       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: May 21, 2014

Docket No. 32,235

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

BRIAN M. DORAIS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District Judge

Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM

for Appellee

Dan Cron Law Firm, P.C.
Kitren Fischer
Dan Cron
Santa Fe, NM

for Appellant

                                        OPINION

BUSTAMANTE, Judge.

{1}      Brian Dorais (Defendant) was arrested in 2006 for driving under the influence of
intoxicating liquor and/or drugs. Convicted after a jury trial in magistrate court, he timely
appealed to the district court. After a trial de novo, he was convicted again and, in May
2008, sentenced to ninety days of incarceration and five years of probation. Defendant did
not file a notice of appeal from the 2008 judgment. Four years later, Defendant was arrested
again and the State sought to revoke his probation. After a hearing, however, the parties

                                             1
agreed that Defendant should have originally been sentenced to only three years of
probation. As a result, the State dismissed the motion for revocation of probation and the
district court entered a “Stipulated Corrected Sentence” reflecting a probation period of three
years. Defendant then filed a notice of appeal from the Stipulated Corrected Sentence.
Defendant now argues that his constitutional right to confront witnesses was violated in his
district court trial. He also argues that he was denied his right to a speedy trial and that Rule
6-506(B) NMRA—the “six month rule”—was violated.

{2}     The State makes a number of arguments to the effect that the district court lacked
jurisdiction to enter the Stipulated Corrected Sentence and that this Court lacks jurisdiction
to hear this appeal. We do not address these arguments because we conclude that the Duran
presumption permits us to review Defendant’s claims of error in the lower courts. We affirm
the district court’s denial of Defendant’s motions to dismiss on speedy trial and six month
rule grounds. But, concluding that Defendant’s confrontation rights were violated, we
reverse and remand for a new trial.

I.      DISCUSSION

A.      This Court has Jurisdiction to Hear Defendant’s Appeal

{3}     Before we address Defendant’s challenges to his conviction, we address the State’s
contention that this Court lacks jurisdiction to hear the appeal. The State’s argument is
based on the somewhat convoluted procedural history behind the appeal. Hence, we first
outline that history.

{4}       The first trial was held in magistrate court in August 2007. The second trial was held
four months later in district court. At the sentencing hearing, the district court orally stated
that it would sentence Defendant to thirty days in jail and three years of probation, but when
the judgment and sentence was filed a month later, it reflected a sentence of ninety days in
jail and five years of probation. No notice of appeal or affidavit of waiver of appeal was
filed at that point. See Rule 5-702(B) NMRA (“defense counsel shall . . . file with the court
. . . (1) a notice of appeal . . .; or (2) an affidavit . . . signed and sworn to by defendant and
witnessed by counsel stating defendant’s decision not to appeal”).

{5}     Almost four years later, Defendant was arrested for driving while intoxicated and the
State filed a motion to revoke probation. Defendant denied the probation violation and
argued that the judgment and sentence did not reflect the district court’s oral sentence of
three years of probation. The district court scheduled a hearing for April 30, 2012. On the
date of the hearing, however, the State dismissed the probation violation, stating that “[t]he
probationary period for this matter has expired, and the act for which the State filed the
motion to revoke probation . . . was committed subsequent to the expiration of probation.”
The same day, the district court issued an order of release and a “Stipulated Corrected
Sentence.” The Stipulated Corrected Sentence was substantially the same as the original
judgment and sentence, except that the term of incarceration was thirty days and the period

                                                2
of probation was three years, consistent with the district court’s oral sentence four years
earlier. The district court also remanded the case to the magistrate court “with instructions
to close the file on this matter[,]” stating that “[t]he probationary time has expired on the
sentence passed by this [c]ourt in this matter.” Defendant filed a notice of appeal to the
Court of Appeals within thirty days of the entry of the Stipulated Corrected Sentence.

