A-1-CA-39149•December 14, 2021- State of New Mexico v. Felicia J. Peru, No. A-1-CA-39149
December 14, 2021- State of New Mexico v. Felicia J. Peru, No. A-1-CA-39149
A-1-CA-39149Nmctapp
Texte intégral
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: _____________ 2 Filing Date: December 14, 2021 3 No. A-1-CA-39149 4 STATE OF NEW MEXICO, 5 Plaintiff-Appellee, 6 v. 7 FELICIA J. PERU, 8 Defendant-Appellant. 9 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 10 Tom F. Stewart, District Judge 11 Hector H. Balderas, Attorney General 12 Benjamin L. Lammons, Assistant Attorney General 13 Santa Fe, NM 14 for Appellee 15 Bennett J. Baur, Chief Public Defender 16 Caitlin C.M. Smith, Assistant Appellate Defender 17 Santa Fe, NM 18 for Appellant 19 Court of Appeals of New Mexico Filed 12/14/2021 2:07 PM
OPINION 1
HANISEE, Chief Judge. 2
{1} Defendant appeals the district court order continuing her probation, arguing 3
that the district court violated her right to due process by denying her motion to 4
appear in person at an adjudicatory hearing on the State’s motion to revoke her 5
probation. In denying Defendant’s motion, the district court relied on New Mexico 6
Supreme Court Order No. 20-8500-013 (the Supreme Court Order), in which the 7
Court set forth procedures related to the function of judicial proceedings in light of 8
the burgeoning COVID-19 pandemic. See Supreme Court Order No. 20-8500-013 (April 16, 9
2020), https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-No_-20-8500-013-Updating- 10
and-Consolidating-Precautionary-Measures-for-Court-Operations-in-NM-Judiciary-4-16-20.pdf. For the 11
reasons that follow, we affirm. 12
BACKGROUND 13
{2} Between May 2019 and January 2020, the State filed three different petitions 14
to revoke Defendant’s probation, alleging Defendant’s various failures to comply 15
with her probation requirements. On March 11, 2020, following the State’s third 16
petition to revoke probation, the COVID-19 pandemic was declared a public health 17
emergency in New Mexico.1 On April 16, 2020, our Supreme Court announced the 18
Supreme Court Order, updating precautionary measures for court operation in the 19
1See State of N.M., Executive Order 2020-004 (March 11, 2020) https://cv.nmhealth.org/wp-
content/uploads/2020/03/Executive-Order-2020-004.pdf.2
New Mexico Judiciary during the COVID-19 public health emergency, which is at 1
issue in this case. In pertinent part, the Supreme Court Order provides that “[a]ll 2
judges shall use telephonic or audio-visual attendance for court appearances by 3
attorneys, litigants, witnesses, and the press unless there is an emergency need for 4
an in-person appearance upon motion of a party.” Supreme Court Order No. 20- 5
8500-013 at 4. 6
{3} In May 2020, Defendant filed a motion requesting to appear in person at an 7
upcoming adjudicatory hearing on the State’s motion to revoke her probation. The 8
district court denied Defendant’s motion and stated within its findings that no 9
emergency need existed in the case. Following the adjudicatory hearing, at which 10
Defendant appeared via audio-visual connection, the district court filed its order 11
continuing Defendant’s probation and Defendant subsequently filed her notice of 12
appeal. The State filed a fourth petition to revoke Defendant’s probation, alleging 13
continued violations. Following a hearing on the State’s motion, the district court 14
filed an order in which it unsatisfactorily discharged Defendant from probation and 15
released Defendant from the Grant County Detention Center. 163
DISCUSSION 1
{4} We observe at the outset that because Defendant was unsatisfactorily 2
discharged from probation and subsequently released on the district court’s order, 3
this case presents no actual controversy, and we are unable to grant any actual relief. 4
Indeed, Defendant states that “[s]he does not ask this Court to reinstate her to 5
probation. She asks simply for this Court to hold that she had a right to appear in 6
person at her [adjudicatory] hearing, and that that right was violated.” Thus, this case 7
appears to be moot. See Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 8
P.3d 1008 (“A case is moot when no actual controversy exists, and the court cannot 9
grant actual relief.” (internal quotation marks and citations omitted)). Even if a case 10
is moot, we have discretion to “review moot cases that present issues of substantial 11
public interest or which are capable of repetition yet evade review.” Id. ¶ 10. 12
Recognizing the likelihood that this Court will be asked to resolve future cases that 13
are similarly related to the district court’s application of the Supreme Court Order— 14
or other similar orders from our Supreme Court related to COVID-19—we address 15
below the merits of Defendant’s appeal. 16
{5} Here, Defendant’s primary argument is that the district court misinterpreted 17
the Supreme Court Order and, in so doing, violated Defendant’s rights to due process 18
by denying her motion to appear in person at an adjudicatory hearing.2 Defendant 19
