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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ________________

3 Filing Date: June 22, 2022

4 No. A-1-CA-39379

5 IN THE MATTER OF THE DIRECT

6 CRIMINAL CONTEMPT OF ALAN

7 H. MAESTAS,

8 Attorney-Appellant.

9 APPEAL FROM THE DISTRICT COURT OF UNION COUNTY

10 Melissa A. Kennelly, District Judge

11 Hector H. Balderas, Attorney General

12 Van Snow, Assistant Attorney General

13 Santa Fe, NM

14 for Appellee

15 Peifer, Hanson, Mullins & Baker, P.A.

16 Rebekah A. Gallegos

17 Sara N. Sanchez

18 Sarah K. Hyde

19 Albuquerque, NM

20 for Appellant
1 OPINION

2 DUFFY, Judge.

3 {1} Attorney Alan Maestas was held in contempt of court after he refused to 

4 proceed with trial. The district court sentenced Maestas to 182 days of incarceration 

5 with 152 days suspended, a $999 fine, $55 in fees, and an undetermined amount of 

6 restitution. On appeal, Maestas challenges the propriety of his conviction for direct 

7 criminal contempt as well as the district court’s sentence. We affirm Maestas’s 

8 conviction for direct contempt. However, viewing the district court’s sentence as an 

9 abuse of discretion, we remand for resentencing.

10 BACKGROUND

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

12 of a criminal defendant when Maestas refused to go forward with trial. The 

13 background of the criminal case is relevant to our analysis and the following 

14 recitation of events is gleaned from the record below. We emphasize, however, that 

15 none of the allegations against the defendant had been tested or proven at trial by the 

16 time this matter came to us on appeal, and therefore, nothing in this opinion should 

17 be construed as a determination on the matters at issue in the separate criminal case 

18 against the defendant. 

19 {3} The defendant, a semi-truck driver from Texas transiting through northern 

20 New Mexico, was stopped by law enforcement in Union County in March 2017 after 
2

1 he failed to stop at the port of entry. During a search of the defendant’s truck, officers 

2 discovered J.V., the 12-year-old daughter of the defendant’s girlfriend, along with a 

3 narcotic pain pill, two opened condoms, and a bottle of lubricant. The defendant was 

4 placed on a twenty-four-hour driving hold and parked overnight at a travel stop in 

5 Clayton. The following day, officers returned to the truck to conduct a welfare check 

6 on J.V., during which they took custody of her and transferred her to the care of the 

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

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

9 sexual assault exam. In two subsequent safe house interviews, however, J.V. alleged 

10 that the defendant had sex with her while traveling through New Mexico. J.V. then 

11 underwent a sexual assault exam, which revealed injuries consistent with her 

12 allegations. The defendant was arrested and charged with criminal sexual 

13 penetration of a minor, child abuse resulting in great bodily harm, and enticement of 

14 a child.

15 {4} Maestas entered his appearance in the defendant’s case in September 2018, 

after the case had been pending for nearly a year and a half. 16 1 Maestas developed a 

17 defense theory that centered on discrediting the interview methods used to elicit the 

18 allegations J.V. made during her safe house interviews. Maestas retained Dr. Susan 

1 The defendant was initially represented by two other attorneys before 

retaining Maestas.
3

1 Cave, a clinical and forensic psychologist, as an expert witness who would provide 

2 testimony supporting the defense theory. The court qualified Dr. Cave as an expert 

3 witness after a Daubert hearing, and Dr. Cave’s expert testimony became a crucial 

4 part of the defendant’s defense.

5 {5} Maestas and the state vigorously litigated the case over the next two years.

6 Trial was set and continued twelve times in total by either the defendant or the state, 

7 for a variety of reasons, or due to complications relating to the COVID-19 pandemic 

8 that struck New Mexico in March 2020. We focus here on the final continuance 

9 granted by the district court, and the ensuing trial setting itself, as these are the events 

10 that led to Maestas’s contumacious conduct. 

