                                                                I attest to the accuracy and
                                                                  integrity of this document
                                                                   New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 11:04:38 2019.01.23

Certiorari Denied, November 7, 2018, No. S-1-SC-37315

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2019-NMCA-003

Filing Date: September 26, 2018

Docket No. A-1-CA-36241

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ANTHONY L.,

       Child-Appellant.

APPEAL FROM THE DISTRICT OF BERNALILLO COUNTY
William E. Parnall, District Judge

Hector H. Balderas, Attorney General
Maha Khoury, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

ZAMORA, Judge

{1}    Child appeals the district court’s order granting the State’s motion for extension to
commence Child’s adjudication and his commission of the delinquent act of driving
without a valid driver’s license. Child contends that: (1) the district court erred by
extending the time to commence Child’s adjudication; and (2) there was insufficient
evidence to support the jury’s verdict that he committed the delinquent act of driving
without a valid driver’s license. We affirm.




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BACKGROUND

{2}    On September 6, 2016, a delinquency petition was filed alleging that on
September 3, 2016, Child had committed the delinquent acts of: (1) leaving the scene of
an accident (property damage), contrary to NMSA 1978, Section 66-7-202 (1978); (2)
driving without a valid driver’s license, contrary to NMSA 1978, Section 66-5-2 (2013);
and (3) tampering with evidence (third or fourth degree felony), contrary to NMSA 1978,
Section 30-22-5 (2003). Child was arrested and held in detention until September 7,
2016, when he was conditionally released to New Day Shelter. Child was arrested on
October 7, 2016, for violating his conditions of release and held in detention. On October
12, 2016, a notice was issued setting a pretrial conference for October 31, 2016.

{3}      On the day of the pretrial conference, the State filed a motion to extend the time
limit for the adjudicatory hearing in which it noted that: the matter had been set for an
adjudicatory hearing on October 31, 2016; the time limit to commence the adjudicatory
hearing was November 7, 2016; and a continuance was necessary in anticipation of a
pending community service agency (CSA) assessment and identification of a possible
out-of-home placement for Child. At the hearing, Child’s attorney opposed the motion,
although the district court had stated at the last hearing it would grant an extension and
set the adjudication for December. The State noted that the motion was opposed, but left
the certification date for providing opposing counsel with a copy of the motion blank.
Also on the same date, the district court’s order of continuance of the pretrial conference
was filed and reset for November 21, 2016. Opposition to the motion by Child’s attorney
was noted on that order. The district court order granted the State’s motion for extension
extending the date to commence the adjudication to December 13, 2016, and a notice of
jury trial was issued.

{4}     On November 3, 2016, a hearing was held before a special master to address
conditions of release and placement options for Child. Child’s counsel informed the
special master that Open Skies, a CSA, had assessed Child on October 26, 2016, and
Amistad Shelter had informed her the day before that they had an opening. Child’s
counsel also suggested that Child did not need to stay in detention waiting for the Open
Skies assessment; however, the Child remained in detention.

{5}     On November 21, 2016, Child was conditionally released to Amistad Shelter. On
November 23, 2016, Child filed an objection to the extension and request for
reconsideration, reversal and dismissal. At a hearing on December 12, 2016, the district
court stated that the good cause for extending the time line was because of the district
court’s busy docket.

{6}     After a jury trial, Child was found to have committed the delinquent acts of
leaving the scene of an accident and driving without a valid driver’s license. A mistrial
was declared on the delinquent act of tampering with evidence. The judgment and
disposition, for an extended consent decree, was filed on January 23, 2017. Child was




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placed on probation, under an extended consent decree, for a period not to exceed one
year, or through January 22, 2018.1

District Court Did Not Abuse Its Discretion in Granting an Extension to Commence
Child’s Adjudication.

{7}     The granting of a continuance rests within the sound discretion of the district
court. In re Doe, 1975-NMCA-108, ¶ 8, 88 N.M. 347, 540 P.2d 827. The standard of
review for a motion to continue is abuse of discretion. Id. An abuse of discretion occurs
when the ruling is “clearly untenable or not justified by reason.” State v. Candelaria,
2008-NMCA-120, ¶ 12, 144 N.M. 797, 192 P.3d 792 (internal quotation marks and
citation omitted). There is no abuse of discretion when there are reasons that both
support and detract from a trial court’s decision. State v. Moreland, 2008-NMSC-031, ¶
9, 144 N.M. 192, 185 P.3d 363. Our review looks at the evidence and its inference in the
light most favorable to the district court’s decision. Candelaria, 2008-NMCA-120, ¶ 12.

