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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-35749

 5 ERNIE RAY ESTRADA,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina Argyres, 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   Santa Fe, NM
16   Matthew J. Edge, Appellate Defender
17   Albuquerque, NM

18 for Appellee

19                                 MEMORANDUM OPINION

20 KIEHNE, Judge.
                                                                                             


 1   {1}   The State appeals from the dismissal of this case with prejudice. The district

 2 court dismissed the case with prejudice under LR2-400 NMRA (Feb. 2, 2016) as a

 3 sanction for failure to timely arraign Defendant Ernie Estrada. The case had

 4 already been dismissed once without prejudice due to failure to comply with LR2-

 5 400 (2015). Concluding that the State failed to preserve the claims it now raises on

 6 appeal, we affirm.

 7 Background

 8   {2}   This case arises out of the district court’s interpretation of LR2-400 (Feb. 2,

 9 2016) (the local rule). The local rule is a special case management pilot rule that

10 was applicable to the Second Judicial District Court when this case was dismissed.

11 LR2-400(A) (Feb. 2, 2016). The version of the local rule in effect at the time of the

12 dismissal with prejudice states:

13         [t]he defendant shall be arraigned on the information or indictment
14         within ten (10) days after the date of the filing of the bind-over order,
15         indictment, or the date of the arrest, whichever is later, if the
16         defendant is not in custody and not later than seven (7) days if the
17         defendant is in custody.

18
19 LR2-400(C)(1) (Feb. 2, 2016). LR2-400(I)(1) states:

20      [i]f a party fails to comply with any provision of this rule or the time
21      limits imposed by a scheduling order entered under this rule, the court
22      shall impose sanctions as the court may deem appropriate in the
23      circumstances and taking into consideration the reasons for the failure
24      to comply.
25
26 LR2-400(I)(2) (Feb. 2, 2016) further provides:

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           [i]n considering the sanction to be applied the court shall not accept
           negligence or the usual press of business as sufficient excuse for
           failure to comply. If the case has been re-filed following an earlier
           dismissal, dismissal with prejudice is the presumptive outcome for a
           repeated failure to comply with this rule, subject to the provisions in
           Subparagraph (4) of this paragraph.

 1 Subparagraph (4), in turn, states:

 2      [t]he sanction of dismissal, with or without prejudice, shall not be
 3      imposed under the following circumstances: (a) the state proves by
 4      clear and convincing evidence that the defendant is a danger to the
 5      community; and (b) the failure to comply with this rule is caused by
 6      extraordinary circumstances beyond the control of the parties.
 7
 8 LR2-400(I)(4) (Feb. 2, 2016).

 9   {3}   The State originally indicted Defendant on the charges forming the basis of

10 this matter in 2015, and the district court dismissed the case without prejudice on

11 December 18, 2015 because the State failed to comply with LR2-400 (2015) by

12 failing to arrange for Defendant, who was then incarcerated, to be transported to

13 the district court for a pretrial conference. See LR2-400(I)(1) (2015) (mandating

14 sanctions for failure to comply with the rule).

15   {4}   The State re-indicted Defendant on February 25, 2016 for one count of

16 receiving or transferring a stolen vehicle, contrary to NMSA 1978, Section 30-

17 16D-4 (2009); possession of a controlled substance (methamphetamine)

18 (felony/non-narcotic drug), contrary to NMSA 1978, Section 30-31-23 (2011); one

19 count of concealing identity, contrary to NMSA 1978, Section 30-22-3 (1963); and

20 one count of improper use of evidence of registration, contrary to NMSA 1978,
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 1 Section 66-8-2 (1978). The district court filed an indictment presentation order the

 2 same day, and issued a bench warrant for Defendant’s arrest. Defendant was

 3 incarcerated at this time, and the indictment presentation order indicated that

 4 Defendant was “in jail.” On May 20, 2016, the district court issued a notice setting

 5 Defendant’s arraignment on June 13, 2016.

 6   {5}   At the arraignment, Defendant orally moved to dismiss the new indictment

 7 with prejudice because he had not been arraigned within seven days of the

 8 February 25, 2016 re-indictment, as required by LR2-400(C)(1) (Feb. 2, 2016) for

 9 defendants who are in custody. The State responded by saying that it did not know

10 whether Defendant was being held in custody on the charges at issue in this case,

11 or on separate charges related to his eleven to fourteen felony arrests and five