11 {6} On August 25, 2020, the district court issued an order continuing and resetting 

12 the jury trial scheduled to take place that day because the defendant’s mother—

13 whom he lived with and cared for—tested positive for COVID-19. Trial was reset 

14 for October 26, 2020. On October 9, Dr. Cave informed Maestas that she would be 

15 having surgery on October 27 and would not be able to testify during the October 

16 trial setting. Two business days later, Maestas filed a motion requesting a one-month 

17 trial continuance, citing Dr. Cave’s unavailability and his recent discovery that the 

18 state had not disclosed or provided statements for two witness interviews that had 

19 occurred before Maestas took over as defense counsel. The district court held a 

20 hearing on the motion and questioned Dr. Cave directly. Dr. Cave explained that she 
4

1 could not remember when Maestas told her that the trial had been continued to 

2 October 26. She further stated that her surgery had been scheduled for five weeks 

3 and that Maestas had told her about the new trial date at some point after that. During 

4 the hearing, the court ruled that Maestas had failed to timely notify Dr. Cave about 

5 the October trial date and concluded that failure was a matter of attorney negligence 

rather than an extraordinary circumstance necessitating a continuance.2 6 In its written 

7 order, the court found that the case had been pending for three and one-half years, 

8 that Maestas had moved to continue the trial six times, and that “[i]t has become 

9 apparent to the Court that it is part of defense’s strategy to delay trial for as long as 

10 possible in this matter.” The district court denied the continuance and ordered the 

11 case to proceed to trial.

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 the unavailability of the defendant’s expert witness “was not an 

extraordinary circumstance that justified another trial continuance.” However, the 

same “extraordinary circumstances” language also appears in an earlier scheduling 

order, entered one month before 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 state requested a continuance because its “key 

witness,” a SANE nurse, was unavailable. 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

1 {7} In response to that order, Maestas filed a motion on October 22—four days 

2 before trial—arguing that denial of the continuance violated the defendant’s due 

3 process rights. Maestas indicated that he intended to appear in court on the trial date 

4 and would inform the court that he could not provide effective assistance of counsel 

5 without Dr. Cave’s testimony. Maestas expressly stated that the purpose of the 

6 motion was to provide the court with notice to “call off jurors and to schedule other 

7 judicial matters.” The court denied this motion the next day and ordered Maestas to 

8 appear at trial, stating that “[a]ny party or attorney who violates this order shall be 

9 subject to contempt of court and appropriate sanctions as permitted by law.” 

10 {8} One final event delayed the October 26 trial setting: on the evening of October 

11 25, the judge and district court staff arrived at the county courthouse in Clayton and 

12 were promptly snowed in by a storm that closed the courthouse for three days, 

13 delaying trial until the morning of October 29. That morning, Maestas filed a twenty14 nine-page brief informing the court that he found himself in a dilemma: he was 

15 forced to choose between obstruction by disobeying the district court’s command 

16 that he participate in the trial of the defendant or to proceed without being able to 

17 vigorously advocate on behalf of the defendant given his inability to present 

18 otherwise admissible expert testimony as to Defendant’s theory of defense. 

19 Maestas’s choice in resolving that dilemma would become clear during the 

20 morning’s proceedings.
6

1 {9} The court called the case and, outside the presence of the jury, reiterated its 

2 ruling on the October 22 motion and asked Maestas how he wished to proceed. 

3 Citing American Bar Association (ABA) standards for representation of criminal 

4 defendants, Maestas responded by first outlining his argument that he was incapable 

5 of providing effective assistance of counsel and that he had informed the defendant 

6 of his inability to adequately represent him at trial. Maestas further stated that he had 

7 explained the ABA guidelines to the defendant, and since the defendant indicated he 

8 was unsure whether he wanted Maestas to continue or not, the defendant should be 

9 allowed to seek independent counsel in order to protect his constitutional rights. 

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

11 for the court, not a determination to be made unilaterally by defense counsel. The 

12 court then provided a detailed explanation of why the denial of the continuance did 

13 not render counsel’s assistance ineffective and did not deprive the defendant of due 

14 process. The court stated it found Meastas’s attempt to essentially call off the trial 

15 by placing the court and the state on notice of his intentions not to proceed to be a 

16 “highly improper, unlawful, and unjustified obstruction of the administration of 

17 justice.” The court ruled that Maestas was not rendered ineffective and ordered him 

18 to proceed with trial or be held in contempt. Before allowing Maestas to respond, 

19 the court reiterated that Maestas was on notice that he would be held in direct 
7

1 criminal contempt should he refuse to proceed, and that the maximum fine and a 

2 significant jail sentence would be imposed. 

