State v. Cruz

The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-
112 NMRA, authenticated and formally published. The slip opinion may contain
deviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: March 4, 2021

NO. S-1-SC-37751

STATE OF NEW MEXICO,
Plaintiff-Respondent,

v.

ANTONIO CRUZ,
Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
William G. W. Shoobridge, District Judge

Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Assistant Appellate Defender
Santa Fe, NM
for Petitioner

Hector H. Balderas, Attorney General
John Kloss, Assistant Attorney General
Santa Fe, NM

for Respondent
 OPINION

VIGIL, Justice.
{1} This case serves as a reminder that fundamental constitutional rights cannot

be jettisoned for the sake of judicial efficiency. At every level of our courts, the

Constitution must stand as an immovable bulwark to secure the rights of individuals

in every case. Central to our criminal justice system is the right to counsel, which in

turn ensures the protection of all other rights. It is the right to counsel that was denied

in this case.

{2} Defendant Antonio Cruz was convicted at his arraignment in the Lea County

magistrate court on June 30, 2017. His conviction was obtained through an

uncounseled plea of no contest to a single count of misdemeanor criminal damage

to property of a household member. At arraignment, he also requested an attorney.

The magistrate appointed the Law Offices of the Public Defender (LOPD) to

represent him. One month later, an attorney from the LOPD entered an appearance

in the case and sought to withdraw the uncounseled plea. The magistrate court denied

the request to withdraw the plea and proceeded to sentencing. Defendant appealed.

The district court dismissed the appeal without prejudice because Defendant did not

bring the case to trial within six months. Subsequently, following a show cause

hearing, the district court dismissed the appeal with prejudice and remanded the case
to magistrate court to enforce the sentence. The Court of Appeals upheld the district

court’s dismissal of the case. State v. Cruz, A-1-CA-37581, mem. op. ¶ 1 (May 24,

2019) (non-precedential).

{3} We granted certiorari to consider Defendant’s argument that he was denied

due process and received ineffective assistance of counsel. We conclude that

Defendant’s plea is void because the magistrate court deprived Defendant of the

right to counsel and due process by accepting his plea of no contest without

providing him counsel. We further conclude that the district court lacked authority

to dismiss Defendant’s timely-filed appeal because there is no longer a six-month

rule applicable to district courts, and it is the State, not Defendant, that bears the

burden of bringing a case to trial. Accordingly, we reverse the Court of Appeals’

affirmance of Defendant’s conviction.

I. BACKGROUND

A. Adjudication at Arraignment in the Absence of Attorneys

{4} This case began when Defendant’s girlfriend reported that Defendant had

broken various items in her home, including dishes and a flowerpot. Defendant was

arrested on the charge of misdemeanor criminal damage to property of a household

member. Defendant was arraigned in magistrate court on June 30, 2017, the day after

his arrest.

2
{5} At his arraignment, Defendant did not have counsel and asked for a public

defender. The magistrate entered an order conditionally appointing the LOPD,

“find[ing] that the defendant is unable to obtain counsel and desires representation

by the [LOPD].”

{6} In that same proceeding—while Defendant stood accused of a crime and had

requested but did not yet have counsel—the magistrate adjudicated Defendant’s

guilt. At the top right-hand corner of the misdemeanor arraignment form, the

magistrate handwrote the words “No Contest” under the typed word “Plea.” On the

line marked “Defendant Plea” the magistrate checked the box for “Guilty/No

Contest – proceed with Guilty Plea Proceeding form” and circled the words “No

Contest[.]”On the line marked “Set For (hearing type)” the magistrate handwrote the

word “Sentencing.”

{7} Because “[t]he magistrate court is not a court of record[,]” NMSA 1978, § 35-

1-1 (1968), there is no transcript of the arraignment. The only documents generated

in court during the arraignment were the one-page arraignment sheet and the

conditional order appointing the LOPD, discussed above, as well as a waiver of jury

trial form and an “advice of rights per Rule 6-501 [NMRA]” form that lists the basic

rights to be explained to a defendant at arraignment under Rule 6-501(A).

