April 3, 2013 • Volume 52, No. 14 · Bar Bulletin - April 3, 2013 - Volume 52, No. 14 3 ... Jan. 1: #295, Justine Hannaweeke, Zuni, NM 87327. New Mexico Commission . on Access to

Bar Bulletin - April 3, 2013 - Volume 52, No. 14 1

Jemez Creek, by Phil Hulebak (see page 3) Weems Art Gallery, Albuquerque

Inside This Issue

April 3, 2013 • Volume 52, No. 14

Table of Contents ................................................3

Bernalillo County Metropolitan Court Judicial Investitures .........................................4 Judge Michelle Castillo Dowler Judge Peg Holguin Judge Jason Greenlee

State Bar 2013 Annual Awards: Call for Nominations ......................................6

Violence Against the New Mexico Legal Profession, by Stephen D. Kelson .....................................7

Investiture Celebration for 2nd Judicial District Court, by D.D. Wolohan ....................8

Clerk’s Certificates .............................................15

From the New Mexico Court of Appeals

2013-NMCA-028, No. 31,061: State v. Sotelo ................................................20

2013-NMCA-029, No. 30,865: Pecos River Open Spaces, Inc. v. County of San Miguel ...................................27

2013-NMCA-030, No. 31,190: Tierra Realty Trust LLC v. Village of Ruidoso .........................................31

2013-NMCA-031, No. 30,512: State v. Harris ................................................37

2013-NMCA-032, No. 31,179: State v. Jean-Paul ...........................................39

Special InsertDisciplinary Board

of the N.M. Supreme Court

Attorney Newsletter

2 Bar Bulletin - April 3, 2013 - Volume 52, No. 14

Two Ways to Register:Internet: www.nmbarcle.org Fax: 505-797-6071Please Note: For all Webcasts and Teleseminars, you must register online at www.nmbarcle.org

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CLE REGISTRATION FORM For more information about our programs, visit www.nmbarcle.org • 505-797-6020

LIVE WEBCAST available at the standard fee

5.0 G

2.5 G

2.5 G

Legal Career Makeover How to Refresh and Refocus Your Future

Exit Strategies for Retiring Lawyers

Friday, April 12, 2013 • State Bar Center, Albuquerque

A.M. and P.M. Sessions Standard Fee $179 Presenter: Roy S. Ginsburg, JD, Minnesota

Roy Ginsburg coaches lawyers one-on-one throughout the country in the areas of business development, practice management and career development/transitions to help them achieve individualized practice goals and career satisfaction. Ginsburg has practiced for more than 30 years in law firms from large to small and in a corporate setting. As an active solo practitioner with a part-time practice in legal marketing ethics and employment law, he is completely familiar with the challenges working lawyers face each day of their professional lives. He regularly presents CLE programs nationwide to bar associations and law firms. www.royginsburg.com

8:30 a.m. Registration9 a.m. Examine Where You’ve Been and How It’s Been9:30 a.m. Understand Your Talent and Passion Consider the Possibilities for What’s Next Along the

Career Path10:30 a.m. Break

10:45 a.m. Rebalance Your Professional, Personal, and Community Activities

Get Serious About Creating a Future With Options— Turning What’s Next Into Action11:45 a.m. Lunch (provided at the State Bar Center)

1p.m. Deciding When to Retire Considering “of Counsel” Status1:30 p.m. Planning for Succession— Replacing Leaders and Rainmakers2:30 p.m. Break

2:45 p.m. Reasons to Sell a Law Practice What Practice Areas Are Worth the Most? Establishing the Value of a Law Practice Passing Retirement: Stay Relevant3:45 p.m. Adjourn

A.M. Session Only Standard Fee $99

P.M. Session Only Standard Fee $99

Improve what you’re already doing, refresh your career, or even reinvent your work life. Now is the time to re-examine your career goals and set the stage for new ones.

Has your law firm planned for the retirement of its leaders and rainmakers? Do you even know what succession planning is? If you are a small law firm owner or solo practitioner, have you thought about the possibility of selling your law practice? Make sure you know what your practice is worth, how to locate a potential buyer, and how to negotiate a fair deal.

Once retired, what are you going to do? Retire to something, not from something. Learn ways to achieve a satisfying retirement.

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Notices ................................................................................................................................................................4State Bar 2013 Annual Awards: Call for Nominations .........................................................................6Violence Against the New Mexico Legal Profession, by Stephen D. Kelson .....................................7Investiture Celebration for 2nd Judicial District Court, by D.D. Wolohan .........................................8Legal Education Calendar .......................................................................................................................... 11Writs of Certiorari ......................................................................................................................................... 12List of Court of Appeals’ Opinions ........................................................................................................... 14Clerk’s Certificates ......................................................................................................................................... 15Recent Rule-Making Activity ..................................................................................................................... 18Opinions

From the New Mexico Court of Appeals 2013-NMCA-028, No. 31,061: State v. Sotelo ............................................................................. 20

2013-NMCA-029, No. 30,865: Pecos River Open Spaces, Inc. v. County of San Miguel ......................................................................................................................... 27

2013-NMCA-030, No. 31,190: Tierra Realty Trust LLC v. Village of Ruidoso ..................... 31

2013-NMCA-031, No. 30,512: State v. Harris .............................................................................. 37

2013-NMCA-032, No. 31,179: State v. Jean-Paul ....................................................................... 39

Advertising ..................................................................................................................................................... 47

Officers, Board of Bar Commissioners Andrew J. Cloutier, President Erika Anderson, President-Elect Martha Chicoski, Vice President J. Brent Moore, Secretary-Treasurer Hans Voss, Immediate Past President

Board of Editors Jennifer C. Esquibel, Chair George C. Kraehe Ian Bezpalko Maureen S. Moore Cynthia A. Christ Tiffany L. Sanchez Kristin J. Dalton Michael J. Thomas Jocelyn C. Drennan Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039•[email protected] Editor Dorma Seago 505-797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058•[email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2013, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000•800-876-6227•Fax:505-828-3765 E-mail:[email protected].•www.nmbar.org

April 3, 2013, Vol. 52, No. 14

Cover Artist: As a landscape painter, Phil Hulebak finds the subtlety in the light of the moment that imparts a sense of nature and the creator. Capturing a moment as though it is familiar, his intimacy with the outdoors uncovers some of the magic that makes the legends. (www.philhulebak.com).

State Bar WorkShopS

april

3 Divorce Options Workshop 6 p.m., State Bar Center

11Lawyer Referral for the Elderly Workshop10–11:15 a.m., Presentation1–3:30 p.m., ClinicsAlcalde Senior Center, Alcalde

24 Consumer/Debt Bankruptcy Workshop 6 p.m., State Bar Center

25 Consumer/Debt Bankruptcy Workshop 5:30 p.m., Law Office of Kenneth Egan, Las Cruces

May

1 Divorce Options Workshop 6 p.m., State Bar Center

1 Estate Planning/Probate Workshop 6–8 p.m., Mary Esther Gonzales Senior Center, Santa Fe

8 Estate Planning/Probate Workshop 7–9 p.m., State Bar Center

MeetingS

april

3 Bankruptcy Law Section BOD, Noon, U.S. Bankruptcy Court

3 Employment and Labor Law Section BOD, Noon, State Bar Center

4 Real Property, Trust and Estate Section BOD, 11 a.m., via teleconference

10 Children’s Law Section BOD, Noon, Juvenile Justice Center

11 Public Law Section BOD, noon, Montgomery and Andrews, Santa Fe

11 Business Law Section BOD, 4 p.m., via teleconference

11 Support Group for Legal Professionals, 5:30 p.m., Unitarian Universalist Church, Santa Fe

12 Animal Law Section BOD, Noon, via teleconference

taBle of ContentS

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notiCeS

With respect to the courts and other tribunals:

In civil matters, I will stipulate to facts when there is no genuine dispute.

profeSSionaliSM tipCourt neWSN.M. Supreme CourtBoard Governing the Recording of Judicial ProceedingsExpired Court Reporter Certifications A listing of court reporters whose certifi-cations are currently expired appeared in the March 13 (Vol. 52, No. 11) Bar Bulletin. In addition to the original listing, the following court reporter’s certification expired as of Jan. 1: #295, Justine Hannaweeke, Zuni, NM 87327.

New Mexico Commission on Access to Justice The next meeting of the Commission on Access to Justice is from noon–4 p.m., April 5, at the State Bar Center. Interested parties are welcome to attend. Further information about the commission is available on the State Bar’s website, www.nmbar.org.

Second Judicial District CourtVolunteer Attorney ProgramFree Foreclosure Clinic April 3, 10 a.m.–1 p.m.Clinics are held the first Wednesday of each month, Third Floor Conference Room, 2nd Judicial District Court, 400 Lomas Blvd. NW, Albuquerque. Clients should bring all related paperwork. Direct questions to Erin Olson, 505-768-6114. The clinic is sponsored by the 2nd Judicial

District Pro Bono Committee and the Vol-unteer Attorney Program.

Fifth Judicial District CourtJudicial Appointment Gov. Susana Martinez has appointed Judge James M. Hudson to fill the vacancy in Division VI. Effective April 1, Judge Hudson will be assigned all cases previously assigned to Judge Ralph D. Shamas, Divi-sion VI. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a peremptory excusal will have 10 days from April 10 to excuse Judge Hudson.

Bernalillo County Metropolitan CourtJudicial Investitures Members of the legal community are cordially invited to the investiture ceremo-nies for Judge Michelle Castillo Dowler (Division 13), Judge Peg Holguin (Division 14), and Judge Jason Greenlee (Division 15) at 5:15 p.m., April 12, in the Metropolitan Court Rotunda. Remarks will be delivered by Chief Justice Petra Jimenez Maes. A reception will follow at the Albuquerque Country Club, 601 Laguna Blvd. SW.

State Bar neWSAttorney Support Group

• May 6, 5:30 p.m. Afternoon groups meet on the first Monday of the month.

• May 20, 7:30 a.m. Morning groups meet on the third Monday of the month.

Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.

Court Exhibits/Tapes For Years May Be Retrieved Through

5th Judicial District Court Domestic Relations 1972-1997 April 10 Eddy County, 575-885-4740 Criminal: CR-1987-128, CR-1987-129, CR-1987-151, June 10

CR-1987-214, CR-1988-75, CR-1988-87, CR-1988-235, CR-1989-78, CR-1989-85, CR-1989-93, CR-1995-104, CR-1997-63, CR-1998-33, CR-2000-65, CR-2002-53, CR2004-104, CR-2004-314, CR-2005-81, CR-2006-260, CR-2007-223, CR-2007-271, CR-2008-44, CR-2008-193, CR-2008-221, CR-2008-261, CR-2009-79, CR-2009-125, CR-2009-127, CR-2009-150, CR-2009-238, CR-2010-114, CR-2010-204. Civil: CV-1985-410, CV-1988-74, CV-1994-323, CV-1999-257, CV-2004-420, CV-2004-557, CV-2007-749. DM-1993-597. JR-2001-142, JR-2004-69, JR-2006-108.

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court Email: attorneyinfochange @nmcourts.gov Fax: 505-827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarEmail: [email protected]: 505-797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

addreSS ChangeS


mailto:@nmcourts.gov




www.nmbar.org

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more informa-tion, contact Bill Stratvert, 505-242-6845.

Support Group for Legal Professionals April 11, 5:30 p.m.

The group meets on the second Thurs-day of the month at the Unitarian Uni-versalist Church, 107 West Barcelona Rd., Santa Fe. For more information, call Diego Zamora, 505-629-7343.

Employment and Labor Law SectionBoard Meetings Open to Section Members The Employment and Labor Law Sec-tion board of directors welcomes section members to attend its meetings on the first Wednesday of each month. The next meeting will be held at noon, April 3, at the State Bar Center. Lunch is provided to those who R.S.V.P. to [email protected]. Contact Chair Justin Poore, [email protected] or 505-284-6336.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and at-tend Public Records Requests vs. Formal Discov-ery Tools in Litigation (1.0 general CLE credit) presented by Josh Allison. The program will be held from noon–1 p.m., April 10, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Registration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Evonne Sanchez, 505-222-9352. Webcast to three locations:

• Santa Fe: Montgomery & Andrews, 325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, 505-986-2520.

• Roswell: Hinkle, Hensley, Shanor & Martin LLP, 400 N. Pennsylvania, Ste. 700. Contact Dora Paz, 575-622-6510.

• Farmington: Titus & Murphy, 2021 E. 20th Street. Contact Heather Parmley, 505-326-6503.

Young Lawyers DivisionCelebrate Law DayAsk-a-Lawyer Call-in Program9 a.m.–1 p.m., May 4 Celebrate Law Day by participating in the annual Ask-a-Lawyer Call-in Program.

To volunteer, contact a YLD member near you: in Albuquerque, Spencer Edelman, [email protected] or 505-848-1857; in Farmington, Mary Modrich Alvarado, [email protected] or 928-871-6212; or Ken Stalter, [email protected] or 505-599-9810; in Las Cruces, David Lutz, [email protected] or 575-526-2449; in Roswell, Jared Kallunki, [email protected] or 575-208-4469. The YLD invites all State Bar members to participate. Board Vacancy A vacancy exists on the YLD Board in Region 4 (3rd, 6th, and 12th Judicial districts and Sierra County). Any YLD members interested in the position should send a letter of interest and résumé to Chair Keya Koul, [email protected] by April 19.Member Attitudes Survey As the YLD board reached the end of the 2012 program year, the directors asked, “Are we doing a good job?” “How would we know one way or the other?” To that end, a recent online survey has given the board a road map for 2013 programming aimed at creating value for division members. To view the results of the survey, visit http://www.nmbar.org/AboutSBNM/YLD/YLD.html.

unMThe John Field Simms Sr.Memorial Lectureship in Law United States District Judge James O. Browning will present A Border Trial Judge Looks at Immigration–Heeding the Call to Do Principled Justice to the Alien Without Get-ting Bogged Down in Partisan Politics: Why the United States Immigration Laws are Not Broken (But Could Use Some Repairs) (1.0 general CLE credit) at 4:30 p.m., April 3, at the UNM School of Law. Parking is free in the L parking lot starting at 3:30 p.m. A reception will follow. R.S.V.P. to [email protected] or 505-277-8184. For more information, visit http://lawschool.unm.edu/alumni/events/2013/simms.php.Law Library HoursThrough May 11Building & Circulation

Monday–Thursday 8 a.m.–10 p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday noon–8 p.m.

ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday–Sunday Closed

other BarSAlbuquerque Bar AssociationLuncheon and CLE The Albuquerque Bar Association’s Membership Luncheon will be held at 11:45 a.m., April 9, at the Embassy Suites, 1000 Woodward Place NE, Albuquerque. Dick Minzner will provide a legislative update (1.0 general CLE credit). Plan to arrive early for lunch. The presentation will follow from 12:30–1:30 p.m. Lunch only: $30 members/$40 non-members, plus $5 walk-up fee; lunch/CLE: $60 members/$80 non-members, plus $5 walk-up fee; CLE only: $30 members/$40 non-members. Register for lunch by noon, April 5. See the top of page 6 for ways to register.

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

Digital Print CenterWhen First Impressions Matter

• Business Cards • Letterhead• Envelopes • Brochures• Announcements • Invitations• CLE Materials • And much more

We provide quality, full-color printing.

Ask about your member discount.

Contact Marcia Ulibarri, 505-797-6058

or [email protected].








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noMinationS noW Being aCCepted

2013 State Bar annual aWardS

Send a letter of nomination for each nominee to:

Joe Conte, Executive DirectorState Bar of New Mexico

PO Box 92860Albuquerque, NM 87199-2860

fax to 505-828-3765 or email [email protected]

Deadline for Nominations: April 30

For more information, see the Feb. 27 (Vol. 52, No. 9) Bar Bulletin

or visit www.nmbar.org/Attorneys/AM/

callfornominations.pdf.

1. log on to www.abqbar.org; or2. email [email protected]; or3. call 505-842-1151 or

505-243-2615; or4. mail to PO Box 40,

Albuquerque, NM 87103.

Albuquerque Lawyers ClubMonthly Luncheon New Mexico’s oldest bar association invites the legal community to its monthly luncheon and speaker series to be held at noon, April 3, at Season’s Rotisserie and Grill, Albuquerque. Enjoy salmon, steak, and a talk with Attorney General Gary King. The cost is $25, and everyone is welcome. Contact Megan Duffy, [email protected] or 505-323-0515.

American Bar AssociationSpring Conference The ABA Section of Administrative Law and Regulatory Practice will hold its 2013 Spring Conference April 12–14 at the Inn and Spa at Loretto in Santa Fe. The program faculty includes both state and national speakers, with CLE programs on Alcohol Regulations and Airlines and The Future of NAFTA. For additional information and a registration form, contact Anne Kiefer, [email protected] or 202-662-1690.

other neWSVolunteer Attorney ProgramFree Spring CLEs The final in a series of free CLEs is being offered in appreciation to attorneys who par-ticipate in the Volunteer Attorney Program. Srinivas Mukkamala, Ph.D., and Mark Fidel, CAaNES, will present Electronic Discovery from 10 a.m.–noon, April 11, at Law Ac-cess New Mexico, 4141 Montgomery Blvd. NE, Albuquerque. The session is free for VAP volunteers/$50 for non-volunteers. To register, contact Erin Olson, 505-768-6114 or [email protected].

New Mexico Legal AidOne Day on Earth The first film shot in every country of the world, “One Day on Earth,” showcases the amazing diversity, conflict, tragedy, and tri-umph that occurs in one day on our planet. Support New Mexico Legal Aid by attending a special screening at 6:30 p.m., April 23, at Century 14 Downtown, Albuquerque. The cost is $12. Visit http://www.tugg.com/go/9ooafa to purchase tickets.

Earth Day Cell Phones Recycling Drive New Mexico Legal Aid is kicking off its first community-wide campaign on April 23 to collect used and unwanted cell phones in connection with Earth Day 2013. All donated phones are confidentially and securely cleared of personal information and only need contain the phone and battery. Proceeds will support NMLA’s victims of violence programs. Bring used cell phones to the event for collection.

Senior Citizens’ Law OfficeMonthly Seminar Speaker Series In celebration of its 30th anniversary, Senior Citizens’ Law Office is sponsoring a monthly seminar speaker series on legal is-sues relevant to the elderly. Ellen Leitzer and Nancy Guinn, M.D., will present Advance Directives from 6–7:30 p.m., April 9, at the Albuquerque Mennonite Church, 1300 Gi-rard Blvd. NE, Albuquerque. Contact Guy E. Lescault, 505-265-2300 or [email protected].

The New Mexico State Bar Foundation will hold a silent auction to raise money for civil legal services as part of the State Bar’s 2013 Annual Meeting in Santa Fe. Proceeds will be used to make justice work for those who need it but cannot afford it—to give everyone a fighting chance. The auction will take place June 27–28 at the Santa Fe Convention Center.

Please help by donating an auction item for the event. Anything would be greatly appreciated.

Contributors will be promoted throughout the three-day State Bar Annual Meeting, in the event program, and in the weekly Bar Bulletin, a publication mailed to more than 9,000 in the New Mexico legal community. We expect more than 400 lawyers and their guests to attend the event. Donations are tax deductible.

Contact: Michaela Chavez, 505-977-5653 • [email protected] • [email protected]

orJoe Conte, 505-797-6099 • [email protected]

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Violence Against the New Mexico Legal Profession ■ A summary of the results of the 2012 State Bar of New Mexico Survey of Violence Against the Legal Profession

By Stephen D. Kelson

On Jan. 30, 2013, Arizona Attorney Mark P. Hummels and his client were shot and killed during a mediation session by a

pro se litigant in a contractual business dispute. On Jan. 31, 2013, a Texas assistant district attorney, Mark Hasse, was shot and killed as he walked from his car to the courthouse. These recent high-profile acts of violence against the legal profession are considered extremely uncommon; however, just because you don’t hear about them doesn’t mean they aren’t occurring regularly. Violence against the New Mexico legal profession is not as remote as you might believe.

Studies of Violence Against the Legal Profession Limited studies on the subject of violence against the legal pro-fession show that a substantial amount of violence is regularly directed at the legal profession and it appears to be increasing. Statistics gathered by the U.S. Marshals Service over a period of more than 30 years provide troubling information regarding violence against federal judicial officials. From 1980–93, there were a total of 3,096 recorded inappropriate communications and threats directed at federal judges—an average of 238 per year.1 In comparison, from 2001–07 (see Table 1), 5,657 were reported—an average of 808 per year;2 and from 2008–10, 4,062 were reported—an estimated average of 1,354 per year.3 In 2012, 1,370 were reported.4

Unfortunately, threats and violence against the legal profession at the state and local court levels appear to be far more serious and occur more frequently than those at the federal level.5 A 1999 survey by the Administrative Office of Pennsylvania Courts found that of 1,029 judges, 23 percent had at some time received explicit threats; 17 percent reported physical assaults; and 44 percent experienced inappropriate approaches.6 The federal Bureau of Justice Statistics, which in 2001 examined workplace aggression as it relates to prosecutors and their office personnel, reported that 81 percent of large state prosecutors’ offices reported work-related threats or assaults in that year alone. 7

Surveys of in-state bar association members have been conducted in Utah, Idaho, Nevada, Wyoming, and Oregon. The results present surprising details of violence experienced by attorneys: Respondents Threatened or

Physically Assaulted at Least Once2006, Utah Bar Association 452 (45.9 %) 2008, Idaho Bar Association 400 (41.5%)2012, Nevada Bar Association 412 (40%)2012, Wyoming Bar Association 211 (46.0 %)2012, Oregon Bar Association 684 (36.7%)

The 2012 State Bar of New Mexico Survey of Violence Against the Legal Profession The survey in New Mexico was conducted online at http://www.

surveymonkey.com from Nov. 14, 2012–Jan. 25, 2013. All in-state State Bar members with available email addresses were invited to respond. During the relevant time period of the survey, the State Bar consisted of 6,170 in-state members. The survey received a total of 919 responses, representing 14.9 percent of the total membership.

The survey’s primary question asked members if, while serving as a member of the legal profession, they had ever been the recipient of a threat8 or had been the victim of a violent act. Subsequent ques-tions dealt with the types of threats and/or violence, the number of threats received, the location of threats or violent acts, the association between the threat and the violent act, the relationship with the perpetrator, reports to police, the date of the last occurrence, change

in conduct, and demographic information.

Threats and Acts of Physical ViolenceOf the 919 responses, 368 (40.0 percent) reported that they had been threatened and/or physically assaulted at least once. This percentage is on the low end compared to the state surveys mentioned above.

Respondents provided descrip-tions of over 293 examples of threats and/or acts of violence that had been perpetrated against them. Although there are far too many examples to list in this article, a few are provided to show the kinds of violence reported:

• A treating psychiatrist called to advise that the pro-se party had a gun and had left their office to come to my office.

• [A former client] at the jail approached me in a threatening manner. One of the other inmates intervened and my client stabbed that inmate twice in the face.

• The law firm I was associated with was burned by someone throwing gas cans through the window and setting them on fire.

• [The mother of a defendant] attempted to run over my daugh-ter and her friend while screaming that she was “white trash.”

• I received well over a dozen phone messages with the sounds of gunshots.

• Opposing party threatened me then came to my apartment complex with a gun.

• I received a death threat that was scraped into the stucco on the side of my house.

• I had all of my teeth knocked out with a baseball bat in front of the courthouse.

Types of Threats and ViolenceRespondents were asked to identify the types of threats and/or acts of violence received (see Table 2). Inappropriate and threatening com-munications were those communicated by letter, phone, fax or verbal interaction and included being followed, face-to-face confrontations, or attempts at violence. A total of 10.4 percent of respondents reported being physically assaulted. The majority of respondents

Table 1U.S. Marshals Service

Inappropriate Communications or ThreatsYear Number Year Number Year Number2001 629 2005 953 2009 1,3902002 565 2006 1,111 2010 1,3952003 585 2007 1,140 2011 “App 1,400”2004 674 2008 1278 2012 1,370

continued on page 10

http://www


Investiture Celebrationfor 2nd Judicial District Court

By D.D. Wolohan

It was a festive late afternoon on March 20 as family, friends, and an overflow audience celebrated the investiture of 2nd Judicial District Court Judges Benjamin Chavez and Briana H. Zamora and enjoyed the reception that followed afterward at the National Hispanic Cultural Center.

Second Judicial District Court Judge Valerie Mackie-Huling administered the Oath of Office to Judge Benjamin Chavez.

Michael Messina and Patricia Madrid chat with Judge Chavez’ in-laws, Orville and Judy Pratt.

Second Judicial District Court Chief Judge Ted Baca, left, presided over the ceremony; 2nd Judicial District Court Judge Clay Campbell offered a few remarks on behalf of Judge Chavez.


It was standing room only for the investiture.

John Doran and the Hon. Ira Robinson

Kyle and Addison Nayback beam at wife and mom Judge Briana Zamora during the ceremonies.

Judge Briana Zamora takes the Oath of Office as daughter Addison clutches the Bible, assisted by dad Kyle Nayback. Administering the oath is 2nd Judicial District Court Chief Judge Ted Baca.

Judge Briana Zamora hugs her 85-year-old grandfather, Casimiro Zamora, as her daughter Addison, age 5, looks on.

Second Judicial District Court Judge Judith Nakamura talks with Metro Judge Jason Greenlee.

Phot

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.D. W

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identified inappropriate and threatening communications, made primarily in person or by phone and often included veiled threats. For example, “Better watch your back”; “I’m watching you”; “I’m going to get you”; “You’re dead”; “I know where you live”; “[I will] bury you”; and “[I will] take care of you.” In some circumstances, these threats were directed against attorneys’ family and children.

Number of Threats ReceivedResults show that 276 (75.8 percent) received more than one threat during their legal career (see Table 3).

Locations of ThreatsThe most prominent locations of threats and violence have been business offices and courthouses. However, more than 100 respon-dents reported that they experienced threats and violence beyond the office and courthouse, including at home, the store, and public gatherings.

Threats and Subsequent AssaultsOf 362 responses, a total of 51 incidents of physical assault following the receipt of an inappropriate or threatening communication were reported. An additional six could not identify whether the assault was related to the threat.

Relationship with the Perpetrator of Threats/AssaultsThe 359 respondents to this question identified 505 sources of threats and violence, primarily perpetrated by opposing parties and the attorney’s own client (see Table 4). However, responses show that threats and violence can occur from any individual involved in a legal case, including, unfortunately, other members of the bar.

Change in ConductForty-one respondents reported that such incidents had affected their conduct a great deal, 127 indicated that their conduct had been somewhat affected, and 185 identified that it did not alter the way they conducted business. These percentages may be associated, in part, to the perceptions reported by some attorneys that physical threats and violence are just “part of the job” and that threats are nothing more than empty words made “in the heat of the moment.”

Conclusion The 2012 State Bar of New Mexico Survey of Violence Against the Legal Profession illustrates that, contrary to the general assumption, a significant percentage of active members of the State Bar have faced threats and/or violence in their practice. It should no longer be assumed that threats and violence against the legal profession are purely random or can only happen to someone else. The survey results strongly suggest that the issue of violence against the legal community is one that should receive more attention and discussion within the profession.

Endnotes 1 Frederick S. Calhoun, Hunters and Howlers: Threats and Violence Against Federal Judicial Officials in the United States, 1789-1993, 51 (U.S. Marshals Service, 1998). 2 For a complete list of sources see Stephen D. Kelson, Violence Against the Nevada Legal Profession: Results of the 2012 Survey, n.2, available at http://nvbar.org/articles/content/online-exclusive-violence-survey-report. 3 Id. at n.3. 4 See Office of Public Affairs, U.S. Marshals Service, “Fact Sheet: Judicial Security (2013),” available at http://www.usmarshals.gov/duties/factsheets/jsd-2013.pdf (revised Nov. 29, 2012). 5 Calhoun, supra note 1, at 29. 6 Don Hardenbergh & Neil Allen Weiner, Preface, in The Annals of the American Academy of Political and Social Science 2001: 576, 13-15 (Alan W. Heston, et al. eds., July 2001). 7 DeFrances, C.J., “State Court Prosecutors in Large Districts, 2001,” Bureau of Justice Statistics Bulletin. Washington, DC.: U.S. Department of Justice (2001); De Frances, C. J., “Prosecutors in State Courts, 2002,” Bureau of Justice Statistics Bulletin. Washington, DC: U.S. Department of Justice. (2002). 8 For the purposes of the survey, a “threat” was defined as “a written or verbal intention to physically hurt or punish another, and/or a written or verbal indication of impending physical danger or harm.”

About the AuthorStephen Kelson is an attorney with Christensen & Jensen PC, in Salt Lake City, Utah. He is the chair of the Dispute Resolution Section of the Utah State Bar. He can be contacted at 801-323-5000.

