IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Opinion Number: 2
F iling Date: February 27, 2023 3
NO. S-1- SC
- 38130 4 STATE OF NEW MEXICO, 5 Plaintiff

- Respondent , 6

v. 7 CHRISTOPHER T. RODRIGUEZ, 8 Defendant

- Petitioner

. 9
ORIGINAL PROCEEDING ON CERTIORARI 10 Brett R. Loveless, District Judge 11
Bennett J. Bauer, Chief Public Defender 12 Allison H. Jaramillo, Assistant Appellate Defender 13 Santa Fe, NM 14 for Petitioner 15 Hector H. Balderas, Attorney General 16 John J. Woykovsky, Assistant Attorney General 17 Santa Fe, NM 18 for Respondent 19 The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.American Civil Liberties Union of New Mexico 1 Leon Howard, III 2 Albuquerque, NM 3 Juvenile Law Center 4 Marsha L. Levick 5 Philadelphia, PA 6
for A mici Curiae Juvenile Law Center, Campaign for Youth Justice, and The 7 Sentencing Project 8OPINION 1 VIGIL , Justice. 2
{1} The Delinquency Act, NMSA 1978, §§ 32A -2- 1 to

- 33 (1993, as amended 3 through 2021 ), directs that a “youthful offender” who has been found guilty of 4 committi ng certain felonies is entitled to an amenability hearing to determine if the 5 child will receive an adult sentence or juvenile sanctions. Section 32A -2- 20. 6 Defendant Christopher T. Rodriguez pleaded guilty to felony offenses committed 7 when he was sixteen y ears old under a plea and disposition agreement, and following 8 an amenability hearing, the district court imposed an adult sentence. 9
{2} Defendant appealed the amenability determination , and on its own motion, the 10 Court of Appeals held that under the plea and disposition agreement, Defendant 11 waived his right to appeal. State v. Rodriguez , A-1- CA

- 37324 , mem. op. ¶¶ 1, 9 12 (N.M. Ct. App. Nov. 27, 2019) (nonprecedential). We granted certiorari to determine 13 whether a juvenile waives the right to appeal an amenability determination by 14 entering into a plea and disposition agreement. We hold that the right is not waived, 15 reverse the Court of Appeals, and remand the case to the Court of Appeals to decide 16 Defendant’s appeal on the merits. 172 I. BACKGROUND 1 A. District Court 2
{3} In the plea and disposition agreement , Defendant agreed to plead guilty to one 3 count of aggravated burglary (deadly weapon), pursuant to NMSA 1978, Section 30

- 4 16

- 4(A) (1963) and NMSA 1978, Section 31

- 18

- 16 (1993 , amended 2022 ); t wo 5

c ounts of conspiracy to commit aggravated burglary (deadly weapon), pursuant to 6 NMSA 1978, Section 30

- 28

- 2 (1979) and Section 30

- 16

- 4(A); one count of 7 unauthorized use of the card of another, pursuant to NMSA 1978, Section 58

- 16

- 8 16(B) (1990); three counts of residential burglary, pursuant to NMSA 1978, Section 9 30

- 16

- 3(A) (1971); and two counts of auto burglary, pursuant to Section 30

- 16 -3(B). 10
{4} The plea and disposition agreement provided that “[s]ome of the charges make 11 [Defendant] a ‘youthful offender,[’] therefore an amenability hearing will need to be 12 held to determine whether [Defendant] will receive a juvenile or adult sentence.” 13 The agreement further provided a “waiver of defenses and appeal” provision that 14 stated: 15 Unless this plea is rejected or withdrawn, [Defendant] gives up all 16 m otions, defenses, objections, or requests which he has made or could 17 make concerning the [c]ourt’s entry of judgment against him if that 18 judgment is consistent with this agreement. [Defendant] specifically 19 waives his right to appeal as long as the court’s sentence is imposed 20 according to the terms of this agreement. 213 {5} The potential adult sentence listed in the agreement was thirty

- one years and 1 six months of incarceration, and there were “no other agreements as to sentencing

