The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Clerk of the Court for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE C OURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: May 28, 2024 3

No. A

- 1

- CA

- 40909 4

STATE OF NEW MEXICO , 5

Plaintiff

- Appellant
, 6

v. 7

CESAR ALFREDO JURADO, 8

Defendant

- Appell ee

. 9

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 David A. Murphy, District Court Judge 11
Raúl Torrez, Attorney General 12 Santa Fe, NM 13 Van Snow, Assistant Attorney General 14 Albuquerque, NM 15
for Appellant 16

Bennett J. Baur, Chief Public Defender 17 Mary Barket, Assistant Appellate Defender 18 Santa Fe, NM 19

f or Appellee 20OPINION 1

YOHALEM , Judge. 2

{1} This case, like our recently published opinion in State v. Ornelas , __

_ - 3

NMCA

- ___, ___ P.3d ___ (A

- 1

- CA

- 40501, May 1 4, 2024), is an appeal by the State 4
from an order of the district court specifically enforcing a plea agreement the State 5
sought to withdraw prior to its acceptance by the district court. The district court 6
agreed with Defendant Cesar Alfredo Jurado that the State had promised him a plea 7

and a specific sentence in return for his waiver of his constitutional right to a 8
preliminary hearing. See N.M. Const. art. II, § 14. Finding that Defendant was 9
induced by the State’s promise of a specific plea to waive his right to a preliminary 10
hearing, the district court held that the plea agreement was binding and enforceable 11
and the State could not avoid its obligations by filing a nolle prosequi and a new 12
criminal information. The district court also rejected the State’s alternative claim 13
that the plea agreement is void because Defendant failed to comply with what the 14

State claimed was a material provision of the agreement: a requirement that his 15
counsel file the plea paperwork within thirty or at most forty

- five days from the date 16
of the plea agreement. The district court concluded that Defendant would not have 17
reasonably understood the plea agreement to be conditioned on his defense counsel 18
meeting those time limits and enforced the plea agreement as understood by 19

Defendant . We agree with the district court and affirm. 20BACKGROUND 1

{ 2 } On April 9, 2022, Albuquerque Police Department officers found Defendant 2
asleep in his vehicle under the influence of narcotics. The officers seized 152 3
fentanyl pills from Defendant’s vehicle and arrested Defendant. The next day, a 4
criminal information was filed in metropolitan court charging Defendant with 5
possession of a controlled substance, contrary to NMSA 1978, Section 30

- 31

- 23 6
(2021) , a fourth degree felony

. 7

{ 3 } On May 25, 2022, Defendant appeared for a preliminary hearing in 8
metropolitan court and, with the advice of a public defender temporarily assigned to 9
represent him in metropolitan court, agreed to waive his right to a preliminary 10
hearing and to plead guilty in district court to felony possession of a controlled 11
substance. The State agreed to that plea and to a guaranteed specific sentence of 12
eighteen months of probation, to run concurrently with Defendant’s sentence in 13
another pending proceeding, as well as Defendant’s admission of one prior felony 14
conviction, which the State agreed to hold in abeyance at initial sentencing. 15

{ 4 } Below its substantive terms
, the plea agreement included two paragraphs 16

entitled
, “ O ther terms.” Paragraph five, on the first page of the plea agreement, stated 17

that “ [ t ] he above offer shall remain open for a period of [thirty] days

. ” O n the 18
following page , the last sentence of paragraph six stated that “ [ t ] his offer will remain 19open for forty

- five (45) calendar days from the filing of this [w] aiver absent an 1
express written decision by the State to extend the deadline.” 2

{ 5 } At all relevant times , Defendant was in custody at the Metropolitan Detention 3
Center (MDC) for violating his conditions of release in an earlier case. According to 4
Defendant, MDC had declared a state of emergency due to the COVID

- 19 pandemic. 5
Visits from counsel were restricted, creating “extreme difficulties” in 6
communication between defendants and defense counsel. Although Defendant was 7
temporarily represented by a public defender assigned to metropolitan court in 8
accepting the State’s plea agreement, no public defender entered an appearance in 9

district court on Defendant’s behalf until June 27, 202 2 , thirty

- three days after 10
Defendant agreed to the waiver of his preliminary hearing in return for the State’s 11
agreement to a plea. 12

