State v. Romero

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 10:07:02 2011.12.15

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-013

Filing Date: March 16, 2011

Docket No. 32,283

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

LEONARD ROMERO,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Gary K. King, Attorney General
Ralph E. Trujillo, Assistant Attorney General
Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

CHÁVEZ, Justice.

{1} This case is on appeal solely to determine whether it is a “pending” case for purposes
of the procedural rule change announced in State v. Savedra, 2010-NMSC-025, ¶ 9, 148
N.M. 301, 236 P.3d 20. Savedra eliminated portions of Rule 5-604 NMRA (“the six-month
rule”) effective for all cases pending in district court as of the date Savedra was filed. We
explained that instead of the six-month rule, “defendants may rely upon and assert their right
to a speedy trial whenever they believe impermissible delay has occurred; whether that delay
is the result of a dismissal and refiling or any other cause.” 2010-NMSC-025, ¶ 9. We

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recently clarified that for all prosecutions originating in district court, “pending” for
purposes of Savedra includes cases at the district court or appellate level as of May 12, 2010.
State v. Martinez, 2011-NMSC-010, ¶ 10, ___ N.M. ___, ___ P.3d ___ (No. 32,069, Feb. 25,
2011). Therefore, the six-month rule does not apply to Romero’s case. However, Romero
also asserts that withdrawing the six-month rule for his case would deprive him of due
process under the United States and New Mexico Constitutions because retroactive
application is a prohibited ex post facto law. We reject Romero’s argument for three
reasons: (1) federal due process protection only extends to ex post facto situations that do
not include procedural rules not affecting substantive matters, (2) Romero does not have a
protected interest in procedural rules, and (3) we have the authority to give a rule prospective
or retrospective application without offending constitutional principles.

BACKGROUND

{2} Defendant Leonard Romero was charged with an open count of murder, contrary to
NMSA 1978, Section 30-2-1(A)(1) (1994); four counts of tampering with evidence, contrary
to NMSA 1978, Section 30-22-5 (2003); conspiracy to commit tampering with evidence,
contrary to NMSA 1978, Section 30-28-2 (1979) and Section 30-22-5; and possession of a
firearm or destructive device by a felon, contrary to NMSA 1978, Section 30-7-16 (2001).
Romero was arraigned in district court on October 6, 2008. Prior to October 6, 2008, an
assistant public defender had already entered an appearance and asserted Romero’s right to
a speedy trial. Romero again asserted his right to a speedy trial in a motion to compel
discovery on December 12, 2008 because he had not yet received any discovery from the
State. On December 23, 2008, Romero once again asserted his due process and speedy trial
rights. On January 30, 2009, Romero’s new private counsel entered an appearance and
asserted his speedy trial rights for the fourth time.

{3} On March 19, 2009, the State filed a Rule 5-604 petition for an extension of time to
commence trial until October 6, 2009, explaining that “the parties need more time to conduct
pretrial discovery and interviews” and citing the fact that the State had not received the
finalized reports from the lead detective until March 10, 2009. Romero opposed the petition.
The district judge granted an extension only until July 6, 2009. On June 30, 2009, the State
filed a second Rule 5-604 petition, asserting that because of newly-discovered evidence the
parties needed additional time to conduct interviews. Romero concurred with this petition.
The district court granted the petition, extending the time for trial until October 6, 2009.

{4} On October 15, 2009, the State failed to appear for a pretrial conference. The State
subsequently filed another Rule 5-604 petition on October 26, 2009 that was opposed by
Romero. The State’s petition acknowledged that it was filed after the time for trial had
expired and well after the ten-day grace period for seeking an extension. However, the State
contended that Rule 5-604, as amended effective September 1, 2009, authorized the district
court to grant an untimely petition. The State argued that the amended rule requires the
court to conduct a speedy trial violation analysis before denying a motion for an extension.
Romero disagreed, arguing that analysis of the speedy trial factors is only required if the

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State files a timely motion for an extension, and having failed to do so, the court was
required to deny the motion and dismiss the case. The district court agreed with Romero and
declined to engage in what would effectively be a speedy trial analysis because the State
failed to show exceptional circumstances for filing the motion well beyond any deadlines
required under Rule 5-604.

{5} Romero subsequently filed a motion to dismiss with prejudice under the six-month
rule. During the hearing, Romero argued that under the six-month rule and existing case law
at the time of the hearing he was not required to establish prejudice, because in his view his
motion was not a speedy trial motion. Nevertheless, Romero did attempt to show prejudice,
largely at the district judge’s request. Romero pointed out that he had been kept in
segregation for the past year due to the severity of the alleged crime and also argued that he
had been unable to pursue a plea deal due to discovery delays and the State’s failure to
diligently pursue his case. At the conclusion of the hearing, the district court explained that
under Rule 5-604, an untimely petition filed outside the ten-day grace period required
“exceptional circumstances beyond the control of the parties or trial court.” The court then
concluded that there was no showing of exceptional circumstances by the State, and
“[w]ithout that having happened . . . the rule does not allow [the court] to look at cause or
any of the other factors” such as prejudice. The court accordingly granted Romero’s motion
to dismiss. At a later hearing to present the court’s order, the district judge again explained
that while “the defense did outline prejudice,” he did not think he would even get to that
prong because there had been no showing of exceptional circumstances under the rule. The
district court filed its final order of dismissal with prejudice on February 17, 2010.

