The slip opinion is the first version of an opinion released by the Chi ef 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 d eviations from the formal authenticated opinion.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number:

________________ 2

F iling Date: June 22, 2022 3

No. A

- 1

- CA

- 39379 4

IN THE MATTER OF THE DIRECT 5 CRIMINAL CONTEMPT OF ALAN 6 H. MAESTAS, 7

Attorney

- Appellant. 8

APPEAL FROM THE DISTRICT COURT OF UNION COUNTY 9 Melissa A. Kennelly, District Judge 10
Hector H. Balderas, Attorney General 11 Van Snow, Assistant Attorney General 12 Santa Fe, NM 13
for Appellee 14

Peifer, Hanson, Mullins & Baker, P.A. 15 Rebekah A. Gallegos 16 Sara N. Sanchez 17 Sarah K. Hyd e 18 Albuquerque, NM 19
for Appellant 20OPINION 1

DUFFY , Judge. 2

{1} Attorney Alan Maestas was held in contempt of court after he refused to 3
proceed with trial. The district court sentenced Maestas to 182 days of incarceration 4
with 152 days suspended, a $999 fine, $55 in fees, and an undetermined amount of 5
restitution. On appeal, Maestas challenges the propriety of his conviction for direct 6
criminal contempt as well as the district court’s se ntence. We affirm Maestas’s 7
conviction for direct contempt. However, viewing the district court’s sentence as an 8
abuse of discretion, we remand for resentencing. 9

BACKGROUND 10

{ 2 } Maestas’s contempt conviction arose during the course of his representation 11

of a criminal defendant when Maestas re fused to go forward with trial. The 12
background of the criminal case is relevant to our analysis and the following 13
recitation of events is gleaned from the record below. We emphasize, however, that 14

none of the allegations against the defendant had been tested or proven at trial by the 15
time this matter came to us on appeal, and therefore, nothing in this opinion should 16
be construed as a determination on the matters at issue in the separate criminal case 17

ag ainst the defendant. 18

{ 3 } The defendant, a semi

- truck driver from Texas transiting through northern 19
New Mexico, was stopped by law enforcement in Union County in March 201 7 after 202 he failed to stop at the port of entry. During a search of the defendant’s tr uck, officers 1

discovered J.V., the 12

- year

- old daughter of the defendant’s girlfriend, along with a 2
narcotic pain pill, two opened condoms, and a bottle of lubricant. The defendant was 3
placed on a twenty

- four

- hour driving hold and parked overnight at a tra vel stop in 4
Clayton. The following day, officers returned to the truck to conduct a welfare check 5
on J.V., during which they took custody of her and transferred her to the care of the 6

Children, Youth and Families Department. J.V. underwent an initial safe house 7

interview where she made no disclosure of sexual abuse and declined to undergo a 8

sexual assault exam. In two subsequent safe house interviews, however, J.V. alleged 9
that the defendant had sex with her while traveling through New Mexico. J.V. then 10

und erwent a sexual assault exam, which revealed injuries consistent with her 11
allegations. The defendant was arrested and charged with criminal sexual 12
penetration of a minor, child abuse resulting in great bodily h arm, and enticement of 13

a child. 14

{ 4 } Maestas en tered his appearance in the defendant’s case in September 2018, 15
after the case had been pending for nearly a year and a half. 1 Maestas developed a 16
defense theory that centered on discrediting the interview methods used to elicit the 17
allegations J.V. made during her safe house interviews. Maestas retained Dr. Susan 18

1 The defendant was initially represented by two other atto rneys before retaining Maestas.3 Cave, a clinical and forensic psychologist, as an expert witness who would provide 1
testimony supporting the defense theory. The court qualified Dr. Cave as an expert 2

witness after a Daubert heari ng, and Dr. Cave’s expert testimony became a crucial 3
part of the defendant’s defense. 4

{ 5 } Maestas and the s tate vigorously litigated the case over the next two years. 5
Trial was set and continued twelve times in total by either the defendant or the state, 6

f or a variety of reasons, or due to complications relating to the COVID

- 19 pandemic 7

that struck New Mexico in March 2020. We focus here on the final continuance 8
granted by the district court, and the ensuing trial setting itself, as these are the events 9

tha t led to Maestas’s contumacious conduct. 10

{ 6 } On August 25, 2020, the district court issued an order continuing and resetting 11
the jury trial scheduled to take place that day because the defendant’s mother

— 12

whom he lived with and cared for

— tested positive fo r COVID

- 19. Trial was reset 13

for October 26, 2020. On October 9, Dr. Cave informed Maestas that she would be 14
having surgery on October 27 and would not be able to testify during the October 15
trial setting. Two business days later, Maestas filed a motion requ esting a one