3
B. Magistrate Court Proceedings After Counsel Entered the Case

{8} On August 4, 2017, more than one month after Defendant’s arraignment and

appointment of counsel, an LOPD attorney entered his appearance on behalf of

Defendant. Shortly thereafter, counsel filed a motion to withdraw Defendant’s

uncounseled plea. He noted that Defendant did not have counsel at arraignment

when he entered the plea and argued that Defendant should be permitted to withdraw

his plea under the “fair and just” standard set forth in State v. Hunter, 2005-NMCA-

089, 138 N.M. 96, 117 P.3d 254, aff’d on other grounds, 2006-NMSC-043, 140

N.M. 406, 143 P.3d 168. Counsel argued that Defendant, who had not completed his

high school education and who suffered from post-traumatic stress disorder, had not

entered into the plea “knowingly nor voluntarily as [he] was unable to fully

comprehend the penalties and collateral consequences of his actions, nor [could] he

conceptualize probable cause.” Counsel also argued that Defendant’s “quality of

assistance was the lowest of the low—None; pro-se representation while burdened

by his mental deficiencies.” He argued that the State would not be prejudiced and

the court would not be inconvenienced, but rather, that allowing the plea withdrawal

would conserve judicial resources because “[w]ith the appointment of undersigned

counsel the case should be able to reach an expedient and just resolution without the

taint of any constitutional deprivations.”

4
{9} The magistrate court set a hearing on the motion to withdraw the plea for

August 25, 2017, at 9:00 a.m., the same time set for sentencing. At the hearing, the

magistrate denied the motion to withdraw the plea, writing only that the court had

been “sufficiently advised” and found “just cause to deny this motion.”

{10} The magistrate sentenced Defendant to 364 days’ incarceration in the Lea

County Detention Facility with two days’ credit for time served. The magistrate

suspended the remaining 362 days and placed Defendant on supervised probation

for 182 days to be followed by 180 days of unsupervised probation. Finally, the

magistrate imposed a $1,000 fine, suspended $800 of that fine, and charged $123 in

fees, for a total of $323.

C. District Court Proceedings
{11} On August 31, 2017, Defendant, through counsel, filed a timely appeal and

demand for jury trial in the district court. See Rule 6-703(A) NMRA (providing

fifteen days to file a notice of appeal from a magistrate court judgment). Neither

defense counsel nor the State took any further action on the case for eight months.

{12} On April 26, 2018, the district court entered a “disposition order for lack of

prosecution” on its own motion. The order dismissed the case without prejudice

because “no significant action ha[d] been taken” on the case in more than 180 days.

The district court did not cite a rule under which it was dismissing the case nor did

5
it allege that Defendant had violated any specific rule. The order provided that any

party could move to reinstate the case within thirty days. Thirty days passed, and no

motion was filed.

{13} On June 19, 2018, the district court entered an order to show cause. The order

stated that because Defendant failed to request a hearing, the appeal would be

dismissed and remanded to magistrate court in ten days unless Defendant “show[ed]

good cause why the appeal should not be dismissed.”

{14} Defense counsel filed a response the following day. Counsel argued that “[o]n

April 24 [sic], 2018, this matter was disposed of due to lack of prosecution; taking

the plain meaning of the titled order the appellant operated under the belief that the

matter was resolved in his favor, and that the Court would issue a remand order to

the same effect.” “In the alternat[ive],” counsel argued, “if this Court did not intend

to dismiss the matter due to the State’s failure to prosecute the de novo appeal,

Defendant requests that the matter be set for a de novo trial at the Court’s earliest

convenience.”

{15} A hearing on the order to show cause was set for July 31, 2018. Counsel

appeared on behalf of Defendant, who was not present, and requested that the district

court waive Defendant’s appearance. The district court granted the waiver of

appearance and discussion moved on to the merits.

6
{16} The district court noted that its order dismissing the appeal for lack of

prosecution was “more appropriate in a civil case,” but stated that “there is a . . .

criminal rule about getting these matters heard within six months.” Defense counsel

agreed that “matters should be heard within six months” under the unspecified rule.

He stated, “I believe the case law too . . . ultimately places the burden on defense

counsel” and therefore “the lapse of time ultimately falls on my shoulders.” Defense

counsel did not explain what rule or case law informed his thinking.

{17} Defense counsel asked that the appeal not be dismissed because he had

misunderstood the district court’s order dismissing the appeal “for lack of

prosecution” as an order dismissing the charges. He explained that he had limited

practice experience in New Mexico and had a “limited knowledge . . . of New

Mexico case law.” He stated that he had failed to request a hearing when he filed the

notice of appeal because he thought that the court would schedule the hearing on its

own. He asked that the court set the case for a hearing.

