A-1-CA-39379 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: Court of Appeals of New Mexico
Filed a 9:38 AM

Filing Date: June 22, 2022 Ade.
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No. A-1-CA-39379 Mark Reynotis

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Attorney~Appellant.

APPEAL FROM THE DISTRICT COURT OF UNION COUNTY
Melissa A. Kennelly, District Judge

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Hector H. Balderas, Attorney General
Van Snow, Assistant Attorney General
Santa Fe, NM

for Appellee

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Peifer, Hanson, Mullins & Baker, P_A.
Rebckah A. Gallegos
Sara N. Sanchez

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Sarah K.. Hyde
Albuquerque, NM

for Appellant

OPINION

43 Attorney Alan Maestas was held in contempt of court after he refused to

proceed with trial. The district court sentenced Maestas to 182 days of incarceration

restitution. On appeal, Maestas challenges the propriety of his conviction for direct

criminal contempt as well as the district court’s sentence. We affirm Maestas’s

conviction for direct contempt. However, viewing the district court’s sentence as an

abuse of discretion, we remand for resentencing.

BACKGROUND

23 Maestas’s contempt conviction arose during the course of his representation

of a criminal defendant when Maestas refused to go forward with trial. The

background of the criminal case is relevant to our analysis and the following

recitation of events is gleaned from the record below. We emphasize, however, that

none of the allegations against the defendant had been tested or proven at trial by the

time this matter came to us on appeal, and therefore, nothing in this opinion should

be construed as a determination on the matters at issue in the separate criminal case

against the defendant.

33, The defendant, a semi-truck driver from Texas transiting through northern

New Mexico, was stopped by law enforcement in Union County in March 2017 after

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he failed to stop at the port of entry. During a search of the defendant’s truck, officers

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narcotic pain pill, two opened condoms, and a bottle of lubricant. The defendant was

placed on a twenty-four-hour driving hold and parked overnight at a travel stop in

Clayton. The following day, officers returned to the truck to conduct a welfare check

on J.V., during which they took custody of her and transferred her to the care of the

Children, Youth and Families Department. J.V. underwent an initial safe house

interview where she made no disclosure of sexual abuse and declined to undergo a

sexual assault exam. In two subsequent safe house interviews, however, J.V. alleged

that the defendant had sex with her while traveling through New Mexico. J.V. then

underwent a sexual assault exam, which revealed injuries consistent with her

allegations. The defendant was arrested and charged with criminal sexual

penetration of a minor, child abuse resulting in great bodily harm, and enticement of

a child.

{4 Maestas entered his appearance in the defendant’s case in September 2018,

after the case had been pending for nearly a year and a half.' Maestas developed a

defense theory that centered on discrediting the interview methods used to elicit the

allegations J.V. made during her safe house interviews. Maestas retained Dr. Susan

'The defendant was initially represented by two other attorneys before

retaining Maestas.

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Cave, a clinical and forensic psychologist, as an expert witness who would provide

witness after a Daubert hearing, and Dr. Cave’s expert testimony became a crucial

part of the defendant’s defense.

{5} Maestas and the state vigorously litigated the case over the next two years

Trial was set and continued twelve times in total by either the defendant or the state,

for a variety of reasons, or due to complications relating to the COVID-19 pandemic

that struck New Mexico in March 2020. We focus here on the final continuance

granted by the district court, and the ensuing trial setting itself, as these are the events

that led to Maestas’s contumacious conduct.

{6} On August 25, 2020, the district court issued an order continuing and resetting

the jury trial scheduled to take place that day because the defendant’s mother—

whom he lived with and cared for—tested positive for COVID-19. Trial was reset

for October 26, 2020. On October 9, Dr. Cave informed Maestas that she would be

having surgery on October 27 and would not be able to testify during the October

trial setting. Two business days later, Maestas filed a motion requesting a one-month

trial continuance, citing Dr. Cave’s unavailability and his recent discovery that the

state had not disclosed or provided statements for two witness interviews that had

occurred before Maestas took over as defense counsel. The district court held a

hearing on the motion and questioned Dr. Cave directly. Dr. Cave explained that she

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could not remember when Maestas told her that the trial had been continued to

October 26. She further stated that_her_st

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and that Maestas had told her about the new trial date at some point after that. During

the hearing, the court ruled that Maestas had failed to timely notify Dr. Cave about

the October trial date and concluded that failure was a matter of attorney negligence

rather than an extraordinary circumstance necessitating a continuance.” In its written

order, the court found that the case had been pending for three and one-half years,

that Maestas had moved to continue the trial six times, and that “lilt has become

apparent to the Court that it is part of defense’s strategy to delay trial for as long as

possible in this matter.” The district court denied the continuance and ordered the

case to proceed to trial.