{8}     Appellate courts review interpretations of our Supreme Court rules de novo, State
v. Stephen F., 2006-NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184, as well as “the district
court’s application of the law to the facts of [the] case.” State v. Foster, 2003-NMCA-
099, ¶ 6, 134 N.M. 224, 75 P.3d 824. Appellate courts apply the same rules of
construction to procedural rules adopted by our Supreme Court as it does to statutes.
Walker v. Walton, 2003-NMSC-014, ¶ 8, 133 N.M. 766, 70 P.3d 756. We therefore
“look first to the plain meaning of the rule” and “refrain from further interpretation when
the language is clear and unambiguous.” State v. Gutierrez, 2006-NMCA-090, ¶ 7, 140
N.M. 157, 140 P.3d 1106 (alteration, internal quotation marks, and citation omitted).
Neither party argues that Rule 10-243 NMRA is ambiguous in the context of the
timeliness of the commencement of Child’s adjudication, we therefore apply its plain
meaning.

{9}     Child argues there was no good cause to extend the adjudicatory time limits,
where the State did not explain why it could not try Child within the requisite thirty days.
Rather, the State relied on the Child’s placement in detention as a basis for the extension
request by depending on an outstanding CSA assessment in anticipation of identifying an
out-of-home placement for Child in order to be conditionally released from detention.
The State contends that because Child’s parents did not want him in their home, Child’s
placement fell to the district court, therefore there was good cause to extend the time
limits in order to determine an appropriate placement for Child, based on the CSA’s
assessment and recommendations.

{10} The Children’s Code explicitly mandates that Rule 10-243 governs the time limits
for the commencement of an adjudicatory hearing. See NMSA, § 32A-2-15 (1993) (“The
adjudicatory hearing in a delinquency proceeding shall be held in accordance with the

       1
         In the meantime, Child violated his probation agreement and has since entered
into another probation agreement for a period of up to one year, which will expire on
April 29, 2019.


                                             3
time limits set forth in the Children’s Court Rules[.]”). Rule 10-243 sets forth the time
limits for the commencement of an adjudicatory hearing for both children in detention
and those children not in detention.

       Rule 10-243(A) states, in pertinent part:
              A.      If the child is in detention, the adjudicatory hearing shall be
       commenced within thirty (30) days from whichever of the following
       events occurs latest:

                       (1)     the date the petition is served on the child;

                       (2)     the date the child is placed in detention[.]

               ....

               B.     If the child is not in detention, or has been released from
       detention prior to the expiration of the time limits set forth in this rule for
       a child in detention, the adjudicatory hearing shall be commenced within
       one-hundred twenty (120) days from . . . :

                       (1)     the date the petition is served on the child[.]

For purposes of calculating the time limits for a child in detention, Child and the State are
both relying on the date Child was placed in detention, the second time, October 7, 2016.
Thus, the time limit for the commencement of the adjudicatory hearing was November 7,
2016.

{11} Rule 10-243(D) states: “For good cause shown, the time for commencement of an
adjudicatory hearing may be extended by the [district] court, provided that the aggregate
of all extensions granted by the [district] court shall not exceed ninety . . . days[.]”
(Emphasis added.) The procedure for extensions of time is set out in Rule 10-243(E):

               The party seeking an extension of time shall file . . . a motion for
       extension concisely stating the facts that support an extension of time to
       commence the adjudicatory hearing. The motion shall be filed within the
       applicable time limit prescribed by this rule[.] A party seeking an
       extension of time shall forthwith serve a copy thereof on opposing
       counsel. Within five . . . days after service of the motion, opposing counsel
       may file an objection to the extension setting forth the reasons for such
       objection. . . . If the [district] court grants an extension beyond the
       applicable time limit, it shall set the date upon which the adjudicatory
       hearing must commence.

{12} Two purposes of the Children’s Code, NMSA 1978, §§ 32A-1-1 to -25-5 (1993,
as amended through 2018), are pertinent to this case: (1) “to provide for the care,
protection and wholesome mental and physical development of children . . . [and a]



                                              4
child’s health and safety shall be the paramount concern[]”; and, (2) “to provide judicial
and other procedures through which the provisions of the Children’s Code are executed
and enforced and in which the parties are assured a fair hearing and their constitutional
and other legal rights are recognized and enforced[.]” Section 32A-1-3(A), (B). One of
the purposes of the Delinquency Act, Sections 32A-2-1 to -33, contained within the
Children’s Code, is to “encourage efficient processing of cases[.]” § 32A-2-2(G).

{13} This Court has also recognized a constitutional policy reason for the shorter time
limits where a child is in detention–—the shorter time limit for a juvenile in detention
protects the child’s liberty interest. State v. Anthony M., 1998-NMCA-065, ¶ 9, 125 N.M.
149, 958 P.2d 107. The policy behind this protection is because the state has yet to prove
the allegations against the child. Id.; see In re Dominick Q., 1992-NMCA-002, ¶ 8, 113
N.M. 353, 826 P.2d 574 (noting that required expedited proceedings for a child in
detention “demonstrate[s] a concern by the rulemakers that a child should not be held in
detention for a prolonged period at the pre-adjudicatory . . . stage[] of the proceedings”).
If the adjudicatory hearing is not timely, Rule 10-243(F)(2) mandates the dismissal of the
case, with prejudice, where the adjudication has not commenced within the requisite time
limits.

