January 21, 2014 – State of New Mexico v. Steven Segura, No. 31,904

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: January 21, 2014
NO. 31,904
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
STEVEN SEGURA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth H. Martinez, District Judge
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
GARCIA, Judge.
{1} 	This case raises the question of whether a defendant who has allegedly violated
the conditions of his pretrial release pending trial has a due process right to confront
the State’s evidence before the district court may revoke bail and remand the
defendant back into custody. Defendant in this case was not provided an opportunity
to be heard before his bail was revoked and remanded back into custody. We conclude
that a proper evidentiary hearing was required to protect Defendant’s procedural due
process rights. We reverse the judgment of the district court.
BACKGROUND
{2} 	Defendant was charged with one count of aggravated battery against a
household member and one count of criminal damage to property. Following his arrest
on the charges, Defendant was released on a $15,000 bond. The district court filed the
order setting the conditions of Defendant’s release pending trial. In pertinent part, the
order required Defendant to refrain from the possession and consumption of illegal
drugs and alcohol, and from contact with the alleged victim or witnesses in his case.
The consequences for violating the conditions of Defendant’s pretrial release included
the revocation of Defendant’s bond and release from custody.

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{3} 	Seventeen months later, Defendant appeared at a scheduled plea hearing but
decided to reject the State’s plea offer. Following this rejection, the State orally
alleged that Defendant had violated the conditions of his pretrial release by harassing
the alleged victim. Additionally, the alleged victim had purportedly told a victim’s
advocate that she believed Defendant was using drugs. The State asked the district
court to remand Defendant into custody for these alleged violations. Defense counsel
responded by raising his due process concerns. “I would ask that if the prosecution
believes [Defendant] has violated the conditions of [his pretrial] release, that they
request a hearing, and we would request a full evidentiary hearing. This is a
scheduling conference.”
{4} 	The district court denied defense counsel’s request for “a [full evidentiary]
hearing and notice and the ability to properly argue” the alleged violations of
Defendant’s pretrial release conditions. The court ordered Defendant to submit to an
immediate urinalysis test through the pretrial services department. Following
Defendant’s urinalysis test, the pretrial services employee who tested Defendant threw
the test strip in a bathroom trash can. The same employee then informed the court that
Defendant had tested positive for opiates. As a result, the State requested Defendant’s
“remand in violation of his conditions of [pretrial] release.” Defense counsel again
responded with a request for “a full evidentiary hearing pertaining to the allegations

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that [Defendant] violated his [pretrial release] conditions” and for an opportunity to
“put the testing officer under oath and conduct an evidentiary hearing regarding the
reliability of the testing[.]”
{5} 	Following defense counsel’s renewed due process objection, the district court
asked the pretrial services employee to retrieve Defendant’s urinalysis test strip from
the trash can. The district judge then personally examined the test strip, stating that the
results were “pretty much across the border.” The pretrial services employee agreed:
“It’s pretty clear it is a positive drug test. There’s no line whatsoever on the opiates.
That indicates recent use.” Based on this evidence, the district court found Defendant
had violated his conditions of pretrial release. The court did not permit Defendant to
cross-examine the pretrial services employee regarding the foundation, sufficiency,
or accuracy of the test.
{6} 	Defendant was remanded into the custody of the Metropolitan Detention Center
and detained on a no-bond hold. The district court ordered Defendant to participate
in the Metropolitan Detention Center’s addictions treatment program (ATP) during
his detainment. After completing ATP, a process the court estimated would take
approximately eight to ten weeks, Defendant would be returned to the district court
for “a motion to review [the] conditions of [Defendant’s pretrial] release.” At that
time, the district court planned to “see how things go” with regard to Defendant’s