{6}      The State focuses on the fact that Defendant appealed from the Stipulated Corrected
Sentence entered four years after the original judgment and argues that this Court lacks
jurisdiction over the appeal for four reasons. First, the district court itself lacked jurisdiction
to issue the Stipulated Corrected Sentence under the rules of criminal procedure and
therefore that action was void. See Rule 5-801(A), (B) NMRA (stating the rules for
correction of an illegal sentence and modification of a sentence); State v. Lucero, 2001-
NMSC-024, ¶ 7, 130 N.M. 676, 30 P.3d 365 (stating that the “time requirement for the filing
of a motion to modify a sentence is jurisdictional”). Second, appeal of the Stipulated
Corrected Sentence is moot “because Defendant has fully served his term of incarceration
and probation regardless of [which] judgment and sentence . . . controls.” Third, the
Stipulated Corrected Sentence did not render Defendant an aggrieved party because
Defendant was not harmed or prejudiced by the corrected sentence. Fourth, neither the
district court’s exercise of personal jurisdiction over Defendant nor any error in the district
court renders an appeal from the original judgment and sentence timely. These arguments
depend, for the most part, on analysis of the rules governing modification of sentences under
Rule 5-801 as well as New Mexico case law evincing an interest in finality and clarity of
judgments. See, e.g., Montoya v. Ulibarri, 2007-NMSC-035, ¶ 29, 142 N.M. 89, 163 P.3d
476 (recognizing the public interest in finality of judgments); State v. Soutar, 2012-NMCA-
024, ¶ 13, 272 P.3d 154 (stating that an oral sentence is not a final order); Rule 5-801(A),
(B). We need not enter the thicket presented by these arguments, however, because we
conclude that the presumption of ineffective assistance of counsel set out in State v. Duran
permits this Court to address the merits of Defendant’s appeal. 1986-NMCA-125, 105 N.M.
231, 731 P.2d 374.

{7}     In Duran, this Court created a conclusive presumption of ineffective assistance of
counsel “where defense counsel fails to timely file either a notice of appeal or an affidavit
of waiver of appeal [as] required by [Rule 5-702(B)].” Duran, 1986-NMCA-125, ¶ 3. When
the presumption applies, this Court may hear an appeal on the merits notwithstanding the
untimely filing of the notice of appeal. Id. ¶ 6. Since Duran, the presumption has been
applied “routinely” to reach the merits of untimely appeals. State v. Vigil, 2014-NMCA-__,
___ P.3d ___, ¶ 7 (No. 32,166, Mar. 12, 2014). As noted, Defendant here filed neither an
appeal nor an affidavit of waiver after the original judgment and sentence was entered. Nor
did Defendant’s counsel file an affidavit stating that Defendant had been advised of his right
to appeal and refused to file a notice of appeal or affidavit of waiver, which would have
prevented a conclusion that the attorney was ineffective. See Duran, 1986-NMCA-125, ¶
4 (stating that an attorney may file an affidavit to avoid being “faced with a ‘Hobson’s
choice’ of filing a frivolous appeal or facing the consequences of being labeled as
‘ineffective’ ”). Therefore, the essential conditions for applying the Duran presumption

                                                3
have been met. But does the presumption still apply after four years of inaction by
Defendant? We conclude that it does for three reasons.

{8}      The first and foremost reason that the passage of time alone does not prevent
application of the Duran presumption is based on the fundamental premise of that case: that
the rights implicated by the presumption—the right to appeal and the right to effective
assistance of counsel—protect a defendant’s fundamental liberty interest in a fair trial. See
State v. Leon, 2013-NMCA-011, ¶ 17, 292 P.3d 493 (stating that the “guiding factor” behind
cases extending the Duran presumption is the presence of a “fundamental liberty interest,
in combination with circumstances in which a defendant has not waived his right to appeal”).
This interest is no less significant after the deadline for appeal than it was before the
deadline, nor does it diminish over time. Cf. State v. Romero, 1966-NMSC-126, ¶ 24, 76
N.M. 449, 415 P.2d 837 (“It is only logical that a void conviction cannot be vitalized by the
lapse of time.” (discussing timing requirements for Rule 1-060(B) NMRA motions for relief
from judgment)).