- month 16
trial continuance, citing Dr. Cave’s unavailability and his recent discovery that the 17
state had not disclosed or provided statements for two witness interviews that had 18

occurred before Maestas took over as defense counsel. The district c ourt held a 19
hearing on the motion and questioned Dr. Cave directly. Dr. Cave explained that she 204 could not remember when Maestas told her that the trial had been continued to 1
October 26. She further stated that her surgery had been scheduled for five weeks 2
and that Maestas had told her about the new trial date at some point after that. During 3
the hearing, the court ruled that Maestas had failed to timely notify Dr. Cave about 4
the October trial date and concluded that failure was a matter of attorney negligen ce 5
rather than an extraordinary circumstance necessitating a continuance. 2 In its written 6
order, the court found that the case had been pending for three and one

- half years, 7

that Maestas had moved to continue the trial six times, and that “[i]t has become 8
apparent to the Court that it is part of defense’s strategy to delay trial for as long as 9
possible in this matter.” The district court denied the continuance and ordered the 10
case to proceed to trial. 11

2 We pause here to address the district court’s focus on “extraordinary circumstances.” The court provided a detailed explanation of events in its “decision & judgment and sentence on direct criminal contempt,” noting that “[o]n January 7, 2020, the Court entered a scheduling order that advised the parties there would be no further trial continuances unless extraordinary circumstances required it.” The court concluded that t he unavailability of the defendant’s expert witness “was not an extraordinary circumstance that justified a nother trial continuance.” However, the same “extraordinary circumstances” language also appears in an earlier scheduling order, entered one month be fore the January 7, 2020
, scheduling order on December 6, 2019. The December 6 scheduling order set the trial to occur in February. Shortly after that order was entered, the s tate requested a continuance because its “key witness,” a SANE nurse, was unavail able. The court granted the continuance and this is what gave rise to the January 7, 2020, scheduling order that, ten months later, the court relied on as justification for denying the defendant’s request for a continuance due to Dr. Cave’s unavailability.5 { 7 } In response to that order, Maestas filed a motion on October 22

— four days 1

before trial

— arguing that denial of the continuance violated the defendant’s due 2
process rights. Maestas indicated that he intended to appear in court on the trial date 3
and would inform the court that he could not provide effective assistance of counsel 4
without Dr. Cave’s testimony. Maestas expressly stated that the purpose of the 5
motion was to provide the court with notice to “call off jurors and to schedule other 6
judicial matters.” The court denied this motion the next day and ordered Maestas to 7
appear at trial, stating that “[a]ny party or attorney who vi olates this order shall be 8
subject to contempt of court and appropriate sanctions as permitted by law.” 9

{ 8 } One final event delayed the October 26 trial setting: on the evening of October 10
25, the judge and district court staff arrived at the county courth ouse in Clayton and 11
were promptly snowed in by a storm that closed the courthouse for three days, 12
delaying trial until the morning of October 29. That morning, Maestas filed a twenty

13

nine

- page brief informing the court that he found himself in a dilemma: h e was 14
forced to choose between obstruction by disobeying the district court’s command 15
that he participate in the trial of the defendant or to proceed without being able to 16
vigorously advocate on behalf of the defendant given his inability to present 17

otherw ise admissible expert testimony as to Defendant’s theory of defense

. 18
Maestas’s choice in resolving that dilemma would become clear during the 19
morning’s proceedings. 206 { 9 } The court called the case and, outside the presence of the jury, reiterated its 1
ruling on the October 22 motion and asked Maestas how he wished to proceed. 2
Citing American Bar Association (ABA) standards for representation of criminal 3
defendants, Maestas responded by first outlining his argument that he was incapable 4
of providing effective a ssistance of counsel and that he had informed the defendant 5
of his inability to adequately represent him at trial. Maestas further stated that he had 6
explained the ABA guidelines to the defendant, and since the defendant indicated he 7

was unsure whether he wanted Maestas to continue or not, the defendant should be 8
allowed to seek independent counsel in order to protect his constitutional rights. 9

{ 10 } The court responded that effective assistance of counsel was a legal question 10

for the court, not a determina tion to be made unilaterally by defense counsel. The 11
court then provided a detailed explanation of why the denial of the continuance did 12
not render counsel’s assistance ineffective and did not deprive the defendant of due 13
process. The court stated it found Meastas’s attempt to essentially call off the trial 14
by placing the court and the state on notice of his intentions not to proceed to be a 15
“highly improper, unlawful, and unjustified obstruction of the administration of 16
justice.” The court ruled that Maest as was not rendered ineffective and ordered him 17
to proceed with trial or be held in contempt. Before allowing Maestas to respond, 18

the court reiterated that Maestas was on notice that he would be held in direct 197 criminal contempt should he refuse to proceed, and that the maximum fine and a 1
significant jail sentence would be imposed. 2