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continued custody. Defendant timely filed an appeal of the district court’s orders. See
State v. David, 1984-NMCA-119, ¶ 6, 102 N.M. 138, 692 P.2d 524 (treating a
docketing statement as a motion filed under the rule that is now codified as Rule 12-
204 NMRA).
DISCUSSION
{7} 	Under Article II, Section 13 of the New Mexico Constitution, every accused,
except a person accused of first degree murder where the proof is evident or the
presumption great, is entitled to bail. A secured bond or additional conditions may be
imposed if a release would be inimical to public safety or if a release without
conditions would not reasonably assure the appearance of the defendant. See State v.
Gutierrez, 2006-NMCA-090, ¶¶ 16-17, 140 N.M. 157, 140 P.3d 1106 (stating “that
the purpose of bail is to secure the defendant’s attendance to submit to the punishment
to be imposed by the court” and that a defendant’s interest in pretrial release must be
balanced with “the [s]tate’s interest in securing the defendant’s appearance at trial and
the interest in safeguarding the community” (internal quotation marks and citation
omitted)). In this case, Defendant challenges the procedure used to revoke his bail and
remand him into custody.
{8} 	The right to bail is not absolute. Tijerina v. Baker, 1968-NMSC-009, ¶ 9, 78
N.M. 770, 438 P.2d 514. The district court has the discretion to revoke bail when

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necessary “to prevent interference with . . . the proper administration of justice.” Id.
¶ 10. A court can similarly order re-arrest and confinement for violation of a condition
of pretrial release. See State v. Rivera, 2003-NMCA-059, ¶ 20, 133 N.M. 571, 66 P.3d
344 (“Conditions of release are separate, coercive powers of a court, apart from the
bond itself. They are enforceable by immediate arrest, revocation, or modification if
violated. Such conditions of release are intended to protect the public and keep the
defendant in line.”), rev’d on other grounds, 2004-NMSC-001, 134 N.M. 768, 82 P.3d
939. Despite this recognized power to revoke bail if a defendant violates his
conditions of release, Rule 5-403 NMRA provides no mechanism or procedure for the
revocation of bail under such circumstances.
{9} 	Defendant argues that the district court violated his right to procedural due
process by remanding him into custody without notice or an opportunity to be heard
at an evidentiary hearing on the allegations. The State responds that the imposition of
ATP—notwithstanding 	Defendant’s 	placement 	in 	the 	Metropolitan 	Detention
Center—did not revoke Defendant’s bail and instead simply imposed a modification
of the conditions of Defendant’s pretrial release. The State also asserts that this Court
should not reach the merits of this appeal because Defendant has subsequently been
released from state custody.

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{10} 	As a preliminary matter, we address the nature of the district court’s orders.
Second, we will discuss the State’s assertion that this appeal is moot. Finally, we will
address the merits of this appeal.
I. 	Right to Appeal
{11} 	We first address the nature of the district court’s orders and whether Defendant
has a right to appeal. At issue is whether the district court order constitutes a bail bond
revocation or a simple amendment to Defendant’s conditions of pretrial release. If the
district court only amended Defendant’s conditions of pretrial release but did not
revoke his release from custody and entitlement to bail, then Defendant would not
have a right to appeal or appellate review. See generally Rule 5-401 NMRA.
{12} 	The State argues that the district court amended Defendant’s conditions of
pretrial release by imposing an additional requirement that he attend treatment for
drug dependency. To support this argument, the State asserts that the rules permit a
court to confine a defendant in a facility to treat a dependency on drugs or alcohol as
a condition of pretrial release. See Rule 5-401(D)(2)(j) (stating that a court may
impose “a condition that the person undergo available . . . treatment for drug or
alcohol dependency, and remain in a specified institution if required for that
purpose”). We agree that a court may temporarily confine a drug or alcohol dependent
defendant for treatment in a specified inpatient program as a condition of pretrial

