May 23, 2019- State of New Mexico v. Angel Daniel Perez, No. A-1-CA-35834

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-35834
5 ANGEL DANIEL PEREZ,
6 	Defendant-Appellee.
7 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Alisa A. Hadfield, 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 	J.K. Theodosia Johnson , Assistant Appellate Defender
16 	Santa Fe, NM
17 	for Appellee
18
19 DUFFY, Judge.
MEMORANDUM OPINION
20 	{t} 	Defendant was indicted for racketeering, forgery, and the alternative offense
21 	of fraud. The district court dismissed the charges without prejudice as a sanction for
22 	untimely arraignment pursuant to LR2-400(C)(l) NMRA (2016). The State appeals.
23 	We affirm.
Court of Appeals of New Mexico
Filed 5/23/2019 8:51 AM

1 BACKGROUND
2 	{2} 	Defendant was indicted on Friday, May 19, 2016. At the time, Defendant was
3 in the custody of the Department of Corrections and serving time at the Penitentiary
4 of New Mexico, but had been transported to the Bernalillo County Metropolitan
5 Detention Center (MDC) so that he could be present at his grand jury proceeding.
6 Although the State had arranged for Defendant's transport to MDC and Defendant
7 remained in MDC custody, the indictment presentation order indicated Defendant
8 was in the custody of the New Mexico Department of Corrections.
9 	{3} 	Defendant was required to be arraigned not later than seven business days
10 after the indictment, or by May 31 , 2016, pursuant to LR2-400(C)(l). On May 23,
11 	2016, the State noticed that the matter had not been set for arraignment and contacted
12 the district court to request that the matter be set for arraignment. The district court
13 	filed a notice of arraignment later that day, which set arraignment for June 3, 2016.
14 	The notice stated, "PER ADA'S OFFICE (DEFENDANT IN DOC CUSTODY)"
15 	indicating that the State believed that Defendant was located at the penitentiary,
16 	rather than at MDC.
17 {4} 	The State waited an additional four days before notifying the district court that
18 	the June 3, 2016 arraignment would be untimely pursuant to LR2-400(C)(l); it filed
19 a motion to extend the arraignment deadline on Friday, May 27-just one business
20 day before the arraignment deadline would expire on Tuesday, May 	31 	(the
2

1 intervening Monday was Memorial Day, a holiday not counted for purposes of
2 calculating the seven-day period). The State, mistakenly believing that Defendant
3 was at the penitentiary, argued that the arraignment could not be completed by the
4 local rule ' s deadline because transportation from the penitentiary before May 31
5 would not be possible. No order was entered on the State' s motion before the June
6 3 arraignment setting.
7 	{5} 	The 	district 	court 	conducted 	a hearing 	on June 	3, 2016. 	Even 	though
8 Defendant was in custody and the transportation order incorrectly identified his
9 location, he appeared at the hearing in person. His counsel made an oral motion to
10 	dismiss the indictment based upon the untimeliness of his arraignment. In response,
11 	the State pointed out that it had attempted to resolve the untimeliness through its
12 motion for enlargement, to no avail. The district court granted Defendant's motion
13 	and dismissed the case without prejudice because Defendant was not arraigned
14 within seven days 	of the date 	of the indictment. The State filed a motion to
15 	reconsider, which the district court denied.
16 	{6} 	The district court's written orders for the June 3 hearing and on the motion to
17 reconsider did not contain findings of fact regarding its consideration of the factors
18 	articulated in State v. Harper, 2011-NMSC-044, ,, 16-20, 150 N.M. 745 , 266 P.3d
19 25, and clarified by State v. Le Mier, 2017-NMSC-Ol 7, , 20, 394 P.3d 959, which
20 require district courts to consider "culpability, prejudice, and lesser sanctions" when
3

