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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2021-NMCA-013
Filing Date: January 7, 2021
No. A-1-CA-39004
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ALEJANDRO M.,
Child-Appellant.
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Jeffrey A. Shannon, District Judge
Certiorari Denied, March 8, 2021, No. S-1-SC-38654. Released for Publication May 11,
2021.
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Liane E. Kerr
Albuquerque, NM
for Appellant
OPINION
B. ZAMORA, Judge.
{1} In this interlocutory appeal, Alejandro M. (Child) contends that the district court
erred in denying his emergency motion to quash or dismiss the State’s notice of intent
to seek adult sanctions against him. The district court denied the motion, finding that the
COVID-19 pandemic constituted an “exceptional circumstance” under Rule 10-213(D)
NMRA, justifying an extension of the time limit for determining probable cause at a
preliminary hearing. We affirm.
BACKGROUND
{2} The State charged Child with shooting at or from a motor vehicle, contrary to
NMSA 1978, Section 30-3-8(B) (1993); aggravated battery with a deadly weapon,
contrary to NMSA 1978, Section 30-3-5 (A), (C) (1969); and two counts of tampering
with evidence, contrary to NMSA 1978, Section 30-22-5(A) (2003). On March 26, 2020,
the State filed a notice of intent to seek adjudication of Child as a youthful offender and
to invoke an adult sentence and a preliminary hearing was set for April 6, 2020. Child
was permitted to appear by remote means in accordance with social-distancing best
practices to avoid spreading the COVID-19 virus. Due to technical difficulties, Child
appeared by phone rather than by video during the preliminary hearing, and because
Child was not visible, the prosecution’s witness was unable to identify him. There is no
indication that Child ever notified the State or the district court that he would be unable
to appear by video. Defense counsel raised identification as a contested issue for the
first time during the preliminary hearing. In response, the district court continued the
hearing and required Child to appear in person at the next hearing to provide the State
with an opportunity to identify Child. The State requested a one-week continuance, but
defense counsel asked for a two-week continuance. Accommodating Child’s request,
the court scheduled the hearing for April 28, 2020, thirty-three days after the State filed
its notice of intent to proceed against Child as a youthful offender.
{3} One day prior to the April 28, 2020 hearing, Child filed an emergency motion to
quash or dismiss the State’s notice of intent to seek adult sanctions because a probable
cause determination had not been made within thirty days after the State filed the
notice. On April 28, 2020, the district court denied Child’s motion. The district court
found that the COVID-19 pandemic constituted an exceptional circumstance justifying
extending the time limit under Rule 10-213(D). Child was identified during the hearing
that day, and the district court found that probable cause existed. The district court then
granted Child’s motion to certify the denial of Child’s motion to quash to this Court as an
interlocutory appeal.
DISCUSSION
{4} Resolution of this appeal turns upon whether the COVID-19 pandemic
constitutes an “exceptional circumstance[]” under Rule 10-213(D), such that the district
court was justified in extending the deadline for making a probable cause determination
under Rule 10-213. 1 Child argues that the district court erred in denying Child’s motion
to quash because the COVID-19 pandemic was not an “exceptional circumstance”
justifying extension of time under Rule 10-213(D), and further argues that the state had
an affirmative obligation to request a hearing within the thirty-day timeline. We disagree.
{5} We review a district court’s interpretation of rules of procedure de novo. State v.
Stephen F., 2006-NMSC-030, ¶ 7,
140 N.M. 24,
139 P.3d 184 (applying de novo review
to interpretation of children’s court rules). However, we review a district court’s decision
to deny or grant a continuance or extension under an abuse of discretion standard. See
1Child does not contend that the requirement that a probable cause determination be made within ten
days was violated, see Rule 10-213(B)(1), but instead argues only that the district court erred in
extending the thirty-day timeline under Rule 10-213(B)(2).
State v. Anthony L.,
2019-NMCA-003, ¶¶ 7-8, 16,
433 P.3d 347 (holding that the district
court did not abuse its discretion in granting an extension to commence a child’s
adjudication under the Children’s Code); see also Vigil v. Fogerson,
2006-NMCA-010, ¶
56,
138 N.M. 822,
126 P.3d 1186 (noting that we consider relief for exceptional
circumstances to be an equitable remedy, which we review for an abuse of discretion).
An abuse of discretion occurs when the ruling is “clearly untenable or not justified by
reason.” State v. Candelaria,
2008-NMCA-120, ¶ 12,
144 N.M. 797,
192 P.3d 792
(internal quotation marks and citation omitted). We review the evidence in the light most
favorable to the district court’s decision.
Id.
{6} Rule 10-213(B) provides:
B. Probable cause determination
(1) Timing. Unless the child waives the right to a probable cause
determination, such a determination shall be made within ten (10) days
from the last to occur of the following:
(a) the filing of a notice of intent to seek adult sanctions; or
(b) the filing of a peremptory election to excuse a judge
under Rule 10-162 NMRA.