{ 6 } On July 12, 2022, forty

- nine calendar days after the waiver and plea 13
agreement was filed in the metropolitan court, defense counsel emailed the 14

prosecutor to request the plea paperwork so that he could review it with Defendant. 15
Defense counsel explained that the public defender’s office was having great 16
difficulty communicating with clients held at MDC due to limitations imposed by 17
the facility during the COVID

- 19 pandemic, and he was arranging for Defendant to 18
be transported to his office to review the plea paperwork. T he prosecutor responde d 19
that the State planned to dismiss this case because it was “ incorrectly charged. ” The 20next day, July 13, 2022, the State filed a nolle prosequi, together with a criminal 1

information in district court, opening a new case charging Defendant with a greater 2

offense

— trafficking (by possession with intent to distribute) (2nd offense), contrary 3

to NMSA 1978, Section 30

- 31

- 20 (2006)

. 4

{ 7 } Defendant filed a motion to specifically enforce the plea a greement , arguing 5
that the plea agreement was binding because the State had induced him to agree to 6
waive his right to a preliminary hearing by offering a specific plea and sentence, and 7
that he had fulfilled his agreement to waive the hearing. Defense counsel cited to 8
New Mexico law holding that “w hen a plea rests in any significant degree on a 9
promise or agreement of the prosecutor, so that it can be said to be part of the 10
inducement or consideration, such promise must be fulfilled.” State v. King
, 2015

- 11

NMSC

- 030
, ¶ 16, 357 P.3d 949 (internal quotation marks and citation omitted)

. 12

{ 8 } The State responded, arguing that the plea agreement provided “a deadline of 13
thirty days following the filing of the waiver for that offer.” B ecause Defendant did 14
not accept the plea until after the thirty

- day deadline listed in paragraph five, the 15

State claimed that it was “not bo und to this plea.” 16

{ 9 } In considering Defendant’s motion to enforce the plea agreement, the district 17
court heard argument on the circumstances surrounding Defendant’s waiver of a 18
preliminary hearing and agreement to a plea. The district court concluded that 19
Defendant reasonably understood the State to be bound to the terms of the plea 20agreement in return for his waiver of a preliminary hearing, and would not have 1
anticipated that a delay by the public defender’s office in entering an appearance on 2
his behalf and initiating the plea paperwork would deprive him of the plea promised 3
by the State. On this basis, the district court granted Defendant’s motion to 4
specifically enforce the plea agreement. 5

DISCUSSION 6

{1 0 } The State appeals the district court’s order enforcing the plea agreement. The 7
State first contends that it can withdraw from a plea agreement that has not yet been 8
approved by the district court in the exercise of its prosecutorial discretion. Although 9
acknowledging that a plea agreement is enforceable by a defendant when the 10
defendant has relied on the agreement to their detriment, the State argues that 11
Defendant did not suffer any detriment when he waived his right to a preliminary 12
hearing because the State’s nolle prosequi dismissed that charge, and the criminal 13
information charging drug trafficking began a new case where Defendant has a right 14
to a preliminary hearing, putting Defendant back to the position he would have been 15
in had there been no plea agreement. Alternatively, the State argues that, even if the 16
plea agreement it entered with Defendant was enforceable, Defendant breached the 17agreement by failing to timely seek the plea paperwork from the State, 1 relieving the 1
State of any obligation to fulfill its promise. 2

{1 1 } We do not agree

. When the s t ate promises a spe cific plea in exchange for a 3

d efendant relinquishing a right or cooperating with the s tate pre

- plea, the plea 4
agreement is specifically enforceable if the defendant relinquishes the right or 5
performs their part of the bargain with the s tate

. The filing of a nolle prosequi does 6

not relieve the S tate of its obligation to fulfill its promise to Defendant. Concluding 7

that Defendant did not reasonably understand the plea agreement to be conditioned 8
on his counsel’s filing of plea paperwork within thirty to forty

- five days, and 9

therefore, there was no breach of the agreement, we affirm the district court’s order 10
specifically enforcing the plea agreement. 11

I. The State’s Promise of a Specific Plea in Return for Defendant’s Waiver 12 of a Constitutional Right to Preliminary Hearing Is Enforceable 13

{1 2 } Although a plea bargain not yet accepted by the district court is often 14
described in contract terms as an offer that can be withdrawn at any time without 15
depriving the defendant “of liberty or any other constitutionally protected interest,” 16

