{ "id": 4239739, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. HOWARD CANNON, Defendant-Appellant", "name_abbreviation": "State v. Cannon", "decision_date": "2014-06-03", "docket_number": "No. 34,619; No. 34,647; Docket No. 32,127", "first_page": "131", "last_page": "138", "citations": [ { "type": "official", "cite": "2014-NMCA-058" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "97 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555101 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0588-01" ] }, { "cite": "1982-NMCA-007", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "1984-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "2003-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77134 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0503-01" ] }, { "cite": "120 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559011 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0619-01" ] }, { "cite": "1995-NMSC-069", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248043 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/148/0708-01" ] }, { "cite": "489 U.S. 538", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032611 ], "weight": 8, "year": 1989, "pin_cites": [ { "page": "542" }, { "page": "543" }, { "page": "539-40" }, { "page": "544" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/us/489/0538-01" ] }, { "cite": "399 U.S. 66", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168449 ], "year": 1970, "pin_cites": [ { "parenthetical": "plurality opinion" } ], "opinion_index": 0, "case_paths": [ "/us/399/0066-01" ] }, { "cite": "391 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767723 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0145-01" ] }, { "cite": "109 N.M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590276 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/109/0428-01" ] }, { "cite": "1990-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "year": 1968, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "469 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959535 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/0387-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "1999-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827392 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0670-01" ] }, { "cite": "2006-NMCA-133", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670663 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0578-01" ] }, { "cite": "313 P.3d 251", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "292 P.3d 493", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191871 ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0249-01" ] }, { "cite": "2007-NMCA-039", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668617 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0379-01" ] }, { "cite": "110 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716932 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0393-01" ] }, { "cite": "1990-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "528 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476451 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "478" }, { "page": "480" }, { "page": "478", "parenthetical": "characterizing the First and Ninth Circuit Courts as having imposed a bright-line rule requiring that \"[cjounsel . . . file a notice of appeal unless the defendant specifically instructs otherwise; failing to do so is per se deficient\"" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/us/528/0470-01" ] }, { "cite": "105 N.M. 231", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598913 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0231-01" ] }, { "cite": "1986-NMCA-125", "category": "reporters:neutral", "reporter": "NMCA", "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 4-6" }, { "page": "\u00b6 3" }, { "page": "\u00b6 3" }, { "page": "\u00b6 4" }, { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 5-6" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 928, "char_count": 22011, "ocr_confidence": 0.779, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14075434513749643 }, "sha256": "f394dbdad2efd3dcc5758883214075ff25f6df5fdbb106476acbb0f26de576ca", "simhash": "1:d350688c7b2a8d83", "word_count": 3551 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "WE CONCUR:", "JAMES J. WECHSLER, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. HOWARD CANNON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} Defendant Howard Cannon appeals his conviction for aggravated driving while under the influence (DWI), first offense, following a de novo trial in district court. Defendant contends that the district court erred by not granting him a trial by jury. Defendant\u2019s appeal from the district court was untimely filed. This Court therefore ordered the parties to brief the issue of whether the conclusive presumption of ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, \u00b6\u00b6 4-6, 105 N.M. 231, 731 P.2d 374, should apply to appeals from a de novo trial in district court following a conviction in magistrate or municipal court. In briefing this issue, the State argued that this Court should overrule the presumption of ineffective assistance of counsel established in Duran in favor of allowing the district court to determine whether ineffective assistance of counsel occurred under the particular circumstances of a given case via an evidentiary hearing. The State contends that this result is required by the United States Supreme Court\u2019s ruling in Roe v. Flores-Ortega, 528 U.S. 470 (2000). We hold that, based on the jurisprudence and rules of this State, our courts should apply a conclusive presumption of ineffective assistance of counsel to an untimely notice of appeal following a de novo trial in district court. As to Defendant\u2019s claim of error, we affirm.