12 felony convictions. The district court interrupted the State and said that it did not

13 matter whether Defendant was being held on the present charges or on other

14 charges, apparently interpreting the local rule to mean that if a defendant is in

15 custody at all, he must be arraigned within seven days, regardless of whether he is

16 being held on the present charges or on charges in another case. After determining

17 the length of time that Defendant had been in custody when the case was initially

18 dismissed, and when the second indictment occurred, the district court asked the

19 State if it had anything else to add. The State responded, “[n]o, Your Honor.” The

20 district court noted that Defendant had been in custody since December 28, 2014,


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 1 and dismissed this case with prejudice based on the fact that he was not arraigned

 2 within seven days of the February 25, 2016 re-indictment. The State now appeals.

 3 Discussion

 4   {6}   The State argues that the order of dismissal must be reversed because (1) the

 5 district court misconstrued the local rule by imposing a duty on the prosecution to

 6 ensure that Defendant was arraigned in a timely manner, when the prosecution has

 7 no control over when an arraignment date is set; (2) the district court “rendered the

 8 district attorney’s exercise of charging authority a nullity and ran afoul of

 9 constitutional separation-of-powers principles” by scheduling an untimely

10 arraignment and then dismissing the case based on its own failure; (3) the district

11 court abused its discretion by sanctioning the State without first finding culpable

12 conduct, evaluating prejudice to Defendant, or considering lesser sanctions; and (4)

13 the district court erred in dismissing the case with prejudice on an oral motion

14 without advance notice to the State. Before we may address the merits of the

15 State’s claims, however, we must first decide whether the State preserved its

16 arguments for appellate review. See Rule 12-321(A) NMRA (“To preserve an issue

17 for review, it must appear that a ruling or decision by the trial court was fairly

18 invoked.”).

19   {7}   The preservation rule “serves many purposes: it provides the lower court an

20 opportunity to correct any mistake, it provides the opposing party a fair


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 1 opportunity to show why the court should rule in its favor, and it creates a record

 2 from which this Court may make informed decisions.” State v. Janzen, 2007-

 3 NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768 (internal quotation marks and

 4 citations omitted). “[I]n order to preserve its arguments for appeal, the [s]tate must

 5 have alerted the district court as to which theories it was relying on in support of its

 6 argument in order to allow the district court to make a ruling thereon.” Id.

 7 (citations omitted). “[T]he state, as any other party, is subject to the rule that it

 8 must make its contentions known in the trial court.” State v. Werner, 1992-NMCA-

 9 101, ¶ 2, 115 N.M. 131, 848 P.2d 1, rev’d on other grounds, 1994-NMSC-025, 117

10 N.M. 315, 871 P.2d 971 (citation omitted).

11   {8}   We may review a claim that has not been preserved when the matter

12 involves the general public interest, plain error, fundamental error, or the

13 fundamental rights of a party. See Rule 12-321(B)(2). Appellate courts apply the

14 doctrine of fundamental error “very guardedly, and only where some fundamental

15 right has been invaded, and never in aid of strictly legal, technical, or unsubstantial

16 claims[.]” State v. Cunningham, 2000-NMSC-009, ¶ 12, 128 N.M. 711, 998 P.2d

17 176 (internal quotation marks and citation omitted). “A fundamental right is that

18 which the Constitution explicitly or implicitly guarantees.” Richardson v. Carnegie

19 Library Rest., Inc., 1988-NMSC-084, ¶ 28, 107 N.M. 688, 763 P.2d 1153,

20 overruled on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031,


                                              6
      
                                                                                            


 1 ¶ 36, 125 N.M. 721, 965 P.2d 305 (citation omitted). A matter of general public

 2 interest also provides an exception to the preservation rule when addressing the

 3 issue “is likely to settle a question of law affecting the public at large or a great

 4 number of cases and litigants in the near future.” Azar v. Prudential Ins. Co. of

 5 Am., 2003-NMCA-062, ¶ 28, 133 N.M. 669, 68 P.3d 909.

 6   {9}    In State v. Alingog, our Supreme Court recognized that “the public’s interest

 7 in the orderly administration of justice affirms the notion that the prosecution

 8 should have one complete opportunity to convict those who have violated its

 9 laws.” 1994-NMSC-063, ¶ 10, 117 N.M. 756, 877 P.2d 562 (alteration, internal

10 quotation marks, and citation omitted). We acknowledge that the State may, in

11 some circumstances, be entitled to application of the fundamental error doctrine in