3 {11} Maestas responded by emphasizing his duty to his client and the Constitution 

4 as a criminal defense attorney. He noted that he appeared in front of the court with 

5 knowledge that he could be held in direct criminal contempt, and rather than simply 

6 refusing to appear and instead facing indirect contempt proceedings, possibly in 

7 front of a different judge, he appeared as directed. Speaking directly to the district 

8 court judge, Maestas stated that he would not subject his client to ineffective 

9 assistance of counsel, a conviction, and a lengthy appeals process, and would instead 

10 refuse to proceed. He then asked the court to review the brief he filed on the morning 

11 of trial, and should the court find him in direct contempt, asked that he be jailed in 

12 Taos County so that he could receive visitors. 

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

14 to make an oral record. The court asked Maestas one final time if he intended to 

15 proceed. Maestas refused, and the court held him in direct criminal contempt. The 

16 court then sentenced Maestas to a $1,000 fine, court costs, 364 days imprisonment 

17 with 334 days suspended followed by unsupervised probation, with the term of 

18 incarceration to be served in Union County. At the state’s suggestion, the court also 

19 ordered restitution. The following week, the court sua sponte reduced Maestas’s 

20 sentence to 182 days imprisonment, suspending 152 days, for a total term of 
8

1 incarceration of thirty days, and ordered him to report to the Union County Sheriff’s 

2 office ten days later to begin serving his sentence. The court also reduced his fine to 

3 $999 and ordered him to pay $55 in fees, while leaving restitution to be determined 

4 at a later hearing. Maestas timely appealed, which stayed the execution of his 

5 sentence under NMSA 1978, Section 39-3-15(A) (1966).

6 STANDARD OF REVIEW

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

8 arbitrariness and abuse of discretion.” Concha v. Sanchez, 2011-NMSC-031, ¶ 46, 

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

10 court’s discretion, which is reviewable on appeal.” Case v. State, 1985-NMSC-103, 

11 ¶ 5, 103 N.M. 501, 709 P.2d 670. But see State v. Case, 1983-NMCA-086, ¶ 13, 100 

12 N.M. 173, 667 P.2d 978 (noting that “[s]entences exceeding six months for criminal 

13 contempt may not be imposed absent a jury trial or waiver thereof”); Seven Rivers 

14 Farm, Inc. v. Reynolds, 1973-NMSC-039, ¶ 42, 84 N.M. 789, 508 P.2d 1276 

15 (holding that a jury trial is not required as long as the fine imposed does not exceed 

16 $1,000). “An abuse of discretion occurs when a ruling is clearly contrary to the 

17 logical conclusions demanded by the facts and circumstances of the case.” Benz v. 

18 Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688 (internal quotation 

19 marks and citation omitted).
9

1 DISCUSSION

2 {14} Maestas advances two primary arguments on appeal. First, Maestas 

3 challenges the propriety of holding him in direct criminal contempt. He argues that 

4 he had a complete defense to criminal contempt or, alternatively, that he should have 

5 been subject to indirect criminal contempt proceedings. Second, Maestas argues that 

6 the district court abused its discretion by imposing an excessive sentence and 

7 restitution. We are unpersuaded by Maestas’s challenge to the propriety of his 

8 conviction. We do, however, perceive two abuses of discretion in the district court’s 

9 sentencing decision.

10 I. The District Court Did Not Err by Holding Maestas in Direct Criminal 

11 Contempt

12 {15} Under statutory and common law, judges are vested with inherent power to 

13 compel obedience to their orders and maintain decorum in their courtrooms. Concha, 

14 2011-NMSC-031, ¶¶ 22-23. Contempt powers allow courts to guard their 

15 proceedings against anything that interferes with the orderly administration of 

16 justice. Case, 1985-NMSC-103, ¶ 5. Civil contempt proceedings are intended to 

17 obtain compliance with a court order, State v. Pothier, 1986-NMSC-039, ¶ 4, 104 

18 N.M. 363, 721 P.2d 1294, while “[c]riminal contempt proceedings are instituted to 

19 punish completed acts of disobedience that have threatened the authority and dignity 

20 of the court.” Concha, 2011-NMSC-031, ¶ 26. “Criminal contempts are further 

21 delineated as direct or indirect.” Id. ¶ 24 (internal quotation marks and citation 
10

1 omitted). Direct contempt involves “charges of misconduct, in open court, in the 

2 presence of the judge, which disturbs the court’s business, where all of the essential 

3 elements of the misconduct are under the eye of the court [and] are actually observed 

4 by the court.” Id. ¶ 35 (internal quotation marks and citation omitted). Indirect 

