October 21, 2013 – State v. Thaddeus Carroll, No. 32,909

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 21, 2013

NO. 32,909

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

THADDEUS CARROLL,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith Nakanutra, District Judge

Gary K. King, Attomey General

Corinna Laszlo-Henry, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett]. Baur, Acting Chief Public Defender
Santa Fe, NM

Susan Burgess- Farrell, District Public Defender
Steven J. Forsberg, Assistant Public Defender

Albuquerque, NM

for Appellant

OPINION
VIGIL, Judge.
{1} 	Defendant Thaddeus Carroll was convicted of driving while under the influence
(DWI) in violation of NMSA 1978, Section 66-8-102(D) (2007, amended 2010),
following a bench trial in metropolitan court. Defendant appealed to the district court
for on-record review, and the district court affirmed. Defendant then appealed to this
Court. The State has filed motions urging us to dismiss Defendant’s appeal and all
similar appeals currently before this Court. The State contends that there is no express
right to appeal or grant of jurisdiction to this Court from a district court’s on-record
appellate review of a metropolitan court conviction for DWI. Having conducted a de
novo review of the relevant constitutional provisions and statutes governing this
Court’s jurisdiction and the right to appeal from cases originating in metropolitan
court, we deny the State’s motion to dismiss. See State v. Montoya, 2008-NMSC-043,
¶ 9, 144 N.M. 458, 188 P.3d 1209 (“Jurisdiction questions are questions of law which
are subject to de novo review.”); State v. Heinsen, 2004-NMCA-110, ¶ 9, 136 N.M.
295, 97 P.3d 627 (“We review the application and interpretation of constitutional
provisions, statutes, and court rules de novo to determine the right to an appeal and
the scope of the appeal allowed by law.”), aff’d, 2005-NMSC-035, 138 N.M. 441, 121
P.3d 1040.

1 Prior to being amended in 1965, Article VI, Section 2 did not contain the
language that “an aggrieved party shall have an absolute right to one appeal.” Rather,
the antecedent to our current Article VI, Section 2 merely stated: “The appellate
jurisdiction of the Supreme Court shall be co-extensive with the state, and shall extend
to all final judgments and decisions of the district courts, and said court shall have
such appellate jurisdiction of interlocutory orders and decisions of the district courts
as may be conferred by law.” Chacon, 1914-NMSC-079, ¶ 4. 	In Chacon, our
Supreme Court determined that the pre-amendment language conferred jurisdiction,
but did not confer a right to appeal. See id. ¶ 8.
2
DISCUSSION
{2} 	The State’s challenge to this Court’s authority necessitates that we consider
both our jurisdiction and Defendant’s right to appeal. “Jurisdiction” refers to subject
matter jurisdiction and “implicates a court’s power to decide the issue before it.” State
v. Rudy B., 2010-NMSC-045, ¶ 14, 149 N.M. 22, 243 P.3d 726 (internal quotation
marks and citation omitted). However, as our Supreme Court acknowledged early in
our State’s jurisprudence, a grant of jurisdiction does not “confer upon litigants an
affirmative right to invoke such jurisdiction.” State v. Chacon, 1914-NMSC-079, ¶ 8,
19 N.M. 456, 145 P. 125, superseded by constitutional amendment, N.M. Const. art.
VI, § 2 (1965), as recognized by State v. Griffin, 1994-NMSC-061, ¶ 3 n.2, 117 N.M.
745, 877 P.2d 551.1 Rather, based on our Supreme Court’s discussion in Chacon, “[a]
court’s jurisdiction to hear an appeal [is] to be distinguished . . . from a litigant’s right
to invoke that jurisdiction by bringing the appeal. The court’s jurisdiction thus . . .
remain[s] in abeyance until given vitality by legislative authority.” 	See Seth D.

