February 25, 2020- State of New Mexico v. Miguel Otero, No. A-1-CA-37742

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IN THE CURT OF APPEA* $8 OF THE 8.4.2 OF NEW MEXICO
Opinion Number: Court of Appeals of New Mexico
Filed 2/25/2020 8:16 AM

NO. A-1-CA-37742

Ma
STATE OF NEW MEXICO,
Plaintiff-Appellee,
V.
MIGUEL OTERO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Alisa A. Hart, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Lisa Torraco
Albuquerque, NM

for Appellant

OPINION
1 B. ZAMORA, Judge.
2 	{1} 	Defendant appeals from the district court's denial of his petition to withdraw
3 his plea. On appeal, Defendant argues that he was not advised of the loss of his
4 constitutional Second Amendment right to bear arms that resulted from the plea and
5 that he should now be permitted to withdraw his plea on that basis. We affirm.
6 DISCUSSION
7 	{2} 	In 2001 Defendant entered a plea to six counts of armed robbery, each with a
8 firearm enhancement; false imprisonment; second degree kidnapping; and resisting,
9 evading, or obstructing an officer. In 2018, four years after his sentence was fully
10 	served, including probation, and two years after he had been arrested and charged in
11 	federal court for being a felon in possession of a firearm, Defendant filed a coram
12 	nob is motion in the present case under "Rule 1-060 [NMRA] and/or Rule 5-803
13 	[NMRA ]" for relief from judgment and to withdraw his plea. See Rules 1-060, 5-
14 	803; State v. Tran, 2009-NMCA-010, ,I 15, 145 N.M. 487,200 P.3d 537 ("The writ
15 	of error coram nobis is an appropriate procedure for a postjudgment challenge to a
16 guilty plea allegedly induced by mistake, fraud, or coercion." (internal quotation
17 	marks and citation omitted)). Specifically, Defendant sought to withdraw his plea
18 	based on his contention that he was never advised of the consequences to his Second
19 	Amendment right to bear arms at the time of the plea; that this lack of advisement

1 constituted ineffective assistance of counsel; and that the judgment was void as a
2 matter of law because it was not knowing, intelligent, and voluntary. The district
3 court 	denied 	his 	motion 	to 	withdraw 	the 	plea, 	concluding 	that 	the 	Second
4 Amendment advisement was not required at the time of Defendant's plea, and that
5 Defendant 	presented 	insufficient 	evidence 	supporting 	his 	claim 	of ineffective
6 assistance of counsel.
7 I. 	Standard of Review
8 	{3} 	"The decision of whether a defendant should be permitted to withdraw a plea
9 	is discretionary with the trial court; thus, on appeal we review the trial court's ruling
10 to determine whether, under the facts offered in support of the motion, the trial court
11 	abused its discretion." State v. Lozano, 1996-NMCA-075, ,r 9, 122 N.M. 120, 921
12 	P.2d 316. "A court abuses its discretion when it is shown to have acted unfairly,
13 	arbitrarily, or committed manifest error." State v. Hunter, 2006-NMSC-043, ,r 11,
14 	140 N.M. 406, 143 P.3d 168 (internal quotation marks and citation omitted). "A
15 	denial of a motion to withdraw a guilty plea constitutes manifest error when the
16 undisputed facts establish that the plea was not knowingly and voluntarily given."
17 Id. (internal quotation marks and citation omitted).
18 	II.
19 	{4}
Timeliness of Defendant's Coram Nobis Application
As a preliminary matter, we address the timeliness of Defendant's coram
20 	nobis application. Rule 5-803 formalized the common law concept of coram nobis
2

1 and "is deemed to have superseded former Rule 1-060(B) for post-sentence matters
2 involving 	criminal 	convictions, 	including 	the 	writ 	of coram 	nobis." 	State 	v.
3 	Gutierrez, 2016-NMCA-077, il 30, 380 P.3d 872 (quoting Rule 5-803 comm. cmt.)
4 (omission and emphasis omitted). "Rule 5-803 is 'effective for all cases filed on or
5 after December 31, 2014. '" Gutierrez, 2016-NMCA-077, il 30 (internal quotation
6 marks omitted) (quoting N.M. S. Ct. Order No. 14-8300-014).
7 	{5} 	The State argues that Defendant' s motion may only be brought under Rule 5-
8 803(C), which requires that such a motion be brought "within a reasonable time after
9 the completion of the petitioner's sentence[.]" Rule 5-803(C). The State thus argues
10 that Defendant's coram nobis motion from 2016 was untimely because it was not
11 	brought within a reasonable time and Defendant provided no explanation for his
12 years of delay. Conversely, Defendant argues Rule 5-803 does not apply to his case
13 	because his underlying criminal case was filed long before Rule 5-803 was effected.
14 Defendant further argues that his motion was filed under Rule 1-060 because he
15 	claims that the judgment was void, and, as such, there was no time limit to bringing
16 the motion. See Gutierrez, 2016-NMCA-077, il 20 (reiterating that "there is no
17 	limitation of time within which a motion must be filed under the provisions of Rule
18 	1-060(B)(4)" because "[a] judgment which is void is subject to direct or collateral
19 	attack at any time" (alteration, internal quotation marks, and citations omitted)).
3