1 imposing sanctions. Le Mier, 2017-NMSC-017,, 20; State v. Lewis, 2018-NMCA-
2 	019,, 8, 413 P.3d 484 (stating that "culpability, prejudice, and lesser sanctions are
3 appropriate tools for evaluating the type of sanction that the district court may
4 	impose" pursuant to the local rule). We issued an order oflimited remand asking the
5 district court to explain its reasoning within the analytical framework provided by
6 Harper, and having reviewed the district court's findings, we affirm.
7 DISCUSSION
8 	{7} 	We review the district court's imposition of sanctions pursuant to LR2-400
9 	for an abuse of discretion. See Lewis, 2018-NMCA-019,, 5 (applying abuse of
10 discretion standard to review imposition of sanctions under LR2-400).
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An abuse of discretion occurs when the ruling is clearly against the
logic and effect of the facts and circumstances of the case. We cannot
say the trial court abused its discretion by its ruling unless we can
characterize 	it as 	clearly untenable 	or not justified by reason. 	In
reviewing the district court's decision, [an appellate court] views the
evidence-and all inferences to be drawn from the evidence-in the
light most favorable to the district court's decision.
18 Le Mier, 2017-NMSC-O 17,, 22 (internal quotation marks and citation omitted). "As
19 an appellate court, we necessarily operate with imperfect information about the
20 proceedings we review, and our assessment of the propriety of the decision to impose
21 	or not to impose [a sanction] must reflect this reality." Id. , 	17. "[T]rial courts
22 	shoulder the 	significant and 	important responsibility 	of ensuring the 	efficient
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1 administration of justice in the matters over which they preside, and it is our
2 obligation to support them in fulfilling this responsibility." Id. ,-r 18.
3 	{8} 	We 	asked 	the 	district 	court to 	explain 	its 	consideration 	of culpability,
4 prejudice, and lesser sanctions in a written order and now review the district court' s
5 	findings related to each factor.
6 	Culpability
7 	{9} 	"The degree of culpability .. . is a fact-specific inquiry for the district court to
8 consider in assessing sanctions against a party." Lewis, 2018-NMCA-019, ,-r 13. The
9 	district court considered the State' s culpability in its order on limited remand and
10 stated:
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15
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The 	State had the 	ability and resources to determine Defendant's
whereabouts when arraignment was set on May 23 , 2016. Although not
intentional, the State made no attempt to confirm Defendant' s actual
location, despite having had him transported to MDC for the Grand
Jury, which led to the State's mistaken belief that Defendant would not
be able to be transported in time for arraignment before the deadline.
17 The district court indicated that the State would have been able to comply with an
18 arraignment on or before the deadline if it had been aware of Defendant's actual
19 location. The district court also noted the State's delay in filing its motion for
20 enlargement- 	four days after receiving notice of the June 3 arraignment date on
21 	Tuesday, May 23 . While the State followed the correct procedure, in light of the
22 	seven-day timeframe required by the local rule, the four-day delay amounted to over
23 	half of the arraignment period and occurred just one business day before the
5

1 arraignment deadline. In our view, this request did not adequately provide the district
2 court with notice or an opportunity to cure the problem. While we are mindful of the
3 	district court's responsibility to set arraignments within the timeframes required by
4 the local rule and note that the State had limited options to address the untimely
5 arraignment setting, we nevertheless conclude that the district court did not abuse its
6 discretion in finding the State culpable based on these facts, particularly given the
7 short deadlines at play.
8 Prejudice
9 	{to} 	Prejudice occurs when a delay impacts a defendant's ability to present a
10 defense and when it results in a waste of judicial resources. Le Mier, 2017-NMSC-
11 	017, 1125-26 ("Courts need not suffer nor tolerate a party's inability to comply with
12 	rules and orders but must instead ensure that the party's non-compliance does not
13 	result in the waste of judicial resources. Here, the court's time was wasted, and this
14 is prejudicial."). In this case, the district court found that:
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Defendant allegedly lost access to services and treatment that had been
available through the DOC during the unnecessary time he was held in
MDC beyond the arraignment deadline. Additionally, the Court had to
devote time and resources in hearing the motion for reconsideration and
in determining the motion for enlargement.
20 (Citation omitted.) We note that the allegations oflost "services and treatment" were
21 	based on the entire three-week period in which Defendant was at MDC due to his
22 	request to attend the grand jury setting, and not just the three days Defendant was
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1 held in MDC beyond the arraignment deadline. Regardless, the State's failure to
2 accurately identify his location meant that he was at MDC since before the grand
3 jury proceeding. We consider the district court's written findings sufficient to satisfy
4 the prejudice prong of Harper. See 2011-NMSC-044, ,r 19.
5 Availability of Lesser Sanctions
6 	{11} 	"Finally, we look at whether the district court considered lesser sanctions prior
7 to dismissing the case[.]" Lewis, 2018-NMCA-019, ,r 15. The requirement that
8 district courts consider lesser sanctions does not mean that courts are obligated to
9 "consider every conceivable lesser sanction." Le Mier, 2017-NMSC-017, ,r 27. "To
10 require this would be to significantly impinge upon and curtail the court's broad
11 	discretionary authority to fashion appropriate sanctions for [rule] violations. Rather,
12 the court was only required to fashion the least severe sanction that best fit the
13 	situation and which accomplished the desired result." Id. ( citation omitted). Here,
14 the 	district 	court 	determined 	that "[d]ismissal 	without prejudice 	is 	the 	most
15 	appropriate 	sanction, 	as 	the 	State 	remains 	free 	to 	re-indict 	the 	case 	against
16 Defendant." We note that dismissal without prejudice is one of the lesser sanctions
17 available and conclude that the district court appropriately considered this factor
18 	within the framework 	of Harper/Le Mier to determine that dismissal without
19 prejudice was the most effective and least severe response to the violation at issue
20 here.
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I 	CONCLUSION
2 	{12} 	Based on the district court' s consideration of the Harper and Le Mier factors
3 of culpability, prejudice, and lesser sanctions, we conclude that the district court did
4 not abuse its discretion in dismissing this case without prejudice. We affirm.
5 	{13} 	IT IS SO ORDERED.
8 WE CONCUR:
.
911, .~
10 J. MILES HANISEE, Judge
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