*We pause here to address the district court’s focus on “extraordinary
circumstances.” The court provided a detailed explanation of events in its “decision

& judgment and sentence on direct criminal contempt,” noting that “[o]n January 7,
2020, the Court entered a scheduling order that advised the parties there would be
no further trial continuances unless extraordinary circumstances required it.” The

court concluded that the unavailability of the defendant’s expert witness “was not an
extraordinary circumstance that justified another trial continuance.” However, the
same “extraordinary circumstances” language also appears in an earlier scheduling

order, entered one month before the January 7, 2020, scheduling order on December
6, 2019. The December 6 scheduling order set the trial to occur in February. Shortly
after that order was entered, the state requested a continuance because its “key

witness,” a SANE nurse, was unavailable. The court granted the continuance and
this is what gave rise to the January 7, 2020, scheduling order that, ten months later,
the court relied on as justification for denying the defendant’s request for a

continuance due to Dr. Cave’s unavailability.

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{7 In response to that order, Maestas filed a motion on October 22—four days

process rights. Maestas indicated that he intended to appear in court on the trial date

and would inform the court that he could not provide effective assistance of counsel

without Dr. Cave’s testimony. Maestas expressly stated that the purpose of the

motion was to provide the court with notice to “call off jurors and to schedule other

judicial matters.” The court denied this motion the next day and ordered Maestas to

appear at trial, stating that “[al]ny party or attorney who violates this order shall be

subject to contempt of court and appropriate sanctions as permitted by law.”

{833 One final event delayed the October 26 trial setting: on the evening of October

25, the judge and district court staff arrived at the county courthouse in Clayton and

were promptly snowed in by a storm that closed the courthouse for three days,

delaying trial until the morning of October 29. That morning, Maestas filed a twenty-

nine-page brief informing the court that he found himself in a dilemma: he was

forced to choose between obstruction by disobeying the district court’s command

that he participate in the trial of the defendant or to proceed without being able to

vigorously advocate on behalf of the defendant given his inability to present

otherwise admissible expert testimony as to Defendant’s theory of defense.

Maestas’s choice in resolving that dilemma would become clear during the

morning’s proceedings.

{9} The court called the case and, outside the presence of the jury, reiterated its

Citing American Bar Association (ABA) standards for representation of criminal

defendants, Maestas responded by first outlining his argument that he was incapable

of his inability to.adequately represent him at trial. Maestas further stated that he had

explained the ABA guidelines to the defendant, and since the defendant indicated he

was unsure whether he wanted Maestas to continue or not, the defendant should be

allowed to seek independent counsel in order to protect his constitutional rights.

{10} The court responded that effective assistance of counsel was a-legal question

for the court, not a determination to be made unilaterally by defense counsel. The

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court then provided a detailed explanation of why the denial of the continuance did

not render counsel’s assistance ineffective and did not deprive the defendant of due

process. The court stated it found Maestas’s attempt to essentially call off the trial

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“highly improper, unlawful, and unjustified obstruction of the administration of

justice.” The court ruled that Maestas was-not rendered ineffective and ordered him

the court reiterated that Maestas was on notice that he would be held in direct

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criminal contempt should he refuse to proceed, and that the maximum fine and a

(113, Maestas responded by emphasizing his duty to his client and the Constitution

as a criminal defense attorney. He noted that he appeared in front of the court with

knowledge that he could be held in direct criminal contempt, and rather than simply

refusing to appear and instead facing indirect contempt proceedings, possibly in

front of a different judge, he appeared as directed. Speaking directly to the district

court judge, Maestas stated that he would not subject his client to ineffective

assistance of counsel, a conviction, and a lengthy appeals process, and would instead

refuse to proceed. He then asked the court to review the brief he filed on the morning

of trial, and should the court find him in direct contempt, asked that he be jailed in

Taos County so that he could receive visitors.