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release. However, such confinement is different from pretrial detention without bail
in that a defendant is freed as soon as he completes treatment and need not remain in
the institution until trial. Cf. State v. Martinez, 1998-NMSC-023, ¶¶ 16-18, 126 N.M.
39, 966 P.2d 747 (refusing to equate inpatient alcohol treatment to custodial
confinement for purposes of pre and post sentence confinement credit); State v.
Fellhauer, 1997-NMCA-064, ¶ 12, 123 N.M. 476, 943 P.2d 123 (“[C]redit for time
spent in residential drug treatment facility available only if restrictions so confining
that violations constitute offense of escape.”).
{13} 	Defendant’s confinement in the detention center included ATP, but the drug
rehabilitation component of his incarceration does not distinguish Defendant’s remand
into custody from a standard form of pretrial detention in a jail. See State v. Flores,
1982-NMSC-132, ¶ 8, 99 N.M. 44, 653 P.2d 875 (“The whole purpose for ‘conditions
of release’ is to place limitations on a person not in custody.”); State v. La Badie,
1975-NMCA-032, ¶¶ 4-7, 87 N.M. 391, 534 P.2d 483 (finding official confinement
where the defendant was committed to a locked facility from which he could not
voluntarily leave, even though he was not subject to control by police or correctional
officers). Like any other detained prisoner, Defendant had no freedom of movement
or control over his place of custody. See State v. Clah, 1997-NMCA-091, ¶ 14, 124
N.M. 6, 946 P.2d 210 (refusing to recognize inpatient alcohol treatment as official

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confinement equivalent to custody in jail where there were no limitations on the
defendant’s ability to leave the facility). As a result, court ordered ATP in jail is not
an equivalent to other inpatient treatment and rehabilitation programs operating in the
public community and accepting individuals released from custody as contemplated
by Rule 5-401(D)(2)(j). The State’s assertion that Defendant’s indefinite remand into
state custody functioned only to modify Defendant’s pretrial conditions of release is
not well taken.
{14} 	The fact that ATP is only provided to detainees while incarcerated in a jail
means that it cannot also be considered the equivalent of a release from custody and
a condition of said release. See Clah, 1997-NMCA-091, ¶ 12 (concluding that “[t]ime
spent actually incarcerated in a municipal or county jail and time spent in a state
correctional facility obviously qualify” as official confinement). Although the district
court apparently imposed drug treatment as a condition of incarceration upon
Defendant, it is undisputed that his bail bond was revoked and Defendant was
remanded into the custody of the local jail on a “no bond hold.” See Flores, 1982-
NMSC-132, ¶ 7 (stating that there were no conditions of release when a defendant is
remanded into custody without bail and it was not intended that he be released).
{15} 	The confusion regarding the district court’s order most likely arose from its
statement that it would review the conditions of pretrial release following Defendant’s

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successful completion of ATP. This statement might have given the State the
impression that Defendant’s remand into custody was only a temporary suspension
of his pretrial release. However, nothing in the district court’s remand language
indicated any intention or order to release Defendant from custody upon his
completion of ATP. The district court did not identify any mandatory reinstatement
of Defendant’s liberty interest after ATP, but instead simply stated that it would “see
how things go at that time.” See State v. Hicks, 2002-NMCA-038, ¶ 14, 132 N.M. 68,
43 P.3d 1078 (“If the magistrate judge wanted to regard this situation as a limited
release of [the d]efendant on his own recognizance, it was incumbent on the judge to
say so in clear, cogent language.”). The district court’s ruling only provided a
potential opportunity to revisit revocation of bail and the incarceration of Defendant
if he completed ATP.
{16} 	This case is properly viewed as an appeal of the district court’s order revoking
Defendant’s conditions of pretrial release and bail. See State v. Romero, 1984-NMCA-
087, ¶ 18, 101 N.M. 661, 687 P.2d 96 (“Inasmuch as [the] defendant was in custody
at all pertinent times, the conditions of release are not applicable.”). We thus reject the
State’s argument that Defendant is not entitled to appeal. See State v. David, 1984-
NMCA-119, ¶¶ 5-7, 102 N.M. 138, 692 P.2d 524 (permitting an appeal from an order
revoking bail despite the fact that the order was not within the terms of the rule now

