STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN SEGURA, Defendant-Appellant.
Docket No. 31,904
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Filing Date: January 21, 2014
Opinion Number: _________
GARCIA, Judge.
Kenneth H. Martinez, District Judge
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
GARCIA, Judge.
{1} This case raises the question of whether a defendant who has allegedly violated the conditions of his pretrial release pending trial has a due process right to confront the State‘s evidence before the district court may revoke bail and remand the defendant back into custody. Defendant in this case was not provided an opportunity to be heard before his bail was revoked and remanded back into custody. We conclude that a proper evidentiary hearing was required to protect Defendant‘s procedural due process rights. We reverse the judgment of the district court.
{2} Defendant was charged with one count of aggravated battery against a household member and one count of criminal damage to property. Following his arrest on the charges, Defendant was released on a $15,000 bond. The district court filed the order setting the conditions of Defendant‘s release pending trial. In pertinent part, the order required Defendant to refrain from the possession and consumption of illegal drugs and alcohol, and from contact with the alleged victim or witnesses in his case. The consequences for violating the conditions of Defendant‘s pretrial release included the revocation of Defendant‘s bond and release from custody.
{3} Seventeen months later, Defendant appeared at a scheduled plea hearing but decided to reject the State‘s plea offer. Following this rejection, the State orally alleged that Defendant had violated the conditions of his pretrial release by harassing the alleged victim. Additionally, the alleged victim had purportedly told a victim‘s advocate that she believed Defendant was using drugs. The State asked the district court to remand Defendant into custody for these alleged violations. Defense counsel responded by raising his due process concerns. “I would ask that if the prosecution believes [Defendant] has violated the conditions of [his pretrial] release, that they request a hearing, and we would request a full evidentiary hearing. This is a scheduling conference.”
{4} The district court denied defense counsel‘s request for “a [full evidentiary] hearing and notice and the ability to properly argue” the alleged violations of Defendant‘s pretrial release conditions. The court ordered Defendant to submit to an immediate urinalysis test through the pretrial services department. Following Defendant‘s urinalysis test, the pretrial services employee who tested Defendant threw the test strip in a bathroom trash can. The same employee then informed the court that Defendant had tested positive for opiates. As a result, the State requested Defendant‘s “remand in violation of his conditions of [pretrial] release.” Defense counsel again responded with a request for “a full evidentiary hearing pertaining to the allegations that [Defendant] violated his [pretrial release] conditions” and for an opportunity to “put the testing officer under oath and conduct an evidentiary hearing regarding the reliability of the testing[.]”
{5} Following defense counsel‘s renewed due process objection, the district court asked the pretrial services employee to retrieve Defendant‘s urinalysis test strip from the trash can. The district judge then personally examined the test strip, stating that the results were “pretty much across the border.” The pretrial services employee agreed: “It‘s pretty clear it is a positive drug test. There‘s no line whatsoever on the opiates. That indicates recent use.” Based on this evidence, the district court found Defendant had violated his conditions of pretrial release. The court did not permit Defendant to cross-examine the pretrial services employee regarding the foundation, sufficiency, or accuracy of the test.
{6} Defendant was remanded into the custody of the Metropolitan Detention Center and detained on a no-bond hold. The district court ordered Defendant to participate in the
DISCUSSION
{7} Under
{8} The right to bail is not absolute. Tijerina v. Baker, 1968-NMSC-009, ¶ 9, 78 N.M. 770, 438 P.2d 514. The district court has the discretion to revoke bail when necessary “to prevent interference with . . . the proper administration of justice.” Id. ¶ 10. A court can similarly order re-arrest and confinement for violation of a condition of pretrial release. See State v. Rivera, 2003-NMCA-059, ¶ 20, 133 N.M. 571, 66 P.3d 344 (“Conditions of release are separate, coercive powers of a court, apart from the bond itself. They are enforceable by immediate arrest, revocation, or modification if violated. Such conditions of release are intended to protect the public and keep the defendant in line.“), rev‘d on other grounds, 2004-NMSC-001, 134 N.M. 768, 82 P.3d 939. Despite this recognized power to revoke bail if a defendant violates his conditions of release,
{9} Defendant argues that the district court violated his right to procedural due process by remanding him into custody without notice or an opportunity to be heard at an evidentiary hearing on the allegations. The State responds that the imposition of ATP—notwithstanding Defendant‘s placement in the Metropolitan Detention Center—did not revoke Defendant‘s bail and instead simply imposed a modification of the conditions of Defendant‘s pretrial release. The State also asserts that this Court should not reach the merits of this appeal because Defendant has subsequently been released from state custody.
