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                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'04- 12:31:17 2014.06.12

Certiorari Denied, June 3, 2014, No. 34,619; Certiorari Denied, May 8, 2014, No. 34,647

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-058

Filing Date: March 13, 2014

Docket No. 32,127

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

HOWARD CANNON,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Donna J. Mowrer, District Judge

Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Nicole Murray, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

FRY, Judge.

{1}     Defendant Howard Cannon appeals his conviction for aggravated driving while under
the influence (DWI), first offense, following a de novo trial in district court. Defendant
contends that the district court erred by not granting him a trial by jury. Defendant’s appeal
from the district court was untimely filed. This Court therefore ordered the parties to brief
the issue of whether the conclusive presumption of ineffective assistance of counsel

                                              1
established in State v. Duran, 1986-NMCA-125, ¶¶ 4-6, 105 N.M. 231, 731 P.2d 374, should
apply to appeals from a de novo trial in district court following a conviction in magistrate
or municipal court. In briefing this issue, the State argued that this Court should overrule
the presumption of ineffective assistance of counsel established in Duran in favor of
allowing the district court to determine whether ineffective assistance of counsel occurred
under the particular circumstances of a given case via an evidentiary hearing. The State
contends that this result is required by the United States Supreme Court’s ruling in Roe v.
Flores-Ortega, 528 U.S. 470 (2000). We hold that, based on the jurisprudence and rules of
this State, our courts should apply a conclusive presumption of ineffective assistance of
counsel to an untimely notice of appeal following a de novo trial in district court. As to
Defendant’s claim of error, we affirm.

BACKGROUND

{2}      Defendant was found guilty of aggravated DWI, contrary to NMSA 1978, Section
66-8-102(D)(3) (2010), following a jury trial in magistrate court. Defendant appealed the
magistrate court conviction by filing a timely notice of appeal in district court pursuant to
Rule 6-703(A) NMRA (providing that “[a] party who is aggrieved by the judgment or final
order in a criminal action may appeal . . . to the district court of the county” and requiring
that “[t]he notice of appeal . . . be filed in the district court within fifteen (15) days after the
judgment or final order appealed from is filed in the magistrate court clerk’s office”).
Defendant requested a setting for a de novo trial and filed a demand for a jury trial. The
district court denied Defendant’s request for a jury trial. A bench trial was held, and
Defendant was found guilty and convicted of aggravated DWI. An order of conviction was
entered on February 1, 2012. Pursuant to NMSA 1978, Section 39-3-3(A)(1) (1972), and
Rule 12-201(A)(2) NMRA, a criminal defendant must file his notice of appeal from the final
judgment of a district court within thirty days of the entry of that judgment. Defendant filed
a notice of appeal with the district court on March 21, 2012. Defendant’s notice of appeal
was, therefore, untimely.

DISCUSSION

I.      Application of the Duran Presumption

{3}      In Duran, this Court created a conclusive presumption of ineffective assistance of
counsel where counsel filed an untimely notice of appeal following a defendant’s conviction
in district court. We premised this conclusive presumption of ineffective assistance of
counsel, in part, on our understanding that “[c]riminal defendants convicted at trial generally
file a notice of appeal.” State v. Peppers, 1990-NMCA-057, ¶ 20, 110 N.M. 393, 796 P.2d
614. We reasoned that, because in an appeal from a criminal conviction counsel must
“timely file either a notice of appeal or an affidavit of waiver of appeal[,]” Duran, 1986-
NMCA-125, ¶ 3 (citing NMSA 1978, Crim. P. Rule 54(b) (Repl. 1985), now Rule 5-702(B)
NMRA), “the absence of a notice of appeal and an affidavit of waiver strongly suggests the
failure of trial counsel to consult adequately with the client concerning the right to appeal.”

