This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,268 9 ANDREW LUCERO, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Stan Whitaker, District Judge 13 Gary K. King, Attorney General 14 Anita Carlson, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Josephine H. Ford, Assistant Public Defender 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 FRY, Chief Judge. 23 The issue in this case is whether the metropolitan court should have dismissed 24 the charges against Defendant because th e 182-day time frame prescribed by Rule 7- 252 506 NMRA, for the commencement of trial ha d expired. Defendant failed to appear 1 at one of the metropolitan court hearings, and the court issued a bench warrant for his 2 arrest. Defendant subseque ntly posted bond in response to the warrant, and the court 3 determined that the 182-day time frame restarted. Defendant claims that this ruling 4 was erroneous. We affirm. 5 BACKGROUND 6 On June 17, 2006, Defendant was arre sted and charged with driving while 7 intoxicated and failure to maintain lane. He was arraigned on Ju ly 10, 2006, and trial 8 was set for August 24, 2006. On November 3, 2006, after granting the State several 9 motions for continuance in the preceding m onths, the court scheduled the trial for 10 December 14, 2006. On November 27, 2006, the court rescheduled the trial for 11 December 11, 2006, and sent a notice of h earing to Defendant, stamped “disregard 12 previous hearing.” Defendant failed to appear at the December 11 trial setting, and 13 the court ordered the issuance of a bench warrant. The warrant, issued the following 14 day, stated that Defendant could be released upon his posting bond in the amount of 15 $1100. On January 3, 2007, Defendant pos ted bond in response to the warrant. On 16 the same date, the court scheduled trial fo r February 16, 2007, and Defendant received 17 a notice indicating that, in addition to the ch arges of DWI and failureto maintain lane, 18 he had been charged with contempt for failing to appear at the December 11 trial. 193 At a hearing on February 16, 2007, the court inquired why De fendant had failed 1 to appear on December 11. De fendant stated that he did not receive notice to appear 2 on that day and that he had appeared on D ecember 14, the date of the original court 3 setting. The court then cancelled the warrant and ordered a release of the bond that 4 Defendant had posted. The State asked th e court when the 182-day rule would start 5 running, and the court replied that if Defendant’s trial commenced prior to March 10, 6 2007, the rule would not be an issue. Th e court scheduled the trial for March 9, 2007. 7 On March 9, 2007, the court issued a 30- day extension of th e 182-day rule because 8 defense counsel’s office had misplaced his f ile, and it scheduled th e trial for April 16, 9 2007. 10 On April 16, 2007, the court granted a continuance to the State. Defense 11 counsel’s objection to the continuance did not mention the 182-day rule. On May 29, 12 2007, Defendant moved to dismiss, arguing that the 182-day rule had run pursuant to 13 Rule 7-506(B)(5). The court denied the mo tion, determining that there was a bench 14 warrant that had not been addressed until February 16, 2007, and stating that it was 15 the court’s intention that the 182-day rule re started at that time. Defendant entered a 16 conditional guilty plea and appealed to the district court. The district court affirmed 17 the judgment of the metropolitan court. Defendant appeals. 184 DISCUSSION 1 The question presented in this case re quires us to interpret Rule 7-506(B). 2 Therefore, our standard of review is de novo. See State v. Granado , 2007-NMCA3 058, ¶ 11, 141 N.M. 575, 158 P.3d 1018 (explaining that we review the interpretation 4 of metropolitan court rule s under a de novo standard). 5 The parties have different views of Rule 7-506 and of which event triggered the 6 182-day time period for the commencement of trial. The rule provides, in relevant 7 part: 8 The trial of a criminal citation or complaint shall be commenced within 9 one hundred eighty-two (182) days after whichever of the following 10 events occurs latest: 11 (1) the date of arraignment or the filing of a waiver of 12 arraignment of the defendant; 13