{10} As a preliminary matter, we address the nature of the district court‘s orders. Second,
I. Right to Appeal
{11} We first address the nature of the district court‘s orders and whether Defendant has a right to appeal. At issue is whether the district court order constitutes a bail bond revocation or a simple amendment to Defendant‘s conditions of pretrial release. If the district court only amended Defendant‘s conditions of pretrial release but did not revoke his release from custody and entitlement to bail, then Defendant would not have a right to appeal or appellate review. See generally
{12} The State argues that the district court amended Defendant‘s conditions of pretrial release by imposing an additional requirement that he attend treatment for drug dependency. To support this argument, the State asserts that the rules permit a court to confine a defendant in a facility to treat a dependency on drugs or alcohol as a condition of pretrial release. See
{13} Defendant‘s confinement in the detention center included ATP, but the drug rehabilitation component of his incarceration does not distinguish Defendant‘s remand into custody from a standard form of pretrial detention in a jail. See State v. Flores, 1982-NMSC-132, ¶ 8, 99 N.M. 44, 653 P.2d 875 (“The whole purpose for ‘conditions of release’ is to place limitations on a person not in custody.“); State v. La Badie, 1975-NMCA-032, ¶¶ 4-7, 87 N.M. 391, 534 P.2d 483 (finding official confinement where the defendant was committed to a locked facility from which he could not voluntarily leave, even though he was not subject to control by police or correctional officers). Like any other detained prisoner, Defendant had no freedom of movement or control over his place of custody. See State v. Clah, 1997-NMCA-091, ¶ 14, 124 N.M. 6, 946 P.2d 210 (refusing to recognize inpatient alcohol treatment as official confinement equivalent to custody in jail where there were no limitations on the defendant‘s ability to leave the facility). As a result, court ordered ATP in jail is not an equivalent to other inpatient treatment and rehabilitation programs operating in the public community and accepting individuals released from custody as contemplated by
{14} The fact that ATP is only provided to detainees while incarcerated in a jail means that it cannot also be considered the equivalent of a release from custody and a condition of said release. See Clah, 1997-NMCA-091, ¶ 12 (concluding that “[t]ime spent actually incarcerated in a municipal or county jail and time spent in a state correctional facility obviously qualify” as official confinement). Although the district court apparently imposed drug treatment as a condition of incarceration upon Defendant, it is undisputed that his bail bond was revoked and Defendant was remanded into the custody of the local jail on a “no bond hold.” See Flores, 1982-NMSC-132, ¶ 7 (stating that there were no conditions of release when a defendant is remanded into custody without bail and it was not intended that he be released).
{15} The confusion regarding the district court‘s order most likely arose from its statement that it would review the conditions of pretrial release following Defendant‘s successful completion of ATP. This statement might have given the State the impression that Defendant‘s remand into custody was only a temporary suspension of his pretrial release. However, nothing in the district court‘s remand language indicated any intention or order to release Defendant from custody upon his completion of ATP. The district court did not identify any mandatory reinstatement of Defendant‘s liberty interest after ATP, but instead simply stated that it would “see how things go at that time.” See State v. Hicks, 2002-NMCA-038, ¶ 14, 132 N.M. 68, 43 P.3d 1078 (“If the magistrate judge wanted to regard this situation as a limited release of [the d]efendant on his own recognizance, it was incumbent on the judge to say so in clear, cogent language.“). The district court‘s ruling only provided a potential opportunity to revisit revocation of bail and the incarceration of Defendant if he completed ATP.