5 criminal contempt arises “[w]hen the judge has not personally witnessed the 

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

7 {16} Since “criminal contempt is a crime in the ordinary sense,” a criminal 

8 contempt defendant is entitled to due process protections, the extent of which depend 

9 on whether the contempt charge is categorized as direct or indirect. Id. ¶ 26

10 (alteration, internal quotation marks, and citation omitted). In direct contempt 

11 proceedings, a judge may punish the contemnor summarily without the need for 

12 further evidentiary proceedings. Id. ¶ 27. In indirect proceedings where the judge 

13 has not personally witnessed the defendant’s contumacious actions, the contempt 

14 “must be resolved through more traditional due process procedures.” Id. ¶ 28; see 

15 also State v. Stout, 1983-NMSC-094, ¶ 9, 100 N.M. 472, 672 P.2d 645 (recognizing 

16 that “some kind of formal notice and hearing was required because the contempt was 

17 not committed in the presence of the court”). 

18 {17} We turn now to Maestas’s two challenges to the propriety of his conviction. 

19 Maestas first argues that he had a complete defense to direct criminal contempt 

20 because he had a good-faith belief that he could not comply with the court’s order. 
11

1 Maestas contends that the court’s order to proceed with trial “put [him] in an 

2 untenable position: refuse to proceed and face contempt charges or proceed to trial 

3 without the necessary expert and all but ensure his client would be deprived of 

4 effective assistance of counsel, convicted of a serious crime, and almost certainly 

5 incarcerated for years while the appellate process played out.” While we appreciate 

6 the precarity of Maestas’s position, we are unpersuaded that the court erred in 

7 holding him in contempt.

8 {18} At bottom, this line of argument challenges the sufficiency of the evidence 

9 supporting Maestas’s contempt conviction. As with any criminal conviction, a 

10 criminal contempt conviction must be based on evidence constituting proof beyond 

11 a reasonable doubt. In re Stout, 1984-NMCA-131, ¶ 11, 102 N.M. 159, 692 P.2d 

12 545. And while an “[i]nability without fault to comply with a court’s order is a 

13 defense to a contempt charge,” id. ¶ 13, we are unpersuaded that this defense is 

14 applicable here. 

15 {19} Cases applying the inability to comply defense are factually distinct from the 

16 circumstances presented in this case. In In re Stout, for instance, this Court reversed 

17 an attorney’s contempt conviction for failure to appear at a sentencing hearing 

18 because the attorney was required to be in another court at the same time and had 

19 arranged for substitute counsel, thereby excusing his absence. Id. ¶¶ 14-15. 

20 Similarly, in two Depression era cases, our Supreme Court reversed contempt 
12

1 convictions for destitute men unable to pay judgments arising out of divorce 

2 proceedings, holding that inability to pay was a defense to contempt for failure to 

3 satisfy the judgments. See Sears v. Sears, 1939-NMSC-010, ¶ 13, 43 N.M. 142, 87 

4 P.2d 434; Andrews v. McMahan, 1938-NMSC-074, ¶ 14, 43 N.M. 87, 85 P.2d 743.

5 {20} But here, Maestas has only shown that he had a good-faith belief that 

6 proceeding to trial without his expert would deny his client effective assistance of 

7 counsel. Regardless of whether that assessment was correct, Maestas could have 

8 proceeded with trial and attempted to defend his client to the best of his abilities. 

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

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

11 not find jobs during a historic economic calamity, there were no circumstances 

12 making it impossible for Maestas to comply with the district court’s order.

13 {21} Maestas also offers an alternative argument that the district court should have 

14 referred him for prosecution for indirect, rather than direct, criminal contempt and 

15 afforded him the additional due process protections inherent in that charge. Maestas 

16 contends that direct contempt proceedings were inappropriate because there was 

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

18 defense. This argument is unpersuasive for two reasons. 