1 {6} 	We dealt with a similar argument in Gutierrez; however, in that case, "Rule
2 5-803 was not in effect at the time of [the d]efendant's motion." Gutierrez, 2016-
3 NMCA-077, ,r 30. Although this Court's reference to "the time of [the d]efendant's
4 motion" might indicate that the file date of the coram no bis motion is the applicable
5 reference point, we did not determine whether the effective date in fact relates to the
6 motion or the original, underlying criminal case in which it was fi led. Id. ( emphasis
7 added). 	Instead, 	we 	concluded that the 	district court properly 	considered the
8 defendant's motion under Rule 1-060(B)(4), which was the only rule in effect at the
9 time the defendant's motion had been filed. See Gutierrez, 2016-NMCA-077, ,r 20.
10 	{7} 	In the present case, the district court denied Defendant's petition for post-
11 	sentence 	relief 	on 	the 	merits 	and 	did 	not 	address 	the 	timeliness 	question.
12 	Accordingly, we need not resolve which rule applies in the present case. Either Rule
13 	1-060 would apply, in which case timeliness is not a concern, or Rule 5-803 would
14 	apply, in which case the district court could have determined that Defendant's delay
15 	in filing the coram nobis motion was reasonable, based on an argument that the
16 conviction is void for his counsel's failure to inform him of his Second Amendment
17 rights. Given that the district court ruled on the merits of the coram no bis motion,
18 	we review the same. Cf L.D. Miller Constr., Inc. v. Kirschenbaum, 2017-NMCA-
19 	030, ,r 15, 392 P.3d 194 (stating that "the district court would have been within its
20 discretion to determine that the late motion was not simply an attempt to evade the
4

1 time for appeal"; and declining to engage in an independent assessment of the
2 defendants' motives).
3 III. 	Second Amendment Advisement
4 	{8} 	Turning to the merits, Defendant argues that, because his counsel should have
5 informed him of the impact of his guilty plea on his Second Amendment rights,
6 Defendant' s plea was not knowing, intelligent, and voluntary. See State v. Paredez,
7 2004-NMSC-036, ~ 5, 136 N.M. 533 , 101 P.3d 799. Although a requirement that a
8 defendant be advised of the loss of his Second Amendment rights to possess firearms
9 when he pleads guilty was first promulgated in 2007, Defendant argues that he
10 	should have nevertheless been advised of the loss of his Second Amendment rights
11 	prior to his 2001 plea. See Rule 5-303(F)(6) NMRA.
12 	{9} 	Defendant urges us to adopt the reasoning in Paredez and Ramirez v. State,
13 	2014-NMSC-023 , 333 	P.3d 240, in his case. 	In Paredez, 	our Supreme Court
14 	analyzed whether the failure to advise a client of the immigration consequences of a
15 	plea constituted ineffective assistance and held that it does, remanding to the district
16 	court for an evidentiary hearing to determine whether the defendant' s counsel in that
17 case was, in fact, effective. See 2004-NMSC-036, ~~ 13-15, 16 , 24. The Court
18 	reaffirmed that, when "a defendant is represented by counsel during the plea process
19 and enters his or her plea upon the advice of counsel, the voluntariness of the plea
20 depends on whether counsel's advice was within the range of competence demanded
5