{9}     Second, in adopting the conclusive presumption, the Duran court declined the state’s
invitation to set an “outside time limit” on application of the presumption. 1986-NMCA-
125, ¶¶ 5, 6 (choosing not to adopt an outside time limit on the presumption pursuant to the
State’s argument). In addition, the court noted that “there have been cases reinstated on our
docket by the federal courts or by our [S]upreme [C]ourt because defendants have, in factual
hearings held years after the appeal should have been taken, established their entitlement to
delayed appeals. These cases sometimes take years to reach us.” Id. ¶ 5. Thus, the Duran
holding—which has been “firmly rooted in this State’s jurisprudence” for almost thirty
years—itself contemplated the possibility of encompassing within the presumption appeals
filed years beyond the deadline. State v. Cannon, 2014-NMCA-___, ¶ 9, ___ P.3d ___ (No.
32,127, Mar. 13, 2014).

{10} Third, concluding that the Duran presumption does not apply simply based on the
number of years that have passed is akin to concluding that a defendant waived the right to
appeal through inaction. This conclusion would be inconsistent with the principles
governing waiver of constitutional rights, which are well developed in our case law.
Although “[a] defendant may waive fundamental constitutional rights[,]” State v. O’Neal,
2009-NMCA-020, ¶¶ 11-12, 145 N.M. 604, 203 P.3d 135, any waiver of those rights must
be done knowingly, intelligently, and voluntarily. See State v. Padilla, 2002-NMSC-016,
¶ 18, 132 N.M. 247, 46 P.3d 1247 (“ ‘A waiver is ordinarily an intentional relinquishment
or abandonment of a known right or privilege’ which must be made in a knowing and
voluntary manner.’ ” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))). There must
be evidence in the record demonstrating that a waiver of rights was voluntary and intelligent:
“[A] knowing and voluntary waiver cannot be inferred from a silent record.” Id. ¶ 19. And,
it is the State’s burden to demonstrate that the right was waived. See State v. Boeglin, 1983-
NMCA-075, ¶ 24, 100 N.M. 127, 666 P.2d 1274 (“[T]he burden of proof to establish a
waiver of a constitutional right rests upon the [s]tate.”). Finally, “in the absence of a clear
showing of waiver, this Court on appeal will indulge in every reasonable presumption

                                              4
against the waiver of a fundamental constitutional right, and will not presume acquiescence
in its loss.” State v. Rodriguez, 2009-NMCA-090, ¶ 20, 146 N.M. 824, 215 P.3d 762
(internal quotation marks and citation omitted); cf. State v. Mascarenas, 1972-NMCA-106,
¶ 15, 84 N.M. 153, 500 P.2d 438 (stating that “[t]he concept of waiver by inaction has been
criticized”).

{11} It follows from these principles that waiver of the right to appeal cannot be inferred
from mere inaction. Rather, there must be evidence that a defendant knew of his right to
appeal and voluntarily gave it up. This concept is embodied in Rule 5-702(B)(2), which
requires an affirmative statement of waiver in the absence of a notice of appeal.
Furthermore, as recognized in Duran, should a defendant “neither authorize[] an appeal nor
sign[] an affidavit of waiver[,]” an attorney may file his or her own affidavit to that effect
to avoid being found ineffective, thus preventing application of the Duran presumption.
1986-NMCA-125, ¶ 4. Hence, an affidavit by an attorney stating that the defendant took no
action after being advised of the right to appeal functions as evidence of that defendant’s
waiver of that right.