2} Instead of delaying proceedings to read Maestas’s brief, the court allowed him

to make an oral record. The court asked Maestas one final time if he intended to

proceed. Maestas refused, and the court held him in direct criminal contempt. The

court then sentenced Maestas to a $1,000 fine, court costs, 364 days imprisonment

with 334 days suspended followed by unsupervised probation, with the term of

incarceration to be served in Union County. At the state’s suggestion, the court also

ordered restitution. The following week, the court sua sponte reduced Maestas’s

sentence to 182 days imprisonment, suspending 152 days, for a total term of

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incarceration of thirty days, and ordered him to report to the Union County Sheriff's

office ten days later to begi

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$999 and ordered him to pay $55 in fees, while leaving restitution to be determined

at a later hearing. Maestas timely appealed, which stayed the execution of his

sentence under NMSA 1978, Section 39-3-15(A) (1966)

STANDARD OF REVIEW

3} “Criminal contempt convictions may be routinely reviewed on appeal for

arbitrariness and abuse of discretion.” Concha v. Sanchez, 2011-NMSC-031, 4 46,

150 N.M. 268, 258 P.3d 1060. “The only limit on a contempt sentence is the trial

court’s discretion, which is reviewable on appeal.” Case v. State, 1985-NMSC-103,

45, 103 N.M. 501, 709 P.2d 670. But see State v. Case, 1983-NMCA-086, § 13, 100

N.M. 173, 667 P.2d 978 (noting that “[s]entences exceeding six months for criminal

contempt may not be imposed absent a jury trial or waiver thereof’); Seven Rivers

Farm, Inc. vy. Reynolds, 1973-NMSC-039, 9 42, 84 N.M. 789, 508 P.2d 1276

(holding that a jury trial is not required as long as the fine imposed does not exceed

$1,000). “An abuse of discretion occurs when a ruling is clearly contrary to the

logical conclusions demanded by the facts and circumstances of the case.” Benz v.

Town Ctr. Land, LLC, 2013-NMCA-111, § 11, 314 P.3d 688 (internal quotation

marks and citation omitted).

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DISCUSSION

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414; Maestasadvances_two—primary—arguments—on—appeal.__First

challenges the propriety of holding him in direct criminal contempt. He argues that

he had a complete defense to criminal contempt or, alternatively, that he should have

been subject to indirect criminal contempt proceedings. Second, Maestas argues that

the district court abused its discretion by imposing an excessive sentence and

restitution. We are unpersuaded by Maestas’s challenge to the propriety of his

conviction. We do, however, perceive two abuses of discretion in the district court’s

sentencing decision.

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I. The District Court Did Not Err by Holding Maestas in Direct Criminal
Contempt

5} Under statutory and common law, judges are vested with inherent power to

compel obedience to their orders and maintain decorum in their courtrooms. Concha,

2011-NMSC-031, 22-23. Contempt powers allow courts to guard their

proceedings against anything that interferes with the orderly administration of

justice. Case, 1985-NMSC-103, 5. Civil contempt proceedings are intended to

obtain compliance with a court order, State v. Pothier, 1986-NMSC-039, § 4, 104

N.M. 3603, /21 P.2d 1294, while “|c|riminal contempt proceedings are instituted to

punish completed acts of disobedience that have threatened the authority and dignity

of the court.” Concha, 2011-NMSC-031, § 26. “Criminal contempts are further

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delineated as direct or indirect.” 7d. ¥ 24 (internal quotation marks and citation

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omitted). Direct contempt involves “charges of misconduct, in open court, in the

presence of the disturbs the court’s business, where all of the essential

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elements of the misconduct are under the eye of the court [and] are actually observed

by the court.” /d. §35 (internal quotation marks and citation omitted). Indirect

criminal contempt arises “[w]hen the judge has not personally witnessed the

defendant’s contemptuous behavior in the course of a court proceeding.” /d. ¥ 28.