(2) Extensions of time. The children’s court, for good cause
shown, may extend the time for a probable cause determination, provided
that such time shall not be extended to more than thirty (30) days from the
last to occur of Subparagraph (B)(1)(a) or (b) under this rule.
Rule 10-213(D) provides, “Absent a showing of exceptional circumstances, a failure to
comply with the time limits set forth in this rule shall require proceeding under these
rules as they apply to delinquent children and shall preclude imposing adult sanctions
against the child.”
{7} No New Mexico court has interpreted the meaning of “exceptional
circumstances” under Rule 10-213(D). The State agrees with Child’s definition of
“exceptional circumstances” taken from Black’s Law Dictionary, which defines the
phrase as “conditions which are out of the ordinary course of events; unusual or
extraordinary.” Exceptional Circumstance, Black’s Law Dictionary 560 (6th ed. 1990).
While we are not bound by parties’ stipulations or concessions, we view such
stipulations with favor. See Tucson Elec. Power Co. v. Tax’n & Revenue Dep’t, 2020-
NMCA-011, ¶ 10, 456 P.3d 1085. Our own review indicates that New Mexico courts
have defined “exceptional circumstances” in other contexts as those circumstances
“beyond the control of the parties or court[,]” Duran v. Eichwald,
2009-NMSC-030, ¶¶ 7-
8,
146 N.M. 341,
210 P.3d 238, and as “conditions that are unusual or extraordinary,
such as death or illness of the judge, prosecutor, or defense attorney immediately
preceding the commencement of trial; or other circumstances that ordinary experience
or prudence would not foresee, anticipate, or provide for[.]” State v. Rangel-Vasquez,
No. A-1-CA-35695, mem. op. ¶ 13 (N.M. Ct. App. Aug. 1, 2018) (non-precedential)
(quoting Rule 7-506 NMRA comm. cmt.); accord Trujillo v. Serrano,
1994-NMSC-024, ¶
19,
117 N.M. 273,
871 P.2d 369 (holding that “[o]nly the most unusual circumstances
beyond the control of the parties—such as error on the part of the court—will warrant
overlooking procedural defects”). We hold that “exceptional circumstances” for purposes
of Rule 10-213(D) are those circumstances out of the ordinary course of events, that
ordinary experience or prudence would not foresee, anticipate, or provide for, that are
beyond the control of the parties and the court.
{8} We now turn to the facts relied on by the district court to determine whether the
district court’s decision to extend the deadline under Rule 10-213(B) was an abuse of its
discretion. We conclude that it was not. COVID-19 is a rapidly evolving public health
crisis of an extraordinary magnitude. See United States v. Stephens, 447 F. Supp. 3d
63, 65 (S.D.N.Y. 2020) (“[T]he unprecedented and extraordinarily dangerous nature of
the COVID-19 pandemic has become apparent.”). The pandemic was recognized as a
public health emergency in New Mexico on March 11, 2020, when an executive order
was issued declaring a public health emergency due to the spread of COVID-19. See
State of N.M., Executive Order 2020-004 (March 11, 2020), available at
https://link.cloudtransitserver.com/u/b9813d5f/vBZdVsCt6xGOtHA58Y9C_g?u=https%3
A%2F%2Fwww.governor.state.nm.us%2Fwp-content%2Fuploads%2F2020%2F03%2FExecutive-Order-2020-004.pdf (last visited
Dec.16 2020). Six days later, on March 17, 2020, our Supreme Court issued Order No.
20-8500-002 suspending “all criminal jury trials arising under the Rules of Criminal
Procedure for the District, Metropolitan, and Magistrate Courts that have not yet
commenced[.]” See Supreme Court Order No. 20-8500-002 (March 17, 2020) at 3,
available at
https://link.cloudtransitserver.com/u/7e68d05d/FFpdVsCt6xGOtHA58Y9C_g?u=https%3
A%2F%2Fwww.nmcourts.gov%2Fwp-content%2Fuploads%2F2020%2F12%2FOrderNo_-20-8500-002-Precautionary-Measures-for-NM-Court-Operations-During-COVID-
19-Public-Health-Emergency-3-17-20-1.pdf (last visited Dec. 18, 2020). On April 6,
2020, the day of the preliminary hearing, the March 11, 2020 executive order was
extended proclaiming a “public health emergency[.]” See State of N.M., Executive Order
2020-022 (April 6, 2020), available at
https://link.cloudtransitserver.com/u/7427ef0a/8opdVsCt6xGOtHA58Y9C_g?u=https%3
A%2F%2Fwww.governor.state.nm.us%2Fwp-content%2Fuploads%2F2020%2F04%2FEO_2020_022.pdf (last visited Dec. 18, 2020).