{ 11 } Maestas responded by emphasizing his duty to his client and the Constitution 3
as a criminal defense attorney. He noted that he appeared in front of the court with 4
knowledge t hat he could be held in direct criminal contempt, and rather than simply 5
refusing to appear and instead facing indirect contempt proceedings, possibly in 6
front of a different judge, he appeared as directed. Speaking directly to the district 7
court judge, Ma estas stated that he would not subject his client to ineffective 8
assistance of counsel, a conviction, and a lengthy appeals process, and would instead 9
refuse to proceed. He then asked the court to review the brief he filed on the morning 10

of trial, and shou ld the court find him in direct contempt, asked that he be jailed in 11
Taos County so that he could receive visitors. 12

{ 12 } Instead of delaying proceedings to read Maestas’s brief, the court allowed him 13

to make an oral record. The court asked Maestas one fin al time if he intended to 14
proceed. Maestas refused, and the court held him in direct criminal contempt. The 15
court then sentenced Maestas to a $1,000 fine, court costs, 364 days imprisonment 16
with 334 days suspended followed by unsupervised probation, with t he term of 17
incarceration to be served in Union County. At the s tate’s suggestion, the court also 18
ordered restitution. The following week, the court sua sponte reduced Maestas’s 19
sentence to 182 days imprisonment, suspending 152 days, for a total term of 208 inc arceration of thirty days, and ordered him to report to the Union County Sheriff’s 1
office ten days later to begin serving his sentence. The court also reduced his fine to 2
$999 and ordered him to pay $55 in fees, while leaving restitution to be determined 3
at a later hearing. M aestas timely appealed, which stayed the execution of his 4

sentence under NMSA 1 978, Section 39

- 3

- 15(A) (1966). 5

STANDARD OF REVIEW 6

{ 13 } “Criminal contempt convictions may be routinely reviewed on appeal for 7

arbitrariness and abuse of discretion.” Concha v. Sanchez , 2011

- NMSC

- 031, ¶ 46, 8
150 N.M. 268, 258 P.3d 1060. “The only limit on a contempt sentence is the trial 9

court’s discretion, whic h is reviewable on appeal.” Case v. State , 1985

- NMSC

- 103, 10

¶ 5, 103 N.M. 501, 709 P.2d 670

. B ut see State v. Case , 1983

- NMCA

- 086, ¶ 13, 100 11
N.M. 173, 667 P.2d 978 (noting that “[s]entences exceeding six months for criminal 12
contempt may not be imposed absent a jury trial or waiver thereof”); Seven Rivers 13
Farm, Inc. v. Reynolds , 1973

- NMSC

- 039, ¶ 42, 84 N.M. 789, 508 P.2d 1276 14
(holding that a jury trial is not required as long as the fine imposed does not exceed 15
$1,000). “An abuse of discretion occurs when a ru ling is clearly contrary to the 16
logical conclusions demanded by the facts and circumstances of the case.” Benz v. 17

Town Ctr. Land, LLC , 2013

- NMCA

- 111, ¶ 11, 314 P.3d 688 (internal quotation 18
marks and citation omitted). 199 DISCUSSION 1

{ 14 } Maestas advances two primary arguments on appeal. First, Maestas 2
challenges the propriety of holding him in direct criminal contempt. He argues that 3
he had a complete defense to criminal contempt or, alternatively, that he should have 4
been subject to indirect criminal contempt proceedings. Second, Maestas argues that 5
the district court abused its discretion by imposing an excessive sentence and 6
restitution. We are unpersuaded by Maestas’s challenge to the propriety of his 7
conviction. We do, however, perceive two abuses of discr etion in the district court’s 8
sentencing decision. 9

I. The District Court Did Not Err b y Holding Maestas i n Direct Criminal 10 Contempt 11

{ 15 } Under statutory and common law, judges are vested with inherent power to 12
compel obedience to their orders and maintain de corum in their courtrooms. Concha
, 13

2011

- NMSC

- 031, ¶¶ 22

- 23. Contempt powers allow courts to guard their 14
proceedings against anything that interferes with the orderly administration of 15
justice. Case , 1985

- NMSC

- 103, ¶ 5. Civil contempt proceedings are intend ed to 16
obtain compliance with a court order, State v. Pothier , 1986

- NMSC

- 039, ¶ 4, 104 17
N.M. 363, 721 P.2d 1294, while “[c]riminal contempt proceedings are instituted to 18
punish completed acts of disobedience that have threatened the authority and dignity 19

of the court.” Concha , 2011

- NMSC

- 031, ¶ 26. “Criminal contempts are further 20

delineated as direct or indirect.” Id. ¶ 24 (internal quotation marks and citation 2110 omitted). Direct contempt involves “charges of misconduct, in open court, in the 1
presence of the judge, which disturbs the court’s business, where all of the es sential 2
elements of the misconduct are under the eye of the court [and] are actually observed 3
by the court.” Id. ¶ 35 (internal quotation marks and citation omitted). Indirect 4
criminal contempt arises “[w]hen the judge has not personally witnessed the 5

defe ndant’s contemptuous behavior in the course of a court proceeding.” Id. ¶ 28. 6

