February 26, 2019- State of New Mexico v. Archie Max Manzanares, No. A-1-CA-36193

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-36193
5 ARCHIE MAX MANZANARES,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Cristina T. Jaramillo, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	John Kloss, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellant
14 Bennett J. Baur, Chief Public Defender
15 	Douglas B. Wood III, Assistant Appellate Defender
16 	Santa Fe, NM
17 for Appellee
18 	MEMORANDUM OPINION
19 DUFFY, Judge.
20 	{t} 	The· district court dismissed the criminal charges against Defendant without
21 	prejudice as a sanction for the State's failure to timely arraign him. On the State's'
22 appeal, we conclude that the district court applied an incorrect analysis to determine
Court of Appeals of New Mexico
Filed 2/26/2019 11:24 AM
Mark Reynolds

1 the appropriateness of the sanction. Accordingly, we reverse and remand for further
2 proceedings.
3 BACKGROUND
4 {2} 	Following 	an 	earlier 	dismissal 	of the 	State's 	case 	without 	prejudice,
5 Defendant was re-indicted on September 21, 2016, on automobile burglary and
6 related charges. A notice of arraignment was sent to Defendant the next day,
7 scheduling the arraignment for October 3, 2016. Soon after the issuance of the notice
8 of arraignment, the district court entered an order to transport, directing the Sandoval
9 County Detention Center (SCDC) to transport Defendant to the Bernalillo County
10 Metropolitan Detention Center (MDC) prior to the arraignment. The transport order
11 	mistakenly indicated that the arraignment was to take place on October 7, 2016.
12 	{3} 	Defendant was not present for his arraignment on October 3, 2016. When the 	,
13 	State alerted the district court to the erroneous date in the transport order, the district
14 court asked the State, "So what are you requesting? That I move it to [October 7,
15 	2016]?" The prosecutor replied, "I'm not requesting anything, Your Honor. l'mjust
16 	bringing it to the [c]ourt's attention." The district court continued the hearing to
17 October 7, 2016, and notice was again sent to Defendant. At the October 3, 2016
18 hearing, there was no discussion of the time limitations for arraignments imposed by
19 either Rule 5-303(A) NMRA (requiring a defendant to be arraigned within fifteen
20 days of "the filing of the information or indictment or the date of arrest, whichever
2

1 is later"), or local rule LR2-400(C)(l) NMRA (2014) (setting forth a ten-day time
2 frame within which out-of-custody defendants must be arraigned and a seven-day
3 time frame for in-custody defendants ). 1
4 {4} 	On October 7, 2016, Defendant was not present for the second arraignment
5 setting. Defense counsel stated that Defendant "was originally listed as in custody,
6 but wasn't transported. We've looked in MDC. We don't see him-see him as being
7 listed there." After verifying the addresses used by Defendant, defense counsel
8 requested that the arraignment be reset and the arraignment was again continued.
9 	{5} 	A 	third 	arraignment 	was 	attempted 	on 	October 	21, 	2016. 	Notice 	of
10 arraignment was mailed to Defendant, this time to an alternative address provided
11 	by defense counsel, and the State sought another order to transport Defendant from
12 	SCDC to MDC. Again, Defendant was not present. Having realized by then that
13 	Defendant was not in custody, the State requested and the district court issued a
14 bench warrant. Defendant was ultimately arraigned on December 2, 2016, having
15 	been arrested on another matter on October 23, 2016, and transported from SCDC
16 to MDC on November 21, 2016, pursuant to the bench warrant.
1The local rule was recompiled as LR2-308 NMRA, effective December 31,
2016, pursuant to Supreme Court Order No. 16-8300~015. The applicable portions
of the local rule did not change until January 15, 2018.
3

1 {6} 	Defendant moved to dismiss for failure to timely arraign him. 2 In its response,
2 the State noted that it "called both [SCDC] and [MDC]" and determined that
3 Defendant was not in custody on the date the indictment was filed, and was not
4 incarcerated until he was arrested on October 23, 2016. Although the 	State's
5 response was timely filed, the district court did not appear to have reviewed it prior
6 to the hearing:
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The court: 	Ok, this was a motion filed by defense with regard to
failure to arraign Defendant timely. [State's counsel,]
have you reviewed that?
The State: 	Yes~ Your Honor, I have reviewed it and I did file a
response.
The court: 	Ok. Why don't you just tell me what it is since I don't have
it.
The State: 	Oh, I apologize ...
The court: 	That's okay, no, I'm sure it's somewhere.
The State: 	I have a copy if you'd like to ...