12 order to avoid a miscarriage of justice, but note that the State does not have the

13 same fundamental rights that an individual does. Id. However, in Alingog, our

14 Supreme Court “did not expressly hold that the doctrine of fundamental error [is]

15 available to the State.” State v. Tijerino, 2004-NMCA-039, ¶ 21, 135 N.M. 313, 87

16 P.3d 1095 (affirming dismissal of indictments where the state failed to preserve

17 argument that conduct forming the basis of the City of Albuquerque’s civil

18 forfeiture action and the indictments was not unitary).

19   {10}   We hold that the State did not “fairly invoke” a ruling from the district court

20 on the arguments it now raises on appeal. In response to Defendant’s motion, the


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 1 State merely argued that it did not know whether Defendant was in custody at the

 2 time of the February 25, 2016 re-indictment on the charges in this case or on one of

 3 his other felony arrests or convictions. This was not sufficient to preserve the

 4 arguments it now raises on appeal. The State did not inform the district court of its

 5 belief that the local rule imposed no obligation on it to ensure that Defendant was

 6 timely arraigned, and did not offer any argument or present any evidence in

 7 support of that position. The State did not argue that it was solely the district

 8 court’s obligation to ensure that Defendant was timely arraigned. The State did not

 9 argue that the district court should consider whether the State was at fault, or

10 whether Defendant was prejudiced by the untimely arraignment. The State did not

11 object to Defendant’s oral motion, or argue that it was entitled to advance notice of

12 the motion. The State did not alert the district court to its belief that the dismissal

13 violated constitutional separation of powers principles.

14   {11}   We note that the State had the opportunity to preserve its objections for

15 appellate review when the district court asked the State if there was “anything

16 else . . . ” before ruling. The State responded, “[n]o, Your Honor,” without doing

17 anything to make a record that it objected to the dismissal, such as asking for a

18 continuance or asking for an opportunity to brief the matter. Even after the

19 dismissal, the State did not file a motion to reconsider. See State v. Gonzales,

20 1990-NMCA-040, ¶¶ 41-46, 110 N.M. 218, 794 P.2d 361 (recognizing that


                                              8
      
                                                                                           


 1 motions to reconsider are appropriate in criminal cases, and may lead to more

 2 expedient disposition of criminal cases and alleviate the burden on appellate

 3 courts); see also State v. Suskiewich, 2014-NMSC-040, ¶ 12, 339 P.3d 614

 4 (“Motions to reconsider are a traditional and virtually unquestioned practice and

 5 serve judicial economy by permitting lower courts to correct possible errors and

 6 thus avoid time-consuming and potentially unnecessary appeals.” (internal

 7 quotation marks and citation omitted)).

 8   {12}   The State argues that the prosecutor had no opportunity to preserve error,

 9 because when the district court asked the prosecutor if she had “[a]nything else[,]”

10 the district court had already interrupted the State, and had already made clear its

11 intention to dismiss the case, and therefore its question “was a perfunctory

12 invitation for comment on a dismissal ruling that it had already made clear would

13 be inescapable[,]” and that “[t]hese circumstances therefore provide additional

14 reasons why the preservation rule does not preclude review.” We reject the notion

15 that the district court prevented the State from objecting to its ruling or from

16 making a record. Nothing in the record supports a conclusion that the district court

17 would not have listened to any objections the State may have made, or denied the

18 State an opportunity to make a record. Although the district court may have

19 interrupted the prosecutor at one point, it still offered the prosecutor an opportunity

20 to make her case a few moments later. And even if the prosecutor correctly


                                              9
      
                                                                                               


 1 perceived that the district court was likely to grant Defendant’s motion, that did not

 2 lessen her obligation to timely assert any objections the State may have had to the

 3 dismissal of charges.