{12} Applying these principles here, it is clear that the State has not met its burden. In
fact, the State does not explicitly address whether Defendant knowingly waived his right to
appeal.1 Instead, in the context of a different argument, it points to the fact that Defendant’s
counsel requested a recording of the sentencing hearing on the day that the judgment and
sentence was entered in 2008 as evidence that Defendant was aware of the discrepancy
between the oral sentence and original judgment and sentence shortly after the judgment was
entered. To the extent we construe this assertion as a request to infer that Defendant
knowingly failed to file an appeal, we conclude that the inference is too speculative to
overcome the strong presumption against waiver of the right to appeal. See Rodriguez,
2009-NMCA-090, ¶ 20.

{13}   We also note that the district court did not advise Defendant of his right to appeal at


       1
         The State’s only argument against the application of Duran is based on its assertion
that the “presumption of ineffective assistance of counsel does not arise on second appeals
that are not guaranteed as of right.” The State’s position is contrary to the holding of
Cannon, in which this Court recently considered whether the presumption applied to
untimely appeals from a de novo trial in district court after appeal of a magistrate court
decision. 2014-NMCA-___, ¶ 1. Concluding that “a de novo trial in district court is subject
to the same procedural rule that the Duran presumption was premised on—namely, Rule 5-
702(B)[,]” the Court held that “it follows that the Duran presumption would apply to
untimely notices of appeal from a de novo trial in district court.” Cannon, 2014-NMCA-
___, ¶ 5; cf. State v. Carroll, 2013-NMCA-___, ¶ 9 (No. 32,909, Oct. 21, 2013) (stating that
“[NMSA 1978,] Section 39-3-3(A)(1) [(1972)] is intended to include a defendant’s right to
appeal a district court’s review of an on-record metropolitan court decision.”). Thus Cannon
is conclusive of this argument.

                                               5
the sentencing hearing. See Rule 5-702(A) (“At the time of imposing . . . sentence in a case
which has gone to trial on a plea of not guilty, the court shall advise the defendant of his
right to appeal.”). Although whether the district court advised a defendant of his or her right
to appeal is not dispositive as to waiver, it is a factor that may be considered in determining
whether the right was knowingly waived. See Padilla, 2002-NMSC-016, ¶¶ 18, 20 (stating,
“To determine the validity of a waiver, a reviewing court must consider the particular facts
and circumstances surrounding that case, including the background, experience, and conduct
of the accused.” (internal quotation marks and citation omitted) and discussing the district
court’s failure to advise the defendant of his right to appeal in its analysis of whether the
defendant knowingly waived that right). Here, in part because the advice was lacking, there
is no evidence that Defendant was aware of his right to appeal the district court’s judgment
and sentence to this Court. There being no affidavit of waiver as required by Rule 5-702(B),
nor an affidavit by Defendant’s counsel, nor other evidence that Defendant knowingly and
voluntarily waived his right to appeal, we conclude that the passage of four years after entry
of the original judgment and sentence does not constitute a waiver of Defendant’s right to
appeal. Having concluded that the Duran presumption permits us to do so, we next address
the merits of Defendant’s appeal.

B.     The District Court did not Err in Denying Defendant’s Motions to Dismiss on
       Speedy Trial and Six Month Rule Grounds

{14} Defendant argues that his conviction should be reversed because his right to be tried
in accordance with the six month rule and his right to a speedy trial were violated. See Rule
6-506(B)(1) (stating that “[t]he trial of a criminal citation or complaint shall be commenced
within one hundred eighty-two (182) days after . . . the date of arraignment or the filing of
a waiver of arraignment of the defendant[,]” or other triggering events); U.S. Const. amend.
VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial[.]”); N.M. Const. art. II, § 14 (same). We begin by outlining the events leading to
Defendant’s trial, then address the asserted six month rule and speedy trial violations in turn.