. ” 2 Defendant verbally acknowledged that he read, understood, and agreed to the terms 3 of the agreement , and also noted his approval by signing the agreement

. The 4 agreement was then signed by Defendant’s attorney, the prosecutor, and the district 5 court judge. 6
{6} Following the amenability hearing, the district court entered its order finding 7 that Defendant was “ not amenable to treatment as a juvenile. ” Defendant was 8 sentenced as an adult to thirty

- one years and six months with seventeen years and 9 six months suspended pursuant to Section 32A -2- 20(A ), (B). 10 B. Court of Appeals 11
{7} Defendant appealed to the Court of Appeals, arguing that the district court 12 abused its discretion in finding that he was not amenable to treatment in the juvenile 13 system. The Court of Appeals did not address the merits of Defendant’s argument. 14 See Rodriguez , A -1-CA- 37324, mem. op. ¶¶ 6

- 10. Instead, after raising the issue on 15 its own, the Court proceeded to determine whether Defendant waived his right to 16 appeal under the plea and disposition agreement. Id. ¶ 6. Concluding t hat because 17 the sentence imposed was within the parameters set forth in the plea and disposition 18 agreement, the Court of Appeals held that Defendant waived his right to appeal the 194 outcome of the amenability hearing and dismissed the appeal. Id. ¶¶ 8, 10. W e 1 granted Defendant’s petition for a writ of certiorari to review this holding. See Rule 2 12

- 502 NMRA. 3 II. DISCUSSION 4
{8} Defendant asserts that he did not and could not waive his right to challenge 5 the district court’s amenability determination. Because “[ t] he ri ght to appeal is a 6 matter of substantive law, ” our review of whether Defendant is entitled to appeal the 7 result of the amenability hearing is de novo. State v. Cruz , 2021

- NMSC

- 015, ¶ 31, 8 486 P.3d 1 (alteration, internal quotation marks, and citation omitte d) . Defendant 9 contends that the Court of Appeals ’ ruling is “ inconsistent with [ our holding ] in State 10

v. J ones , 2010

- NMSC

- 012, ¶ 38, 148 N.M. 1, [229 P.3d 474,] .

. . that a juvenile 11 defendant cannot bargain away the amenability determination. ” The State a rgues 12 that Defendant did not specifically reserve the right to appeal the amenability hearing 13 in the plea and disposition agreement, and therefore, the waiver of defenses and right 14
to appeal in the agreement controls. In response, Defendant makes two argum ents. 15 First, Defendant contends that because the amenability determination cannot be 16 waived by the child, “[ i] t only follows that the child retains the right to appeal [ an 17 amenability determination ], as it affects the very authority of the district court to 18 impose an adult sentence.” Second, he argues that the sentence imposed was illegal 195 because there was not clear and convincing evidence to support a finding that he was 1 not amenable to treatment. Becaus e we agree with Defendant’s first argument and 2 because the question of whether Defendant waived his right to appeal the 3 amenability determination was the sole issue granted on certiorari, we address only 4 this point. See Rule 12

- 502(C)(2)(b). 5
{9} We begin by b riefly reviewing the statutorily created right to an amenability 6 determination. See § 32A

- 2

- 20(B), (C). We then discuss our holding in Jones , 2010

- 7 NMSC

- 012, and how an amenability determination cannot be waived by a juvenile. 8 Finally, we review the types o f sentencing claims that may be raised on appeal 9 despite a valid guilty plea and appellate waiver. Concluding that a juvenile’s guilty 10 plea may neither waive the right to an amenability determination nor the right to 11 appeal the outcome of such a determinat ion, we reverse and remand to the Court of 12 Appeals for consideration of the merits of Defendant’s challenges to the amenability 13 determination. 14 A. The Statutory Right to an Amenability Determination 15
{10} Under our Delinquency Act, §§ 32A

- 2

- 1 to

- 33, there are three classes of 16 juvenile offenders: serious youthful offenders, youthful offenders, and delinquent 17 offenders. See § 32A