 4   {13}   The State also argues that we should review its present claims because the

 5 district court’s order presents a matter of general public interest, affects the State’s

 6 fundamental rights, and resulted in fundamental error. The State argues that the

 7 dismissal with prejudice “created a windfall for [Defendant], unfairly punished the

 8 public, and interfered with the State’s fundamental right to prosecute.” In support

 9 of this argument, the State cites Alingog for the proposition that the public has an

10 interest in “the orderly administration of justice” which requires that “the

11 prosecution should have one complete opportunity to convict those who have

12 violated its laws.” 1994-NMSC-063, ¶ 10

13   {14}   In this case, the State had one complete opportunity to attempt to convict

14 Defendant, but violated LR2-400 (2015), which resulted in a dismissal without

15 prejudice. The State has not argued that this first dismissal was improper. The State

16 then had another opportunity to attempt to convict Defendant, but failed to give the

17 district court any reason why the case should not be dismissed on the basis that

18 Defendant was not arraigned within the time period set forth by the local rule. The

19 facts of this case do not demonstrate “a miscarriage of justice . . . notwithstanding

20 failure [of the State] to preserve error.” Alingog, 1994-NMSC-063, ¶ 11.


                                              10
      
                                                                                              


 1 Moreover, New Mexico case law records multiple instances in which our appellate

 2 courts have declined to review the State’s claims due to lack of preservation. See

 3 Janzen, 2007-NMCA-134, ¶¶ 11, 14-18 (declining to review the state’s arguments

 4 that the district court improperly granted a motion to suppress evidence because

 5 the arguments were not properly preserved); see also Alingog, 1994-NMSC-063, ¶

 6 8 (declining to review State’s argument that the defendant’s double jeopardy rights

 7 were not violated because the case was a single prosecution as opposed to a

 8 successive prosecution, and the state received substantial justice); Tijerino, 2004-

 9 NMCA-039, ¶ 22 (affirming dismissal of indictments where the state failed to

10 preserve arguments that criminal prosecution following civil forfeiture action did

11 not violate double jeopardy). Additionally, if we were to apply the general public

12 interest exception to the waiver rule here simply because the public has a general

13 interest in the orderly administration of justice, the exception would swallow the

14 rule because it would excuse the preservation requirement in all cases where

15 district courts dismiss criminal charges.

16   {15}   As for the State’s separation of powers argument, Defendant concedes that

17 to the extent the State may be bringing a facial challenge to the local rule, the State

18 did not need to preserve its separation of powers claim. Defendant further explains

19 why he believes that such a facial challenge lacks merit. But even assuming that

20 Defendant is correct that the State was not required to preserve a facial challenge—


                                               11
      
                                                                                         


 1 a question we do not decide—the State concedes in its reply brief that it is not

 2 bringing a facial challenge to the local rule. Rather, the State appears to be making

 3 an as-applied challenge to the statute, by arguing that the delay in arraigning

 4 Defendant was attributable to the district court, and that applying the local rule

 5 against the State in these particular circumstances is unconstitutional. The State

 6 does not argue that it had no obligation to preserve its as-applied challenge, or that

 7 a special exception applies to the preservation requirements for separation of

 8 powers arguments, and rightly so. See Azar, 2003-NMCA-062, ¶ 85 (declining to

 9 review separation of powers argument, in part because the appellant failed to

10 explain how the matter was preserved). Rather, the State relies on the fundamental

11 error, fundamental rights or substantial public interest exception for all claims

12 raised in its brief. For the reasons set forth above, we decline to review the State’s

13 separation-of-powers argument.

14   {16}   Finally, the State’s failure to object precluded development of a factual

15 record on whether it can or should be held responsible for the failure to timely

16 arraign Defendant, or whether that obligation should fall solely on the district

17 courts. While the State understandably appears to argue that it has no obligation to

18 ensure timely arraignment as a matter of law, it is conceivable, at the very least,

19 that some circumstances may exist in which the State does have such an obligation.

20 The State’s failure to object meant that no record was developed, which


                                             12
      
                                                                                              


 1 undermines one of the purposes of the preservation rule, which is “to create a

 2 record sufficient to allow this Court to make an informed decision regarding the

 3 contested issue.” State v. Allen, 2014-NMCA-047, ¶ 9, 323 P.3d 925 (internal

 4 quotation marks and citation omitted). This consideration counsels against

 5 reviewing the State’s unpreserved claims under any exception to the preservation

 6 rule.

 7 Conclusion

 8   {17}   For the foregoing reasons, we affirm the district court’s order dismissing the

 9 indictment with prejudice.

10   {18}   IT IS SO ORDERED.


11                                          _________________________________
12                                          EMIL J. KIEHNE, Judge

13 WE CONCUR:


14 _________________________________
15 J. MILES HANISEE, Judge


16 _________________________________
17 JULIE J. VARGAS, Judge




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