September 26, 2018- State of New Mexico v. Anthony L., No. A-1-CA-36241

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
Filing Date: September 26, 2018
3 No. A-1-CA-36241
4 	STATE OF NEW MEXICO,
5 	Pl~intiff-Appellee,
6 V.
7 ANTHONY L.,
8 	Child-Appellant.
9 APPEAL FROM THE DISTRICT OF BERNALILLO COUNTY
10 William E. Parnall, District Judge
11 	Hector H. Balderas, Attorney General
12 Maha Khoury, Assistant Attorney General
13 	Santa Fe, NM
14 for Appellee
15 	Bennett J. Baur, Chief Public Defender
16 J.K. Theodosia Johnson, Assistant Appellate Defender
17 Santa Fe, NM
18 	for Appellant
Filed
Court of Appeals of New Mexico
9/26/2018 11:03 AM
Office of the Clerk
Mark Reynolds

1 	OPINION
2 ZAMORA, Judge.
3 {I} 	Child appeals the district court's order granting the 	State's motion for
4 extension to commence Child's adjudication and his commission of the delinquent
5 act of driving without a valid driver's license. Child contends that: (1) the district
6 court erred by extending the time to commence Child's adjudication; and (2) there
7 was insufficient evidence to support the jury's verdict that he committed the
8 delinquent act of driving without a valid driver's license. We affirm.
9 BACKGROUND
10 	{2} 	On September 6, 2016, a delinquency petition was filed alleging that on
11 	September 3, 2016, Child had committed the delinquent acts of: ( 1) leaving the scene
12 	of an accident (property damage), contrary to NMSA 1978, Section 66-7-202
13 	(1978); (2) driving without a valid driver's license, contrary to NMSA 1978, Section
14 66-5-2 (2013); and (3) tampering with evidence (third or fourth degree felony),
15 	contrary to NMSA 1978, Section 30-22-5 (2003). Child was arrested and held in
16 detention until September 7, 2016, when he was conditionally released to New Day
17 Shelter. Child was arrested on October 7, 201 ~' for violating his conditions of release
18 and held in detention. On October 12, 2016, a notice was issued setting a pretrial
19 conference for October 31, 2016.

1 {3} 	On the day of the pretrial conference, the State filed a motion to extend the
2 time limit for the adjudicatory hearing in which it noted that: the matter had been set
3 for an adjudicatory hearing on October 31, 2016; the time limit to commence the
4 adjudicatory hearing was November 7, 2016; and a continuance was necessary in
5 anticipation 	of a 	pending 	community 	service 	agency 	(CSA) 	assessment 	and
6 identification of a possible out-of-home placement for Child. At the hearing, Child's
7 attorney opposed the motion, although the district court had stated at the last hearing
8 it would grant an extension and set the adjudication for December. The State noted
9 that the motion was opposed, but left the certification date for providing opposing
10 counsel with a copy of the motion blank. Also on the same date, the district court's
11 	order of continuance of the pretrial conference was filed and reset for November 21,
12 	2016. Opposition to the motion by Child's attorney was noted on that order. The
13 	district court order granted the State's motion for extension extending the date to
14 commence the adjudication to December 13, 2016, and a notice of jury trial was
15 	issued.
16 {4} 	On November 3, 2016, a hearing was held before a special master to address
· 	17 conditions of release and placement options for Child. Child's counsel informed the
18 	special master that Open Skies, a CSA, had assessed Child on October 26, 2016, and
19 Amistad Shelter had informed her the day before that they had an opening. Child's
2