- 2

- 3(C), (H), and (J). One definition of a “youthful offender” 18 includes a “delinquent child subject to adult or juvenile sanctions” who is fo urteen 196 to eighteen years old at the time of the offense and who is guilty of any of a series 1 of listed offenses, including aggravated burglary. Section 32A -2- 3(J)(1)(k). Because 2 Defendant pleaded guilty to aggravated burglary and was sixteen at the time of the 3 offense, he is a youthful offender. 4
{11} Youthful offenders are not automatically subject to adult sanctions

— certain 5 procedural protections afforded by the Delinquency Act must be met before an adult 6 sentence can be imposed upon a juvenile. Notably, “the court shall make the 7 following findings in order to invoke an adult sentence: (1) the child is not amenable 8 to treatment or rehabilitation as a child in available facilities; and (2) the child is not 9 eligible for commitment to an institution for children w ith developmental disabilities 10 or mental disorders. ” Section 32A -2- 20(B) (emphasis added). In making these 11 findings, the court 12 shall consider the following factors: 13 (1) the seriousness of the alleged offense; 14 (2) whether the alleged offense was committed in an aggressive, 15 violent, premeditated or willful manner; 16 (3) whether a firearm was used to commit the alleged offense; 17 (4) whether the alleged offense was against persons or against 18 property, greater weight being given to offenses against persons, 19 especially if personal injury resulted; 207 (5) the maturity of the child as determined by consideration of the 1 child’s home, environmental situation, social and emotional health, 2 pattern of living, brain development, trauma history and disability; 3 (6) the record and previous history of the child; 4 (7) the prospects for adequate protection of the public and the 5 likelihood of reasonable rehabilitation of the child by the use of 6 procedures, services and facilities currently avai lable; and 7 (8) any other relevant factor, provided that factor is stated on the 8 record. 9 Section 32A

- 2

- 20(C) (emphasis added); see also Rule 10

- 247(F) NMRA. To 10 “consider” a factor, the court must “think about this evidence with a degree of care 11 and caution. ” State v. Doe , 1979

- NMCA

- 122, ¶ 13, 93 N.M. 481, 601 P.2d 451 12 (internal quotation marks and citation omitted)

. Further, the court must make 13 findings as to each factor. State v. Sosa , 1997

- NMSC

- 032, ¶ 8, 123 N.M. 564, 943 14 P.2d 1017 , abrogated on other grounds by State v. Porter , 2020

- NMSC

- 020, ¶¶ 6

- 15 10, 476 P.3d 1201; see also Jones , 2010

- NMSC

- 012, ¶ 41 (explaining that “none of 16 those factors, standing alone, is dispositive”)

. 17
{12} The plain language , “the court shall make the following findings in order to 18 i nvoke an adult sentence,” § 32A

- 2

- 20(B), and the court “shall consider the 19 following factors,” § 32A

- 2

- 20(C), demonstrates “that the Legislature intended the 20 court to make an amenability determination whenever it considers imposing an adult 218 sentence,” and in making that determination, the court must take into account certain 1 criteria. Jones , 2010

- NMSC

- 012, ¶ 24. However, this was not always the case. 2
{13} In 1975, the Legislature “ lowered the threshold for transfer to district court 3 for certain serious offenses

. ” Id. ¶ 30; see 1975 N.M. Laws, ch. 320, § 4(A)(1) . The 4 1975 amendment allowed the “discretionary transfer to criminal court” by the 5 children’s court, which only had to hold a hearing to “consider [] ” the juvenile’s 6 amenability to treatment and find “that there [were] reasonable grounds to believe 7 that the child committed the alleged delinquent act .” 1975 N.M. Laws, ch. 320, § 8 4(A)(1) , (4), (5); see also State v. Doe , 1983

- NMSC

- 105, ¶ 5, 100 N.M. 649, 674 9 P.2d 1109 (holding that this statute only required t he court to consider child’ s 10 amenability , rather than make a specific finding). 11
{14} In 1993, with the passage of the Delinquency Act, the Legislature removed 12 the relaxed requirements to transfer a juvenile proceeding to the district court for an 13 adult trial a nd extended protections of the juvenile system to all juvenile offenders 14 except “serious youthful offenders” charged with first

