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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2022-NMCA-018
Filing Date: December 14, 2021
No. A-1-CA-39149
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FELICIA J. PERU,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
Tom F. Stewart, District Judge
Certiorari Denied, March 24, 2022, No. S-1-SC-39205. Released for Publication May
10, 2022.
Hector H. Balderas, Attorney General
Benjamin L. Lammons, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
HANISEE, Chief Judge.
{1} Defendant appeals the district court order continuing her probation, arguing that
the district court violated her right to due process by denying her motion to appear in
person at an adjudicatory hearing on the State’s motion to revoke her probation. In
denying Defendant’s motion, the district court relied on New Mexico Supreme Court
Order No. 20-8500-013 (the Supreme Court Order), in which the Court set forth
procedures related to the function of judicial proceedings in light of the burgeoning
COVID-19 pandemic. See Supreme Court Order No. 20-8500-013 (April 16, 2020),
https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-No_-20-8500-013-
Updating-and-Consolidating-Precautionary-Measures-for-Court-Operations-in-NMJudiciary-4-16-20.pdf. For the reasons that follow, we affirm.
BACKGROUND
{2} Between May 2019 and January 2020, the State filed three different petitions to
revoke Defendant’s probation, alleging Defendant’s various failures to comply with her
probation requirements. On March 11, 2020, following the State’s third petition to revoke
probation, the COVID-19 pandemic was declared a public health emergency in New
Mexico. 1 On April 16, 2020, our Supreme Court announced the Supreme Court Order,
updating precautionary measures for court operation in the New Mexico Judiciary during
the COVID-19 public health emergency, which is at issue in this case. In pertinent part,
the Supreme Court Order provides that “[a]ll judges shall use telephonic or audio-visual
attendance for court appearances by attorneys, litigants, witnesses, and the press
unless there is an emergency need for an in-person appearance upon motion of a
party.” Supreme Court Order No. 20-8500-013 at 4.
{3} In May 2020, Defendant filed a motion requesting to appear in person at an
upcoming adjudicatory hearing on the State’s motion to revoke her probation. The
district court denied Defendant’s motion and stated within its findings that no emergency
need existed in the case. Following the adjudicatory hearing, at which Defendant
appeared via audio-visual connection, the district court filed its order continuing
Defendant’s probation and Defendant subsequently filed her notice of appeal. The State
filed a fourth petition to revoke Defendant’s probation, alleging continued violations.
Following a hearing on the State’s motion, the district court filed an order in which it
unsatisfactorily discharged Defendant from probation and released Defendant from the
Grant County Detention Center.
DISCUSSION
{4} We observe at the outset that because Defendant was unsatisfactorily
discharged from probation and subsequently released on the district court’s order, this
case presents no actual controversy, and we are unable to grant any actual relief.
Indeed, Defendant states that “[s]he does not ask this Court to reinstate her to
probation. She asks simply for this Court to hold that she had a right to appear in person
at her [adjudicatory] hearing, and that that right was violated.” Thus, this case appears
to be moot. See Gunaji v. Macias, 2001-NMSC-028, ¶ 9,
130 N.M. 734,
31 P.3d 1008
(“A case is moot when no actual controversy exists, and the court cannot grant actual
relief.” (internal quotation marks and citations omitted)). Even if a case is moot, we have
discretion to “review moot cases that present issues of substantial public interest or
which are capable of repetition yet evade review.” Id. ¶ 10. Recognizing the likelihood
that this Court will be asked to resolve future cases that are similarly related to the
district court’s application of the Supreme Court Order—or other similar orders from our
1See State of N.M., Executive Order 2020-004 (March 11, 2020) https://cv.nmhealth.org/wp-content/uploads/2020/03/Executive-Order-2020-004.pdf.
Supreme Court related to COVID-19—we address below the merits of Defendant’s
appeal.
