State v. Sekiya ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 32,465
5 MIKKO T. SEKIYA,
6 Defendant-Appellant.
7 Gary K. King, Attorney General
8 Santa Fe, NM
9 for Appellee
10 Mikko T. Sekiya
11 Carrizozo, NM
12 Pro Se Appellant
13 MEMORANDUM OPINION
14 FRY, Judge.
15 This matter came on for hearing on Defendant’s motion for rehearing. The
16 Motion is denied. The opinion filed on January 22, 2013, is withdrawn and the
17 following substituted.
18 Defendant-Appellant Mikko T. Sekiya (Defendant) seeks to appeal from the
19 revocation of his probation. We issued a calendar notice on December 6, 2012,
1 proposing to dismiss. Defendant has filed a memorandum in opposition. After due
2 consideration, we remain unpersuaded. We therefore dismiss.
3 As described at greater length in the notice of proposed summary disposition,
4 Defendant failed to file a timely notice of appeal below. Additionally, Defendant
5 admitted the allegations contained in the petition to revoke his probation, thereby
6 waiving the right to appeal. See State v. Hodge, 118 N.M. 410, 414, 882 P.2d 1, 5
7 (1994) (holding that ordinarily, a guilty or no contest plea waives a defendant’s right
8 to appeal on non-jurisdictional grounds); State v. Leyba, 2009-NMCA-030, ¶¶ 14, 17,
9 145 N.M. 712, 204 P.3d 37 (applying Hodge in relation to an admitted probation
10 violation). Under these circumstances, we conclude that this matter is not properly
11 before us.
12 We acknowledge that “defense counsel’s failure to timely file a notice of appeal
13 from an order revoking a defendant’s probation is per se ineffective assistance,” if the
14 defendant has not waived the right to appeal. State v. Leon, 2013-NMCA-011, ¶ 20,
15 292 P.3d 493. However, as previously mentioned, by his admission Defendant
16 effectively waived the right to appeal, and consequently, no presumption of ineffective
17 assistance applies in this case. See id.; State v. Peppers, 110 N.M. 393, 399, 796 P.2d
18 614, 620 (Ct. App. 1990) (declining to extend the presumption of ineffectiveness of
19 counsel to include appeals from pleas of guilty or no contest).
2
1 In his memorandum in opposition Defendant notes that he received an
2 extension of time to file his docketing statement with this Court. [MIO 30] However,
3 such an extension does not have any impact on Defendant’s apparent waiver of the
4 right to appeal.
5 In his memorandum in opposition Defendant further asserts that he was not
6 informed about the filing requirements or his entitlement to appeal. [MIO 1]
7 However, this does not alter our assessment that the instant appeal is not properly
8 before us due to Defendant’s waiver of his right to appeal.
9 Accordingly, for the reasons stated above and in our notice of proposed
10 summary disposition, we conclude that this instant appeal is not properly before us.
11 We therefore dismiss.
12 IT IS SO ORDERED.
13
14 CYNTHIA A. FRY, Judge
15 WE CONCUR:
16
17 JAMES J. WECHSLER, Judge
18
19 TIMOTHY L. GARCIA, Judge
3