\nBACKGROUND\n{2} Defendant was found guilty of aggravated DWI, contrary to NMSA 1978, Section 66-8-102(D)(3) (2010),- following a jury trial in magistrate court. Defendant appealed the magistrate court conviction by filing a timely notice of appeal in district court pursuant to Rule 6-703(A) NMRA (providing that \u201c[a] party who is aggrieved by the judgment or final order in a criminal action may appeal. . . to the district court of the county\u201d and requiring that \u201c[t]he notice of appeal ... be filed in the district court within fifteen (15) days after the judgment or final order appealed from is filed in the magistrate court clerk\u2019s office\u201d). Defendant requested a setting for a de novo trial and filed a demand for a jury trial. The district court denied Defendant\u2019s request for a jury trial. A bench trial was held, and Defendant was found guilty and convicted of aggravated DWI. An order of conviction was entered on February 1,2012. Pursuant to NMSA 1978, Section 39-3-3(A)(l) (1972), and Rule 12-201(A)(2) NMRA, a criminal defendant must file his notice of appeal from the final judgment of a district court within thirty days of the entry of that judgment. Defendant filed a notice of appeal with the district court on March 21,2012. Defendant\u2019s notice of appeal was, therefore, untimely.\nDISCUSSION\nI. Application of the Duran Presumption\n{3} In Duran, this Court created a conclusive presumption of ineffective assistance of counsel where counsel filed an untimely notice of appeal following a defendant\u2019s conviction in district court. We premised this conclusive presumption of ineffective assistance of counsel, in part, on our understanding that \u201c[cjriminal defendants convicted at trial generally file a notice of appeal.\u201d State v. Peppers, 1990-NMCA-057, \u00b6 20, 110 N.M. 393, 796 P.2d 614. We reasoned that, because in an appeal from a criminal conviction counsel must \u201ctimely file either a notice of appeal or an affidavit of waiver of appeal[,j\u201d Duran, 1986-NMCA-125, \u00b6 3 (citing NMSA 1978, Crim. P. Rule 54(b) (Repl. 1985), now Rule 5-702(B) NMRA), \u201cthe absence of a notice of appeal and an affidavit of waiver strongly suggests the failure of trial counsel to consult adequately with the client concerning the right to appeal.\u201d Peppers, 1990-NMCA-057, \u00b6 20 (discussing Duran).\n{4} Since Duran, this Court has extended the conclusive presumption of ineffective assistance of counsel to de novo appeals from magistrate court to district court, State v. Eger, 2007-NMCA-039, \u00b6 2, 141 N.M. 379, 155 P.3d 784; to appeals from an order revoking probation, State v. Leon, 2013-NMCA-011, 292 P.3d 493, cert. quashed2013-NMCERT-010, 313 P.3d 251; and to appeals from determinations of abuse and neglect and termination of parental rights, State ex rel. Children, Youth and Families Department v. Amanda M., 2006-NMCA-133, \u00b6 22, 140 N.M. 578, 144 P.3d 137 (abuse and neglect); State ex rel. Children, Youth and Families Department v. Ruth Anne E., 1999-NMCA-035, \u00b6 10, 126 N.M. 670, 974 P.2d 164 (termination proceedings). Most recently, in State v. Vigil, 2014-NMCA-___,___P.3 d__ (No. 32, 166, Mar. 12, 2014), this Court extended the Duran presumption to untimely appeals to this Court following a district court\u2019s on-record review of a metropolitan court decision.\n{5} In contrast, the present case does not require this Court to extend the Duran presumption beyond the parameters of its original analysis. Rather, given that a de novo trial in district court is subject to the same procedural rule that the Duran presumption was premised on \u2014 namely, Rule 5-702(B) \u2014 it follows that the Duran presumption would apply to untimely notices of appeal from a de novo trial in district court. Perhaps recognizing the difficulty in distinguishing the circumstances of this case from the basis for Duran, the State instead asks this Court to overrule Duran\u2019s conclusive presumption of ineffective assistance of counsel.\n{6} The State relies on the United States Supreme Court\u2019s opinion in Flores-Ortega, to argue that this Court should overrule Duran. In Flores-Ortega, the United States Supreme Court concluded that a bright-line rule for determining ineffective assistance of counsel for failure to file a timely notice of appeal was improper given that Strickland v. Washington, 466 U.S. 668 (1984), requires that a court look at the specific circumstances surrounding counsel\u2019s actions. Flores-Ortega, 528 U.S. at 478. The State contends that, because this Court premised its ruling in Duran on the right to effective assistance of counsel under the United States Constitution and not the New Mexico Constitution, we are bound by the holding in Flores-Ortega. We disagree.