1 counsel also suggested that. Child did not need to stay in detention waiting for the
2 Open Skies assessment; however, the Child remained in detention.
3 	{5} . 	On November 21, 2016, Child was conditionally released to Amistad Shelter.
4 On November 23, 2016, Child filed an objection to the extension and request for
5 reconsideration, reversal and dismissal. At a hearing on December 12, 2016, the
6 district court stated that the good cause for extending the time line was because of
7 the district court's busy docket.
8 {6} 	After a jury trial, Child was found. to have committed the delinquent acts of
9 leaving the scene of an accident and driving without a valid driver's license. A
10 mistrial was declared on the delinquent act of tampering with evidence. The
11 	judgment and disposition, for an extended consent decree, was filed on January 23,
12 201 7. Child was placed on probation, under an extended consent decree, for a period
13 	not to exceed one year, or through January 22, 2018. 1
14 District Court Did Not Abuse Its Discretion 	in 	Granting an Extension 	to
15 	Commence Child's Adjudication.
16 	{7} 	The granting of a continuance rests within the sound discretion of the district
17 court. In re Doe, 1975-NMCA-108, ,r 8, 88 N.M. 347, 540 P.2d 827. The standard
18 	of review for a motion to continue is abuse of discretion. Id. An abuse of discretion
1 In the meantime, Child violated his probation agreement and has since
entered into another probation agreement for a period ofup to one year, which will
expire on April 29, 2019.
3

1 occurs when the ruling is "clearly untenable or not justified by reason." State v.
2 	Candelaria, 2008-NMCA-120,, 12, 144 N.M. 797, 192 P.3d 792 (internal quotation
3 marks and citation omitted). There is no abuse of discretion when there are reasons
4 that both support and detract from a trial court's decision. State v. Moreland, 2008-
5 NMSC-031, , 9, 144 N .M. 192, 185 P .3 d 3 63. Our review looks at the evidence and
6 its inference in the light most favorable to the district court's decision. Candelaria,
7 	2008-NMCA-120,, 12.
8 	{8} 	Appellate courts review interpretations of our Supreme Court rules de novo,
9 State v. Stephen F., 2006-NMSC-030,, 7, 140 N.M. 24, 139 P.3d.184, as well as
10 "the district court's application of the law to the facts of [the] case." State v. Foster,
11 	2003-NMCA-099,, 6, 134 N.M. 224, 75 P.3d 824. Appellate courts apply the same
12 rules of construction to procedural rules adopted by our Supreme Court as it does to
13 	statutes. Walker v. Walton, 2003-NMSC-014,, 8, 133 N.M. 766, 70 P.3d 756. 	We
.14 therefore "look first to the plain meaning of the rule" and "refrain from further
15 	interpretation when the language is clear and unambiguous." State v. 	Gutierrez,
16 2006-NMCA-090,, 7, 140 N.M. 157, 140 P.3d 1106 (alteration, internal quotation
17 marks, and citation omitted). Neither party argues that Rule 10-243 NMRA is
18 	ambiguous 	in the context of the timeliness 	of the 	commencement of Child's
19 adjudication, we therefore apply its plain meaning.
4