- degree murder. See 1993 15 N.M. Laws, ch. 77, § 32(H); see also § 32A -2- 3(H). A court can no longer merely 16 “consider” the child’s amenability to treatment. See § 32A -2-20(B)(1). Instead , it 17 has to make the specific finding that “the child is not amenable to treatment or 18 rehabilitation as a child in available facilities,” id. , and that finding must be based 199 on consideration of the Sect ion 32A -2-20(C) factors listed above. Hence, the 1 legislative history demonstrates “an evolving concern that children be treated as 2 children so long as they can benefit from the treatment and rehabilitation provided 3 for in the Delinquency Act.” Jones , 2010

- NMSC

- 012, ¶ 32. 4
{15} In addition to the legislative history, other parts of the Delinquency Act 5 “reflect the Legislature’s intent to insulate delinquent children from the potential ly 6 life

- long consequences under the adult criminal justice system that ma y flow from a 7 bad decision.” Id. ¶ 37. For example, the primary purpose of the Delinquency Act is 8

“ consistent with the protection of the public interest, to remove from children 9 committing delinquent acts the adult consequences of criminal behavior, but to still 10 hold children committing delinquent acts accountable for their actions to the extent 11 of the child’s age, education, mental and physical condition, background and all 12 other relevant factors .” Section 32A -2- 2(A). “ Thus, unlike the adult criminal justi ce 13 system, with its focus on punishment and deterrenc e, the juvenile justice system 14 reflects a policy favoring the rehabilitation and treatment of children.” Jones , 2010

- 15 NMSC

- 012, ¶ 35 (internal quotation marks and citation omitted). Another example 16 is Sec tion 32A -2- 19, which “delimits the court’s authority and discretion to hold a 17 child accountable after being adjudicated delinquent.” Jones , 2010

- NMSC

- 012, ¶ 1810 37; see § 32A -2- 19(B) (limiting the dispositions following a delinquent 1 adjudication)

. 2
{16} Knowing the Legislature tailored the Delinquency Act to promote 3 rehabilitation and treatment of children and that there is a statutorily created right to 4 an amenability determination, we now turn to our holding in Jones , 2010

- NMSC

5 012. 6 B. An Amenability Determination Can not B e Waived 7
{17} In Jones , we held that a “finding of non

- amenability is the trigger for the 8 court’s authority to sentence a youthful offender as an adult,” and that the statutory 9 right to an amenability hearing may not be waived. Id. ¶¶ 38 , 46. Said another way, 10 an amenability determination is a nonwaivable “condition precedent to a court 11 invoking an adult sentence.” Id. ¶ 24. The juvenile defendant in Jones was originally 12 charged with first

- degree murder and classified as a serious youthful offender. Id. ¶ 13 1 . However, the juvenile defendant pleaded guilty to a lesser crime and was then 14 classified as a youthful offender. Id. ¶ ¶ 1, 22. As such, the defendant “was entitled 15 to the full range of protections afforded by the Delinquency Act.” Id. ¶ 22. 16
{18} The plea agreement in Jones included a provision stating, “ T here is no 17 agreement as to sentencing other than that [the juvenile defendant] agrees to be 18 sentenced as an adult.” Id. ¶ 7 (internal quotation marks omitted) . As such, the 1911 district court sentenced the defendant to the maximum adult sentence allowed 1 without making an amenability determination. Id. ¶¶ 1 , 8 . The defendant appealed , 2 arguing that “[a]s a youthful offender , . . . the children’s court lacked the authority 3 to sentence him as an adult without first determining his amenability to treatment or 4 rehabilitation as a juvenile, even if he did not ask for such a hearing and appeared to 5 waive it.” Id. ¶¶ 2 , 9

. We agreed. Id. ¶ 3. Concluding that a finding of nonamenability 6 is “ the necessary leverage to dislodge a youthful offender from the protective 7 dispositional scheme of the Delinquency Act,” we invalidated the defendant’s plea 8 agreement. Id. ¶¶ 3, 38. 9 C. An Am enability Determination Can Be Challenged on Appeal Despite the 10 Entry of a Valid Guilty Plea and Appellate Waiver 11
{19} We now turn to the question of whether a challenge to an amenability 12 determination is a jurisdictional defect that may be raised on appeal, no twithstanding 13 the entry of a valid guilty plea and appellate waiver. Questions of subject matter 14 jurisdiction are also reviewed de novo. State v. Chavarria , 2009