(16 Since “criminal contempt is a crime in the ordinary sense,” a criminal

contempt defendant is entitled to due process protections, the extent of which depend

on whether the contempt charge is categorized as direct or indirect. /d. 4 26

(alteration, internal quotation marks, and citation omitted). In direct contempt

proceedings, a judge may punish the contemnor summarily without the need for

further evidentiary proceedings. /d. § 27. In indirect proceedings where the judge

has not personally witnessed the defendant’s contumacious actions, the contempt

“must be resolved through more traditional due process procedures.” /d. 7 28; see

also State v. Stout, 1983-NMSC-094, 9 9, 100 N.M. 472, 672 P.2d 645 (recognizing

that “some kind of formal notice and hearing was required because the contempt was

not committed in the presence of the court”).

17}, We turn now to Maestas’s two challenges to the propriety of his conviction.

Maestas first argues that he had a complete defense to direct criminal contempt

because he had a good-faith belief that he could not comply with the court’s order.

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Maestas contends that the court’s order to proceed with trial “put [him] in an

untenable position:

without the necessary expert and all but ensure his client would be deprived of

effective assistance of counsel, convicted of a serious crime, and almost certainly

incarcerated for years while the appellate process played out.” While we appreciate

the precarity of Maestas’s position, we are unpersuaded that the court erred in

holding him in contempt.

gs; At bottom, this line of argument challenges the sufficiency of the evidence

supporting Maestas’s contempt conviction. As with any criminal conviction, a

criminal contempt conviction must be based on evidence constituting proof beyond

a reasonable doubt. /n re Stout, 1984-NMCA-131, 9 11, 102 N.M. 159, 692 P.2d

545. And while an “[i]nability without fault to comply with a court’s order is a

defense to a contempt charge,” id. § 13, we are unpersuaded that this defense is

applicable here.

4193 Cases applying the inability to comply defense are factually distinct from the

circumstances presented in this case. In /n re Stout, for instance, this Court reversed

an attorney’s contempt conviction for failure to appear at a sentencing hearing

because the attorney was required to be in another court at the same time and had

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arranged for substitute counsel, thereby excusing his absence. /d. §§ 14-15.

Similarly, in two Depression era cases, our Supreme Court reversed contempt

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convictions for destitute men unable to pay judgments arising out of divorce

satisfy the judgments. See Sears v. Sears, 1939-NMSC-010, 4 13, 43 N.M. 142, 87

P.2d 434; Andrews v. McMahan, 1938-NMSC-074, 4 14, 43 N.M. 87, 85 P.2d 743.

20; But here, Maestas has only shown that he had a good-faith belief that

proceeding to trial without his expert would deny his client effective assistance of

counsel. Regardless of whether that assessment was correct, Maestas could have

proceeded with trial and attempted to defend his client to the best of his abilities.

Unlike /n re Stout, where a lawyer could not physically be in two places at once, or

Sears and Andrews, where destitute men lacked money to pay judgments and could

not find jobs during a historic economic calamity, there were no circumstances

making it impossible for Maestas to comply with the district court’s order.

13 Maestas also offers an alternative argument that the district court should have

referred him for prosecution for indirect, rather than direct, criminal contempt and

afforded him the additional due process protections inherent in that charge. Maestas

contends that direct contempt proceedings were inappropriate because there was

additional evidence outside the presence of the court that bears on his good-faith

defense. This argument is unpersuasive for two reasons.

(223 First, Maestas’s defense based on his perceived inability to comply with the

court’s order was not sufficient to excuse his contumacious conduct. Second,

Maestas has provided no authority indicating that indirect contempt proceedings are

necessary where a defendant openly and directly disobeys_a_cot

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presence of the court. Maestas analogizes this case to State v. Diamond, 1980-

NMCA-026, 94 N.M. 118, 607 P.2d 656, and /n re Stout, 1984-NMCA-131, where

attorneys were subject to indirect contempt proceedings after failing to appear in

court. This analogy fails for the simple reason that in both of those cases, the

contumacious conduct occurred outside the presence of the court. Summary

adjudication was improper because the judge did not directly observe the

contumacious acts in either case. See Diamond, 1980-NMCA-026, § 12 (citing

Johnson vy. Mississippi, 403 U.S. 212, 214 (1971) for the proposition that summary

contempt proceedings are proper where the judge directly observes the

contumacious act); /n re Stout, 1984-NMCA-131, 9§ 10-11. In contrast, Maestas

appeared in court and refused to follow the court’s order, even stating that he

expected to be held in direct criminal contempt, despite the fact that he could have

refused to appear and been subject to indirect contempt proceedings. Maestas’s

admission speaks for itself. His conduct is exactly the type that constitutes direct

criminal contempt, and we hold Maestas was not entitled to indirect contempt

proceedings.