                                                 2
Peppers, 1990-NMCA-057, ¶ 20 (discussing Duran).

{4}     Since Duran, this Court has extended the conclusive presumption of ineffective
assistance of counsel to de novo appeals from magistrate court to district court, State v. Eger,
2007-NMCA-039, ¶ 2, 141 N.M. 379, 155 P.3d 784; to appeals from an order revoking
probation, State v. Leon, 2013-NMCA-011, 292 P.3d 493, cert. quashed 2013-NMCERT-
010, 313 P.3d 251; and to appeals from determinations of abuse and neglect and termination
of parental rights, State ex rel. Children, Youth and Families Department v. Amanda M.,
2006-NMCA-133, ¶ 22, 140 N.M. 578, 144 P.3d 137 (abuse and neglect); State ex rel.
Children, Youth and Families Department v. Ruth Anne E., 1999-NMCA-035, ¶ 10, 126
N.M. 670, 974 P.2d 164 (termination proceedings). Most recently, in State v. Vigil, 2014-
NMCA-___, ___ P.3d ___ (No. 32,166, Mar. 12, 2014), this Court extended the Duran
presumption to untimely appeals to this Court following a district court’s on-record review
of a metropolitan court decision.

{5}     In contrast, the present case does not require this Court to extend the Duran
presumption beyond the parameters of its original analysis. Rather, given 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)—it follows that the Duran presumption would apply
to untimely notices of appeal from a de novo trial in district court. Perhaps recognizing the
difficulty in distinguishing the circumstances of this case from the basis for Duran, the State
instead asks this Court to overrule Duran’s conclusive presumption of ineffective assistance
of counsel.

{6}     The State relies on the United States Supreme Court’s opinion in Flores-Ortega, to
argue that this Court should overrule Duran. In Flores-Ortega, the United States Supreme
Court concluded that a bright-line rule for determining ineffective assistance of counsel for
failure to file a timely notice of appeal was improper given that Strickland v. Washington,
466 U.S. 668 (1984), requires that a court look at the specific circumstances surrounding
counsel’s actions. Flores-Ortega, 528 U.S. at 478. The State contends that, because this
Court premised its ruling in Duran on the right to effective assistance of counsel under the
United States Constitution and not the New Mexico Constitution, we are bound by the
holding in Flores-Ortega. We disagree.

{7}     While Duran was based, in part, on federal case law discussing a defendant’s right
to counsel and right to appeal, Duran was also premised on New Mexico’s rules of criminal
procedure. See 1986-NMCA-125, ¶ 3 (stating that “[t]his [C]ourt is mindful of the holding
of the United States Supreme Court in Evitts v. Lucey, [469 U.S. 387 (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”); Duran, 1986-NMCA-125,
¶ 4 (discussing how an attorney who fails to either file a notice of appeal or affidavit of
waiver of appeal as required by the rules of criminal procedure “can be said to have
neglected his duty and a conclusive presumption of ineffective assistance arises”). We
further note that our rules impose a greater obligation on counsel than the Federal

                                               3
Constitution. As the United States Supreme Court recognized in Flores-Ortega,

        [C]ounsel has a constitutionally imposed duty to consult with the defendant
        about an appeal when there is reason to think either (1) that a rational
        defendant would want to appeal (for example, because there are nonfrivolous
        grounds for appeal); or (2) that this particular defendant reasonably
        demonstrated to counsel that he was interested in appealing.

528 U.S. at 480. The United States Supreme Court marked the difference between this
constitutionally imposed obligation and the bright-line rule utilized by the First and Ninth
Circuits, stating that the bright-line rule “effectively imposes an obligation on counsel in all
cases either (1) to file a notice of appeal, or (2) to discuss the possibility of an appeal with
the defendant, ascertain his wishes, and act accordingly.” Id. at 478 (characterizing the First
and Ninth Circuit Courts as having imposed a bright-line rule requiring that “[c]ounsel . . .
file a notice of appeal unless the defendant specifically instructs otherwise; failing to do so
is per se deficient”). The United States Supreme Court noted that, “while [s]tates are free
to impose whatever specific rules they see fit to ensure that criminal defendants are well
represented,” “[w]e cannot say, as a constitutional matter, that in every case counsel’s failure
to consult with the defendant about an appeal is necessarily unreasonable, and therefore
deficient.” Id. at 479.

