OPINION
{1} Defendant Charles Vigil appeals from the district court’s review of his on-record appeal from metropolitan court. On appeal to this Court, Defendant challenges the admission of an officer’s testimony referencing a police report as violating the rules of evidence and his right to confrontation. This Court became aware of deficiencies with Defendant’s notice of appeal when the matter came before the Court for calendaring. The Court ordered the parties to brief the issue of whether the conclusive presumption of ineffective assistance of counsel established in State v. Duran,
BACKGROUND
{2} D efendant was convicted of driving while intoxicated (DWI), first offense, and speeding, following a bench trial in metropolitan court. At trial, Albuquerque Police Department Officer Kelly Enyart testified that she investigated and arrested Defendant for DWI. Officer Enyart, however, could not recall portions of Defendant’s performance of the field sobriety tests that she administered during her DWI investigation. Over Defendant’s objection, the metropolitan court judge allowed Officer Enyart to read from her police report what she had recorded concerning those portions of the field sobriety tests she could not recall. Officer Enyart’s report itself was not admitted into evidence. The metropolitan court judge found Defendant guilty, based in part on Officer Enyart’s testimony regarding Defendant’s performance of the field sobriety tests, including what Officer Enyart had read from her police report.
{3} Defendant appealed the metropolitan court’s decision by filing a timely notice of appeal in district court pursuant to Rule 7-703(A) NMRA. The district court conducted an on-record review of Defendant’s appeal. On April 19, 2012, the district court issued a memorandum opinion affirming Defendant’s conviction. Pursuant to NMS A 1978, Section 39-3-3(A)(1) (1972), and Rule 12-201(A)(2) NMRA, a criminal defendant must file his notice of appeal from the final judgment of a district court within thirty days of the entry of that judgment. Defendant’s notice of appeal was therefore due on or before Monday, May 21, 2012. Defendant filed an untimely notice of appeal with the district court on Friday, May 25, 2012.
DISCUSSION
I. Defendant’s Untimely Appeal
{4} Defendant asks this Court to apply a conclusive presumption of ineffective assistance of counsel and address the merits of his appeal. In response, the State challenges this Court’s jurisdiction to entertain Defendant’s appeal, regardless of its timeliness, and opposes extending a conclusive presumption of ineffective assistance of counsel to untimely appeals from the district court’s on-record review of a metropolitan court decision. As an initial matter, we note that the State’s jurisdictional argument was made prior to this Court’s issuing its opinion in State v. Carroll, 20__-NMCA-__,__P.3d_(No. 32, 909, Oct. 21, 2013). In Carroll, we held that NMSA 1978, Section 34-5-8(A)(3) (1983) vests this Court with jurisdiction to review the on-record appellate decisions of the district court in criminal cases. Id. ¶ 5 (“[Tjhis Court has been vested with jurisdiction over appeals in all criminal actions with the limited exception of those where a sentence of death or life imprisonment is imposed. Had the Legislature intended to limit our jurisdiction to preclude review of the on-record appellate decisions of the district court, we assume it would have explicitly done so.”). Given our recent decision in Carroll, we conclude that the State’s challenge to this Court’s jirrisdiction is unavailing.
{5} Returning to the State’s contention that a conclusive presumption of ineffective assistance of counsel should not apply in this case, the State advances multiple arguments against extending the Duran presumption. The State contends that the Duran presumption should only apply where a criminal defendant has both an appeal as of right and a right to counsel, which the State argues do not exist in appeals such as this. The State further contends that applying a conclusive presumption of ineffective assistance of counsel to an untimely appeal to this Court from the district court’s on-record review of a metropolitan court decision would be an inappropriate extension of Duran.
{6} Before addressing the State’s arguments, we observe that Defendant has not responded in any detail to those arguments. Despite the absence of developed arguments by the defense, we have undertaken our own analysis of the issue, given its quasi-jurisdictional nature. See State v. McNeece,
A.The Duran Presumption
{7} The timely filing of a notice of appeal is a mandatory precondition to this Court’s exercise of jurisdiction. See Trujillo v. Serrano,
{8} In Duran, this Court established a conclusive presumption of ineffective assistance of counsel when a notice of appeal from a criminal conviction obtained in district court is untimely filed.