{ 16 } Since “criminal contempt is a crime in the ordinary sense, ” a criminal 7
contempt defendant is entitled to due process protections, the extent of which depend 8

on whether the contempt charge is categorized as direct or indirect. Id. ¶ 26 9
( alteration , internal quotation marks, and citation omitted) . In direct contempt 10
proceedings, a judge may punish the contemnor summarily without the need for 11
further evidentiary proceedings. Id

. ¶ 27. In indirect proceedings where the judge 12
has not personally witnessed the defendant’s contumacious actions, the contempt 13
“must be resolved through more traditional due process procedures.” Id. ¶ 28; see 14

also State v. Stout , 1983

- NMSC

- 094, ¶ 9, 100 N .M. 472, 672 P.2d 645 (recognizing 15
that “some kind of formal notice and hearing was required because the contempt was 16
not committed in the presence of the court”). 17

{ 17 } We turn now to Maestas’s two challenges to the propriety of his conviction. 18
Maestas first argues that he had a complete defense to direct criminal contempt 19
because he had a good

- faith belief that he could not comply with the court’s order. 2011 Maestas contends that the court’s order to proceed with trial “put [ him ] in an 1
untenable position: refuse to proceed and face contempt charges or proceed to trial 2
without the necessary expert and all but ensure his client would be deprived of 3

effective assistance of couns el, convicted of a serious crime, and almost certainly 4
incarcerated for years while the appellate process played out.” While we appreciate 5
the precarity of Maestas’s position, we are unpersuaded that the court erred in 6
holding him in contempt. 7

{ 18 } At bott om, this line of argument challenges the sufficiency of the evidence 8
supporting Maestas’s contempt conviction. As with any criminal conviction, a 9
criminal contempt conviction must be based on evidence constituting proof beyond 10

a reasonable doubt. In re Sto ut , 1984

- NMCA

- 131, ¶ 11, 102 N.M. 159, 692 P.2d 11

545. And while an “[ i ] nability without fault to comply with a court’s order is a 12
defense to a contempt charge, ” id. ¶ 13, we are unpersuaded that this defense is 13
applicable here. 14

{ 19 } Cases applying the inab ility to comply defense are factually distinct from the 15
circumstances presented in this case. In In re Stout , for instance, this Court reversed 16
an attorney’s contempt conviction for failure to appear at a sentencing hearing 17
because the attorney was require d to be in another court at the same time and had 18
arranged for substitute counsel, thereby excusing his absence. Id. ¶ ¶ 14

- 15

. 19
Similarly, in two Depression era cases, our Supreme Court reversed contempt 2012 convictions for destitute men unable to pay judgments arising out of divorce 1
proceedings, holding that inability to pay was a defense to contempt for failure to 2
satisfy the judgments. See Sears v. Sears , 1939

- NMSC

- 010, ¶ 13, 43 N.M. 142, 87 3

P.2d 434; Andrews v. McMahan , 1938

- NMSC

- 074, ¶ 14, 43 N.M. 87, 85 P. 2d 743. 4

{ 20 } But here, Maestas has only shown that he had a good

- faith belief that 5
proceeding to trial without his expert would deny his client effective assistance of 6
counsel. Regardless of whether that assessment was correct, Maestas could have 7
proceeded with trial and attempted to defend his client to the best of his abilities. 8

Unlike In re Stout , where a lawyer could not physically be in two places at once, or 9

Sears and Andrews , where destitute men lacked money to pay judgments and could 10

not find jobs during a historic economic calamity, there were no circumstances 11
making it impossible for Maestas to comply with the district court’s order. 12

{ 21 } Maestas also offers an alternative argument that the district court should have 13
referred him for prosecut ion for indirect, rather than direct, criminal contempt and 14
afforded him the additional due process protections inherent in that charge. Maestas 15
contends that direct contempt proceedings were inappropriate because there was 16

additional evidence outside the presence of the court that bears on his good

- faith 17
defense. This argument is unpersuasive for two reasons. 18

{ 22 } First, Maestas’s defense based on his perceived inability to comply with the 19

court’s order was not sufficient to excuse his contumacious conduc t. Second, 2013 Maestas has provided no authority indicating that indirect contempt proceedings are 1
necessary where a defendant openly and directly disobeys a court order in the 2
presence of the court. Maestas analogizes this case to State v. Diamond , 1980