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codified at Rule 12-204 or within the terms of the jurisdictional requirements of
NMSA 1978, Section 39-3-3(A)(2) (1972)).
II. 	Mootness
{17} 	We next address the State’s request to dismiss this appeal as moot because
Defendant was released from Metropolitan Detention Center custody on April 19,
2012. See State v. Sergio B., 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764 (“As
a general rule, appellate courts should not decide moot cases.”). The online case
record for this case reveals that Defendant was released on the same $15,000 bond that
he originally paid.
{18} 	“An appeal is moot when no actual controversy exists, and an appellate ruling
will not grant the appellant any actual relief.” Id. Even if moot, Defendant contends
that this Court should still address the merits of this appeal because the case is capable
of repetition yet, if we do not hear it, it may evade review. See Gunaji v. Macias,
2001-NMSC-028, ¶ 10, 130 N.M. 734, 31 P.3d 1008 (addressing claims of unfair
election procedures after the winning candidate’s term of office had expired because
the issues were capable of repetition but would evade review). We agree.
{19} 	The question of whether due process requires that the defendant at a bail
revocation hearing be allowed to cross-examine witnesses at an evidentiary hearing
is an issue of statewide significance because bail is regularly imposed in a very large

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number of cases throughout the state. N.M. Const. art. II, § 13 (“All persons shall,
before conviction be bailable by sufficient sureties, except for capital offenses when
the proof is evident or the presumption great and in situations in which bail is
specifically prohibited by this section.” (emphasis added)). It is capable of repetition
because a revocation hearing can be requested in any criminal proceeding for which
bail is imposed. Rule 5-401(F) (“Upon motion by the state to detain a person without
bail pending trial, the court shall hold a hearing to determine whether bail may be
denied pursuant to Article 2, § 1 of the New Mexico Constitution.”); see Tijerina,
1968-NMSC-009, ¶ 11. The issue will continue to evade review because cases against
pretrial detainees are resolved prior to any review by this Court. See Sergio B., 2002-
NMCA-070, ¶ 11 (explaining that the short-term commitment of most juvenile
dispositions can cause the evasion of appellate review on issues that will arise again
in future children’s cases). As happened in this case, a defendant will likely be re-
released from custody by the time this Court addresses the constitutional validity of
the initial bail revocation.
{20} 	The issue of whether a defendant has a due process right to confront the State’s
evidence and witnesses against him before the district court revokes bail and remands
the defendant back into custody is functionally justiciable, legally significant, and is

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capable of repetition yet evading review. Accordingly, we agree to address the issue
on its merits and deny the State’s assertion of mootness.
II. 	Due Process
{21} 	Defendant contends that the district court erred in revoking his bond and release
from custody without adequate procedural due process protections guaranteed by the
Fourteenth Amendment to the United States Constitution. He asserts that: (1) the case
was only scheduled for a plea or scheduling hearing; (2) he had no notice of the
State’s intent to seek a revocation of bail; and (3) he did not have a meaningful
opportunity to defend against the allegations through cross-examination of the pretrial
services employee who conducted the urinalysis testing or by contesting the reliability
and accuracy of the test itself. The State counters that Defendant suffered a minimal
loss of liberty at most. It asserts that the district court’s failure to hold a full
evidentiary hearing on the State’s allegation that Defendant violated his conditions of
pretrial release did not violate due process.
{22} 	At issue in this appeal is the technical process required to satisfy procedural due
process before a district court may revoke bail and remand a pretrial defendant into
custody. New Mexico case law is clear that a due process hearing is ultimately
required before a pretrial releasee’s liberty can be terminated. David, 1984-NMCA-
119, ¶ 23 (requiring the district court to provide an accused with the due process