Table 3Threats Experienced

n = 364Number of Respondents Percentage

None 4 1.1One 84 22.5Two 90 24.7Three 67 18.4Four 17 4.7More than 4 104 28.6Total 364 100%

Table 4Perpetrators of Threats / Assaults

Relationship NumberClient 99Relative/Associate of Client 43Opposing Party 171Relative/Associate of Opposing Party 59Unknown 22Opposing Counsel 51Other 60

Table 2Types of Threats/Inappropriate Communications

n = 364Type Number

Inappropriate Communications 261Inappropriate Approaches 175Physical Assault 38Combination of two or more of the above 80Other 38

Violence continued from page 7

http://nvbar.org/articles/content/online-exclusive-violence-survey-report

http://www.usmarshals.gov/duties/


legal education

2 23rd Annual Appellate Practice Institute

6.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2 The Federal Process in New Mexico 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2 Trial Practice Workshop: Putting an Edge on the Evidence

4.7, G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2–3 Overtime, Exempt and Non–exempt: 2013 Wage and Hour Update,

Parts 1 and 2 2.0 G Teleseminar Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

4–5 UCC Article 9 Practice Toolkit: From Attachment to Remedies, Parts 1 and 2

2.0 G National Teleseminar Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

9 Estate Planning For Farmers and Ranchers


11–12 Planning and Drafting for Single Member LLCs, Parts 1 and 2


april

12 Legal Career Makeover: Exit Strategies for Retiring Lawyers 2.5 G

Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

12 Legal Career Makeover: How to Refresh and Refocus Your Future 2.5 G


16 Basics of Family Law 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

16 The Medicine of Personal Injury 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

16 Structuring Preferred Stock and Preferred Returns in Business and Real Estate Transactions


16 Time Mastery for Lawyers 5.5 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

18 Religious Accommodations in the Workplace


19 Ethics and Client Confidences: An Advanced Guide

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

23 Understanding and Planning Title Insurance in Commercial Real Estate


24 Commercial and Residential Landlord Tenant Law Update

5.6 G, 1.0 EP Albuquerque Sterling Education Services, Inc. 715–855–0495 www.sterlingeducation.com

24 Dissecting Medical Malpractice: A Litigation Overview for New and Advanced Practitioners 6.0 G, 1.0 EP


25 Estate Planning a Long–Term Low Interest Rate Environment


26 New Medicare Tax Impact on Business Planning


26–27 2013 New Mexico Collaborative Law Symposium: The Basics

10.7 G, 1.0 EP Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

30 Ethics Issues in Representing Elderly Clients

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505–797–6020 www.nmbarcle.org

















http://www.sterlingeducation.com







Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effeCtive MarCh 22, 2013

Writs of certiorarias updated By the clerk of the neW Mexico supreMe court

petitions for Writ of certiorari filed and pending: Date Petition FiledNo. 34,074 State v. Maples COA 30,507 03/20/13No. 34,072 State v. Zumwalt COA 32,006 03/20/13No. 34,070 State v. Towler COA 32,484 03/18/13No. 34,066 Garcia v. Williams 12-501 03/15/13No. 34,065 Moore v. Nance 12-501 03/15/13No. 34,063 Uecker v. Hatch 12-501 03/15/13No. 34,069 Bank of Oklahoma v.

Martinez COA 32,481 03/14/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 34,064 McReynolds v. Brown 12-501 03/14/13No. 34,062 State v. Williams COA 31,512 03/13/13No. 34,061 Lopez v. Janecka 12-501 03/13/13No. 34,060 State v. Atwater COA 31,218 03/13/13No. 34,059 State v. Littleton COA 32,230 03/13/13No. 34,058 State v. Knotts COA 32,305 03/13/13No. 34,057 State v. Torres COA 31,567 03/13/13No. 34,056 State v. Stapleton COA 32,360 03/11/13No. 34,055 Smith v. Bravo 12-501 03/11/13No. 34,054 Weiss v. THI of N.M. COA 30,296 03/11/13No. 34,053 State v. Hicks COA 30,370 03/08/13No. 34,052 State v. Silva COA 32,402 03/08/13No. 34,051 Ysasi v. Bravo 12-501 03/08/13No. 34,046 Pargin Realty v. Schmidt COA 31,689 03/07/13No. 34,048 State v. Baca COA 31,340 03/06/13No. 34,047 State v. Ingram COA 30,961 03/05/13No. 34,040 Mendez v. Wells Fargo COA 32,388 03/05/13No. 34,045 Millar v. Dept.

of Workforce Solutions COA 31,581 03/04/13No. 34,044 State v. Riordan COA 31,795 03/04/13No. 34,043 State v. Martinez COA 32,271 03/04/13No. 34,041 Blake v. Janecka 12-501 03/04/13 Response filed 3/20/13No. 34,027 State v. Hess COA 31,536 03/01/13No. 34,039 Cavu Co. v. Martinez COA 32,021 02/28/13No. 34,037 State v. Morris COA 31,815 02/27/13No. 34,007 City of ABQ v.

AFSCME Local 3022 COA 31,075 02/27/13 Response filed 3/20/13No. 34,010 N.M. Cattle Growers v. N.M. Water

Quality Control Comm. COA 31,191 02/26/13 Responses filed 3/13/13 and 3/14/13No. 34,035 Town of Edgewood v. N.M.

Muni. Boundary Com. COA 30,768 02/25/13No. 34,034 McGraw v. Bernalillo County

Commissioners COA 32,637 02/25/13No. 34,029 State v. Warner COA 31,819 02/19/13No. 34,023 State v. Garcia COA 30,852 02/13/13 Response ordered; due 4/2/13No. 33,994 Gonzales v. Williams COA 32,274 01/14/13No. 33,943 State v. Laura J. COA 31,324/32,192 12/03/12 Response to X-Petition filed 1/8/13

No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,866 Reza v. State 12-501 10/15/12 Response ordered; filed 1/28/13No. 33,863 Murillo v. State 12-501 10/10/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,811 Skidgel v. Hatch 12-501 09/14/12No. 33,810 Gonzales v. Marcantel 12-501 09/14/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

certiorari granted But not yet suBMitted to the court:(Parties preparing briefs) Date Writ IssuedNo. 32,804 State v. Servantez COA 30,414 02/07/11No. 33,001 State v. Rudy B. COA 27,589 06/08/11No. 33,046 State v. Munoz COA 30,837 07/21/11No. 33,265 State v. Garcia COA 29,338 11/17/11No. 33,565 State v. Ballard COA 30,187 05/02/12No. 33,571 State v. Miller COA 29,244 05/11/12No. 33,592 State v. Montoya COA 30,470 05/24/12No. 33,604 State v. Ramirez COA 30,205 06/05/12No. 33,653 Bustos v. Zia Park LLC COA 32,068 06/28/12No. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,779 State v. Vento COA 30,469 09/21/12No. 33,808 State v. Nanco COA 30,788 10/12/12No. 33,796 State v. Vasquez COA 29,868 10/12/12No. 33,770 Vaughn v. St. Vincent

Hospital COA 30,395 10/12/12No. 33,856 Gray v. Cherokee Nation Industries

Professional Services LLC COA 32,194 11/02/12No. 33,847 State v. Urquizo COA 30,337 11/02/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,763 State v. Almanzar COA 30,600 11/02/12No. 33,754 State v. Garcia 12-501 11/02/12No. 33,862 State v. Gerardo P. COA 31,250 11/09/12No. 33,870 State v. Perez COA 31,678 11/16/12No. 33,792 State v. AFSCME

Council 18 COA 30,847 11/16/12No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 12/06/12No. 33,895 State v. Garcia COA 31,470 12/06/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,874 Encinas v.

Whitener Law Firm COA 30,106 12/06/12No. 33,915 State v. Leon COA 31,067 12/26/12No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 12/26/12No. 33,817 Gordon v. King 12-501 12/26/12No. 33,924 AFSCME Council 18 v.

City of Albuquerque COA 30,927 01/07/13No. 33,932 State v. Finch COA 30,706 01/10/13No. 33,952 Melendez v. Salls Brothers COA 32,293 01/18/13


Writs of Certiorari http://nmsupremecourt.nmcourts.gov.

No. 33,949 Rodriguez v. Del Sol Shopping Center COA 30,421/30,578 01/18/13

No. 33,946 State v. Martinez COA 30,637 01/18/13No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,969 Safeway, Inc. v. Rooter

2000 Plumbing COA 30,196 01/28/13No. 33,896 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 01/28/13No. 33,977 State v. Calderon COA 30,844 02/08/13No. 33,970 State v. Parvilus COA 30,379 02/08/13No. 34,009 State v. Huettl COA 31,141 03/01/13No. 34,006 Janet v. Marshall COA 31,090 03/01/13No. 33,999 State v. Antonio T. COA 30,827 03/01/13No. 33,997 State v. Antonio T. COA 30,827 03/01/13No. 33,993 Fowler v. Vista Care and American

Home Insurance Co. COA 31,438 03/01/13No. 33,971 State v. Newman COA 31,333 03/01/13No. 33,938 State v. Crocco COA 31,498 03/01/13No. 33,928 Skowronski v. N.M. Public

Education Dept. COA 31,119 03/01/13No. 34,013 Foy v. Austin Capital COA 31,421 03/15/13

certiorari granted and suBMitted to the court:

(Submission Date = date of oral argument or briefs-only submission) Submission DateNo. 32,690 Joey P. v. Alderman-Cave Milling

and Grain Co. COA 29,120 05/11/11No. 32,868 Nunez v. Armstrong

General Contractors COA 29,522 10/11/11No. 32,844 Gonzalez v. Performance

Paint, Inc. COA 29,629 10/11/11No. 32,713 Bounds v. D’Antonio COA 28,860 10/13/11No. 32,717 N.M. Farm and Livestock

Bureau v. D’Antonio COA 28,860 10/13/11No. 32,915 State v. Collier COA 29,805 11/15/11No. 32,968 Sunnyland Farms, Inc. v.

Central N.M. Electric COA 28,807 12/12/11No. 32,860 State v. Stevens COA 29,357 01/10/12No. 33,023 State v. Gurule COA 29,734 01/30/12No. 32,605 State v. Franco COA 30,028 03/28/12No. 33,057 State v. Turrietta COA 29,561 04/30/12No. 33,331 Strausberg v.

Laurel Healthcare COA 29,238 05/14/12No. 33,077 State v. Gonzales COA 28,700 05/16/11No. 33,257 State v. Boyse COA 30,656/30,657 07/30/12No. 33,362 Convisser v. Ecoversity COA 30,100 08/13/12No. 33,353 Flemma v. Halliburton

Energy COA 29,933 08/14/12No. 33,372 Schultz v. Pojoaque Tribal

Police Dept. COA 28,508 08/15/12No. 33,364 Nettles v. Ticonderoga

Owners Association COA 31,342 09/10/12No. 33,203 State v. Davis COA 28,219 09/10/12No. 33,380 City of Rio Rancho v.

Palenick COA 30,136 09/10/12No. 33,217 State v. Ramos COA 29,514 09/11/12No. 33,224 Bank of New York v.

Romero COA 29,945 09/12/12No. 33,296 State v. Gutierrez COA 29,997 09/12/12

No. 33,226 State v. Olsson COA 29,713 10/31/12No. 33,014 State v. Crane COA 29,470 11/13/12No. 33,324 State v. Evans COA 31,331 11/26/12No. 33,139 State v. Polson COA 31,138 11/26/12No. 33,182 Moongate Water Co. v.

City of Las Cruces COA 27,889 12/10/12No. 33,483 State v. Consaul COA 29,559 12/17/12No. 33,382 N.M. Human Services v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,383 Presbyterian Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,384 Cimarron Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,375 State v. Cobrera COA 29,591 01/16/13No. 33,676 City of Farmington v.

Pinon-Garcia COA 30,888 01/23/13No. 33,650 City of Farmington v.

Pinon-Garcia COA 30,888 01/23/13No. 33,711 N.M. Taxation and Revenue Dept.

v. Tindall COA 31,194 02/11/13No. 33,627 N.M. Taxation and Revenue Dept.

v. BarnesandNoble.com COA 31,231 02/11/13No. 33,579 Avalos v. N.M. Counseling and

Therapy Practice Board COA 30,611 02/12/13No. 33,677 State v. Orquiz COA 31,247 02/12/13No. 33,693 State v. Pangaea Cinema COA 30,380 02/13/13No. 33,635 Baker v.

Hedstrom COA 30,475/30,491/30,639 02/25/13No. 33,687 Elane Photography v.

Willock COA 30,203 03/11/13No. 33,611 Bank of America v.

Quintana COA 30,354 03/12/13No. 33,594 Fallick v. Montoya COA 30,172 03/13/13No. 33,589 Zhao v. Montoya COA 30,172 03/13/13No. 33,632 First Baptist Church of

Roswell v. Yates Petroleum COA 30,359 03/13/13No. 33,759 Martinez v. Public Employees

Retirement Association COA 31,310 03/25/13No. 33,487 State v. Martinez COA 30,580 03/25/13No. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,709 Charter Bank v.

Francoeur COA 30,551 04/16/13No. 33,567 State v. Leticia T. COA 30,664 04/30/13No. 33,566 State v. Leticia T. COA 30,664 04/30/13No. 33,772 City of Albuquerque v.

Blakenship COA 31,960 04/30/13

petition for Writ of certiorari denied: Date Order FiledNo. 34,033 State v. Maples COA 30,507 03/19/13No. 34,032 State v. Torres COA 31,567 03/19/13No. 34,028 State v. Castor COA 31,819 03/19/13

Writ of certiorari Quashed:

Date Order FiledNo. 32,941 Titus v.

City of Albuquerque COA 29,461 03/22/13No. 33,070 Montoya v.

City of Albuquerque COA 29,838 03/22/13

http://nmsupremecourt.nmcourts.gov


opinionsas updated By the clerk of the neW Mexico court of appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925

effeCtive MarCh 22, 2013

Slip Opinions for Published Opinions may be read on the Court’s website:

http://coa.nmcourts.gov/documents/index.htm

puBlished opinions

Date Opinion Filed

No. 31265 11th Jud Dist San Juan CR-10-1072, STATE v V SMITH (reverse and remand) 3/19/2013

unpuBlished opinions

No. 31286 2nd Jud Dist Bernalillo CR-08-2345, STATE v G KETCHUM (affirm) 3/18/2013

No. 32539 9th Jud Dist Roosevelt JQ-11-2, CYFD v JOEL Z (affirm) 3/18/2013

No. 32285 2nd Jud Dist Bernalillo JQ-10-129, CYFD v JASMINE A (affirm) 3/19/2013

No. 32540 2nd Jud Dist Bernalillo JQ-11-125, CYFD v JENNIFER G (affirm) 3/19/2013

No. 31884 8th Jud Dist Colfax CV-11-115, LA MESA RACETRACK v STATE NM (dismiss) 3/21/2013

No. 32480 WCA-0-2945, R BARRAZA v ALB HEIGHTS (affirm) 3/21/2013

http://coa.nmcourts.gov/documents/index.htm


Clerk’s CertifiCatesfrom the Clerk of the New mexiCo supreme Court


clerk’s certificate dated feBruary 27, 2013

Clerk’s CertifiCate of address and/or

telephone Changes

Georgia Garman BerrenbergPO Box 14222Albuquerque, NM [email protected]

Mark ChaikenN.M. Finance Authority207 Shelby StreetSanta Fe, NM 87501505-984-1454505-992-9635 (fax)[email protected]

Heather Cosentino ChavezOffice of the District Attorney845 North Motel Blvd., Suite DLas Cruces, NM 88007-8100575-524-6370575-524-6379 (fax)[email protected]

Robert M. Ciesielski2511 Harlem RoadCheektowaga, NY [email protected]

Lara White Davis5308 Rawlings Road NEAlbuquerque, NM [email protected]

Charles Nicholas FisherThe Law Office of Charles Fisher108 Wellesley Drive SEAlbuquerque, NM 87106-1444505-247-4099505-268-1162 (fax)[email protected]

Iris Calderon GodinaCalderon Law Firm LLC519 Granite Avenue NWAlbuquerque, NM 87102505-264-6985505-352-0710 (fax)[email protected]

Mark David GoodmanPO Box 25491Albuquerque, NM [email protected]

John Herbert Harrington3512 Henderson ReserveAtlanta, GA [email protected]

Laurie Ann HedrichHedrich Law PA3500 Comanche Road NE, Bldg. DAlbuquerque, NM 87107505-880-1115505-880-1116 (fax)[email protected]

Eric J. HeimannOffice of the U.S. Attorney District of WyomingPO Box 40022120 Capitol Avenue, Suite 4002Cheyenne, WY [email protected]

Hon. Peg A. HolguinBernalillo County Metropolitan CourtPO Box 133401 Lomas Blvd. NWAlbuquerque, NM 87103-0133505-841-8196505-222-4814 (fax)

Betsy K. Horkovich5386 N. Via SempreverdeTucson, AZ 85750

Gail K. Jensen7315 Willow AvenueTakoma Park, MD [email protected]

Christina M. KraemerP. Reid Griffith PA555 Oppenheimer Drive, Suite 105Los Alamos, NM 87544505-662-3911505-662-6459 (fax)[email protected]

Brenda M. MaloneyQuarles & Brady LLPTwo North Central AvenuePhoenix, AZ 85004602-229-5774602-420-5073 (fax)[email protected]

Suzanne N. Manning704 V StreetPort Townsend, WA 98368

Phillip Evan MarburyLastrapes, Spangler & PachecoPO Box 15698333 Rio Rancho Drive, Suite 401 (87124)Rio Rancho, NM 87174-5698505-892-3607505-892-1864 (fax)[email protected]

David L. MathewsN.M. Higher Education Department2048 Galisteo StreetSanta Fe, NM 87505-2100505-476-8402505-476-8454 (fax)[email protected]

Kevin L. NaultLaw Office of Amy Sirignano PC20 First Plaza NW, Suite 310Albuquerque, NM 87102505-242-2770505-242-2774 (fax)[email protected]

Rikki L. Quintana5716 Teakwood Trail NEAlbuquerque, NM [email protected]

Peter A. RobertsonOffice of the State EngineerPO Box 25102130 South CapitolSanta Fe, NM 87504-5102505-827-6123505-827-3520 (fax)[email protected]

Amy SirignanoLaw Office of Amy Sirignano PC20 First Plaza NW, Suite 310Albuquerque, NM 87102505-242-2770505-242-2774 (fax)[email protected]

Peter F. StaitiLaw Offices of Peter F. Staiti LLC7400 Montgomery Blvd., Suite 39Albuquerque, NM 87109505-243-9290505-715-5845 (fax)[email protected]

Hon. James S. Starzynski (ret.)1824 Lafayette Drive NEAlbuquerque, NM [email protected]

Anthony TuplerPO Box 31021Santa Fe, NM 87594-1021505-982-8373800-718-9796 (fax)[email protected]

Hon. Barbara J. VigilN.M. Supreme CourtPO Box 848237 Don Gaspar Avenue (87501)Santa Fe, NM 87504-0848505-827-4886505-827-4837 (fax)

Alan H. WangLaw Office of Alan Wang1108 S. Baldwin Avenue, Suite 221Arcadia, CA 91007626-447-8301626-447-8303 (fax)[email protected]

Theresa B. WilkesNew Mexico Center on Law and Poverty720 Vassar Drive NEAlbuquerque, NM [email protected]



























Clerk’s CertifiCates http://nmsupremecourt.nmcourts.gov.

Judith L. ZabelHedrich Law PA3500 Comanche Road NE, Bldg. DAlbuquerque, NM 87107505-880-1115505-880-1116 (fax)[email protected]

Clerk’s CertifiCate of Change

to inaCtive status

Effective January 14, 2013:Holly AgajanianMontgomery & Andrews PAPO Box 2307Santa Fe, NM 87504-2307

Effective February 6, 2013:Frank J. AlbettaPO Box 3293Chapel Hill, NC 27515-3293

Effective February 5, 2013:Robert M. AurbachUncommon Approach, Inc.PO Box 51387Albuquerque, NM 87181-1387

Effective February 1, 2013:Francine Ann Baca-Chavez733 Moores CourtBrentwood, TN 32027-2996

Effective January 30, 2013:Charles Baldonado1022 San Lorenzo DriveSanta Fe, NM 87505-5228

Effective December 17, 2012:Aaron E. BartelsPO Box 4621Santa Fe, NM 87502-4621

Effective January 31, 2013:Justin A. Behar1750 George Bell CircleAnchorage, AK 99515-3956

Effective January 25, 2013:Teresa CainMills & Williams LLP5910 N. Central Expressway, Suite 980Dallas, TX 75206-5181

Effective January 23, 2013:Paul R. Caldwell750 N. 8th Street, Apt. 309Milwaukee, WI 53233-2426

Effective December 21, 2012:Matthew Ernest Clifton2564 Camino San PatricioSanta Fe, NM 87505-5819

Effective January 31, 2013:Stephen Conn625 N. Reymond StreetLas Cruces, NM 88005-2137

Effective December 25, 2012:Amber Leigh Creel3737 Nobel Drive, Unit 2115San Diego, CA 92122-4577

Effective February 1, 2013:Patricia M. Donahue7 Avenida Vista Grande, Suite B7, PMB #432Santa Fe, NM 87508-9207

Effective January 31, 2013:Carolyn Michelle DrouinPO Box 21354Washington, DC 20009-0854

Effective February 1, 2013:Christina R. EvolaLaw Office of John Nowakowski302 Washington Street, Suite 417San Diego, CA 92103-2110

Effective January 30, 2013:Allen R. Ferguson, Jr.PO Box 1589El Prado, NM 87529-1589

Effective January 28, 2013:Corrie Lynn Gerdts-Darr2001 Caballo TrailBrownwood, TX 76801-1197

Effective January 7, 2013:Timothy E. GlasgowDavis Graham & Stubbs LLP1550 17th Street, Suite 500Denver, CO 80202-1500

Effective February 1, 2013:C. Lee Gomes2232 Calle AlvaradoSanta Fe, NM 87505-4941

Effective December 31, 2012:Hon. Victoria J. Grant (ret.)2321 Ada Place NEAlbuquerque, NM 87106-2501

Effective February 1, 2013:Lisa Curry GrayLisa Curry Gray Law Offices LLCPO Box 684806Austin, TX 78768-4806

Effective January 30, 2013:Marcia L. Green1580 Geary Road, Apt. 151Walnut Creek, CA 94597-2741

Effective January 24, 2013:Rosemary L. HarrisComputer Sciences Corporation42825 Pamplin TerraceSouth Riding, VA 20152-6745

Effective January 31, 2013:Robert Y. Hirasuna15 Tano NorteSanta Fe, NM 87506-7514

Effective January 21, 2013:Frederick B. HowdenPO Box 762Grants, NM 87020-0762

Effective January 22, 2013:Hon. Gary M. Jeffreys (ret.)PO Box 1607Deming, NM 88031-1607

Effective January 28, 2013:Bradford C. Jones1620 Platte Street, Apt. B217Denver, CO 80202-6154

Effective January 30, 2013:Kathleen A. Keene9980 Radcliffe Road NWAlbuquerque, NM 87114-4411

Effective December 13, 2012:Shauna R. KeyKey Law Firm PCPO Box 1340Hawkins, TX 75765-1340

Effective January 27, 2013:John KreigerLehman Lee & Xu 10-2 Liangmaqiao Diplomatic Compound6714 Grove Creek DriveSan Antonio, TX 78256-2363

Effective January 28, 2013:John R. Lansdowne3401 La Sala del Oeste NEAlbuquerque, NM 87111-4531

Effective February 11, 2013:Le Ette R. Lawrence2106 Boxwood StreetPortales, NM 88130-9318

Effective January 25, 2013:Steven James LeibelPO Box 2056Bismarck, ND 58502-2056

Effective January 23, 2013:Victoria Jane LyonsPO Box 30608Seattle, Wa 98113-0608

Effective January 20, 2013:Summer McKean525 Guadalupe Court NWAlbuquerque, NM 87114-2309

Effective January 23, 2013:Jacqueline Leigh Miller4 Jenny LaneRoswell, NM 88201-8342

Effective December 26, 2012:Deborah A. Moll1800 San Felipe CircleSanta Fe, NM 87505-3342

Effective January 23, 2013:William J. Moon2800 Plaza AmarillaSanta Fe, NM 87507-6504

Effective January 31, 2013:Shelley B. MundUSDA Forest Service MS2113900 Masthead Street NEAlbuquerque, NM 87109-4485

Effective February 1, 2013:Janice Lynn Perry MontoyaBriarhurst Manor404 Manitou AvenueManitou Springs, CO 80829-2303




Clerk’s CertifiCates http://nmsupremecourt.nmcourts.gov.

Effective December 28, 2012:Michael B. NeillPO Box 204443Austin, TX 78720-4443

Effective January 30, 2013:Meagan Norris6 London CourtRoswell, NM 88201-0410

Effective January 26, 2013:Linda L. Peters3301-R Coors Blvd. NWAlbuquerque, NM 87120-1268

Effective January 30, 2013:Christopher Pinko1220 Rosecrans Street, PMB 802San Diego, CA 92106-2674

Effective January, 31, 2013Overzenia OjuriFt. Bend County Mental Health Public Defender301 Jackson StreetRichmond, TX 77469-3108

Effective January 14, 2013:Michael L. ParkerLaw Office of Robert E. McCool PLLC237 Market StreetBaird, TX 79504-6407

Effective January 29, 2013:Timothy L. SalazarPO Box 13426Torrance, CA 90503-0426

Effective January 30, 2013:Karen L. Schauer1600 Gabaldon Drive NWAlbuquerque, NM 87104-2761

Effective January 12, 2013:J. Philip Smith1993 Courtland Pl.Memphis, TN 38104-4139

Effective January 31, 2013:Sarah Paige Ainsworth SnookFizer Beck Webster Bentley & Scroggins1330 Post Oak Blvd., Suite 2900Houston, TX 77056-3161

Effective January 27, 2013:Patricia McE. Stelzner3521 Campbell Court NWAlbuquerque, NM 87104-3201

Effective January 7, 2013:James R. Stevenson3333 Santa Clara Avenue SEAlbuquerque, NM 87106-1530

Clerk’s CertifiCate of reinstatement to aCtive status

As of March 9, 2013:Samuel Z. Damon111 Sendero Blvd.Cedar Creek, TX 78612

As of March 9, 2013:Larry Gomez38 Clarence’s RoadLos Lunas, NM 87031

As of March 9, 2013:Jason Milan Mundy3375 Hillcrest AvenueMacon, GA 31204

Effective January 28, 2013:Ishmael TarikhTarikh Consulting ServicesPO Box 2145Alameda, CA 94501-0212

Effective January 30, 2013:Corliss G. Thalley2716 Herradura Road, Unit BSanta Fe, NM 87505-6804

Effective January 30, 2013:Dustin G. Thomas2709 Barrington DrivePlano, TX 75093-6185

Effective February 1, 2013:Winter Leigha Torres4030 Wyandot StreetDenver, CO 80211-2141

Effective January 28, 2013:Laura L. WatchempinoPO Box 407Pueblo of Acoma, NM 87034-0407

Effective January 26, 2013:Theresa Welch WhatleyPO Box 884Placitas, NM 87043-0884




recent rule-Making activityas updated By the clerk of the neW Mexico supreMe court

effeCtive april 3, 2013

pending proposed rule changes open for coMMent:

Comment Deadline10-352 Judgments and appeals from adjudications and terminations of parental rights 04/17/13

Abuse and Neglect Forms10-501 Abuse & neglect petition 04/17/1310-502 Summons 04/17/1310-503 Motion for ex parte order 04/17/1310-504 Affidavit for ex parte order 04/17/1310-505A Ex parte custody order (child in state custody) 04/17/1310-505B Ex parte custody order (child not in state custody) 04/17/1310-510 Affidavit of indigency 04/17/1310-511 Motion to appoint counsel for parties 04/17/1310-512 Order appointing counsel for parties 04/17/1310-513 Motion for service by publication 04/17/1310-514 Order for service by publication 04/17/1310-515 Notice of pendency of action by publication 04/17/1310-520 Custody order 04/17/1310-521 ICWA notice 04/17/1310-522A Adjudicatory judgment and dispositional order (Uncontested/Non-ICWA) 04/17/1310-522B Adjudicatory judgment and dispositional order (Contested/Non-ICWA) 04/17/1310-522C Adjudicatory judgment and dispositional order (Uncontested/ICWA) 04/17/1310-522D Adjudicatory judgment and dispositional order (Contested/ICWA) 04/17/1310-530 Initial judicial review order 04/17/1310-531 Initial permanency order 04/17/1310-532 Permanency review order 04/17/1310-533 Periodic judicial review/Permanency order/ Extension of custody order 04/17/1310-540 Motion to terminate parental rights 04/17/1310-550 Motion to withdraw as counsel 04/17/1310-551 Order permitting withdrawal of counsel 04/17/1310-552 Request to withdraw as counsel and order approving substitution of counsel 04/17/1310-553 Notice of substitution of counsel 04/17/1310-554 Notice of appearance as counsel for child by guardian ad litem 04/17/1310-555 Motion to appoint attorney for fourteen- (14) year-old child 04/17/1310-560 Subpoena 04/17/1310-561 Notice of hearing 04/17/1310-562 Motion to intervene 04/17/1310-563 Report of mediation 04/17/1310-564 Order appointing/changing educational decision maker 04/17/13

ABA Ethics 20/20: Technology and Confidentiality;Detection of Conflicts of Interest16-100 Terminology 04/17/1316-101 Competence 04/17/1316-104 Communication 04/17/1316-106 Confidentiality of information 04/17/1316-117 Sale of law practice 04/17/1316-404 Respect for rights of third persons 04/17/13

Rules Concerning the Unauthorized Practice of Law17B-001 Jurisdiction 04/17/1317B-002 Appointment of the Disciplinary Board 04/17/1317B-003 Disciplinary counsel; duties and powers 04/17/1317B-004 Investigation 04/17/1317B-005 Civil injunction proceedings 04/17/1317B-006 Determination by the Supreme Court 04/17/1317B-007 Civil contempt proceedings 04/17/1317B-008 Immunities 04/17/1317B-009 General provisions 04/17/13

Pro Se and Non-Attorney Appearances in Civil Cases2-107 Pro se and attorney appearance 04/17/133-107 Pro se and attorney appearance 04/17/13

Non-Attorney Prosecutions in Criminal Cases6-108 Non-attorney prosecutions 04/17/137-108 Non-attorney prosecutions 04/17/138-111 Non-attorney prosecutions 04/17/13

Orders on Motions to Seal or Unseal Court Records4-118 Order on motion to seal court records 04/17/134-119 Order on motion to unseal court records 04/17/139-113 Order on motion to seal court records 04/17/139-114 Order on motion to unseal court records 04/17/13

Pro Se and Attorney Appearances in Criminal Cases Rules6-107 Entry of appearance 04/17/137-107 Entry of appearance 04/17/138-107 Entry of appearance 04/17/13

Withdrawal of Form 9-306 NMRA9-306 Withdrawal - Commitment for preliminary hearing 04/17/13

Judge Excusal and Recusal3-105 Assignment and designation of judges 04/17/133-106 Excusal; recusal; disability 04/17/13

Probable Cause in Criminal Complaint7-201 Commencement of action 04/17/13


Rule-Making activity http://nmsupremecourt.nmcourts.gov.