{8}     By promulgating Rule 5-702(B), our New Mexico Supreme Court has expanded the
obligation of counsel to protect a defendant’s right to appeal beyond that required under the
United States Constitution. As noted above, pursuant to Rule 5-702(B), counsel is
responsible for either filing a notice of appeal or obtaining an affidavit of waiver from a
defendant. Therefore, ultimately, our Supreme Court has imposed on counsel an obligation
to consult with a criminal defendant regarding the defendant’s right to appeal. See Rule 5-
702(B); see also Duran, 1986-NMCA-125, ¶ 4 (noting that counsel may file “his own
affidavit in the district court stating that he has advised his client of his right to appeal and
that the client has neither authorized an appeal nor signed an affidavit of waiver” in order
to comply with the requirements of the rule and not be deemed ineffective). Thus, Rule 5-
702(B) itself creates a requirement similar to the obligation imposed by the bright-line rule
that the United States Supreme Court determined was not constitutionally required.

{9}      Given that, as a state, we are free to extend additional procedural protections to a
criminal defendant, and given that Duran was premised on the specific requirements
contained in Rule 5-702(B), we reject the State’s argument that Flores-Ortega is controlling
and requires us to overrule the conclusive presumption of ineffective assistance of counsel
established in Duran. Nor do we choose to reconsider Duran of our own accord. After close
to thirty years and various extensions of its application, Duran is firmly rooted in this State’s
jurisprudence. To the extent the State advocates for a rule that would require remand to the
district court to hold an evidentiary hearing whenever an untimely notice of appeal is filed,
we conclude that this is an issue best left to our Supreme Court’s rule-making authority.
This Court continues to maintain, as we did in Duran, that applying a conclusive

                                               4
presumption of ineffective assistance of counsel provides the greatest protection of a
defendant’s right to appeal with the least judicial burden. See Duran, 1986-NMCA-125, ¶¶
5-6. We therefore do not reweigh the balance of interests struck by this Court in Duran.
Accordingly, we hold that the Duran presumption applies when counsel files an untimely
appeal to this Court following a de novo trial in district court. We now turn to the merits of
Defendant’s appeal.

II.    Defendant’s Request for a Jury Trial

{10} Defendant contends that the district court erroneously denied him the jury trial he
was entitled to under both the Sixth Amendment of the United States Constitution and
Article II, Section 12 of the New Mexico Constitution. The State contends that, to the extent
Defendant is arguing that the New Mexico Constitution provides greater protection than the
Sixth Amendment, Defendant did not preserve this issue below. This Court does not read
Defendant’s brief in chief or reply brief as asserting an argument for greater protection under
the New Mexico Constitution, and Defendant has made no attempt to rebut the State’s
contention that this issue was not preserved. We therefore limit our analysis accordingly.

{11} In State v. Sanchez, 1990-NMSC-012,109 N.M. 428, 786 P.2d 42, our Supreme Court
examined the Sixth Amendment’s guarantee of an accused’s right to trial by an impartial
jury. Our Supreme Court noted that in Duncan v. Louisiana, 391 U.S. 145 (1968), the
United States Supreme Court “dr[e]w a line separating petty offenses from serious crimes,
[and] held that certain petty offenses are not subject to the [S]ixth [A]mendment jury trial
provision and should not be subject to the [F]ourteenth [A]mendment jury trial requirement
applied to the states.” Sanchez, 1990-NMSC-012, ¶ 6. In distinguishing between a petty
offense and serious crime, the United States Supreme Court relied on the objective criteria
of maximum authorized penalty, “finding it to be the most relevant and reflective of the
seriousness with which society regards an offense.” Id. ¶ 7. The United States Supreme
Court held that “a potential sentence in excess of six months’ imprisonment is sufficiently
severe by itself to take the offense out of the category of ‘petty’ so as to permit a defendant
to demand a trial by jury.” Sanchez, 1990-NMSC-012, ¶ 7 (quoting Baldwin v. New York,
399 U.S. 66, 69 n.6 (1970) (plurality opinion) (internal quotation marks and citation
omitted)).