1 {9} 	Child argues there was no good cause to extend the adjudicatory time limits,
2 where the State did not explain why it could not try Child within the requisite thirty
3 days. Rather, the State relied on the Child's placement in detention as a basis for the
4 extension request by depending on an outstanding·CSA assessment in anticipation
5 of identifying an out-of-home placement for Child in order to be conditionally
6 released from detention. The State contends that because Child's parents did not
7 want him in their home, Child's placement fell to the district court, therefore there
8 was good cause to extend the time limits in order to determine an appropriate
9 placement for Child, based on the CSA's assessment and recommendations.
10 {10} 	The Children's Code explicitly mandates that Rule 10-243 governs the time
11 	limits for the commencement of an adjudicatory hearing. See NMSA, § 32A-2-15
12 (1993) ("The adjudicatory hearing in a delinquency proceeding shall be held in
13 	accordance with the time limits set forth in the Children's Court Rules[.]"). Rule 10-
14 243 sets forth the time limits for the commencement of an adjudicatory hearing for
15 	both children in detention and those children not in detention.
16 	Rule 10-243(A) states, in pertinent part:
17 · 	A. 	If the child is in detention, the adjudicatory hearing shall
18 	be commenced within thirty (30) days from whichever of the following
19 	events occurs latest:
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21
( 1) 	the date the petition is served on the child;
(2) 	the date the child is placed in detention[.]
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B. 	If the child is not in detention, or has been released from
detention prior to the expiration of the time limits set forth in this rule
for a child in detention, the adjudicatory hearing shall be commenced
within one-hundred twenty (120) days from ... :
(1) 	t~e date the petition is served on the child[.]
7 For purposes of calculating the time limits for a child in detention, Child and the
8 State are both relying on the date Child w~s placed in detention, the second time,
9 October 7, 2016. Thus, the time limit for the commencement of the adjudicatory
10 hearing was November 7, 2016.
1 t 	{11} 	Rule 10-243(D) states: "For good cause shown, the time for commencement
12 	of an adjudicatory hearing may be extended by the [district] court, provided that the
13 	aggregate of all extensions granted by the [district] court shall not exceed ninety ...
14 days[.]" (Emphasis added.) The procedure for extensions of time is set out in Rule
15 	10-243(E):
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The party seeking an extension of time shall file ... a motion for
extension concisely stating the facts that support an extension of time
to commence the adjudicatory hearing. The motion shall be filed within
the applicable time limit prescribed by this rule[.] A party seeking an
extension of time shall forthwith serve a copy thereof on opposing
counsel. Within five . . . days after service of the motion, opposing
counsel may file an objection to the extension setting forth the reasons
for such objection .... If the [district] court grants an extension beyond
the 	applicable 	time ,limit, 	it 	shall 	set 	the 	date 	upon 	which 	the
adjudicatory hearing must commence.
6

1 {12} 	Two purposes of the Children's Code, NMSA 1978, §§ 32A-1-1 to -25-5
2 (1993, as amended through 2018), are pertinent to this case: (1) "to provide for the
3 care, protection· and wholesome mental and physical development of children 	...
4 	[and a] child's health and safety shall be the paramount concern[]"; and, (2) "to
5 provide judicial and other procedures through which the provisions of the Children's
6 Code are executed and enforced and in which the parties are assured a fair hearing
7 and their constitutional and other legal rights are recognized and enforced[.]" Section
8 32A-1-3(A), (B). One of the purposes of the Delinquency Act, Sections 32A-2-1 to
9 -33, contained within the Children's Code, 	is to "encourage efficient processing of
10 cases[.]" §'32A-2-2(G).
11 	{13} 	· This Court has also recognized a constitutional policy reason for the shorter
12 time limits where a child is in detention-the shorter time limit for a juvenile in
13 _detention protects the child's liberty interest. State v. Anthony M, 1998-NMCA-065,
14 19, 125 N.M. 149, 958 P.2d 107. The policy behind this protection is because the
15 	state has yet to prove the allegations against the child. Id.; see In re Dominick Q.,
16 	1992-NMCA-002, 18, 113 N.M. 353, 826 P.2d 574 (noting that required expedited-
17 proceedings for a child in detention "demonstrate[s] a concern by the rulemakers
18 that a child should not be held in detention for a prolonged period at the pre-
19 adjudicatory . . . stage[] of the proceedings"). If the adjudicatory hearing is not
7

1 timely, Rule 10-243(F)(2) mandates the dismissal of the case, with prejudice, where
2 the adjudication has not commenced within the requisite time limits.
3 	{14} 	This case involves a very delicate balancing act in adhering to the purposes
4 behind the Children's Code and recognizing Child's right to a timely adjudication.
5 On one hand, it was Child's unsuccessful discharge from New Day Shelter that
6 resulted in the need for Child's second detention, resulting in a shorter time limit in
7 which to begin the adjudication. The unsuccessful discharge created an out-of-
8 detention placement problem. It was not until the day of the pre-trial conference, or
9 seven days before the expiration of the time limit that the State requested an
10 	extension. The State noted on its motion that the extension was necessary because
11 	"[C]hild is held in detention pending CSA assessment and possible placement out of
12 home." The district court's order of continuance for the pretrial conference identified
13 	the CSA assessment and possible pending placement as grounds for the continuance.
14 The order extending the time limit did not identify any grounds for the extension
15 	much less any good cause basis, but it did identify the trial date of December 13,
16 2016. So although Child was in detention and time was running, there was still work
17 being done to find him a placement and get him out of detention. Eventually, Child
18 was released to Amistad Shelter on November 21, 2016. As a result, the new time
19 limit to commence his adjudication was one hundred twenty days from September
20 6, 2016 (the date the delinquency petition was filed), or January 4, 2017. See Rule
8

