July 9, 2019- State of New Mexico v. Terra S., No. A-1-CA-37263

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
· 4 	v. 	No. A-1-CA-37263
5 TERRA S.,
6 	Child-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
8 JeffMcElroy, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Jane A. Bernstein, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	B. Douglas Wood III, Assistant Appellate Defender
16 	Santa Fe, NM
17 for Appellant
18 	MEMOAANDUM OPINION
19 VARGAS, Judge.
20 	{1} 	Child seeks review of the district court's denial of her motion to dismiss by
21 	interlocutory appeal. Because her application for interlocutory appeal was not timely
22 filed in this Court we dismiss.
Court of Appeals of New Mexico
Filed 7/9/2019 10:05 AM

1 BACKGROUND
2 	{2} 	The State of New Mexico filed a delinquency petition against Terra S., a
3 minor (Child), on January 5, 2018. Child made her first appearance on January 8,
4 2018, and the district court ordered that she be detained until future proceedings
5 were complete. On January 19, 2018, the State filed a notice of intent to invoke an
6 adult sentence against Child. Following two failed attempts to hol~ a preliminary
7 hearing, the State withdrew its notice of intent· to invoke an adult sentence on
8 February 28, 2018, and the district court placed Child on conditional release. On
9 March 9, 2018, Child filed a motion to dismiss, arguing that the case had exceeded
10 the allowable number of days for the prosecution of a juvenile petition and that the
1 l 	matter therefore should be dismissed. The district court held a hearing on the motion
12 on March 26, 2018, during which it orally denied Child's motion to dismiss.
13 	{3} 	The next day, Child sought an order from the district court permitting an
14 	interlocutory appeal of the district court's denial of Child's motion to dismiss. On
15 	March 30, 2018, the district court granted Child's motion for interlocutory appeal
16 finding that the case "involves a controlling question of law as to which there is
17 substantial ground for difference of opinion and that an immediate appeal from such
18 	order or decision may materially advance the ultimate termination of the litigation."
19 That same day, the district court entered a written order denying Child's motion to
20 dismiss. On April 3, 2018, Child filed a notice of interlocutory appeal in the district
2

1 court, and later on April 9, 2018, filed an application for leave to file an interlocutory
2 appeal and a docketing statement, both in the district court. On May 1, 2018, thirty-
3 two· days after the district court entered the denial of child's motion to dismiss and
4 granted Child's motion for interlocutory appeal, Child filed an application for leave
5 to file a docketing statement in this Court .
. 6 DISCUSSION
7 	{4} 	The Children's Code, NMSA 1978, Section 32A-1-17(A) (1999), provides
8 that any party may appeal from a judgment of the children's court division of the
9 district court to the court of appeals "in the manner provided by law." See NMSA
10 	1978, Section 32A-1-4(D) (2016, amended 2019)_ (defining "court" as used in the
11 	Children's Code). The "manner provided by law" for an interlocutory appeal of a
12 decision made in a delinquency proceeding was the subject of some debate in the
13 	district court .. Under NMSA 	1978, 	Section 39-3-4(A) 	(1999), 	which governs
14 interlocutory appeals from district court, a district court judge in a civil action or
15 	special statutory proceeding must state in writing that the decision he or she made
16 "does not practically dispose of the merits of the action" and "involves a controlling
17 question of law as to which there is substantial ground for difference of opinion"
18 	before an interlocutory appeal can be taken. The appellant then must file "an
19 application for an order allowing an appeal," along with a copy of the district court
20 decision, in the supreme court or court of appeals within fifteen days of the entry of
3

1 the district court's decision. Section 39-3-4(B). Juvenile delinquency proceedings,
2 are 	considered 	special 	statutory 	proceedings, 	also 	referred 	to 	as 	"special
3 proceedings." See State v. Florez, 1931-NMSC-068, ,r,r 1, 4, 36 N.M. 80, 8 P.2d 786
4 (recognizing that a proceeding sentencing a minor who pleaded guilty to larceny was
5 a statutory and special proceeding); see also State v. Acuna, 1967-NMSC-090, ,r 9,
6 78 	N.M. 	119, 	428 	P.2d 658 	(acknowledging holding 	of Florez 	that juvenile
7 proceedings 	are 	"special 	statutory 	proceedings" 	as 	opposed 	to 	criminal
8 proceedings); see also State v. Jones, 2010-NMSC-012, ,r 13, 148 N.M. 1, 229 P.3d
9 474 (stating that an amenability hearing is a "special proceeding").
10 	{5} 	In this case, however, the district court appears to have relied largely on
11 	NMSA 1978, Section 39-3-3(A) (1972) in making its decision. Section 39-3-3(A)(3)
12 	governs criminal appeals from district court and requires the appellant to file an
13 	application for an order allowing interlocutory appeal "in the appropriate appellate
14 	court within ten days after the entry of' the district court's decision, provided the
15 	district court makes a finding that the decision "involves a controlling question of
16 law as to which there is substantial ground for difference of opinion." Section 39-3-
17 3(A)(3).
18 	{6} 	Our rules of appellate procedure provide that an interlocutory appeal may only
19 be taken from a decision provided the district court issues an order containing the
20 language enumerated in Section 39-3-3(A)(3) or Section 39-3-4(A) and the appellant
4