{12} Defendant was charged with DWI, first offense, which carries a maximum sentence
of ninety days’ imprisonment. See § 66-8-102(E). Given that the maximum period of
imprisonment Defendant faces is less than six months, Defendant is not entitled to a jury trial
under Sanchez.

{13} Defendant relies on Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989), to argue
that this Court should treat DWI, first offense, as a serious offense despite a maximum term
of imprisonment of less than six months. In Blanton, the United States Supreme Court noted
that in determining the severity of a penalty for purposes of assessing a defendant’s right to
a jury, “the word ‘penalty[]’ . . . do[es] not refer solely to the maximum prison term

                                              5
authorized for a particular offense.” Id. at 542. Rather, “[a] legislature’s view of the
seriousness of an offense also is reflected in the other penalties that it attaches to the
offense.” Id. However, the Supreme Court instructed that it is “appropriate to presume for
purposes of the Sixth Amendment that society views [an offense carrying a maximum prison
term of six months or less] as ‘petty.’” Id. at 543. Where the maximum period of
incarceration is less than six months, “[a] defendant is entitled to a jury trial . . . only if he
can demonstrate that any additional statutory penalties, viewed in conjunction with the
maximum authorized period of incarceration, are so severe that they clearly reflect a
legislative determination that the offense in question is a ‘serious’ one.” Id.

{14} Attempting to overcome this presumption, Defendant directs this Court to the
additional penalties contained in Section 66-8-102(E) for first offenses. These penalties
include a minimum of twenty-four hours of community service, completion of an alcohol or
drug screening program, completion of a court-approved alcohol or drug abuse treatment
program, completion of a driver rehabilitation program, installation of an ignition interlock
device on all motor vehicles driven by the offender for a period of one year, obtaining an
interlock driver’s license, and payment of probation costs, along with various fees and fines.
Section 66-8-102(E). Defendant calculates the cost of these penalties as $2,680.04.
Defendant also notes that, “[i]n addition to the financial burden of a first offense DWI
conviction, the penalties also involve a significant time investment.” Defendant contends
that these penalties reflect a judgment by our Legislature that DWI, first offense, is a serious
crime.

{15} Moreover, Defendant asserts that our courts have also consistently viewed DWI, first
offense, as a serious crime. Defendant argues that in City of Santa Fe v. Martinez, 2010-
NMSC-033, 148 N.M. 708, 242 P.3d 275, the New Mexico Supreme Court considered DWI
to be a serious crime by choosing to treat it as a felony for the purpose of warrantless arrests.
In Martinez, our Supreme Court acknowledged that “[t]he crime of DWI as defined by our
Legislature is not a ‘minor crime’ as contemplated by the misdemeanor arrest rule” and held
that “the crime of DWI should be treated as a felony for purposes of warrantless arrests.”
Id. ¶ 13. In doing so, the Court stated:

        Although a DWI offender who has had less than three convictions would
        only be guilty of a misdemeanor, such a classification makes no difference
        in the severity of the offense’s consequences, nor does it dilute the public’s
        concern; a first DWI or subsequent offense can have the same deadly results
        as a fourth offense.

Id. ¶ 14. Defendant also points to other acknowledgments by our courts that DWI is a
serious offense. See State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, ¶ 9, 120 N.M. 619,
904 P.2d 1044 (“New Mexico has a serious problem with drunk drivers, with one of the
highest rates in the nation of DWI-related fatalities. Our citizens are obviously concerned
by this dangerous situation, and through their elected representatives have established a
system providing punishment for drunk drivers along with remedial measures for the

                                                6
protection of the population.”); State v. Contreras, 2003-NMCA-129, ¶ 14, 134 N.M. 503,
79 P.3d 1111 (“In New Mexico, the elimination of driving while intoxicated and its related
offenses is a matter of grave concern to society in general, and to our courts and Legislature
in particular.” (internal quotation marks and citation omitted)).