1 of attorneys in criminal cases." Id. ,r 13 (alteration, internal quotation marks, and
2 citation omitted).
3 	{IO} 	Ten years later, our Supreme Court considered whether the rule announced in
4 	Paredez should apply retroactively. See Ramirez, 2014-NMSC-023, ,r 9. The Court
5 	in Ramirez reiterated that "New Mexico does not give retroactive effect to a new
6 	criminal 	procedure 	rule" 	and 	explained 	that 	the 	pertinent 	test 	is 	"whether 	a
7 previously issued judicial opinion introduced a new rule of criminal procedure or
8 merely expanded upon an already established rule." Id. ,r 11. In identifying when an
9 exception to the general rule should apply, the Court stated that "new rules generally
10 	should not be afforded retroactive effect unless (1) the rule is substantive in nature,
11 	in that it alters the range of conduct or the class of persons that the law punishes, or
12 	(2) although procedural in nature, the rule announces a watershed rule of criminal
13 	procedure." Id. (internal quotation marks and citation omitted).
14 {11} 	We first address the second exception. Defendant contends the mandate to
15 	advise a criminal defendant of the 	loss of his Second Amendment rights 	is a
16 watershed rule. We disagree.
17
18
19
20
21
[W]atershed rules of criminal procedure implicate[] the fundamental
fairness and accuracy of the criminal proceeding. Whatever the precise
scope of this exception, it is clearly meant to apply only to a small core
of rules requiring observance of those procedures that are implicit in
the concept of ordered liberty.
6

l 	Graham v. Collins, 506 U.S. 461 , 478 (1993) (omission, internal quotation marks,
2 and citations omitted). However, our Supreme Court reiterated in Kersey v. Hatch
3 that "[t]he watershed exception is extremely narrow[,]" noting that, since the United
4 States 	Supreme 	Court 	identified 	the 	two 	exceptions 	to 	the 	"general 	rule 	of
5 nonretroactivity for cases on collateral review[,]" it "has rejected every claim that a
6 new rule satisfied the requirements for watershed status." 2010-NMSC-020, ,r,r 24-
7 25 , 148 N.M. 381 , 237 P.3d 683 (internal quotation marks and citation omitted).
8 Based on this standard, we hold that the requirement that a criminal defendant be
9 advised of the impact of a guilty plea on his or her right to bear arms does not
10 implicate the "fundamental fairness and accuracy of the criminal proceeding[,]" and
11 	is , thus, not a watershed rule. Graham, 506 U.S. at 478; see Paredez, 2004-NMSC-
12 	036, ,r 9 (stating that the trial court is not obligated to "inform defendants of all
13 	possible consequences flowing from a guilty plea" ).
14 	{12} 	We therefore tum to the first exception of nonretroactivity: a new rule that is
15 	substantive in nature. See Ramirez, 2014-NMSC-023 , ,r 11 . Defendant contends that
16 Rule 5-303(F)(6), requiring that a defendant be advised of the impact of a guilty plea
17 on his or her right to bear arms, is not a new rule because it existed at the time he
18 	entered his plea. He argues that, because the amendment to the rule to include
19 	Subsection F, "which mandates the district court judge to advise the defendant that
20 his 	guilty plea will affect his constitutional right to bear arms, should apply
7

1 retroactively because it is a constitutional right in which [Defendant] can claim the
2 benefits of the plain error doctrine." We again disagree.
3 	{t3} 	As our Supreme Court explained in Kersey, a "new rule" is one that "breaks
4 new 	ground 	or 	imposes 	a 	new 	obligation 	on 	the 	[s]tates 	or 	the 	[f]ederal
5 [g]overnment. To put it differently, a case announces a new rule if the result was not
6 dictated by precedent existing at the time the defendant' s conviction became final."
7 201 O-NMSC-020, 1 16 (internal quotation marks and citation omitted). "Thus, a
8 court establishes a new rule when its decision is flatly inconsistent with the prior
9 governing precedent and is an explicit overruling of an earlier holding." Id. (internal
10 quotation marks and citation omitted). "A rule that is not deemed a ' new rule' by
11 	this test may apply retroactively." Ramirez, 2014-NMSC-023, 1 11. Although it is
12 	true that the right to bear arms is not a new right, the rule requiring that a defendant
13 	be advised of the impact of a guilty plea on his right to bear arms was new as of the
14 amendment of the rule in 2007. See Rule 5-303 comm. cmt. (describing the addition
15 	of Subsection (F)( 6) in 2007). Defendant has provided no authority indicating that
16 this rule existed in common law earlier than 2007, so we assume no such authority
17 	exists. Se e State v. Casares, 2014-NMCA-024, 1 18,318 P.3d 200 (stating that " [w]e
18 	will not consider an issue if no authority is cited in support of the issue, because
19 absent cited authority to support an argument, we assume no such authority exists").
8