\n{7} While Duran was based, in part, on federal case law discussing a defendant\u2019s right to counsel and right to appeal, Duran was also premised on New Mexico\u2019s rules of criminal procedure. See 1986-NMCA-125, \u00b6 3 (stating that \u201c[t]his [Cjourt is mindful of the holding of the United States Supreme Court in Evitts v. Lucey, [469 U.S. 387 (1985)], to the effect that criminal defendants are not to be deprived of an appeal as of right where a procedural defect results from ineffective assistance of counsel on appeal\u201d); Duran, 1986-NMCA-125, \u00b6 4 (discussing how an attorney who fails to either file a notice of appeal or affidavit of waiver of appeal as required by the rules of criminal procedure \u201ccan be said to have neglected his duty and a conclusive presumption of ineffective assistance arises\u201d). W e further note that our rules impose a greater obligation on counsel than the Federal Constitution. As the United States Supreme Court recognized in Flores-Ortega,\n[Cjounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal); or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.\n528 U.S. at 480. The United States Supreme Court marked the difference between this constitutionally imposed obligation and the bright-line rule utilized by the First and Ninth Circuits, stating that the bright-line rule \u201ceffectively imposes an obligation on counsel in all cases either (1) to file a notice of appeal, or (2) to discuss the possibility of an appeal with the defendant, ascertain his wishes, and act accordingly.\u201d Id. at 478 (characterizing the First and Ninth Circuit Courts as having imposed a bright-line rule requiring that \u201c[cjounsel . . . file a notice of appeal unless the defendant specifically instructs otherwise; failing to do so is per se deficient\u201d). The United States Supreme Court noted that, \u201cwhile [sjtates are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented,\u201d \u201c[wje cannot say, as a constitutional matter, that in every case counsel\u2019s failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient.\u201d Id. at 479.\n{8} By promulgating Rule 5-702(B), our New Mexico Supreme Court has expanded the obligation of counsel to protect a defendant\u2019s right to appeal beyond that required under the United States Constitution. As noted above, pursuant to Rule 5-702(B), counsel is responsible for either filing a notice of appeal or obtaining an affidavit of waiver from a defendant. Therefore, ultimately, our Supreme Court has imposed on counsel an obligation to consult with a criminal defendant regarding the defendant\u2019s right to appeal. See Rule 5-702(B); see also Duran, 1986-NMCA-125, \u00b6 4 (noting that counsel may file \u201chis own affidavit in the district court stating that he has advised his client of his right to appeal and that the client has neither authorized an appeal nor signed an affidavit of waiver\u201d in order to comply with the requirements of the rule and not be deemed ineffective). Thus, Rule 5-702(B) itself creates a requirement similar to the obligation imposed by the bright-line rule that the United States Supreme Court determined was not constitutionally required.\n{9} Given that, as a state, we are free to extend additional procedural protections to a criminal defendant, and given that Duran was premised on the specific requirements contained in Rule 5-702(B), we reject the State\u2019s argument that Flores-Ortega is controlling and requires us to overrule the conclusive presumption of ineffective assistance of counsel established in Duran. Nor do we choose to reconsider Duran of our own accord. After close to thirty years and various extensions of its application, Duran is firmly rooted in this State\u2019s jurisprudence. T o the extent the State advocates for a rule that would require remand to the district court to hold an evidentiary hearing whenever an untimely notice of appeal is filed, we conclude that this is an issue best left to our Supreme Court\u2019s rule-making authority. This Court continues to maintain, as we did in Duran, that applying a conclusive presumption of ineffective assistance of counsel provides the greatest protection of a defendant\u2019s right to appeal with the least judicial burden. See Duran, 1986-NMCA-125, \u00b6\u00b6 5-6. We therefore do not reweigh the balance of interests struck by this Court in Duran. Accordingly, we hold that the Duran presumption applies when counsel files an untimely appeal to this Court following a de novo trial in district court. We now turn to the merits of Defendant\u2019s appeal.\nII. Defendant\u2019s Request for a Jury Trial\n{10} Defendant contends that the district court erroneously denied him the jury trial he was entitled to under both the Sixth Amendment of the United States Constitution and Article II, Section 12 of the New Mexico Constitution. The State contends that, to the extent Defendant is arguing that the New Mexico Constitution provides greater protection than the Sixth Amendment, Defendant did not preserve this issue below. This Court does not read Defendant\u2019s brief in chief or reply brief as asserting an argument for greater protection under the New Mexico Constitution, and Defendant has made no attempt to rebut the State\u2019s contention that this issue was not preserved. We therefore limit our analysis accordingly.