- 3

NMCA

- 026, 94 N.M. 118, 607 P.2d 656, and In re Stout , 1984

- NMCA

- 131, where 4
attorneys were subject to indirect contempt proceedings after failing to appear in 5
court. This analogy fails for the simple reason that in both of those cases, the 6

contumacious conduct o ccurred outside the presence of the court. Summary 7
adjudication was improper because the judge did not directly observe the 8

contumacious acts in either case. See Diamond , 1980

- NMCA

- 026, ¶ 12 (citing 9
Johnson v. Mississippi , 403 U.S. 212 , 214 (1971) for the proposition that summary 10
contempt proceedings are proper where the judge directly observes the 11
contumacious act) ; In re Stout , 1984

- NMCA

- 131, ¶ ¶ 10

- 11 . In contrast, Maestas 12
appeared in court and refused to follow the court ’s order, even stating that he 13

exp ected to be held in direct criminal contempt, despite the fact that he could have 14
refused to appear and been subject to indirect contempt proceedings. Maestas’s 15
admission speaks for itself. His conduct is exactly the type that constitutes direct 16

criminal c ontempt, and we hold Maestas was not entitled to indirect contempt 17
proceedings. 18

{ 23 } Finally, though we are not unsympathetic to the position in which Maestas 19

found himself, we reiterate our recent observation in State v. Hildreth that “attorneys 2014 in New M exico are not empowered with decisional autonomy regarding when trials 1
commence and when they do not commence . District courts are.” 2019

- NMCA

- 047, 2

¶ 16, 448 P.3d 585, aff’d in part, rev’d in part on other grounds , 2022

- NMSC

- 012, 3

506 P.3d 354

. Maestas’s belief that he could not provide effective assistance of 4
counsel does not relieve him of culpability in refusing to obey a court order. We see 5

no abuse of discretion in the district court’s decision to hold Maestas in direct 6
criminal contempt, no r do we view the evidence presented here as insufficient to 7
support his conviction. Accordingly, we affirm the district court’s finding of direct 8
criminal contempt. 9

II. The District Court Abused Its Discretion i n Sentencing Maestas 10

{ 24 } Maestas next challenges the propriety of his sentence. Specifically, Maestas 11
argues that the district court abused its discretion in sentencing him to 182 days of 12
incarceration with 152 days suspended, a $999 fine, and court costs. Maestas also 13

contends that the district court e rred in imposing restitution. We address each issue 14

in turn. 3 15

A. The District Court Abused Its Discretion b y Imposing a Uniquely and 16 Disproportionately Harsh Sentence 17

{ 25 } Our Supreme Court has cautioned that a judge’s inherent contempt authority 18
is an “extraordinary unilateral power[]” that requires judges to exercise 19

3 Maestas further argues that the district court imposed a sentence in excess of six months, which deprived him of his due process right to a jury trial. See Case
,15 “extraordinary self

- restraint” to avoid abuses of that power. Concha , 2011

- NMSC

1

031, ¶ 30; see also Case , 1985

- NMSC

- 103, ¶ 5 (stating that “contempt powers of 2
the court should be used cautiously and sparingly”). “A judge’s exercise of the 3
contempt power must be tailored to the contemptuous conduct, exerting just enough 4
judicial power to right the wrong; no m ore, no less.” Concha , 2011

- NMSC

- 031, 5

¶ 45; see also Case , 1985

- NMSC

- 103, ¶ 4 (“The punishment imposed should be 6
reasonably related to the nature and gravity of the contumacious conduct.”). As 7
numerous reported cases have emphasized, judges “should not exe rcise more than 8
the least possible power adequate to the end proposed.” Pothier , 1986

- NMSC

- 039, 9

¶ 31. 10

{ 26 } In Pothier , our Supreme Court articulated three factors courts must consider 11
when imposing punishment for criminal contempt: (1) the severity of the 12
consequences of the contempt; (2) the public’s interest in terminating the 13
contemnor’s defiance; and (3) the importance of deterring future defiance. Id. ¶ 32. 14

The first two Pothier factors do not clearly cut for or against the sentence imposed 15

here. Maest as maintains that the main consequence of his conduct was that the 16

1983

- NMCA

- 086, ¶ 13. Because we hold that the district court’s sentence was a substantive abuse of discretion, we do not consider (1) whether the sentence of 182 days is, in fact, a sentence that exceeds six months, and (2) whether we measure the total sentence imposed or, as the State argues, on ly the term of incarceration

. See Allen v. LeMaster , 2012

- NMSC

- 001, ¶ 28, 267 P.3d 806 (“It is an enduring principle of constitutional jurisprudence that courts will avoid deciding constitutional questions unless required to do so.” (internal quotation mar ks and citation omitted)).16 defendant’s trial did not proceed. The State responds that a defense attorney refusing 1
to go forward with trial is serious in itself, see Hildreth , 2019