{15} Defendant was charged by criminal complaint on June 5, 2006. He pled not guilty
in magistrate court on June 29, 2006. The six month rule therefore required that trial occur
no later than December 28, 2006. See Rule 6-506(B). A trial was scheduled for November
9, 2006, but Defendant appeared late and the magistrate court vacated the setting. Because
Defendant was late, the magistrate court had him arrested for failure to appear, although the
failure to appear charge was later dismissed by the magistrate court. A new trial was
scheduled for January 2, 2007, but that setting was reset for January 30, 2007, because the
courthouse was closed due to snow on January 2. Defendant asserts that he intended to enter
into a plea agreement on January 30, 2007, but the parties did not agree to the terms. No
plea agreement was entered and Defendant requested a continuance.

{16} A new trial setting for March 27, 2007, was subsequently vacated and reset for May
7, 2007. Three days before trial, counsel for Defendant moved for a continuance, stating that
“[t]he [d]efense now waives any speedy[]trial defense.” After his motions for dismissal

                                               6
based on violations of the six month rule and speedy trial rights were denied in the
magistrate court, Defendant was convicted at a jury trial on August 13, 2007.

{17} Defendant timely appealed to the district court and renewed his motions to dismiss
based on the previously-asserted violations of the six month rule and speedy trial rights.
After a hearing, the district court denied both motions based on its conclusion that (1) arrest
of Defendant on November 9, 2006, triggered a new six-month period in which to bring him
to trial in magistrate court; and (2) Defendant waived adherence to the six month rule when
he requested a continuance on January 30, 2007. See Rule 6-506(B)(5) (stating that “if the
defendant is arrested for failure to appear, . . . the date of arrest or surrender of the
defendant” is the triggering event for the six-month period in which to begin trial).

{18} On appeal, we review the district court’s analysis of the six month rule de novo. See
State v. Rayburns, 2008-NMCA-050, ¶ 7, 143 N.M. 803, 182 P.3d 786. In doing so, we
assess the district court’s findings of fact “with the deference of the substantial evidence
standard.” Id. Defendant first argues that the district court erred in concluding that his arrest
at the November 9, 2007, trial restarted the six-month period in which to bring him to trial
“[b]ecause [Defendant] did not willfully fail to appear[] [and, therefore,] the warrant was
issued in error.” But the rule under which the warrant was issued does not require that the
bench warrant be based on a willful failure to appeal. See Rule 6-207(A) NMRA (“If any
person who has been ordered by the magistrate judge to appear at a certain time and place
. . . fails to appear at such specified time and place[,] . . . the court may issue a warrant for
the person’s arrest.”). Instead, the mere fact of Defendant’s absence at the appointed place
and time permitted the magistrate court to issue the bench warrant and order Defendant
arrested. Because the triggering event specified in the six month rule—arrest for failure to
appear—is also unqualified in any way, once Defendant was arrested, the six-month clock
began anew. See Rule 6-506(B)(5).

{19} Defendant’s second argument challenges the district court’s finding that Defendant
waived application of the six month rule at the January 30, 2007, hearing. After review of
the record, we conclude that the district court’s finding is supported by substantial evidence.
The motion for continuance filed after the January 30, 2007, hearing by defense counsel did
not state explicitly that Defendant waived adherence to the rule. However, the State’s
witness testified that Defendant’s counsel requested a continuance of the January 30, 2007,
trial setting, which was granted by the magistrate court with the condition that Defendant
waive the six month rule. The witness testified that Defendant’s counsel agreed during the
hearing to this condition. We will not second-guess the district court’s resolution of this
conflict. See State v. Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333 (“It [is] for
the [district] court as fact-finder to resolve any conflict in the [evidence] and to determine
where the weight and credibility lay.”). In sum, we conclude that Defendant’s arrest on
November 9, 2006, restarted the six-month period in which to initiate trial and that
Defendant, through counsel, waived the application of the rule at the January 30, 2007,
hearing. Denial of Defendant’s motion to dismiss on six month rule grounds was therefore
not improper.

