questions of historical fact, such as the existence of the prosecutor’s good faith


                                               7
 1 intentions[.]” Lozano, 2008-NMCA-082, ¶ 2. We therefore conclude that the State’s

 2 reliance on Lozano is misplaced. Further, as there is substantial evidence to support

 3 the district court’s ruling, we conclude that there is no error. Id. ¶ 2 (stating that we

 4 review questions of historical fact under a deferential substantial evidence standard).

 5 IV.    The District Court Did Not Abuse Its Discretion in Denying the Rule
 6        Extension

 7        Finally, to the extent the State continues to argue that the district court abused

 8 its discretion in denying the State an extension of time for commencing trial pursuant

 9 to Rule 5-604, we disagree. The State’s arguments in support of good cause for an

10 extension of time made in its latest memorandum in opposition are similar to or the

11 same as the arguments the State made in its first memorandum in opposition prior to

12 this Court issuing its October 5, 2009, memorandum opinion. We therefore rely on

13 the reasons set out in this Court’s October 5, 2009, memorandum opinion, in

14 concluding that the district court did not abuse its discretion in denying the State’s

15 motion for an extension of time.

16 CONCLUSION

17        For the reasons stated above and in this Court’s memorandum opinion entered

18 on October 5, 2009, we affirm the district court’s denial of the State’s motion for an

19 extension and dismissal of the charges against Defendant.




                                               8
1      IT IS SO ORDERED.



2                                      _______________________________
3                                      JAMES J. WECHSLER, Judge

4 WE CONCUR:



5 __________________________________
6 MICHAEL D. BUSTAMANTE, Judge




7 __________________________________
8 LINDA M. VANZI, Judge




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