Civil Forms to Implement and Uniform Owner-Resident Relations Act4-913 Writ of restitution (Restitution to Owner) 04/17/13 (Uniform owner-Resident Relations Act)4-913A Order setting escrow deposit/appeal bond (Uniform Owner-Resident Relations Act) 04/17/13

Preliminary Hearing Rule and Forms6-202 Preliminary hearing 04/17/139-206 Notice of preliminary hearing 04/17/139-206A Order on preliminary hearing 04/17/139-206B Order for extension of time for preliminary hearing 04/17/13

Bench Warrants for Failure to Pay Fines and Fees6-207 Bench warrants 04/17/138-206 Bench warrants 04/17/13

Voluntary Dismissal by the Prosecution and Refiled Proceedings6-506A Voluntary dismissal and refiled proceedings 04/17/138-506A Voluntary dismissal and refiled proceedings 04/17/13

Court Interpreters in Municipal Court8-113 Court interpreters in Municipal Court 04/17/13

Motions to Suppress Evidence6-304 Motions 04/17/138-304 Motions 04/17/13

Sealing of Records in Appeals from Administrative Proceedings1-079 Public inspection and sealing of court records 04/17/13

Pain and Suffering; Loss of Enjoyment of Life13-1807 Pain and suffering 04/17/1313-1807A Pain and suffering; loss of enjoyment of life 04/17/13

Second Degree Criminal Sexual Penetration14-956 Criminal sexual penetration in the second degree; force or coercion; essential elements 04/17/1314-956A Criminal sexual penetration in the second degree; for or coercion; child 13 to 18; essential elements 04/17/13

Indecent Exposure14-970 Indecent exposure; essential elements 04/17/1314-970A Aggravated indecent exposure; essential elements 04/17/13

Tampering with Evidence14-2241 Tampering with evidence 04/17/1314-6019 Special verdict; tampering with evidence 04/17/13

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.



http://www.nmcompcomm.us

Disciplinary

Board of t

he New M

exico Supreme Court

Attorn

ey Newsle

tter

Spring 2013

2 Disciplinary Board of the New Mexico Supreme Court

THE BOARD

Steven L. Gonzales, Chair

Stephen S. Shanor, Member

Margaret A. Graham, Secretary

Pilar Vaile, Member

Curtis R. Gurley, Member

Julie J. Vargas, Member and State Bar Liaison

Cheryl H. Johnston, Member

Thomas P. Alesi, Non-lawyer member

George C. Kraehe, Member

Edward L. Rose, M.D., Non-lawyer member

Thomas L. Popejoy, Member

The Hon. Edward L. Chávez, New Mexico Supreme Court Liaison

THE STAFF

William D. Slease, Chief Disciplinary Counsel

Virginia L. Ferrara, Assistant Disciplinary Counsel

Jane Gagne, Assistant Disciplinary Counsel

Christine E. Long, Assistant Disciplinary Counsel

Anne L. Taylor, Assistant Disciplinary Counsel

Joel L. Widman, Assistant Disciplinary Counsel

Erlinda D. Branchal, Administrative Assistant

Andrea N. Henckel, Administrative Assistant

Tamma Williams, Administrative Assistant

This newsletter is intended to inform and educate members of the State Bar of New Mexico regarding activities and initiatives of the Disciplinary Board of the New Mexico Supreme Court. The “Disciplinary Notes” are intended solely for information and education purposes and do not represent advisory opinions by the Board, nor are they intended to serve as binding precedent for any particular matter coming before the Board.

A Word from Chief Disciplinary CounselI am now into my third year as chief disciplinary counsel, and I want to take a moment to thank two groups who are instrumental to the success of the Disciplinary Board. First, I want to thank the many volunteers who assist in the disciplinary system. This includes Board members, hearing committee members, reviewing officers, inventorying attorneys and special assistant bar counsel. These individuals give numerous hours to our profession each year, without compensation, simply for the good of the public and the profession. Without them, our disciplinary system simply could not function.

Second, I want to thank the hard-working employees at the Office of Disciplinary Counsel. I am fortunate to work each day with a group of individuals who are dedicated to the protection of the public that lawyers and their staff are privileged to represent, and who insist that all the members of the profession aspire to the highest level of professional and ethical conduct. We must not forget that the work these people do is critical and fundamentally necessary for a self-governing profession. I am proud to work with them.

Notwithstanding the fact that the New Mexico Supreme Court has stated in unmistakable terms that non-refundable, unearned fees are not permissible, many lawyers continue to employ fee agreements that provide for and allow non-refundable retainers and/or contain provisions that allow for flat fees that are considered earned when paid and treated as such by the lawyer. If such provisions are actually enforced or used by the lawyer to collect a non-refundable fee or avoid placing unearned fees in trust, such a practice is a clear violation of Rules 16-105 (fees) and 16-115 (safekeeping client property).

Specifically, in Matter of Dawson, 2000-NMSC-024 and again in Matter of Yalkut, 2008-NMSC-009, the New Mexico Supreme Court held that the Rules of Professional Conduct do not permit lawyers to charge their clients a non-refundable unearned fee. Fees for future services, including so-called “flat fees,” cannot be considered earned when paid. Further, the unearned portion of fees paid in advance by a client remains the client’s property and, therefore, must be deposited into the lawyer’s trust account until earned. In order for the client and the lawyer to know what portion of the fee has been earned and can be withdrawn from trust, a lawyer must inform the client the basis upon which the lawyer will compute fees earned; e.g., hourly, on some other “benchmark” basis, or in some other manner consistent with the provisions of Rule 16-105. The unearned portion of the fee, if any, must be refunded upon termination of the representation. Finally, fee agreements should not include language that indicates that fees are non-refundable or earned when paid. Of course, it should go without saying that any fee is unreasonable if no services are rendered and, in such a case, the entirety of the fee must be refunded to the client. Likewise, clients are entitled to an accounting of how the lawyer’s fees were earned and a lawyer should promptly provide such an accounting when requested by the client.

_______________________________________Endnotes 1 This Disciplinary Note was written by Joel L. Widman, assistant disciplinary counsel, a position he has held since 2003. Before practicing in the area of legal ethics, Widman worked for the New Mexico Workers’ Compensation Administration and prior to that was in private practice in Chicago, Illinois.

Disciplinary Note Prohibition Against Non-Refundable Fees1

Disciplinary Board of the New Mexico Supreme Court 3

Disciplinary NoteSuccession Planning1

Lawyers face many challenges every day: client demands, constant deadline pressure, the stress of operating a business and practicing law. Most find it rewarding; most also plan on retiring some day. And most, like every other person, are at risk for an unplanned event—an injury, illness, incapacitation, disability or death—which makes it temporarily or permanently impossible to continue to practice law. An interruption or cessation of practice, voluntary or otherwise, carries with it a substantial risk that clients will be abandoned by their lawyer in the middle of the clients’ matters. Of course, the duties that a lawyer owes to his or her client under the Rules of Professional Conduct, including duties of competence, diligence, communication and the safekeeping of confidences and property, mandate that a lawyer not abandon a client and the client’s legal needs. Thus, the need for every lawyer to take affirmative steps to plan for an interruption or cessation of practice, voluntary or otherwise, cannot be overstated, particularly for those practicing in a solo practice setting. By doing so, you can protect your clients, your family, your staff and your reputation in times of uncertainty and, hopefully, avoid personal and financial strife as well as unnecessary disciplinary complaints.There are many things to think about when planning for a cessation of practice, certainly more than can be adequately covered in this brief note. Some of the issues include, but are not limited to:

•WhowillcloseoroperatemypracticeifIamawayforanextendedperiod of time or never return?

•Willthatpersontakeovertherepresentationofclientsorsimplyinventory my files and funds and distribute them to the clients and substitute counsel?

•Do I have an updated client list and an updated list of closedmatters and can they be easily located?

•Doesthepersonwhowillstepintocloseoroperatemypractice,or some other responsible party:

•knowwheremyfilesarelocated,physicallyandoncomputers,and can they access the files? Does anyone know my computer password?

•knowwheremy calendars are located so that all deadlinescan be tracked and either met or conveyed to clients and any substitute counsel?

•haveaccesstomytimeandbillingrecordsandknowhowtogenerate bills and collect fees that may be due to me or my estate?

•haveaccesstomyunpaidinvoicesandinstructionsonhowtomake payments that may be outstanding?

•knowwheremybankaccounts,operatingandtrust,areheld,and where the trust ledgers, reconciliations, and other bank operating account and trust account records are located?

•Do I need to execute a limited springing power of attorney orsome other legal document to allow someone to sign on my bank accounts and will my banker accept such a power of attorney?

•What sortofotherwrittenagreements should I enter intowiththe person or persons whom I would like to close or operate my practice?

•Howwillclients,courtsandopposingcounselbenotifiedofmycessation of practice?

This list is not intended to be exhaustive. The point is to begin thinking about and planning now while you have time and the ability to carefully consider the issues and craft a plan for succession.

Many good resources are available to help with succession planning. Many malpractice carriers are starting to insist that a lawyer provide information to the carrier about the lawyer’s succession planning. Counsel for these carriers may be able to help you design a plan that works for your situation. Although written to assist a person who is closing a lawyer’s practice after the lawyer has left practice, the State Bar Senior Lawyers Division has published an informative guide, Closing a Law Office: New Mexico Guide for a Third Party Closer (http://www.wsba.org/Resources-and-Services/Ethics/Succession-Planning). This guide details the types of issues a person closing a law office will face and can, therefore, be used by a lawyer to plan in advance how to assist that closer with the tasks he or she will face. In addition, the Washington State Bar has published a very helpful guide, Planning Ahead Handbook (http://www.wsba.org/Resources-and-Services/Ethics/Succession-Planning). This guide specifically addresses the issues a lawyer should consider in succession planning and includes helpful forms, which will need to be modified to ensure compliance with New Mexico laws and each lawyer’s individual circumstances. A number of other articles and forms are available online that lawyers can use as a resource in succession planning; just search for “lawyer succession planning.” ___________________________________________Endnotes 1 This Disciplinary Note was written by William D. Slease, chief disciplinary counsel, a position he has held since December 2010. Prior to that time, Slease was in private practice with an emphasis in civil rights, tort and employment litigation.

Disciplinary Quarterly ReportReporting Period: Oct. 1, 2012–Dec. 31, 2012Report By Disciplinary Counsel

Final DecisionsFinal Decisions of the NM Supreme Court ............................................... 7

Matter of Henry J. Baca, Esq. (Disciplinary No. 12-2011-638) New Mexico Supreme Court entered an order indefinitely suspending Respondent from the practice of law for a period of no less than five

years. Respondent was further ordered to comply with the Rules of Professional Conduct and Rules Governing Discipline, complete MCLE, and pay costs to the disciplinary board.

Matter of Anthony James Ayala, Esq. (Disciplinary No. 04-2011-614) New Mexico Supreme Court entered an order suspending Respondent

http://www.wsba.org/Resources-and-Services/Ethics/Succession-Planning




4 Disciplinary Board of the New Mexico Supreme Court

from the practice of law for two years, but deferred the suspension and placed Respondent on supervised probation for two years. Respondent was ordered to pay costs associated with his supervised probation, complete an addition 20 hours of MCLE, and pay costs to the disciplinary board.

Matter of Patricia S. Ortiz, Esq. (Disciplinary No. 06-2011-623) New Mexico Supreme Court entered an order suspending Respondent from the practice of law for six months, effective 90 days from the date of the order. Respondent was allowed to apply to Court to rescind her suspension within 90 days from the date of the order upon the completion of certain conditions. Respondent was further ordered to serve a two-year period of supervised probation, complete six additional hours of MCLE, and pay costs to the disciplinary board.

Matter of Maria E. Owen, Esq. (Disciplinary No. 11-2011-635) New Mexico Supreme Court entered an order suspending Respondent from the practice of law for 18 months, which was deferred upon certain terms and conditions. Respondent was ordered to supervised probation, to pay all costs for the supervising attorney, to pay restitution to the complainants, and to pay all costs to the disciplinary board. Respondent was also ordered to take and pass the Multistate Professional Responsibility Exam (MPRE) with a minimum scaled score of 80. Additionally, Respondent shall receive a public censure.

Matter of Alain Jackson, Esq. (Disciplinary No. 11-2011-436) New Mexico Supreme Court entered an order suspending Respondent from the practice of law for 18 months, which was deferred upon certain terms and conditions. Respondent was ordered to supervised probation, to pay all costs for the supervising attorney, to pay restitution to the complainants, and to pay all costs to the disciplinary board. Respondent was also ordered to take and pass the Multistate Professional Responsibility Exam (MPRE) with a minimum scaled score of 80. Additionally, Respondent shall receive a public censure.

Matter of Jay Lynn Francis, Esq. (Disciplinary No. 06-2011-620) New Mexico Supreme Court entered an Order Reinstating Respondent to non-probationary active status.

Matter of Dennis W. Montoya (Disciplinary No. 04-2012-650) New Mexico Supreme Court entered an Order denying Respondent’s Petition for Reinstatement.

Summary SuspensionsTotal number of attorneys summarily suspended ...................................................................................0

Disability SuspensionsTotal number of attorneys placed on disability suspension ......................................................................................0

Charges FiledCharges were filed against an attorney for allegations of failure to provide competent representation, making allegations in a pleading that have no basis in fact, making false statement of fact to a tribunal, engaging in conduct involving misrepresentation, and engaging in conduct prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of failure to provide competent representation to a client; failure to abide by the client’s decisions concerning the objectives of representation; failure to represent the client diligently; charging unreasonable fees; failure to deposit his client’s funds in a client trust account prior to earning fees; making a false statement of material fact to a tribunal; making false statements of material fact to a third person; failure to refund

his client’s advance payment of a fee that was not earned; failure to provide full cooperation and assistance to the Disciplinary Board and disciplinary counsel in discharging the lawyer’s respective functions and duties with respect to discipline and disciplinary procedures; and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Charges were filed against an attorney for allegations of failure to hold property of a client or third person separate from lawyer’s own property; failure to hold in trust fees or expenses paid to the lawyer in advance; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct that is prejudicial to the administration of justice.

Petitions for Reciprocal Discipline FiledPetitions for reciprocal discipline filed ....................................................0

Petitions for Reinstatement FiledPetitions for reinstatement filed ................................................................0

Formal ReprimandsTotal number of attorneys formally reprimanded ...............................0

Informal AdmonitionsTotal number of attorneys admonished .................................................2

An attorney was informally admonished for the unauthorized practice of law in violation of Rule 16-505(D)(2) of the Rules of Professional Conduct.

An attorney was informally admonished for failing to provide competent representation to a client, failing to act with reasonable diligence and promptness in representing a client, failing to keep the client reasonably informed about the status of the matter, failing to return client’s funds properly, declining representation or the failure to terminate representation in violation of Rules 16-101, 16-103, 16-104, 16-115, and 16-116 of the Rules of Professional Conduct.

Letters of CautionTotal number of attorneys cautioned ................................................... 18

Attorneys were cautioned for the following conduct: (1) general neglect (five letters of caution issued); (2) trust account issues (six letters of caution issued); (3) general incompetence; (4) contempt of tribunal; (5) failing to supervise assistant; (6) unauthorized practice of law; (7) harassment; and (8) overreaching excessive fees (two letters of caution issued).

Complaints Received

Allegations .............................................................. No. of ComplaintsTrust Account Violations ......................................................................11Conflict of Interest ....................................................................................3Neglect and/or Incompetence ..........................................................75Misrepresentation or Fraud ..................................................................8Relationship with Client or Court .....................................................14Fees............................................................................... ...............................14Improper Communications ..................................................................2Criminal Activity........................................................................................1Personal Behavior .....................................................................................8Other ...........................................................................................................26Total number of complaints received ............................. 162


AdvAnce OpiniOns http://www.nmcompcomm.us/

FrOm the new mexicO supreme cOurt And cOurt OF AppeAls

Certiorari Denied, January 17, 2013, No. 33,936Certiorari Denied, January 22, 2013, No. 33,953


Opinion Number: 2013-NMCA-028

Topic Index:Appeal and Error: Harmless Error; Remand; and Standard of Review

Constitutional Law: Double JeopardyCriminal Law: Aggravating or Mitigating Circumstances; Battery;

Domestic Violence; Kidnapping; False Imprisonment; Unitary Conduct; and Witness Intimidation

Criminal Procedure: Double Jeopardy; Effective Assistance of Counsel; and Lesser Included OffenseStatutes: Legislative Intent

Torts: Immunity; and Tort Claims Act

STATE OF NEW MEXICO, Plaintiff-Appellee,

versusJORGE LUIS SOTELO,

Defendant-Appellant.No. 31,061 (filed November 8, 2012)

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTYJ. RICHARD BROWN, District Judge

opinion

Michael d. BustaMante, Judge

{1} Appellant’s motion for rehearing is granted. The opinion filed in this case on October 24, 2012, is withdrawn and this Opinion is substituted in its place. {2} Defendant appeals his convictions for kidnapping, battery on a household member, and intimidation of a witness on grounds that (1) the district court erred in denying an instruction on the lesser-included offense of false imprisonment, (2) convictions for kidnapping and battery violate the prohibi-tion against double jeopardy, (3) the conduct

GARY K. KINGAttorney General

MARGARET E. MCLEANAssistant Attorney General

JOEL JACOBSENAssistant Attorney General

Santa Fe, New Mexicofor Appellee

JACQUELINE L. COOPERChief Public Defender

KIMBERLY CHAVEZ COOKAssistant Appellate Defender

Santa Fe, New Mexicofor Appellant

constituting kidnapping was incidental to the battery, and (4) his counsel was ineffec-tive because he failed to object to improper character evidence at trial and to seek mitiga-tion of Defendant’s sentence. Defendant also argues that the district court did not consider mitigating evidence and, therefore, the case should be remanded for resentencing. {3} We conclude that there is no reasonable view of the evidence such that false impris-onment was the greatest offense committed and, thus, the district court did not err in refusing the request for a lesser-included of-fense instruction. We determine also that the conduct underlying the kidnapping and bat-tery charges was neither factually unitary nor

unitary as a matter of law. Therefore, there was no violation of the prohibition against double jeopardy. Furthermore, the restraint and/or movement involved in this case was not incidental to the battery, and Defendant failed to establish a prima facie case of inef-fective assistance based on failure to object to improper character evidence because, even if there were error, there is no evidence that Defendant was prejudiced by the error. We affirm Defendant’s convictions. We remand for resentencing after consideration of miti-gating circumstances. BACKGROUND{4} Defendant and Victim lived together at the time of the incident giving rise to the charges in this case. They have one child. Victim has two other children, one of whom was fifteen years old on July 13, 2009, the date of the incident. Victim testified that Victim and Defendant were at Victim’s par-ents’ house on July 12 but left together late in the evening in Victim’s car, with Victim driving because Defendant did not have a driver’s license. They stopped to get gas, and Defendant got into the vehicle in the driver’s seat. Defendant said he would drive the rest of the way to their home half a mile away. Instead, Defendant drove in the opposite direction. Victim asked where they were go-ing, and Defendant responded that he was taking a drive. Defendant continued driving down the Hobbs Highway away from town and, after turning off the highway, drove ten to fifteen minutes to a deserted area. On the way, he told Victim that he wanted to take her to a place with “no cops [and] no phones.” Defendant pulled Victim out of the vehicle and started pulling her hair, kicking her, and throwing her into bushes. Victim testified that during this time, Defendant told her he was going to kill her or leave her there to die, and repeatedly stated that he “did not want to go back to jail.” She stated that when she refused to swear that she would not call the police, he continued beating her. Defendant held Victim’s arm while driving to another location on Derrick Road, where he beat her some more. When Victim attempted to run away, Defendant chased her, put her back in the car, and drove to a third location on Hidalgo Road. Victim testified that Defen-dant beat her again and forced her to have intercourse with him. After driving around for an hour or two, Defendant drove to their home in the early morning of July 13. Victim’s daughter opened the door and told Victim to call the police. Defendant went

http://www.nmcompcomm.us/


to the bedroom. Victim then went to the sheriff’s department to report the incident. {5} At trial, Defendant moved for a jury instruction on false imprisonment on the ground that false imprisonment was a lesser-included charge of kidnapping. The judge denied this motion. Defendant was convicted of kidnapping, battery on a household mem-ber, and intimidation of a witness. He was acquitted of criminal sexual penetration. At the sentencing hearing, Defendant requested a continuation to prepare a motion for miti-gation of the kidnapping sentence, which was granted. A second hearing on November 8, 2010, was also continued. Defendant was sentenced on November 29, 2010. A motion for mitigation was not filed. {6} Defendant was sentenced to a total of twenty-one years: eighteen years for kidnap-ping, three years for intimidation of a witness, and 364 days for battery against a household member. The sentences for the latter charges were ordered to run concurrent to each other and consecutive to the kidnapping sentence.DISCUSSION{7} We address Defendant’s arguments in the order presented. A. Defendant Was Not Entitled

to a Jury Instruction on a Lesser-Included Offense

{8} “The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. On appeal, the evidence is viewed “in the light most favorable to the giving of the requested instruction.” State v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139. {9} There are two prerequisites for a lesser-included offense instruction. First, the district court should “grant the request when the statutory elements of the lesser crime are a subset of the statutory elements of the charged crime.” State v. Meadors, 121 N.M. 38, 44, 908 P.2d 731, 737 (1995). Second,

the trial court should grant . . . an instruction [on a lesser-included charge] if (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense . . . ; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.

Id. Although the Meadors test applied to a prosecution request for an instruction on a

lesser-included charge and focused on pro-tection of the defendant’s due process rights, this Court applied it to a defendant’s request for such an instruction in Darkis. See State v. Darkis, 2000-NMCA-085, ¶ 14, 129 N.M. 547, 10 P.3d 871. When it is the defendant requesting a lesser-included offense instruc-tion, “the appropriate focus is . . . on the facts the [s]tate had arrayed and the theory of its case.” Id. ¶ 15. This analysis entitles a defendant to a lesser-included offense instruction when the evidence supports the lesser-included offense. Id. ¶ 17. {10} In reviewing on appeal whether a rea-sonable jury could find that the lesser-includ-ed offense is the highest offense committed, “[w]e will not ‘fragment the testimony . . . to such a degree as to distort it’ in order to construct a view of the evidence which would support the giving of the instruction.” State v. Gaitan, 2002-NMSC-007, ¶ 24, 131 N.M. 758, 42 P.3d 1207 (second alteration in original) (citation omitted). In State v. Wilson, the Court held that a lesser-included offense instruction was properly denied where the defendant sought to show that the jury could have believed portions of testimony by both the victim and defendant and rejected other portions. 117 N.M. 11, 15, 868 P.2d 656, 660 (Ct. App. 1993). It held that “there must be some evidence other than that obtained by taking portions of the victim’s and portions of the defendant’s testimony to support the lesser-included offense instruction. . . . When there is other evidence [to support the lesser-included offense instruction], then the risk of impermissible distortion [of the testimony] is eliminated.” Id.{11} Defendant argues that “[t]he jury was free to reject [Victim’s] . . . testimony that [Defendant] expressed a kidnapping intent . . . , especially in light of the significant impeachment of her credibility which re-sulted in acquittal for the [criminal sexual penetration] charge” and, therefore, there was “some view of the evidence that [false imprisonment] was the most serious offense committed.” The State responds, in essence, that no reasonable juror could find that false imprisonment was the highest offense com-mitted because to do so would “requir[e] an impermissible fragmentation of the evidence, picking and choosing among elements of a single witness’s testimony.” {12} It is clear that the first Meadors prereq-uisite is met because false imprisonment is a subset of kidnapping. False imprisonment is “intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.” NMSA 1978, § 30-4-3 (1963). Kidnapping requires “the unlawful taking, restraining, transporting or confining of a

person, by force, intimidation or deception, with intent . . . to inflict death, physical injury[,] or a sexual offense on the victim.” NMSA 1978, § 30-4-1(A)(4) (2003). The difference between these two statutes is found in kidnapping’s intent requirements. See State v. Clark, 80 N.M. 340, 343, 455 P.2d 844, 847 (1969) (“Merely to confine or restrain against a person’s will without the requisite intention is not kidnapping. This is false im-prisonment . . . when done with knowledge of an absence of authority.” (citations omitted)).{13} The second Meadors prerequisite has three components. Two are satisfied read-ily: Defendant could not have committed kidnapping without committing false im-prisonment since false imprisonment is a subset of kidnapping, and there is sufficient evidence to support a conviction for false imprisonment found in Victim’s testimony that Defendant restrained her in the vehicle. It is the last component—whether “a jury rationally could acquit on the greater offense and convict on the lesser”—that is contested by the parties and on which the bulk of our analysis rests. 121 N.M. at 44, 908 P.2d at 737.{14} This part of the Meadors test requires that (1) “the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that [(2)] a jury rationally could acquit on the greater offense and convict on the lesser.” Id. Defendant argues that the jury could have found that he did not intend to cause Victim harm. He points to Victim’s testimony that Defendant “did not become angry or violent until after they had arrived in a secluded location” as an indication that Defendant “lacked the intent to injure [Victim] at the time he drove out there.” He argues that the fact he intentionally battered Victim does not prove that he transported her to the deserted area with the intent to do so because “false imprisonment can involve a resulting injury without constitut-ing kidnapping.” The State counters that Victim’s testimony that Defendant told her that he wanted to bring her to a place with “no cops [and] no phones” shows that “the only rational conclusion is that he took her there [to beat her].” These arguments focus on whether Defendant intended to batter Victim during the period starting at the gas station and ending when Defendant began beating Victim at the Hobbs Highway loca-tion. Essentially, the parties disagree as to when Defendant formed the intent to cause Victim physical injury. Victim’s testimony, the only evidence presented on what hap-pened during the drive, permits a legitimate dispute on this issue, thus satisfying the first component of this test. {15} We are not limited to analysis of the


dispute over this period, however, because this is not the only period relevant to the kid-napping charge. Even if the jury concluded that Defendant did not intend to harm Victim during the initial transport from the gas station to the Hobbs Highway location, there was restraint and movement to satisfy the requirements of kidnapping because, after beating Victim there, Defendant drove to two other locations where he continued to beat her. Victim testified as to the battery, and both the police officer to whom she reported the incident and her daughter testified as to the resultant bruising. The jury viewed photos of the bruising at trial. Based on this evidence, the jury convicted Defendant of battery against a household member. For the jury to believe that Defendant did not intend to batter Victim when he drove her from Hobbs Highway to Derrick Road and from there to Hidalgo Road would require substantial fragmentation of the evidence. In essence, such an interpretation would require the jury to believe that Defendant committed the battery but did not intend to do so while driving from place to place. This is not “a reasonable view of the evidence [that] could lead a fact[]finder to conclude that the lesser offense is the highest degree of crime commit-ted.” State v. Neatherlin, 2007-NMCA-035, ¶ 22, 141 N.M. 328, 154 P.3d 703. Thus, the second component of this test fails. {16} Although we agree with Defendant that it is the intent to cause injury, not the injury itself, that distinguishes kidnapping from false imprisonment, evidence of injury may be used by the jury as circumstantial evidence of intent. See State v. Allen, 2000-NMSC-002, ¶ 65, 128 N.M. 482, 994 P.2d 728 (“[W]e [allow] a jury to ‘infer, from evidence of acts committed at some later point during the commission of a kidnapping, that the necessary criminal intent existed at the time the victim first was restrained.’ ” (citation omitted)). If the incident had ended with Defendant driving Victim home after beating her at the Hobbs Highway location, there may have been a reasonable interpretation of the evidence that the battery was a spontane-ous act not preceded by kidnapping. But that is not what happened. Instead, the transpor-tation of Victim from Hobbs Highway to Derrick Road was preceded by an intentional battery and followed by an intentional bat-tery. So was the transport from Derrick Road to Hidalgo Road. Defendant presented no evidence that such transport either did not occur or that he had another purpose for driving from place to place. The only ratio-nal view of the evidence is that Defendant intended to injure Victim as they traveled between these locations. The district court did not err in denying Defendant’s request for

an instruction on the lesser-included offense of false imprisonment. B. Defendant’s Convictions Do Not

Violate Double Jeopardy{17} “The constitutional prohibition against double jeopardy ‘protects against both suc-cessive prosecutions and multiple punish-ments for the same offense.’” State v. Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114 (citation omitted); see U.S. Const. amends. V, XIV; N.M. Const. art. II, § 15. Defendant argues that his convic-tions for kidnapping and battery violate this prohibition because his conduct was unitary both based on the facts and as a matter of law and the Legislature did not intend to punish battery and kidnapping separately. The State responds that (1) the issue was not preserved properly; and (2) the conduct is not unitary under the facts or as a matter of law and, therefore, double jeopardy does not apply. We agree that Defendant’s double jeopardy rights were not violated. {18} Defendant need not have preserved this issue in order to raise it on appeal. See State v. Martinez, 2007-NMCA-160, ¶ 5, 143 N.M. 96, 173 P.3d 18. “Double jeopardy presents a question of law, which we review de novo.” State v. Saiz, 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. “[T]he sole limitation on multiple punishments is legislative intent[.]” Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). Under New Mexico’s double jeopardy juris-prudence, our inquiry into legislative intent proceeds in two stages. Id.; State v. Frazier, 2007-NMSC-032, ¶¶ 18-19, 142 N.M. 120, 164 P.3d 1. “The first part of our inquiry [is] whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes. The second part [is] whether the [L]egislature intended to create separately punishable offenses.” Swafford, 112 N.M. at 13, 810 P.2d at 1233. If the evidence is such “that the jury reasonably could have inferred independent factual bases for the charged offenses[,]” the conduct is not unitary. Saiz, 2008-NMSC-048, ¶ 30 (internal quotation marks and citation omitted). Independent factual bases “may be established by determining whether the acts constituting the two offenses are sufficiently separated by time or space, looking to the quality and nature of the acts, the objects and results involved, and the defendant’s mens rea and goals during each act.” Id.{19} In certain situations, two offenses are “unitary by definition.” Frazier, 2007-NMSC-032, ¶ 23. In those cases, where the Legislature has “define[d] the offenses as greater and lesser included, and the jury in-

structions require the jury to make the factual finding of unitary conduct,” the court need not assess whether the conduct was unitary. Id. ¶ 20. An example is the felony murder statute, which requires that the killing be committed “in the commission of or attempt to commit any felony[.]” NMSA 1978, § 30-2-1(A)(2) (1994). The construction of this statute requires a factual finding that one crime was committed in conjunction with another. Frazier, 2007-NMSC-032, ¶ 23. “Thus, when a jury finds a defendant guilty of felony murder, it has already determined the fact-based unitary conduct question—it has found that the killing happened during the commission of the underlying felony.” Id. Taken together with State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995), in which the Court held that “when the conduct is unitary, the defendant cannot be convicted of both felony murder and the underlying predicate felony[,]” Frazier’s holding means that a defendant can never be convicted of both felony murder and the predicate felony because the conduct is always unitary. 2007-NMSC-032, ¶¶ 16, 23. 1. Defendant’s Conduct Was Not