                                               7
{20} We now turn to Defendant’s allegation that his constitutional right to a speedy trial
was violated based on the delay of fourteen months between his arrest and trial. “The right
to a speedy trial is a fundamental right of the accused.” State v. Garza, 2009-NMSC-038,
¶ 10, 146 N.M. 499, 212 P.3d 387. Whether a defendant has been deprived of the right
requires a case-by-case analysis. Id. ¶ 11. Using the factors set out in Barker v. Wingo, 407
U.S. 514 (1972), courts must assess “(1) the length of delay, (2) the reasons for the delay,
(3) the defendant’s assertion of his right, and (4) the actual prejudice to the defendant.”
Garza, 2009-NMSC-038, ¶ 13 (internal quotation marks and citation omitted). On appeal,
“we give deference to the [district] court’s factual findings. Weighing and balancing the
Barker factors is a legal determination that we review de novo.” State v. Maddox, 2008-
NMSC-062, ¶ 8, 145 N.M. 242, 195 P.3d 1254, abrogated on other grounds by Garza, 2009-
NMSC-038, ¶¶ 47-48.

{21} The first factor—length of the delay—is both “a threshold inquiry that triggers the
rest of the analysis and . . . part of the balancing test itself.” State v. Fierro, 2012-NMCA-
054, ¶ 35, 278 P.3d 541 (internal quotation marks and citation omitted). Thus, we determine
first whether the fourteen-month delay is presumptively prejudicial. Id. ¶¶35-36. If so, we
proceed to analyze the other Barker factors. Id. Here, the district court determined that this
case was a simple one, and the parties do not dispute this finding. A delay of fourteen
months is presumptively prejudicial in cases of this complexity. See Salandre v. State, 1991-
NMSC-016, ¶ 22, 111 N.M. 422, 806 P.2d 562 (holding that a nine month delay is
presumptively prejudicial for simple cases), holding modified by Garza, 2009-NMSC-038,
¶ 48 (revising the presumptively prejudicial benchmark for simple cases to twelve months).

{22} Having concluded that the Barker inquiry is necessary, we would ordinarily proceed
to a detailed examination of whether the length of delay, reasons for delay, and assertion of
the right weigh in Defendant’s favor. Where there is no evidence of prejudice caused by the
delay, however, we need not assess these factors, because “the absence of prejudice
outweighs other factors that may weigh in a defendant’s favor.” State v. Brown, 2003-
NMCA-110, ¶ 17, 134 N.M. 356, 76 P.3d 1113. This is the case here.

{23} There are “three interests under which we analyze prejudice to the defendant: . . . to
prevent oppressive pretrial incarceration[,] . . . to minimize anxiety and concern of the
accused[,] and . . . to limit the possibility that the defense will be impaired.” Maddox, 2008-
NMSC-062, ¶ 32 (quoting Barker, 407 U.S. at 532). “Although the [s]tate bears the ultimate
burden of persuasion, [the d]efendant does bear the burden of production on this issue, and
his failure to do so greatly reduces the [s]tate’s burden.” State v. Urban, 2004-NMSC-007,
¶ 18, 135 N.M. 279, 87 P.3d 1061. In addition, there must be a showing of a “nexus between
the undue delay and the prejudice claimed.” Brown, 2003-NMCA-110, ¶ 17 (internal
quotation marks and citation omitted). Defendant argues that the delay in bringing him to
trial (1) impaired his defense, and (2) caused him to “experience[] unusual hardship” and
anxiety.

{24}   First, Defendant maintains that because of the delay, there was no video of the initial

                                              8
traffic stop, and consequently, “[t]he jury was . . . left to rely on the impaired and faulty
memory of the arresting officer.” As support for his position, he points to the arresting
officer’s testimony about the video.