{18} The district court ruled as follows:

[The] court’s going to go ahead and find that the notice of appeal was
filed over [sic] a year ago; that this involves a criminal damage to
property of a household member under $1,000; that the court gave
notice of dismissal, there was no action taken within the thirty days, this
matter has not come to hearing within six months. The matter is
dismissed. It will be remanded back to magistrate court.

7
{19} The district court entered a written order finding that “[n]o sufficient cause

was shown as to why the appeal should not be dismissed[,]” dismissing the appeal,

and remanding to the magistrate court for enforcement of its sentence.

D. The Case Before the Court of Appeals
{20} Defendant timely appealed to the Court of Appeals. In the docketing

statement, defense counsel raised only the issue of ineffective assistance of counsel.

Defense counsel reiterated his assertion that he personally bore responsibility for

failing to move to reinstate Defendant’s appeal after the district court first dismissed

it, explaining that “defense counsel misconstrued the term-of-art within the title of

the Court’s order as a judgment in favor of . . . [D]efendant.” He asserted that the

defense has the burden of bringing a magistrate court appeal to trial under State v.

Hrabak, 1983-NMCA-100, 100 N.M. 303, 669 P.2d 1098.

{21} The Court of Appeals proposed summary affirmance. Cruz, A-1-CA-37581,

mem. op. ¶ 1. Defendant filed a memorandum in opposition arguing that he received

ineffective assistance of counsel and was denied due process on appeal. Id. ¶ 3. He

also filed a “motion to amend the docketing statement seek[ing] to add the issue of

8
whether the district court erred in dismissing the case with prejudice when Defendant

did not appear at the show cause hearing.”1 Id. ¶ 4.

{22} In a memorandum opinion, the Court of Appeals determined that it did not

have a sufficient record to rule on the ineffective assistance of counsel claim because

“the record is silent as to whether Defendant actually wished to continue pursuit of

his appeal or the reason for Defendant’s failure to appear and counsel’s failure to

request reinstatement,” facts which the Court of Appeals assessed as “key to the

necessary determination of whether counsel’s errors caused prejudice.” Id. ¶ 3.

{23} As for Defendant’s contention that the district court improperly dismissed the

case for Defendant’s failure to appear at the show cause hearing, the Court of

Appeals again concluded that Defendant failed to develop the facts necessary to rule

on the issue. Id. ¶ 5. “Without any information about how defense counsel responded

to the order to show cause . . . [and] multiple inferences still possible from the

information available from the record, we cannot conclude that the district court

erred by dismissing the appeal[.]” Id. The Court of Appeals did not discuss the

1
Defendant’s absence from the show cause hearing was irrelevant to the
district court’s decision to dismiss the appeal. The district court granted the request
to waive Defendant’s appearance at the hearing. As discussed below, the district
court dismissed the case for violation of the so-called “six-month rule,” not
Defendant’s absence.

9
applicable rules of procedure that would allow a district court to dismiss an appeal.

The Court of Appeals concluded, “Faced with inactivity in the case, an absent

Defendant, no request to reinstate the appeal,[2] and no clear statement relative to

Defendant’s interest and cooperation in pursuing the appeal, we are unable to

conclude that the district court erred by dismissing the case rather than reinstating

it.” Id. ¶ 6.

E. The Briefs Before This Court on Certiorari
{24} Defendant asserts that he was erroneously deprived of his appeal of right

“[t]hrough no fault of his own,” which violated due process under Evitts v. Lucey,

469 U.S. 387 (1985). Defendant faults trial counsel for this deprivation, arguing that

trial counsel’s apparent belief that the State has the “burden to bring [Defendant’s]

magistrate court appeal to trial . . . is not the law in New Mexico.” According to

Defendant, trial counsel’s misapprehension of the law caused the dismissal of his

appeal, which not only resulted in a due process violation, but was also ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

2
Defense counsel requested to reinstate the appeal prior to the show cause
hearing, writing in response to the order to show cause, “[D]efendant requests that
the matter be set for a de novo trial at the Court’s earliest convenience.” At the show
cause hearing, he again requested that the district court not dismiss the matter but
set it for a hearing.

10
Defendant contends that under Strickland, trial counsel’s failure to reinstate the

appeal after the first dismissal constituted deficient performance, and Defendant was

prejudiced by that failure because the appeal was then dismissed with prejudice.

