1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,561
10 MELISSA BENALLY,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Karen L. Townsend, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 M. Anne Kelly, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender
20 Carlos Ruiz de la Torre, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 VANZI, Judge.
1 Defendant appeals the district court’s order affirming her magistrate court
2 conviction and denying her motion to dismiss. Defendant raises two issues: (1) the
3 magistrate judge failed to approve the plea agreement or commence trial within 182
4 days after her arraignment, and (2) the magistrate judge erred in failing to conduct a
5 plea colloquy with her as required by Rule 6-502(B) NMRA. We affirm the district
6 court.
7 BACKGROUND
8 Defendant was charged with second aggravated DWI, driving on a suspended
9 or revoked license, open container, and failure to maintain a traffic lane. Three days
10 before the trial date, on June 26, 2007, defense counsel sent a letter to the magistrate
11 court with a copy to the prosecutor notifying the court that her client intended to enter
12 into a plea agreement and that the prosecutor had been notified of Defendant’s
13 intentions. A handwritten notation on the letter indicates that the case was being
14 “reset for sentencing.”
15 On June 29, 2007, the trial date, Defendant and her counsel appeared for the
16 plea hearing. Defendant signed the plea agreement which reduced the second
17 aggravated DWI to a first non-aggravated DWI and dismissed the related traffic
18 offenses and placed it in the court file. Neither the prosecutor nor the magistrate judge
19 was present at the hearing. The prosecutor, who appeared for the hearing late due to
2
1 a conflict in another hearing, had already signed and approved the agreement in
2 January 2007, shortly after Defendant’s initial arraignment. However, no magistrate
3 judge was in court that day, and the plea was not signed by a judge at that time.
4 On July 26, 2007, the parties appeared before the magistrate judge for
5 sentencing. At the hearing, defense counsel objected that the 182-day rule had been
6 violated and argued that the matter should be dismissed. The magistrate judge
7 nevertheless accepted and signed the plea agreement, and sentenced Defendant on the
8 first-time DWI charge to which she had pled.
9 Defendant filed an appeal to the district court on August 2, 2007, alleging a
10 violation of Rule 6-506(B) NMRA (requiring that cases in magistrate court be tried
11 within 182 days). Subsequently, on December 19, 2007, Defendant filed a motion to
12 dismiss for lack of timely prosecution. Specifically, Defendant claimed that the six-
13 month rule was violated because the magistrate judge did not sign the plea and
14 disposition agreement until nine days after the 182-day rule had expired. Defendant
15 also argued that her right to a speedy trial was violated.
16 After a hearing, the district court denied Defendant’s motion, holding that the
17 six-month rule is not jurisdictional and must be read with common sense. The district
18 court remanded the case to magistrate court for imposition of the original sentence.
19 This appeal followed.
3
1 Defendant raises two issues on appeal. First, Defendant contends that the
2 district court erred in denying her motion to dismiss for failure to commence her trial
3 within 182 days of her arraignment. Second, Defendant argues that the district court
4 erred in accepting her guilty plea without first inquiring about the basis or
5 voluntariness of her plea pursuant to Rule 6-502. We discuss each in turn.
6 DISCUSSION
7 The District Court Did Not Err in Denying Defendant’s Motion to Dismiss for
8 Failure to Commence Trial Within 182 Days of Her Arraignment as Required
9 by Rule 6-506(B)
10 We review a trial court’s application of the six-month rule de novo. State v.
11 Wilson, 1998-NMCA-084, ¶ 8, 125 N.M. 390, 962 P.2d 636.
12 In this case, Defendant was arraigned on January 17, 2007, and the parties agree
13 that the rule expired on July 18, 2007. The prosecutor signed and approved the plea
14 agreement on January 18, 2007, and Defendant and her attorney subsequently signed
15 it on June 29, 2007. However, the magistrate judge did not sign the agreement until
16 July 26, 2007. Defendant contends that because the magistrate judge signed the plea
17 agreement eight days after the rule had run, the district court erred in denying her
18 motion to dismiss pursuant to Rule 6-506. We disagree.