1 T he State argues, for the first time on appeal, that Defendant’s plea of “ not guilty ” at arraignment breached the plea agreement. The State did not argue in the district court that what appears to be a pro forma initial plea entered at arraignment to preserve Defendant’s rights, with Defendant present only by zoom video conference, violated the terms of the agreement. We, therefore, will not consider this argument. See In re Aaron L.
, 2000

- NMCA

- 024, ¶ 10, 128 N.M. 641, 996 P.2d 431 (explaining that generally a reviewing court will not consider issues not raised in the district court)

.Mabry v. Johnson , 467 U.S. 504, 507 (1984) , the United States Supreme Court, our 1
Supreme Court, and this Court have all acknowledged that a plea bargain has due 2
process implications that require “fairness in securing agreement between an 3
accused and a prosecutor

. ” Id. at 509 (internal quotation marks and citation omitted) ; 4

accord State v. Bourland , 1993

- NMCA

- 117, ¶ 3, 116 N.M. 349, 862 P.2d 457 5
(“ ‘ Plea negotiations between [the] defendant and the state must be governed by fair 6
play on both sides .’ ” (quoting State v. Taylor , 1988

- NMSC

- 023, ¶ 23, 107 N.M. 66, 7

752 P.2d 781
, overruled on other grounds by Gallegos v. Citizens Ins. Agency , 1989

- 8

NMSC

- 055, ¶ 28, 108 N.M. 722, 779 P.2d 99 ) )

. 9

{1 3 } While the S tate correctly recognizes the detrimental reliance exception to its 10
analysis of a plea bargain as a n offer or executory agreement
, t he S tate fails to 11
acknowledge and apply the legal principle underlying the detrimental reliance 12
exception: T he s tate must fulfill a promise it makes to a defendant to induce that 13
defendant to take some action. When a defendant fulfills their promise, the s tate must 14
fulfill its promise as well. See Santobello v. New York
, 404 U.S. 257, 262 (1971)

. 15

{1 4 } This holding in Santobello has been applied by our Supreme Court in King , 16

2015

- NMSC

- 030, ¶ 16, to enforce a plea agreement much like the agreement at issue 17

here. See Santobello , 404 U.S. at 262. The defendant in King offered to find and turn 18
over a weapon he used to commit a crime if the s tate agreed to dismiss a tampering 19
with the evidence charge . Our Supreme Court construed the defendant’s offer as a 20proposal to the s tate to enter into a plea agreement. King , 2015

- NMSC

- 030, ¶¶ 13

- 1

14, 18. When the prosecutor responded in a manner that “led [ the d]efendant 2
reasonably to understand that they had an agreement,” and the defendant produced 3
the weapon, complying with his part of the agreement and incriminating himself by 4
doing so, our Supreme Court held that the plea agreement became binding and 5
enforceable against the s tate based on the d efendant’s pre

- plea cooperation with the 6

s tate

. Id. ¶¶ 18

- 19. 7

{1 5 } The State here promised to allow Defendant to plead guilty to certain defined 8
charges and to be sentenced as guaranteed by the plea agreement in return for 9
Defendant’s pre

- plea waiver of his right under the New Mexico Constitution to a 10
preliminary hearing

. See N.M. Const. art. II, § 14. Defendant was induced by the 11
State’s promise to cooperate and to suffer detriment in reliance on the State’s 12
promise by waiving his right to a preliminary hearing. Therefore, s pecific 13
performance of the agreement is the “ proper remedy

. . . [i]n the interest of 14

fundamental fairness.” King , 2015

- NMSC

- 030, ¶¶ 17
, 19 (citations omitted)

. 15

{1 6 } The State challenges the application of these legal principles on one additional 16
ground. The State claims that Defendant did not detrimentally rely on the plea 17
agreement because the State filed a nolle prosequi, and proceeded with a new 18
criminal information, charging Defendant with a greater offense for the same 19
conduct. Because Defendant would receive a preliminary hearing on the new charge, 20the State contends that Defendant “did not suffer any harm from waiving [the 1
preliminary] hearing [on the original charges].” We disagree. 2

{1 7 } It is apparent that Defendant suffered some detriment in reasonable reliance 3
on the State’s promise of a plea to possession and specific sentence. The arrest on 4
the possession charge contributed to the revocation of Defendant’s conditions of 5

release in another case and to his incarceration. Defendant had two pending motions 6
for decision by the metropolitan court contesting probable cause. By waiving his 7
right to a preliminary hearing, Defendant gave up these legal challenges and the 8
constitutionally guaranteed hearing requiring the State to prove that probable cause 9
supported the possession charge. Instead of pursuing his legal challenges, Defendant 10
agreed to be bound over to the district court on felony charges. As the Colorado 11
Supreme Court explained in concluding that waiver of the right to a preliminary 12
hearing constitutes detrimental reliance on a plea agreement, “[t] he practical effect 13

of a defendant ’ s waiver of his right to a preliminary hearing is that he is deemed to 14
have admitted that probable cause exists