The court: 	No, [be]cause what we're going to talk about is dates, so
let's see where we agree and where we disagree on dates.
19 	{7} 	The district court granted the motion and dismissed the matter without
20 prejudice, reasoning that even if the State was uncertain as to whether or not
2 In Defendant's motion to dismiss, he argues that the in-custody deadline was
violated but offered no evidence that he was in custody at that during the -relevant
time period.
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1 Defendant was in custody on October 3, 2016, it should have requested a bench
2 warrant in order to extend the fifteen-day arraignment deadline. See Rule 5-209(B)
3 NMRA; State v. Littlefield, 2008-NMCA-109, 112, 144 N.M. 655, 190 P.3d 1150
4 (holding that issuance of a bench warrant for failing to appear restarted the allotted
5 time for commencement of trial under the former six-month rule). Defendant asked
6 the district court to apply the local rule and dismiss the case with prejudice, but the
7 court declined to do so, based on its stated view that the purpose and scope of the
8 rule was limited to addressing discovery issues. In its written order, the district court
9 dismissed the case without prejudice based upon "the State's failure to timely arraign
10 Defendant within [fifteen] days of indictment in accordance with [Rule] 5-303."
11 	DISCUSSION
12 {8} 	The State asks us to reverse the district court's dismissal for a number of
13 	reasons, which we consolidate and address as follows. First, we conclude that the
14 	local rule, and not the New Mexico Rules of Criminal Procedure, governs both the
15 	time limitations 	and the propriety 	of sanctions 	in this 	case. 	Second, 	that in
16 	determining whether dismissal was an appropriate remedy under the local rule, the
17 district court was required to assess (1) the State's culpability, (2) prejudice to the
18 	defendant, and (3) the availability of lesser sanctions. See State v. Le Mier, 2017-
19 NMSC-017, 115, 394 P.3d 959; State v. Harper, 2011-NMSC-044, 150 N.M. 745,
20 266 P.3d 25. Because there is little evidence of culpability on the part of the State
5

1 and Defendant made no showing of prejudice, we reverse the district court's
2 dismissal and remand for. reinstatement of the charges.
3 I. 	Standard of Review
4 	{9} 	We review the district court's decision to dismiss for untimely arraignment,
5 pursuant to Rule 5-303, de novo. State v. Sanchez, 2000-NMCA-061,, 7, 129 N.M.
6 301, 6 P.3d 503 (applying de novo review to question of whether district court should
7 have dismissed for untimely arraignment, pμrsuant to the former six-month rule
8 under Rule 5-604 NMRA); State v. Lohberger, 2008-NMSC-033,, 18, 144 N.M.
9 297, 187 P.3d 162 ("Since the issues we address involve interpretation of court rules,
10 	... our standard of review is de novo."). But we review the imposition of sanctions
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11 	under the local rule for abuse of discretion. State v. Lewis, 2018-NMCA-019,, 5,
12 413 P .3 d 484 (applying abuse of discretion review to imposition of sanctions under
13 	the local rule), cert. denied, 2018-NMCERT- _ 	(No. S-1-SC-36798, Jan. 9, 2018);
14 State v. Lucero, 2017-NMCA-079, , 	14, 406 P.3d 530 (reviewing imposition of
15 	sanction of dismissal without prejudice under the local rule for abuse of discretion),
16 cert. denied, 2017-NMCERT- _ 	(No. S-1-SC-36448, Aug. 3, 2017).
17 II. 	The Local Rule Applies
18 	{10} 	The State contends that the district court erred by applying Rule 5-303 instead
19 	of the local rule in granting Defendant's motion to dismiss. We agree, but in this
20 circumstance the difference is immaterial to the timeliness of Defendant's initial
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1 arraignment date or the tardiness of the date on which Defendant was in fact
2 arraigned.
3 	{11} 	The local rule, promulgated on November 6, 2014, as "a special pilot rule"
4 applicable in the Second Judicial District Court, provided strict case management
5 deadlines for all criminal cases filed or pending in that court. The New Mexico
6 Supreme Court made clear that the local rule superseded any conflicting, generally-
7 applicable Rule 	of Criminal Procedure, 	stating that "[t]he Rules 	of Criminal
8 Procedure for the [d]istrict [c]ourts and existing case law on criminal procedure
9 continue to apply to cases filed in the Second Judicial District Court, but only to the
IO 	extent they do not conflict with this pilot rule." LR2-400(A) (2016) (emphasis
11 	added).