       Q.       And did you engage your video equipment at that time?

       A.       I believe I did, but I don’t have a copy of the tape.

But this testimony tells us nothing about how the lack of the video was caused by the State’s
delay, or about how the video would have been important to Defendant’s defense. See id.
¶ 17 (requiring a “nexus” between the delay and error); State v. Todisco, 2000-NMCA-064,
¶ 23, 129 N.M. 310, 6 P.3d 1032 (stating that the prejudice “must be substantial and
demonstrable” (internal quotation marks and citation omitted)). There is no evidence that
Defendant sought to use the video at trial but could not. We conclude that Defendant’s
assertions are too speculative to constitute evidence of prejudice. See Brown, 2003-NMCA-
110, ¶ 20 (rejecting a defendant’s argument as to prejudice as “conjecture”); cf. Muse v.
Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record
for facts, arguments, and rulings in order to support generalized arguments.”).

{25} Second, Defendant argues that he experienced undue anxiety and hardship because
he “was incarcerated at least three different times” and had to borrow money to pay over
$5000 in bail for the failure to appear charge. But the penalties for the failure to appear
charge are attributable to Defendant’s own conduct, not to the State. In addition, Defendant
fails to provide evidence tying the other periods of incarceration to delay on the State’s part.
See Brown, 2003-NMCA-110, ¶ 17 (requiring a “nexus” between the delay and error).
“[B]ecause the record does not support a finding of prejudice to Defendant, we need not
analyze the remaining factors.” Id. ¶ 21. The district court did not err in denying
Defendant’s motion to dismiss on speedy trial grounds.

C.      Defendant’s Rights Under the Confrontation Clause Were Violated

{26} Defendant next argues that his right to confront the witnesses against him at trial was
violated. Both the federal and New Mexico constitutions provide that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]” See U.S. Const. amend. VI; N.M. Const. art. II, § 14 (“the confrontation
clause”). Defendant argues that it was improper to permit the State to admit a report of his
blood alcohol content based on testimony by a State Laboratory Division (SLD) employee
who did not analyze the blood sample. Thus, his argument is grounded in the United States
Supreme Court’s holding in Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011), in
which the Court held that “[a]s a rule, if an out-of-court statement is testimonial in nature,
it may not be introduced against the accused at trial unless the witness who made the
statement is unavailable and the accused has had a prior opportunity to confront that
witness.”


                                               9
{27} As a preliminary matter, we address the State’s argument that Bullcoming does not
apply here because it was “issued long after Defendant’s judgment of conviction became
final.” We disagree and therefore apply Bullcoming to conclude that Defendant’s rights
protected by the confrontation clause were violated.

{28} Bullcoming was decided in 2011, three years after the original judgment and sentence
was filed in this case. The State, apparently assuming that Bullcoming announced a new
rule, contends that it does not apply here because its holding is not retroactive. See State v.
Mascarenas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (“An appellate court’s
consideration of whether a rule should be retroactively or prospectively applied is invoked
only when the rule at issue is in fact a ‘new rule.’ ”); State v. Nunez, 2000-NMSC-013, ¶
114, 129 N.M. 63, 2 P.3d 264 (“[I]t seems apparent that a change of law by an appellate
court will have no retroactive application to any case that is finalized before the date the
court’s decision is filed.”). Defendant counters that Bullcoming did not announce a new rule
and “merely reiterated that the principles set forth in Melendez-Diaz [v. Massachusetts] are
and have always been the correct interpretation of the law.” See 557 U.S. 305, 311 (2009).
We do not address these arguments, because, even if we assume without deciding that
Bullcoming announced a new rule and is not retroactive, Bullcoming applies here because
Defendant’s appeal was pending when Bullcoming was filed. We explain.