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Montgomery & Andrew S. Montgomery, Jurisdiction as May Be Provided by Law:
Some Issues of Appellate Jurisdiction in New Mexico, 36 N.M. L. Rev. 215, 226
(2006) (internal quotation marks and citation omitted); cf. Rudy B., 2010-NMSC-045,
¶ 12 (treating the right to appeal and jurisdiction as separate concepts); Govich v. N.
Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94 (same). Generally,
in order for an appeal to be properly before us, this Court must have jurisdiction to
hear it, and a defendant must have the right to have it heard.
{3} 	Both this Court’s jurisdiction and a litigant’s right to appeal must derive from
a statute or constitutional provision. See City of Las Cruces v. Sanchez, 2007-NMSC-
042, ¶ 10, 142 N.M. 243, 164 P.3d 942 (“[I]t has long been settled that the creating
of a right of appeal is a matter of substantive law and outside the province of the
court’s rule making power.” (alteration, internal quotation marks, and citations
omitted)); State v. Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821
(“[O]ur Constitution or Legislature must vest us with appellate jurisdiction[.]”). Our
Supreme Court has recognized that it cannot create jurisdiction through its rule-
making authority. 	Id. ¶ 6. Similarly, our Supreme Court has “conceded that if the
[L]egislature ha[s] authorized no appeal, [it is] powerless to create the right of appeal
by rule.” State v. Arnold, 1947-NMSC-043, ¶ 11, 51 N.M. 311, 183 P.2d 845. This
Court is therefore limited to relying on state constitutional and statutory provisions to

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support our conclusion that Defendant has the right to appeal, and this Court has the
authority to consider it.
{4} 	This Court is similarly limited in our interpretation of our state constitution and
statutes by the plain meaning rule. 	See In re Rescue Ecoversity Petition, 2012-
NMCA-008, ¶ 6, 270 P.3d 104 (“When interpreting the Constitution, we follow the
plain meaning rule.”); United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-
030, ¶ 9, 148 N.M. 426, 237 P.3d 728 (“The first guiding principle in statutory
construction dictates that we look to the wording of the statute and attempt to apply
‘the plain meaning rule[.]’” (citation omitted)); see also NMSA 1978, § 12-2A-19
(1997) (“The text of a statute or rule is the primary, essential source of its meaning.”).
The plain meaning rule presumes that the words in a constitutional or statutory
provision “have been used according to their plain, natural, and usual signification and
import, and the courts are not at liberty to disregard the plain meaning of words . . .
in order to search for some other conjectured intent.” 	See In re Rescue Ecoversity
Petition, 2012-NMCA-008, ¶ 6 (internal quotation marks and citation omitted);
Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73
(“[T]he plain meaning rule, recogniz[es] that when a statute contains language which
is clear and unambiguous, we must give effect to that language and refrain from
further statutory interpretation.” (alteration, internal quotation marks, and citation

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omitted)). 	Thus, pursuant to the plain meaning rule, we will not read into a
constitutional or statutory provision “language which is not there, especially when it
makes sense as it is written.” Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147
N.M. 512, 226 P.3d 611 (internal quotation marks and citation omitted). With these
considerations in mind, we now turn to the statutory and constitutional provisions that
relate to this Court’s jurisdiction and Defendant’s right to appeal.
Jurisdiction
{5} 	The Court of Appeals’ jurisdiction is governed by Article VI, Section 29 of the
New Mexico Constitution and NMSA 1978, Section 34-5-8 (1983). 	Article VI,
Section 29 provides that the Court of Appeals
may be authorized by law to review directly decisions of administrative
agencies of the state, and it may be authorized by rules of the supreme
court to issue all writs necessary or appropriate in aid of its appellate
jurisdiction. In all other cases, it shall exercise appellate jurisdiction as
may be provided by law.
As discussed above, “[t]he phrase ‘as may be provided by law’ means that our
Constitution 	or 	Legislature 	must 	vest 	us 	with 	appellate 	jurisdiction[.]” 	See
Smallwood, 2007-NMSC-005, ¶ 6. 	The Legislature has defined this Court’s
jurisdiction 	in 	Section 	34-5-8. 	Section 	34-5-8(A)(3) 	vests 	this 	Court 	with
“jurisdiction to review on appeal . . . criminal actions, except those in which a
judgment of the district court imposes a sentence of death or life imprisonment.”

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Based on the clear language of the statute, this Court has been vested with jurisdiction
over appeals in all criminal actions with the limited exception of those where a
sentence of death or life imprisonment is imposed. Had the Legislature intended to
limit our jurisdiction to preclude review of the on-record appellate decisions of the
district court, we assume it would have explicitly done so. 	See, e.g., Hanson v.
Turney, 2004-NMCA-069, ¶ 12, 136 N.M. 1, 94 P.3d 1 (“It is thus clear that if the
[L]egislature intended to treat permit holders the same as owners of water rights, it
knew how to draft a statute which would successfully do so.”); State ex rel. Citizens
for Quality Educ. v. Gallagher, 1985-NMSC-030, ¶ 13, 102 N.M. 516, 697 P.2d 935
(“[H]ad the Legislature so desired, it would have prohibited withdrawal of signatures
placed on a petition for recall. This Court will not read into the Recall Act language
which is not there.”). 	Given that the Legislature listed no other exceptions to this
broad grant of jurisdiction, including no limitation on where the case originated, we
conclude that Section 34-5-8(A)(3) provides this Court with jurisdiction over appeals
in criminal actions originating in courts of limited jurisdiction.
Right to Appeal
{6} 	Of course, a determination that this Court has jurisdiction does not end our
inquiry. Instead, we must also determine whether Defendant has a right to appeal to
this Court. 	The New Mexico Constitution provides aggrieved parties with “an