{6} The State appealed the order of dismissal to this Court pursuant to Rule 12-102(A)
NMRA. See State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (“we
conclude that the legislature intended for us to have jurisdiction over interlocutory appeals
in situations where a defendant may possibly be sentenced to life imprisonment or death”).
The State contends that in Savedra this Court withdrew application of the six-month rule in
all cases that originated in district court and that were pending at the time Savedra was filed.
The State does not contest that the pre-Savedra, unmodified version of Rule 5-604 was still
in effect at the time of the dismissal. Instead, the State argues that Romero’s case is still
“pending,” and thus that Savedra is applicable to reverse the district court for dismissing the
case under the six-month rule. Citing State v. Morales, 2010-NMSC-026, ¶ 9, 148 N.M.
305, 236 P.3d 24, Romero urged this Court not to apply Savedra to this case because to do
so “would materially alter the legal duties of the respective parties after the fact.”

THE SIX-MONTH RULE DOES NOT APPLY TO ROMERO’S CASE BECAUSE IT
WAS PENDING ON APPEAL ON MAY 12, 2010

{7} In Martinez, 2011-NMSC-010, ¶¶ 2-3, this Court recently had the opportunity to
clarify what we meant in Savedra, which stated that “effective for all cases pending as of the
date this Opinion is filed, we withdraw the six-month rule provisions set forth in Rule
5-604(B)-(E).” Savedra, 2010-NMSC-025, ¶ 9. After detailing numerous policy

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considerations, Martinez held that “the six-month rule should be withdrawn across the board
for all prosecutions originating in district court, no matter at what stage of the criminal
process—trial or appellate—they may have been as of May 12, 2010.” Martinez, 2011-
NMSC-010, ¶ 10. Because the State had appealed the order of dismissal and the appeal was
pending as of May 12, 2010, Savedra is controlling in this case. Accordingly, the six-month
rule does not apply to Romero’s case. However, Romero is not without a remedy. As we
made clear in Savedra, a defendant who believes that his speedy trial rights have been
violated may pursue a motion to dismiss.

WITHDRAWAL OF THE SIX-MONTH RULE FOR ROMERO’S CASE DOES NOT
VIOLATE DUE PROCESS AS AN EX POST FACTO LAW

{8} Romero also argues that application of Savedra to his case would deprive him of his
due process rights under both the federal and state constitutions. See U.S. Const. art. I, § 10
(prohibiting states from passing any ex post facto law); N.M. Const. art. II, § 19 (“No ex post
facto law . . . shall be enacted by the legislature.”); Rogers v. Tenn., 532 U.S. 451, 455
(2001) (explaining that “due process prohibits retroactive application of any judicial
construction of a criminal statute [that] is unexpected and indefensible by reference to the
law which has been expressed prior to the conduct in issue”) (alteration in original) (internal
quotation marks and citation omitted). In this argument, however, Romero makes two key
concessions regarding the United States Constitution. First, federal due process protection
only extends to ex post facto situations that do not include procedural rules, even if the
amendments disadvantage defendants. See Dobbert v. Florida, 432 U.S. 282, 293-94 (1977).
Second, a defendant does not have a protected interest in procedural rules. Landgraf v. USI
Film Prods., 511 U.S. 244, 275 (1994).

{9} In Dobbert, the State of Florida pursued the death penalty against Dobbert for
committing a capital felony. 432 U.S. at 287. Between the time he committed the offenses
with which he was charged and the time of his trial, Florida had changed the functions of the
judge and the jury in the imposition of a death sentence. Id. at 287-88. At the time Dobbert
was alleged to have committed first-degree murder, a person convicted of a capital felony
was to be sentenced to death unless a majority of the jury recommended mercy. Id. at 288.
By the time of his trial the jury’s function had changed: the jury was only authorized to
recommend a sentence, leaving the ultimate decision to the judge. Id. at 290-91. Dobbert
was found guilty of a capital crime. Id. at 287. The jury recommended a life sentence. Id.
The judge, however, overruled the jury recommendation and sentenced him to death. Id.

{10} Dobbert contended that depriving him of the procedure in effect at the time the crime
was committed would be unconstitutional because applying the new procedure would be an
ex post facto law. Id. The United States Supreme Court ultimately disagreed with Dobbert,
concluding that the changes in the law were procedural and that applying the new procedure
in Dobbert’s case did not constitute an ex post facto violation. Id. at 293-94. The Court
reasoned that the constitutional proscription against the passage of ex post facto laws did not
mean that the legislature could not alter the method of procedure that does not affect

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substantive matters. Id. That is, as long as the procedure does not make criminal a
previously innocent act, increase the punishment, or change the proof necessary to convict
the defendant, the change is not a prohibited ex post facto law. See id. at 292-94. This
applies even though the procedural change works to the defendant’s disadvantage. Id. at
293.