{29} “[A] change in the law generally applies to cases pending on direct appeal, as long
as the issue was raised and preserved below.” Kersey v. Hatch, 2010-NMSC-020, ¶ 19, 148
N.M. 381, 237 P.3d 683. When we apply the Duran presumption, we treat a late appeal as
though it had been filed within the applicable deadline. See State v. Leon, 2013-NMCA-011,
¶ 20, 292 P.3d 493, cert. quashed, 2013-NMCERT-010, 313 P.3d 251 (stating that, as a
result of applying the Duran presumption, the Court would “consider his appeal as if timely
filed”); State v. Peppers, 1990-NMCA-057, ¶ 23, 110 N.M. 393, 796 P.2d 614 (stating that
as a result of the Duran presumption, the Court would “treat defendant’s appeal as if the
notice had been filed in a timely fashion”); Rule 12-201(A) NMRA. Hence, we treat
Defendant’s appeal as though it had been filed in June 2008, which means that we also
consider it pending at the time Bullcoming was decided.

{30} Treating Defendant’s appeal this way is consistent with the principle underlying
Duran—that a defendant should not be denied an appeal by his or her attorney’s
incompetence. See Duran, 1986-NMCA-125, ¶ 3 (recognizing the holding of Evitts v.
Lucey, 469 U.S. 387, 389-400 (1985) “to the effect that criminal defendants are not to be
deprived of an appeal as of right where a procedural defect results from ineffective
assistance of counsel on appeal.”). If we did not treat an untimely appeal as “relating back”
to the appeal deadline date, defendants whose appeals we considered via the Duran
presumption would be denied the benefit of cases decided between that date and the actual
date of appeal, while defendants who timely filed their appeals would not. This anomalous
result is contrary to the very foundation on which Duran is based.




                                              10
{31} Having concluded that Bullcoming applies, we turn to the merits of Defendant’s
confrontation clause claim. Under that case, a testimonial statement “may not be introduced
against the accused at trial unless the witness who made the statement is unavailable and the
accused has had a prior opportunity to confront that witness.” Bullcoming, 131 S. Ct. at
2712-13. Consistent with Melendez-Diaz and its progeny, the parties do not dispute that the
SLD blood alcohol content report was testimonial. U.S. at 311; see State v. Bullcoming,
2010-NMSC-007, ¶ 18, 147 N.M. 487, 226 P.3d 1 rev’d on other grounds by Bullcoming,
131 S. Ct. at 2713. In addition, the State does not argue that the analyst who conducted the
test and certified the results was unavailable or that Defendant had an opportunity to
confront him before trial.

{32} Instead, the State argues that Bullcoming is inapposite because the testifying witness
was a “supervising analyst.” Relying on Justice Sotomayor’s concurrence in Bullcoming,
the State argues that there is no confrontation clause violation where the testifying witness
is “a supervisor who observed an analyst conducting a test [and] testified about the results
or a report about such results.” Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring).
But there is no evidence that the testifying witness observed the conduct of the test. Indeed,
the facts here are nearly exactly like those in Bullcoming, to wit: (1) a certified report
showing Defendant’s blood alcohol content was admitted into evidence, (2) the analyst who
certified the results of the blood testing did not testify, (3) another SLD employee—who
reviewed the analyst’s documentation but did not observe the testing—testified, including
about the results of the test. See Bullcoming, 131 S. Ct. at 2709-11. Discerning no material
difference between the facts here and those in Bullcoming, we conclude that Defendant’s
right to confront the analyst whose certified statement was admitted into evidence was
violated. We therefore reverse Defendant’s conviction and remand this matter to the district
court for a new trial. See State v. Martinez, 1996-NMCA-109, ¶ 21, 122 N.M. 476, 927 P.2d
31 (remanding for new trial where the defendant’s confrontation right was violated).

II.    CONCLUSION

{33} For the foregoing reasons, the district court’s denial of Defendant’s motions to
dismiss for violation of the six month rule and speedy trial right is affirmed. Because
Defendant’s right to confront the SLD analyst who prepared the report admitted against him
was violated, however, we reverse the conviction and remand for a new trial.

{34}   IT IS SO ORDERED.

                                              _____________________________________
                                              MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
TIMOTHY L. GARCIA, Judge

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____________________________________
J. MILES HANISEE, Judge




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