Factually Unitary{20} With this background in mind, we turn back to the facts of this case. We address first whether Defendant’s conduct was factually unitary, then whether it was unitary as a mat-ter of law. Defendant argues that his conduct was factually unitary because “[t]he physical contact was constant” and “[Defendant’s] mental state of anger was also constant[.]” We are unpersuaded. Here, Victim testified that at different times during the encounter, Defendant kicked her, punched her, pulled her hair, and pushed her into bushes. She testified that he transported her from place to place while holding her by the shirt and arm and that when she tried to run, he dragged her back to the car. To convict for kidnapping, the jury was instructed they must find that Defendant “took, restrained, confined, or transported [Victim] by force or intimidation . . . to inflict physical injury on her[.]” They were instructed that in order to convict for battery, they must find that Defendant “intentionally touched or ap-plied force to [Victim] by hitting or kicking her[.]” (Emphasis added.) Thus, based on these instructions and Victim’s testimony, the jury could have found independent factual bases for kidnapping and battery because the instructions limited the conduct constituting battery to hitting or kicking Victim, thereby precluding inclusion of the conduct by which Defendant restrained or transported Victim in the car from place to place. See State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct. App. 1994) (“The key to the restraint


element in kidnapping is the point at which [the v]ictim’s physical association with [the d]efendant was no longer voluntary.”). The conduct was not factually unitary. State v. Urioste, 2011-NMCA-121, ¶ 28, 267 P.3d 820 (“[Where] the jury could reasonably have inferred an independent factual basis for . . . [d]efendant’s convictions, . . . we do not second-guess the factual conclusions of a jury.”), cert. quashed, 2012-NMCERT-008, P.3d (No. 33,287, Aug. 17, 2012).2. Defendant’s Conduct Was Not

Unitary as a Matter of Law{21} Neither is the conduct unitary as a matter of law. Defendant argues that the kidnapping statute functions like the felony murder statute in Frazier. See Section 30-4-1(B); Frazier, 2007-NMSC-032, ¶ 23. Section 30-4-1(B) allows punishment of kidnapping as a second degree felony if the defendant “voluntarily frees the victim in a safe place and does not inflict physical injury or a sexual offense upon the victim.” Therefore, Defendant argues, the elevation of a kidnapping charge to first degree based on physical injury is analogous to elevation of a killing to first degree murder based on a predicate felony. The State maintains that the kidnapping statute is not similar to the felony murder statute because, unlike that statute, it does not include a requirement of a predicate crime that is subsumed into kidnapping. We are not persuaded by Defendant’s analogy to the felony murder statute because the statutes at issue are neither facially nor functionally the same. {22} Frazier’s analysis of the felony murder statute relies on the legislative intent be-hind the statute. 2007-NMSC-032, ¶ 26; see § 30-2-1(A)(2). Although that analysis “turn[ed] entirely on the unitary conduct prong of Swafford[,]” the Court stated that, in essence, both Swafford prongs depend on whether the Legislature intended multiple punishments. Frazier, 2007-NMSC-032, ¶¶ 17-18. The factual inquiry into “independent factual bases” is based on an “assum[ption] that the [L]egislature intended to authorize separate punishments” when “criminal acts are sufficiently separate in time and space[.]” Id. ¶ 19. Thus, the unitary conduct analysis is “a proxy for legislative intent when the [L]egislature is silent.” Id. The Court went on to determine that the Legislature was not silent in the felony murder statute: its intent to treat certain crimes as unitary is evinced by the “expres[s] require[ment] that the killing happen ‘in the commission of ’ the underly-ing felony.” Id. ¶ 23. {23} Here, there is no such legislative intent indicated in the kidnapping statute. Unlike the felony murder statute, the kidnapping statute does not include as an element “in

the commission of [a] felony.” Compare § 30-2-1(A)(2), with § 30-4-1. Thus, on its face, the kidnapping statute is not like the felony murder statute. In addition, there is no evidence that the Legislature has ever intended to make the kidnapping statute like the felony murder statute. “We presume that the [L]egislature knows the law when enacting a statute.” State v. Bennett, 2003-NMCA-147, ¶ 11, 134 N.M. 705, 82 P.3d 72. Yet, although the felony murder statute has been part of New Mexico’s schema for homicide since well before 1963, see NMSA 1953, § 40-24-4 (Vol. 6, 1965) (defining first degree murder), the Legislature has not added a similar provision to the kidnapping statute even though it has amended that statute three times since 1963. See § 30-4-1. Finally, New Mexico has declined to follow the Model Penal Code’s kidnapping statute, adopted in 1962 and followed by some other states, which includes a provision such that kidnap-ping may be charged for restraint intended to facilitate another crime. See § 30-4-1; Model Penal Code § 212.1 (1962); see, e.g., Kan. Stat. Ann. § 21-5408(a)(2) (2010). {24} Defendant argues that, in spite of the difference in wording, the kidnapping statute functions like the felony murder statute. We disagree for two reasons. First, the kidnap-ping statute does not require that the jury find there was a crime that caused physical injury. In the felony murder context, the uniform jury instructions require the jury to find that the defendant committed a felony and that the murder was committed during the commission of that felony. See UJI 14-202 NMRA. “There can be no conviction for killing in the course of a felony without proof of all of the elements of the [underlying] felony.” State v. DeGraff, 2006-NMSC-011, ¶ 26, 139 N.M. 211, 131 P.3d 61. {25} To convict for first degree kidnapping, the jury must find that the defendant inflicted physical injury on or committed a sexual offense against the victim, or that the victim was not voluntarily released in a safe place. See § 30-4-1(B); UJI 14-6018 NMRA. If a sexual offense is alleged, the jury must find that the elements of that crime are satisfied. See UJI 14-6018 Use Note 5 (stating that the jury must be instructed in the elements of the sexual offense). This part of the statute is similar to the felony murder statute. See UJI 14-202 Use Note 3. The jury may convict for first degree kidnapping, however, if there is evidence of physical injury even if there is no charge for a crime associated with that injury. See UJI 14-6018 Use Note 4 (in which there is no requirement that the jury be instructed in the elements of a crime causing physical injury). In other words, the jury may find that the defendant inflicted physical injury on

the victim without considering the elements of a specific crime against the person. The absence of a requirement for the jury to find that another crime was committed indicates that the Legislature intended to punish as first degree kidnapping conduct that meets the basic elements of second degree kidnap-ping and results in physical injury, even if the defendant is not charged with a crime for the conduct causing the injury. Contra Frazier, 2007-NMSC-032, ¶ 24 (“[T]he conduct required to commit felony murder will always support a parallel charge with respect to the underlying felony.”). In this case, the jury could have determined that Victim suffered physical injury when Defendant dragged her to the car, threw her into the bushes, pulled her hair, or otherwise restrained her—all ac-tions distinct from the hitting and kicking on which the battery charge was based. {26} Second, Frazier is inapposite because the problem in that case does not exist here. Critical to Frazier’s analysis is the fact that the underlying felony increases punishment for a killing to the same level as an intentional killing even when there is no “premeditation or a depraved mind.” Id. ¶ 26. In the felony murder context, “the killer’s mental state is consistent with second[]degree murder.” Id. ¶ 9. Thus, if punished for both felony murder and the underlying felony, the “defendant will receive a greater punishment than a defendant who is shown to have killed with a more culpable mental state such as deliber-ate intent murder.” Id. ¶ 10. The key to this analysis is the recognition that different men-tal states determine the level of culpability for murder. See § 30-2-1; State v. Ortega, 112 N.M. 554, 564, 817 P.2d 1196, 1206 (1991), abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. For example, first degree murder requires the intent to kill or “indif-ference for the value of human life.” State v. Ibn Omar-Muhammad, 102 N.M. 274, 278, 694 P.2d 922, 926 (1985); see § 30-2-1(A). Second degree murder, however, requires only the knowledge that the defendant’s conduct “create[s] a strong probability of death or great bodily harm.” Section 30-2-1(B). It is axiomatic that we punish intentional conduct more severely than unintentional conduct. See 1 Wharton’s Criminal Law § 27 (15th ed. 2012); Ortega, 112 N.M. at 562, 817 P.2d at 1204. In the felony murder context, when a defendant is sentenced for both felony murder and the underlying felony, he is punished more severely than one who acted with intent to kill, a result contrary to the schema of the murder statute. See Frazier, 2007-NMSC-032, ¶ 10. In contrast, in the kidnapping context, the mental state for first and second degree kidnapping is the same: in


this case, the intent to inflict physical injury. The mental state that makes a perpetrator culpable for kidnapping is constant whether there is a physical injury or not. Punishment for both kidnapping and the conduct that caused physical injury, therefore, does not create the same arbitrary result as discussed in Frazier because the defendant is not punished more severely than someone with a “more culpable mental state.” Id.{27} We conclude that the kidnapping statute is not analogous to the felony murder statute and the battery and kidnapping in this case were not unitary as a matter of law. Since we determine that Defendant’s conduct was neither factually unitary nor unitary as a matter of law, there is no reason to proceed to the second prong of the Swafford analysis. See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (“If it reasonably can be said that the conduct is unitary, then one must move to the second part of the inquiry. Otherwise, if the conduct is separate and distinct, inquiry is at an end.”). Defendant’s convictions for first degree kidnapping and battery against a household member do not violate the constitutional prohibitions against double jeopardy. C. Kidnapping Was Not Incidental

to Battery{28} Defendant next argues that the Legis-lature did not intend to punish restraint that is incidental to another crime as kidnapping and cites to other jurisdictions that have interpreted kidnapping statutes to apply only when the restraint or movement has significance independent from the underly-ing crime. See, e.g., State v. Salamon, 949 A.2d 1092, 1121 (Conn. 2008); State v. Buggs, 547 P.2d 720, 723 (Kan. 1976); People v. Daniels, 459 P.2d 225, 238 (Cal. 1969) (in bank). He argues further that since “[t]he restraint involved here was done for the sole purpose of effectuating [Defendant’s] contact with [Vic-tim] . . . and did not involve more restraint than was necessary to commit the battery as alleged,” the kidnapping conviction should be vacated. The State argues that Defendant failed to preserve these issues and that, even if they were preserved, “driving a person across miles of desert is [not] necessary to commit battery . . . , given the number of people who have succeeded in committing battery without driving at all.” (internal quotation marks omitted). {29} Defendant’s first contention was resolved in State v. Trujillo, 2012-NMCA-___, ¶ 39, ___ P.3d ___ (No. 30,563, Aug. 27, 2012). In that case, the defendant was convicted of kidnapping for holding the victim during a fight in which he and an accomplice beat the victim with a bar. Id. ¶¶ 2-3. This Court examined the history

and purpose of the kidnapping statute and concluded that “the Legislature did not intend to punish as kidnapping restraints that are merely incidental to another crime.” Id. ¶ 39. We examined three tests used by other states to determine whether restraint or movement is incidental to another crime. Id. ¶¶ 32-38. Although we did not adopt a specific test, we vacated the kidnapping conviction, stating that the restraint was incidental under any of the tests because it was “not longer or greater than that nec-essary to achieve a battery[,] . . . did not subject [the v]ictim to substantially greater risk of harm[,]” and did not facilitate an-other crime. Id. ¶ 39. We stated that it was possible to make this determination on the facts of that case because “[t]he facts [did] not present a ‘close call.’ ” Id. But “[a] more complicated factual scenario would present a jury question—submitted under appropri-ate instructions—as to whether the restraint involved was merely incidental to the other crime.” Id. ¶ 42. This part of our analysis in Trujillo rested on an assessment of the suffi-ciency of the evidence to support kidnapping. See State v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (“In reviewing the evidence, the relevant question is whether any rational jury could have found each ele-ment of the crime to be established beyond a reasonable doubt.”) (internal quotation marks and citation omitted); State v. Ward, 51 A.3d 970, 984 (Conn. 2012) (examin-ing whether the “jury reasonably could have concluded that the evidence adduced at trial established that the defendant was guilty of kidnapping” where the defendant argued that any movement of the victim was incidental to sexual assault under the test expressed in Salamon, 949 A.2d at 1121).{30} We apply this analysis to Defendant’s second contention: that any restraint of Vic-tim was incidental to battery. Defendant need not have preserved this argument because it rests on whether the evidence was sufficient to convict him of kidnapping. State v. Stein, 1999-NMCA-065, ¶ 9, 127 N.M. 362, 981 P.2d 295 (“[T]he question of sufficiency of the evidence to support a conviction may be raised for the first time on appeal.”). Under this standard, “an appellate court reviews the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” Riley, 2010-NMSC-005, ¶ 12 (alteration, internal quotation marks, and citation omitted). In essence, Defendant argues that there was in-sufficient evidence that Defendant’s restraint of Victim was not “merely in furtherance of the ongoing battery and [that it had a sig-nificance of its own.” We are unpersuaded.

Kidnapping may occur once the “[v]ictim’s physical association with [the d]efendant [is] no longer voluntary.” Pisio, 119 N.M. at 260, 889 P.2d at 868. As discussed above, the jury was instructed that a battery conviction required finding that Defendant hit or kicked Victim. In addition, they heard evidence that Defendant drove Victim from one location to another while restraining her in the car. There was sufficient evidence for the jury to conclude that this conduct was not merely incidental to hitting or kicking her. See Tru-jillo, 2012-NMCA-___, ¶¶ 37-38. D. Appellant Has Not Established a

Prima Facie Case of Ineffective Assistance Based on Defense Counsel’s Failure to Object

{31} Defendant maintains that his counsel was ineffective because he did not object to character evidence presented at trial and because he failed to file a motion or argue for mitigation at the sentencing hearing. Claims of ineffective assistance of counsel are reviewed de novo. State v. Quiñones, 2011-NMCA-018, ¶ 28, 149 N.M. 294, 248 P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901. The two prongs of the test for ineffective assistance claims were stated concisely in State v. Hernandez:

To prevail on his claim of ineffec-tive assistance of counsel, . . . [the d]efendant bears the burden of showing both that his attorney’s performance fell below that of a reasonably competent attorney, and that, as a result of his attorney’s in-competence, he suffered prejudice. Absent a showing of both incom-petence and prejudice, counsel is presumed competent.

115 N.M. 6, 16, 846 P.2d 312, 322 (1993) (citation omitted); see Strickland v. Washing-ton, 466 U.S. 668, 687 (1984). The range of conduct that is reasonable is broad; “[i]f we can conceive of a reasonable trial tactic which would explain the counsel’s performance, we should not find ineffective assistance.” Quiñones, 2011-NMCA-018, ¶ 29 (altera-tion, internal quotation marks, and citation omitted). Prejudice is present when there is a “reasonable probability that ‘but for’ counsel’s unprofessional error, the result of the proceeding would have been different.” Hernandez, 115 N.M. at 17, 846 P.2d at 323 (internal quotation marks and citation omitted). A showing of prejudice presents a high barrier because “[c]ounsel’s deficient performance must represent so serious a failure of the adversarial process that it un-dermines judicial confidence in the accuracy and reliability of the outcome.” Quiñones, 2011-NMCA-018, ¶ 30 (internal quotation marks and citation omitted).


{32} Defendant argues that defense counsel was ineffective because he failed to object to testimony referring to prior bad acts which was “clearly intended to prove conformity therewith” in violation of Rule 11-404(B)(1) NMRA (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”). Specifically, he argues that references in the testimony to his impend-ing court date, prior jail time, and previous altercations were objectionable. During the trial, Victim stated three times that Defen-dant had a court date the day following the incident. In the course of her testimony, she stated six times that Defendant had said that he did not want to go “back to jail.” At one point, Victim made reference to an incident that allegedly occurred several days earlier. Finally, Victim’s daughter testified that she advised her mother to call the police because “why would you want to deal with stuff like this, like someone hitting you all the time?” (Emphasis added). She also stated that she had “seen bruises on [Victim]” in the past. Both the State and defense counsel made reference to Defendant’s court date during closing arguments. Defense counsel also mentioned in closing arguments Defendant’s alleged statement that he did not want to go back to jail. Defense counsel did not object to any of these statements, nor did he file any motions in limine to exclude this evidence or request a curative instruction for the jury. {33} We agree with the State that even if de-fense counsel’s failure to object was unreason-able, Defendant has not demonstrated that the outcome of the trial would have been dif-ferent but for this failure. See Hernandez, 115 N.M. at 16-17, 846 P.2d at 322-23 (“On re-view, we need not consider the two prongs of the test in any particular order.”). “Although the statement[s] may have had some prejudi-cial effect, Defendant has not demonstrated that had th[ese] statement[s] not come in, the result of the proceeding would have been different.” State v. Trujillo, 2002-NMSC-005, ¶ 45, 131 N.M. 709, 42 P.3d 814. In State v. Roybal, the Court considered whether de-fense counsel was ineffective when he failed to redact portions of a witness’ statement implicating the defendant in a prior murder. 2002-NMSC-027, ¶ 14, 132 N.M. 657, 54 P.3d 61. After finding that “[t]here is little question . . . that [defense] counsel’s” conduct was unreasonable, id. ¶ 22, the Court stated that the defendant was prejudiced because “evidence that he had committed a prior murder invites the impermissible inference that, because he had killed in the past, it is more likely that he committed this murder.” Id. ¶ 26. “Under the Strickland measure of

ineffective assistance of counsel, [however,] mere evidentiary prejudice is not enough.” Roybal, 2002-NMSC-027, ¶ 25. The Court considered the prejudicial effect “against the totality and strength of the evidence of . . . guilt [to] determine if the outcome of the trial has been rendered unreliable.” Id. ¶ 26. The Court determined that, compared to the evidence against the defendant in that case, the statement “do[es] not make the reliability of the trial suspect and do[es] not deprive [the d]efendant of his due process right to a fair trial.” Id. ¶ 28. {34} Similarly, here the State presented testi-mony by Victim, the officer to whom Victim reported the incident, and Victim’s daughter. The State also presented photographs of Vic-tim’s injuries. Defense counsel’s strategy was to attack Victim’s credibility; he did not call any witnesses nor did he present other evidence. “The cumulative effect of these . . . items of evidence, even considering Defendant’s efforts to discredit them, are simply too strong for us to conclude” that the trial would have been “any different absent [defense] counsel’s error.” Id. ¶ 29. Defendant has failed to establish a prima facie case of ineffective assistance based on failure to object. E. The District Court Failed to

Consider Mitigating Circumstances in Sentencing

{35} In his second claim of ineffective assis-tance, Defendant argues that defense counsel failed to argue for mitigating circumstances because he misunderstood the difference between the judge’s power to defer or suspend under NMSA 1978, Section 31-20-3 (1985), and the judge’s power to reduce the sentence by one-third under NMSA 1978, Section 31-18-15.1 (2009). Defendant also argued, albeit glancingly, that the district court failed to consider mitigating circumstances. Both the judge and defense counsel made state-ments in the sentencing hearings about the judge’s lack of discretion in the kidnapping sentence. {36} In order to make a fully informed deci-sion on whether the district court erred by not considering mitigating circumstances, we requested supplemental briefing. See State v. Clemonts, 2006-NMCA-031, ¶ 10, 139 N.M. 147, 130 P.3d 208; see State v. Nozie, 2009-NMSC-018, ¶ 15, 146 N.M. 142, 207 P.3d 1119 (stating that “an appel-late court may decline to address [a claim not fully briefed by the parties], [but] it is not required to do so if the transcripts and briefs are sufficient to present the essential question for review on the merits,” and that “NMRA 12-213 does not require th[e] Court to disregard an issue when an appellant fails to comply with its provisions”) (alterations, internal quotation marks, and citations omit-

ted)). The supplemental briefs addressed the interplay, if any, between Sections 31-18-15.1 and 31-20-3, whether the district court considered mitigating circumstances, and the holding of State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314, as it relates to this case. {37} “We review the trial court’s sentencing for an abuse of discretion.” State v. Jensen, 1998-NMCA-034, ¶ 19, 124 N.M. 726, 955 P.2d 195. A trial court abuses its discretion when it exercises its discretion based on a misunderstanding of the law. See State v. Elin-ski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. We remand for resentencing because the district court did not consider mitigating circumstances in sentencing. Because our holding renders it unnecessary, we do not address Defendant’s arguments regarding ineffective assistance of counsel based on a failure to move for mitigation. {38} At the first sentencing hearing, defense counsel argued that the judge had discretion to suspend a portion of the eighteen-year sen-tence. He also argued that, although “some time is not inappropriate,” eighteen years is “extravagant.” At that point, the judge asked for the reference to the governing statute and was referred to Section 31-18-15 by defense counsel. This is the statute governing basic sentences, not suspension or deferral of sen-tences nor mitigation of sentences. The State interjected that the judge “ha[d] to read that section in conjunction with [Section] 31-20-3,” which is the statute governing suspensions and deferrals. The judge agreed with the State that under Section 31-20-3, he did not have the authority to suspend or defer sentences for first degree felonies. Later in the hearing, defense counsel requested that the hearing be continued to allow him to prepare a mo-tion for mitigating circumstances. The judge continued the hearing and gave Defendant ten days to file a motion. {39} Defense counsel did not file the motion and stated at the next hearing on the matter, “after an extensive review[,] I would have to . . . agree with the court and [the prosecutor] that this is not one, the two lesser offenses would be available for mitigation, but not the first degree kidnapping.” (Emphasis added.) The judge responded, “what I recall reacting to was whether or not I had any discretion in suspending any portion of that eighteen-year sentence, which I don’t. But mitigation, I didn’t even really look at the mitigation statutes, haven’t seen a formal request for mitigation.” He proceeded to hear argument from counsel on sentencing. Defense counsel stated that “as to count one, I think we are ba-sically dealing with something that the court


doesn’t have a lot of discretion with . . . in a situation like this, you’re looking at basically having to hand down an eighteen-year sen-tence.” He also stated that “like I said, there’s not much we can do with [the kidnapping sentence], there’s not much argument I can make to that.” After hearing from Defendant, the judge said, “I don’t have any discretion in count one, it’s an eighteen-year mandatory sentence, I don’t have any discretion in that count at all.” {40} This understanding of the scope of his authority is partially correct. The judge determined correctly that Section 31-20-3 does not apply to first degree felonies. See § 31-20-3 (stating that a court may defer or suspend a sentence only for crimes “not con-stituting a capital or first degree felony”). This statute does not have any effect, however, on the judge’s ability to alter a sentence based on mitigating circumstances. See State v. Cook, 2006-NMCA-110, ¶ 21, 140 N.M. 356, 142 P.3d 944. Under Section 31-18-15.1(G), the court may reduce the sentence by up to one-third. Had the court found mitigating circumstances here, the sentence could have been reduced by up to six years. {41} The State argues that the district court has no obligation to consider mitigating evi-dence “sua sponte, in the absence of a request from the defense” and that, therefore, this is-sue is not relevant to this appeal. We disagree. The plain language of the statute imposes a duty on the court. Section 31-18-15.1(A) states that “[t]he court shall hold a sentenc-ing hearing to determine if mitigating or aggravating circumstances exist.” (Emphasis added.); see State v. Ayala, 2006-NMCA-088, ¶ 6, 140 N.M. 126, 140 P.3d 547. The statute does not prescribe any prerequisites to the district court’s exercise of this duty. {42} Furthermore, our cases have recognized the importance of mitigating circumstances in sentencing. In Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415, 417 (1982), the Court held that failure to allow a defendant to allocute before sentence is imposed “ren-ders the sentence invalid.” Allocution by the defendant is a form of mitigation evidence. Id. Indeed, the New Mexico Supreme Court defined allocution as “the formal inquiry or demand made by the court . . . to accused at the time for pronouncing sentence as to whether accused has anything to say why sentence should not be pronounced on him.” State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794, 932 P.2d 484 (internal quota-tion marks and citation omitted). Similarly, Black’s Law Dictionary defines allocution as “[a] trial judge’s formal address to a convicted defendant, asking him or her to speak in mitigation of the sentence to be imposed,”

or “[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy . . . or say anything else in an effort to lessen the impending sentence.” Black’s Law Dictionary 88 (9th ed. 2009). In Tomlinson, the fact that the district court allowed the defendant to allocate after sentence was imposed was “no more than an empty gesture” because of the potential impact of the defendant’s statement on the sentence. 98 N.M. at 215, 647 P.2d at 417 (“There is no substitute for the impact on sentencing which a defendant’s own words might have if he chooses to make a statement.” (alteration, internal quotation marks, and citation omitted)). Implicit in the Tomlinson holding is the recognition that if a defendant chooses to speak, the sentencing court must consider his statement before imposing a sentence. See id.{43} In Juan, the district court reasoned that, because one-third of a life sentence could not be calculated, a life sentence could not be altered under Section 31-18-15.1. Juan, 2010-NMSC-041, ¶ 35. “Thus, the [district] court did not consider any mitigating evidence and imposed a life sentence, stating that its ‘hands were tied.’ ” Id. (alteration omitted). On appeal, the New Mexico Supreme Court determined that the district court misconstrued Section 31-18-15.1 and held that its failure to consider mitigating evidence was improper. Juan, 2010-NMSC-041, ¶¶ 39, 43. In that case, the district court’s misapprehension of the law as to his ability to mitigate was error; the result of the error was that mitigating factors were not considered. The Court concluded that the district court “improperly failed to consider mitigating evidence at [the d]efendant’s sentencing hearing pursuant to Sections 31-18-15 and 31-18-15.1.” Juan, 2010-NMSC-041, ¶ 43; accord State v. Wil-son, 2001-NMCA-032, ¶ 15, 130 N.M. 319, 24 P.3d 351 (stating that a sentencing “hear-ing is mandatory in all cases and a sentencing court is required to consider . . . mitigating circumstances before imposing any felony sentence”), overruled on other grounds by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144; Ayala, 2006-NMCA-088, ¶ 6 (“A district court must hold a sentencing hearing to determine the existence of mitigat-ing or aggravating circumstances.”) (internal quotation marks and citation omitted); cf. State v. Aragon, 2009-NMCA-102, ¶ 21, 147 N.M. 26, 216 P.3d 276 (holding that even in the absence of a formal motion, the fact that the judge was aware of the potentially miti-gating factors when sentencing the defendant was sufficient to eliminate prejudice where the defendant argued ineffective assistance

of counsel). {44} Here, the district court’s statements at the hearings suggest that he did not consider mitigating evidence. See State v. Bonilla, 2000-NMSC-037, ¶ 11, 130 N.M. 1, 15 P.3d 491 (rejecting the State’s argu-ment that, because the defendant received a sentence within the statutory guidelines, the sentence was “per se non-violative of a de-fendant’s rights” and considering the judge’s statements at the hearing). Specifically, his statements that he “didn’t even really look at the mitigation statutes, haven’t seen a formal request for mitigation[,]” and “I don’t have any discretion in count one, it’s an eighteen-year mandatory sentence, I don’t have any discretion in that count at all[,]” suggest that either he believed a formal motion was required to trigger exercise of that authority or he did not believe he had statutory au-thority to reduce the sentence. As the State points out, the district court judge granted a continuance of the sentencing hearing to allow defense counsel to file a motion and it is unlikely that he would have done so “if he believed he lacked authority to act on the motion.” When considered in light of the district court’s later statements, however, this circumstance indicates that the judge felt that a motion by defense counsel was required. {45} The district court has an obligation to consider mitigating factors in sentencing. Failure to do so, whether based on a misap-prehension of the authority given by statute or a belief that a formal motion is required, is an abuse of discretion. We conclude that the district court here did not consider miti-gating circumstances and, therefore, remand for resentencing. To be clear, our holding is not a comment on the length of the sen-tence. “Defendant is entitled to no more than a sentence prescribed by law,” State v. Cumpton, 2000-NMCA-033, ¶ 12, 129 N.M. 47, 1 P.3d 429, and there is no abuse of discretion when mitigating circumstances are considered and rejected. Our holding is limited to Section 31-18-15.1’s requirement that the district court consider mitigating circumstances in sentencing. CONCLUSION{46} We affirm Defendant’s convictions and remand for resentencing consistent with this Opinion.{47} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE,

Judge

WE CONCUR:JAMES J. WECHSLER, JudgeLINDA M. VANZI, Judge


Certiorari Not Applied For



Topic Index:Appeal and Error: Standard of Review

Associations and Societies: Charitable Organizations; and Non-Profit Corporations

Constitutional Law: New Mexico Constitution, GeneralTaxation: Exemptions; and Property Tax

PECOS RIVER OPEN SPACES, INC.,a New Mexico non-profit corporation,

Plaintiff-Appellee,versus

COUNTY OF SAN MIGUEL and SAN MIGUEL COUNTY ASSESSOR,

Defendants-Appellants.No. 30,865 (filed January 11, 2013)

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTYEUGENIO S. MATHIS, District Judge

opinion

J. Miles hanisee, Judge

{1} This case presents us with an issue of first impression as to whether, as a matter of law, conservation of property can con-stitute a charitable use, thereby exempting the land from property taxes under Article VIII, Section 3 of the New Mexico Consti-tution. We conclude that conservation is a charitable use under Article VIII, Section 3 if conservation of the particular land at issue provides a substantial benefit to the public. We affirm the district court’s order that the land at issue is exempt from taxation under Article VIII, Section 3.I. BACKGROUND{2} Pecos River Open Spaces, Inc. (Plain-tiff) is a New Mexico non-profit corporation that has the primary and sole purpose of acquiring and holding vacant, undeveloped, and unimproved land located in the vicinity of the Pecos River Canyon in San Miguel County. Plaintiff’s objective in acquiring land is to preserve it in its natural state and

RICHARD W. HUGHESROTHSTEIN, DONATELLI, HUGHES,

DAHLSTROM, SCHOENBURG & BIENVENU, L.L.P.