. . . . 14 (5) if the defendant is arrested for failure to appear or 15 surrenders in this state for failure to appear, the date of arrest or 16 surrender of the defendant. 17 Rule 7-506(B)(1), (5). 18 Defendant maintains that the rule began to run when he was arraigned on July 19 10, 2006, and that the 182-day time frame expi red long before the date of the final 20 trial setting on May 29, 2007. The State clai ms that the 182-day time period restarted 21 on January 3, 2007, when Defendantposted bond on the bench warrant. 225 Defendant makes four arguments maintain ing that the court misapplied Rule 7- 1 506(B)(5) and that the 182-day period did not restart. His first argument is somewhat 2 difficult to follow, but he appears to conte nd that the court’s i ssuance of the bench 3 warrant was erroneous because Defendant did not receive notice of the hearing on 4 December 11. Second, Defendant maintain s that he did not surrender on the warrant 5 because he did not submit to being taken into custody and he was not arrested. Third, 6 he argues that the court’s ruling regardi ng the warrant and the restarting of the 182- 7 day rule was ambiguous and thus, that the ruleof lenity militates in favor of dismissal 8 of the charges. Fourth, he claims he never waived his right to be tried within the 182- 9 day period. Because we concl ude that the court properly determined that the 182-day 10 time period restarted when Defendant posted bond, we need not respond to 11 Defendant’s fourth argument regarding waiver. 12 Bench Warrant Properly Issued 13 Defendant argues that the metropolitan court erroneously issued the bench 14 warrant because he did not receive notice of the December 11 hearing and thus, his 15 failure to appear was excused or justified. He contends that if the warrant was 16 erroneously issued, his alleged surrender pursu ant to the warrant could not be used to 17 restart the rule. 186 Defendant does not dispute the fact that he failed to appear at the December 11 1 hearing, nor does he dispute that the metropolitan court mailed him notice of the 2 December 11 hearing; he argues only that he did not receive the notice. Rule 7-207 3 NMRA governs the issuance of bench warrants in the metr opolitan court. Under that 4 rule, if a person fails to appear at the time and place ordered, the court may issue a 5 warrant for his or her arrest. Rule 7-207(A) . This rule does not require the court to 6 inquire into the reasoning or justification for a defendant’s absence before issuing a 7 bench warrant. Instead, the mere fact that a defendant fails to appear vests a court 8 with the authority to issue a warrant. In the present case, the metropolitan court 9 apparently gave Defendant the benefit of the doubt and cancelled the warrant so that 10 trial could proceed. However, the fact rema ins that Defendant failed to appear for a 11 hearing, and the court properly exercised its authority under Rule 7-207(A) to issue 12 the bench warrant. 13 If we accepted Defendant’s argument that the warrant was erroneously issued, 14 courts would be required to evaluate every bench warrant to determine whether there 15 was any excuse or justification for a defendant’s failure to appear . Defendant cites no 16 authority for requiring such an evaluation. Furthermore, allowing a defendant to 17 challenge a court’s authority to issue a warrant might encourage defendants to look 18 for reasons to be excused from appearing incourt with the hope that the 182-day rule 197 would run. See State v. Lobato , 2006-NMCA-051, ¶ 30, 139 N.M. 431, 134 P.3d 122 1 (noting that if an appellate court had to ev aluate the propriety of all orders declaring 2 a mistrial and that if the court determin ed the mistrial was improper, “[s]uch a 3 scenario would be sure to cause additi onal delay during the appellate process and 4 would defeat the six-month rule’s bright -line nature and ease of application”). 5 Defendant further argues that the c ourt’s conduct following Defendant’s posting 6 of bond somehow led him to believe that th e court was excusing his failure to appear 7 at the December 11 trial setting and that this excusal translated to an understanding 8 that the 182-day time frame was not reset as a result of the bench warrant and the 9 posting of bond. Defendant observes thathe posted bond on January 3, 2007, and 10 then appeared on the scheduled trial date of February 16, 2007. At that time, the court 11 considered Defendant’s explanation that hedid not receive notice of the December 11 12 hearing and stated that it was cancelling the bench warrant. When the State asked 13 whether the 182-day rule restarted, the court responded that if the trial started before 14 March 10, there was no need to consider the question. 15 Ultimately, the trial did not begin beforeMarch 10. On March 9, the defense 16 asked for a continuance because Defendant’s file had been misplaced. On April 16, 17 the State announced that it was not ready for trial, and the court granted a continuance. 18 On May 29, the State was rea dy for trial, and Defendant moved to dismiss on the basis 198 of the 182-day rule. The court stated that there had been a validbench warrant issued 1 for failure to appear and that it was the c ourt’s intent that the rule should restart. 2 We fail to see how the court’s actions c onstituted, in effect, a waiver of Rule 3 7-506(B)(5). The court issued a bench warrant for failure to appear, and Defendant 4 posted bond on that warrant. The cancellation of the warrant after Defendant posted 5 bond is irrelevant. The warrant was valid when issu ed, and Defendant responded 6 according to the terms of the warrant by posting bond. These circumstances fit within 7 those contemplated by the rule. Defendant “surrender[ed] in this state for failure to 8 appear.” Rule 7-506(B)(5). Thus, the 182- day time frame restarte d and began to run 9