. ” People v. Macrander , 756 P.2d 356, 36 2 15
(Colo. 1988) (en banc). Under these circumstances, we cannot conclude that 16
Defendant did not rely to his detriment on the State’s promised plea agreement . We 17
note that the Colorado Supreme Court found that giving up a preliminary hearing is 18
sufficient detrimental reliance by a defendant to require the state to abide by its 19
promised plea agreement even though in Colorado, unlike New Mexico, there is no 20constitutional right to a preliminary hearing. Id. at 360

- 61 (holding that “a 1
defendant’s detrimental reliance need not implicate constitutional rights”) . In New 2
Mexico, of course, a defendant’s state constitutional rights are affected, see N.M. 3

Const. art. II, § 14
, increasing the deprivation. 4

{1 8 } We do not agree that the State can escape its obligation to fulfill its promise 5
to Defendant by filing a nolle prosequi. “ A nolle prosequi is a dismissal of criminal 6
charges filed by the prosecutor, usually without prejudice. ” State v. Ware , 1993

- 7

NMCA

- 041, ¶ 8 , 115 N.M. 339, 850 P.2d 1042

. The State has wide discretion to 8
dismiss criminal charges “upon good cause and honest motives.” State v. Ericksen
, 9

1980

- NMCA

- 029, ¶ 9, 94 N.M. 128, 607 P.2d 666 . Where, however, the prosecutor 10
“fails to demonstrate good faith,” and instead has “misused [their] discretionary 11
powers to achieve a barred result,” the district court acts well within its discretion 12
when it prevents the s tate from using a nolle prosequi to circumvent its obligations. 13

Id. The State offers no authority to the contrary. Therefore, we conclude that the 14
district court did not abuse its discretion in requiring the prosecution to abide by the 15
binding promise it made to Defendant in return for his waiver of his right to a 16
preliminary hearing. 17II. There Was No Breach of the Agreement Because Defendant Did Not 1 Reasonably Underst and That the Agreement Was Contingent on a 2 Deadline for Plea Paperwork 3

{1 9 } T he State next claims that even if its plea agreement with Defendant is binding 4
on the State, Defendant breached the agreement by failing to initiate the plea 5
paperwork within thirty days
, or at a maximum, forty

- five days. The State contends 6
that Defendant’s breach of this deadline voided the agreement and relieved the State 7
of its obligation to comply. Defendant responds by claiming that he did not 8
reasonably understand the plea agreement to be contingent on his counsel’s strict 9
compliance with the very short timelines provided in two conflicting paragraphs at 10
the end of the agreement. Defendant contends that he left the courtroom after 11
agreeing to the waiver and plea agreement believing that he had fulfilled his part of 12
the agreement by waiving his right to a preliminary hearing and admitting to 13
probable cause
, and therefore the State was bound by its plea agreement

. 14

{ 20 } Since the disagreement here concerns the terms of the plea agreement, our 15
task is to construe the plea agreement. Our Supreme Court has held that fairness to 16

the defendant demands that “ appellate courts construe the terms of the plea 17
agreement according to what [the d] efendant reasonably understood when he entered 18
the plea.” State v. Miller , 2013

- NMSC

- 048, ¶ 9, 314 P.3d 655 ( alteration, internal 19
quotation marks
, and citation omitted)

. 20{ 2 1} In this case, following the hearing, t he district court agreed with Defendant’s 1
understanding of the plea agreement, finding that “Defendant left court thinking that 2
he had a plea” and no one entered an appearance on his behalf during the relevant 3
time period to tell him otherwise. The district court found that Defendant’s 4
understanding of the plea agreement to be binding, and not to be contingent on his 5
counsel’s compliance with the time periods stated in the plea agreement, was 6
reasonable. We agree. 7