1 10-243(8)(1). Two days after Child was released to Amistad Shelter, on November
2 23, 2016, Child's attorney filed an objection to the State's October 31, 2016 motion
3 for extension.
4 	{15} 	Child also argues that the district court's crowded docket was not good cause
5 to grant the time limit extension. The State argues that the district court judge's
6 verbal comment~ during the October 31, 2016 hearing, cannot supersede the formal
7 written order and therefore cannot be the basis for a reversal. During the pretrial.
8 conference and again during the December 12, 2016 hearing, the district court noted
9 that the trial date was the earliest available date on its docket. We agree that a court's
10 busy docket cannot take precedence over a child's liberty interests. See Anthony M,
11 	1998-NMCA-065, 19 (noting shorter time limits for a juvenile in detention protects
12 the child's liberty interest); In Re Doe, 1975-NMCA-108, 1 11 (stating that the
13. Children's Code intended that there be prompt adjudication of juvenile delinquency
14 cases); see also State v. Doe, 1977-NMCA-065, 119-11, 90 N.M. 568,566 P.2d 117
15 	(holding that a continuance of sixteen days was properly granted for good cause
16 where the district court was in the middle of a jury trial and did not expect to finish
17 	in time for the hearing).
18 	{16} 	Because there was good cause in the record, although not memorialized in the
19 district court's order granting the extension of time limits, we hold that the district
9

1 court did not abuse its discretion in granting the State's motion for extension of time
2 in which to commence Child's adjudication.
3 There 	is 	Insufficient 	Evidence 	to 	Support 	Child's 	Commission 	of 	the
4 Delinquent Act of Driving a Motor Vehicle without a Valid Driver's License
. 5 {17} 	Child was charged with driving without having a valid driver's license under
6 Section 66-5-2. Child argues that there is insufficient evidence to prove that he was
7 driving without a valid driver's license on September 3, 2016. Child contends that
8 the State did not prove that he did not hold a valid driver's license at the time;
9 instead, they proved that he did not have a driver's license in his possession at the
10 time. The State agrees. While we are not bound to accept the State's concession, see
11 	State v. Tapia, 2015-NMCA-048, ,r 31, 347 P.3d 738 (stating that appellate courts
12 are not bound by the state's concession), we agree that the jury's verdict finding that
13 	Child committed the delinquent act of driving without a valid driver's license should
14 be reversed.
15 	{18} 	The testimony at trial ·.established that Child did not have a license in his
16 possession on September 3, 2016. It is NMSA 	1978; Section 66-5-16 (1985,
17 ·amended 2018) that requires that a licensee have a driver's license in their immediate
18 possession. The jury instruction was also misleading, as it required the jury to find,
19 in part, that Child was not in possession of a valid driver's license, in order to find
20 that he committed the delinquent act of driving a motor vehicle without a valid
21 	driver's license. We conclude that there was insufficient evidence to support the
10

1 jury's verdict finding that Child committed the delinquent act of driving a motor
2 vehicle without a valid driver's license.
3 	CONCLUSION
4 	{19} 	For the foregoing reasons, we affirm Child's commission of the delinquent
5 act of leaving the scene of an accident, and reverse Child's commission of the
6 delinquent act of driving a motor vehicle without a valid driver's license.
7 	{20}
8
9
IT IS SO ORDERED.
10 	WE CONCUR:
11