{5} Here, Defendant’s primary argument is that the district court misinterpreted the
Supreme Court Order and, in so doing, violated Defendant’s rights to due process by
denying her motion to appear in person at an adjudicatory hearing. 2 Defendant does not
argue that the Supreme Court Order itself is erroneous or unconstitutional, but rather
that the district court erred in its interpretation and application of the Supreme Court
Order. Defendant asserts that because she filed motions requesting in-person
proceedings, the district court was required under the Supreme Court Order to grant
such motions and hold in-person proceedings. Indeed, Defendant contends that “[w]hen
[she] insisted on appearing in person, the district court needed to conduct the hearing in
person, with appropriate safeguards to protect everyone from [the C]oronavirus.”
Defendant misapprehends the Supreme Court Order.
{6} The Supreme Court Order states that “[a]ll judges shall use telephonic or audio-visual attendance for court appearances by attorneys, litigants, witnesses, and the
press unless there is an emergency need for an in-person appearance upon motion of a
party.” Supreme Court Order No. 20-8500-013 at 4 (emphasis added). The Supreme
Court Order further provides that the district court has discretion to order in-person
appearances “on the judge’s own initiative, without a motion by a party, provided that
the judge shall confer with the parties and the chief judge of the district before
proceeding with an in-person appearance.” Supreme Court Order No. 20-8500-013 at 4.
Specifically related to criminal proceedings, the Supreme Court Order provides that
“[a]ny criminal procedure rules requiring the presence of the defendant may be
accomplished through remote, audio-visual appearance in the discretion of the judge,
provided that confidential communication between the defendant and defense counsel
is made available[.]” Supreme Court Order No. 20-8500-013 at 4.
{7} Under these provisions, the district court has discretion to require in-person
appearances within certain parameters or when moved to do so by a party asserting an
emergency need to appear in person. The Supreme Court Order does not require the
district court to grant a defendant’s motion for in-person proceedings where such motion
fails to present an emergency need. Defendant’s motion did not assert an emergency
need for Defendant to appear in person; rather it merely asserted a general
constitutional right to appear in person for probation revocation proceedings. Moreover,
2Defendant argues as well that there was insufficient evidence of a violation to support the district court’s
revocation of her probation. Defendant fails to develop this argument with any explanation or analysis,
citation to the record, or citation to relevant authority, and we therefore consider the argument to be
undeveloped and decline to address it further. See Corona v. Corona, 2014-NMCA-071, ¶ 28,
329 P.3d
701 (“This Court has no duty to review an argument that is not adequately developed.”); see In re
Adoption of Doe,
1984-NMSC-024, ¶ 2,
100 N.M. 764,
676 P.2d 1329 (“We have long held that to present
an issue on appeal for review, an appellant must submit argument and authority as required by rule. We
assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was
unable to find any supporting authority. [T]herefore[, we] will not do this research for counsel. Issues
raised in appellate briefs which are unsupported by cited authority will not be reviewed by us on appeal.”
(citations omitted)).
Defendant fails to articulate on appeal that her motion was supported by an emergency
need and provides no authority to support her implicit assertion that her desire to
exercise her right to appear in person at proceedings constituted an emergency.
Because Defendant fails to establish that her motions were supported by emergency
need, contrary to the district court’s findings, we can assign no error to the district
court’s compliance with the Supreme Court Order. See State v. Aragon, 1999-NMCA-
060, ¶ 10,
127 N.M. 393,
981 P.2d 1211 (explaining that “[t]here is a presumption of
correctness in the district court’s rulings” and that it is a defendant’s “burden on appeal
to demonstrate any claimed error below” (alterations, internal quotation marks, and
citation omitted)); see also Martinez v. Sw. Landfills, Inc.,
1993-NMCA-020, ¶ 18,
115
N.M. 181,
848 P.2d 1108 (“[A]n appellant is bound by the findings of fact made below
unless the appellant properly attacks the findings, and that the appellant remains bound
if he or she fails to properly set forth all the evidence bearing upon the findings.”). We
therefore hold that the district court did not err in its interpretation of the Supreme Court
Order.
CONCLUSION
{8} For the reasons stated above, we affirm.
{9} IT IS SO ORDERED.
J. MILES HANISEE, Chief Judge
WE CONCUR:
JACQUELINE R. MEDINA, Judge
GERALD E. BACA, Judge