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requirements of notice and an opportunity to be heard with right of counsel before
revoking bail). The Committee Commentary to Rule 5-403 expressly incorporates
“New Mexico case law holding that notice and hearing are required prior to a
revocation of bail.” Yet, due process is a flexible concept. “[N]ot all situations calling
for procedural safeguards call for the same kind of procedure.” State v. Guthrie,
2011-NMSC-014, ¶ 11, 150 N.M. 84, 257 P.3d 904 (emphasis, internal quotation
marks, and citation omitted). We recognize that the present case does not involve a
situation where the State sought, and the district court imposed, a temporary remand
of a pretrial defendant back into custody until a due process hearing could be
conducted at a later date.
{23} 	The State argues that Defendant was entitled to only a limited due process right
because a revocation of pretrial release is similar in nature to a revocation of probation
or parole. Id. ¶ 10 (“Because loss of probation is loss of only conditional liberty, the
full panoply of rights due a defendant in a criminal trial do not apply [during a hearing
to revoke probation.]” (alterations, internal quotation marks, and citation omitted)).
We agree to the extent that all three proceedings involve the revocation of a
significant form of a defendant’s liberty. See id. (“Revocation of probation deprives
an individual, not of the absolute liberty to which every citizen is entitled, but only of
the conditional liberty properly dependent on observance of special probation

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restrictions.” (alteration, internal quotation marks, and citation omitted)). But a person
on pretrial release has a greater liberty interest than a probationer or a parolee because
he has not yet been convicted and the presumption of innocence is still attached.
Tijerina, 1968-NMSC-009, ¶ 9 (“Generally, provisions with regard to admitting to
bail in criminal cases are based upon the idea that a person accused of crime shall be
admitted to bail until adjudged guilty by the court of last resort to him.”). We conclude
that the burden of establishing facts necessary to support a revocation of bail rests
upon the State, with a right to contest the evidence introduced. See Guthrie,
2011-NMSC-014, ¶ 11 (establishing a minimum due process standard to exist in the
context of a probation revocation hearing that includes an informal hearing where
“[t]he parolee must have an opportunity to be heard and to show, if he can, that he did
not violate the conditions [of probation], or, if he did, that circumstances in mitigation
suggest that the violation does not warrant revocation” (internal quotation marks and
citation omitted)).
{24} 	We recognize that a full evidentiary hearing is not required in every case that
involves a conditional liberty interest. See Morrissey v. Brewer, 408 U.S. 471, 480
(1972) (“[T]he revocation of parole is not part of a criminal prosecution and thus the
full panoply of rights due a defendant in such a proceeding does not apply to parole
revocations.”); Guthrie, 2011-NMSC-014, ¶ 10. In this case, Defendant was denied

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any opportunity to examine witnesses, to present any evidence in opposition to the
State’s oral motion, or to defend against the revocation of his bail and release from
custody. Defendant was not afforded the opportunity to show any mitigating
circumstances that might continue to support his release from custody. As a result, the
district court did not consider any alternatives to incarceration or whether additional
conditions of release would adequately protect the community, the State’s witnesses,
and assure Defendant’s appearance at trial. Nor was Defendant afforded a subsequent
bail revocation hearing where he could offer evidence and exercise his due process
rights in a meaningful manner. See David, 1984-NMCA-119, ¶ 16.
CONCLUSION
{25} 	Defendant was denied his procedural due process right to an adequate hearing
prior to a pretrial revocation of his bail and remand into the custody of the local jail.
Although only a conditional liberty interest was at stake, Defendant was entitled to
examine the witnesses and evidence presented by the State as well as an opportunity
to present his own evidence at the pretrial bail revocation hearing. The order of the
district court revoking Defendant’s bail and remanding him into the custody of the
detention center is hereby reversed. As Defendant has already been released from
custody, no further proceedings in the district court are required at this time.

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{26} 	IT IS SO ORDERED.
___________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
M. MONICA ZAMORA, Judge