anew. 10 To the extent Defendant argues that the court violated his due process rights by 11 holding him accountable for his good faith failure to appear, we are not persuaded. 12 Defendant does not dispute that the court se nt him notice of the December 11 trial 13 setting or that the notice stated that “FAILURE TO APPEAR AT THE TIME AND 14 DATE SPECIFIED WILL RESULT IN THE ISSUANCE OF A WARRANT FOR 15 YOUR ARREST.” All previous notices of h earing sent to Defendant stated the same 16 warning. None of the noti ces provided that the court would consider a defendant’s 17 excuse for failing to appear. Thus, it should have come as no surprise that a bench 18 warrant issued when Defendant failed to appear on December 11. See State v. Davis , 199 2009-NMCA-067, ¶ 14, 146 N.M. 550, 212 P.3d 438 (“The essence of due process 1 is the right to notice and an opportunity to prepare and defend against the allegations.” 2 (internal quotation marks and citation omitted )). We therefore hold that the court 3 properly issued the bench warrant for De fendant due to his failure to appear. 4 Defendant Surrendered When He Posted Bond 5 Defendant next argues that his posting bond pursuant to the warrant did not 6 restart the 182-day period becau se he was not arrested and he did not “surrender” as 7 required by Rule 7-506(B)(5). He contends that surrendering is analogous to being 8 taken into police custody and that because he was never arrested and merely posted 9 bond, he never surrendered as contemplatedby the rule. We are not persuaded. 10 The rules of the metropolitan court are to be “liberally construed to secure the 11 just, speedy and inexpensive determination of every me tropolitan court action,” and 12 they are not to be construed “to abridge, enlarge or modify the substantive rights of 13 any litigant.” State v. Maestas , 2007-NMCA-155, ¶ 8, 143 N.M. 104, 173 P.3d 26 14 (internal quotation marks and citation omitte d). In construing Supreme Court rules 15 of procedure, this Court app lies the same rules that are applicable to the interpretation 16 of statutes. State v. Gutierrez , 2006-NMCA-090, ¶ 7, 140 N.M. 157, 140 P.3d 1106. 17 We consider the plain meani ng of the rule, which requires us to give effect to the 18 rule’s language, and re frain from further interpretation when the language is clear and 1910 unambiguous. Id. Under Defendant’s in terpretation of Rule 7-506(B)(5), the 182-day 1 time frame can only be reset if a defendant fails to appear and is arrested or surrenders 2 to be taken into custody, not when a defendant posts bond pursuant to a bench 3

warrant. 4 In interpreting the rule, we find guidance in our case law interpreting the district 5 court’s nearly identical counterpart rule , Rule 5-604(B) NMRA. According to that 6 case law, the purpose of the events triggeri ng the running of the rule (apart from the 7 initial arraignment) “is to restart the rule when certain common ev ents occur that make 8 it reasonable to give the state another six months [or, in metropolitan court, 182 days] 9 in which to try a defendant.” State v. Littlefield , 2008-NMCA-109, ¶ 12, 144 N.M. 10 655, 190 P.3d 1150. “This Court . . . has refused to read the . . . rule or view the facts 11 relating to issues arising under it in such a manner that would require a dismissal when 12 common sense would indicate otherwise.” State v. Jaramillo , 2004-NMCA-041 ¶ 13, 13 135 N.M. 322, 88 P.3d 264. 14 With these precepts in mind, we turn to the specific facts in this case. The 15 bench warrant stated that any officer authorized to execute the warrant was 16 commanded to arrest Defendant and bring hi m before the court to answer for his 17 failure to appear. Thus, the purpose of th e warrant was to assure the appearance of 18 Defendant to answer the specified chargeand for subsequent proceedings. In our 1911 view, therefore, “surrender,” as contempl ated by Rule 7-506(B)(5), encompasses more 1 than just surrender at a police stati on. Surrendering can encompass voluntarily 2 appearing before the court, which constitutes a submission to the court’s authority. 3 See Rule 7-406(B) NMRA (providing that su rrender of an offender occurs when a 4 paid surety delivers the defendant to the court prior to the entry of a judgment of 5 default on the bond). 6 Defendant argues that when a person posts a bond in response to a bench 7 warrant, it means that he or she wants a hearing because the warrant was erroneously 8 issued. Defendant cites no authority for th is argument. Therefore, we apply the 9 approach that is consistent with our rules and case law such that posting bond 10 constitutes a surrender. By posting bond, Defendant avoide d his arrest, appeared in 11 court to answer to the chargeof failure to appear, and th ereby submitted himself to the 12 court’s authority. See Black’s Law Dictionary 1484-85 (8th ed. 2004) (defining 13 surrender as the act of yielding to another’s power or control or an officer’s delivery 14 of a prisoner to the authorities); see also Rule 7-406(B) (defining surrender of an 15 offender by a paid surety as the delivery of the defendant to the court). Common 16 sense tells us that under Rule 7-506(B)(5), it is reasonable to give the state an 17 additional 182 days in which to try a defendant when a court issues a bench warrant, 18 regardless of whether the warrant is effectuated through arrest, through the 1912 defendant’s surrender into custody, or through the defendant’s surrender to the court’s 1 authority via posting of bond. 2 Defendant relies on Granado , 2007-NMCA-058, ¶ 25, in which the defendant’s 3 failure to appear for trial did not restart the 182-day rule. In that case, the 4 metropolitan court stated that it intended toissue a bench warrantfor the defendant’s 5

