     This memorandum opinion was not selected for publication in the New Mexico Appellate
     Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished
     memorandum opinions. Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court
     of Appeals and does not include the filing date.

      

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                  NO. A-1-CA-34411

 5 CHARLES STOKES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Judith K. Nakamura, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 C. David Henderson, Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 HANISEE, Judge.

20   {1}    Defendant Charles Stokes appeals the district court’s denial of his motion to

21 withdraw his plea of no contest to one count of conspiracy to commit aggravated
                                                                                               


 1 assault with a deadly weapon and one count of conspiracy to commit aggravated

 2 assault resulting in great bodily harm. Defendant’s untimely appeal deprives this

 3 Court of jurisdiction, therefore we dismiss.

 4 I.      BACKGROUND

 5   {2}   Pursuant to a no contest plea agreement, Defendant was convicted of one

 6 count of conspiracy to commit aggravated battery with a deadly weapon and one

 7 count of conspiracy to commit aggravated battery resulting in great bodily harm.

 8 The district court accepted Defendant’s plea and entered a judgment and sentence,

 9 the latter of which was fully suspended, and placed Defendant on supervised

10 probation for three years. Pursuant to the plea agreement, the State agreed not to

11 pursue habitual offender enhancements, but reserved the option to pursue two

12 separate and nonconsecutive four-year habitual offender enhancements if

13 Defendant violated his probation.

14   {3}   At the April 8, 2014, plea hearing, Defendant was assisted by counsel and

15 expressed his understanding of the plea agreement that he had reached with the

16 State, as well as the State’s reservation of its right to later pursue the same habitual

17 offender enhancements if he violated the terms of his probation. On April 17,

18 2014, the district court entered the judgment and sentence. Six days later,

19 Defendant was arrested for embezzling a motor vehicle and for a status violation

20 occasioned by his having traveled outside of his county of supervision without his


                                              2
      
                                                                                            


 1 probation officer’s permission. At Defendant’s ensuing probation revocation

 2 hearing, at which he was again represented by counsel, Defendant agreed to admit

 3 to the status violation in exchange for the State’s agreement to pursue only one of

 4 the two four-year habitual offender enhancements available. Pursuant to this

 5 agreement, on May 20, 2014, the district court unsatisfactorily discharged

 6 Defendant from probation and sentenced him to serve four years incarceration.

 7   {4}   Two weeks later, on June 2, 2014, Defendant moved pro se to withdraw his

 8 original April 8, 2014, no contest plea. He did so based upon what he contended to

 9 be ineffective assistance of counsel. The district court denied Defendant’s motion

10 without a hearing, making several factual findings derived from the district court’s

11 observation of the initial plea proceedings that reflected Defendant’s understanding

12 of, and choice to enter into, the plea agreement. Over five months passed before

13 Defendant, on November 21, 2014, filed his informal docketing statement and

14 notice of appeal.

15 II.     DISCUSSION

16   {5}   Defendant does not contest that he entered into an unconditional, no contest

17 plea agreement in which he did not reserve the right to appeal or that his appeal

18 was not timely filed. Rather, he asserts that his plea and his untimely appeal were a

19 product of ineffective assistance of counsel. He additionally argues that the district

20 court deprived him of his right to counsel when it summarily denied his pro se


                                             3
      
                                                                                          


 1 motion to withdraw his plea without counsel present and without seeking a waiver

 2 of counsel from Defendant. Finally, Defendant argues that his underlying

 3 convictions violate double jeopardy.

 4   {6}   As a threshold matter, timely filing of any appeal is a mandatory

 5 precondition to this Court’s jurisdiction. State v. Lope, 2015-NMCA-011, ¶ 8, 343

 6 P.3d 186. A criminal defendant must file a notice of appeal from the district court’s

 7 final judgment within thirty days after the district court enters such judgment.

 8 NMSA 1978, § 39-3-3(A)(1) (1972); Rule 12-201(A)(1)(b). However, the full time

 9 required to file a notice of appeal commences upon the filing of an order expressly

10 disposing of the last of any “motion that has the potential to affect the finality of

11 the underlying judgment or sentence[.]” Rule 12-201(D)(1). Although there is a

12 conclusive presumption of ineffective assistance of counsel that permits untimely

13 appeals by represented criminal defendants convicted at trial, this presumption is

14 inapplicable to pleas of guilty or no contest. State v. Peppers, 1990-NMCA-057,

15 ¶¶ 19-21, 110 N.M. 393, 796 P.2d 614. Moreover, a defendant who chooses to

16 proceed on appeal without assistance of counsel “is required to comply with all

17 applicable rules of appellate procedure[.]” State v. Lewis, 1986-NMCA-038, ¶ 10,

18 104 N.M. 218, 719 P.2d 445. The extent of this Court’s appellate jurisdiction is

19 reviewed de novo. State v. Allen, 2014-NMCA-111, ¶ 7, 336 P.3d 1007.