{16} While we acknowledge that our law is replete with references to the seriousness with
which we regard DWI, such statements made in other contexts do not inform our decision
herein. Rather, as Blanton provides, it is the severity of the penalty that we must consider
in determining whether a defendant is entitled to a trial by jury and, based on the penalties
provided in Section 66-8-102(E), we conclude that Defendant cannot overcome the
presumption that we view the offense of DWI, first offense, as “petty” for purposes of the
Sixth Amendment.

{17} In Blanton, the United States Supreme Court noted that the Nevada legislature had
chosen to punish first DWI offenses by imposing the following penalties: (1) “a minimum
term of two days’ imprisonment and a maximum term of six months’ imprisonment” or,
alternatively, “[forty-eight] hours of work for the community while dressed in distinctive
garb which identifies him as [a [DWI] offender]”; (2) “a fine ranging from $200 to $1,000”;
(3) revocation of the defendant’s driver’s license; and (3) attendance of “an alcohol abuse
education course” at the defendant’s expense. 489 U.S. at 539-40. There, despite the
combination of a maximum six months’ imprisonment and the additional penalties listed
above, the United States Supreme Court determined that the Nevada legislature had not
clearly indicated that DWI was a serious offense. Id. at 544.

{18} While New Mexico provides more additional penalties than the Nevada legislature
was identified as having done in Blanton, the total period of incarceration for a DWI, first
offense, in New Mexico is ninety days, where the maximum incarceration under the Nevada
legislation discussed in Blanton was six months. The United States Supreme Court
concluded that the Nevada legislature had not indicated that DWI was a serious offense for
purpose of the Sixth Amendment when it provided for a six-month maximum sentence and
additional penalties and fines. Given that Blanton states that “[p]rimary emphasis . . . must
be placed on the maximum authorized period of incarceration[,]” id. at 542, we cannot
conclude that the additional penalties contained in Section 66-8-102(E), when viewed in
conjunction with a ninety-day sentence, are sufficient to render DWI, first offense, a serious
offense for Sixth Amendment purposes. As a result, we disagree with Defendant that he had
a constitutional right to a jury trial.

{19} Defendant further argues that the district court’s denial of his request for a jury trial
violated the rules of criminal procedure and therefore his right to due process. Specifically,
Defendant asserts that the rules require that an appeal from magistrate court to district court
be in the form of a trial de novo. See Rules 6-703(A); 5-826(J) NMRA. According to
Defendant, “[t]he [same] rights and procedures afforded at the trial de novo must match
those provided below.” Defendant provides no authority for this argument. See In re
Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (providing that,

                                              7
where a party cites no authority to support an argument, we may assume no such authority
exists). Moreover, Defendant’s argument is contrary to the concept of a de novo trial “in
which the whole case is gone into as if no trial whatever had been had in the court below.”
Miera v. Waltemeyer, 1982-NMCA-007, ¶ 18, 97 N.M. 588, 642 P.2d 191 (internal quotation
marks and citation omitted). Accordingly, we conclude that the district court did not violate
Defendant’s constitutional rights by denying his request for a jury trial.

CONCLUSION

{20} We hold that the Duran presumption applies when counsel files an untimely appeal
to this Court following a de novo trial in district court. Having applied the Duran
presumption in this case and considered the merits of Defendant’s appeal, we conclude that
DWI, first offense, is not a serious offense for purpose of a defendant’s Sixth Amendment
right to a jury trial. Because we conclude that the district court did not err in denying
Defendant’s request for a jury trial, we affirm Defendant’s conviction.

{21}   IT IS SO ORDERED.


                                              _____________________________________
                                              CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Cannon, No. 32,127

APPEAL AND ERROR
Notice of Appeal
Preservation of Issues for Appeal
Trial de Novo

ATTORNEYS
Effective Assistance of Counsel

CONSTITUTIONAL LAW
Due Process


                                             8
Trial by Jury

CRIMINAL LAW
Driving While Intoxicated

CRIMINAL PROCEDURE
Criminal Procedure, General
Due Process
Time Limitations

JURISDICTION
Magistrate Court




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