JESUS L. LOPEZSan Miguel County Attorney

Las Vegas, New Mexicofor Appellants

thereby contribute to the preservation of the environment and ecology of the Pecos River Canyon for the benefit of New Mexico and its citizens. {3} In October 2008, Genevieve Coonly deeded a completely vacant and undevel-oped sixty-acre parcel of land (the Prop-erty) located in the Pecos River Canyon to Plaintiff. The Property, which exists in a generally natural and undisturbed state about a quarter mile from the Pecos River, is subject to a strict conservation easement granted to the Santa Fe Conservation Trust. The easement prevents, in perpetuity, devel-opment or construction of any kind on the Property. Plaintiff’s intention in acquiring and holding the Property is exclusively to preserve the Property in its natural state, to enforce and adhere to the terms of the con-servation easement, and to take seasonable steps to enhance the natural qualities of the Property, such as reduction of erosion and the repair of damage to the Property. {4} Upon receiving a tax assessment on the property, Plaintiff filed a protest, claiming that the Property was tax exempt under

Article VIII, Section 3 of the New Mexico Constitution because it was used solely for the charitable purpose of conservation. The San Miguel Assessor (Defendant) denied the claim for the tax exemption, and Plaintiff appealed to the San Miguel County Valua-tion Protests Board (the Board). The Board affirmed Defendant’s decision to deny the claimed exemption, concluding that conser-vation was not a charitable use of the Prop-erty. Plaintiff then appealed to the district court, which reversed the Board’s decision and granted the charitable-use property tax exemption.{5} Also in reversing, the district court ac-counted for the aforementioned facts, as well as the Board’s findings, which noted that the Secretary of New Mexico Energy, Minerals, and Natural Resources Department deter-mined that the Property is an important habitat area or contains significant natural, open space, or historic resources under the New Mexico Land Conservation Incentives Act, NMSA 1978, §§ 75-9-1 to -6 (2003). Because of the Secretary’s finding in 2008, Coonly was given a credit for the donation on her income taxes under NMSA 1978, § 7-2-18.10 (2007) equal to fifty percent of the fair market value of the Property.{6} Defendant now petitions for review of the district court’s reversal. We granted the petition for writ of certiorari because this case involves a significant question of constitutional law and an issue of substan-tial public interest. See Rule 12-505(D)(2)(d) NMRA (listing the four grounds upon which this Court has discretion to grant a petition for a writ of certiorari); Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806 (2002) (“The critical issue under Rule[] . . . 12-505 is whether the case presents issues of significant importance to justify the granting of a writ of certiorari, and that determination is not dependent on the standard of review applied [] below, nor does it limit the standard of review [applied] on appeal.”).II. DISCUSSION{7} The sole issue we address is whether conservation of the Property is a charitable use, justifying exemption of the Property from taxation under Article VIII, Section 3 of the New Mexico Constitution. Article VIII, Section 3 provides for a number of exemptions from taxation, stating:

The property of the United States, the state and all counties, towns, cities and school districts and other municipal corpora-tions, public libraries, community ditches and all laterals thereof,


all church property not used for commercial purposes, all property used for educational or charitable purposes, all cemeteries not used or held for private or corporate profit and all bonds of the state of New Mexico, and of the counties, municipalities and districts thereof shall be exempt from taxation.

(Emphasis added.) Although this Court and the New Mexico Supreme Court have addressed the applicability of several of the uses that qualify property for an exemption, neither has addressed the question regarding conservation posed by Defendant’s appeal.{8} We review constitutional issues of law de novo. Jicarilla Apache Nation v. Rodarte, 2004-NMSC-035, ¶ 23, 136 N.M. 630, 103 P.3d 554. “We interpret the Constitu-tion and determine whether the law was properly applied to the facts through de novo review.” Georgia O’Keeffe Museum v. Cnty. of Santa Fe, 2003-NMCA-003, ¶ 27, 133 N.M. 297, 62 P.3d 754. We note that “[p]roperty is presumed to be subject to taxation. It is the taxpayer’s burden to claim, apply for, and prove an exemption based on [a] . . . charitable use.” Id. ¶ 32 (citation omitted). The determination of whether the land is used for a charitable purpose “necessarily depend[s] on the uses being made of each property which it is claimed comes within the exemption. Except to the extent that the facts as to use are so nearly alike as to logically compel like results, no case can be said to constitute a controlling precedent for another case in this area.” Benevolent & Protective Order of Elks, Lodge No. 461 v. N.M. Prop. Appraisal Dep’t, 83 N.M. 445, 446, 493 P.2d 411, 412 (1972). The stan-dard for designating a use as charitable “can take shape only by the gradual process of adjudicating this or that purpose or use on the one side of it or on the other[.]” Temple Lodge No. 6, A.F. & A.M. v. Tierney, 37 N.M. 178, 187, 20 P.2d 280, 284-85 (1933).{9} In interpreting Article VIII, Section 3, we “apply a common sense construc-tion rooted in the view that property used primarily and substantially for charitable . . . purposes in a manner that benefits the public is exempt.” Georgia O’Keeffe Museum, 2003-NMCA-003, ¶ 44; Ret. Ranch, Inc. v. Curry Cnty. Valuation Protest Bd., 89 N.M. 42, 44, 546 P.2d 1199, 1201 (Ct. App. 1976) (“Although our constitutional provision does not require property to be used exclusively for charitable purposes in order to come within the exemption, the uses for these purposes must be substantial and must be the primary uses made of the property.” (internal quotation marks and

citation omitted)). “The purpose of th[e Article VIII, Section 3] exemption is to encourage religious, charitable, scientific, literary, and educational associations not operating for the profit of any private share-holder or individual.” Santa Fe Lodge No. 460 v. Emp’t Sec. Comm’n, 49 N.M. 149, 153, 159 P.2d 312, 314-15 (1945) (inter-nal quotation marks and citation omitted). “The exemption granted educational and charitable institutions proceeds upon the theory of the public good accomplished by them and the peculiar benefits derived by the public in general from their conduct.” Grand Lodge of Ancient & Accepted Masons of N.M. v. Taxation & Revenue Dep’t (Grand Lodge), 106 N.M. 179, 181-82, 740 P.2d 1163, 1166-67 (Ct. App. 1987). The word “charity” “in the legal sense . . . has a much wider significance than in common speech, it is not confined to mere almsgiving or the relief of poverty and distress, but extends to the improvement and promotion of the happiness of man.” Mountain View Homes, Inc. v. State Tax Comm’n, 77 N.M. 649, 654, 427 P.2d 13, 16-17 (1967).{10} But, because “[p]roperty which is exempt from taxation does not share in the burden of [paying for] the cost of govern-ment . . . in exchange for its exempt status, such property must confer a substitute substantial benefit on the public.” Grand Lodge, 106 N.M. at 182, 740 P.2d at 1167. A “substantial public benefit” means “[a] benefit of real worth and importance to an indefinite class of persons who are a part of the public, which benefit comes to these per-sons from the use of property.” NRA Special Contribution Fund v. Bd. of Cnty. Comm’rs, 92 N.M. 541, 549, 591 P.2d 672, 680 (Ct. App. 1978). The “direct and immediate use of the property” rather than the “remote and consequential benefit derived from its use” is determinative of the plaintiff’s exemption claim. Id. at 546, 549, 591 P.2d at 677, 680. {11} There can be little question that conservation of land in its natural and un-developed state generally benefits the public in the context of environmental preserva-tion and beautification of the State of New Mexico. The substantial benefit derived from conservation is manifested in New Mexico’s strong public policy encouraging conservation. The New Mexico Legislature has enacted the Land Conservation Incen-tives Act, to incentivize and reward acts of conservation. Section 75-9-2 states that:

The purpose of the Land Con-servation Incentives Act . . . is to encourage private landowners to be stewards of lands that are important habitat areas or contain

significant natural, open space[,] and historic resources by providing private landowners with incentives that encourage the protection of private lands for open space, natural resources, biodiversity conservation, outdoor recreation, farmland and forest land preserva-tion, historic preservation[,] and land conservation purposes.

In fact, as noted by the district court, under Section 7-2-18.10, landowners, who convey their land for the purpose of open space, conservation, or preservation to a public or private conservation agency, which is eligible to hold the land for conservation or preservation purposes, receive credit for such donations on their state income taxes.{12} Additionally, San Miguel County itself has a goal of conservation within its borders. San Miguel County’s Comprehensive Plan, adopted in 2004, states that the county residents’ wish list includes having “Open Land, Aesthetics[,] and Views Protected.” It also states that the San Miguel County residents want to incentivize preservation through “Conservation Easements [and] Transfer and Purchase of Development Rights.” The Plan explains that the residents wish to “Keep the Pecos River Wild and Scenic.”{13} Based upon these policies, we con-clude that conservation as asserted by Plain-tiff in these proceedings is a charitable use, insofar as the conservation of the particular land at issue provides a substantial benefit to the public. We note that Defendant does not disagree with this proposition. In its brief, Defendant acknowledges that “[n]o one can reasonably dispute that the conservation of open space is a laudable, worthy[,] and commendable endeavor[] and that land so conserved has a beneficial and salutary effect on both humanity and the environment.”{14} Here, the Board adopted Plaintiff’s proposed findings of fact in their entirety. We note the following pertinent findings of the Board, which were subsequently adopted also by the district court.

b. The primary charitable purpose of [Plaintiff] is to acquire and hold vacant, undeveloped and unimproved land located in the vicinity of the Pecos River Canyon in San Miguel County, for the purpose of preserving such land in its natural state and thereby contributing to the preservation of the environ-ment and ecology of the Pecos River Canyon, for the benefit of New Mexico and her citizens.


c. The Property . . . is completely vacant and undeveloped, and except for perimeter fencing and a primitive road it contains no improvements and is in a generally natural, undisturbed state.

d. The property is situated in the Pecos River Canyon and is ap-proximately one-quarter mile from the Pecos River itself.

. . . . f. [Plaintiff’s] intention in acquir-

ing and holding the Property is solely to preserve the Property in its natural state, to enforce and respect the terms of the conservation easement granted with respect to the Property, and to take reasonable steps to enhance the natural quali-ties of the Property, consistent with [Plaintiff’s] purposes and within the terms of the con-servation easement, such as reducing erosion and repairing other damage to the Property, and in addition to acquire and preserve other vacant, undevel-oped tracts in the same vicinity so as to maximize the amount of protected, undisturbed land for natural habitat and open space.

g. The Secretary of the New Mexico Department of En-ergy, Minerals and Natural Resources has determined that the Property is an important habitat area or contains sig-nificant natural, open space or historic resources, under the provisions of the New Mexico Land Conservation Incentives Act, [Sections] 75-9-1 through 75-9-6.

{15} The Board’s adoption of Plaintiff’s proposed findings of fact demonstrates that it agrees that conservation confers a substantial public benefit. Nevertheless, the Board concluded as a matter of law that our prior jurisprudence did not “permit a finding that pure conservation constitutes a charitable use of [the P]roperty.” On ap-peal to the district court, relying exclusively on the factual findings of the Board, the district court reached an opposite legal conclusion, namely, that owing to the public benefit derived therefrom, conservation of the Property in this case constitutes a “chari-table purpose” and therefore qualifies the Property for a constitutional tax exemption

under Article VIII, Section 3.{16} We agree that the Board’s findings support a determination that conservation of this particular parcel confers a substan-tial benefit to the public. Given the land’s proximity to the Pecos River, the natural and undisturbed quality of the land, Plaintiff’s objective to preserve the land in its natural state, San Miguel County’s public policy for conservation of the Pecos River, and the land’s significance as an important habitat area or as an area containing significant natural, open space, or historic resources, we conclude conservation of this parcel contributes to environmental preservation and beautification of San Miguel County and the State of New Mexico. Thus, this use provides a benefit of real worth and impor-tance to the public. It is also noteworthy that the Secretary of the New Mexico Energy, Minerals, and Natural Resources Depart-ment permitted Coonly to claim credit for the donation of the Property to Plaintiff on her income taxes in accordance with Section 7-2-18.10. {17} In light of our holding today, we ad-ditionally emphasize that the exemption from property taxes pursuant to Article VIII, Section 3 in this context is not applicable to routine activity or inactivity summarily denoted to be “conservation,” but which benefits only the owner or a limited number of people or interested parties. Nor is every act of conservation of a parcel or piece of property inherently suitable to be classified as substantially beneficial to the public, and thus charitable. Such determinations entail inquiries and determinations of fact by the county boards that consider valuation protests in New Mexico.{18} In reaching our holding, we reject Defendant’s specific arguments relating to the Property. Defendant initially maintains that “conservation of open space for sound environmental reasons and for the enjoy-ment of those who may choose to gaze upon it” does not constitute a charitable purpose because conservation of the Property does not meet the “charitable purpose” require-ment of conferring a substantial benefit upon the public. Defendant adds that the “environmental benefit intended by the conservation of the land is but a remote and consequential benefit derived from its use as a conserved open space but such use does not constitute a direct and immediate use of the [P]roperty for a charitable purpose.” (Internal quotation marks omitted.) Defen-dant’s arguments misapply our pre-existing Article VIII, Section 3 jurisprudence.{19} Relying on Grace, Inc. v. Board of County Commissioners, 97 N.M. 260, 261,

639 P.2d 69, 70 (Ct. App. 1981), and NRA Special Contribution Fund, 92 N.M. at 545, 591 P.2d at 676, Defendant contends that “the charitable purpose exemption should [not] be allowed for land that is idle, un-improved and not in actual use . . . or for which there is no direct and immediate charitable use, and for which the claimed environmental benefit—even if construed to be a charitable purpose—is, at best, remote and consequential.” Defendant’s reliance on these two cases is unpersuasive in the context here because both Grace, Inc., 97 N.M. at 261, 639 P.2d at 70, and NRA Special Contribution Fund, 92 N.M. at 545, 591 P.2d at 676, deal specifically with plaintiffs seeking property tax exemptions for religious or educational uses which are of a category verifiable only by affirmative observation. {20} In Grace, Inc., a non-profit corpora-tion, which was owned by a church and had the sole purpose of acquiring and holding land on which future churches would be constructed, was denied a tax exemption for a vacant lot that it owned within the state. 97 N.M. at 260-61, 639 P.2d at 69-70. The corporation appealed, arguing that the Article VIII, Section 3 exemption applied because the lot was church property not used for commercial purposes. Id. This Court concluded that “church property” within Article VIII, Section 3 meant “prop-erty required for the use of the church.” Id. at 260, 639 P.2d at 69. Since the vacant lot was not in use by the church, it could not be covered by the exemption. Id. at 261-62, 639 P.2d at 70-71. The rationale behind the holding in Grace, Inc. does not apply to the case before us. In Grace Inc., we considered prior cases and concluded that the deter-mination of whether a parcel was “church property” depended not on mere ownership by a church, but rather “affirmative, active, non-taxable use” by the church. Id. at 261, 639 P.2d at 70. Under this interpretation of “use,” to qualify a parcel as church property inherently requires some church activity to be conducted on the property. Id. Unlike conservation, church use requires more than non-use. To apply the meaning of use for church property to the case at bar, as Defendant proposes, takes the holding in Grace, Inc. out of context. {21} In NRA Special Contribution Fund, 92 N.M. at 545, 591 P.2d at 676, this Court reviewed the denial of tax exempt status under Article VIII, Section 3 to the National Rifle Association of America’s (NRA) 36,300-acre ranch, on which it claimed to provide educational services. The NRA argued that it provided survival


training, outdoor education, and firearm training on the ranch that qualified the property for the exemption. Id. at 543-45, 591 P.2d at 674-76. In concluding that we lacked sufficient evidence to determine if the land was actually being used for educational purposes, we noted that much of the large ranch was completely undeveloped and “un-used for any immediate or future purpose.” Id. at 550, 591 P.2d at 681. We concluded that, “because of its present unsuitability to the actual activities of the use of the land, [such unused parts of the property] will not qualify for tax exemption in the absence of legislation.” Id. at 551, 591 P.2d at 682. The rationale behind this conclusion is that inherent in “educational use” is the need for some educational activity to occur on the land and a proper determination that the land be suitable for such educational activi-ties. We held that “[l]and must be an integral part of a use for educational purposes.” Id. at 550, 591 P.2d at 681 (internal quotation marks and citation omitted).{22} Thus, the interpretation of “use” in NRA Special Contribution Fund is also in-applicable to our analysis of conservation. The fact that the land is unoccupied and unimproved in the present case does not have the similar effect of disqualifying the property from the Article VIII, Section 3 tax exemption. Whether the property is in use is completely dependent upon what the proposed use is. And, we cannot expect “use” to be characterized in the same way for different kinds of exemptions. The evi-dence required to show that the Property is

being used for purposes of conservation for the substantial benefit of the public is very different from the proof needed to show that a given property is used for religious or educational purposes.{23} Defendant appears to contend that by not specifically performing activities on the Property, Plaintiff cannot claim a chari-table use. In making this claim, Defendant ignores the fact that the way conservation benefits the public is through maintaining the Property for the public’s benefit in its natural, pristine state without any particular human activities or construction. Our hold-ing is consistent with Grace, Inc. and NRA Special Contribution Fund in that we require both (1) the land to be suitable for conserva-tion and (2) the activities performed on the land to be consistent with conservation. {24} Moreover, application of the standards advanced in Grace, Inc. and NRA Special Contribution Fund to the facts of this case demonstrates that our holding is consistent with those cases. Having concluded that conservation can be a charitable purpose, Grace, Inc. and NRA Special Contribution Fund guide us to consider (1) whether the Property is being directly, immediately, primarily, and substantially used for con-servation, and (2) whether that use of the property is promoting the object or purpose of conservation. See Grace, Inc., 97 N.M. at 260-61, 639 P.2d at 69-70 (explaining that property owned by church must be “direct[ly] and immediate[ly]” used “to pro-mote the object or purpose of the church” (internal quotation marks and citations

omitted)); NRA Special Contribution Fund, 92 N.M. at 548, 591 P.2d at 679 (explaining that “used for educational purposes” entails the “direct, immediate, primary[,] and sub-stantial” purpose of systematic instruction that confers a substantial benefit on the public (internal quotation marks omitted)). Here, the facts found by the Board and the district court and set out earlier in this Opinion satisfy both aspects of that inquiry and there is no evidence in the record to suggest that any portion of the Property was, at any time relevant to this appeal, used for any purpose other than its stated charitable purpose of conservation.{25} In sum, owing to the substantial public benefit derived from conservation of the Property, conservation in this case constitutes a charitable purpose that quali-fies the Property for a tax exemption under Article VIII, Section 3 of the New Mexico Constitution. Our holding in this regard is consistent with the legal principles that have been applied in past cases considering eligibility for tax exemption under our Con-stitution. Defendant provides no persuasive basis for a contrary holding. Accordingly, we see no basis for reversal of the district court’s order.III. CONCLUSION {26} For the reasons stated above, we affirm the district court.{27} IT IS SO ORDERED. J. MILES HANISEE, Judge

WE CONCUR:JONATHAN B. SUTIN, JudgeMICHAEL E. VIGIL, Judge





Topic Index:Appeal and Error: Interlocutory Appeal; Remand;

and Sufficient or Substantial EvidenceCivil Procedure: Class Actions; Estoppel; and Laches

Federal Law: Federal Law, GeneralGovernment: Environmental Law; and Water and Waste Systems

Judgment: Consent Decree; and Declaratory JudgmentPublic Utilities and Communications: Rate Making

Remedies: Damages, General; and Injunctions

TIERRA REALTY TRUST LLC,a New Mexico Limited Liability Company,

and all other residential wastewater and sewercustomers of the Village of Ruidoso, New Mexico,

who are similarly situated,Plaintiffs/Appellants,

versusVILLAGE OF RUIDOSO,

NEW MEXICO, a New Mexico incorporated municipality,Defendant/Appellee.

No. 31,190 (filed January 8, 2013)

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTYKAREN L. PARSONS, District Judge

opinion

J. Miles hanisee, Judge

{1} In this interlocutory appeal, we review the district court’s denial of class certifica-tion for monetary damages pursuant to Rule 1-023 NMRA. While the district court certified the proposed class of Ruidoso residential sewage and wastewater users for injunctive and declaratory relief under Rule 1-023(B)(2), it barred certification under both Rules 1-023(B)(1)(a) and (B)(3) with respect to monetary damages. We hold that the district court abused its discretion because its decision to deny full class status was not supported by substantial evidence. We therefore reverse and remand for further proceedings consistent with this Opinion.

KURT WIHLRICHARD B. COLE

CHRISTINA MUSCARELLA GOOCHKELEHER & MCLEOD, P.A.

Albuquerque, New Mexicofor Appellants

BRYAN EVANSCARLA NEUSCH WILLIAMS

ATWOOD, MALONE, TURNER& SABIN, P.A.

Roswell, New Mexicofor Appellee

I. BACKGROUND {2} The Village of Ruidoso (Defendant) entered into a consent judgment in federal court pursuant to alleged violations of the Federal Water Pollution Control Act. The judgment required Defendant to construct a new “$35 million” wastewater treatment plant in order to comply with federal pollu-tion guidelines for wastewater discharge. In an effort to procure funding for the plant, Defendant passed legislation increasing its wastewater rates for residential users. The first rate increases were incorporated into Defendant’s fee structure on November 27, 2007.{3} In response, Tierra Realty Trust, LLC (Plaintiff), a sixty-unit apartment complex for senior citizens, contacted Defendant in April 2008, to protest the rate increases. In

May 2008, those discussions resulted in an informal agreement that Plaintiff deposit funds into an interest-bearing escrow ac-count, in lieu of paying the utility fees, until a settlement or court order could be reached. Plaintiff did not deposit funds according to the agreement, and instead continued paying the disputed utility bills to Defendant until August 2009, when it timely filed the complaint in the current case. Plaintiff filed suit on behalf of itself and all other similarly situated residential wastewater and sewer customers, alleging that the rate increases were unreasonable contrary to NMSA 1978, Section 3-18-1(H) (1972) (stating that a municipality may “establish rates for services provided by municipal utilities and revenue-producing projects, including amounts which the gov-erning body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facili-ties”), and discriminatory under the equal protection clause. Plaintiff sought injunctive relief, declaratory judgment, and monetary damages.{4} Thereafter, Plaintiff filed a motion for class certification on all grounds of relief sought, which Defendant opposed, raising the affirmative defenses of voluntary pay-ment, laches, and estoppel. Plaintiff replied that the proposed class acted under duress when it continued to make payments to Defendant after the rate change. After a hearing on the matter, the district court certified the class for injunctive and declara-tory relief, but denied class certification for monetary damages. In denying certifica-tion, it concluded that although “there are numerous common issues of both fact and law[,]” “[i]ndividual issues regarding voluntary payment and the related issue of duress will predominate over the common issues,” such that “the damage[s] claim will be very difficult to manage. Plaintiff filed an application for interlocutory appeal seeking review of the district court’s order, which we granted pursuant to Rule 12-203(A) NMRA.II. DISCUSSION {5} In order to obtain certification of a class action, Plaintiff must first establish that all four prerequisites of Rule 1-023(A), com-monly referred to as numerosity, common-ality, typicality, and adequacy, are satisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997); Armijo v. Walmart Stores, Inc., 2007-NMCA-120, ¶¶ 25-26, 142 N.M. 557, 168 P.3d 129. Then, Plaintiff must show that the class is maintainable under one of several criteria set forth in Rule 1-023(B). See Amchem Prods., 521 U.S. at


614; Armijo, 2007-NMCA-120, ¶¶ 25-26. In district court, Plaintiff specifically argued that the proposed class met the criteria of Rule 1-023(B)(1)(a) or (B)(3), contending either that separate causes of action would result in inconsistent or varying adjudica-tions establishing incompatible standards of conduct for Defendant, or that common questions predominate to such a degree that a class action was superior to other methods of adjudication. With respect to damages certification, the district court determined that Plaintiff failed to satisfy both Rule 1-023(A) and (B), and therefore denied class status.{6} “We review the district court’s deci-sion to certify or not certify a class action for an abuse of discretion.” Davis v. Devon Energy Corp., 2009-NMSC-048, ¶ 12, 147 N.M. 157, 218 P.3d 75. “[A] district court abuses its discretion when it misapprehends the law or if the decision is not supported by substantial evidence.” Brooks v. Norwest Corp., 2004-NMCA-134, ¶ 7, 136 N.M. 599, 103 P.3d 39. Substantial evidence is de-fined as “relevant evidence that a reasonable mind could accept as adequate to support a conclusion.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. We resolve all disputed facts and indulge all reasonable inferences in favor of the district court’s findings. Id. “[T]he district court’s interpretation of Rule 1-023 is a question of law that is reviewed de novo, as are other questions of law.” Davis, 2009-NMSC-048, ¶ 12 (citation omitted).A. Plaintiff Met the Prerequisites

of Rule 1-023(A){7} The district court found that Plaintiff failed to meet two of the initial prerequisites under Rule 1-023(A): commonality under Rule 1-023(A)(2) and typicality under Rule 1-023(A)(3). We address each in turn, and for reasons stated below, we reverse.1. Commonality{8} To satisfy the commonality require-ment under Rule 1-023(A)(2), Plaintiff must establish that “there are questions of law or fact common to the class[.]” Despite finding that “[Plaintiff] has demonstrated that there are numerous common issues of both fact and law,” the district court deter-mined that commonality was not present. In so ruling, it found that “the ramifications of the affirmative defense of voluntary payment and the related issue of duress” rendered “[t]he class regarding the damage claim . . . very difficult to manage.” We agree with Plaintiff’s contention that the district court “applied an incorrect legal standard[,] requir[ing] reversal.” In this regard, we note that Defendant does not argue otherwise

on appeal. See Santa Fe Pac. Gold Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 41, 143 N.M. 215, 175 P.3d 309 (stating that where a party declines to address an issue in its answer brief, we treat the party’s silence as a concession on the issue).{9} In ruling as it did, it appears that the district court interjected the criteria under Rule 1-023(B)(3) into the commonality pre-requisite of Rule 1-023(A) by considering issues of management and predominance. Romero v. Philip Morris Inc., 2005-NMCA-035, ¶ 9, 137 N.M. 229, 233, 109 P.3d 768 (“The[] Rule 1-023(B)(3) prerequisites are commonly referred to as the predominance and superiority requirements . . . . [T]he primary focus of the superiority requirement is the suitability of the class action for man-agement of the litigation.”). Nonetheless, “[t]he commonality requirement of Rule 1-023(A)(2) is relatively easily met because it is deemed to require only that a single issue be common to the class.” Berry v. Fed. Kemper Life Assurance Co., 2004-NMCA-116, ¶ 42, 136 N.M. 454, 99 P.3d 1166. We note that “the commonality requirement is usually subsumed by the predominance requirement of Rule 1-023(B)(3),” and not the other way around. Id. {10} The district court should therefore have found that the commonality prerequi-site was satisfied based on its finding “that there are numerous common issues of both fact and law.” That finding is supported by substantial evidence, in that the central threshold issue of the class, whether for injunctive or monetary relief, is whether Defendant’s rates were unreasonable. We thus reverse the district court and conclude that commonality has been satisfied.2. Typicality{11} In determining whether “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” Rule 1-023(A)(3), we assess the following: “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct.” Armijo, 2007-NMCA-120, ¶ 28 (internal quotation marks and citation omitted). This inquiry is meant to “gauge in general how well the proposed class representative’s case matches the class factual allegations and legal theories.” Berry, 2004-NMCA-116, ¶ 43. But “[t]he fit need not be perfect.” Id. In fact, our caselaw holds that unless that fit varies so greatly as to create a conflict between the named parties and the class, “varying fact patterns in individual claims will not usually defeat typicality.” Id.

{12} In this case, the district court made the following pertinent findings:

14. If the sewer and wastewa-ter rates charged to [Plaintiff] are not reasonable, then the sewer and wastewater rates charged to other members of the class are similarly unreasonable, and thus the unreasonableness of rates paid by [Plaintiff] is typical of the un-reasonableness of rates paid by the class. 15. . . . [Plaintiff]’s equal pro-tection claim is typical of that of the class. . . . 18. The Village . . . treats [Plaintiff] as a typical residential sewer and wastewater customer.

