This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 CITY OF ROSWELL, 2 Plaintiff-Appellee, 3 v. No. A-1-CA-35875 4 FRANK LUCERO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 James M. Hudson, District Judge 8 Office of the City Attorney 9 Aaron S. Holloman 10 Roswell, NM 11 Paul V. Sanchez 12 Roswell, NM 13 for Appellee 14 Frank Lucero 15 Roswell, NM 16 Pro Se Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 {1} Defendant has appealed from numerous convictions, including unlawful use of 1 a license (suspended), lack of proof of fi nancial responsibility, ope n container, and a 2 stop lamp/signal device violation. [RP 131-32] We previously issued a notice of 3 proposed summary disposition in which we propos ed to reverse in light of the absence 4 of a valid waiver of counsel. Plaintiff (the City) has filed a response in opposition. 5 After due consideration, we remain unpersuaded. We therefore reverse. 6 {2} As an initial matter, we deny the City’s motion to supplement the record. The 7 information it seeks to present pertains to separate matters, and as a result, it is not 8 properly incorporated in the record before us. See generallyRule 12-209(A), (C) 9 NMRA (defining the record to include the papers and pleadings filed in the district 10 court, and providing for supplementation “[i] f anything material to either party is 11 omitted from the record proper by error or accident”). 12 {3} The relevant background information was previously set forth in the notice of 13 proposed summary disposition. We will not reiterate at length here . Instead, we will 14 focus on the content of the memorandum in opposition. 15 {4} We understand the City to concede thatDefendant was entitled to advisement 16 of the right to counsel, to acknowledge th at no signed waiver was obtained below, and 17 to agree that this suggests structural error. [MIO 1] However, the City contends that 18 “Defendant manufactured the error” [MIO 1] by a subterfuge. It asserts that Defendant 193 deceived the magistrate court into believing that he had signed the waiver of counsel 1 form, when in reality he had merely written “not guilty” on the document. [MIO 3] 2 The City contends that this was delib erate gamesmanship on Defendant’s part, 3 intended to allow him to proceed without counsel while simultaneously creating an 4 avenue for relief on appeal. [MIO 4] Pursuant to the doctrine of invited error, the City 5 urges this Court to reject De fendant’s challenge. [MIO 2-7] 6 {5} To the extent that it is accurate, the City’s characterization of Defendant’s 7 conduct is unquestionably concerning. See State v. Arellano , 1998-NMSC-026, ¶¶ 8, 8 18-19, 125 N.M. 709, 965 P.2d 293 (expressing disdain for gamesmanship where the 9 defense elected not to alert the trial court to claimed “fundamental structural error” 10 and waited for the verdict be fore objecting). However, as the City acknowledges, “the 11 dry, context-free” documents contained within the limited record of the magistrate 12 court proceeding does not s ubstantiate the alleged artifice. [MIO 4] This is 13 problematic. See generally State v. Swafford, 1989-NMCA-069, ¶ 27, 109 N.M. 132, 14 782 P.2d 385 (“Our review is limited to the record presented on appeal.”). 15 {6} Of course, mechanisms exist by which th e relevant events at the magistrate 16 court level could beestablished. See State v. Baca , 2015-NMSC-021, ¶ 28, 352 P.3d 17 1151 (recognizing the authority of the district courts as factfinders to reconstruct 18 magistrate court nonrecord proceedings); State v. Gallegos , 2007-NMCA-112, ¶¶ 13, 194 19, 142 N.M. 447, 166 P.3d 1101 (recognizing that the district courts have authority 1 on appeal to supplement magistrate court reco rds, with the assistance of the magistrate 2 judge’s testimony, to determine the facts n ecessary to assess the legal validity of a 3 waiver). In this case, however, we conc lude that any such exercise would be 4 academic. 5 {7} In his docketing statement, Defendant a sserted that when he appealed to the 6 district court for a trial de novo, he was never advised of the right to counsel, he never 7 waived counsel, and no Farettahearing was held. [DS 3] Nowhere in its 8 memorandum in opposition does the City dispute this assertion. We therefore accept 9 it as true . See Lopez v. State , 1988-NMSC-062, ¶ 3, 107 N.M. 450, 760 P.2d 142 10 (“When a case is assigned tosummary calendar, the fact s in the docketing statement 11 are accepted as true unless contested.”). 12 {8} Our published authorities reflect that a defendant is entitled to advisement of 13 the right to counsel in succe ssive judicial proceedings. SeeNMSA 1978, § 31-16-4(B) 14 (1968) (“Upon commencement of any later judicial proceeding relating to the same 15 matter, the presiding officer shall clearly inform the person so detained or charged of 16 the right of a needy person to be represen ted by an attorney at public expense.”). 17 Accordingly, the advisement and waiver, if any, at the magistrate court level cannot 18 be said to have effectuate d advisement or waiver of the right to counsel in the 195 subsequent de novo proceedings before a district court. Cf. State v. Martin , 1 1969-NMCA-079, ¶ 2, 80 N.M. 531, 458 P.2d 606 (holding, where both the 2 magistrate court and the district court advised of the right to counsel and where the 3 defendant affirmatively waived counsel in bothcourts, the defendant effectively 4 waived his right to counsel). And as previously indicated, we cannot presume such 5 a waiver. See Gallegos , 2007-NMCA-112, ¶ 17 (“Presuming waiver from a silent 6 record is impermissible. The record must show, or there must be an allegation and 7 evidence which show, that an accused wa s offered counsel but intelligently and 8 understandingly rejected the offer. Anything less is not a waiver.” (internal quotation 9 marks and citation omitted)). Under th e circumstances, we must reverse. See generally 10 State v. Rivera , 2012-NMSC-003, ¶ 20, 268 P.3d 40 (obs erving that structural errors, 11 such as complete deni al of the right to counsel, “inf ect the entire trial process, and 12 necessarily render [the proceedings] fundamentally unfair[,]” thereby warranting 13 “automatic reversal” (internal quot ation marks and citation omitted)). 14 {9} Accordingly, for the reasons stated in the second notice of proposed summary 15 disposition, we reverse and remand for further proceedings consistent with this 16 opinion. 17 {10} IT IS SO ORDERED. 18

___________________________________ 19 JONATHAN B. SUTIN, Judge 206 WE CONCUR: 1

_______________________________ 2 TIMOTHY L. GARCIA, Judge 3

_______________________________ 4 M. MONICA ZAMORA, Judge 5