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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40080

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ISAIAH L. CARVER,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Donna J. Mowrer, District Court Judge

Raúl Torrez, Attorney General

Santa Fe, NM

Erica Schiff, Assistant Attorney General

Albuquerque, NM 

for Appellee

Bennett J. Baur, Chief Public Defender

Joelle N. Gonzales, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

MEMORANDUM OPINION

IVES, Judge.

{1} Defendant Isaiah Carver appeals the revocation of his probation, arguing that his 

right to due process was violated in two ways: (1) the district court judge appeared for 

the evidentiary hearing remotely rather than in person, and (2) the district court did not 

identify the evidence it relied on to revoke his probation. We agree with Defendant on 

the first issue and therefore reverse and remand without reaching the second.
DISCUSSION

{2} Because Defendant’s constitutional claim presents a question of law, our review 

is de novo with deference to the factual findings of the district court. See, e.g., State v. 

Guthrie, 2011-NMSC-014, ¶ 22, 150 N.M. 84, 257 P.3d 904. 

{3} Pursuant to the district court’s notice of hearing, Defendant’s probation violation 

hearing was to be held in person at the courthouse in Clovis, New Mexico. On the date 

of the hearing, the parties, their counsel, and the witnesses were physically present in 

the courthouse in Clovis, but the judge, who ordinarily sits in the courthouse in Portales, 

participated virtually via an audio-visual computer program. Defendant objected to this 

format at the outset of the hearing, contending that the court’s virtual participation in the 

hearing deprived him of his due process right to confront witnesses and present his 

case in front of a fact-finder who was present in person. The district court overruled the

objection, stating, “We have had remote appearances” and “the rule requires live 

witnesses, there’s no provision that the court has to be live.”

{4} In support of his claim of error on appeal, Defendant cites to state and federal 

precedent construing constitutional due process requirements applicable to probation 

revocation hearings. See Morrissey v. Brewer, 408 U.S. 471 (1972) (adopting due 

process standards in the context of parole revocation); Gagnon v. Scarpelli, 411 U.S. 

778 (1973) (extending Morrissey’s due process requirements to revocation of 

probation); Guthrie, 2011-NMSC-014, ¶¶ 12-13 (discussing and applying Morrissey and 

Gagnon). Although Defendant acknowledges that—as a probationer facing potential 

revocation—he was not entitled to “the full panoply of rights due a defendant in a 

criminal trial,” Guthrie, 2011-NMSC-014, ¶ 10 (text only) (quoting Morrissey, 408 U.S. at 

480), he states that he was nevertheless entitled to “some protections” under the 

Fourteenth Amendment’s Due Process Clause as interpreted by Morrissey, Gagnon, 

and Guthrie. Most pertinent to his claim of error, Defendant emphasizes that these 

cases impose certain “minimum requirements” on the process afforded at probation 

revocation hearings, including an “opportunity to be heard in person and to present 

witnesses and documentary evidence; [and] the right to confront and cross-examine 

adverse witnesses (unless the hearing officer specifically finds good cause for not 

allowing confrontation).” Guthrie, 2011-NMSC-014, ¶ 12 (emphasis, internal quotation 

marks, and citation omitted). 

{5} On the basis of these “minimum requirements,” we understand Defendant to 

argue that probation revocation hearings are generally required to be held in person in 

the physical presence of the fact-finder. In particular, Defendant places special 

emphasis on the language of the relevant precedents, which constitutionally guarantees 

probation revocation defendants an “‘opportunity to be heard in person.’” See id.

(quoting Gagnon, 411 U.S. at 786) (emphasis added). We agree that this language, 

understood in its ordinary sense, indicates that probation revocation hearings are 

generally to be held fully in person. That is, we believe that the phrase “opportunity to 

be heard in person” indicates that both the person being “heard” (the defendant) as well 

as the person doing the “hearing” (the fact-finder) are “in person.” The State’s argument 
to the contrary—namely, that the constitutional guarantee of an “opportunity to be heard 

in person” requires the physical presence of the defendant and the witnesses, but not 

the fact-finder—is unpersuasive. We thus agree with Defendant that due process 

ordinarily requires a probation revocation hearing to be held in person. 

{6} However, Defendant does not contend that this default assumption is absolute. 