19 In relevant part, Rule 6-506(B)(1) provides that, “[a] trial of a criminal citation
20 or complaint shall be commenced within one hundred eighty-two (182) days after
4
1 whichever of the following events occurs latest: (1) the date of arraignment or the
2 filing of a waiver of arraignment of the defendant.” If the six-month rule is violated,
3 the case is subject to dismissal. Rule 6-506(E). Our Supreme Court has held,
4 however, that the six-month rule is to be read with a “common sense approach.” State
5 v. Mendoza, 108 N.M. 446, 448-49, 774 P.2d 440, 442-43 (1989); State v. Flores, 99
6 N.M. 44, 46, 653 P.2d 875, 877 (1982) (stating that the six-month rule “is to be read
7 with common sense”). Thus, in determining whether the six-month rule is suspended,
8 we consider whether the delay inures to the benefit of the defendant and whether the
9 defendant acquiesces in the delay or fails to raise the issue of the violation in a timely
10 fashion. See Mendoza, 108 N.M. at 449, 774 P.2d at 443 (discussing circumstances
11 under which the proceedings are suspended).
12 Defendant cites to—and attempts to distinguish—three cases in which we held
13 there was no violation of the six-month rule. In State v. Lobato, 2006-NMCA-051,
14 ¶ 22, 139 N.M. 431, 134 P.3d 122, the defendant argued that because the trial court’s
15 ruling declaring a mistrial was erroneous, the six-month rule was not restarted. We
16 concluded that because the defendant failed to raise the issue of a violation until six
17 months after the rule ran, and because he participated in at least four pre-trial hearings
18 with no objection, there was no violation of the six-month rule. Id. ¶ 29.
5
1 Similarly, in State v. Jaramillo, 2004-NMCA-041, ¶¶ 3-5, 135 N.M. 322, 88
2 P.3d 264, we took a common sense approach to the rule and held that there was no
3 violation where the defendant acquiesced in the delay by assuming that his co-
4 defendant’s appeal was dispositive of his case, where he participated in numerous
5 hearings and conferences, and where he only alleged a violation of the rule seven
6 months after it expired.
7 Finally, in State v. Guzman, 2004-NMCA-097, ¶ 2, 136 N.M. 253, 96 P.3d
8 1173, the district court granted an unopposed continuance for trial, and then set a trial
9 date outside the six-month rule limit. At the time, the defendant stipulated that good
10 cause existed for the extension, including the death of the trial judge originally
11 assigned to the case. Id. Eighteen days after the rule ran, the court entered an order
12 granting the extension. Id. ¶ 3. A month later, the defendant filed a motion to dismiss
13 arguing that the order was not proper because the prosecutor had not filed a verified
14 petition as required by Rule 5-604(D) NMRA. Guzman, 2004-NMCA-097, ¶¶ 4, 5.
15 Again, we held that there was no violation of the six-month rule. Id. ¶ 13.
16 Specifically, we observed that dismissal of the case would be a hypertechnical
17 application of the rule because there was good cause for the extension and because the
18 defendant failed to object to the written extension until more than a month after the
19 order was entered. Id. ¶¶ 11, 13.
6
1 Defendant in this case does not cite to any cases in which our appellate courts
2 have found a violation of the six-month rule under circumstances similar to hers.
3 Instead, Defendant merely contends that the above cases are distinguishable from the
4 facts of her case and, therefore, dismissal is warranted. Defendant argues that she did
5 not cause the judge or prosecutor to miss the plea hearing within 182 days of her
6 arraignment. In addition, Defendant argues that although her June 27, 2007 letter
7 states that she intended to accept a plea, the judge and prosecutor should have been
8 present at the hearing on June 29, 2007, in the event she decided to reject her plea and
9 proceed to trial. For the reasons that follow, we are not persuaded that the cases cited
10 by Defendant demand a different result here.