Defendant also argues that the district court erred in dismissing his appeal based on

his failure to appear at the show cause hearing because Defendant’s presence was

not required.

{25} The State first responds that Defendant had no right to appeal from the

magistrate court judgment in the first instance. It argues that Defendant waived his

right to appeal because Defendant entered into a “non-conditional plea agreement”

through which he “agreed not to be aggrieved[.]”

{26} In the alternative, however, the State offers a concession and argues that

reversal is required because the district court abused its discretion in dismissing the

appeal.3 The State notes that it was “unable to identify a legal basis” for the district

court’s initial order of dismissal for lack of prosecution, and concludes that “the

district court based both of its orders of dismissal on a misapprehension of law[.]” It

points out that Rules 5-826 and 5-828 NMRA, which govern criminal appeals from

3
The State did not have the opportunity to present this argument to the Court
of Appeals because this case was decided on that court’s summary calendar. When
summary affirmance is proposed, as it was in this case, the appellee does not file a
brief. See Rule 12-210(D) NMRA.

11
magistrate court to district court, “do not specify that such matters must be heard

within six months,” nor do they provide “that when a defendant [properly] . . . filed

a notice of appeal and jury demand in the district court, . . . such an appeal will be

dismissed in favor of the State if nothing else happens within any particular period

of time.”

II. DISCUSSION

{27} We agree with Defendant that he was denied due process, but for reasons other

than those offered by Defendant. The fundamental flaw with the process that

Defendant received is that he was completely deprived of the right to counsel when

he pleaded no contest. This was a direct violation of the Sixth Amendment right to

counsel and also a violation of due process. A conviction obtained through a

deprivation of the right to counsel is plainly invalid. Because we vacate Defendant’s

conviction on this ground, we do not address his other argument.

{28} We are not persuaded by the State’s argument that Defendant waived his right

to appeal from the magistrate court judgment by entering an unconditional plea.

Because Defendant was completely deprived of counsel at his plea, the plea was

void. Defendant was an aggrieved party with a right to appeal. We agree with the

State, however, that the district court did not have a legal basis to dismiss

Defendant’s appeal. We address each of these issues in turn.

12
A. Jurisdiction and Standard of Review
{29} Deprivation of the right to counsel is deprivation of a fundamental right. See

Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“The right of one charged with

crime to counsel may not be deemed fundamental and essential to fair trials in some

countries, but it is in ours.”); Johnson v. Zerbst, 304 U.S. 458, 462 (1938) (calling

the right to counsel “one of the safeguards of the Sixth Amendment deemed

necessary to insure fundamental human rights of life and liberty”); State v. Padilla,

2002-NMSC-016, ¶ 22, 132 N.M. 247, 46 P.3d 1247 (“It bears emphasis that the

right to be represented by counsel is among the most fundamental of rights.”

(internal quotation marks and citation omitted)). The integrity of the adversarial

process depends upon the provision of counsel to the accused. See Gideon, 372 U.S.

at 344-45 (discussing the indispensable role of counsel in the adversarial system);

United States v. Cronic, 466 U.S. 648, 653-54 (1984) (same); Strickland, 466 U.S.

at 685 (same).

{30} Although defense counsel did not raise this issue, “appellate courts have a

responsibility to raise issues sua sponte when it is necessary to protect a party’s

fundamental rights[.]” State v. Samora, 2016-NMSC-031, ¶ 33, 387 P.3d 230 (citing

State v. Arrendondo, 2012-NMSC-013, ¶ 20, 278 P.3d 517); see also Rule 12-

321(B)(2) NMRA (recognizing an exception to the preservation requirement that

13
allows an appellate court to consider in its discretion “issues involving . . .

fundamental rights of a party”). We exercise our discretion to reach the issue of

deprivation of counsel sua sponte. See Arrendondo, 2012-NMSC-013, ¶ 20

(exercising “this Court’s inherent authority to raise an issue sua sponte when it is

necessary to protect a party’s fundamental rights”); Samora, 2016-NMSC-031, ¶ 33.