- NMCA

- 047, ¶ 16 2
(observing that such conduct violates an attorney’s “constitutional responsibility to 3
his client and his duty to the tribunal for which, as a licensed attorney, he serves as 4
an officer”), and wastes the court’s time and resources, as well as the time of 5
witnesses and jurors. T hough the State makes a compelling argument, w e note that 6
Maestas attempted before the trial date to mitigate those consequences: he requested 7
the continuance twelve days before trial, soon after he learned of Dr. Cave’s 8
scheduling conflict, and he filed a motion putting the court on notice of his intended 9

course of action. 10

{ 27 } Similarly, the parties offer competing arguments on the public’s interest. 11
Maestas reminds us that the public directly benefits from “fearless, vigorous, and 12
effective advocacy ” fo r criminal defendants, and quotes In re McConnell , 370 U.S. 13

230, 236 (1962) for the proposition that counsel must “ be able to make honest good

14
faith efforts to present their clients ’ cases.” The State counters that the public has a 15
strong interest in having persons obey lawful court orders and that both the public 16
and criminal defendants have a strong interest in the speedy adjudication of serious 17

crimes. We view both of these interes ts as important. 18

{ 28 } Ultimately, however, there is no question that deterring future defiance is very 19
important and punishment is necessary. The Pothier Court analyzed the deterrent 2017 value of a contempt sentence by comparing the sentence imposed to what N ew 1
Mexico courts have done in previous cases. See 1986

- NMSC

- 039, ¶ 35. We use the 2
same analysis to evaluate the district court’s sentencing decision and look to cases 3
in which attorneys have been held in contempt. We confine our review in this manner 4

in re cognition that Maestas’s conduct can fairly be characterized as purely on behalf 5
of his client’s interest, to his own detriment. While we have found no reported cases 6
in which an attorney has gone to the same lengths in service of a client’s interests, 7

the choice Maestas faced arose from a perceived conflict in his professional and 8
ethical obligations to his client and to the court. The tension created by those dual 9
obligations, and the corresponding balancing of interests, is unique to attorneys 10
acting in their professional role and seemingly absent in contempt cases involving 11
laypeople. See, e .g. , Case , 1985

- NMSC

- 103, ¶ 3 (addressing criminal contempt 12
punishment for a defendant who was given use immunity against prosecution but 13
subsequently refused to answ er questions in a homicide case). For this reason, the 14
appropriate comparative analysis should focus on contempt punishments imposed 15
on attorneys acting in their professional role. 16

{ 29 } Compared to reported contempt sentences imposed on New Mexico attorne ys, 17
the district court’s sentence in this case was undeniably harsh. Indeed, our review of 18
New Mexico jurisprudence reveals no reported appellate decision affirming

— or 19
even considering

— a contempt sanction against an attorney as severe as this one. The 2018 majo rity of reported decisions involve the imposition of no more than a monetary 1
fine in circumstances where an attorney failed to comply with a district court’s 2
instructions or rules of procedure. See, e.g.
, In re Avallone , 1978

- NMSC

- 056, ¶ ¶ 5, 3

10 , 91 N.M. 77 7, 581 P.2d 870 (affirming this Court’s imposition of a $250 fine on 4
an attorney who failed to conform to the rules of appellate procedure); State v. 5

Wisniewski , 1985

- NMSC

- 079, ¶ ¶ 1, 22, 103 N.M. 430, 708 P.2d 1031 (upholding 6
$100 contempt citations imposed on two prosecutors and two police officers who 7
failed to comply with discovery requirements under the Rules of Criminal 8
Procedure). In In re Byrnes , 2002

- NMCA

- 102, ¶¶ 1, 3

- 7, 132 N. M. 718, 54 P.3d 9
996, this Court affirmed a $1,000 contempt fine imposed on an attorney who 10
continually interrupted and argued with the district court judge during a custody 11
hearing, despite several admonitions to stop. 12

{ 30 } In another illustrative case, I n re Cherryhomes , an attorney was summarily 13
held in contempt after he became combative and belligerent. 1985

- NMCA

- 108, ¶ 3, 14
103 N.M. 771, 714 P.2d 188. The district court imposed a $10,000 fine, which this 15
Court determined was excessive since it required a trial by jury under New Mexico 16

law. Id. ¶ 7 (noting that the New Mexico Supreme Court has held that “a fine in 17
excess of $1,000 gives the defendant the right to a jury trial”). The case was 18
remanded with instructions to reduce the fine to $1,000 or to pro ceed with a jury 19

trial. Id. ¶ 9. The same attorney came before this court again in State v. Cherryhomes
, 2019 1992

- NMCA

- 111, ¶¶ 2

- 3, 114 N.M. 495, 840 P.2d 1261, when the district court 1
imposed a $50 contempt fine after the attorney refused to take off a bandan a and put 2
on a tie while in court, as required by local court rules. The attorney appealed, and 3

we affirmed the conviction and sentence. Id. ¶ 23. 4

{ 31 } Our Supreme Court has also imposed serious contempt punishments for 5
attorney misconduct
, but we have not found any published case in which the Court 6
issued a sentence comparable to the one imposed here. In In re Palafox
, our Supreme 7
Court imposed $250 fines on two attorneys who violated rules governing non