- NMSC

- 020, ¶ 11, 15 146 N.M. 251, 208 P.3d 896. 16
{20} The Delinquency Act is part of the Children’s Code, NMSA 1978, §§ 32A -1- 17 1 to

- 28

- 42 (1993, as amended through 2022). “ Because proceedings under the 18 Children’s Code are special statutory proceedings, ” the right to appeal falls under 19 NMSA 1978, Section 39 -3- 7 ( 1966 ), which provides that any aggrieved party may 2012 appeal “the entry of any final judgment or decision,

. . . or any final order after entry 1 of judgment which affects substantial rights, in any special statutory proceeding in 2 the district court.” State v. Nehemiah G. , 2018

- NMCA

- 034, ¶¶ 14

- 15, 417 P.3d 1175 3 (alteration in original) (brackets, internal quotation marks, and citation omitted) 4 (applying Section 39

- 3

- 7 for the right to appeal an amenability determination); s ee 5 NMSA 1978, § 32A

- 1

- 5 (1993) (establishing the children’s court as a division of the 6 district court). That said, “a voluntary guilty plea ordinarily constitutes a waiver of 7 the defendant’s right to appeal his conviction on other than jurisdictional grounds

. ” 8 Chavarria , 2009

- NMSC

- 020, ¶ 9 (emphasis added) (internal quotation marks and 9 citation omitted) . To put it another way, a plea may waive the right to appeal 10 statutory or constitutional rights, see id. , but it “may not waive the right to challenge 11 on appeal whether a sentence was imposed without jurisdi ction.” State v. Tafoya , 12 2010

- NMSC

- 019, ¶ 6, 148 N.M. 391, 237 P.3d 693; see also State v. Trujillo , 2007

- 13 NMSC

- 017, ¶ 8, 141 N.M. 451, 157 P.3d 16 (“[A] plea of guilty does not waive 14 jurisdictional errors.”); Rule 12

- 321(B)(1) NMRA (providing that jurisdic tional 15 challenges may be raised for the first time on appeal). Accordingly, whether 16 Defendant may raise a challenge to the amenability determination on appeal turns 17 on whether that claim is jurisdictional. See Chavarria , 2009

- NMSC

- 020, ¶¶ 9

- 10. 1813 {21} In Chavarr ia , we addressed the meaning of “jurisdictional” in the context of 1 sentencing. We explained that “[t]he only relevant inquiry in determining whether 2 the court has subject matter jurisdiction is to ask whether the matter before the court 3 falls within the general scope of authority conferred upon such court by the 4 constitution or statute.” Id. ¶ 11 (alteration, internal quotation marks, and citation 5 omitted). A court’s “power to sentence is derived exclusively from statute.” Id. ¶ 12 6 (internal quotation marks and citation omitted). Thus, “a court’s sentencing power 7 properly is considered part of its subject matter jurisdiction.” Tafoya , 2010

- NMSC

8 019, ¶ 7 ; cf. State v. Wyman , 2008

- NMCA

- 113, ¶ 2, 144 N.M. 701, 191 P.3d 559 9 (“ A claim that a sentence is illegal a nd unauthorized by statute is jurisdictional and 10 may be raised for the first time on appeal. ”). Consequently, whether a sentencing 11 court acts within its jurisdiction hinges on whether the defendant’s sentence was 12 authorized by the sentencing statute. See C havarria , 2009

- NMSC

- 020, ¶¶ 11

- 12. 13
{22} Here, the sentencing statute is Section 32A -2- 20, which is titled “Disposition 14 of a youthful offender.” As reflected above, Section 32A -2- 20(B) and (C) mandate s 15 that “ in order to invoke an adult sentence, ” the court must find that “ the child is not 16 amenable to treatment or rehabilitation as a child ” and in making that finding , must 17 consider certain factors . As we said in Jones , “ T he finding of non