3} Finally, though we are not unsympathetic to the position in which Maestas

found himself, we reiterate our recent observation in State v. Hildreth that “attorneys

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in New Mexico are not empowered with decisional autonomy regarding when trials

commence and when they do not commence. District courts are.” 2019-NMCA-04

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4 16, 448 P.3d 585, aff'd in part, rev'd in part on other grounds, 2022-NMSC-012,

506 P.3d 354. Maestas’s belief that he could not provide effective assistance of

counsel does not relieve him of culpability in refusing to obey a court order. We see

no abuse of discretion in the district court’s decision to hold Maestas in direct

criminal contempt, nor do we view the evidence presented here as insufficient to

support his conviction. Accordingly, we affirm the district court’s finding of direct

criminal contempt.

II. The District Court Abused Its Discretion in Sentencing Maestas

24} Maestas next challenges the propriety of his sentence. Specifically, Maestas

argues that the district court abused its discretion in sentencing him to 182 days of

incarceration with 152 days suspended, a $999 fine, and court costs. Maestas also

contends that the district court erred in imposing restitution. We address each issue

in turn.

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A. The District Court Abused Its Discretion by Imposing a Uniquely and
Disproportionately Harsh Sentence

425} Our Supreme Court has cautioned that a judge's inherent contempt authority

is an “extraordinary unilateral power[]” that requires judges to exercise

3Maestas further argues that the district court imposed a sentence in excess of

six months, which deprived him of his due process right to a jury trial. See Case,

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“extraordinary self-restraint” to avoid abuses of that power. Concha, 2011-NMSC-

031, { 30: see also Case, 1985-NMSC-103

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the court should be used cautiously and sparingly”). “A judge’s exercise of the

contempt power must be tailored to the contemptuous conduct, exerting just enough

judicial power to right the wrong; no more, no less.” Concha, 2011-NMSC-031

445; see also Case, 1985-NMSC-103, § 4 (“The punishment imposed should be

reasonably related to the nature and gravity of the contumacious conduct.”). As

numerous reported cases have emphasized, judges “should not exercise more than

the least possible power adequate to the end proposed.” Pothier, 1986-NMSC-039,

q3i.

26} In Pothier, our Supreme Court articulated three factors courts must consider

when imposing punishment for criminal contempt: (1) the severity of the

consequences of the contempt; (2) the public’s interest in terminating the

contemnor’s defiance; and (3) the importance of deterring future defiance. /d. ¥ 32.

The first two Pothier factors do not clearly cut for or against the sentence imposed

here. Maestas maintains that the main consequence of his conduct was that the

1983-NMCA-086, §] 13. Because we hold that the district court’s sentence was a
substantive abuse of discretion, we do not consider (1) whether the sentence of 182
days 1s, in fact, a sentence that exceeds six months, and (2) whether we measure the

total sentence imposed or, as the State argues, only the term of incarceration. See
Allen v. LeMaster, 2012-NMSC-001, 4 28, 267 P.3d 806 (“It is an enduring principle
of constitutional jurisprudence that courts will avoid deciding constitutional

questions unless required to do so.” (internal quotation marks and citation omitted)).

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defendant’s trial did not proceed. The State responds that a defense attorney refusing

to 20
{9-290

ildreth, 2019-NMCA-047, 416

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(observing that such conduct violates an attorney’s “constitutional responsibility to

his client and his duty to the tribunal for which, as a licensed attorney, he serves as

an officer”), and wastes the court’s time and resources, as well as the time of

witnesses and jurors. Though the State makes a compelling argument, we note that

Maestas attempted before the trial date to mitigate those consequences: he requested

the continuance twelve days before trial, soon after he learned of Dr. Cave’s

scheduling conflict, and he filed a motion putting the court on notice of his intended

course of action.

