This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8 v. No. 30,248 9 KEVIN LAMONT RICHARD, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Stephen Bridgforth, District Judge 13 Gary K. King, Attorney General 14 Margaret McLean, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Karl Erich Martell, Assi stant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 SUTIN, Judge. 232 Defendant appealed from the district c ourt’s order dismissing his appeal from 1 magistrate court for lack of jurisdiction. We issued a notice of proposed summary 2 disposition, proposing to reverse and remand for the district court to hold an 3 evidentiary hearing on the validity of the pl ea Defendant entered in magistrate court. 4 The State responded to our notice with a memorandum in opposition, directing this 5 Court to the district court’s finding th at Defendant acknowledged there were no 6 constitutional infirmities surrounding his plea and arguing that no evidentiary hearing 7 is therefore necessary. [State’s MIO 2] Although the record indicated that Defendant 8 raised several constitutional arguments, we noted that Defendant did not challenge the 9 district court’s finding and neither party explained what Defendant argued at the 10 hearing on the State’s motion to dismiss. Consistent withour presumption of 11 correctness, we issued a second notice, presuming Defendant conceded there were no 12 constitutional problems with his plea at that hearing and proposed to affirm. 13 Defendant responded to our second notice, stating that the district court’s 14 finding was not supported by the facts and that the finding was language included in 15 an order submitted by the prosecutor. [Defendant’s MIO 3, 5] Defendant maintained 16 that defense counsel argued strenuously th at the magistrate court violated his 17 constitutional rights by accepting and entering a plea that was not knowing, 18 intelligent, and voluntary. [Id.] We issued a third notice of proposed summary 193 disposition, noting that the record supports Defendant’s representations and the State 1 made no factual representations explaining what facts supported the district court’s 2 finding. We determined that under these circumstances there was record support for 3 Defendant’s claims and no factual dispute between the parties, and therefore summary 4 reversal was again appropriate. 5 The State has responded to our third no tice, indicating that no opposition to the 6 proposed disposition will be filed and submitting that the appropriate remedy is a 7 remand to the district court for an evidentiary hearing to determine whether 8 Defendant’s plea in magistrate court was valid. [Response 1] We agree. 9 For the reasons stated in our first an d third notices, we reverse the district 10 court’s order dismissing Defendant’s appeal and remand for the district court to hold 11 an evidentiary hearing and determine the validity of Defendant’s plea in magistrate 12 court. “If [after the hearing] the district court concludes th at the plea is valid, then the 13 defendant is not an aggrieved party entitled to bring a de novo appeal to the district 14 court, and the district court must dismiss the appeal.” State v. Spillman , 15 2010-NMCA-019, ¶ 5, 147 N.M. 676, 227 P.3d 1058. 16 IT IS SO ORDERED. 17

__________________________________ 18 JONATHAN B. SUTIN, Judge 19 WE CONCUR: 204 _________________________________ 1 CELIA FOY CASTILLO, Judge 2

_________________________________ 3 RODERICK T. KENNEDY, Judge 4