{11} In this case, the crimes for which Romero was indicted, the prescribed punishment,
and the quantity and quality of proof required to establish his guilt beyond a reasonable
doubt remained unaffected by our withdrawal of the six-month rule. Our retroactive
withdrawal of the six-month rule, a procedural rule, is not an unconstitutional ex post facto
law under the United States Constitution.

{12} Romero next argues that the due process clause of the New Mexico Constitution,
Article II, Section 18, should be interpreted more broadly than its federal counterpart
because “New Mexico has expressed a much stronger distrust of retroactivity than the United
States Supreme Court,” citing Beavers v. Johnson Controls World Servs., Inc., 118 N.M.
391, 395-97, 881 P.2d 1376, 1380-82 (1994). Romero also cites Article IV, Section 34 of the
New Mexico Constitution as evidence of New Mexico’s stronger distrust of retroactive rule
changes. Article IV, Section 34 provides that “[n]o act of the legislature shall affect the right
or remedy of either party, or change the rules of evidence or procedure, in any pending
case.” N.M. Const. art. IV, § 34. In Marquez v. Wylie, this Court accepted the broad view
that Article IV, Section 34 also applies to court-adopted rules, relying primarily on language
from two Supreme Court orders giving the rules adopted in those orders the same effect as
if they had been passed by the Legislature. 78 N.M. 544, 546, 434 P.2d 69, 71 (1967).
However, as we explained in State v. Pieri, the plain language of Article IV, Section 34
applies only to legislative acts. 2009-NMSC-019, ¶¶ 34-35,146 N.M. 155, 207 P.3d 1132.
Since we have not affirmatively given Rule 5-604 the force and effect of a legislative act
similar to the situation in Marquez, Article IV, Section 34 does not apply to our withdrawal
of the six-month rule.

{13} The State asserts that Romero still retains his right to a speedy trial, and his ability
to raise the speedy trial issue in the future is sufficient to afford him due process. We agree
with the State. The six-month rule was implemented to “provide the courts and the parties
with a rudimentary warning of when speedy trial problems may arise.” State v. Garza,
2009-NMSC-038, ¶ 46, 146 N.M. 499, 212 P.3d 387 (internal quotation marks and citation
omitted). The rule was not intended to supplement or supplant a defendant’s speedy trial
rights.

{14} We carefully analyzed the rationale for applying Savedra retroactively and
prospectively in both Martinez and Savedra. Because we were concerned that as our
jurisprudence evolved, “the six-month rule became increasingly unmoored from its
constitutional and proactive origins,” we exercised our inherent power to apply the rule
change in Savedra retroactively. Martinez, 2011-NMSC-010, ¶ 8; see also Lopez v. Maez,
98 N.M. 625, 632, 651 P.2d 1269, 1276 (1982) (“It is within the inherent power of a state’s

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highest court to give a decision prospective or retrospective application without offending
constitutional principles.”).

{15} As the State points out, Romero has not been denied the opportunity to defend his
case by pursuing dismissal on the basis that his speedy trial rights have been violated. In
Savedra, although we abolished the six-month rule for cases that originated in district court,
we made it clear that a defendant could still assert that his or her right to a speedy trial was
violated. In this case there was not argument, analysis, nor weighing of the speedy trial
factors at the district court level as suggested by the ad hoc balancing test set forth in Garza,
2009-NMSC-038, ¶ 13. This balancing test includes the four factors identified in Barker v.
Wingo, 407 U.S. 514, 530 (1972): length of delay, reasons for delay, the defendant’s
assertion of his or her right, and any prejudice to the defendant. Garza, 2009-NMSC-038,
¶ 13. Therefore, Romero may assert his right to a speedy trial on remand.

CONCLUSION

{16} For the foregoing reasons, we reverse and remand to the district court for proceedings
consistent with this Opinion.

{17} IT IS SO ORDERED.

______________________________________
EDWARD L. CHÁVEZ, Justice

WE CONCUR:

______________________________________
CHARLES W. DANIELS, Chief Justice

______________________________________
PATRICIO M. SERNA, Justice

______________________________________
PETRA JIMENEZ MAES, Justice

______________________________________
RICHARD C. BOSSON, Justice

Topic Index for State v. Romero, Docket No. 32,283

AL Administrative Law and Procedure
AL-DU Due Process
AL-RU Rules

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CT Constitutional Law
CT-DP Due Process
CT-EX Ex Post Facto
CT-ST Speedy Trial

CA Criminal Procedure
CA-DU Due Process
CA-RD Right to Speedy Trial
CA-TL Time Limitations

ST Statutes
ST-CN Constitutionality
ST-RE Retroactivity

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