7 Similarly, the parties offer competing arguments on the public’s interest.

Maestas reminds us that the public directly benefits from “fearless, vigorous, and

effective advocacy” for criminal defendants, and quotes /n re McConnell, 370 U.S.

230, 236 (1962) for the proposition that counsel must “be able to make honest good-

faith efforts to present their clients’ cases.” The State counters that the public has a

strong interest in having persons obey lawful court orders and that both the public

and criminal defendants have a strong interest in the speedy adjudication of serious

crimes. We view both of these interests as important.

28} Ultimately, however, there 1s no question that deterring future defiance 1s very

important and punishment is necessary. The Pothier Court analyzed the deterrent

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value of a contempt sentence by comparing the sentence imposed to what New

previous cases. See 1986-NMSC-039, 435. We use the

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same analysis to evaluate the district court’s sentencing decision and look to cases

in which attorneys have been held in contempt. We confine our review in this manner

in recognition that Maestas’s conduct can fairly be characterized_as purely on behalf

of his client’s interest, to his own detriment. While we have found no reported cases

in which an attorney has gone to the same lengths in service of a client’s interests,

the choice Maestas faced arose from a perceived conflict in his professional and

ethical obligations to his client and to the court. The tension created by those dual

obligations, and the corresponding balancing of interests, is unique to attorneys

acting in their professional role and seemingly absent in contempt cases involving

laypeople. See, e.g., Case, 1985-NMSC-103, 43 (addressing criminal contempt

punishment for a defendant who was given use immunity against prosecution but

subsequently refused to answer questions in a homicide case). For this reason, the

appropriate comparative analysis should focus on contempt punishments imposed

on attorneys acting in their professional role.

429} Compared to reported contempt sentences imposed on New Mexico attomeys,

the district court’s sentence in this case was undeniably harsh. Indeed, our review of

New Mexico jurisprudence reveals no reported appellate decision affirming—or

even considering—a contempt sanction against an attorney as severe as this one. The

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majority of reported decisions involve the imposition of no more than a monetary

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instructions or rules of procedure. See, e.g., /n re Avallone, 1978-NMSC-056, 4 5,

10, 91 N.M. 777, 581 P.2d 870 (affirming this Court’s imposition of a $250 fine on

an_ attorney who failed to conform to the rules of appellate procedure); State _v.

Wisniewski, 1985-NMSC-079, §§ 1, 22, 103 N.M. 430, 708 P.2d 1031 (upholding

$100 contempt citations imposed on two prosecutors and two police officers who

failed to comply with discovery requirements under the Rules of Criminal

Procedure). In Jn re Byrnes, 2002-NMCA-102, 99 1, 3-7, 132 N.M. 718, 54 P.3d

996, this Court affirmed a $1,000 contempt fine imposed on an attorney who

continually interrupted and argued with the district court judge during a custody

hearing, despite several admonitions to stop.

30} In another illustrative case, In re Cherryhomes, an attorney was summarily

held in contempt after he became combative and belligerent. 1985-NMCA-108, 4 3,

103 N.M. 771, 714 P.2d 188. The district court imposed a $10,000 fine, which this

Court determined was excessive since it required a trial by jury under New Mexico

law. Id. § 7 (noting that the New Mexico Supreme Court has held that “a fine in

excess of $1,000 gives the defendant the right to a jury trial”). The case was

remanded with instructions to reduce the fine to $1,000 or to proceed with a jury

trial. /d. J 9. The same attorney came before this court again in State v. Cherryhomes,

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1992-NMCA-111, §| 2-3, 114 N.M. 495, 840 P.2d 1261, when the district court

imposed.a $50 contem

on a tie while in court, as required by local court rules. The attorney appealed, and

we affirmed the conviction and sentence. /d. § 23.