B. Duran and the Right to Appeal
{9} The State contends that the Duran presumption should not apply because there is no appeal as of right to this Court from a district court’s on-record review of a metropolitan court decision. The State contends that it is implicit from prior cases applying Duran that a conclusive presumption of ineffective assistance of counsel requires that the defendant possess an appeal as of right. This Court recently addressed this issue in Carroll. In Carroll, we held that Section 39-3-3(A)(l) provides criminal defendants with the right to appeal a district court’s on-record review of a metropolitan court decision. Carroll, 20__-NMCA-___, ¶¶ 7-9 (“[W]e conclude that Section 39-3-3(A)(l) is intended to include a defendant’s right to appeal a district court’s review of an on-record metropolitan court decision.”). Thus, to the extent the State contends that cases applying the Duran presumption have required there be an appeal as of right for the presumption to apply, we rely on our holding in Carroll. Consequently, the State’s argument that Duran should not apply because Defendant does not possess an appeal as of right is unavailing.
C. Duran and the Right to Counsel
{10} The State also argues that a conclusive presumption of ineffective assistance of counsel cannot lie where a right to counsel does not exist. The State contends that, because Duran relied oil federal due process rights in creating the conclusive presumption of ineffective assistance of counsel, any extension of Duran is limited to “the boundaries of that right... so clearly defined by United States Supreme Court precedent.” According to the State, federal law provides that a defendant only has a right to the effective assistance of counsel in his or her “first appeal as of right.” See Evitts,
{11} This Court has recognized that both the Federal Constitution and Article II, Section 14 of the New Mexico Constitution provide a right to the assistance of counsel both at trial and on appeal. See State v. Lewis,
{12} The Legislature has defined the parameters of the right to counsel in New Mexico with respect to indigent defendants via the Indigent Defense Act, NMS A 1978,§§31-16-1 to -10 (1968, as amended through 1973), and the Public Defender Act, NMS A 1978, §§ 31-15-1 to -12 (1973, as amended through 2013). See State v. Brown,
{13} Neither the Indigent Defense Act nor the Public Defender Act appears to limit the right to counsel to a first appeal; instead, they require counsel to be provided in “any appeal.” See § 31-16-3(B)(2); § 31-15-10(C). Further, where a right to counsel has been guaranteed, that right includes a guarantee that counsel be effective. See In re Termination of Parental Rights of James W.H.,
D. Extending Duran
{14} The State urges that extending the Duran presumption where the merits of the appeal have already been reviewed by the district court is contrary to the spirit and the letter of Duran. Duran, according to the State, was premised on the requirements of Rule 5-702 NMRA, the interest of finality, and the conservation of judicial resources — interests which the State claims are not furthered by extending the Duran presumption to the untimely filing of a notice of appeal following a district court’s on-record review of a metropolitan court decision.
{15} In Duran, we relied on the rules of criminal procedure to reason that, because in an appeal from a criminal conviction counsel must “timely file either a notice of appeal or an affidavit of waiver of appeal},]” Duran,
{16} The State also argues that Duran “was concerned with the inevitable need to reach the merits of a defendant’s claim of error” and “weighed any countervailing burdens as ‘insignificant’ compared to a defendant’s right to review [on] the merits.” The State contends that, because the merits in these cases have already been considered by a reviewing court, the countervailing interests of finality and conservation of judicial resources discussed in Duran outweigh Defendant’s interest in our considering the merits of his appeal. While we acknowledge that a defendant appealing the district court’s on-record review of a metropolitan court decision has already received the benefit of the district
court’s appellate review, review by this Court is still a matter of right. See Carroll, 20_-NMCA-_, ¶ 9. And, as discussed above, a defendant appealing the district court’s on-record review of a metropolitan court decision is entitled to effective assistance of counsel when pursuing that right. Consequently, in the event of an untimely notice of appeal, a defendant would still have the right to raise a claim of ineffective assistance of counsel on direct appeal or pursuant to habeas corpus. See State v. Roybal,
II. Defendant’s Challenge to the Admission of Information Contained in the Police Report
A. Challenge on Confrontation Grounds was Abandoned
{17} On appeal to this Court, Defendant contends that the metropolitan court erred in admitting Officer Enyart’s testimony about the contents of a police report at Defendant’s trial. Defendant asserts that admission of the contents of the police report violated both his right to confrontation and our rules governing the admission of evidence. In its answer brief, the State asserts that, while Defendant objected to the admission of the police report’s contents under both the rules of evidence and the confrontation clause before the metropolitan court, Defendant abandoned any objection to the evidence on confrontation grounds at the district court level.
