Failure to Timely Appeal Probation Violations May Be Excused on Grounds of Ineffective Assistance Counsel

During the course of a legal case, whether criminal or civil, the law imposes certain deadlines. Generally, if those deadlines are not met the party failing to meet the deadline will be subject to penalties. These penalties may include having their case dismissed or having a judgment entered against them.

Recently, in New Mexico v. Leon, the New Mexico Court of Appeals dealt with a situation where the defendant missed the deadline to file an appeal on his criminal conviction. In cases where an appeal is not timely filed, an ineffective assistance of counsel may be presumed. This case held consistently with this position despite the state‘s argument that there was no 6th Amendment right to counsel in this case since it involved probation violations as opposed to original criminal charges.

The defendant was convicted of one count of contributing to the delinquency of a minor and one count of selling or giving alcoholic beverages to a minor, and he was sentenced to three years of incarceration followed by one year of parole. The court partially suspended his sentence and ordered him placed in supervised probation. The defendant also had a prior felony conviction for a sex offense, for which he is required to register as a sex offender. As a condition of the defendant‘s probation, he was not permitted to drink or possess alcohol, he was required to receive permission from his probation officer for missing any counseling sessions and he was required to get written permission from his probation officer before having unsupervised contact with children under eighteen years of age.

The defendant‘s probation officer filed four probation violation reports based on possession of alcohol, failing to register as a sex offender and missing two counseling sessions. As a result, the State sought to revoke the defendant‘s probation based on the violations. In addition, the State filed a supplemental criminal information requesting that the defendant‘s sentence be enhanced due to his habitual offender status. The court reviewed the evidence and revoked the defendant‘s probation, sentencing the defendant to five years of incarceration followed by a period of supervised probation.

Despite the fact that New Mexico law requires an appeal to a court‘s decision to be filed within thirty days of the final decision, the defendant did not file his appeal until sixty-two days after the final decision was entered. While the trial court may have granted the defendant an extension to file his appeal, he did not file the request for an extension until more than sixty days after the final decision as well. By that time, the trial court could not rule on any matters pertaining to the case, because it no longer had jurisdiction.

The defendant argued that his counsel‘s failure to file the appeal on time was ineffective assistance of counsel. Ineffective assistance of counsel is a claim raised when a criminal defendant believes their attorney‘s performance was so ineffective that it deprived them of their constitutional right to an attorney. In the past, New Mexico courts have presumed ineffective assistance of counsel where an appeal is not filed before the deadline passes, in which case the court will then review the defendant‘s case. However, this case differed slightly from the normal untimely appeal cases, because it deals with revocation of probation.

The State argued that in an appeal from a revocation of probation, the defendant had no right to counsel. However, the defendant‘s probation revocation hearing involved contested evidence, legal issues and complicated legal arguments, which most certainly require the assistance of an attorney. Additionally, the defendant had the right to appeal the revocation of his probation. Due to the significant effect a revocation of probation would have on the defendant‘s liberty, he should not have his right to appeal taken away due to his lawyer‘s mistake. Therefore, the defendant was permitted to appeal his probation revocation, despite missing the filing deadline.


Related Reading:
Sliding Scales of Due Process in New Mexico Probation Violation Hearings
4th Amendment Rights Limited for Probationers and Parolees
You Can Run but …: Tolling of Probation and Jurisdiction in New Mexico Criminal Cases

Collins & Collins, P.C.
Albuquerque Attorneys

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