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

2 CITY OF ROSWELL,

3 Plaintiff-Appellee,

4 v. No. A-1-CA-35875

5 FRANK LUCERO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY

8 James M. Hudson, District Judge

9 Office of the City Attorney

10 Aaron S. Holloman

11 Roswell, NM

12 Paul V. Sanchez

13 Roswell, NM

14 for Appellee

15 Frank Lucero

16 Roswell, NM

17 Pro Se Appellant

18 MEMORANDUM OPINION

19 SUTIN, Judge.
2

1 {1} Defendant has appealed from numerous convictions, including unlawful use of

2 a license (suspended), lack of proof of financial responsibility, open container, and a

3 stop lamp/signal device violation. [RP 131-32] We previously issued a notice of

4 proposed summary disposition in which we proposed to reverse in light of the absence

5 of a valid waiver of counsel. Plaintiff (the City) has filed a response in opposition.

6 After due consideration, we remain unpersuaded. We therefore reverse.

7 {2} As an initial matter, we deny the City’s motion to supplement the record. The

8 information it seeks to present pertains to separate matters, and as a result, it is not

9 properly incorporated in the record before us. See generally Rule 12-209(A), (C)

10 NMRA (defining the record to include the papers and pleadings filed in the district

11 court, and providing for supplementation “[i]f anything material to either party is

12 omitted from the record proper by error or accident”).

13 {3} The relevant background information was previously set forth in the notice of

14 proposed summary disposition. We will not reiterate at length here. Instead, we will

15 focus on the content of the memorandum in opposition.

16 {4} We understand the City to concede that Defendant was entitled to advisement

17 of the right to counsel, to acknowledge that no signed waiver was obtained below, and

18 to agree that this suggests structural error. [MIO 1] However, the City contends that

19 “Defendant manufactured the error” [MIO 1] by a subterfuge. It asserts that Defendant
3

1 deceived the magistrate court into believing that he had signed the waiver of counsel

2 form, when in reality he had merely written “not guilty” on the document. [MIO 3]

3 The City contends that this was deliberate gamesmanship on Defendant’s part,

4 intended to allow him to proceed without counsel while simultaneously creating an

5 avenue for relief on appeal. [MIO 4] Pursuant to the doctrine of invited error, the City

6 urges this Court to reject Defendant’s challenge. [MIO 2-7]

7 {5} To the extent that it is accurate, the City’s characterization of Defendant’s

8 conduct is unquestionably concerning. See State v. Arellano, 1998-NMSC-026, ¶¶ 8,

9 18-19, 125 N.M. 709, 965 P.2d 293 (expressing disdain for gamesmanship where the

10 defense elected not to alert the trial court to claimed “fundamental structural error”

11 and waited for the verdict before objecting). However, as the City acknowledges, “the

12 dry, context-free” documents contained within the limited record of the magistrate

13 court proceeding does not substantiate the alleged artifice. [MIO 4] This is

14 problematic. See generally State v. Swafford, 1989-NMCA-069, ¶ 27, 109 N.M. 132,

15 782 P.2d 385 (“Our review is limited to the record presented on appeal.”). 

16 {6} Of course, mechanisms exist by which the relevant events at the magistrate

17 court level could be established. See State v. Baca, 2015-NMSC-021, ¶ 28, 352 P.3d

18 1151 (recognizing the authority of the district courts as factfinders to reconstruct

19 magistrate court nonrecord proceedings); State v. Gallegos, 2007-NMCA-112, ¶¶ 13,
4

1 19, 142 N.M. 447, 166 P.3d 1101 (recognizing that the district courts have authority

2 on appeal to supplement magistrate court records, with the assistance of the magistrate

3 judge’s testimony, to determine the facts necessary to assess the legal validity of a

4 waiver). In this case, however, we conclude that any such exercise would be

5 academic. 

6 {7} In his docketing statement, Defendant asserted that when he appealed to the

7 district court for a trial de novo, he was never advised of the right to counsel, he never

8 waived counsel, and no Faretta hearing was held. [DS 3] Nowhere in its

9 memorandum in opposition does the City dispute this assertion. We therefore accept

10 it as true. See Lopez v. State, 1988-NMSC-062, ¶ 3, 107 N.M. 450, 760 P.2d 142

11 (“When a case is assigned to summary calendar, the facts in the docketing statement

12 are accepted as true unless contested.”). 

13 {8} Our published authorities reflect that a defendant is entitled to advisement of

14 the right to counsel in successive judicial proceedings. See NMSA 1978, § 31-16-4(B)

15 (1968) (“Upon commencement of any later judicial proceeding relating to the same

16 matter, the presiding officer shall clearly inform the person so detained or charged of

17 the right of a needy person to be represented by an attorney at public expense.”).

18 Accordingly, the advisement and waiver, if any, at the magistrate court level cannot

19 be said to have effectuated advisement or waiver of the right to counsel in the
5

1 subsequent de novo proceedings before a district court. Cf. State v. Martin,

2 1969-NMCA-079, ¶ 2, 80 N.M. 531, 458 P.2d 606 (holding, where both the

3 magistrate court and the district court advised of the right to counsel and where the

4 defendant affirmatively waived counsel in both courts, the defendant effectively

5 waived his right to counsel). And as previously indicated, we cannot presume such

6 a waiver. See Gallegos, 2007-NMCA-112, ¶ 17 (“Presuming waiver from a silent

7 record is impermissible. The record must show, or there must be an allegation and

8 evidence which show, that an accused was offered counsel but intelligently and

9 understandingly rejected the offer. Anything less is not a waiver.” (internal quotation

10 marks and citation omitted)). Under the circumstances, we must reverse. See generally

11 State v. Rivera, 2012-NMSC-003, ¶ 20, 268 P.3d 40 (observing that structural errors,

12 such as complete denial of the right to counsel, “infect the entire trial process, and

13 necessarily render [the proceedings] fundamentally unfair[,]” thereby warranting

14 “automatic reversal” (internal quotation marks and citation omitted)).

15 {9} Accordingly, for the reasons stated in the second notice of proposed summary

16 disposition, we reverse and remand for further proceedings consistent with this

17 opinion.

18 {10} IT IS SO ORDERED.

19 ___________________________________

20 JONATHAN B. SUTIN, Judge
6

1 WE CONCUR:

2 _______________________________

3 TIMOTHY L. GARCIA, Judge

4 _______________________________

5 M. MONICA ZAMORA, Judge