- amenability is the 18 trigger for the court’s authority to sentence a youthful offender as an adult.” 2010

- 1914 NMSC

- 012, ¶ 38. See Rule 10 -247(B) (“The court shall not impose adult sanctions 1 without holding an amenability hearing.”). Because of this, we conclude that a 2 challenge to an amenability determination presents a challenge to the jurisdiction of 3 the district court to impose an adult sentence, and it may be raised on appeal 4 notwithstanding the entry of a valid guilty plea and appellate waiver. This conclusion 5 is reinforced by the concern of the Legislature “that children be treated as children 6 so long as they can benefit from the treatment and rehabilitation provided for in the 7 Delinquency Act.” Jones , 2010

- NMSC

- 012, ¶ 32. 8
{23} If we were to conclude that a juvenile defendant waived the right to appeal an 9 amenability determination

— by express waiver or, as in this case, implicitly with a 10 general appellate waiver provision

— we would render the amenability hearing itself, 11 the factors detailed in Section 32A -2- 20(C), and our holding in Jones , pointless. If a 12 juvenile defendant waived the ability to appeal the outcome of an amenability 13 hearing, a hearing we said in Jones could not “ be bargained away,” 2010

- NMSC

14 012, ¶ 46, a court could simply “consider” the child’s amenability, ignoring the 15 factors of Section 32A -2- 20(C), and find that the child is not amenable to treatment 16 or rehabilitation as a juvenile. This would reduce the amenability hearing to nothing 17 more than window dressing and effectively reinstate the 1975 “discretionary transfer 1815 to criminal court.” See 1975 N.M. Laws, ch. 320, § 4(A) . Given the interests at stake, 1 we do not condone such an outcome. 2
{24} “We are hard

- pressed to conceive of a decision that cuts closer t o the core of 3 society’s interest than an election to give up on one of its children.” Jones , 2010

- 4 NMSC

- 012, ¶ 46. We will not declare an amenability determination

— a 5 determination that implicates the interests of the child, the child’s family, and society 6

a s a whole

— nothing more than an empty shell along the path to imposing an adult 7 sentence upon a juvenile. Because Defendant could not waive the ability to appeal 8 the outcome of his amenability hearing, we reverse the Court of Appeals. 9 III. CONCLUSION 10
{25} We conclude that a juvenile’s guilty plea may neither waive the right to an 11 amenability determination, i d. , nor can it waive the right to appeal the outcome of 12 an amenability determination. Without a finding of nonamenability, the court lacks 13 the authority to sentenc e a juvenile defendant as an adult. See id. ¶ 38

. As such, a 14 challenge to an amenability determination presents a jurisdictional argument that 15 may be raised on appeal notwithstanding the entry of a valid guilty plea and appellate 16 waiver. Cf. Tafoya , 2010

- N MSC

- 019, ¶¶ 6

- 8 (stating that the defendant’s plea 17 agreement did not waive the right to appeal a claim that the district court erroneously 18 applied the Earned Meritorious Deductions Act in fashioning his sentence); Trujillo , 1916 2007

- NMSC

- 017, ¶¶ 7

- 9 (treating as a jurisdictional matter the issue of whether the 1 trial court could enhance the defendant’s sentence as a habitual offender). 2
{26} “Because we see no justification for applying today’s rule retroactively, we 3 hold that the rule applies only to this and all other cases in which a verdict has not 4 been reached and those cases on direct review in which the issue was raised and 5 preserved below.” Jones , 2010

- NMSC

- 012, ¶ 49 (internal quotation marks and 6 citation omitted). Accordingly, we reverse and remand to the Court of Appeals to 7 consider the merits of Defendant’s challenges to the amenability determination. 8
{27} IT IS SO ORDERED. 9 10 MICHAEL E. VIGIL, Justice 11 WE CONCUR: 12
13 C. S HANNON BACON , Ch ief Justice 14
15 DAVID K. THOMSON , Justice 16
17 BRIANA H. ZAMORA , Justice 18
19 T . GLEN N ELLINGTON , Ju dge 20 Sitting by designation 21