                                             4
      
                                                                                            


 1   {7}   After carefully considering the parties’ arguments, as well as the underlying

 2 record and procedural circumstances of this case, we conclude that Defendant’s

 3 appeal is untimely. Initially, we observe that Defendant’s June 2, 2014 pro se

 4 motion to withdraw his plea agreement, even had he remained represented by

 5 counsel, was itself not timely under NMSA 1978, Section 39-1-1 (1917) (requiring

 6 a motion to withdraw a plea to be filed within thirty days of the judgment).

 7 Nonetheless, motions to withdraw a plea filed in excess of thirty days from a given

 8 judgment may be treated as petitions for writs of habeas corpus under Rule 5-802

 9 NMRA. Peppers, 1990-NMCA-057, ¶ 16. The denial of such a petition is not

10 directly appealable to this Court; rather, such may serve as the basis for seeking

11 discretionary review on a writ of certiorari to our Supreme Court. Id.

12   {8}   More critically and coupled with what the record reveals to be Defendant’s

13 failure to timely move to withdraw his plea in district court or to seek review of the

14 denial of what can be characterized as a writ of habeas corpus directly by our

15 Supreme Court, Defendant’s direct appeal to this Court was filed in excess of five

16 months beyond the date on which it would have been timely. Recognizing this and

17 relying on State v. Duran, 1986-NMCA-125, ¶ 10, 105 N.M. 231, 731 P.2d 374

18 (establishing a conclusive presumption of ineffective assistance of counsel when a

19 notice of appeal from a conviction is untimely filed by an attorney on behalf of a

20 represented defendant), Defendant asserts that his appeal should be considered


                                             5
      
                                                                                           


 1 timely. In Duran, we treated the defendant’s untimely appeal as if it were timely

 2 and proceeded to address the merits of the defendant’s arguments. Id. ¶ 6. Here,

 3 Defendant asks us to hold that the presumption of ineffective assistance of counsel

 4 extends to self-filed untimely appeals that follow a plea of no contest that did not

 5 preserve a right to appeal.

 6   {9}    In this circumstance, two cases instruct otherwise. First, and most critically,

 7 the Duran presumption is only available to represented defendants. See State v.

 8 Upchurch, 2006-NMCA-076, ¶ 4, 139 N.M. 739, 137 P.3d 679 (noting the Duran

 9 presumption’s applicability to “represented criminal defendants”); Lewis, 1986-

10 NMCA-038, ¶ 10 (“A defendant who elects to assert his right of self-representation

11 in a criminal appeal is required to comply with all applicable rules of appellate

12 procedure, and he may not use his right to self-representation to cause delay or

13 thwart the orderly and fair administration of justice.”); see also Bruce v. Lester,

14 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84 (“[A d]efendant[] who has

15 chosen to represent himself[] must comply with the rules and orders of the

16 court[.]”). Defendant filed an untimely notice of appeal and informal docketing

17 statement pro se, thereby precluding application of the Duran presumption.

18   {10}   Second, this Court further limited the reach of the Duran presumption in

19 Peppers, 1990-NMCA-057, ¶ 21, when we refused to establish Duran as

20 applicable to criminal appeals in which a plea of guilty or no contest had been


                                               6
      
                                                                                        


 1 entered. And although Peppers nonetheless addressed the merits of the defendant’s

 2 appeal due to “an unusual fact pattern” that included the state not disputing the

 3 defendant’s assertion that he received ineffective assistance of counsel, id. ¶¶ 22-

 4 23, here Defendant pleaded no contest to both counts of conspiracy to commit

 5 aggravated battery and filed a pro se motion to withdraw his guilty plea in district

 6 court that was untimely under Section 39-1-1, one that is alternatively

 7 characterizable as a petition for a writ of habeas corpus under Rule 5-802, and over

 8 which this Court lacks jurisdiction on appeal.