8

admitted counsel. 1983

- NMSC

- 078, ¶¶ 6, 8, 100 N.M. 5 63, 673 P.2d 1296. 9
Likewise, in a series of three disciplinary proceedings against the same attorney, the 10
Court used its contempt power to first impose a $500 fine on an attorney for violating 11
discovery orders. In re Herkenhoff ( Herkenhoff I ) , 1993

- NMSC

- 081, ¶ 10 , 116 N.M. 12
622, 866 P.2d 350. After the attorney refused to comply with the initial disciplinary 13

order, the C ourt imposed a $1540 fine

— $10 per day of noncompliance

— at a 15 14

percent interest rate. In re Herkenhoff ( Herkenhoff II ) , 1995

- N MSC

- 011, ¶ 12, 119 15
N.M. 232, 889 P.2d 840. The Court also disbarred the attorney. Id. ¶ 11. After the 16
attorney continued to practice law despite his disbarment, the Court again held him 17
in contempt and imposed a five

- month sentence of incarceration, but su spended the 18
entire sentence, conditioned on the attorney’s compliance with the prior disciplinary 19

orders. In re Herkenhoff ( Herkenhoff III ) , 1997

- NMSC

- 007, ¶¶ 20

- 21, 122 N.M. 2020 766, 931 P.2d 1382. The court issued an almost identical sentence in In re Schmid t , 1
where a disbarred attorney continued to practice law in direct violation of a prior 2
disciplinary order. 1997

- NMSC

- 008, ¶ 15, 122 N.M. 770, 931 P.2d 1386 (per 3
curiam) . As in Herkenhoff III , the C ourt imposed a five

- month suspended sentence 4

with condition s that the attorney cease practicing law and begin complying with the 5
prior disciplinary order. In re Schmidt , 1997

- NMSC

- 008, ¶ 15. 6

{ 32 } Finally, we have found only one reported decision in which a district court 7
imposed a sentence of incarceration agains t a contumacious attorney, and the 8
conduct meriting the contempt punishment was comparatively more egregious. State 9

v. Driscoll , 1976

- NMSC

- 059, ¶¶ 5

- 10, 89 N.M. 541, 55 5 P.2d 136. In Driscoll , an 10
attorney disobeyed a court’s order not to mention a witness affidavit during opening 11
argument, and after being admonished by the court, removed his tie and coat and 12
aggressively approached the bench. Id. The judge immediately remanded the 13
attorney int o custody but released him a few hours later, stating that the matter would 14
be taken up by another judge in a show

- cause proceeding. Id. ¶¶ 7

- 9. At the show

15
cause proceeding, the attorney was sentenced to ten days of incarceration, but our 16

Supreme Court re versed the sentence and conviction on double jeopardy grounds. 17

Id. ¶ ¶ 11, 19. 18

{ 33 } Taken together, these cases demonstrate the unusual severity of the contempt 19
punishment imposed by the district court in this case. The harshest fine imposed on 2021 an attorney was the $1540 collective fine imposed in Herkenhoff II , 1995

- NMSC

1

011, ¶ 12
, and when our Supreme Court has imposed incarceration as a contempt 2
punishment in disciplinary proceedings, it has suspended the sentences in full. In 3

this case, the district cour t sentenced Maestas to thirty days ’ incarceration (182 days 4
incarceration with 152 days suspended), a $999 fine, $55 in court costs, and 5
restitution. By all accounts, Maestas’s sentence is extraordinary in that it 6
significantly exceeds that of any sentence imposed in a contempt case arising from 7
attorney misconduct. Viewed through the lens of deterrence, the imposition of a 8

month

- long jail sentence and the specter of a full six months in jail if he happened 9
to violate the conditions of his probation may wel l be an effective means of deterring 10
an attorney from ever again engaging in this sort of behavior. But the question is not 11
simply whether the punishment will deter future defiance, it is whether this was the 12
least possible punishment necessary do so. See Concha , 2011

- NMSC

- 031, ¶ 45; 13

Pothier , 1986

- NMSC

- 039, ¶ 31. When compared to other cases, we conclude that it 14

was not. 15

{ 34 } We are cognizant that district courts are afforded broad discretion in their 16
exercise of the contempt power. However, that discretion is not without limits, and 17
the unilateral nature of direct criminal contempt proceedings requires judges to 18
exercise extraordinary restraint in imposing contempt sentences. See Concha , 2011

- 19

NMSC

- 031, ¶ 30 (cautioning that the contempt power is an “extraor dinary unilateral 2022 power[]” that requires judges to exercise “extraordinary self