Indeed, he states that virtual participation in probation revocation hearings may be 

constitutionally permissible if there is a “particularized showing of necessity in the 

service of an important public policy,” as contemplated by a pair of Confrontation Clause 

cases: Maryland v. Craig, 497 U.S. 836 (1990) and State v. Smith, 2013-NMCA-081, 

308 P.3d 135. Picking up on this allowance, the State argues that even if a “showing of 

good cause” is required—in the manner of Defendant’s proposed Craig/Smith

analysis—the COVID-19 public health emergency and its related restrictions “establish 

such good cause.” On the basis of these arguments, we assume without deciding that 

the constitutional guarantee to an “opportunity to be heard in person” at a probation 

revocation hearing is not absolute. And because the parties have built their arguments 

on the terms “good cause” or “particularized necessity,” for the purpose of this 

nonprecedential opinion we assess the merits of this appeal using that vocabulary. 

{7} Under this standard, we conclude the district court erred in holding a hybridvirtual hearing because there is no indication in the record of the existence of any “good 

cause” or “particularized necessity” for the judge to appear virtually while the parties, 

attorneys, and witnesses were present in the courtroom. Although the State on appeal 

contends that the district court’s virtual appearance was justified by the COVID-19 

public health emergency and its accompanying safety protocols, we find no basis for 

this assertion in the record. The notice of hearing states, “All parties must appear IN 

PERSON for this hearing.” In addition, the subpoenas commanding in-person witness 

attendance at the hearing state that “courts have resumed in-person appearances at all 

hearings.” Moreover, in making his objection at the hearing, Defendant’s counsel noted 

that the district court’s virtual appearance was objectionable, in part, because the courts 

in Defendant’s district were “no longer in COVID restrictions,” and the judge’s absence 

was “not for a public health issue.” In overruling the objection, the district court stated 

only that “we have had remote appearances” and “the rule requires live witnesses, 

there’s no provision that the court has to be live.”1 That is, the district court never 

 

1For the first time on appeal, the State also argues that the district court’s remote appearance was 

supported by the then-applicable New Mexico Supreme Court Public Health Emergency Protocols, which 

the State claims creates a “presumption that [Defendant’s h]earing would be conducted remotely.” See

Order, In the Matter of the Amendment of the New Mexico Judiciary Public Health Emergency Protocols, 

No. 21-8500-021 at 20-23 (N.M. Aug. 16, 2021), https://www.nmcourts.gov/wpcontent/uploads/2021/08/Supreme-Court-Order-No.-21-8500-021-and-Amended-Emergency-CourtProtocols-effective-8-23-2021-1.pdf. Because the potential application of these protocols was never 

discussed in the district court, the State effectively asks us to affirm the district court’s ruling under the 

doctrine of right for any reason. See Freeman v. Fairchild, 2018-NMSC-023, ¶ 30, 416 P.3d 264 (“Under 

the right for any reason doctrine, an appellate court may affirm a district court ruling on a ground not 

relied upon by the district court if (1) reliance on the new ground would not be unfair to the appellant, and 

(2) there is substantial evidence to support the ground on which the appellate court relies.” (text only) 

(citation omitted)). However, we decline to do so because it would be unfair to Defendant, who never had 

an opportunity to respond to the State’s argument in the district court and there is little evidence in the 
addressed the claims that there was a lack of applicable COVID restrictions, and the 

district court did not justify the judge’s remote appearance for any reason related to 

protecting the health of hearing participants or the public. In sum, we see no basis in the 

record for concluding that the judge’s virtual appearance was based on any kind of 

“particularized necessity” or “good cause,” COVID-related or otherwise. And we do not 

believe that the fact that hearings were, for a time, conducted virtually based on COVID 

restrictions establishes a lawful basis for virtual proceedings as a general matter.

{8} Based on the arguments presented by the parties, we conclude that Defendant 

was deprived of his constitutional right to be heard in person. Everyone involved in the 

hearing, other than the judge, participated in person, and the record does not include 

any good cause or other justification for the judge’s virtual participation. 

CONCLUSION

{9} We reverse and remand for a new hearing. 

{10} IT IS SO ORDERED.

ZACHARY A. IVES, Judge

WE CONCUR:

J. MILES HANISEE, Judge

MEGAN P. DUFFY, Judge

 

record supporting the position. See id. In fact, the record indicates that the district court did not treat the 

protocol’s presumption as controlling. The protocol states that probation revocation hearings for 

defendants who are in custody, as Defendant was, were presumed to “be conducted remotely through 

telephonic or audio-visual connection for court appearances by all attorneys, litigants, and witnesses, 

unless the judge presiding over the proceeding, in consultation with the chief judge of the judicial district, 

orders otherwise.” Order No. 21-8500-021 at 22. But here all “attorneys, litigants, and witnesses” at 

Defendant’s hearing were ordered to appear in person.