12 	{12} 	When the motion to dismiss was decided, the time limitation for arraignment
13 	under the local rule-ten days for out-of-custody defendants-conflicted with the
14 fifteen-day arraignment deadline specified in Rule 5-303. In this case, however, the
15 	conflicting deadlines only resulted in a one-day difference in the applicable deadline:
16 the last day to timely arraign Defendant under the local rule was October 5, 2016, as
17 opposed to October 6, 2016, under Rule 5-303. 3 LR2-400(C)(l) (2016); Rule 5-
18 	104(A)(2) NMRA (2014) (excepting triggering date, intermediate weekends, and
3
Defendant does not allege on appeal that he was in custody when he was
indicted, so we do not consider the seven-day deadline provided in LR2-400 for in-
custody defendants.
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1 legal holidays from time calculation when stated period is ten days or less); Rule 5-
2 303 (requiring arraignment within fifteen days from the date of indictment). Under
3 both rules-the binding local rule and the otherwise applicable rule of criminal
4 procedure-the initial arraignment setting on October 3, 2016, was timely and the
5 actual arraignment date of December 2, 2016, was not.
6 III. 	Sanctions for Failure to Timely Arraign
7 	{13} 	We next address the consequence of the untimely arraignment. It is well
8 settled that the local rule requires the district court to impose sanctions when a party
9 fails to comply with any of its provisions. LR2-400(I)(l) (2016) ("If a party fails to
10 comply with any provision of this rule or the time limits imposed by a scheduling
11 	order entered under this rule, the court shall impose sanctions as the court may deem
12 appropriate in the circumstances and taking into consideration the reasons for the
13 	failure 	to 	comply." 	(emphasis 	added)). 	Yet, 	while imposition 	of sanctions 	is
14 mandatory, the district court has discretion regarding the type of sanction to impose.
15 	See id. (providing that "the comi shall impose sanctions as the court may deem
16 appropriate in the circumstances and taking into consideration the reasons for the
17 failure to comply"); see also Le Mier, 2017-NMSC-017, 120 (explaining that the
18 	decision to issue a discretionary sanction "requires our courts to navigate an array of
19 concerns and to exercise their discretionary power with practical wisdom and due
20 care"). That discretion, however, is guided by prior procedural precedent to the
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1 extent it does not conflict with the local rule. Lewis, 2018-NMCA-019,, 8 (stating
2 that existing case law provides guidelines for assessing sanctions under the local rule
3 as long as no conflict exists).
4 	{14} 	Citing Harper, the State argues that the district court abused its discretion by
5 failing to consider culpability, prejudice, and lesser sanctions in evaluating the
6 appropriateness of dismissal here. 2011-NMSC-044,, 2 (applying this analysis to
7 evaluate the appropriateness of the severe sanction of witness exclusion). Shortly
8 after the State filed its appeal, our Supreme Court decided Le Mier, which clarified
9 the applicability and import of Harper. See Le Mier, 	2017-NMSC-017, , 	20.
10 ("Courts 	must 	evaluate 	the 	considerations 	identified 	in 	Harper-culpability,
11 	prejudice, and lesser sanctions- ... and must explain their decision ... within the
12 	framework articulated in Harper, but it is not the case that [a severe sanction is]
13 justified only if all of the Harper considerations weigh in favor of [the sanction].").
14 	We have since considered the interplay of Le Mier with the local rule and found no
15 	conflict, stating that "culpability, prejudice, and lesser sanctions are appropriate
16 tools for evaluating the type of sanction that the district court may impose." Lewis,
17 2018-NMCA-019, , 8. Although Harper, Le Mier, and Lewis are all addressed
18 toward "severe" sanctions such as dismissal with prejudice or witness exclusion, we
19 observe that the analytical framework articulated in these cases does not_ occur after-
20 the-fact based on the level of sanction the district court deems appropriate; instead,
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1 it is the framework the court must work through to arrive at the appropriate sanction,
2 and this analysis may in some instances lead the court to lesser sanctions. The
3 analysis is no less appropriate or important in these instances. For these reasons, we
4 conclude it is appropriate to apply the Harper/Le Mier considerations here.4
5 {15} 	Applying 	Harper/Le 	Mier, 	we 	first 	address 	culpability 	and 	the 	State's
6 argument that it had no duty to timely arraign the Defendant. We disagree with the
7 premise, as the district court and the parties all play a role in effecting a timely
8 arraignment. 	The 	district 	court 	shoulders 	the 	initial 	responsibility 	to 	set 	the
9 arraignment within the time frame required by our rules of procedure. See Sanchez,
10 2000-NMCA-061, 	,-r 9 	("We 	cannot 	completely 	absolve 	the 	trial 	court 	of
11 	responsibility [to schedule timely arraignment]."). The State, for its part, has a duty
12 to arrange for transport of in-custody defendants and to seek a bench warrant if a
13 	defendant does not appear. See LR2-308(H)(5) (2018) ("[T]he court may impose a
14 	sanction if the failure to transport was attributable to the prosecutor's failure to
15 	properly prepare and serve a transportation order if so required."). And, of course,
16 the defendant has a duty to appear.