 9   {11}   Accordingly, applying our precedent to the procedural circumstances of this

10 case, we conclude that the Duran presumption is unavailable to Defendant on not

11 one, but two separate bases. We reject Defendant’s contention that his appeal

12 should be considered timely, and because that leaves us with no basis to conclude

13 that we have jurisdiction to proceed on the merits of Defendant’s appeal, we

14 dismiss.

15   {12}   In dismissing, we make the following additional observations. First,

16 Defendant’s appeal was not merely untimely as to the district court’s second

17 judgment revoking his probation and imposing the four-year period of

18 incarceration; Defendant did not appeal from the initial judgment that followed his

19 no contest pleas or directly from the order revoking his probation. Instead, he

20 appeals only from the district court’s denial of his motion to withdraw his guilty


                                             7
      
                                                                                            


 1 pleas. It appears to this Court that even were we to presume ineffectiveness in the

 2 tardy filing of Defendant’s appeal, that presumption would relate only to issues

 3 attendant to the denial of Defendant’s motion to withdraw his guilty plea.

 4   {13}   Second, Defendant presents no argument that exceptional circumstances

 5 beyond his control exist that might excuse his untimely appeal. See Trujillo v.

 6 Serrano, 1994-NMSC-024, ¶ 15, 117 N.M. 273, 871 P.2d 369 (permitting our

 7 acceptance of tardy appeals in certain exceptional circumstances). As well, our

 8 review of the record reveals no unusual circumstances that bear the capacity to

 9 justify application of our discretion to review the merits of Defendant’s appeal. See

10 Peppers, 1990-NMCA-057, ¶ 22 (exercising the court’s discretion to review the

11 merits of an untimely appeal based upon unique facts). Third, we recognize that

12 under Peppers Defendant’s motion to withdraw his plea might best be construed as

13 a petition for a writ of habeas corpus pursuant to Rule 5-802. See Peppers, 1990-

14 NMCA-057, ¶ 16. Although Defendant’s motion was not denominated as a petition

15 for a writ of habeas corpus, we are not governed by the nomenclature of a pleading

16 so long as the substance of the pleading conforms with the applicable rule. See

17 Phelps Dodge Corp. v. Guerra, ¶ 18, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819.

18 As stated, the denial of such petitions are not reviewed by this Court. Lastly,

19 Defendant presents no argument, and we find nothing in the record to suggest, that

20 exceptional circumstances beyond his control exist that might excuse his untimely


                                             8
      
                                                                                           


 1 appeal. See State v. Vigil, 2014-NMCA-096, ¶ 7, 336 P.3d 380 (“[W]e will excuse

 2 an untimely appeal only in exceptional circumstances beyond the control of the

 3 parties, which we have determined would include errors on the part of the court.”

 4 (internal quotation marks and citation omitted)); Peppers, 1990-NMCA-057, ¶ 22

 5 (holding that this Court may review the merits of an untimely appeal when a

 6 defendant fails to timely appeal his case due to the district court’s failure to appoint

 7 a public defender during the period of time that was critical to the defendant’s

 8 assertion of his appellate rights).

 9   {14}   In dismissing, we decline to reach Defendant’s claims concerning double

10 jeopardy and the manner in which the district court denied his untimely pro se

11 motion to withdraw his plea agreement based upon his assertion of ineffective

12 assistance of counsel. See Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806

13 (“It is an enduring principle of constitutional jurisprudence that courts will avoid

14 deciding constitutional questions unless required to do so. We have repeatedly

15 declined to decide constitutional questions unless necessary to the disposition of

16 the case.” (internal quotation marks and citation omitted)); see also State v. Pratt,

17 2005-NMCA-099, ¶ 1, 138 N.M. 161, 117 P.3d 967 (explaining that, when one

18 issue is dispositive, this Court need not reach the merits of the other issues). Our

19 ruling today, however, does not deprive Defendant of his opportunity to litigate his

20 ineffective assistance of counsel claim in habeas corpus proceedings. See State v.


                                              9
      
                                                                                          


 1 Barraza, 2011-NMCA-111, ¶ 10, 267 P.3d 815 (“In New Mexico, a defendant may

 2 seek habeas corpus relief under Rule 5-802 for a claim of ineffective assistance of

 3 trial counsel.”).

 4 III.     CONCLUSION

 5   {15}   We dismiss.

 6                                       _________________________________
 7                                       J. MILES HANISEE, Judge

 8 WE CONCUR:



 9 _________________________________
10 LINDA M. VANZI, Chief Judge



11 _________________________________
12 M. MONICA ZAMORA, Judge




                                           10
      