{16} This case is properly viewed as an appeal of the district court‘s order revoking Defendant‘s conditions of pretrial release and bail. See State v. Romero, 1984-NMCA-087, ¶ 18, 101 N.M. 661, 687 P.2d 96 (“Inasmuch as [the] defendant was in custody at all pertinent times, the conditions of release are not applicable.“). We thus reject the State‘s argument that Defendant is not entitled to appeal. See State v. David, 1984-NMCA-119, ¶¶ 5-7, 102 N.M. 138, 692 P.2d 524 (permitting an appeal from an order revoking bail despite the fact that the order was not within the terms of the rule now codified at
II. Mootness
{17} We next address the State‘s request to dismiss this appeal as moot because Defendant was released from Metropolitan Detention Center custody on April 19, 2012. See State v. Sergio B., 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764 (“As a general rule, appellate
{18} “An appeal is moot when no actual controversy exists, and an appellate ruling will not grant the appellant any actual relief.” Id. Even if moot, Defendant contends that this Court should still address the merits of this appeal because the case is capable of repetition yet, if we do not hear it, it may evade review. See Gunaji v. Macias, 2001-NMSC-028, ¶ 10, 130 N.M. 734, 31 P.3d 1008 (addressing claims of unfair election procedures after the winning candidate‘s term of office had expired because the issues were capable of repetition but would evade review). We agree.
{19} The question of whether due process requires that the defendant at a bail revocation hearing be allowed to cross-examine witnesses at an evidentiary hearing is an issue of statewide significance because bail is regularly imposed in a very large number of cases throughout the state.
{20} The issue of whether a defendant has a due process right to confront the State‘s evidence and witnesses against him before the district court revokes bail and remands the defendant back into custody is functionally justiciable, legally significant, and is capable of repetition yet evading review. Accordingly, we agree to address the issue on its merits and deny the State‘s assertion of mootness.
III. Due Process
{21} Defendant contends that the district court erred in revoking his bond and release from custody without adequate procedural due process protections guaranteed by the
{22} At issue in this appeal is the technical process required to satisfy procedural due process before a district court may revoke bail and remand a pretrial defendant into custody. New Mexico case law is clear that a due process hearing is ultimately required before a pretrial releasee‘s liberty can be terminated. David, 1984-NMCA-119, ¶ 23 (requiring the district court to provide an accused with the due process requirements of notice and an opportunity to be heard with right of counsel before revoking bail). The Committee Commentary to
{23} The State argues that Defendant was entitled to only a limited due process right because a revocation of pretrial release is similar in nature to a revocation of probation or parole. Id. ¶ 10 (“Because loss of probation is loss of only conditional liberty, the full panoply of rights due a defendant in a criminal trial do not apply [during a hearing to revoke probation.]” (alterations, internal quotation marks, and citation omitted)). We agree to the extent that all three proceedings involve the revocation of a significant form of a defendant‘s liberty. See id. (“Revocation of probation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special probation restrictions.” (alteration, internal quotation marks, and citation omitted)). But a person on pretrial release has a greater liberty interest than a probationer or a parolee because he has not yet been convicted and the presumption of innocence is still attached. Tijerina, 1968-NMSC-009, ¶ 9 (“Generally, provisions with regard to admitting to bail in criminal cases are based upon the idea that a person accused of crime shall be admitted to bail until adjudged guilty by the court of last resort to him.“). We conclude that the burden of establishing facts necessary to support a revocation of bail rests upon the State, with a right to contest the evidence introduced. See Guthrie, 2011-NMSC-014, ¶ 11 (establishing a minimum due process standard to exist in the context of a probation revocation hearing that includes an informal hearing where “[t]he parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions [of probation], or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation” (internal quotation marks and citation omitted)).
{24} We recognize that a full evidentiary hearing is not required in every case that involves a conditional liberty interest. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.“);
CONCLUSION
{25} Defendant was denied his procedural due process right to an adequate hearing prior to a pretrial revocation of his bail and remand into the custody of the local jail. Although only a conditional liberty interest was at stake, Defendant was entitled to examine the witnesses and evidence presented by the State as well as an opportunity to present his own evidence at the pretrial bail revocation hearing. The order of the district court revoking Defendant‘s bail and remanding him into the custody of the detention center is hereby reversed. As Defendant has already been released from custody, no further proceedings in the district court are required at this time.
{26} IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. MONICA ZAMORA, Judge