arrest. Id. ¶ 4. However, later that day, be fore the bench warrant was issued, the 6 defendant appeared in c ourt and announced that his vehicle had broken down. Id. ¶¶ 7 5, 9, 26 (noting that because there was no outstanding bench warrant when the 8 defendant appeared before the court to explain his non-appearance, there was nothing 9 for which the defendant could surrender). Defendant argues that, as in Granado , there 10 was no legal authority directing Defendant to be taken into custody, and there was 11 nothing for which he could surrender. We find this analogy to be unpersuasive 12 because in Granado , the court did not issue a warrant. Granado stated that “[t]o 13 surrender in this context . . . simply mean s that a person voluntarily submits to the 14 legal authority that authorizes or di rects him to be taken into custody.” Id. ¶ 26. The 15 language of the bench warrant in the presen t case authorized Defendant to be taken 16 into custody. Before that could happen, Defendant pos ted bond, which in our view 17 is the same as surrender. 1813 Defendant maintains that the question of what constitutes surrender under Rule 1 7-506(B)(5) was never argued in the metropo litan court and, therefore, it would be 2 unfair to affirm the court on the basi s of this fact-dependent issue. See State v. 3 Franks , 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct. App. 1994) (noting that it would 4 be unfair to an appellant to affirm a lo wer court decision on a fact-dependent ground 5 not raised below). We di sagree. The facts surrounding the issuance of the bench 6 warrant and Defendant’s pos ting of bond are not in dispute. The only question is 7 whether the posting of bond constitutes su rrender under the 182-day rule. We do not 8 think it is unfair to interpret the langua ge of Rule 7-506(B)(5) even though the 9 metropolitan court did not undertake the same analysis. See State v. Guzman , 2004- 10 NMCA-097, ¶ 10, 136 N.M. 253, 96 P.3d 1173 (explaining that it would not be unfair 11 to the defendant to affirm the district court’s decision on the basis of matters that were 12 part of the record before the court even if the court did not rely on those matters in 13 making its ruling). 14 Defendant next argues that because th e metropolitan court cancelled the bench 15 warrant, “it was as if the warrant had not been issued.” We are not persuaded. The 16 fact that the court released the bond, can celled the warrant, and did not impose a fine 17 for failure to appear does not mean that the warrant was ne ver issued. While the court 18 gave Defendant the benefit of the doubt by cancelling the warrant and waiving the fine 1914 so that trial could proceed, at the time that Defendant surrendered under the warrant, 1 the warrant was valid and still inexistence. As stated earlier, once a warrant is issued 2 for failure to appear, it is not relevant whether it gets cancelle d or whether Defendant 3 has a justification for his absence. 4 The Rule of Lenity Is Not Applicable 5 Defendant contends that the rule of lenity should appl y in this case because the 6 metropolitan court’s ruling at the February16 hearing was ambiguous. “The rule of 7 lenity counsels that criminal statutes shoul d be interpreted in a defendant’s favor when 8 insurmountable ambiguity persists regarding the intended scope of a criminal statute.” 9 State v. Davis , 2003-NMSC-022, ¶ 14, 134 N.M. 172, 74 P.3d 1064. There are two 10 flaws in Defendant’s argument. First, heis not claiming that the 182-day rule is 11 ambiguous. Instead, he maintains that the court’s ruling was ambiguous. He cites no 12 authority supporting the view that the rule of lenity applies to an ambiguous court 13 ruling. Second, even if Defendant’s argu ment was directed at the language of Rule 14 7-506(B)(5), we see nothing ambiguous about the rule. The rule clearly provides a 15 mechanism for permitting the 182-day time frameto start again if the defendant fails 16 to appear and thereby delays the time for commencing trial. 1715 Waiver of the Right to Invoke the 182-Day Rule 1 Because we agree that Defendant’s su rrender restarted th e 182-day period, we 2 do not address Defendant’s argument that he did not waive his right to invoke the rule. 3 CONCLUSION 4 For the reasons stated above, we affirm Defendant’s conviction. 5 IT IS SO ORDERED. 6

7 CYNTHIA A. FRY, Chief Judge 8 WE CONCUR: 9

10 RODERICK T. KENNEDY, Judge 11

12 LINDA M. VANZI, Judge 13