- restraint” to avoid 1
abuses of the authority). It has been repeated often enough: the sentence must be 2
narrowly tailored to exert “just enough judicial power” to vindicate the c ourt’s 3
authority and dignity, so as to avoid abuses of those powers. See id. ¶¶ 30, 45. 4

Because the sentence in this case exceeded that threshold, we determine that it was 5
an abuse of the district court’s discretion and remand for resentencing. 6

B. Restitut ion Is Not Appropriate i n This Case 7

{ 35 } In its sentencing order, the district court required Maestas to pay restitution to 8
“the people of Union County” in an amount to be determined at a future restitution 9
hearing. Criminal restitution is authorized by statute. See NMSA 1978, § 3 1

- 17

- 1 10
(2005). M aestas argues that the district court misapplied the statute and wrongly 11
imposed a sentence of restitution. We agree. 12

{ 36 } We review the district court’s restitution order for an abuse of discretion. State 13

v. George , 2020

- NMCA

- 039, ¶ 4, 472 P.3d 1235. A tr ial court abuses its discretion 14
when it imposes a sentence contrary to law. State v. Lente , 2005

- NMCA

- 111, ¶ 3, 15
138 N.M. 312, 119 P.3d 737. In order to determine whether the court acted contrary 16
to law, we review the district court’s interpretation of Sect ion 3 1

- 17

- 1 de novo. See 17

State v. Duhon , 2005

- NMCA

- 120, ¶ 10, 138 N.M. 466, 122 P.3d 50. 18

{ 37 } Section 3 1

- 17

- 1(A) states, “It is the policy of this state that restitution be made 19
by each violator of the Criminal Code

. . . to the victims of his criminal act ivities to 2023 the extent that the defendant is reasonably able to do so.” Restitution is intended to 1
“make whole the victim of the crime to the extent possible.” State v. Lack , 1982

- 2

NMCA

- 111, ¶ 12, 98 N.M. 500, 650 P.2d 22 (noting that “[r]estitution in a pro per 3
case may oftentimes be a compelling reminder of the wrong done and meaningfully 4
contribute to the rehabilitation process” (internal quotation marks and citation 5
omitted)). Section 3 1

- 17

- 1 (A)(1) defines a “ victim ” as “any person who has suffered 6
actual damages as a result of the defendant’s criminal activities.” “ Actual damages ” 7
are those that “a victim could recover against the defendant in a civil action arising 8
out of the same facts or event, except punitive dam ages and [non

- economic ] 9
damages.” Section 3 1

- 17

- 1(A)(2). Before approving a sentence of restitution, a trial 10
court must consider a number of factors, including the actual damages suffered by 11

each victim. Section 3 1

- 17

- 1(E). 12

{ 38 } New Mexico courts have neve r construed an order of restitution in the context 13
of criminal contempt. But the plain language and purpose of the statute indicate that 14
restitution, as applied, is not an appropriate punishment here. The State identified 15
“the people of Union County” as vi ctims for purposes of restitution under Section 16

3 1

- 17

- 1(A)(1). In this case, there has been no showing that the people of Union 17
County suffered or would be able to recover actual damages from Maestas in a civil 18

action. See § 3 1

- 17

- 1(A)(2); George , 2020

- NMC A

- 039, ¶ 8 (stating that a victim 19
may receive restitution only when there is “a direct relationship between the crime 2024 for which there is a plea of guilty or verdict of guilty, and the damages asserted by 1
the victim” (internal quotation marks and citation o mitted)). Further, while the State 2
points out that this Court has previously recognized that state entities can be 3
considered victims for purposes of restitution, see, e.g. , State v. Ellis , 1995

- NMCA

4
124, ¶ 7, 120 N.M. 709, 905 P.2d 747, the court’s order of restitution in this case 5
does not identify a particular state entity, such as Union County itself. Rather, the 6
court ordered Maestas to pay restitution to an ill

- defined group of individuals with 7
no showing that this group suffered an actual loss as a r esult of Maestas’s contempt. 8
In short, the State has not demonstrated how “the people of Union County” qualify 9

as victims under Section 31

- 17

- 1. Accordingly, we reverse the district court’s order 10

of restitution. See Lente , 2005

- NMCA

- 111, ¶ 3. 11

CONCLUSION 12

{ 39 } We affirm Maestas’s conviction for direct criminal contempt. However, the 13
district court’s sentencing order is vacated, and the case remanded for resentencing 14
consistent with this opinion. 15

{ 40 } IT IS SO ORDERED. 16

_________________________________ 17 MEGAN P. DUFFY , Judge 1825 WE CONCUR: 1

_________________________________ 2 J. MILES HANISEE , Chief Judge 3

_________________________________ 4 JANE B. YOHALEM , Judge 5