Finally, four days after the first preliminary hearing that was continued, the Supreme
Court issued Order No. 20-8500-012, outlining procedures to be utilized when issues
regarding identification of a defendant arise. See Supreme Court Order No. 20-8500-
012 (April 10, 2020) at 2, available at
https://link.cloudtransitserver.com/u/d90eaf24/YMJdVsCt6xGOtHA58Y9C_g?u=https%3
A%2F%2Fwww.nmcourts.gov%2Fwp-content%2Fuploads%2F2020%2F12%2FOrderNo_-20-8500-012-Amendments-to-Certain-Procedrual-Requirements-for-allProceedings-and-Case-Types-During-COVID-19-PHE-4-10-20.pdf (last visited Dec. 18,
2020). In relevant part, this order required a party “challenging the identification of a
defendant . . . [to] notify the court and opposing counsel at least forty-eight (48) hours
before the hearing so that the court and opposing counsel have adequate time to
prepare and make arrangements for conducting the hearing in a manner conducive to
addressing and resolving a challenge to the identity of the defendant.” 2
Id. Based on
these orders, the district court found that the COVID-19 pandemic was a public health
emergency constituting an “exceptional circumstance.”3 The district court found that “the
hearing would have occurred within the . . . deadline but for the COVID-19 pandemic
precautions and identification issue raised by Child during the first hearing” and that “the
COVID-19 pandemic and the precautionary measures that are being followed because
of it are exceptional circumstances that justify extending the [thirty-]day deadline by
three days under Rule 10-213(D)[.]”
{9} The district court’s finding is consistent with the holdings of courts in other
jurisdictions that have held that the COVID-19 pandemic and its attendant precautionary
social-distancing requirements constitute exceptional circumstances warranting the
extension of deadlines. See, e.g., United States v. Carrilllo-Villa, 451 F. Supp. 3d 257,
260 (S.D.N.Y. 2020) (holding that the outbreak of COVID-19 and responses to it
presented extraordinary circumstances, and thus, justice required delay in the deadline
for holding preliminary hearing); People ex rel. Arogyaswamy v. Brann,
68 Misc. 3d 738,
744,
126 N.Y.S.3d 341, 346 (N.Y. Sup. Ct. 2020) (“The delay beyond the 144 hours for
a preliminary hearing specified in the statute is justified and falls under the rubric of
‘good cause.’ ”); Baldree v. Vallen Distrib., Inc.,
2020 WL 6875156, at *5 (W.D.N.C.
Nov. 23, 2020) (non-precedential) (granting equitable tolling in light of ongoing
“extraordinary circumstances” created by the COVID-19 pandemic); Dale v. Williams,
2020 WL 4904624, at *1 (D. Nev. Aug. 20, 2020) (non-precedential) (“[T]he COVID-19
pandemic is an extraordinary circumstance that is preventing parties from
meeting deadlines established both by rules and by statutes.”). Similarly, we hold that
the district court acted within its discretion in finding that the COVID-19 pandemic and
the resulting precautionary measures were exceptional circumstances warranting an
extension of time to make a probable cause determination under Rule 10-213(B).
{10} We briefly address Child’s argument that it was the State’s obligation to establish
identity and that the State should have accordingly filed a motion requiring Child to
appear at an earlier court date within the thirty-day timeline set by Rule 10-213(B)(2).
We are not persuaded that it was incumbent upon the State to reschedule the
preliminary hearing within the thirty-day timeline after technical difficulties prevented
Child from appearing by video during the April 6, 2020 hearing. First, there is no
indication that the State could or should have anticipated that Child would be unable to
appear by video during the first preliminary hearing. Second, it was Child, and not the
State, who asked for a two-week extension, placing the second hearing outside of the
2While it is axiomatic that Child was not required to adhere to the procedure outlined in
Supreme Court Order No. 20-8500-002 for the preliminary hearing because the order was issued only
after the hearing had already been held, we do agree that the adoption of this order evidences the
seriousness of the COVID-19 pandemic.
3In addition, defense counsel specifically acknowledged that the COVID-19 pandemic “is an
unprecedented public health crisis.”
thirty-day timeline. Thus, the second preliminary hearing was scheduled on day thirty-three of the Rule 10-213(B) timeline as a result of defense counsel’s request, and not as
a result of inadvertence on the part of the State. In other words, the rescheduling of the
otherwise timely initial hearing due to unforeseen complications arising from judicial
responses and safeguards responsive to the COVID-19 pandemic was a circumstance
out of the ordinary course of events that was unforeseeable and beyond the control of
the parties and the district court.
{11} Having concluded that COVID-19 constitutes an exceptional circumstance, we do
not believe the district court abused its discretion in granting a continuance in this case. 4
CONCLUSION
{12} We affirm.
{13} IT IS SO ORDERED.
BRIANA H. ZAMORA, Judge
WE CONCUR:
J. MILES HANISEE, Chief Judge
JACQUELINE R. MEDINA, Judge
4Given our opinion today, we need not address Child’s argument that the State attempted to circumvent
the rule by filing an amended petition on the morning of the continued hearing, nor do we address Child’s
arguments citing to Rule 5-604 NMRA, a rule unrelated to the issue we resolve today.