Despite those findings, the court concluded that Plaintiff failed to establish the typicality prerequisite for the potential class’ monetary damages claims “based upon the evidence presented, regarding the definition [of ] the class as containing those customers who have city water and those who do not; and, further concerning [Defendant’s] affirma-tive defenses of voluntary payment, and the related issue of duress.”{13} Yet, neither of those issues impacts the relevant criteria for typicality. Each member of the class, with or without city water, has the same or similar asserted in-jury: payment of unreasonable sewer and wastewater rates to Defendant. See Armijo, 2007-NMCA-120, ¶ 28 (typicality requires determination of “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct.” (internal quotation marks and citation omitted)). The district court found that the unreasonableness of the rates charged was typical among class members. It expressly found that although “[s]ewer and wastewater rates charged to [Defendant’s] residential customers are not necessarily uniform, depending on whether the customers also use[] Municipal water,” the “distinction should not affect, in itself, the certification of the requested class ac-tion.” Similarly, Defendant’s conduct in charging the rates was “not unique to the named plaintiffs.” Rather, Defendant’s rates were uniform among service classes, as required by law. See Apodaca v. Wilson, 86 N.M. 516, 524, 525 P.2d 876, 884 (1974) (holding that a municipality’s sewer and wastewater rates must be uniform and non-discriminatory among customers of the same class of services). Should Defen-dant’s rates be determined unreasonable


or discriminatory with respect to Plaintiff, other class members will also be deemed to have been injured by the unreasonable rates. See Armijo, 2007-NMCA-120, ¶ 28 (stating that in “determining whether the typicality prerequisite is met we ask . . . whether other class members have been injured by the same conduct” (internal quotation marks and citation omitted)).{14} The fact that Plaintiff and other class members with municipal water service pay a slightly different rate than class members without municipal water service and that affirmative defenses may affect the class members’ entitlement to damages differ-ently, does not impact the typicality of the class claims. The representative party’s claim does not have to be identical to the claims possessed by every class member. See Starko v. Presbyterian Health Plan, Inc., 2012-NMCA-053 ¶ 106, 276 P.3d 252 (affirming the district court’s finding of typicality as a textbook example despite differences as to damages), cert. granted, 2012-NMCERT-003, __P.3d __ (Nos. 33,383 & 33,384, March 30, 2012); see also Armijo, 2007-NMCA-120, ¶ 30 (affirming the district court’s finding of typicality de-spite unique work environments of plaintiffs and factual differences between individual claims). The slight difference in rates among classes of residential sewer and wastewater users and the impact of any affirmative de-fenses do “not change the fact that the basic factual elements of the named [plaintiffs’] claims were similar to that of the rest of the class.” Id. Essentially, Plaintiff alleges that Defendant set unreasonable and discrimi-natory rates and Plaintiff is entitled to any amount overpaid. The same can be said of all class members. We therefore reverse the district court’s determination of typicality because it applied an overly strict typicality standard.{15} Having reversed the district court on commonality and typicality, we conclude that Plaintiff has satisfied all the prerequi-sites listed under Rule 1-023(A) because the other elements—numerosity and ad-equacy—were found by the district court to be satisfied. We now address whether the damages class action was maintainable under Rule 1-023(B). B. The District Court Erred in

Determining that the Class Action for Damages Was Not Maintainable Under Rule 1-023(B)

{16} Plaintiff must not only meet the basic requirements of Rule 1-023(A), but it must additionally demonstrate that the class ac-tion is maintainable under Subsection (B). Armijo, 2007-NMCA-120, ¶¶ 25-26. In

the district court, Plaintiff argued that the class action for monetary damages could be maintained under Rules 1-023(B)(1)(a) or (B)(3). The district court concluded that Plaintiff failed to satisfy either of these prongs under Subsection (B). We address each subsection in turn. 1. Rule 1-023(B)(1)(a){17} To qualify as a class under Rule 1-023(B)(1)(a), Plaintiff must establish that “the prosecution of separate actions by or against individual members of the class would create a risk of . . . inconsistent or varying adjudications with respect to indi-vidual members of the class which would establish incompatible standards of conduct for the party opposing the class . . . .” Plain-tiff maintains that denial of damages class certification would allow individual suits to produce inconsistent damage awards based on the application of various affirmative defenses, and that such divergent awards would violate Defendant’s obligation to pro-vide uniform utility rates among customers of the same class of services. See Apodaca, 86 N.M. at 524, 525 P.2d at 884 (establishing uniformity of utility rates to like-situated customers). {18} We disagree with Plaintiff as a matter of law because the possibility of inconsistent damage awards is an insufficient rationale for maintaining a class action under Rule 1-023(B)(1)(a). By its express terms, the rule requires more than merely “inconsistent or varying adjudications.” Rule 1-023(B)(1)(a). The inconsistency must establish “in-compatible standards of conduct,” id., that “would impair the opposing party’s ability to pursue a uniform continuing course of conduct.” 7AA Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and Procedure § 1773 (3d ed. 2012) (footnote omitted); see also Mark A. Perry & Rachel S. Brass, “Rule 23(B)(2) Certification of Employment Class Actions: A Return to First Principles,” 65 N.Y.U. Ann. Surv. Am. L. 681, 686-687 (2010) (stating that under Rule 1-023(b)(1), “a class could be certified if . . . a decision on the merits would inescapably . . . alter the substance of the rights of others having similar claims.” (alteration in the original) (internal quotation marks and citation omit-ted)).{19} The inconsistencies in adjudication and the incompatible standards must be so cumbersome “that individual adjudica-tions would be impossible or unworkable.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011). Certification under Rule 1-023(B)(1)(a) requires more “than a risk that separate judgments would oblige

the opposing party to pay damages to some class members but not to others, or to pay them different amounts.” Zinser v. Accufix Research Inst. Inc., 253 F.3d 1180, 1193 (9th Cir. 2001) (internal quotation marks and citation omitted) (analyzing the federal equivalent of Rule 1-023(B)); see In re Ben-dectin Prods. Liab. Litig., 749 F.2d 300, 305 (6th Cir. 1984). Furthermore, when analyz-ing whether a class action for damages could be certified under the federal equivalent of Rule 1-023(B), the United States Supreme Court explained why class certification for monetary damages under Subsections (B)(1) and (B)(2) was inappropriate for practical, policy, and due process reasons. Dukes, 131 S. Ct. 2541, 2558-59. The court concluded that, “it [is] clear that individualized mon-etary claims belong in Rule 23(b)(3).” Id. at 2558; see Zinser, 253 F.3d at 1193 (stating that certification under Rule 23(b)(1)(A) is generally “not appropriate in an action for damages”).{20} Here, Plaintiff solely relies on the argument that without class certification, different customers would receive incon-sistent damage awards. Plaintiff asserts that “awarding damages to [Plaintiff] or to any other individual residential sewer and wastewater customer of [Defendant] would result in discriminatory rates being charged in favor of the customer receiving damages.” We disagree because Defendant’s legal obli-gation to set uniform rates among defined classes of customers does not impede its ability to contest refunds based on customer knowledge and behavior. And, as explained above, mere inconsistent damage awards are insufficient to show that individual adjudi-cations would be impossible or unworkable. Inconsistent damage awards would not im-pair Defendant’s ability to pursue a uniform continuing course of conduct in the future, as damages do not provide prospective relief. Defendant’s continuing course of conduct would only be affected by the declaratory and injunctive relief sought by Plaintiff, for which class certification has already been granted. Furthermore, as explained by the United States Supreme Court, damages class certification is best sought under Subsection (B)(3), not (B)(1)(a).{21} For these reasons, we affirm the court in concluding that class certification for monetary damages in this case is not ap-propriate under Rule 1-023(B)(1)(a). 2. Rule 1-023(B)(3){22} Alternatively, Plaintiff moved for class certification for monetary damages under Rule 1-023(B)(3). Rule 1-023(B)(3) re-quires that “questions of law or fact common to the members of the class predominate


over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 1-023(B)(3) lists the following matters as pertinent to those two findings:

(a) the interest of members of the class in individually control-ling the prosecution or defense of separate actions;

(b) the extent and nature of any litigation concerning the con-troversy already commenced by or against members of the class;

(c) the desirability or undesir-ability of concentrating the litigation of the claims in the particular forum;

(d) the difficulties likely to be encountered in [its] manage-ment. . . .

There are two competing policies embedded within these class action rules. The first is “to provide a forum for plaintiffs with small claims who otherwise would be without any practical remedy.” Brooks, 2004-NMCA-134, ¶ 9. The second embodies the goal that any class action be efficient and “a fair method to all parties, including absent class members and defendants.” Id. For that reason, “dismissal is warranted where indi-vidual issues predominate to make the class action unmanageable, even if no alternative remedy exists.” Id. ¶ 34. {23} Due to those competing policies, district courts “must engage in a rigorous analysis of whether the Rule’s requirements have actually been met.” Id. ¶ 9. It must “understand the substantive law, proof elements of, and defenses to the asserted cause of action to properly assess whether the certification criteria are met.” Id. ¶ 31. We have even encouraged the district court to at times “probe behind the plead-ings and forecast what kind of evidence may be required or allowed at trial[,]” when the issues are not plain enough from the pleadings. Id. ¶ 9. We have warned, however, that “plaintiffs are not required to prove their case at the certification stage” and “certification is not an appropriate time to examine the merits.” Id. Likewise, defendants are not required to prove their affirmative defenses at the certification stage, but merely to demonstrate that they are well pled and are suitable for consideration by the court. {24} The district court denied Plaintiff’s motion for damages class certification based upon Defendant’s contention that individual issues predominated in the class

as a result of Defendant’s asserted affirmative defenses of voluntary payment, estoppel, and latches, and the related issue of duress. Its non-certification decision was specifi-cally based on the following findings: (1) “Individual inquiries would have to be made with regard to each residential sewer customer to determine whether he, she, or it, voluntarily agreed to pay the charges for wastewater and sewage services”; (2) “Duress cannot be inferred or found on a class wide basis; rather it is a factual determination that would have to be made as to each and every residential wastewater and sewage user”; and (3) “individual issues [relevant to estoppel and laches] will dominate any common is-sues of fact related to claims for monetary damages.” Accordingly, the district court concluded that “[t]he requirement of pre-dominance ha[d] not been met.” The court did not enter a finding regarding whether the class action was superior to other litiga-tion methods. {25} We note that, despite its denial of damages class certification, the district court made several important findings favorable to certification, which relate directly to three of the four factors under Rule 1-023(B)(3). Specifically, the court found that:

5. The damages claims of individual class members are not significant enough to warrant individual suits by each class mem-ber[.] . . . . 38. Despite the Plaintiff ’s request to other individuals to join the litigation, no unnamed class members have come forward expressing any interest in individu-ally controlling the prosecution of their claims. 39. No other litigation has been commenced by or against any unnamed members of the class concerning the issues involved in this case. It is appropriate that the issues presented in this case be ad-dressed in this litigation, because the majority of the parties, wit-nesses, and documents necessary to prosecute and defend the claims raised in this litigation are in this district and because the Court has both personal and subject matter jurisdiction over the parties and issues presented in this case.

{26} Plaintiff challenges the district court’s denial of damages class certification under Rule 1-023(B)(3), arguing that it is unsup-ported by substantial evidence. Plaintiff also

contends that the district court improperly relied on Defendant’s assertion of affirma-tive defenses in denying certification, and erroneously applied the voluntary payment rule to this case.{27} Initially, we address Plaintiff’s conten-tion that the voluntary payment rule should not apply and a right-to-refund should be implied based upon the municipality’s ob-ligation to charge reasonable rates pursuant to Section 3-18-1(H). “It is well established that in the absence of a statute permitting a recovery, [fees] paid voluntarily and without compulsion cannot be recovered.” Occidental Life of California v. State, 92 N.M. 433, 433, 589 P.2d 673, 673 (1979); Territory v. Newhall, 15 N.M. 141, 103 P. 982 (1909) overruled in part by State ex rel. Callaway v. Axtell, 74 N.M. 339, 393 P.2d 451 (1964) (acknowledging an identical rule in territorial times). Separately, Section 3-18-1(H) does not expressly include any right-to-refund for the payment of excessive rates. See § 3-18-1(H) (stating merely that a municipality may “establish rates for services provided by municipal utilities . . . , includ-ing amounts which the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities”). And, because the Legislature is adept at writing right-to-refund statutes when it intends to do so, we will not imply one here. See, e.g., NMSA 1978, Section 7-1-26(A) (2007) (explicitly creating a right to refund with regard to the payment of state taxes when a “person . . . believes that an amount of tax has been paid . . . in excess of that for which the person was liable”). We therefore decline to embrace Plaintiff’s request that we discard the voluntary payment rule and replace it with a right-to-refund not legislatively enacted. {28} We now turn our attention to whether the district court’s Rule 1-023(B)(3) analysis is supported by substantial evidence. In making a Rule 1-023(B) determination, the district court should consider an-ticipated affirmative defenses to “forecast what kind of evidence may be required or allowed at trial.” Brooks, 2004-NMCA-134, ¶ 9. But the district court’s findings with regard to these defenses, including voluntary payment, must be supported by substantial evidence in the record. See id. ¶¶ 36-47 (searching the record for substantial evidence that individual issues predominated). Here, the district court did not explain what individual issues it foresaw would arise in assessing affirmative defenses, nor did it support its conclusions with factual evidence from the record. “Although


failure to be specific is not necessarily reversible error, it is preferable for the court to identify the issues and ‘place on record the circumstances and factors that were crucial to [its] determination . . . . so that counsel and the reviewing court will know and be in a position to evaluate the soundness of [its] decision.’” Id. ¶ 36 (alterations in original). Similarly, “it would have been helpful to identify . . . [the] facts it relied on in reaching the decision.” Id. Nonetheless, we have scoured the record independently in an effort to uncover factual support for the district court’s findings. We have been unable to do so, and we must therefore conclude that the district court has abused its discretion.{29} First, the record fails to support a con-clusion that individual inquiries predomi-nate with regard to Defendant’s defense of voluntary payment and Plaintiff’s argument of duress. Duress is defined as an “inten-tional action by one person presenting such a serious business or financial loss or injury to the other person to the contract that he or she has no reasonable choice or alterna-tive. . . .” UJI 13-838 NMRA. The only element of that definition that is contested here is whether the potential class had any “reasonable choice or alternative” to paying the increased rates. There is ample evidence in the record that Defendant intention-ally increased its rates after consulting with government advisors in order to pay for the mandated wastewater treatment plant and to become financially solvent. Additionally, the district court found below that “[a] residence without water, sewer or wastewater service is unsanitary, unsafe, and unhealthy and, thus, is inhabitable.” The district court also found that “Defendant has terminated water service to residential customers who fail to pay for their sewer and wastewater services.” Neither finding is challenged on appeal and therefore the increase in rates, if unreasonable, presents a “serious business or financial loss or injury” to Plaintiff.{30} With respect to the “reasonable alter-native” element of duress, Defendant argued to the district court that the proposed class could have filed “an injunction or temporary restraining order to avoid any purported injury by refusing to pay the sewage and wastewater fees.” Defendant pointed out that Plaintiff engaged in negotiations with Defendant, and Plaintiff could have simply paid the disputed amounts into the escrow account agreed upon by the parties to avoid loss of services. That argument is supported by the district court’s finding that “the ne-gotiations between Plaintiff and Defendant regarding the claim of duress are unique to

Plaintiff.” Even so, two sets of alternatives to be applied among two sub-groups of a class hardly seems like an unmanageable number of individual determinations for the district court to make.{31} In addition, it has yet to be deter-mined whether an injunction or restraining order can be considered a feasible legal rem-edy available to the proposed class. Other than termination being a possible risk, the record is devoid of any specific evidence of Defendant’s policy for terminating services. It is possible that termination results im-mediately after a customer refuses to pay, or that the process lasts several months. Regardless, the question appears to be a common one across the proposed class. We thus conclude that the district court failed to support its finding that individual issues will predominate regarding the voluntary payment defense and issue of duress with substantial evidence. To the contrary, the record indicates to us the distinct possibility that questions common to the class regard-ing these matters predominate.{32} Lastly, the district court’s reliance on the remaining affirmative defenses of estoppel and laches to deny class status is similarly unavailing. The only factually supported difference among the class, with respect to these two defenses, is that Plaintiff engaged in negotiations with Defendant and then did not avail itself of the resolu-tion. Furthermore, all three elements of equitable estoppel, and three of the four elements necessary to prove laches, turn on Defendant’s knowledge, conduct, and prejudice. See Mayfield Smithson Enters. v. Com-Quip, Inc., 120 N.M. 9, 12, 896 P.2d 1156, 1159 (1995) (listing the elements of estoppel); and Garcia v. Garcia, 111 N.M. 581, 588, 808 P.2d 31, 38 (1991) (listing the elements of laches). These defenses both involve questions regarding delays in bring-ing suit, notice of Defendant’s conduct, and the opportunity to institute suit. Id. Because there is no evidence in the record that any of the class members, other than Plaintiff, ever asserted their rights against Defendant, all of these issues could be determined on a class-wide basis, with the single exception of Plaintiff’s initially negotiated intervening manner of payment. In addition, changes in the utility bills tendered notice uniformly to the potential class, and Plaintiff never argued below that any member of the class was mistaken as to any fact regarding the rate changes prior to paying the rates. And finally, the opportunity to institute suit is the same determination to be made under the duress inquiry we discussed above. Likewise, there is nothing in the record to

suggest that any class member’s opportunity to institute a suit differed amongst the class. {33} Thus, there is no basis, either in law or in the record, that supports the con-clusion that application of the voluntary payment rule, duress, estoppel, or latches would require individual inquiries, let alone individual inquiries voluminous enough to overwhelm the common issues in this case. The record indicates that the class is simply a uniform group of customers who paid the same sewer and wastewater rates after receiving uniform class-wide notice of pertinent increases. Furthermore, the list of users, their payment history, and their utility bills appear to be easily ascertainable from an electronic database.{34} Based on the dearth of evidence in the record to support the presence of indi-vidual inquiries, we must reverse the district court’s determination on predominance. We conclude that questions of law or fact common to the members of the class with regard to damages in this case predominate over any questions affecting only individual members. Because the district court did not enter a finding as to whether the proposed “class action is superior to other available methods for the fair and efficient adjudica-tion of the controversy[,]” we remand for it to do so. See Rule 1-023(B)(3).C. The Remaining Arguments Are

Improperly Presented {35} Defendant devotes well over half of its answer brief to issues of sovereign im-munity and the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (1976, as amended through 2010). Those arguments, however, were presented to and denied by the district court in the context of a motion to dismiss. Our grant of review in this case is strictly confined by our Appellate Rules to the consideration of the district court’s class certification. See Rule 1-023(F) (“The Court of Appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification . . . .”). Under Rule 1-023(F), our interlocu-tory review is limited to the district court’s assessment of Rule 1-023(A)-(B), which sets forth the certification criteria. Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 30, 139 N.M. 625, 136 P.3d 1035 (analogizing to the federal interpretation that has been “scrupulous about limiting [Fed. R. Civ. P.] 23(f ) inquiries to class certification issues” (alteration in original) (internal quotation marks and citation omitted)). Because De-fendant did not seek interlocutory review of the motion to dismiss, we decline to address the issue within the narrow context of our review of class certification decisions


pursuant to Rule 1-023(F) and Murken, 2006-NMCA-064, ¶ 30.{36} Plaintiff also failed to adhere to our appellate rules by requesting our review of issues not “fairly invoked” before the district court. See Rule 12-216 NMRA. Plaintiff argues in its brief-and-chief that we should advise the district court on remand “that monetary damages are permissible in a class [action] certified under Rule 1-023(B)(2) NMRA[.]” It contends that “the [d]istrict [c]ourt did not address whether [Plaintiff] could pursue monetary damages under Rule 1-023(B)(2).” Yet, the court never addressed the issue because Plaintiff never presented the argument below. {37} In fact, Plaintiff explained in its mo-tion for class certification that “[Plaintiff] needs to satisfy Rule 1-023(B)(2) . . . in order for this case to be certified as a class action on the claims for declaratory and injunctive relief[,]” and “must satisfy either Rule 1-023(B)(1) . . . or Rule 1-023(B)(3) . . . for the class to maintain an action for damages.” (Emphasis added.) It directed the district court to Davis, 2009-NMSC-048, ¶ 25, for the proposition that “certification of

a plaintiff’s claim for declaratory relief under Rule 1-023(B)(2) . . . [is] proper despite the presence of a class claim for damages.” (Emphasis added.) And under Plaintiff’s analysis of Rule 1-023(B), it explained that “if the class prevails on the merits of its claim for injunctive and declaratory relief, the Court will be able to . . . declar[e] that the existing rate structure is invalid[,] . . . what are permissible rates, . . . [and] provide prospective [injunctive] relief to the entire class.”{38} Nowhere in any of the pleadings be-fore the district court did Plaintiff request monetary damages under Rule 1-023(B)(2) or explain that relief pursuant to Rule 1-023(B)(2) could include monetary dam-ages. Rather, Plaintiff consistently main-tained its view that “[Plaintiff] must satisfy either Rule 1-023(B)(1) or 1-023(B)(3) for the class to maintain an action for damages,” and requested only injunctive and declara-tory relief pursuant to Rule 1-023(B)(2). Because Plaintiff did not request monetary damages under Rule 1-023(B)(2) before the district court, we refuse to consider unpre-served arguments. See Rule 12-216(A) (“To

preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked . . . .”).IV. CONCLUSION{39} For the reasons stated above, we re-verse the district court’s determinations as to Rule 1-023(A)(2) (commonality), and Rule 1-023(A)(3) (typicality), and hold that Plaintiff has established that the require-ments of Rule 1-023(A) are satisfied. We affirm the district court’s denial of the class under Rule 1-023(B)(1). We reverse the court’s denial of damages class certification under Rule 1-023(B)(3), and conclude that predominance has been satisfied by the class. Lastly, we remand for findings regarding superiority under Rule 1-023(B)(3), which the court failed to consider when it disposed of the motion for class certification based upon its predominance finding.{40} IT IS SO ORDERED. J. MILES HANISEE, Judge

WE CONCUR:MICHAEL E. VIGIL, JudgeLINDA M. VANZI, Judge





Topic Index:Criminal Law: Controlled Substances

Criminal Procedure: Conditional Discharge; Deferred Sentence; and Probation

Statutes: Rule of Construction

STATE OF NEW MEXICO, Plaintiff-Appellant,

versusRYAN HARRIS,

Defendant-Appellee.No. 30,512 (filed January 16, 2013)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYREED S. SHEPPARD, District Judge

opinion

Michael d. BustaMante, Judge

{1} The joint and stipulated motion for publication filed by the State and Defendant is granted. The Memorandum Opinion filed in this case on October 26, 2012, is withdrawn and this Formal Opinion is substituted in its place. {2} The State appeals the dismissal of a felon in possession charge against De-fendant. The district court dismissed the charge on the ground that Defendant’s conditional discharge entered in 2006 had not been revoked, and therefore could not serve as the predicate felony for the current felon in possession charge. On appeal, the State argues that a conditional discharge is a “conviction” for purposes of satisfying the definition of the felon in possession statute. Alternatively, the State argues that the district court erred in dismissing the charge because the conditional discharge order had been revoked. We affirm based on our case law holding that a conditional discharge order is not a “conviction,” and the fact that the conditional discharge order in this case was not revoked.


MARGARET MCLEANAssistant Attorney General


BENNETT J. BAURActing Chief Public Defender

KARL ERICH MARTELLAssistant Appellate Defender


DISCUSSION{3} The felon in possession statute defines a “felon” as “a person convicted of a felony offense.” NMSA 1978, § 30-7-16(C)(2) (2001). Prior to 1993, when the conditional discharge option was made available for first-time felons, Defendant’s guilty plea would have been considered a conviction because a conviction was considered a “find-ing of guilt, even before formal adjudication by the court, much less before sentencing.” State v. Mondragon, 107 N.M. 421, 424, 759 P.2d 1003, 1006 (Ct. App. 1988). However, as discussed in State v. Herbstman, 1999-NMCA-014, ¶ 20, 126 N.M. 683, 974 P.2d 177, the 1993 enactment of the conditional discharge statute carved out an exception to that general rule such that a conditional discharge order could not serve as a “conviction” unless a particular statute expressly so stated. Cf. NMSA 1978, § 31-18-17(A) (2003) (stating that for habitual offender enhancement a conditional dis-charge is considered a prior felony convic-tion). Subsequent case law has reaffirmed this principle. See, e.g., In re Treinen, 2006-NMSC-013, ¶ 4, 139 N.M. 318, 131 P.3d 1282; State v. Fairbanks, 2004-NMCA-005, ¶ 8, 134 N.M. 783, 82 P.3d 954.

{4} The State argues that either Defendant’s conditional discharge was revoked by opera-tion of law or the failure to order it revoked was a ministerial oversight. In this case, a conditional discharge order was entered in October 2006. Consistent with NMSA 1978, Section 31-20-13 (1994), the order was entered without an adjudication of guilt and with a sentencing term of two years and six months. The plea and disposition agree-ment acknowledged Defendant’s potential incarceration. In June 2007, Defendant’s probation was revoked, and he was placed back on probation. In February 2008, Defendant’s probation was revoked again, but this time the district court ordered that Defendant be incarcerated for 182 days. The district court’s order did not state that the conditional discharge was revoked; to the contrary, the box for revoking conditional discharge was unchecked. {5} The State argues that the failure to mark the box was a ministerial oversight. The transcript of the sentencing hearing does not support the State’s contention. The parties announced to the district court that they had reached an agreement on the vio-lation: Defendant would serve six months in jail. The court accepted this agreement without any discussion concerning the revo-cation of the conditional discharge order. In light of the complete absence of any discus-sion about exercising the court’s discretion to revoke the conditional discharge, we reject the claim that the unchecked box was a ministerial oversight.{6} The State also argues that the con-ditional discharge order was revoked by operation of law. First, the State maintains that a conditional discharge is a form of a deferred sentence and, once Defendant was incarcerated, the conditional discharge was revoked as a matter of law. The Legislature enacted the conditional discharge statute as an alternative to a deferred sentence, however, in that there is no adjudication of guilt unless the court exercises its discretion to revoke the conditional discharge order under Section 31-20-13(B). See Herbstman, 1999-NMCA-014, ¶ 20. To equate a con-ditional discharge with a deferred sentence would render the statute meaningless, a point emphasized in Herbstman. Id.{7} The State is correct that the conditional discharge statute contemplates that a de-fendant will be subject to probation during his sentence. See § 31-20-13(A). However, we are not limited to a consideration of Section 31-20-13(A). The statute provides the district court with broad sentencing discretion upon a probation violation. See § 31-20-13(B) (“If the person violates any of


the conditions of probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law.”). It is a basic rule of statutory construction that the use of the word “may,” as opposed to “shall,” confers discretion with the court. See State v. Donahoo, 2006-NMCA-147, ¶ 7, 140 N.M. 788, 149 P.3d 104. {8} In this case, the record indicates that the district court did not choose to enter an adjudication of guilt. As we have stated, we are not inclined to speculate that this was an oversight given the lack of any discussion on the matter at the sentencing hearing and the absence of any indication to do so in the court’s order revoking probation. Cf. State v. Lohberger, 2008-NMSC-033, ¶ 22, 144 N.M. 297, 187 P.3d 162 (noting that a lack of certainty in court orders should not be at the expense of important rights). Oral com-ments by a judge may be used to clarify a written ruling by the court, and in this case the judge’s silence reaffirms the written order and its inaction on the revocation issue. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874, 881 (1985) (stating that a district court’s verbal comments can be used to clarify written findings). {9} The State refers us to Vives v. Verzino, 2009-NMCA-083, ¶ 15, 146 N.M. 673, 213 P.3d 823, where we examined a Florida sentencing procedure and concluded that it was not analogous to a conditional discharge

because the defendant had been sentenced to jail as part of his punishment. We ob-served that under Section 31-20-13(A), a defendant is placed on probation. Vives, 2009-NMCA-083, ¶ 15. In the current case, however, we are guided by the language of Section 31-20-13(B), which gives a sentenc-ing court broad discretion after probation has been revoked. Defendant’s plea specifi-cally authorized the district court to impose a period of incarceration in the event of a probation violation. Therefore, even if Sec-tion 30-20-13 does not itself contemplate incarceration, the district court, in its broad sentencing discretion, could conclude that the conditional discharge would not be revoked, but Defendant would nevertheless be punished according to the terms of the plea agreement he had with the State, which permitted incarceration upon a probation violation. See State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994) (observing the sentencing court’s broad discretion to apply the unique terms of a plea agree-ment, which may deviate from the statutory punishment that would otherwise occur). Finally, the State relies on State v. Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33 (Ct. App. 1995), where the defendant had included a conditional discharge as a prior felony in his plea agreement. Handa does not support the State’s argument, because it is an “invit[ed] error” case. We held that

the defendant could not complain about the erroneous inclusion of the conditional discharge because he himself had suggested it. Id. {10} We acknowledge that Defendant did not successfully complete the term of his probation. See Fairbanks, 2004-NMCA-005, ¶ 10 (noting that “the successful completion of probation under the terms of a conditional discharge results in the eradication of the guilty plea or verdict and there is no conviction”). However, Sec-tion 31-20-13(B) gives the district court the discretion to revoke or not revoke the conditional discharge after a finding of non-compliance. In the absence of any oral or written indication that the district court intended to revoke the conditional discharge order, the record in this case supports the view that the conditional discharge order was not revoked. Instead, the court crafted a punishment permitted by the underlying plea agreement. CONCLUSION{11} For the reasons stated above, we affirm the district court’s dismissal of the felon in possession charge.{12} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE,

Judge

WE CONCUR:MICHAEL E. VIGIL, JudgeLINDA M. VANZI, Judge





Topic Index:Appeal and Error: Standard of Review

Constitutional Law: Exclusionary Rule; Fourth Amendment; Interstitial Analysis; New Mexico Constitution, General; and Suppression pf Evidence

Criminal Law: Controlled SubstancesCriminal Procedure: Exigent Circumstances; Reasonable Suspicion;

and Search and Seizure

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusPEBBLES JEAN-PAUL,

Defendant-Appellant.No. 31,179 (filed January 22, 2013)

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTYSTEPHEN K. QUINN, District Judge

opinion

JaMes J. Wechsler, Judge

{1} Absent various exceptions, Article II, Section 10 of the New Mexico Constitu-tion requires officers executing a warrant at a premises to knock and announce their presence and authority and then wait a reasonable time to permit those inside to voluntarily open the door. Police executing a search warrant at Defendant Pebbles Jean-Paul’s home knocked and announced their presence and authority, waited one second, and when they received no response, forcibly entered her home with a battering ram. They believed that this short wait was authorized by the fact that a man had been stand-ing near the window, looking out in the direction of the police as they approached the home and had moved away from that position as the police reached the door. We conclude that the mere one-second wait was not justified by either the exigent circum-stances exception or the futility exception to the knock-and-announce requirement. Ad-


Santa Fe, New MexicoMARGARET MCLEAN

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

JACQUELINE L. COOPERChief Public Defender

KATHLEEN T. BALDRIDGEAssistant Appellate Defender


ditionally, the one-second wait was simply too short to permit the occupants either to answer the door or from which to infer that they had refused to voluntarily admit the police. Accordingly, we reverse the district court’s denial of Defendant’s motion to suppress.BACKGROUND{2} On September 22, 2009, several of-ficers went to Defendant’s home in order to execute a search warrant for controlled substances. The officers parked away from the home and approached it from an inconspicuous direction. As the officers approached, they observed someone in the residence, later identified as Michael Dick-son, approximately three to five feet from the window, facing out. The officers were approximately eight feet from the window at that point, but they could not say that Dickson made eye contact with them or that he actually saw them. Dickson was ap-proximately five to six feet from the front door of the residence. An officer described Dickson as being “seen” at the window and

then “not seen,” but the officer did not state that Dickson ran or hid, only that the officer no longer saw him. The officers knocked on the door and announced “Police depart-ment; search warrant!” The officers’ belt tape recorded the fact that approximately four seconds after the officers began knocking, and approximately one second after the offi-cers completed the phrase “search warrant,” the officers struck the door with a battering ram. Once inside, the officers found drugs and drug paraphernalia.{3} Defendant was charged with drug traf-ficking by distribution and possession of drug paraphernalia. She moved to suppress the evidence obtained during the execution of the search warrant, arguing that by wait-ing such a short period before forcibly en-tering, the officers did not comply with the constitutional requirement that they knock and announce their presence and authority and then wait a reasonable time for an an-swer prior to forcibly entering the premises and that no exceptions existed that would have permitted the police to dispense with the requirement. The district court denied the motion, and Defendant entered into a conditional plea agreement under which she pleaded guilty to the trafficking charge, reserving her right to appeal the denial of her motion to suppress.STANDARD OF REVIEW{4} Defendant contends that the district court erred by denying her motion to suppress the evidence obtained during the execution of the warrant. We review the dis-trict court’s suppression ruling to determine “whether the law was correctly applied to the facts, viewing them in a manner most favor-able to the prevailing party.” State v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165 (internal quotation marks and cita-tion omitted). We defer to the district court’s factual findings so long as they are supported by substantial evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Gonzales, 2010-NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 (alterations, internal quotation marks, and citation omitted). After defer-ring to the district court’s factual findings, we review de novo the constitutional ques-tion of whether the search was reasonable. Id. In the district court, it was the State’s burden to demonstrate the reasonableness of the execution of the search warrant. State v. Ulibarri, 2010-NMCA-084, ¶ 12, 148 N.M. 576, 240 P.3d 1050, cert. denied, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288.