1 initiates the appeal "by filing 	an application for interlocutory appeal with the
2 	appellate court clerk within fifteen (15) days after the entry of such order in the
3 district court." Rule I2-203(A) NMRA (emphasis added). "Neither the statute nor
4 rules authorize this [C]ourt to entertain late applications for interlocutory appeals or
5 extensions of time for filing late applications." Systems Technology, Inc., v. Hall,
6 2004-NMCA-130, 114, 136 N.M. 548, 102 P.3d 107 (internal quotation marks and
7 citation omitted). Upon receiving a timely filed application for interlocutory appeal,
8 the appellate court may then grant or deny the application, and if it is granted, the
9 	case may be assigned to a calendar. See Rule I2-203(F) NMRA; Starko, Inc. v.
IO 	Cimarron Health Plan, Inc., 2005-NMCA-040, 115, 137 N.M. 310, 110 P.3d 526
11 	("[T]here are two layers of discretion in interlocutory appeals. The district court has
12 discretion in issuing an interlocutory order or decision, and the appellate court has
13 	discretion in granting or denying the appeal.").
14 	{7} 	It 	is 	undisputed 	that 	Child 	filed 	her 	application 	for 	leave 	to 	file 	an
15 	interlocutory appeal in this Court well beyond the fifteen-day deadline specified
16 under Section 39-3-4, and Rule 12-203. Therefore, Child has failed to meet the
17 mandatory precondition to the exercise of our subject matter jurisdiction over her
18 	interlocutory appeal. Furthermore, it appears from the record that this Court never
19 granted 	Child's 	request 	to 	pursue 	an 	interlocutory 	appeal. 	Having 	filed 	her
20 	application 	for 	interlocutory 	appeal 	woefully 	late 	and 	never having 	had 	that
5

1 application granted, this Court is without jurisdiction to address the merits of Child's
2 interlocutory appeal at this time. See State v. Griego, 2004-NMCA-107, 1 6, 136
3 N.M. 272, 96 P.3d 1192 (holding that failure to comply with statutory requirements
4 for interlocutory appeal deprived the appellate col;lli of subject matter jurisdiction).
5 	{8} 	Child's reply brief concedes that her application for interlocutory appeal did
6 not comply with the fifteen-day timeline imposed by Section 39-3-4 and Rule 12-
7 203, and asserts for the first time in reply that because she is accused of "criminal
8 conduct" we should consider the merits 	of her appeal, pointing to principles
9 governing direct appeals and criminal law and procedure. For example, Child argues
10 that we should apply a presumption of ineffective assistance of counsel to the
11 	untimely filing of her interlocutory appeal in this case, pointing to State v. Duran,
12 	1986-NMCA-125, 1 1, 105 N.M. 231, 731 P.3d 374 as support. In Duran, the
13 	criminal defendant filed her notice of appeal over a year after her conviction, and
14 this Court adopted a conclusive presumption of ineffective assistance of counsel
15 	where defense counsel fails to timely file either a notice of appeal or an affidavit or
16 waiver of appeal in a criminal appeal of right. Duran occurred in the context of a
17 final adjudication in a criminal case and involved an appeal of right. We see no basis
18 	for expanding its application to the untimely filing of an application for interlocutory
19 appeal, and Child has not cited to any authority to support her suggestion that we
20 broaden the conclusive presumption adopted in Duran to discretionary appeals such
6

1 as this one. See In re Doe, 1984-NMSC-024, ,-r 2, 100 N.M. 764, 676 P.2d 1329
2 ("Issues raised in appellate briefs which are unsupported by cited authority will not
3 be 	reviewed 	by 	us 	on 	appeal."). 	Child's 	reply 	brief also 	claims 	a 	general
4 misunderstanding on the part of trial counsel regarding the required deadlines that
5 resulted in her untimely appeal, and argues counsel's "negligence or oversight"
6 should not preclude review of the merits of her appeal. Again, "[a]bsent statutory
7 authority or supreme court rule, appellate courts may not extend the time for appeal,
8 even to relieve against mistake, in advertence or accident." Candelaria v. Middle
9 Rio Grande Conservancy Dist., 1988-NMCA-065, ,-r 6, 107 N.M. 579, 761 P.2d 457.
10 	{9} 	Finally, Child points to 	Evitts 	v. 	Lucey, 	469 U.S. 	387 (1985), 	for the
11 	proposition that the ineffective assistance of counsel should not deprive her of her
12 right to appeal. This arguments is unavailing in light of the discretionary nature of
13 	interlocutory appeal. Evitts explicitly recognized that the right to counsel in appellate
14 proceedings is limited to the first appeal of right. As such, the considerations stated
15 	in Evitts are not applicable here, where the appeal is discretionary and interlocutory
16 	in nature. 469 U.S. at 393. "[E]ven when an interlocutory appeal is authorized under
17 	Section 39-3-4, this Court is very cautious in exercising its discretion to .hear the
18 	appeal." City of Sunland Park v. Paseo Del Norte Ltd. Partnership, 1999-NMCA-
19 	124, 18, 128 N.M. 163, 990 P.2d 1286.
7

l 	{10} 	To the extent Child argues that the ineffective assistance of her counsel in
2 pursuing her interlocutory appeal should n·ot bar her ability to appeal the denial of
3 her motion to dismiss, Child may pursue other avenues for appeal, including another
4 request for interlocutory appeal, a direct appeal or a habeas proceeding raising
5 ineffective assistance 	of counsel. 	See, 	e.g., Candelaria, 	1988-NMCA-065, , 7
6 (discussing impact that appellate court's dismissal 	of untimely application for
7 interlocutory appeal has on district court's authority in future proceedings).
8 CONCLUSION
9 	{11} 	As Child failed to meet the mandatory preconditions necessary to the exercise
10 of our subject matter jurisdiction over her interlocutory appeal, we dismiss her
11 	appeal without reaching the merits.
12 	{12} 	IT IS SO ORDERED.
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