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absolute right to one appeal.” N.M. Const. art. VI, § 2. This constitutional provision,
however, has been interpreted as being limited to cases originating in district court.
See Sanchez, 2007-NMSC-042, ¶ 9 (“Article VI, Section 2 only applies to cases
originating in district court, not to cases originating in courts of limited jurisdiction,
such as a municipal court.”). The corollary provision for cases originating in courts
of limited jurisdiction is found in Article VI, Section 27. 	Section 27 provides:
“Appeals shall be allowed in all cases from the final judgments and decisions of the
probate courts and other inferior courts to the district courts, and in all such appeals,
trial shall be had de novo unless otherwise provided by law.” N.M. Const. art. VI, §
27. The phrase “unless otherwise provided by law” has been interpreted to authorize
the Legislature to change the form of the appeal from de novo to appellate, see State
v. Ball, 1986-NMSC-030, ¶ 10, 104 N.M. 176, 718 P.2d 686 (internal quotation marks
and citation omitted), which the Legislature has done for criminal actions originating
in metropolitan court “involving driving while under the influence of intoxicating
liquors or drugs.” NMSA 1978, § 34-8A-6(C) (1993). Section 34-8A-6(C) provides:
Any party aggrieved by a judgment rendered by the metropolitan court
in a criminal action involving driving while under the influence of
intoxicating liquors . . . may appeal to the district court of the county in
which the metropolitan court is located within fifteen days after the
judgment was rendered. The manner and method of appeal shall be set
forth by supreme court rule.

2 In its motion and memorandum, the State refers to former Rule 7-703(R)
NMRA (2009), which prior to being amended in 2012 stated: “[a]n aggrieved party
may appeal from a judgment of the district court to the New Mexico Supreme Court
or New Mexico Court of Appeals, as authorized by law, in accordance with the Rules
of Appellate Procedure.” In 2012, this language was removed from Rule 7-703 and
included in Rule 5-827(N) NMRA (“An aggrieved party may appeal from a judgment
of the district court to the New Mexico Supreme Court or New Mexico Court of
Appeals, 	as 	authorized 	by 	law, 	in 	accordance 	with 	the 	Rules 	of 	Appellate
Procedure.”).
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{7} 	The State points out that these provisions do not explicitly provide for an appeal
to this Court, instead, referring only to appeals to district court. 	The State further
argues that to the extent court procedural rules indicate that defendants have a right
to appeal the district court’s review of a metropolitan court decision to this Court, our
Supreme Court was without authority to grant a right of appeal via rule. 2 While we
have acknowledged that the Supreme Court does not have authority to create or
enlarge a right to appeal, the Supreme Court does have authority to promulgate
procedural rules where the right to appeal has been provided by the Legislature.
NMSA 	1978, 	Section 	39-3-3(A)(1) 	(1972) 	provides 	defendants 	in 	criminal
proceedings with the right to appeal a final judgment of the district court to this Court,
except in cases involving death or life imprisonment. 	See § 39-3-3(A)(1) (“In any
criminal proceeding in district court an appeal may be taken by the defendant to the
supreme court or court of appeals, as appellate jurisdiction may be vested by law in