1 {14} 	. 	Defendant nonetheless argues that the advice of the loss of his right to bear
2 arms is at least as crucial as advice of immigration consequences, so his case should
3 "have the same result" as cases that "support[] the withdrawal of a plea for failure
4 to 	advise 	a 	criminal 	defendant 	of the 	statutory 	immigration 	consequences[.]"
5 However, although it is true that our Supreme Court determined that a defendant
6 must be informed of the immigration consequences of a guilty plea, it applied its
7 ruling retroactively only to 1990, when the requirement to advise of immigration
8 consequences was first included in the plea colloquy in New Mexico. See Ramirez,
9 2014-NMSC-023 , ,r,r 14, 17 (highlighting that Pare de z does nothing more than apply
10 	an existing rule). As such, even applying Ramirez to the present case, Defendant is
11 	afforded no relief. The rule requiring advisement of the impact of a plea on a
12 	defendant' s right to bear arms applies from when the rule first made such a
13 	requirement in 2007. As Defendant entered his plea in 2001 , several years prior to
14 the pertinent amendment of Rule 5-303, we hold that Defendant' s counsel was not
15 	ineffective for not advising Defendant of the impact of his plea on his right to bear
16 arms; Defendant's plea was not involuntary, unknowing, or unintelligent based on
17 the fact that he was not so advised; and the district court did not abuse its discretion
18 	in denying Defendant' s motion to withdraw his plea on these grounds. See Paredez,
19 	2004-NMSC-036, ,r 5; see also Ramirez, 2014-NMSC-023 , ,r 8.
9

1 {15} 	To the extent Defendant argues that the district court's failure to advise
2 Defendant was a violation of due process, we are likewise unpersuaded. As our
3 Supreme Court explained in Paredez, due process does not require the trial court to
4 "inform defendants of all possible consequences flowing from a guilty plea." 2004-
5 NMSC-036, ,I 9. Rather, " [t]he trial court only has a duty to ensure that the defendant
6 understands the 'direct' consequences of the plea but is under no duty to advise the
7 defendant of the plea's 'collateral ' consequences." Id. The fact that a federal court
8 might use the consequences of Defendant' s 2001 guilty plea in a 2016 federal
9 prosecution 	is 	a 	collateral 	consequence, and 	the 	district 	court was 	under 	no
10 obligation to advise Defendant of this collateral consequence in 2001. See id.
11 	{16} 	Finally, Defendant argues that because his right to bear arms is a constitutional
12 right, he is entitled to advice on the loss of that right as a result of his plea, and the
13 	failure to advise him on such loss necessarily means his counsel was ineffective.
14 However, Defendant provides no authority for such a proposition, and we are aware
15 	of none. See Casares, 2014-NMCA-024, ,I 18 (stating that "[w]e will not consider
16 	an issue if no authority is cited in support of the issue, because absent cited authority
17 to support an argument, we assume no such authority exists"). Indeed, we note that
18 	a defendant also loses voting rights and is not informed of such prior to a guilty plea,
19 and we are aware of no authority that requires that a constitutional right be discussed
20 and identified prior to a defendant entering in a plea, particularly as it is a collateral
10

1 consequence. See id.; see also Paredez, 2004-NMSC-036, ,I 9 (noting that the trial
2 court only has a duty to ensure that a defendant understands the direct consequences
3 	of a 	plea); 	see 	generally 	Rule 	5-303(F) 	(identifying 	only 	a 	handful 	of the
4 consequences resulting from a guilty plea that must be discussed with a defendant
5 prior to entry of a plea). We therefore hold that the district court did not violate
6 Defendant's due process rights by failing to advise him regarding the impact of a
7 guilty plea on his Second Amendment rights in 2001. Cf Paredez, 2004-NMSC-
8 036, ,I,I 10-11 (stating that deportation is not within the control and responsibility of
9 the district court and is, hence, collateral to a conviction; a "district court's silence
10 regarding the immigration consequences of a defendant's guilty plea does not violate
11 	that defendant's federal constitutional right to due process"; and, as such, advising
12 the defendant that his plea "could" affect his immigration status was, likewise, not
13 	constitutionally defective).
14 	CONCLUSION
15 	{t 7} 	For the foregoing reasons, we affirm
16 	{18} 	IT IS SO ORDERED.
17
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AN

WE

V~UR:

DINA, Judge

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