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

20 court’s order was not sufficient to excuse his contumacious conduct. Second, 
13

1 Maestas has provided no authority indicating that indirect contempt proceedings are 

2 necessary where a defendant openly and directly disobeys a court order in the 

3 presence of the court. Maestas analogizes this case to State v. Diamond, 1980-

4 NMCA-026, 94 N.M. 118, 607 P.2d 656, and In re Stout, 1984-NMCA-131, where 

5 attorneys were subject to indirect contempt proceedings after failing to appear in 

6 court. This analogy fails for the simple reason that in both of those cases, the 

7 contumacious conduct occurred outside the presence of the court. Summary 

8 adjudication was improper because the judge did not directly observe the 

9 contumacious acts in either case. See Diamond, 1980-NMCA-026, ¶ 12 (citing 

10 Johnson v. Mississippi, 403 U.S. 212, 214 (1971) for the proposition that summary 

11 contempt proceedings are proper where the judge directly observes the 

12 contumacious act); In re Stout, 1984-NMCA-131, ¶¶ 10-11. In contrast, Maestas 

13 appeared in court and refused to follow the court’s order, even stating that he 

14 expected to be held in direct criminal contempt, despite the fact that he could have 

15 refused to appear and been subject to indirect contempt proceedings. Maestas’s 

16 admission speaks for itself. His conduct is exactly the type that constitutes direct 

17 criminal contempt, and we hold Maestas was not entitled to indirect contempt 

18 proceedings. 

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

20 found himself, we reiterate our recent observation in State v. Hildreth that “attorneys 
14

1 in New Mexico are not empowered with decisional autonomy regarding when trials 

2 commence and when they do not commence. District courts are.” 2019-NMCA-047, 

3 ¶ 16, 448 P.3d 585, aff’d in part, rev’d in part on other grounds, 2022-NMSC-012, 

4 506 P.3d 354. Maestas’s belief that he could not provide effective assistance of 

5 counsel does not relieve him of culpability in refusing to obey a court order. We see 

6 no abuse of discretion in the district court’s decision to hold Maestas in direct 

7 criminal contempt, nor do we view the evidence presented here as insufficient to 

8 support his conviction. Accordingly, we affirm the district court’s finding of direct 

9 criminal contempt.

10 II. The District Court Abused Its Discretion in Sentencing Maestas

11 {24} Maestas next challenges the propriety of his sentence. Specifically, Maestas 

12 argues that the district court abused its discretion in sentencing him to 182 days of 

13 incarceration with 152 days suspended, a $999 fine, and court costs. Maestas also 

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

in turn.3 15

16 A. The District Court Abused Its Discretion by Imposing a Uniquely and 

17 Disproportionately Harsh Sentence

18 {25} Our Supreme Court has cautioned that a judge’s inherent contempt authority 

19 is an “extraordinary unilateral power[]” that requires judges to exercise 

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

1 “extraordinary self-restraint” to avoid abuses of that power. Concha, 2011-NMSC2 031, ¶ 30; see also Case, 1985-NMSC-103, ¶ 5 (stating that “contempt powers of 

3 the court should be used cautiously and sparingly”). “A judge’s exercise of the 

4 contempt power must be tailored to the contemptuous conduct, exerting just enough 

5 judicial power to right the wrong; no more, no less.” Concha, 2011-NMSC-031, 

6 ¶ 45; see also Case, 1985-NMSC-103, ¶ 4 (“The punishment imposed should be 

7 reasonably related to the nature and gravity of the contumacious conduct.”). As 

8 numerous reported cases have emphasized, judges “should not exercise more than 

9 the least possible power adequate to the end proposed.” Pothier, 1986-NMSC-039, 

10 ¶ 31.

11 {26} In Pothier, our Supreme Court articulated three factors courts must consider 

12 when imposing punishment for criminal contempt: (1) the severity of the 

13 consequences of the contempt; (2) the public’s interest in terminating the 

14 contemnor’s defiance; and (3) the importance of deterring future defiance. Id. ¶ 32. 

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

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

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, only 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 marks and citation omitted)).
16

1 defendant’s trial did not proceed. The State responds that a defense attorney refusing 

2 to go forward with trial is serious in itself, see Hildreth, 2019-NMCA-047, ¶ 16 

3 (observing that such conduct violates an attorney’s “constitutional responsibility to 

4 his client and his duty to the tribunal for which, as a licensed attorney, he serves as 

5 an officer”), and wastes the court’s time and resources, as well as the time of 

6 witnesses and jurors. Though the State makes a compelling argument, we note that 

7 Maestas attempted before the trial date to mitigate those consequences: he requested 

8 the continuance twelve days before trial, soon after he learned of Dr. Cave’s 

9 scheduling conflict, and he filed a motion putting the court on notice of his intended 

10 course of action. 

11 {27} Similarly, the parties offer competing arguments on the public’s interest. 

