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Description: Albuquerque, New Mexico criminal defense lawyer represented defendant charged with sexual contact of a minor.


{¶2} Defendant was tried on three counts of criminal sexual penetration of a minor (NMSA 1978, § 30-9-11(D)(1) (2009)) and three counts of CSCM for acts Defendant was alleged to have committed against B.G., the granddaughter of his girlfriend. The jury convicted Defendant of one count of CSCM in the second degree, but was hung on the remaining counts. Although the district court declared a mistrial on those counts, permitting the State to retry Defendant on those charges, the court proceeded to sentencing on the CSCM conviction prior to any retrial.

{¶3} At the August 30, 2019, sentencing hearing, the district court judge discussed facts she believed pertinent to Defendant's case, including that Defendant's actions negatively impacted B.G.'s brother. Defense counsel then informed the judge that she was confusing this case with another. After having the facts of this case clarified, the judge sentenced Defendant to fifteen years of imprisonment, citing "the circumstances in this case and . . . the damage that [Defendant] has caused to . . . both children." See § 30-9-13(B) (providing that "[w]hoever commits criminal sexual contact of a minor in the second degree is guilty of a second degree felony for a sexual offense against a child"); NMSA 1978, § 31-18-15(A)(5) (2007, amended 2022) (providing that the basic sentence for a second degree felony for a

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sexual offense against a child is fifteen years of imprisonment). The judge, recognizing that Defendant was unable to allocute or present other mitigating evidence given the pending retrial, ruled that she would "let the defense, if they want to, file a motion to reconsider even if it's outside the time limits." The State did not object to the extension, but indicated its intent to dismiss Defendant's remaining charges without prejudice, in light of the district court's fifteen-year sentence. The court offered to contemporaneously set a resentencing hearing, but defense counsel declined, preferring to consider the issue further and then file a written motion. A written judgment and sentence was entered on September 3, 2019. The State filed a nolle prosequi as to the remaining charges on September 5, 2019.

{¶4} Defendant then filed a motion to reduce his sentence, pursuant to Rule 5-801 NMRA, on December 5, 2019-ninety-seven days after oral pronouncement of the sentence and ninety-three days after entry of the written judgment. Recognizing that the motion was filed outside the ninety-day time limit provided for in Rule 5-801(A), Defendant asked the district court to consider the merits of his motion because, he asserted, the late filing was "due entirely to counsel's error and misunderstanding and [was] not due to anything that [Defendant] did to delay the filing in any way." As for the merits, Defendant relied on the district court judge's conflation of his case with another and on the judge's statement, made even after having been corrected by the parties, that Defendant's actions damaged "both children." According to

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Defendant, no evidence at trial established that B.G.'s brother "witnessed any inappropriate behavior by [Defendant]." In response, the State argued that B.G.'s brother was indeed harmed by Defendant's actions and that, at any rate, the district court lacked jurisdiction to entertain the motion because it was filed past the ninetyday limit in Rule 5-801(A).

{¶5} The district court held a hearing on Defendant's motion. At the beginning of the hearing, defense counsel told the district court that the late filing was "entirely [her] fault" and asked the court to reach the merits. Without seeking additional information or asking for the State's response, the district court judge interjected, "I am going to." After hearing both parties' arguments on the merits, the judge acknowledged that she "clearly confused the two cases." She said she would enter a ruling after she reviewed the record and her notes, to ensure the sentence was "what [she] intended it to be." Later that day, the district court entered an order granting Defendant's motion and reducing Defendant's sentence to an effective term of ten years of imprisonment. In relevant part, the district court judge stated in the order that she was "concerned that the [original] sentence . . . was unduly harsh given the [c]ourt [was] applying the wrong facts to the sentencing decision." An amended judgment and sentence reflecting the court's decision was entered two days later.

Outcome: "{¶14} For the foregoing reasons, we affirm Defendant's conviction and amended judgment and sentence.

{¶15} IT IS SO ORDERED." State v. Urban (N.M. App. 2022)

Plaintiff's Experts:

Defendant's Experts:

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