{31} “The right to appeal is . . . a matter of substantive law created by constitutional

or statutory provision[,]” thus our review of whether Defendant was entitled to

appeal is de novo. State v. Armijo, 2016-NMSC-021, ¶ 19, 375 P.3d 415; see also,

e.g., State v. Krause, 1998-NMCA-013, ¶ 3, 124 N.M. 415, 951 P.2d 1076 (stating

that the issue of whether the defendant was entitled to a de novo appeal in district

court is a legal issue that is reviewed de novo).

{32} We review the question of whether the district court had authority to dismiss

Defendant’s appeal de novo, because this question requires us to interpret Rule 5-

828 of our Rules of Criminal Procedure. “The proper interpretation of our Rules of

Criminal Procedure is a question of law that we review de novo.” Allen v. LeMaster,

2012-NMSC-001, ¶ 11, 267 P.3d 806.

14
B. Defendant’s Conviction Is Invalid Because He Was Deprived of Counsel
During His Plea
{33} After the Sixth Amendment right to counsel has attached, courts may not

adjudicate a person’s guilt in the absence of counsel or valid waiver of counsel. In

this case, the magistrate court adjudicated Defendant’s guilt in the absence of

counsel and without a waiver of the right to counsel. By finding Defendant guilty

under such circumstances, the magistrate court created a “structural defect” that

“def[ies] analysis by ‘harmless-error’ standards” because it completely deprived

Defendant of counsel at the critical guilt-determination stage. Arizona v. Fulminante,

499 U.S. 279, 309-310 (1991) (referencing constitutional violations that are not

subject to harmless error analysis, including that involved in Gideon, 372 U.S. at

344).

1. Defendant’s right to counsel had attached and was not waived

{34} The Sixth Amendment to the United States Constitution, applicable to the

states through the Fourteenth Amendment, provides every criminal defendant “the

right to . . . the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The

right attaches at least as early as arraignment, or whenever “judicial proceedings

have been initiated against [a defendant].” Brewer v. Williams, 430 U.S. 387, 398

(1977). “[B]y the time a defendant is brought before a judicial officer, is informed

of a formally lodged accusation, and has restrictions imposed on his [or her] liberty

15
in aid of the prosecution, the State’s relationship with the defendant has become

solidly adversarial.” Rothgery v. Gillespie Cnty, 554 U.S. 191, 202 (2008). At that

point, the Sixth Amendment interposes “the protective shield of a lawyer between

[the accused] and the awesome power of the State.” Brewer, 430 U.S. at 409

(Marshall, J., concurring).

{35} The right attaches regardless of a defendant’s ability to hire counsel. Johnson,

304 U.S. at 467 (holding that federal criminal defendants have a Sixth Amendment

right to appointed counsel); Gideon, 372 U.S. at 341-42 (extending the right to

counsel to state court defendants through the Fourteenth Amendment); NMSA 1978,

§ 31-16-3(B) (1968) (entitling “a needy person” to representation by an attorney at

all stages of a proceeding). The right attaches regardless of the level of offense

charged: states must provide counsel even for petty offenses if the offense “actually

leads to imprisonment even for a brief period[.]” Argersinger v. Hamlin, 407 U.S.

25, 33 (1972). Furthermore, the right attaches whether the sentence is suspended in

whole or in part. Alabama v. Shelton, 535 U.S. 654, 658 (2002) (“[A] suspended

sentence that may end up in the actual deprivation of a person’s liberty may not be

imposed unless the defendant was accorded the guiding hand of counsel in the

prosecution for the crime charged.” (internal quotation marks and citation omitted)).

While a defendant may waive the right to counsel, there is a strong presumption

16
against waiver. Zerbst, 304 U.S. at 464 (pointing out that “courts indulge every

reasonable presumption against waiver of fundamental constitutional rights,”

including right to counsel) (internal quotation marks and citation omitted).

{36} Defendant did not waive his right to counsel in this case. Quite the opposite:

He asserted his right, even though he did not need to do so to retain the right. See

Brewer, 430 U.S. at 404 (“[T]he right to counsel does not depend upon a request by

the defendant.”). In this case, the magistrate recognized Defendant’s assertion of the

right to counsel by finding that Defendant “desire[d] representation by the [LOPD]”

and ordering the appointment of counsel. Thus, there is no question that Defendant

had the right to counsel at arraignment: the Constitution, statute, presumption against

waiver, evidence of affirmative request for counsel, and court order appointing

counsel amply demonstrate that fact.