{14} This case involves a very delicate balancing act in adhering to the purposes
behind the Children’s Code and recognizing Child’s right to a timely adjudication. On
one hand, it was Child’s unsuccessful discharge from New Day Shelter that resulted in
the need for Child’s second detention, resulting in a shorter time limit in which to begin
the adjudication. The unsuccessful discharge created an out-of-detention placement
problem. It was not until the day of the pre-trial conference, or seven days before the
expiration of the time limit that the State requested an extension. The State noted on its
motion that the extension was necessary because “[C]hild is held in detention pending
CSA assessment and possible placement out of home.” The district court’s order of
continuance for the pretrial conference identified the CSA assessment and possible
pending placement as grounds for the continuance. The order extending the time limit did
not identify any grounds for the extension much less any good cause basis, but it did
identify the trial date of December 13, 2016. So although Child was in detention and time
was running, there was still work being done to find him a placement and get him out of
detention. Eventually, Child was released to Amistad Shelter on November 21, 2016. As
a result, the new time limit to commence his adjudication was one hundred twenty days
from September 6, 2016 (the date the delinquency petition was filed), or January 4, 2017.
See Rule 10-243(B)(1). Two days after Child was released to Amistad Shelter, on
November 23, 2016, Child’s attorney filed an objection to the State’s October 31, 2016
motion for extension.

{15} Child also argues that the district court’s crowded docket was not good cause to
grant the time limit extension. The State argues that the district court judge’s verbal
comments during the October 31, 2016 hearing, cannot supersede the formal written
order and therefore cannot be the basis for a reversal. During the pretrial conference and
again during the December 12, 2016 hearing, the district court noted that the trial date
was the earliest available date on its docket. We agree that a court’s busy docket cannot



                                             5
take precedence over a child’s liberty interests. See Anthony M., 1998-NMCA-065, ¶ 9
(noting shorter time limits for a juvenile in detention protects the child’s liberty interest);
In Re Doe, 1975-NMCA-108, ¶ 11 (stating that the Children’s Code intended that there
be prompt adjudication of juvenile delinquency cases); see also State v. Doe, 1977-
NMCA-065, ¶¶ 9-11, 90 N.M. 568, 566 P.2d 117 (holding that a continuance of sixteen
days was properly granted for good cause where the district court was in the middle of a
jury trial and did not expect to finish in time for the hearing).

{16} Because there was good cause in the record, although not memorialized in the
district court’s order granting the extension of time limits, we hold that the district court
did not abuse its discretion in granting the State’s motion for extension of time in which
to commence Child’s adjudication.

There is Insufficient Evidence to Support Child’s Commission of the Delinquent Act
of Driving a Motor Vehicle without a Valid Driver’s License

{17} Child was charged with driving without having a valid driver’s license under
Section 66-5-2. Child argues that there is insufficient evidence to prove that he was
driving without a valid driver’s license on September 3, 2016. Child contends that the
State did not prove that he did not hold a valid driver’s license at the time; instead, they
proved that he did not have a driver’s license in his possession at the time. The State
agrees. While we are not bound to accept the State’s concession, see State v. Tapia, 2015-
NMCA-048, ¶ 31, 347 P.3d 738 (stating that appellate courts are not bound by the state’s
concession), we agree that the jury’s verdict finding that Child committed the delinquent
act of driving without a valid driver’s license should be reversed.

{18} The testimony at trial established that Child did not have a license in his
possession on September 3, 2016. It is NMSA 1978, Section 66-5-16 (1985, amended
2018) that requires that a licensee have a driver’s license in their immediate possession.
The jury instruction was also misleading, as it required the jury to find, in part, that Child
was not in possession of a valid driver’s license, in order to find that he committed the
delinquent act of driving a motor vehicle without a valid driver’s license. We conclude
that there was insufficient evidence to support the jury’s verdict finding that Child
committed the delinquent act of driving a motor vehicle without a valid driver’s license.

CONCLUSION

{19} For the foregoing reasons, we affirm Child’s commission of the delinquent act of
leaving the scene of an accident, and reverse Child’s commission of the delinquent act of
driving a motor vehicle without a valid driver’s license.

{20}   IT IS SO ORDERED.

                                                   _________________________________
                                                   M. MONICA ZAMORA, Judge




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WE CONCUR:
____________________________________
STEPHEN G. FRENCH, Judge
____________________________________
HENRY M. BOHNOFF, Judge




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