31: Our Supreme Court has also imposed serious contempt punishments for

attorney misconduct, but we have not found any published case in which the Court

issued a sentence comparable to the one imposed here. In /n re Palafox, our Supreme

Court imposed $250 fines on two attorneys who violated rules governing non-

admitted counsel. 1983-NMSC-078, 99 6, 8, 100 N.M. 563, 673 P.2d 1296.

Likewise, in a series of three disciplinary proceedings against the same attorney, the

Court used its contempt power to first impose a $500 fine on an attorney for violating

discovery orders. /n re Herkenhoff (Herkenhoff 1), 1993-NMSC-081, 7 10, 116 N.M.

622, 866 P.2d 350. After the attorney refused to comply with the initial disciplinary

order, the Court imposed a $1540 fine—$10 per day of noncompliance—at a 15

percent interest rate. /n re Herkenhoff (Herkenhoff II), 1995-NMSC-011, 4 12, 119

N.M. 232, 889 P.2d 840. The Court also disbarred the attorney. /d. ¥ 11. After the

attorney continued to practice law despite his disbarment, the Court again held him

in contempt and imposed a five-month sentence of incarceration, but suspended the

entire sentence, conditioned on the attorney’s compliance with the prior disciplinary

orders. /n re Herkenhoff (Herkenhoff II), 1997-NMSC-007, 9§ 20-21, 122 N.M.

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766, 931 P.2d 1382. The court issued an almost identical sentence in /n re Schmidt,

where_a disbarred attorney continued to practice |

disciplinary order. 1997-NMSC-008, 415, 122 N.M. 770, 931 P.2d 1386 (per

curiam). As in Herkenhoff III, the Court imposed a five-month suspended sentence

with conditions that the attorney cease practicing law and begin complying with the

prior disciplinary order. Jn re Schmidt, 1997-NMSC-008, § 15.

32} Finally, we have found only one reported decision in which a district court

imposed a sentence of incarceration against a contumacious attorney, and the

conduct meriting the contempt punishment was comparatively more egregious. State

v. Driscoll, 1976-NMSC-059, 4 5-10, 89 N.M. 541, 555 P.2d 136. In Driscoll, an

attorney disobeyed a court’s order not to mention a witness affidavit during opening

argument, and after being admonished by the court, removed his tie and coat and

ageressively approached the bench. /d. The judge immediately remanded the

attorney into custody but released him a few hours later, stating that the matter would

be taken up by another judge in a show-cause proceeding. /d. J 7-9. At the show-

cause proceeding, the attorney was sentenced to ten days of incarceration, but our

Supreme Court reversed the sentence and conviction on double jeopardy grounds.

Id. 99 11, 19.

33} Taken together, these cases demonstrate the unusual severity of the contempt

punishment imposed by the district court in this case. The harshest fine imposed on

an attorney was the $1540 collective fine imposed in Herkenhoff IT, 1995-NMSC-

g14 4

O11, ¥-12, and when our Supreme Court has imposed incarceration as a contempt

punishment in disciplinary proceedings, it has suspended the sentences in full. In

this case, the district court sentenced Maestas to thirty days’ incarceration (182 days
5| incarceration with 152—-days-suspended),-a $999 fine, $55—in-court—costs,—and

restitution. By all accounts, Maestas’s sentence is extraordinary in that it

significantly exceeds any sentence imposed in a contempt case arising from attorney

jail sentence and the specter of a full six months in Jail if he happened to violate the

conditions of his probation may well be an effective means of deterring an attorney

from ever again engaging in this sort of behavior. But the question is not simply

whether the punishment will deter future defiance, it is whether this was the least

possible punishment necessary do so. See Concha, 2011-NMSC-031, ¥ 45; Pothier,

1986-NMSC-039, 4 31. When compared to other cases, we conclude that it was not.

A+

43 WZ : 1. A; ‘ LL, Anan le A a tan _in_theair
{34} We are cognizant that district courts are afforded broad discretion in their

exercise of the contempt power. However, that discretion is not without limits, and

the unilateral nature of direct criminal contempt proceedings requires judges to

NMSC-031, 4 30 (cautioning that the contempt power is an “extraordinary unilateral

power[]” that requires judges to exercise “extraordinary self-restraint” to avoid

—

abuses of the authority). It has been repeated often enough: the sentence must be

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authority and dignity, so as to avoid abuses of those powers. See id. §] 30, 45.