INTERSTITIAL APPROACH{5} Defendant’s motion was brought pursu-ant to both the federal and state constitu-tions and, on appeal, her arguments rely on both the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Article II, Section 10 provides that “[t]he people shall be secure in their persons, pa-pers, homes and effects, from unreasonable searches and seizures” and is an analogue of the Fourth Amendment. “While the federal constitution provides a minimum level of protection below which the states may not descend, states remain free to provide greater protection.” State v. Javier M., 2001-NMSC-030, ¶ 24, 131 N.M. 1, 33 P.3d 1 (alteration, internal quotation marks, and citation omitted)). Under New Mexico’s interstitial approach to state con-stitutional interpretation, this Court should only reach the state constitutional question if the federal constitution does not provide the protection sought by the party raising the issue. See State v. Gomez, 1997-NMSC-006, ¶¶ 19-20, 122 N.M. 777, 932 P.2d 1. When applying the interstitial approach, “the court asks first whether the right be-ing asserted is protected under the federal constitution.” Id. ¶ 19. “If it is, then the state constitutional claim is not reached.” Id. “If it is not, then the state constitution is examined.” Id. We must therefore decide whether the federal constitution would of-fer Defendant any protection in this case prior to reaching her claim under the state constitution.{6} In the absence of certain exceptions, the Fourth Amendment requires police who are executing a warrant to announce their pres-ence and authority and to wait a reasonable time for an occupant to answer before enter-ing the premises. Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995). This rule, com-monly called the knock-and-announce rule, is also a requirement of Article II, Section 10 of the New Mexico Constitution. State v. Attaway, 117 N.M. 141, 149-50, 870 P.2d 103, 111-12 (1994). But while both the federal and state constitutions include the knock-and-announce requirement, the remedies for a violation under the two constitutions are not the same. In Hudson v. Michigan, 547 U.S. 586, 591-94 (2006), the Supreme Court held that if the police fail to adhere to the knock-and-announce rule, the Fourth Amendment does not require suppression of any evidence obtained dur-ing the search as a remedy for the violation. Hudson reasoned that “but for” causation is a necessary condition for suppression and that a violation of the knock-and-announce rule

does not cause the discovery of evidence, since regardless of the manner of the of-ficers’ entry, the evidence would inevitably be discovered during the subsequent search, and the search itself would be valid pursu-ant to the warrant. Id. at 592. Hudson also determined that the beneficial effects of exclusion are outweighed by its social costs when it comes to knock-and-announce vio-lations because of the potential for increased violence against officers who might be hesi-tant to enter unannounced if they believed that evidence might be suppressed and the potential for the destruction of evidence by those inside the residence. Id. at 595.{7} In contrast, Attaway states that sup-pression is the appropriate remedy under Article II, Section 10 of the New Mexico Constitution for the failure to follow the knock-and-announce rule. Attaway, 117 N.M. at 150 n.6, 870 P.2d at 112 n.6. Attaway was decided prior to Hudson and did not appear to consider the policy con-siderations addressed in Hudson in support of the conclusion that suppression is not an appropriate remedy. Our Supreme Court has not had the occasion since Hudson to reconsider Attaway or the application of the exclusionary rule for knock-and-announce violations under the state constitution. See Hand, 2008-NMSC-014, ¶ 5 n.2 (stating that “[b]ecause neither party briefed the effect of Hudson on New Mexico’s knock-and-announce jurisprudence and because we conclude that the district court errone-ously suppressed the evidence, we leave the question of Hudson’s effect to be decided another day”). Therefore, Attaway controls, and the remedy for any violation of Article II, Section 10’s knock-and-announce re-quirement continues to be suppression of the evidence.{8} Although Gomez’s discussion of the interstitial analysis applied to the interpreta-tion of the rights afforded under the federal and state constitutions, as opposed to the remedies, we believe its analysis is equally applicable to instances such as this one, in which, even if the rights provided under the two constitutions were the same, the remedy for a violation of those rights can be different. See Gomez, 1997-NMSC-006, ¶ 20 (citing as an example of the interstitial approach State v. Gutierrez, 116 N.M. 431, 446-47, 863 P.2d 1052, 1067-68 (1993), which declined to incorporate the federal good-faith exception to the exclusionary rule into the state constitution because refusing to apply the remedy of the exclu-sionary rule would undermine the purpose of the state constitutional protection against unreasonable searches and seizures). Because

any violation of Defendant’s rights under the United States Constitution would not provide her with a remedy in this proceeding, we need not decide whether the police conduct violated Defendant’s Fourth Amendment rights. See Gomez, 1997-NMSC-006, ¶¶ 19-20. Therefore, we assess Defendant’s claim only in light of the protections provided by Article II, Section 10 of the state constitution.KNOCK AND ANNOUNCE UNDER ARTICLE II, SECTION 10{9} In New Mexico, “[l]aw enforcement officers executing a search or arrest warrant are constitutionally required to knock and announce their identity and purpose and then wait a reasonable time to determine if consent to enter will be given, prior to forcefully entering a dwelling.” Gonzales, 2010-NMCA-023, ¶ 5. The rule “requires that officers make known not only their presence, but also their authority under the warrant that they are serving.” State v. Vargas, 2008-NMSC-019, ¶ 18, 143 N.M. 692, 181 P.3d 684. By requiring the police to announce the fact that they have a warrant and then give the occupants time to voluntarily answer the door, the knock-and-announce rule protects “those elements of privacy and dignity that can be destroyed by a sudden entrance” and gives “occupants the time necessary to collect themselves and to prepare for the entry of the police before answering the door.” Id. ¶ 15 (internal quotation marks and citation omitted). The rule serves a number of ad-ditional purposes, including preventing the needless destruction of property, reducing the risk of violence to both occupants and police, and permitting an opportunity for the occupants to comply with the law. Uli-barri, 2010-NMCA-084, ¶ 10.{10} Courts have carved out various ex-ceptions to the rule, and of these, two that are relevant here are that police need not comply with the knock-and-announce re-quirement in situations in which knocking and announcing the officers’ presence and authority would be futile in that it would amount to nothing more than a useless gesture, see Vargas, 2008-NMSC-019, ¶ 11, and when there are exigent circumstances militating against such an announcement. See also Ulibarri, 2010-NMCA-084, ¶ 13. The futility exception applies when it is clear that the authority and purpose of the police are already known to those within the premises, such that knocking and announcing that the police intend to execute a warrant would serve no purpose. See Vargas, 2008-NMSC-019, ¶¶ 3, 17 (holding that the futility exception applied


when the occupant of a home opened the door, saw the police, exclaimed “Oh, shit!,” and attempted to close the door). Exigent circumstances include situations involving, among other things, “a demonstrable risk that evidence will be destroyed while the officers wait to be denied entry, or specific information . . . indicating that the danger to the officers executing the warrant will be increased, rather than decreased, if the of-ficers comply with the rule.” State v. Vargas, 1996-NMCA-016, ¶ 5, 121 N.M. 316, 910 P.2d 950. {11} To determine whether an exception applies, a court must look to the totality of the circumstances “at the time of entry from the point of view of a reasonable, well-trained, and prudent police officer” to decide whether the officer had a reasonable belief that there were exigent circumstances or that knocking and announcing would be futile. Vargas, 2008-NMSC-019, ¶ 12. The reasonableness of an officer’s belief is measured under a reasonable suspicion standard, “which is not high” but which “requires specific, articulable facts, together with reasonable inferences therefrom, as a basis for concluding that the facts and cir-cumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id. (alteration, internal quota-tion marks, and citation omitted). FUTILITY AND EXIGENT CIRCUMSTANCES{12} The district court determined that the knock-and-announce requirement was excused because of both the futility and exigent circumstances exceptions. The basis of the district court’s conclusion that the officers were not required to knock and an-nounce their presence was that it was highly probable that Dickson had seen the officers approaching the house such that it would have been “futile to require a prolonged delay which could result in disposing of evidence.” At the suppression hearing, an officer testified that it is standard operating procedure for police to expedite the process of entering a home when they have been seen by someone inside due to the possibil-ity that the home’s occupants could destroy evidence or get a weapon. But the mere fact that officers have been observed by a home’s occupants does not relieve them of the knock-and-announce requirement. See State v. Williams, 114 N.M. 485, 487-89, 840 P.2d 1251, 1253-55 (Ct. App. 1992) (applying the knock-and-announce rule despite the fact that the occupants of a home made eye contact with members of a SWAT team as they approached the house); cf. State v. Reynaga, 2000-NMCA-053, ¶ 12, 129

N.M. 257, 5 P.3d 579 (stating that “[w]e disagree with the [s]tate’s argument that the knock-and-announce requirement serves no purpose once someone inside a . . . home is alerted to the presence of police” and holding that the knock-and-announce requirement applies even when the door has already been opened due to a ruse by police). Such a rule would require every person—whether guest or resident—who sees officers approaching a home to immediately go to the door and open it in order to avoid a forcible entry. People are not generally required to throw open their door to the police, and it is the announcement of the fact that the police have authority to enter pursuant to a war-rant that alerts a person that it is lawful for the police to enter a premises regardless of the occupants’ wishes. See Commonweath v. Carlton, 701 A.2d 143, 147 (Pa. 1997) (“[T]here is no requirement that anyone open the door to their dwelling in the absence of police statement of their authority and purpose. In a free society, the mere presence of police does not require an individual to throw open the doors to his house and cower submissively before the uniformed authority of the state.”). Until the police announce that they have a warrant, the occupants have no reason to believe that the police may forcibly enter and thus no reason to believe that they must answer the door if they wish to avoid a forcible breach. {13} Relying on Vargas, 2008-NMSC-019, the State contends that our Supreme Court has dispensed with the knock-and-announce requirement when the presence of officers is known. However, Vargas is not on point. Vargas held that knocking and announcing would have been futile when the defendant happened to open the door just as the officers reached it, saw the officers, said “Oh shit!,” and attempted to close the door—all before the officers were able to knock and announce. Id. ¶¶ 3-4, 17. In Vargas, a reasonable officer could have concluded that the defendant knew that the officers were there for some type of in-vestigation involving him or the house since the defendant uttered an exclamation that suggested an awareness and dissatisfaction with having been caught doing something illegal. The defendant then affirmatively en-gaged in conduct that sought to prevent the officers from entering when he attempted to shut the door, thereby indicating that he likely would not voluntarily open the door if the officers were to then knock and an-nounce their presence and authority. Vargas simply holds that the futility exception applies under circumstances in which it is reasonable to believe that the occupant of a

home knows the identity of the officers and their purpose for being at the premises and nevertheless affirmatively refuses to permit the officers to enter.{14} Vargas is consistent with authorities from other jurisdictions that hold that an affirmative act by an occupant of a premises demonstrating refusal to admit police or an attempt to escape after becoming aware of their identity and purpose renders futile any further efforts by the police to knock and announce. See, e.g., United States v. Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003) (hold-ing that the futility exception applied when, just as a SWAT team was about to announce its presence, the defendant opened the door, saw the SWAT team, and attempted to deny them entry); United States v. McGee, 280 F.3d 803, 806-07 (7th Cir. 2002) (holding that the “useless gesture” exception applied when the occupant of a home had run out of the back door as the police began to knock and announce). Vargas does not abrogate Williams or otherwise sweepingly dispense with the knock-and-announce requirement any time an occupant of a premises knows that the police are outside.{15} The State relies on two other cases involving affirmative acts of refusal for the proposition that other courts have found that knocking and announcing is not re-quired when the occupants of a premises have seen the police outside. In Richards v. Wisconsin, 520 U.S. 385, 388 (1997), an officer disguised as a maintenance man knocked on the defendant’s motel room door. The defendant cracked open the door, saw a uniformed officer standing behind the disguised officer, and slammed the door closed. Id. The officers then waited two or three seconds and, without announcing that they were there under the authority of a warrant, began ramming the door in order to gain entry into the room. Id. In State v. Ochadleus, 2005 MT 88, ¶ 12, 326 Mont. 441,110 P.3d 448, officers executing a warrant at a residence made eye contact with a man inside. They announced that they were police and that they had a search warrant, and they ordered the man to open the door. Id. The man first walked toward the door as if to open it, but when the of-ficers again called out that they were the police, the man began backing away. Id. As soon as the man backed away, the police used a battering ram to enter the residence. Id. Although we need not decide whether the particular facts of Richards or Ochadleus would support an exception to the knock-and-announce rule under the New Mexico Constitution, both Richards and Ochadleus are consistent with the principle that some


affirmative act by an occupant demonstrat-ing a refusal to admit the police after their presence and purpose are known renders unnecessary any further act of knocking and announcing. These cases do not support the proposition that officers need not knock and announce their presence and authority and then wait a reasonable time to permit the occupants to respond any time an occupant has merely viewed the officers approaching from outside the area to be searched. {16} The State also relies on the unreported federal district court decision of United States v. Shaw, No. 02-4008101/03-SAC, 2002 WL 31926894 (D. Kan. Nov. 22, 2002), modified on rehearing Nos. 02-40081-01-SAC, 02-40081-03-SAC, 2003 WL 356066 (D. Kan. Jan. 23, 2003). In that case, an officer in plain clothes knocked on the door of the residence to be searched, hoping that the occupants would answer voluntarily, without knowing that the per-son knocking was a police officer. Id. at *1. If the occupants did so, several uniformed officers were to announce that they were police with a search warrant and then enter the residence. Id. However, as the first officer approached the door, he realized that it was open and that there was a woman standing approximately two feet from him on the other side of the doorway. Id. She turned and looked at him, making eye contact. Id. The plain-clothed officer opened the door without knocking and announcing. Id. Approximately one second later, the uniformed officers following behind him announced that they were the police and that they had a warrant and then entered. Id. The federal district court for the district of Kansas upheld the search under the futility exception, finding that due to the position of the uniformed officers behind the first officer, it was reasonable for the officers to conclude that the woman had seen the uniformed officers and that she knew that they were there by authority of a warrant. Id. at *3. {17} We are not persuaded by Shaw’s rea-soning. The fact that a person has observed police outside the door of a home does not, in the absence of other evidence, lead to a reasonable belief that the person knows that the police have a warrant that permits them to enter. Moreover, the State fails to point out that Shaw was later modified on rehearing for this very reason: On rehearing, the district court stated that “[e]ven if [the woman in the doorway] recognized [the first officer] or the officer beside him on the porch as police officers, her recognition would not have justified their reasonable belief that she actually knew of the reason

for their presence.” Id. For its conclusion that it was not reasonable to believe that the woman would have known that the police were there to execute a search warrant, the court relied on the facts that the woman was not arrested for any crimes related to the evidence discovered at the house and that she was not shown to have any knowledge of the events that caused the warrant to be issued. Id. However, this inquiry seems to look to information that the police would not necessarily have at the time of the entry, such as whether the woman who the officers saw in the doorway would be arrested during the search and whether she was someone who had any involvement with the illegal activity. See Vargas, 2008-NMSC-019, ¶ 12 (stating that the reasonableness inquiry looks at the information known to officers at the time of entry). Unless the police have information at the time of the entry that leads to a reasonable belief that the person who has observed them knows both that they are officers and that they have authority to enter pursuant to a warrant, the futility exception does not apply. The fact that someone has simply seen the police does not generally provide a factual basis for a reason-able suspicion that the occupant knows that the officers have authority to enter pursu-ant to a warrant. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.8(f ), at 693 (4th ed. 2004 & Supp. 2011) (stating that “there is no good reason for concluding, as some courts have done, that the occupants are aware of the authority and purpose merely because the police knew that someone within had seen them approaching or that someone outside had shouted something into the premises”). Shaw does not support the State’s claim.{18} The State also contends that the futility exception applies because Dickson knew of the police officers’ presence. Again, however, it is not sufficient that occupants know of the police’s presence; they must also know of the police’s purpose and author-ity for being there. We recognize that in this case the officers could have reasonably believed that what Dickson saw when he was facing the direction of the window was six uniformed officers carrying a battering ram and approaching the house. While these facts might come closer to providing a reasonable suspicion that Dickson knew that the officers were there to execute a warrant than those cases in which the occupant of a home simply sees an officer outside of the door, we nevertheless conclude that these facts do not support a reasonable suspicion that Dickson knew that the officers were there to search the home pursuant to a war-

rant. This is not a case in which occupants of a home engaged in any conduct evincing a consciousness of guilt or some other action that would demonstrate that they knew why the police were there.{19} Furthermore, even if these facts did give rise to such a reasonable suspicion, we would nevertheless conclude that the futility exception does not apply. New Mexico has only applied the exception when there has been an affirmative act of refusal by an oc-cupant of the premises because such action more clearly demonstrates that an occupant does not intend to voluntarily permit the police to enter than does a mere brief period of inaction. See Vargas, 2008-NMSC-019, ¶ 14. Other courts have also primarily applied the exception when there has been some affirmative act of refusal or other effort to avoid the execution of the warrant. See, e.g., McGee, 280 F.3d at 806-07 (stating that “[i]n general, the ‘useless gesture’ exception to the ‘knock[-]and[-]announce’ rule is ap-plied when a suspect affirmatively refuses to answer his door to allow the government to serve a valid search warrant” but that it will also apply if someone is seen to have fled the premises); United States v. James, 764 F.2d 885, 888 (D.C. Cir. 1985) (hold-ing that the futility exception excused the officers’ failure to announce that they had a search warrant when, after knocking and calling out that they were the police, the officers heard the defendant running down the back stairs); People v. Williams, 499 N.W.2d 404, 408-09 (Mich. Ct. App. 1993) (upholding an almost instantaneous forcible entry after officers saw someone watching them as they approached the residence and then saw people running toward the back of the house as the police announced their presence and authority). Dickson’s act of being “seen” and then “not seen” is too ambiguous to constitute an act, such as fleeing, that would indicate that he was aware that the police were there to execute a warrant and that he sought to thwart that intent in some way. We are not persuaded that the application of the futility exception any time an occupant presumably has seen the police properly supports the purposes of the knock-and-announce rule because it does not account for the fact that until the occupants are informed that the officers are there to execute a warrant, they have no reason to believe that they are required to answer the door, speak with officers, or permit the officers to enter. Applying the exception under these circumstances would undermine two of the primary purposes of the knock-and-announce rule: to prevent the needless destruction of property and to


protect the sanctity and privacy of the home.{20} Because there was no evidence pre-sented that demonstrated that the occupants of Defendant’s home were already aware of the police’s purpose in coming to Defen-dant’s home and there was no evidence from which the officers could reasonably conclude that the occupants would have sought to thwart or avoid the police’s lawful entry to search, the futility exception did not excuse the knock-and-announce requirement.{21} The fact that Dickson was in a posi-tion from which the police could reasonably suspect that he had seen them also did not create the kind of exigent circumstances that would excuse the knock-and-announce requirement based on a suspicion that evi-dence would be destroyed. Although many drug investigations arguably involve the possibility of the destruction of evidence, the United States Supreme Court has refused to permit a blanket exception to the knock-and-announce rule for cases involving illegal drugs. See Richards, 520 U.S. at 391-94. The mere possibility that an occupant might destroy evidence does not give rise to an exigency. Ortega, 117 N.M. at 162, 870 P.2d at 124. Instead, circumstances must be such that a cautious, prudent, and well-trained officer would have a “reasonable belief that evidence is being or is about to be destroyed.” Id. {22} A number of the New Mexico cases concluding that exigent circumstances ex-cused the knock-and-announce rule when a warrant was for drugs rely on the possibility of an increased danger to officers. See, e.g., State v. Lopez, 2005-NMSC-018, ¶ 25, 138 N.M. 9, 116 P.3d 80 (upholding a finding of exigent circumstances based on a reasonable suspicion of increased danger to officers when the officers had information that there were two to four people in the residence with access to multiple firearms including automatic weapons and that one of the residents was a drug dealer); Vargas, 1996-NMCA-016, ¶¶ 9, 13 (upholding a finding of exigent circumstances based on a reasonable suspicion of increased danger to officers when the officers had informa-tion that the defendants were involved in dealing drugs, that both were gang mem-bers and carried weapons, that one of the defendants had threatened police, and that during numerous police dispatches to the defendants’ residence over the prior ten years, the defendants and other residents had a propensity to behave violently and to challenge the police); Attaway, 117 N.M. at 153, 870 P.2d at 115 (upholding a find-ing of exigent circumstances based on a reasonable suspicion of increased danger

to officers when the officers had informa-tion that the defendant was a drug user and dealer, that he had previously been convicted of weapons and drug charges, that he possessed a large arsenal of weap-ons, including an automatic weapon and a number of other guns, and he in the past had threatened police officers); cf. Williams, 114 N.M. at 488-89, 840 P.2d at 1254-55 (affirming the district court’s finding of no exigent circumstances based on increased danger to officers because although the of-ficers believed that the occupants were drug dealers and that drug dealers are generally armed, “there was no evidence at the time of execution of the search warrant indicating that anyone threatened the officers or that they were placed in fear by persons either inside or outside the residence”). In this case, however, the district court did not find that the officers had a reasonable suspicion that there would be an increased danger to of-ficers if they announced their presence and purpose, and, although the State preserved the argument in the district court, it does not put forth an argument on appeal that the district court’s ruling could be affirmed on this basis. Accordingly, we do not con-sider whether the officers had a reasonable suspicion of increased danger and look only to whether there was reasonable suspicion that the occupants of Defendant’s home would destroy evidence. See In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982) (stating that an appellate court should not reach issues that the parties have not raised in their briefs).{23} We have found only two New Mexico cases holding that exigent circumstances ex-cused the knock-and-announce requirement based wholly on a destruction-of-evidence rationale. The most recent is Ortega. There, an officer received information that the defendant was supplying heroin to a man with whom he lived and that the man was selling the heroin to others. Ortega, 117 N.M. at 161, 870 P.2d at 123. The infor-mant told officers that the defendant and his housemate would destroy the evidence if they knew that the police were coming. Id. The officer verified this information through other informants. Id. at 161-62, 870 P.2d at 123-24. When the officer went to execute the warrant, some children outside the home started yelling “Cops! Cops!” Id. at 162, 870 P.2d at 124. One child ran into the house, and the officer followed, without stopping to announce his presence or the fact that he was there to execute a search warrant. Id. In upholding the validity of the entry, the New Mexico Supreme Court “place[d] little stock in [the officer’s] fourteen years of

experience and general knowledge regarding the destruction of narcotics.” Id. at 163, 870 P.2d at 125. Instead, the Court relied on the fact that “it was objectively reasonable for [the officer] to believe evidence would be de-stroyed because he had information to that effect from three different informants who had been in contact with [the defendant] to support that belief.” Id. Therefore, once the children alerted the occupants of the home to the presence of the police, the police were justified in entering immediately in order to prevent the destruction of evidence. Id. {24} In State v. Sanchez, 88 N.M. 402, 404, 540 P.2d 1291, 1293 (1975), overruled in part on other grounds by Attaway, 117 N.M. 141, 870 P.2d 103, the district court found that the officers reasonably believed that drugs would be destroyed because an informant had specifically told the officers that the occupants of the home would flush the heroin down the toilet if the officers did not move quickly, and, as the officers approached the home, people inside were moving around and yelling as if they might have been alerted to the presence of the police and were attempting to take action in response.{25} In this case, in contrast to Ortega and Sanchez, there was no testimony regarding any specific evidence that police had for be-lieving that evidence was being or would be destroyed. Any suspicion the police might have had about the possibility that evidence would be destroyed was not based on in-formation about Defendant or her home and instead would have been based solely on the officers’ general experience. Such a generalized suspicion would arise in every case involving drugs—a result that is not permitted by Richards and Ortega. See State v. Cohen, 957 P.2d 1014, 1016 (Ariz. Ct. App. 1998) (holding that the exigent cir-cumstances exception did not apply when officers executing a warrant for drugs made eye contact with occupants of a home, and entered approximately one second after knocking and announcing, since there was no reasonable suspicion that a longer wait would have increased the danger to officers or resulted in the destruction of evidence; any suspicions the officers had were not based on the particular facts of the case). {26} The State argues that the fact that Dickson was seen by the police in the window and then not seen provides a reasonable suspicion that either he or De-fendant was destroying evidence. Although the record is somewhat ambiguous as to when Dickson was seen and not seen, if his movement away from the window occurred prior to the officers’ announcement of their


presence and purpose, we cannot reasonably conclude that the fact that someone moves about a residence knowing that the police are outside, but not knowing that they are there to execute a warrant, gives rise to the inference that he is destroying evidence. See Syakhasone v. State, 39 S.W.3d 5, 10-11 (Ark. Ct. App. 2001) (holding that there were no exigent circumstances excusing the knock-and-announce requirement when, as the officers approached the house to execute a warrant for drugs, the officers saw someone open a curtain, look in the officers’ direc-tion, and then pull the curtain back; any concerns about safety and the destruction of drugs were not based on anything particular to the defendant’s case). Furthermore, to the degree that Dickson moved away from the window at the same time that the officers knocked and announced, his mere move-ment within the home does not give rise to a reasonable suspicion that he was destroying evidence. See Commonwealth v. DeMichel, 277 A.2d 159, 164 (Pa. 1971) (holding that there were no exigent circumstances excusing the knock-and-announce require-ment when officers who went to a house to execute a warrant for illegal lottery tickets that could be readily destroyed announced their presence to someone peering through the blinds, and the person then dropped the blinds and did not open the door after a period of between five and twenty seconds; the officers’ concern about the destruction of the lottery tickets was based on the fact that they could easily be destroyed, not on any particular facts demonstrating that they would be). This is not a case in which the officers saw Dickson running or taking other action that would suggest a frantic response to the presence of the police and that would therefore provide a reasonable suspicion that evidence was being destroyed. Cf. Laffitte v. State, 370 So. 2d 1108, 1108-10 (Ala. Crim. App. 1979) (upholding an almost immediate entry after police announced their presence and authority because, as they came to the door, police saw three people in the living room, one of whom grabbed some marijuana that had been lying there, and the three ran toward the back of the house); State v. Kofoed, 208 P.3d 278, 279-81 (Idaho 2009) (finding exigent circumstances based on the possible destruction of evidence when, as the police knocked and announced their presence and authority, they heard someone drop or kick something and then footsteps moving rap-idly away from the door); State v. Kelley, 658 N.W.2d 279, 284, 289 (Neb. 2003) (finding exigent circumstances in part based on the possible destruction of evidence when, after

a woman looked out of the window at the police as they knocked and announced, she looked “surprised” and left in a manner that appeared to be running, and then “a loud commotion” was heard inside). Because the State failed to demonstrate that the officers had a particularized reasonable suspicion that someone in Defendant’s home was destroying evidence after Dickson saw the police, it was error to apply the exigent circumstances exception to the knock-and-announce requirement. REASONABLENESS OF KNOCK AND ANNOUNCE{27} Although there was no exception excusing the knock-and-announce require-ment altogether, the police in this case did in fact announce their presence and purpose prior to forcibly breaching the door. There-fore, the State contends that this Court can affirm the district court under a right-for-any-reason rationale because the officers complied with the constitutional rule. See Gallegos, 2007-NMSC-007, ¶ 26 (“[W]e will affirm the [district] court’s decision if it was right for any reason so long as it is not unfair to the appellant for us to do so.”). The State asserts that the brief time between the announcement of the officers’ presence and purpose and the forcible breach of the door was reasonable because the officers were constructively refused admittance.{28} In order to comply with the knock-and-announce rule, police must announce their presence and purpose and receive an actual refusal from those inside or wait out the time necessary to infer a constructive refusal prior to forcibly entering. Lopez, 2005-NMSC-018, ¶ 27. The time that of-ficers must reasonably wait before inferring that the occupants have refused to answer the door is not fixed and instead depends on the totality of the circumstances. See Hand, 2008-NMSC-014, ¶ 7. Relevant circumstances include the size of the premises that the occupants would have to traverse in order to come to the door; the time of day, which might impact whether occupants were likely to be asleep or awake and whether they might need to dress; and whether the police know that an occupant is inside, such that if they hear no sound at all or sounds that suggest that the occupant does not intend to answer, it is more likely to mean that the occupant is refusing to admit the police. See id. ¶¶ 8-9. {29} Even when, as here, a residence is small, New Mexico courts have approved waits only as short as ten seconds in the ab-sence of exigent circumstances. See id. ¶¶ 9, 11 (holding that a ten-to-twenty-second wait was sufficient to support an inference

that admission was being denied based on the fact that “a small space” was involved, the police heard movement inside, and the defendant made no verbal response); State v. Johnson, 2006-NMSC-049, ¶¶ 12-17, 140 N.M. 653, 146 P.3d 298 (holding that a ten-second wait was reasonable to infer constructive refusal based on the small size of the hotel room and the fact that the defendant did not respond in any way); see also Gonzales, 2010-NMCA-023, ¶¶ 3, 16 (holding that an eight-second wait was too short a time to infer constructive refusal); cf. Lopez, 2005-NMSC-018, ¶¶ 3, 19 (hold-ing that a three-second wait was reasonable because the exigent circumstances exception applied). The ten-second wait found in some of New Mexico’s cases is a very short time in which to expect one to gather oneself and come to the door, but it has been justified based on the particular circumstances of those cases. As one commentator has noted regarding the question of how long officers must wait for an occupant to answer before inferring constructive refusal,

it has understandably been held that a wait of two to four seconds is inadequate. Generally, however, it may be said that courts have been unduly lenient on this score, hold-ing that the police may proceed to enter after waiting no longer than ten or twenty seconds. . . . More understandable is the view that such brief periods will suffice when a reasonable inference may be drawn that the inhabitants of the house had observed the ar-rival of the police and were well aware of the officers’ authority and purpose[.]