{37} Furthermore, because Defendant had the right to counsel and did not waive it,

it would be inaccurate to view the plea as a “pro se” plea. Defendant entered his plea

without the benefit of counsel, and in that sense appeared “pro se.” But appearing

without counsel does not imply an exercise of the right to self-representation. See

generally State v. Stallings, 2020-NMSC-019, ¶¶ 41-61, 476 P.3d 905 (explaining

that defendants must timely invoke the right to self-representation and competently

waive the right to counsel in order to proceed pro se in a criminal case). This was

17
not the plea of a self-represented party, but of a defendant who was deprived of

counsel.

2. Depriving Defendant of counsel at the guilt-determination stage was
reversible error
{38} The fact that the magistrate conducted the arraignment without providing

Defendant with counsel does not, in and of itself, constitute reversible error.

Deprivation of counsel at arraignment does not amount to reversible error unless the

defendant was prejudiced by the deprivation. State v. Cisneros, 1967-NMSC-015, ¶

3, 77 N.M. 361, 423 P.2d 45 (concluding that deprivation of counsel at arraignment

did not violate the Constitution because the defendant had counsel at trial); State v.

Torres, 1970-NMCA-017, ¶¶ 7, 8, 81 N.M. 521, 469 P.2d 166 (concluding that

deprivation of counsel at arraignment did not violate the constitution because the

defendant entered a not guilty plea at arraignment).

{39} But those cases are readily distinguishable from this one. For example, in

Torres, our Court of Appeals held that the defendant was not prejudiced by the

deprivation of counsel at arraignment because he pleaded not guilty and “[n]othing

which occurred at arraignment was used against him.” Id. ¶ 8. The defendant in

Cisneros lacked counsel for both the preliminary hearing and arraignment, at which

he pleaded not guilty. Cisneros, 1967-NMSC-015, ¶ 1. However, the defendant was

18
afforded counsel at trial, and the Court of Appeals held that the defendant was not

deprived of his right to counsel nor prejudiced. Id. ¶ 3 (applying the conclusion

reached in Sanders v. Cox, 1964-NMSC-214, 74 N.M. 524, 395 P.2d 353). In

contrast, Defendant in this case was prejudiced by the deprivation of counsel

because, unlike the not guilty pleas in Torres and Cisneros, Defendant’s plea of no

contest was itself a conviction. See Boykin v. Alabama, 395 U.S. 238, 242 (1969)

(noting that a guilty plea “is itself a conviction; nothing remains but to give judgment

and determine punishment”); see also, e.g., Kipnis v. Jusbasche, 2017-NMSC-006,

¶¶ 15, 16, 388 P.3d 654 (noting that a no contest plea is the same as a guilty plea

with regard to the case in which the plea is entered, and the difference lies in their

effects on subsequent cases).

{40} Here, deprivation of counsel at arraignment was reversible error because his

guilt was adjudicated in that proceeding. The Sixth Amendment undoubtedly

requires that a defendant be provided counsel “at the critical stage when [the

defendant’s] guilt or innocence of the charged crime is decided and his [or her]

vulnerability to imprisonment is determined[.]” Shelton, 535 U.S. at 674; see Iowa

v. Tovar, 541 U.S. 77, 81 (2004) (“The entry of a guilty plea, whether to a

misdemeanor or a felony charge, ranks as a ‘critical stage’ at which the right to

counsel adheres.” (citation omitted)); Patterson v. LeMaster, 2001-NMSC-013,

19
¶ 16, 130 N.M. 179, 21 P.3d 1032 (“[A]ssistance of counsel is necessary during plea

negotiations because the most important decision for a defendant in a criminal case

is generally whether to contest a charge or enter into a plea agreement.”), overruled

on other grounds, State v. Martinez, 2021-NMSC-002, ¶ 72, 478 P.3d 880. “If no

actual ‘Assistance’ ‘for’ the accused’s ‘defence’ is provided, then the constitutional

guarantee has been violated.” Cronic, 466 U.S. at 654.

{41} Reversal is automatic if a defendant is completely deprived of counsel when

guilt is determined; the defendant need not demonstrate prejudice. Id. at 653-59;

Strickland, 466 U.S. at 692; White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam);

Williams v. Kaiser, 323 U.S. 471, 475-76 (1945); see also Chapman v. California,

386 U.S. 18, 23 n.8 (1967) (recognizing that deprivation of counsel is never treated

as harmless error); Fulminante, 499 U.S. at 309 (same). Because Defendant had the

right to counsel, yet no lawyer assisted him at the critical stage in which Defendant

made his plea, Defendant’s Sixth Amendment right to counsel was directly violated

and reversal is required.