Because the sentence in this case exceeded that threshold, we determine that it was

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B. Restitution Is Not Appropriate in This Case

35} In its sentencing order, the district court required Maestas to pay restitution to

ce. ‘ 99 8%

hearing. Criminal restitution is authorized by statute. See NMSA 1978, § 31-17-1

(2005). Maestas argues that the district court misapplied the statute and wrongly

imposed a sentence of restitution. We agree.

yw aw ie

—
No

436} We review the district court’s restitution order for an abuse of discretion. State

v. George, 2020-NMCA-039, 4 4, 472 P.3d 1235. A trial court abuses its discretion

when it imposes a sentence contrary to law. State v. Lente, 2005-NMCA-111, 3,

—
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12Q NEM 219 14110 P.3 4d-7 37 Th
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to law, we review the district court’s interpretation of Section 31-17-1 de novo. See

State v. Duhon, 2005-NMCA-120, q 10, 138 N.M. 466, 122 P.3d 50.

—
2)

A) states. “It is the policy.o of this state that restitution be made

by each violator of the Criminal Code . . . to the victims of his criminal activities to

‘the extent that the defendant is reasonably able to do so.” Restitution is intended to

10
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12
13
14
15
16
17
18
19

“make whole the victim of the crime to the extent possible.” State v. Lack, 1982-
NMCA-111, ¥ 12, 98 N.M. 500, 650 P.2d 22 (noting that “[rJestitution in a proper
case may oftentimes be a compelling reminder of the wrong done and meaningfully
contribute to the rehabilitation process” (internal quotation marks and citation
omitted)). Section 3 1-17-1(A)(1) defines a “victim” as “any person who has suffered
actual damages as a result of the defendant’s criminal activities.” “Actual damages”
are those that “a victim could recover against the defendant in a civil action arising
out of the same facts or event, except punitive damages and [non-economic]
damages.” Section 31-17-1(A)(2). Before approving a-sentence of restitution, a trial
court must consider a number of factors, including the actual damages suffered by
each victim. Section 31-17-1(E).

438} New Mexico courts have never construed an order of restitution in the context
of criminal contempt. But the plain language and purpose of the statute indicate that
restitution, as applied, is not an appropriate punishment here. The State identified
“the people of Union County” as victims for purposes of restitution under Section
31-17-1(A)(1). In this case, there has been no showing that the people of Union
County suffered or would be able to recover actual damages from Maestas in a civil
action. See § 31-17-1(A)(2); George, 2020-NMCA-039, {| 8 (stating that a victim |.
may receive restitution only when there is “a direct relationship between the crime

for which there is a plea of guilty or verdict of guilty, and the damages asserted by

the victim” (internal quotation marks and citation omitted)). Further, while the State

4 4h 2 at. 1,

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POs OUL Ullal US COUT ds pleviously PCCOSNIZCa ltdt Sldt0 CHULICS Udll UC

considered victims for purposes of restitution, see, e.g., State v. Ellis, 1995-NMCA-

124, | 7, 120 N.M. 709, 905 P.2d 747, the court’s order of restitution in this case

court ordered Maestas to pay restitution to an ill-defined group of individuals with

no showing that this group suffered an actual loss as a result of Maestas’s contempt.

In short, the State has not-demonstrated how “the people of Union County” qualify

aay

as victims under Section 31-17-1. Accordingly, we reverse the district court’s order

of restitution. See Lente, 2005-NMCA-111, 93.

CONCLUSION

—
N

39} We affirm Maestas’s conviction for direct criminal contempt. However, the

district court’s sentencing order is vacated, and the case remanded for resentencing

consistent with this opinion.

Te iene feamervawavah aw nh sh mk ay
Td) {40} TT IS SO ORDERED.
1K
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17

1
WE CONCUR:
2 3
J. MÍLES HANISEE, Chief Judge
4 5
Mac & Cotuale
JANEB. YOHALEM, Judge
25

June 22, 2022- In the Matter of the Direct Criminal Contempt of Alan H. Maestas, No. A-1-CA-39379

Testo completo

OCR transcription for search; preserved printed pages are authoritative

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