4We note that the amended version of the local rule is in accord with our
conclusion and now expressly requires that "[a]ny court order of dismissal with or
without prejudice or prohibiting a party from calling a witness or introducing
evidence shall be in writing and include findings of fact regarding the moving party's
proof of and the court's consideration of [the sanction limitation] factors." LR2-
308(H)(6) (2018).
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1 {16} 	Nevertheless, the State's culpability in this case, if any, was slight. Any
2 missteps attributable to the State stemmed from its mistaken belief-one apparently
3 shared by all concerned-that Defendant was initially in custody. This caused
4 confusion 	about 	the 	proper 	arraignment deadline 	and 	caused 	slight 	delay 	in
5 discovering that Defendant was actually failing to appear for his arraignments. This
6 mistake also contributed to the State's failure to timely seek a bench warrant. The
7 State can also be faulted for failing to notify the district court at the first scheduled
8 arraignment 	on 	October 	3, 	2016, 	that 	the 	deadline 	would 	expire 	before 	the
9 rescheduled arraignment on October 7, 2016. lnjuxtaposition, Defendant's repeated
10 failures to appear for the various arraignment settings were the primary cause of the
11 	untimely arraignment. Defendant does not allege on appeal that he was in custody
12 during the time period covered by the three October 2016 arraignment settings or
13 	that the State had a duty to transport him, but failed to do so. Nor does Defendant
14 allege that there was any defect in the mailing or contents of the notices 	of
15 	arraignment. 	And Defendant cannot dispute that he 	would have 	been timely
16 arraigned if he had attended the initial arraignment ·scheduled for October 3, 2016.
17 This factor weighs strongly against dismissal. See generally State v. Jackson, 2004-
18 NMCA-057, 115, 135 N.M. 689, 92 P.3d 1263 ("The sanction of dismissal punishes
19 the public, not the prosecutor, and results in a windfall to the defendant." (internal
20 quotation marks and citation omitted)).
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1 {17} 	Likewise, Defendant made no claim or showing of prejudice in his motion or
2 at the hearing, even though we have long required the defendant to show prejudice
3 in seeking dismissal of an indictment for untimely arraignment. See State v. Budau,
4 	1973-NMCA-151, 1 5, 86 N .M. 21, 518 P .2d 1225 (holding that where the defendant
5 did not show that "his defense was prejudiced in any way by the delay" an untimely
6 arraignment did not merit dismissal); State v. Coburn, 1995-NMCA-063, 17, 120
7 N.M. 214,900 P.2d 963 ("[The d]efendant concedes that a technical violation of the
8 ... arraignment period ... will not justify dismissal in the absence of a showing of
9 prejudice"), superseded by rule on other grounds by Rule 5-604; see also Sanchez,
10 	2000-NMCA-061, 111 (affirming the district court's denial of a defendant's motion
11 	to dismiss where the delayed arraignment was due to a judicial recusal and not any
12 intentional delay by the state). In circumstances where a defendant is not prejudiced
13 	in his or her ability to present a defense, we have found that dismissal is improper
14 even where an arraignment is delayed several months. See Coburn, 1995-NMCA-
15 	063, 11 4, 	12 (reversing dismissal although arraignment was delayed by four
16 months); Sanchez, 2000-NMCA-061, 112, 8 (affirming grant of the state's motion
17 for extension of time in a case where arraignment was delayed by seven months).
18 	Granted, these cases were decided in a pre-local-rule legal landscape, but we find
19 them to be instructive nonetheless, particularly given the circumstance presented
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1 herein: limited culpability on the part of the State and a record devoid of a showing
2 of prejudice by Defendant.
3 	{18} 	Finally, while the sanction of dismissal without prejudice is not severe on its
4 face, it is nevertheless inappropriate in the absence of culpable conduct on the part
5 	of the State or prejudice to Defendant. We conclude that the district court erred by
6 ordering 	dismissal 	and 	remand 	for 	reinstatement 	of the 	charges 	and 	further
7 proceedings., In light of this result, we do not consider the parties' remaining
8 arguments.
9 	CONCLUSION
10 	{19} 	For the foregoing reasons, we reverse the district court and remand for further
11 	proceedings.
12 	{20} 	IT IS SO ORDERED.
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15 	WE CONCUR:
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