{ 22 } The waiver and plea agreement at issue here consists of six numbered 8
paragraphs. The title at the top of the document reads
, “Waiver of Preliminary 9
Hearing.” The document begins by acknowledging Defendant’s right to a 10
preliminary hearing, and states that Defendant is agreeing to waive that hearing 11
voluntarily “based on the following.” In the first two paragraphs, Defendant agrees 12
to be bound over to district court and to plead guilty to possession of a controlled 13
substance. The next paragraph states that the State agrees to a sentence of eighteen 14

months of supervised probation, that Defendant “must admit [to] one prior felony 15
conviction,” and the State “will agree to hold one prior [ conviction] in abeyance” at 16
initial sentencing. Paragraph five , which is the focus of the State’s argument, reads 17

as follows: 18
Other terms of this agreement: The above offer shall remain open for a 19 period of [thirty] 30 days. The State does not oppose the sentence in 20 this matter running concurrent to any sentence imposed in [another case 21 pending against Defendant]. 22Paragraph six, found on the next page, states that Defendant agrees that he will 1

remain “bound

- over to [ the d]istrict [c]ourt even if . . . [ the court ]

. . . rejects the 2
proposed plea agreement , ” and that “the State will no longer be obligated to the 3
terms of this agreement” if Defendant incurs new charges. The last sentence states
, 4
This offer will remain open for forty

- five (45) calendar days from the 5 filing of this [w] aiver absent an express written decision by the State to 6 extend the deadline. 7

{ 23 } We begin by examining the language of the agreement as a whole. The first 8
four paragraphs are straightforward. They set out the terms of a binding plea 9
agreement, specifying a guaranteed sentence as well as a particular charge, and make 10
the State’s promise of both the conviction and the sentence contingent on 11

Defendant ’s waiver of his right to a preliminary hearing and his subsequent plea of 12
guilty in district court. 13

{ 24 } Paragraphs five and six , in contrast, confusingly describe the plea agreement
, 14

for the first time
, as an “offer
, ” a term that is not used anywhere else in the 15

agreement, and they conflict as to the length of the time period they specify. Neither 16
paragraph five nor paragraph six state s what Defendant needs to do within thirty, or 17
alternatively, forty

- five days. They say only that “th e above offer will remain open” 18
for the time period specified. There is no statement of the consequences of missing 19
what the State claims on appeal is a strict deadline. The confusing language of 20
paragraphs five and six concerning the time period contrast with paragraph six’s 21clear explanation of the consequences of Defendant incurring new charges: “ [T] he 1
State will no longer be obligated to the terms of this agreement .” 2

{ 25 } In addition to the confusing language of the agreement on its face, 3
Defendant’s counsel in district court explained that no public defender would have 4
allowed a defendant to agree to such unrealistic deadlines for plea paperwork had 5
they understood paragraphs five and six as absolute deadlines. Counsel stated that
, 6
in his experience, these time periods had never been treated by the prosecution as 7
mandatory. They were routinely ignored or extended. Counsel explained to the 8
district court the difficulty attorneys were having in meeting with their clients at 9
MDC, where Defendant was in custody. Consulting with Defendant would be the 10
first step in preparing the plea paperwork . Such a meeting could not have been 11
scheduled within the short time period mentioned in paragraphs five and six of the 12

agreement because visiting hours for attorneys had been limited by MDC as a 13

COVID

- 19 precaution . The problem was so severe that the public defender’s office 14

was transporting clients from MDC to the public defender’s office s for meetings on 15
plea agreements, and were in the process of making such arrangements for 16
Defendant when they requested the plea paperwork from the State. 17

{ 26 } Although the State introduced conflicting testimony of the prosecutor in 18
which she claimed that she routinely enforced these deadlines, the district court’s 19
finding that Defendant did not reasonably understand at the time he entered into the 20plea agreement that it could be voided by a delay in appointing counsel and preparing 1
the legal paperwork is well

- supported by both the confusing language of the 2
agreement and the circumstances surrounding the agreement’s execution. 3

{ 27 } We, therefore, agree with the district court’s conclusion that Defendant’s 4
understanding of the plea agreement as binding once he waived his constitutional 5
right to a preliminary hearing is reasonable and that he is entitled to enforce the 6
State’s promise. 7

CONCLUSION 8

{ 28 } For these reasons, we affirm the district court’s order granting specific 9
enforcement of the plea agreement. 10

{ 29 } IT IS SO ORDERED. 11

_ ________________________ 12 JANE B. YOHALEM, Judge 13

WE CONCUR: 14

_____________________________ 15 MEGAN P. DUFFY, Judge 16

_____________________________ 17 KATHERINE A. WRAY, Judge 18