9
these courts . . .within thirty days from the entry of any final judgment[.]”); § 34-5-
8(A)(3).
{8} 	The State argues that the term “criminal proceeding” in Section 39-3-3 should
not be interpreted as extending to a district court’s “on-record review of a lower court
judgment.” The State’s argument is premised on the fact that a defendant bears the
burden to prosecute his or her appeal in district court, see Rule 5-828 NMRA; that our
case law describes an appeal as “no part of the trial,” see Ammerman v. Hubbard
Broadcasting, Inc., 1976-NMSC-031, ¶ 20, 89 N.M. 307, 551 P.2d 1354; and that the
rules governing such appeals are collected under “appeals” or “special proceedings”
within the Rules of Criminal Procedure for the Metropolitan Courts and District
Courts, see Rules 7-703 and 5-827. Having considered these arguments, we conclude
that the State’s definition of “criminal proceeding” is much too narrow.
{9} 	The State essentially asks this Court to define “proceeding” as synonymous
with “trial,” and conclude that because the district court proceedings are appellate in
nature they do not fall within the purview of Section 39-3-3(A)(1). 	Black’s Law
Dictionary defines “proceeding” much more broadly than the State would have us do.
According to Black’s,
“Proceeding” is a word much used to express the business done in
courts. . . . It is more comprehensive than the word “action,” but it may
include in its general sense all the steps taken or measures adopted in the
prosecution or defense of an action, including the pleadings and

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judgment. 	As 	applied 	to 	actions, 	the 	term 	“proceeding” 	may
include—(1) the institution of the action; (2) the appearance of the
defendant; (3) all ancillary or provisional steps, . . . (7) the trial; (8) the
judgment; (9) the execution; . . . (11) the taking of the appeal or writ of
error[.]
Black’s 	Law 	Dictionary 	1324 	(9th 	ed. 	2009). 	Based 	on 	this 	definition 	of
“proceeding,” we conclude that Section 39-3-3(A)(1) is intended to include a
defendant’s right to appeal a district court’s review of an on-record metropolitan court
decision.
{10} 	Moreover, if this Court were to construe the term “proceeding” as the State
suggests, we would necessarily have to conclude that our Supreme Court did not
possess the authority to promulgate Rule 5-827(N); that by promulgating Rule 5-
827(N), our Supreme Court exercised legislative power; and that by doing so it
violated the New Mexico Constitution. “It is, of course, a well-established principle
of statutory construction that statutes should be construed, if possible, to avoid
constitutional questions.” Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 12, 111
N.M. 336, 805 P.2d 603. 	Accordingly, where this Court is presented with a
reasonable 	interpretation 	of 	a 	statute 	that 	does 	not 	call 	into 	question 	the
constitutionality of the actions of our Supreme Court, that interpretation is the one this
Court will adopt.

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{11} 	Finally, the State argues that interpreting Section 39-3-3 to provide for a right
to appeal under these circumstances would give rise to claims under the Equal
Protection Clause. 	The State argues that to provide a second appeal by right for
certain petty crimes, but not for more serious crimes, is an “unreasoned distinction”
that bears no “rational relationship to any legitimate state interest.” While we note
that our interpretation of the relevant statutes recognize a different appellate procedure
depending on the type of crime, we disagree that it rises to the level of an equal
protection violation. Practically speaking, however, the Legislature’s decision to alter
the nature of the appeal for petty offenses originating in metropolitan court from de
novo to on-record, eliminated the necessity for the most populous district in this State
to hold a de novo trial where the case had already been heard by a law-trained judge.
Compare NMSA 1978, § 34-8A-4(B) (1993) (providing that a metropolitan judge
must be “a member of the bar” and have “practiced in this state for a period of three
years”), and § 34-8A-6(B), (C) (providing that the metropolitan court is a court of
record for civil actions, criminal cases involving driving while under the influence,
and domestic violence cases), with NMSA 1978, § 35-2-1 (1979, amended 2013)
(providing that a magistrate judge must have “graduated from high school” or
“attained the equivalent of a high school education”), and NMSA 1978, § 35-13-2(A)
(1996) (“Appeals from the magistrate courts shall be tried de novo in the district

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court.”). This decision also freed the State from having to retry the case, recall
witnesses, or run the risk of losing evidence, and allows the district court more ease
in managing its docket. Efforts aimed at improving the efficiency and economy of the
operation of the most populous judicial district in this State appear to provide the
rational basis for this distinction that the State argues is lacking. To the extent the
State takes issue with these considerations as supporting the differences in appellate
review, such policy determinations are not for this Court to make.
CONCLUSION
{12} 	We conclude Section 34-5-8(A)(3) vests this Court with jurisdiction to hear
appeals from a district court’s on-record review of a metropolitan court decision, and
that Section 39-3-3(A)(1) provides defendants with a right to appeal to this Court and
invoke that grant of jurisdiction. As a result, we deny the State’s motion to dismiss.
Defendant’s appeal will proceed to be calendared on its merits.
{13} 	IT IS SO ORDERED.
_________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

M. MONICA ZAMORA, Judge

J. MILES HANISEE, Judge

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