12 Maestas reminds us that the public directly benefits from “fearless, vigorous, and 

13 effective advocacy” for criminal defendants, and quotes In re McConnell, 370 U.S. 

14 230, 236 (1962) for the proposition that counsel must “be able to make honest good15 faith efforts to present their clients’ cases.” The State counters that the public has a 

16 strong interest in having persons obey lawful court orders and that both the public 

17 and criminal defendants have a strong interest in the speedy adjudication of serious 

18 crimes. We view both of these interests as important. 

19 {28} Ultimately, however, there is no question that deterring future defiance is very 

20 important and punishment is necessary. The Pothier Court analyzed the deterrent 
17

1 value of a contempt sentence by comparing the sentence imposed to what New 

2 Mexico courts have done in previous cases. See 1986-NMSC-039, ¶ 35. We use the 

3 same analysis to evaluate the district court’s sentencing decision and look to cases 

4 in which attorneys have been held in contempt. We confine our review in this manner 

5 in recognition that Maestas’s conduct can fairly be characterized as purely on behalf 

6 of his client’s interest, to his own detriment. While we have found no reported cases 

7 in which an attorney has gone to the same lengths in service of a client’s interests, 

8 the choice Maestas faced arose from a perceived conflict in his professional and 

9 ethical obligations to his client and to the court. The tension created by those dual 

10 obligations, and the corresponding balancing of interests, is unique to attorneys 

11 acting in their professional role and seemingly absent in contempt cases involving 

12 laypeople. See, e.g., Case, 1985-NMSC-103, ¶ 3 (addressing criminal contempt 

13 punishment for a defendant who was given use immunity against prosecution but 

14 subsequently refused to answer questions in a homicide case). For this reason, the 

15 appropriate comparative analysis should focus on contempt punishments imposed 

16 on attorneys acting in their professional role. 

17 {29} Compared to reported contempt sentences imposed on New Mexico attorneys, 

18 the district court’s sentence in this case was undeniably harsh. Indeed, our review of 

19 New Mexico jurisprudence reveals no reported appellate decision affirming—or 

20 even considering—a contempt sanction against an attorney as severe as this one. The 
18

1 majority of reported decisions involve the imposition of no more than a monetary 

2 fine in circumstances where an attorney failed to comply with a district court’s 

3 instructions or rules of procedure. See, e.g., In re Avallone, 1978-NMSC-056, ¶¶ 5, 

4 10, 91 N.M. 777, 581 P.2d 870 (affirming this Court’s imposition of a $250 fine on 

5 an attorney who failed to conform to the rules of appellate procedure); State v. 

6 Wisniewski, 1985-NMSC-079, ¶¶ 1, 22, 103 N.M. 430, 708 P.2d 1031 (upholding 

7 $100 contempt citations imposed on two prosecutors and two police officers who 

8 failed to comply with discovery requirements under the Rules of Criminal 

9 Procedure). In In re Byrnes, 2002-NMCA-102, ¶¶ 1, 3-7, 132 N.M. 718, 54 P.3d 

10 996, this Court affirmed a $1,000 contempt fine imposed on an attorney who 

11 continually interrupted and argued with the district court judge during a custody 

12 hearing, despite several admonitions to stop. 

13 {30} In another illustrative case, In re Cherryhomes, an attorney was summarily 

14 held in contempt after he became combative and belligerent. 1985-NMCA-108, ¶ 3, 

15 103 N.M. 771, 714 P.2d 188. The district court imposed a $10,000 fine, which this 

16 Court determined was excessive since it required a trial by jury under New Mexico 

17 law. Id. ¶ 7 (noting that the New Mexico Supreme Court has held that “a fine in 

18 excess of $1,000 gives the defendant the right to a jury trial”). The case was 

19 remanded with instructions to reduce the fine to $1,000 or to proceed with a jury 

20 trial. Id. ¶ 9. The same attorney came before this court again in State v. Cherryhomes, 
19

1 1992-NMCA-111, ¶¶ 2-3, 114 N.M. 495, 840 P.2d 1261, when the district court 

2 imposed a $50 contempt fine after the attorney refused to take off a bandana and put 

3 on a tie while in court, as required by local court rules. The attorney appealed, and 

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

5 {31} Our Supreme Court has also imposed serious contempt punishments for 

6 attorney misconduct, but we have not found any published case in which the Court 

7 issued a sentence comparable to the one imposed here. In In re Palafox, our Supreme

8 Court imposed $250 fines on two attorneys who violated rules governing non9 admitted counsel. 1983-NMSC-078, ¶¶ 6, 8, 100 N.M. 563, 673 P.2d 1296. 