{42} To emphasize the severity of the constitutional violation that occurred here,

we note that depriving a defendant of counsel affects more than one constitutional

right. The presence of defense counsel is “the means through which the other rights

of the person on trial are secured. . . . Of all the rights that an accused person has,

20
the right to be represented by counsel is by far the most pervasive for it affects his

[or her] ability to assert any other rights he [or she] may have.” Cronic, 466 U.S. at

653-54 (internal quotation marks and citation omitted). Every deprivation of counsel

violates not only the Sixth Amendment right to counsel but also, at a minimum, the

due process clause of the Fifth and Fourteenth Amendments. See Strickland, 466

U.S. at 684-85 (“[T]he Sixth Amendment right to counsel exists, and is needed, in

order to protect the fundamental right to a fair trial. The Constitution guarantees a

fair trial through the Due Process Clauses, but it defines the basic elements of a fair

trial largely through the several provisions of the Sixth Amendment, including the

Counsel Clause[.]”); Argersinger, 407 U.S. at 28 (“[D]ue process requires that the

accused have the assistance of counsel for his [or her] defense[.]” (internal quotation

marks and citation omitted)); Powell v. Alabama, 287 U.S. 45, 71 (1932) (holding

that trial court’s failure to allow defendants time to secure counsel before trial “was

a clear denial of due process”). And because a plea “obtained in violation of due

process . . . is therefore void[,]” McCarthy v. United States, 394 U.S. 459, 466

(1969), Defendant’s plea is void.

{43} Similarly, because the conviction was obtained in direct violation of the Sixth

Amendment, the magistrate court lacked jurisdiction to impose a sentence. “Since

the Sixth Amendment constitutionally entitles one charged with crime to the

21
assistance of counsel, compliance with this constitutional mandate is an essential

jurisdictional prerequisite to a federal court’s authority to deprive an accused of his

[or her] life or liberty.” Johnson, 304 U.S. at 467; see also Gideon, 372 U.S. at 341-

42 (applying the Sixth Amendment right to counsel to the states through the

Fourteenth Amendment).

If the accused . . . is not represented by counsel and has not competently
and intelligently waived his [or her] constitutional right, the Sixth
Amendment stands as a jurisdictional bar to a valid conviction and
sentence depriving [the accused] of his [or her] life or his [or her]
liberty.

Johnson, 304 U.S. at 468. For the foregoing reasons, Defendant’s conviction

resulting from his no-contest plea and the judgment and sentence imposed are

invalid.

C. Defendant Did Not Waive His Right to Appeal
{44} Having demonstrated the invalidity of Defendant’s plea, we are not persuaded

by the State’s argument that Defendant waived his right to appeal by entering a

nonconditional plea. A guilty plea that has been obtained in violation of the

Constitution does not waive the right to appeal. See Brady v. United States, 397 U.S.

742, 757-58 (1970) (“[G]uilty plea convictions . . . [are] no more foolproof than full

trials to the court or to the jury. Accordingly, we take great precautions against

unsound results, and we should continue to do so, whether conviction is by plea or

22
by trial.”); Evitts, 469 U.S. at 399-400 (“A system of appeal as of right is established

precisely to assure that only those who are validly convicted have their freedom

drastically curtailed. A State may not extinguish this right because another right of

the appellant—the right to effective assistance of counsel—has been violated.”).

Certainly, a conviction resulting from an outright denial of counsel is reviewable on

appeal.

The purpose of the constitutional guaranty of a right to counsel is to
protect an accused from conviction resulting from his [or her] own
ignorance of his [or her] legal and constitutional rights, and the
guaranty would be nullified by a determination that an accused’s
ignorant failure to claim his [or her] rights removes the protection of
the Constitution.

Johnson, 304 U.S. at 465. We conclude that Defendant had the right to appeal from

his invalid conviction.