2 LaFave, supra, § 4.8(c), at 673-76 (inter-nal quotation marks and citation omitted). This case requires us to determine whether the brief wait in this case was reasonable when officers could reasonably conclude that Dickson was aware of their presence as they approached the house and then of their purpose and authority once they knocked and announced that they had a warrant.{30} The parties disagree about the length of time that the officers waited before they forcibly entered Defendant’s home. The district court found, based on a review of an officer’s belt tape, that there were approximately three-and-a-half seconds before the door was breached. However, the district court did not indicate the starting point for its count—whether it was when the officers started knocking or when they completed their statement that they had a


search warrant. This lack of clarity is impor-tant because the appropriate starting point is from the time that the first announcement of the police’s presence and purpose has been completed. See Johnson, 2006-NMSC-049, ¶ 11 (stating that the appropriate time to be measured is the time “after knocking and announcing and before forcing entry” (emphasis added)); but see id. (quoting a Tenth Circuit case for the proposition that the time begins when officers “begin to an-nounce” their presence). The time period cannot begin when the police start to knock or when they announce that they are the po-lice, because until the occupants are notified that the police are there to execute a search warrant, they have no reason to believe that they are required to either open the door or suffer a forcible entry. The State argues that this Court can review the belt tape and draw its own conclusion about the length of time that the officers waited since we may review the district court’s findings to see if they are supported by substantial evidence in the record and since this Court is in as good a position to measure the time on the belt tape as the district court. However, we do not see this issue as a question of whether the district court’s finding was correct but as a question of whether its measurement began at the appropriate time. This is a question of law on which we need not defer to the district court. See State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307 (stating that an appellate court reviews de novo the district court’s legal conclusions on a motion to suppress). The district court did not cite a starting point for its count. We conclude that the appropriate starting point was when officers completed their announcement, “Police department; search warrant.” See Johnson, 2006-NMSC-049, ¶¶ 11-12 (measuring the time after the initial announcement was made and before the forcible entry began). The appropriate ending point is when the officers began to hit the door with the battering ram. See id. ¶ 11 (“When the officers began hitting the door with the battering ram, they ceased ‘knocking’ and began ‘entering.’”). A review of the belt tape demonstrates that it was approximately one second after the officers completed the phrase “search warrant,” that the officers struck the door with a battering ram. However, even if we were to calculate the time as three-and-a-half seconds, as did the district court, or as five seconds, as urged by the State, the calculation would not af-fect our analysis because any of these times is shorter than the time periods recognized as reasonable under our case law. Further, there is nothing within these particular

circumstances that justifies a period shorter than has thus far been recognized as proper in our jurisprudence.{31} Although the district court found that it was reasonable for the police to believe that Dickson saw them outside the residence, one second is simply too short a period of time to give the “occupants the time necessary to collect themselves and to prepare for the entry of the police before answering the door.” Vargas, 2008-NMSC-019, ¶ 15; see also Syakhasone, 39 S.W.3d at 10-11 (holding that a two-to-five-second wait was too short, even when, as the officers approached the house to execute a warrant for drugs, the officers saw someone open a curtain, look in the officers’ direction, and then pull the curtain back); West v. United States, 710 A.2d 866, 867-69 (D.C. 1998) (holding that a five-second wait was too short when, after police executing a war-rant for drugs knocked and announced, they heard the video game that had been being played stop and heard the sound of footsteps in the house that were not coming to the door; these facts were ambiguous, since a person could stop playing a video game in order to either exclude or admit the police, and even the most cooperative occupant might make the sound of footsteps in order to “fetch his bathrobe or slippers before coming to the door”); DeMichel, 277 A.2d at 164 (holding that a five-to-fifteen-second wait was too short when, after police executing a warrant for drugs announced their presence to someone who was looking at them through the blinds, the blinds were dropped); see also Wynne v. Commonwealth, 427 S.E.2d 228, 229-31 (Va. Ct. App. 1993) (holding that a five-second wait was not reasonable when the officers could see the occupants of the home inside, who were making no move to answer the door). It is therefore also too short a period from which to infer constructive refusal to voluntarily open the door. See Hand, 2008-NMSC-014, ¶ 7 (stating that constructive refusal may only be inferred if the occupants do not admit the officers within a reasonable period of time). Accordingly, under these circumstances, a one, three-and-a-half, or five second period of time cannot constitute a constructive refusal on the part of the home’s occupants.{32} We recognize that, under the Fourth Amendment to the United States Consti-tution, when there are circumstances not amounting to an actual exigency but that raise the same types of concerns—such as the possibility of the destruction of evi-dence or the possibility that the occupants may have weapons—a court may properly

take into account these concerns in assess-ing the reasonableness of the time that the police are required to wait. Under the Fourth Amendment, when the possibility of exigent circumstances exists but does not excuse the knock-and-announce rule altogether, the reasonableness assessment is based not on the time it would take for a person to collect oneself and answer the door, but on the time that it might take to do the harm sought to be prevented by the exception. See Hudson, 547 U.S. at 590 (cit-ing United States v. Banks, 540 U.S. 31, 41 (2003), as an example in which the exigent circumstances exception did not excuse the knock-and-announce requirement, but the possibility of the destruction of drugs permitted the police to wait only the period that it might take for a person to attempt to destroy drugs, rather than a reasonable period for the person to answer the door or constructively refuse). This approach has been criticized because, although the Su-preme Court has rejected a blanket exigent circumstances exception for drug cases, it seems to have substituted a blanket rule allowing for an extremely short wait once officers have knocked and announced their presence and authority. See 2 LaFave, supra, § 4.8(c), at 678 (“The major difficulty with the Banks Court’s exigencies analysis is this: while the Court claimed to have embraced the ‘same criteria’ as are used for no-knock searches and to have mandated a ‘totality of the circumstances’ approach, all of which would seem to mean that Richards[, 520 U.S. at 391-94] (proscribing use of a blanket rule whereby a risk of evidence destruction is assumed in all narcotics cases) also ap-plies here, there seem to be no case-specific particularities involved in the Court’s as-sessment of the risk that [the defendant] would destroy the cocaine.”). Regardless, the Fourth Amendment rule that the ap-propriate measure of time in cases involving drugs is the time it would take the occupants to begin destroying them, rather than the time it would take them for the occupants to come to the door, has not been adopted as part of our knock-and-announce juris-prudence under Article II, Section 10. Even after Banks, our Supreme Court has stated that “[a]bsent exigent circumstances, officers must knock and announce their purpose and identity, then wait a reasonable period of time to determine if consent to enter will be given before forcefully entering.” Johnson, 2006-NMSC-049, ¶ 12 (emphasis added); cf. Lopez, 2005-NMSC-018, ¶ 23 (apply-ing the Banks Fourth Amendment rule that reasonableness is assessed by reference to the time it would take for someone to attempt


to engage in the conduct that the exigent circumstances exceptions seek to prevent to a case where the exigent circumstances exception applied based on an increased danger to officers, and stating that when, as in Lopez, the exigent circumstances exception applies, officers are permitted to “altogether dispense with the knock[-]and[-] announce rule or partially comply by knocking and announcing their identity and purpose before forcible entry, leaving the decision to the officers’ judgment based on their experience”). Johnson was a case involving a search warrant for drugs, and, although it cited Banks, it did not conclude, as in Banks, that once the police officers knocked and announced their presence and purpose they created an exigency based on the possibility that the occupants would attempt to destroy the drugs. See Johnson, 2006-NMSC-049, ¶¶ 12-17. Instead, John-son continued to evaluate the reasonableness of the police officers’ wait by reference to how long it might take Johnson to answer the motel room door or for the police to reasonably infer constructive refusal to open the door. Id. Similarly, in Hand, which also involved a search for drugs, our Supreme

Court looked to the time it would take for someone to come to the door or otherwise respond to the police. 2008-NMSC-014, ¶¶ 7-12. It did not consider the time it would take for someone who had been alerted to the presence of police to begin to destroy the drugs. Id. Thus, when exigent circumstances do not excuse the knock-and-announce requirement, under the New Mexico Con-stitution, the assessment of how long officers must reasonably wait between knocking and announcing and a forcible entry continues to be made by reference to the time that it would take someone to voluntarily respond or for the police to infer constructive refusal, not by the time that it would take for the occupants to engage in the behavior that the exigent circumstances exceptions seek to prevent.{33} We note that, even if we were to apply the Fourth Amendment standard, Banks found a time period of fifteen to twenty seconds to be reasonable in light of the possibility that the occupants of the home would hear the announcement by the po-lice and then attempt to destroy the drugs sought under the warrant. Banks, 540 U.S. at 41. Here, with only a one-to-five-second

wait, if Banks applied, it would not compel a conclusion that the delay in this case was reasonable.CONCLUSION{34} The police’s entry into Defendant’s home after waiting only one to five seconds after knocking and announcing violated her right to be free of unreasonable searches under the New Mexico Constitution. Ac-cordingly, the district court erred in denying Defendant’s motion to suppress evidence obtained during the search. We reverse and remand to permit Defendant to withdraw her conditional plea. See State v. Hodge, 118 N.M. 410, 416, 882 P.2d 1, 7 (1994) (stating that where a defendant enters a conditional guilty plea, she is permitted to withdraw the plea after prevailing on ap-peal).{35} IT IS SO ORDERED. JAMES J. WECHSLER,

Judge

WE CONCUR:CYNTHIA A. FRY, JudgeJ. MILES HANISEE, Judge


Equal Access to Justice raises funds for civil legal service providers that cover the entire state of New Mexico – New Mexico Legal Aid, Law Access New Mexico, the New Mexico Center on Law and

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State Bar of New Mexico Young Lawyers Division, N.M. Indian Bar Association, N.M. Hispanic Bar Association, N.M. LGBT Bar Association, N.M. Women’s Bar Association, Albuquerque Bar Association,

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Associate AttorneySilva & Gonzales, P.C., an AV rated litiga-tion firm, seeks an attorney with two to six years experience, interested in working in a congenial atmosphere on complex commer-cial, employment, personal injury, and white collar matters. Strong academic credentials and excellent research and legal writing skills required. All inquiries confidential. Excellent salary and benefits. Please mail resume and writing sample to Tamara C. Silva at PO Box 100, Albuquerque, NM 87103-0100 or email [email protected]. Position available immediately.

AssociateDowntown civil defense firm seeking associate with minimum five years experience in civil lit-igation or a judicial clerkship. Applicant must have strong research and writing skills. Court room and trial experience preferred. Competi-tive salary and benefits. Inquiries will be kept confidential. Please forward letter of interest and resume to Robles, Rael & Anaya, P.C. 500 Marquette NW. Suite 700 Albuquerque, NM 87102 or email to [email protected].

AttorneyBusy PI Law Firm looking for attorney with 3-10 years’ experience to practice in the Albu-querque area. Experience in litigation, specifi-cally discovery and pleadings is a plus. Spanish speakers preferred. Excellent pay and benefits based on experience. Please email resume to [email protected]

AttorneyBusy PI Law Firm looking for attorney with 3-10 years’ experience to practice in the Albuquerque area. Experience in litigation, specifically discovery and pleadings is a plus. Excellent pay and benefits based on experience. Please email resume to [email protected]

Child Support Hearing Officer The NINTH JUDICIAL DISTRICT COURT is accepting applications for a FT At-Will Child Support Hearing Officer (CSHO). The CSHO will be an employee of the 9th Judicial District Court with a Post of Duty in Portales, NM. The 9th Judicial District Court has a contract with HSD to administer a CSHO Program serving the 4th, 8th, 9th, and 10th Judicial Districts. The CSHO position will have a Post of Duty in Portales, NM and will primarily hear child support cases in the 9th and 10th Judicial Dis-tricts, but will also travel to and serve as back-up to the 9th Judicial District Court’s CSHO stationed in Las Vegas, NM who primarily hears child support cases filed in the 4th and 8th Judicial Districts. QUALIFICATIONS pursuant to NMSA 40-4B-4. J.D. from an accredited law school, NM licensed attorney in good standing, NM licensed driver with good record. Minimum of five years experience practicing law, with at least 20% having been in family law or domestic relations matters. Familiarity with the NM Domestic Relations statutes, Uniform Parentage Act, Child Sup-port Hearing Officer Act, and related statutory law and regulations preferred. Ability to travel overnight throughout the 4th, 8th, 9th, and 10th Judicial Districts. Complete Job An-nouncement and job application may be viewed at www.nmcourts.gov. Interested applicants should submit a New Mexico Judicial Branch Application for Employment or Resume and Resume Supplemental form, and ALL infor-mation requested on said forms by 5:00 p.m., Friday, April12, 2013 to Louis C. Moore, J.D., Court Executive Officer, 9th Judicial District Court of New Mexico, 700 N. Main, Suite 11 Clovis, NM 88101, Fax: 575-742-0881 Applications forms may be downloaded from www.nmcourts.gov. CLOSING DATE: 4-12-13 AT 5:00P.M. EQUAL OPPORTUNITY EMPLOYER

Attorney – AssociateThe Fifth Judicial District Court of Chaves, Eddy and Lea Counties have one opening for a full time Attorney – Associate, At-Will. The target pay range is $26.386 to $32.982 per hour. The position will require weekly travel to each county. The selected applicant’s residence will determine the office location. The appli-cation deadline is 5pm, April 15, 2013. Proof of education is required. The New Mexico Judicial Branch Application for Employment may be obtained at www.nmcourts.gov under Human Resources, Job Descriptions and Job Opportunities or www.fifthdistrictcourt.com. Equal Opportunity Employer.

District Attorney Positions/ Las Cruces, NMThe Third Judicial District Attorney’s office in Las Cruces, NM is hiring attorneys for im-mediate employment. All levels of experience will be considered. Salary will be based upon the District Attorney Personnel and Compen-sation Plan. Please electronically submit your resume and letter of interest to Paul J. Rubino, Chief Deputy District Attorney at [email protected].

AttorneyWalsh, Anderson, Gallegos, Green & Treviño, P.C., a law firm with offices in New Mexico and Texas, is seeking an attorney licensed for three to five years in New Mexico for our Albuquerque, New Mexico office. Position in-volves representing public school districts with areas of practice including litigation, employ-ment, civil rights, constitutional law, business transactions, and governance. Public speaking experience, strong interpersonal skills and a background with educational or governmental entities is a plus including with respect to pro-curement, open meetings and public records. Please send resume, with writing sample, to P.O. Box 2156, Austin, Texas 78768, or fax to 512-467-9318 or email to [email protected].


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Attention ParalegalsAre you a top-notch paralegal with at least three years’ experience? We have a great job with competitive salary and benefits in a team environment. Send cover letter, resume and references to Comeau, Maldegen, Templeman and Indall, PO Box 669, Santa Fe, NM 87504-0669 or email to [email protected].

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or expe-rienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Contract AttorneysThe Administrative Office of the Courts is soliciting proposals for contract attorneys for abuse/neglect cases in the following Judicial Districts: Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, Thirteenth and for the Court of Appeals The Request for Proposal is posted at nmcourts.gov/contract attorneys. Proposals must be received at the Administrative Office of the Courts no later than May 8, 2013 at 5:00pm. To receive the RFP packet by mail, contact Beth Collard at (505) 827-4969 at the Administrative Office of the Courts (AOC), 327 Don Gaspar, Room 25, Santa Fe, NM 87501. RFP packets will not be faxed. The Procurement Code, NMSA 1978, '13-1-28 to -199, imposes civil and criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks.

Contract Attorney, Guardian Ad LitemThe Administrative Office of the Courts is so-liciting letters of interest for a contract attorney, guardian ad litem, for abuse/neglect cases in the First Judicial District and for guardian ad litem, guardian ad litem for Native American Children and an attorney to represent respon-dents in abuse/neglect cases in the Eleventh Judicial District.: The Request for Letters of Interest is posted at nmcourts.gov/contract attorneys. Letters of Interest must be received at the Administrative Office of the Courts no later than May 8, 2013 at 5:00pm.

Family Law AttorneyLooking for an experienced family law attorney who is willing to go to court. Come and join a growing practice. A great working environ-ment. Salary DOE. Send a cover letter and resume to [email protected]. Posi-tion open until filled.

Part-Time PositionPart-time position with Santa Fe one attorney plaintiff’s firm. Practice includes most areas of the law. Looking for paralegal or experienced legal assistant. Call Barry Green, 989-1834.

Lawyer-A PositionNEW MEXICO DEPARTMENT OF FI-NANCE AND ADMINISTRATION (DFA) – ASSISTANT GENERAL COUNSEL. This Lawyer-A position is full-time, permanent, and classified. The salary range is from $20.70 per hour (or $43,056 annually) to $36.80 per hour (or $76,544 annually), depending upon experience and qualifications. The ideal can-didates for this position are those with strong analytical, research, communication, and interpersonal skills, who enjoy working hard as a member of a small, collaborative, dynamic legal team on topical issues that directly impact all levels of state and local government. The diverse subject matters in which the successful candidate will likely practice include employ-ment law, procurement, contracts, state and local government finance, budgeting, and administration, state constitutional law, and rulemaking. Applicants must: (i) have a J.D. from an ABA accredited law school; (ii) be an active member, in good standing, of the NM bar; and (iii) have three or more years of experience as a practicing attorney, with a minimum of 1 year experience in governmental law (or sufficient additional non-governmental experience). Experience in employment law, procurement, and/or government contracts is preferred. Applicants must apply at http://www.spo.state.nm.us/ on or before April 14, 2013, to be considered for this position.

Positions AvailableWILLIAM F. DAVIS & ASSOC., P.C. a law firm located in North East Albuquerque, is accepting applications for two full time positions. Our practice consists primarily of bankruptcy proceedings and general business and commercial litigation. Our firm offers competitive salary, excellent benefits and posi-tive work environment. Positions are available immediately. RECEPTIONIST – must be proficient in word processing/computer skills, organizational & communications skills, with a positive and friendly personality as necessary in a high-volume, fast-paced practice requiring direct interaction with clients. Opportunity to progress into Paralegal duties and pay level. Salary in accordance with experience and education. PARALEGAL – prepare correspon-dence to clients and attorneys; draft pleadings and amendments, file pleadings with the court, draft and submit orders, assist with prepara-tion of bankruptcy petition, statements and schedules, maintain office calendar, answer telephones and route all calls and messages as backup to Receptionist. Please send resume via email to: [email protected] and state the position you are applying for in the subject text.

13th Judicial District AttorneyAssociate Trial Attorneys forSandoval and Valencia CountiesThe 13th Judicial District Attorney’s Officeis accepting resumes for entry level AssociateTrial Attorneys for the Sandoval (Bernalillo), and Valencia (Belen) County Offices. The position requires felony caseload and at times, misdemeanor prosecutions. Upon request, be prepared to provide a summary of cases tried. Salary is based upon experience. Send resumes to Kathleen Colley, District Office Manager, P.O. Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. nm.us. Deadline for submission of resumes: Open until positions are filled.

Eleventh Judicial District Attorney’s Office, Div II The McKinley County District Attorney’s Office is currently seeking immediate resumes for one (1) Assistant Trial Attorney and (1) Senior Trial Prosecutor. Former position is ideal for persons who recently took the NM 12 bar exam. Persons who are in good stand-ing with another state bar or those with New Mexico criminal law experience in excess of 5 years are welcome to apply. The McKinley County District Attorney’s Office provides regular courtroom practice and a supportive and collegial work environment. Enjoy the spectacular outdoors in the Adventure Capital of New Mexico. Salaries are negotiable based on experience. Submit letter of interest and resume to Karl R. Gillson, District Attorney, 201 West Hill, Suite 100, Gallup, NM 87301, or e-mail letter to [email protected] By 5:00 p.m. April 19, 2013.

Assistant City AttorneyThe City of Rio Rancho is accepting ap-plications for the position of Assistant City Attorney. Applicants must be admitted to the New Mexico Bar and have excellent written and oral communication skills. Experience in one or more of the following areas sought: municipal law, civil litigation, land use law, and contracts; emphasis on labor and employment law preferred. May also involve misdemeanor prosecution in municipal and district court, and presentation at public meetings of the city’s governing body, boards and commissions. Sal-ary DOQ. EOE. For a complete job description & to apply, go to www.ci.rio-rancho.nm.us, click the Employment link, then Employment Opportunities.





http://www.spo.state.nm.us/

http://www.spo.state.nm.us/




http://www.ci.rio-rancho.nm.us


www.nmbar.org

Legal Secretaries / ParalegalsHigh Desert Staffing seeks candidates with 2-5+ years experience for both permanent and tempo-rary positions. Call for interview: (505) 881-3449

Litigation Paralegal – Santa Fe, NMThe Rodey Law Firm is accepting resumes for a litigation paralegal position to assist attorneys in its Santa Fe Office. Must have a minimum of five years hands-on litigation experience. Appli-cants must possess the ability to manage a case from the beginning through trial, including document production/analysis/organization/maintenance; discovery; all phases of case man-agement; trial preparation and participation. Heavy client contact, interaction with experts. Requires flexibility and ability to manage mul-tiple deadlines. Needs to be a self starter, willing to take initiative and work as a member of case team. Firm offers congenial work environment, competitive compensation and excellent benefit package. Please send resume to [email protected] or mail to Human Resources Manager, PO Box 1888, Albuquerque, NM 87103.

ServiCeS

Reliable Virtual Bankruptcy AssistantNeed help preparing bankruptcy petitions? 18 years experience. Please call Anita L. Slusser at 505-486-1057 or email at [email protected].

Briefs, Research, Appeals--Leave the writing to me. Experienced, effec-tive, reasonable. [email protected] (505) 281 6797

Bookkeeping & AccountingDesert Accounting, LLCBob Hyde, BBA: Accounting505-771-1445www.desertaccounting.net“Do what you do well, and hire us to do what we do well”!

Paralegal Seeking Contract WorkMature, reliable, personable paralegal seeking contract work in Santa Fe and Albuquerque. Especially proficient in writing & editing. John McAndrew at [email protected]. 505-466-4487.

poSitionS Wanted

Legal Research/BriefsRecently retired attorney 25 yr. experience in N.M. solo general civil practice - $40 hr. [email protected]

Want a Second Pair of Eyes?Editing, Writing, Research, Appeals & BriefsContact Shannon Nairn at 980-3813, [email protected]

offiCe SpaCe

620 Roma Building, 620 Roma N.W. Located within two blocks of the three down-town courts. Rent of $550.00 per month includes five conference room, receptionist, all utilities (except phones). Call 243-3751 for appointment to inspect.

453 Cerrillos, Santa FeOffices available with on-site parking. Two blocks to new SF Courthouse-State Supreme Court & Capitol. 170 – 1000 square feet. $475 - $1500/month. Call Lance Armer at 660-2335.

Prestigious Santa Fe “Class A” OfficePrestigious Santa Fe “Class A” office for a law/professional firm. Two story, 5,000 sf. plus 825 sf. records basement. Premier location, adjacent to the State Capital & two blocks from the new District Court House. 1239 Paseo de Peralta. Available September 1, 2013. Contact Fred Soldow 719-239-0520

SecretarySecretary for busy North Valley law office which practices primarily in the areas of fed-eral Indian law, transactional law and federal and state trial and appellate litigation. Full time position requires strong computer, orga-nizational & interpersonal skills along with excellent phone etiquette. Applicant must be self-motivated, with a good work ethic, dem-onstrated computer & word-processing skills and the ability to work well under pressure. Proficiency with Windows environment and Microsoft Office suite is essential. Experience with and/or knowledge of Native American cultures is a plus. Competitive salary & excel-lent benefits. E-mail cover letter, résumé, two professional references and salary expectation to [email protected].

Experienced Paralegal The Kennedy Law Firm is looking for a PARALEGAL with Federal Court Experience. Candidate must be conscientious, hardwork-ing, multi-tasking, ma¬ture, meticulous, and professional to join our team. The position requires excellent attention to detail, accuracy in your work, excellent written and oral com-munication skills, the ability to organize and prioritize, electronic document control, and be familiar with use of the NM Court’s state and federal filing system. Our Law Firm is look¬ing for a self-starter who has the ability to work independently and as part of a TEAM. Very competitive salary and a medical/ dental benefits package will be provided. All responses will be kept strictly confidential. Please send us your resume, cover letter, and writing sample to 1000 Second Street NW Albuquerque, NM 87102, Attn: Erin Pearson.

Looking for Office Space to Share or RentCoors/528, Rio Grande, or Downtown. Sole prac-titioner, one assistant. [email protected].

ParalegalPlaintiff ’s personal injury law firm in Los Lunas seeks paralegal. Successful candidate must be professional, motivated, organized, energetic and capable of multi-tasking in a fast-paced environment. Excellent written and oral communication skills are a must. Will consider legal assistant with excellent poten-tial and motivation to become a paralegal. All responses kept strictly confidential. Please send your cover letter, resume and references to Office Manager, PO Box 2291, Los Lunas, NM 87031.

Legal Assistant/ParalegalSolo criminal trial lawyer needs assistance including office management in fast paced downtown office. Attention to detail and organization, maturity, trustworthiness/good judgment, computer and telephone skills, ability to multitask and work independently. Experience a plus but willing to train. Wonder-ful opportunity for the right candidate. Email ([email protected]) or fax (247-0998) cover letter with resume including references and salary history.

Paralegal/Legal Assistant NeededState of New Mexico Regulation and Licensing Department located in Santa Fe, New Mexico is looking for a Paralegal or Legal Assistant to work on contract. Position will work closely with one attorney to handle administrative prosecutions for the Department. State travel is required. Successful candidate must have excellent computer skills, organizational skills, experience preparing legal documents, calen-daring, and the ability to handle a large case load. Position is 40 hours a week. A resume with references should be sent to the Regula-tion and Licensing Department ATTN: Kelly Storie 2550 Cerrillos Road, Santa Fe, New Mexico 87505.

Experienced ParalegalBusy new Mexico personal injury and medical malpractice firm located in the far NE Heights is looking for an experienced paralegal. An absolute requirement to be considered is at least 5 years of personal injury paralegal ex-perience. Excellent working conditions and benefits. Salary DOE. Send resume to [email protected].




http://www.desertaccounting.net






200 W DeVargas • 505 795 7117 • [email protected]

D AV I D WA LT H E R L AWd Lw

David Walther

American College of Family Trial Lawyers, American Academy of Matrimonial Lawyers, Best Lawyers in America, Super Lawyer, Martindale Hubbell AV rating, New Mexico Certified Family Law Specialist

Traditional client representation including litigation &

settlement facilitation for those whose position and assets require

Exceptional, Discrete Family Law Services

the opening of his new practice in Santa Feannounces


AlbuquerqueSpencer [email protected]

FarmingtonMary Modrich [email protected]

Ken [email protected]

Las CrucesDavid [email protected]

RoswellJared [email protected]

Participate in the Young Lawyers Division

Ask-a-Lawyer Call-in Program

All State Bar members are welcome9 a.m. to 1 p.m., Saturday, May 4

Contact the YLD member near you by April 19 and provide the practice areas for which you will take calls.

Celebrate Law Day

YOUNG LAWYERS DIVISION

























Documents

April 3, 2013 • Volume 52, No. 14 · Bar Bulletin - April 3, 2013 - Volume 52, No. 14 3 ... Jan. 1: #295, Justine Hannaweeke, Zuni, NM 87327. New Mexico Commission . on Access to