10 Likewise, in a series of three disciplinary proceedings against the same attorney, the 

11 Court used its contempt power to first impose a $500 fine on an attorney for violating 

12 discovery orders. In re Herkenhoff (Herkenhoff I), 1993-NMSC-081, ¶ 10, 116 N.M. 

13 622, 866 P.2d 350. After the attorney refused to comply with the initial disciplinary 

14 order, the Court imposed a $1540 fine—$10 per day of noncompliance—at a 15

15 percent interest rate. In re Herkenhoff (Herkenhoff II), 1995-NMSC-011, ¶ 12, 119 

16 N.M. 232, 889 P.2d 840. The Court also disbarred the attorney. Id. ¶ 11. After the 

17 attorney continued to practice law despite his disbarment, the Court again held him 

18 in contempt and imposed a five-month sentence of incarceration, but suspended the 

19 entire sentence, conditioned on the attorney’s compliance with the prior disciplinary 

20 orders. In re Herkenhoff (Herkenhoff III), 1997-NMSC-007, ¶¶ 20-21, 122 N.M. 
20

1 766, 931 P.2d 1382. The court issued an almost identical sentence in In re Schmidt, 

2 where a disbarred attorney continued to practice law in direct violation of a prior 

3 disciplinary order. 1997-NMSC-008, ¶ 15, 122 N.M. 770, 931 P.2d 1386 (per 

4 curiam). As in Herkenhoff III, the Court imposed a five-month suspended sentence 

5 with conditions that the attorney cease practicing law and begin complying with the 

6 prior disciplinary order. In re Schmidt, 1997-NMSC-008, ¶ 15. 

7 {32} Finally, we have found only one reported decision in which a district court 

8 imposed a sentence of incarceration against a contumacious attorney, and the 

9 conduct meriting the contempt punishment was comparatively more egregious. State 

10 v. Driscoll, 1976-NMSC-059, ¶¶ 5-10, 89 N.M. 541, 555 P.2d 136. In Driscoll, an 

11 attorney disobeyed a court’s order not to mention a witness affidavit during opening 

12 argument, and after being admonished by the court, removed his tie and coat and 

13 aggressively approached the bench. Id. The judge immediately remanded the 

14 attorney into custody but released him a few hours later, stating that the matter would 

15 be taken up by another judge in a show-cause proceeding. Id. ¶¶ 7-9. At the show16 cause proceeding, the attorney was sentenced to ten days of incarceration, but our

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

18 Id. ¶¶ 11, 19. 

19 {33} Taken together, these cases demonstrate the unusual severity of the contempt 

20 punishment imposed by the district court in this case. The harshest fine imposed on 
21

1 an attorney was the $1540 collective fine imposed in Herkenhoff II, 1995-NMSC2 011, ¶ 12, and when our Supreme Court has imposed incarceration as a contempt 

3 punishment in disciplinary proceedings, it has suspended the sentences in full. In 

4 this case, the district court sentenced Maestas to thirty days’ incarceration (182 days 

5 incarceration with 152 days suspended), a $999 fine, $55 in court costs, and 

6 restitution. By all accounts, Maestas’s sentence is extraordinary in that it 

7 significantly exceeds that of any sentence imposed in a contempt case arising from 

8 attorney misconduct. Viewed through the lens of deterrence, the imposition of a 

9 month-long jail sentence and the specter of a full six months in jail if he happened 

10 to violate the conditions of his probation may well be an effective means of deterring 

11 an attorney from ever again engaging in this sort of behavior. But the question is not 

12 simply whether the punishment will deter future defiance, it is whether this was the 

13 least possible punishment necessary do so. See Concha, 2011-NMSC-031, ¶ 45; 

14 Pothier, 1986-NMSC-039, ¶ 31. When compared to other cases, we conclude that it 

15 was not.

16 {34} We are cognizant that district courts are afforded broad discretion in their 

17 exercise of the contempt power. However, that discretion is not without limits, and 

18 the unilateral nature of direct criminal contempt proceedings requires judges to 

19 exercise extraordinary restraint in imposing contempt sentences. See Concha, 2011-

20 NMSC-031, ¶ 30 (cautioning that the contempt power is an “extraordinary unilateral 
22

1 power[]” that requires judges to exercise “extraordinary self-restraint” to avoid 

2 abuses of the authority). It has been repeated often enough: the sentence must be 

3 narrowly tailored to exert “just enough judicial power” to vindicate the court’s 

4 authority and dignity, so as to avoid abuses of those powers. See id. ¶¶ 30, 45. 