11 As we have noted, Defendant filed a letter on June 27, 2007, indicating that she
12 did not intend to proceed to trial but that she intended to enter a plea to reduced
13 charges. She then appeared in magistrate court with her counsel to sign the plea
14 agreement on June 29, 2007, the trial date. Although a plea acceptance hearing could
15 not occur on that date, Defendant did not object to the lack of hearing, she did not
16 move to withdraw her plea, nor did she request a trial setting. Further, Defendant did
17 not object to the sentencing being set for July 26, 2007. The first time Defendant
18 objected to the running of the six-month rule was at the sentencing hearing, eight days
19 after the rule had run. Even then, however, she did not move to withdraw her plea
7
1 agreement nor did she claim that she was prejudiced by the delay. We conclude that,
2 under the circumstances of this case, Defendant acquiesced in the running of the six-
3 month rule by filing the letter that she intended to enter into a plea agreement, by
4 signing the plea agreement, and by proceeding to sentencing rather than electing to go
5 to trial. We further determine that dismissal would require a hypertechnical reading
6 of the six-month rule that does not comport with our application of a common sense
7 approach to such cases.
8 We affirm the district court’s order denying Defendant’s motion to dismiss for
9 violation of the six-month rule.
10 Defendant Has Waived Her Right to Appeal Her Claim That the Magistrate
11 Judge Violated Rule 6-502(B)
12 Defendant next contends, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d
13 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that the
14 district court erred in accepting Defendant’s guilty plea without first inquiring as to
15 the basis or voluntariness of her plea, as required by Rule 6-502. Defendant contends
16 that the magistrate judge did not orally recite the waiver of rights at either the June 29,
17 2007 hearing or the July 26, 2007 sentencing hearing at which the plea was formally
18 accepted and Defendant was sentenced. While we express our concern that no
19 magistrate judge was present at the June 29, 2007 hearing to take the plea and that the
8
1 magistrate judge failed to orally recite the waiver of rights at the July 26, 2007
2 hearing, we nonetheless determine that Defendant has waived her right on this issue.
3 Defendant essentially makes no argument on this claim and concedes that she
4 “arguably acquiesced to the waiver of her rights through her signature on the plea
5 agreement.” Defendant further concedes that she “may have waived the issue as to
6 the voluntariness of the plea” because she did not request withdrawal of her plea and
7 a new trial date and, instead, only sought dismissal based on a violation of the 182-day
8 rule. Our review of the record also indicates that Defendant never moved to withdraw
9 her plea, nor did she raise a Rule 6-502(B) issue in her appeal to the district court.
10 The motion to dismiss filed in the district court sought only dismissal based on lack
11 of timely prosecution pursuant to Rule 5-604 and on speedy trial grounds. Although
12 it is clear that Defendant preserved the issue of the 182-day rule violation, it is equally
13 clear that she did not preserve a claim on the Rule 6-502 issue. Because the district
14 court did not have the opportunity to rule on the issue of the voluntariness of
15 Defendant’s plea, we will not review her argument on appeal. See Rule 12-216
16 NMRA (stating that in order to preserve a question for appellate review, “it must
17 appear that a ruling or decision by the district court was fairly invoked”); State v.
18 Dominguez, 2007-NMSC-060, ¶ 14, 142 N.M. 811, 171 P.3d 750 (concluding
9
1 that since the defendant did not contest his guilty plea or seek to withdraw it, he failed
2 to preserve any issue arising from that plea for appellate review); State v. Varela,
3 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (“In order to preserve an error
4 for appeal, it is essential that the ground or grounds of the objection or motion be
5 made with sufficient specificity to alert the mind of the trial court to the claimed error
6 or errors, and that a ruling thereon then be invoked.” (internal quotation marks and
7 citation omitted)). We therefore do not consider the merits of this argument.
8 CONCLUSION
9 For the reasons set forth above, we affirm the district court and Defendant’s
10 convictions.
11 IT IS SO ORDERED.
12 __________________________________
13 LINDA M. VANZI, Judge
14 WE CONCUR:
15 _________________________________
16 ROBERT E. ROBLES, Judge
17 _________________________________
18 TIMOTHY L. GARCIA, Judge
10