D. The District Court Erroneously Dismissed Defendant’s Appeal
{45} The district court’s first order dismissing Defendant’s appeal without

prejudice was based exclusively on the fact that the case was dormant; that is,

Defendant had not taken action on the case in more than 180 days. The district

court’s second order dismissing the appeal with prejudice was also based on the six-

month case dormancy, with the additional ground that defense counsel did not

provide a sufficient reason for failing to move for reinstatement of the appeal after

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the first order was issued that dismissed the appeal without prejudice. As the district

court explained in its ruling at the end of the order to show cause hearing: “The court

gave notice of dismissal, there was no action taken within the thirty days, this matter

has not come to a hearing within six months. The matter is dismissed.”

{46} The district court erred in two respects. First, our Rules of Criminal Procedure

do not require a district court to dismiss a criminal appeal from the magistrate court

if the case is not brought to trial within six months. We abolished the so-called “six-

month rule” as applied to district courts in State v. Savedra, 2010-NMSC-025, ¶ 9,

148 N.M. 301, 236 P.3d 20, where we held that

[w]ithin the context of criminal proceedings in our courts of limited
jurisdiction, our six-month rules continue to serve a useful purpose. But
in our district courts, the six-month rule has become an unnecessary and
sometimes counterproductive method for protecting a defendant’s right
to a speedy trial. Therefore, effective for all cases pending as of the date
this [o]pinion is filed, we withdraw the six-month rule provisions set
forth in Rule 5-604(B)-(E) [NMRA].
{47} The State candidly acknowledges that there is no provision in the Rules of

Criminal Procedure that would allow the district court to dismiss a magistrate court

appeal simply because the case is dormant. Rule 5-828 provides only two grounds

on which a district court may dismiss a magistrate court appeal: “fail[ure] to appear

at the trial de novo” or “fail[ure] to comply with these rules. Rule 5-828. Neither

applied to this case. The only rule with which the Defendant had failed to comply,

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according to the district court’s order, was the long-since abolished “six-month

rule.” As set forth above, that was error.

{48} Second, the district court erred by effectively shifting the burden to Defendant

to bring himself to trial. NMSA 1978, Section 39-3-1 (1955), provides that “[a]ll

appeals from inferior tribunals to the district courts shall be tried anew . . . on their

merits, as if no trial had been had below, except as otherwise provided by law.”

Because an appeal to the district court begins the trial process anew, the burden of

prosecuting the case remains, as ever, with the prosecutor. “A defendant has no duty

to bring himself [or herself] to trial; the State has that duty as well as the duty of

insuring that the trial is consistent with due process.” Barker v. Wingo, 407 U.S. 514,

527 (1972) (footnote omitted); see also State v. Stock, 2006-NMCA-140, ¶ 17, 140

N.M. 676, 147 P.3d 885 (“[I]t is ultimately the State’s responsibility to bring a

defendant to trial in a timely manner.”); State v. Marquez, 2001-NMCA-062, ¶ 8,

130 N.M. 651, 29 P.3d 1052 (same). Thus, if the district court would have sought to

sanction a party for failure to move the case to trial in a timely manner, it should

have considered sanctioning the State, as the responsible party, rather than

Defendant. See Hrabak, 1983-NMCA-100, ¶¶ 1-2 (dismissing the state’s complaint,

not the defendant’s appeal, when the state did not bring an appeal from a magistrate

court judgment to trial within the time limits set by rule).

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{49} We note that this latter point was evidently a source of confusion in this case,

as both the district court and defense counsel apparently concluded that a defendant

has the burden to move his or her criminal case forward in a de novo appeal to the

district court. We correct that misunderstanding here. We clarify that while a

defendant has the burden to file a de novo appeal according to the applicable rules

of procedure, the defendant does not have the burden to move the case forward

thereafter. After an appeal is properly filed, the defendant retains the right to a

speedy trial and the state retains the burden to bring the case to trial de novo in a

timely manner.

{50} We hold that the district court acted outside the scope of its authority under

Rule 5-828 when it dismissed Defendant’s appeal for violation of time limits that no

longer exist under our Rules of Criminal Procedure. Therefore, we reverse.

III. CONCLUSION

{51} Defendant was unconstitutionally deprived of the right to counsel when his

guilt was determined, resulting in a direct Sixth Amendment violation and a denial

of due process. Defendant’s plea was therefore void and the magistrate court did not

have jurisdiction to sentence him. The district court did not have the authority to

dismiss the appeal based on a “six-month rule” violation because that rule no longer

26
exists. Accordingly, we reverse and remand for proceedings consistent with this

opinion.

{52} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

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