2 Defendant argues as well that there was insufficient evidence of a violation
to support the district court’s revocation of her probation. Defendant fails to develop4
does not argue that the Supreme Court Order itself is erroneous or unconstitutional, 1
but rather that the district court erred in its interpretation and application of the 2
Supreme Court Order. Defendant asserts that because she filed motions requesting 3
in-person proceedings, the district court was required under the Supreme Court 4
Order to grant such motions and hold in-person proceedings. Indeed, Defendant 5
contends that “[w]hen [she] insisted on appearing in person, the district court needed 6
to conduct the hearing in person, with appropriate safeguards to protect everyone 7
from [the C]oronavirus.” Defendant misapprehends the Supreme Court Order. 8
{6} The Supreme Court Order states that “[a]ll judges shall use telephonic or 9
audio-visual attendance for court appearances by attorneys, litigants, witnesses, and 10
the press unless there is an emergency need for an in-person appearance upon motion 11
of a party.” Supreme Court Order No. 20-8500-013 at 4 (emphasis added). The 12
Supreme Court Order further provides that the district court has discretion to order 13
in-person appearances “on the judge’s own initiative, without a motion by a party, 14
this argument with any explanation or analysis, citation to the record, or citation to
relevant authority, and we therefore consider the argument to be undeveloped and
decline to address it further. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329
P.3d 701 (“This Court has no duty to review an argument that is not adequately
developed.”); see In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676
P.2d 1329 (“We have long held that to present an issue on appeal for review, an
appellant must submit argument and authority as required by rule. We assume where
arguments in briefs are unsupported by cited authority, counsel after diligent search,
was unable to find any supporting authority. [T]herefore[, we] will not do this
research for counsel. Issues raised in appellate briefs which are unsupported by cited
authority will not be reviewed by us on appeal.” (citations omitted)).5
provided that the judge shall confer with the parties and the chief judge of the district 1
before proceeding with an in-person appearance.” Supreme Court Order No. 20- 2
8500-013 at 4. Specifically related to criminal proceedings, the Supreme Court 3
Order provides that “[a]ny criminal procedure rules requiring the presence of the 4
defendant may be accomplished through remote, audio-visual appearance in the 5
discretion of the judge, provided that confidential communication between the 6
defendant and defense counsel is made available[.]” Supreme Court Order No. 20- 7
8500-013 at 4. 8
{7} Under these provisions, the district court has discretion to require in-person 9
appearances within certain parameters or when moved to do so by a party asserting 10
an emergency need to appear in person. The Supreme Court Order does not require 11
the district court to grant a defendant’s motion for in-person proceedings where such 12
motion fails to present an emergency need. Defendant’s motion did not assert an 13
emergency need for Defendant to appear in person; rather it merely asserted a 14
general constitutional right to appear in person for probation revocation proceedings. 15
Moreover, Defendant fails to articulate on appeal that her motion was supported by 16
an emergency need and provides no authority to support her implicit assertion that 17
her desire to exercise her right to appear in person at proceedings constituted an 18
emergency. Because Defendant fails to establish that her motions were supported by 19
emergency need, contrary to the district court’s findings, we can assign no error to 20
the district court’s compliance with the Supreme Court Order. See State v. Aragon, 216
1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (explaining that “[t]here is a 1
presumption of correctness in the district court’s rulings” and that it is a defendant’s 2
“burden on appeal to demonstrate any claimed error below” (alterations, internal 3
quotation marks, and citation omitted)); see also Martinez v. Sw. Landfills, Inc., 4
1993-NMCA-020, ¶ 18, 115 N.M. 181, 848 P.2d 1108 (“[A]n appellant is bound by 5
the findings of fact made below unless the appellant properly attacks the findings, 6
and that the appellant remains bound if he or she fails to properly set forth all the 7
evidence bearing upon the findings.”). We therefore hold that the district court did 8
not err in its interpretation of the Supreme Court Order. 9
CONCLUSION 10
{8} For the reasons stated above, we affirm. 11
{9} IT IS SO ORDERED. 12
_____________________________ 13
J. MILES HANISEE, Chief Judge 14
WE CONCUR: 15
_____________________________ 16
JACQUELINE R. MEDINA, Judge 17
_____________________________ 18
GERALD E. BACA, Judge 19Vous vous demandez comment ce texte s’applique à votre situation ?
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