{18} In response to the State’s argument, Defendant asserts that the confrontation issue was preserved in the metropolitan court. Yet, even if Defendant raised and preserved the confrontation argument in the metropolitan court, Defendant abandoned it as an appellate issue in his appeal to the district court. See State v. Gutierrez,
B. Challenge to Admission of Police Report on Evidentiary Grounds
{19} Defendant contends that the metropolitan court erred in permitting parts of the police report to be read into the record as a recorded recollection pursuant to Rule 11 - 803(5) NMRA (formerly Rule 11-803(E) NMRA (1976) (amended 2012)) and that the district court erred in affirming the metropolitan court’s ruling. Defendant does not dispute that Officer Enyart’s testimony provided sufficient foundation to allow Officer Enyart to read from her report, pursuant to Rule 11-803(5), what she recorded but could not recall about Defendant’s performance on the field sobriety tests. Rather, Defendant contends that the exclusion of police reports under the public record exception of the hearsay rules, see Rule 11 - 803(8)(a)(ii) (formerly Rule 11-803(H)(2) NMRA (1976) (amended 2012)), extends so far as to preclude portions of a police report from being read into the record as a recorded recollection under Rule 11-803(5).
{20} Generally, “[w]e review the admission of evidence under an abuse of discretion standard and will not reverse in the absence of a clear abuse.” See State v. Sarracino,
{21} Defendant relies heavily on United States v. Oates,
{22} Defendant asks this Court to apply the reasoning of Oates and hold that the bar against police reports being admitted under the public records exception should extend to preclude a police report from being read into the record as a recorded recollection. Defendant does not direct this Court to a single authority applying Oates as Defendant advocates. See In re Adoption of Doe,
{23} In Sawyer, the Seventh Circuit Court of Appeals declined to extend the reasoning of Oates to disqualify “the recorded recollections of a testifying law enforcement officer, when such recollections would otherwise be admissible under Rule 803(5).” Sawyer,
We are not persuaded . . . that the restrictions of Rule 803(8) were intended to apply to recorded recollections of a [testifying law enforcement officer that would otherwise be admissible under Rule 803(5). In our view, the legislative history of Rules 803(8)(B) and (C) indicates that Congress intended to bar the use of law enforcement reports as a substitute for the testimony of the officer.
Sawyer,
{24} State courts have also relied on this reasoning to allow law enforcement officers to “read their reports into the record when they lack a sufficient present recollection to testify from'memory.” Scally,
CONCLUSION
{25} We hold that a criminal defendant, whose counsel files an untimely notice of appeal when appealing to this Court from the district court’s on-record review of a metropolitan court decision, is entitled to a conclusive presumption of ineffective assistance of counsel. Having applied the conclusive presumption to the untimely filing in this case, and having considered the merits of Defendant’s claim that the metropolitan court improperly allowed portions of the police report to be read into the record pursuant to Rule 11-803(5), we affirm.
{26} IT IS SO ORDERED.
Notes
The parties were directed to brief the applicability o i Duran to an untimely notice of appeal at both levels of appellate review — i.e., an appeal from metropolitan court to district court and an appeal from district court to this Court. Briefing disclosed that the district court applied the Duran presumption to an untimely statement of issues and not to an untimely appeal; thus, this opinion addresses only whether the Duran presumption applies to an untimely notice of appeal following the district court’s on-record review of the metropolitan court’s decision.
The Indigent Defense Act limits the right to representation to persons being held to answer for a “serious crime.” Section 31-16-3(A) (“A needy person who is being detained by a law enforcement officer, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled to be represented by an attorney to the same extent as a person having his own counself.]”). A “serious crime” is defined as including “a felony and any misdemeanor or offense which carries a possible penalty of confinement for more than six months.” Section 31-16-2(D). Thus, the Indigent Defense Act would not appear to extend to a first offense DWI with a maximum sentence of ninety days, as charged here. See NMSA 1978, Section 66-8-102(E) (2005, as amended through 2010). The Public Defender Act, however, requires representation to be provided to any person facing possible imprisonment, regardless of the duration. Section 31-15-10(C). We read these statutes in pari materia and conclude that the Legislature’s subsequent enactment of the Public Defender Act was intended to broaden the right to counsel provided in the Indigent Defense Act to include a right to counsel for indigent defendants facing less than six months’ imprisonment. See State ex rel. Quintana,