5 Because the sentence in this case exceeded that threshold, we determine that it was 

6 an abuse of the district court’s discretion and remand for resentencing.

7 B. Restitution Is Not Appropriate in This Case

8 {35} In its sentencing order, the district court required Maestas to pay restitution to 

9 “the people of Union County” in an amount to be determined at a future restitution 

10 hearing. Criminal restitution is authorized by statute. See NMSA 1978, § 31-17-1 

11 (2005). Maestas argues that the district court misapplied the statute and wrongly 

12 imposed a sentence of restitution. We agree.

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

14 v. George, 2020-NMCA-039, ¶ 4, 472 P.3d 1235. A trial court abuses its discretion 

15 when it imposes a sentence contrary to law. State v. Lente, 2005-NMCA-111, ¶ 3, 

16 138 N.M. 312, 119 P.3d 737. In order to determine whether the court acted contrary 

17 to law, we review the district court’s interpretation of Section 31-17-1 de novo. See 

18 State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50.

19 {37} Section 31-17-1(A) states, “It is the policy of this state that restitution be made 

20 by each violator of the Criminal Code . . . to the victims of his criminal activities to 
23

1 the extent that the defendant is reasonably able to do so.” Restitution is intended to 

2 “make whole the victim of the crime to the extent possible.” State v. Lack, 1982-

3 NMCA-111, ¶ 12, 98 N.M. 500, 650 P.2d 22 (noting that “[r]estitution in a proper 

4 case may oftentimes be a compelling reminder of the wrong done and meaningfully 

5 contribute to the rehabilitation process” (internal quotation marks and citation 

6 omitted)). Section 31-17-1(A)(1) defines a “victim” as “any person who has suffered 

7 actual damages as a result of the defendant’s criminal activities.” “Actual damages”

8 are those that “a victim could recover against the defendant in a civil action arising 

9 out of the same facts or event, except punitive damages and [non-economic]

10 damages.” Section 31-17-1(A)(2). Before approving a sentence of restitution, a trial 

11 court must consider a number of factors, including the actual damages suffered by 

12 each victim. Section 31-17-1(E).

13 {38} New Mexico courts have never construed an order of restitution in the context 

14 of criminal contempt. But the plain language and purpose of the statute indicate that 

15 restitution, as applied, is not an appropriate punishment here. The State identified 

16 “the people of Union County” as victims for purposes of restitution under Section 

17 31-17-1(A)(1). In this case, there has been no showing that the people of Union 

18 County suffered or would be able to recover actual damages from Maestas in a civil 

19 action. See § 31-17-1(A)(2); George, 2020-NMCA-039, ¶ 8 (stating that a victim 

20 may receive restitution only when there is “a direct relationship between the crime 
24

1 for which there is a plea of guilty or verdict of guilty, and the damages asserted by 

2 the victim” (internal quotation marks and citation omitted)). Further, while the State 

3 points out that this Court has previously recognized that state entities can be 

4 considered victims for purposes of restitution, see, e.g., State v. Ellis, 1995-NMCA5 124, ¶ 7, 120 N.M. 709, 905 P.2d 747, the court’s order of restitution in this case 

6 does not identify a particular state entity, such as Union County itself. Rather, the 

7 court ordered Maestas to pay restitution to an ill-defined group of individuals with 

8 no showing that this group suffered an actual loss as a result of Maestas’s contempt. 

9 In short, the State has not demonstrated how “the people of Union County” qualify 

10 as victims under Section 31-17-1. Accordingly, we reverse the district court’s order 

11 of restitution. See Lente, 2005-NMCA-111, ¶ 3.

12 CONCLUSION

13 {39} We affirm Maestas’s conviction for direct criminal contempt. However, the 

14 district court’s sentencing order is vacated, and the case remanded for resentencing 

15 consistent with this opinion.

16 {40} IT IS SO ORDERED.

17 _________________________________

18 MEGAN P. DUFFY, Judge
25

1 WE CONCUR:

2 _________________________________

3 J. MILES HANISEE, Chief Judge

4 _________________________________

5 JANE B. YOHALEM, Judge