\n{11} In State v. Sanchez, 1990-NMSC-012, 109 N.M. 428, 786 P.2d 42, our Supreme Court examined the Sixth Amendment\u2019s guarantee of an accused\u2019s right to trial by an impartial jury. Our Supreme Court noted that in Duncan v. Louisiana, 391 U.S. 145 (1968), the United States Supreme Court \u201cdr[e]w a line separating petty offenses from serious crimes, [and] held that certain petty offenses are not subject to the [S]ixth [A]mendment jury trial provision and should not be subject to the [Fourteenth [A]mendment jury trial requirement applied to the states.\u201d Sanchez, 1990-NMSC-012, \u00b6 6. In distinguishing between a petty offense and serious crime, the United States Supreme Court relied on the objective criteria of maximum authorized penalty, \u201cfinding it to be the most relevant and reflective of the seriousness with which society regards an offense.\u201d Id. \u00b6 7. The United States Supreme Court held that \u201ca potential sentence in excess of six months\u2019 imprisonment is sufficiently severe by itself to take the offense out of the category of \u2018petty\u2019 so as to permit a defendant to demand a trial by jury.\u201d Sanchez, 1990-NMSC-012, \u00b6 7 (quoting Baldwin v. New York, 399 U.S. 66, 69 n.6 (1970) (plurality opinion) (internal quotation marks and citation omitted)).\n{12} Defendant was charged with DWI, first offense, which carries a maximum sentence of ninety days\u2019 imprisonment. See \u00a7 66-8-102(E). Given that the maximum period of imprisonment Defendant faces is less than six months, Defendant is not entitled to a jury trial under Sanchez.\n{13} Defendant relies on Blanton v. City of N. Las Vegas, 489 U.S. 538 (1989), to argue that this Court should treat DWI, first offense, as a serious offense despite a maximum term of imprisonment of less than six months. In Blanton, the United States Supreme Court noted that in determining the severity of a penalty for purposes of assessing a defendant\u2019s right to a jury, \u201cthe word \u2018penalty[]\u2019 . . . do[es] not refer solely to the maximum prison term authorized for a particular offense.\u201d Id. at 542. Rather, \u201c[a] legislature\u2019s view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense.\u201d Id. However, the Supreme Court instructed that it is \u201cappropriate to presume for purposes of the Sixth Amendment that society views [an offense carrying a maximum prison term of six months or less] as \u2018petty.\u2019\u201d Id. at 543. Where the maximum period of incarceration is less than six months, \u201c[a] defendant is entitled to a jury trial . . . only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a \u2018serious\u2019 one.\u201d Id.\n{14} Attempting to overcome this presumption, Defendant directs this Court to the additional penalties contained in Section 66-8-102(E) for first offenses. These penalties include a minimum of twenty-four hours of community service, completion of an alcohol or drug screening program, completion of a court-approved alcohol or drug abuse treatment program, completion of a driver rehabilitation program, installation of an ignition interlock device on all motor vehicles driven by the offender for a period of one year, obtaining an interlock driver\u2019s license, and payment of probation costs, along with various fees and fines. Section 66-8-102(E). Defendant calculates the cost of these penalties as $2,680.04. Defendant also notes that, \u201c[i]n addition to the financial burden of a first offense DWI conviction, the penalties also involve a significant time investment.\u201d Defendant contends that these penalties reflect a judgment by our Legislature that DWI, first offense, is a serious crime.\n{15} Moreover, Defendant asserts that our courts have also consistently viewed DWI, first offense, as a serious crime. Defendant argues that in City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275, the New Mexico Supreme Court considered DWI to be a serious crime by choosing to treat it as a felony for the purpose of warrantless arrests. In Martinez, our Supreme Court acknowledged that \u201c[t]he crime of DWI as defined by -our Legislature is not a \u2018minor crime\u2019 as contemplated by the misdemeanor arrest rule\u201d and held that \u201cthe crime of DWI should be treated as a felony for purposes of warrantless arrests.\u201d Id. \u00b6 13. In doing so, the Court stated:\nAlthough a DWI offender who has had less than three convictions would only be guilty of a misdemeanor, such a classification makes no difference in the severity of the offense\u2019s consequences, nor does it dilute the public\u2019s concern; a first DWI or subsequent offense can have the same deadly results as a fourth offense.\nId. \u00b6 14. Defendant also points to other acknowledgments by our courts that DWI is a serious offense. See State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, \u00b6 9, 120 N.M. 619, 904 P.2d 1044 (\u201cNew Mexico has a serious problem with drunk drivers, with one of the highest rates in the nation of DWI-related fatalities. Our citizens are obviously concerned by this dangerous situation, and through their elected representatives have established a system providing punishment for drunk drivers along with remedial measures for the protection of the population.\u201d); State v. Contreras, 2003-NMCA-129, \u00b6 14, 134 N.M. 503, 79 P.3d 1111 (\u201cIn New Mexico, the elimination of driving while intoxicated and its related offenses is a matter of grave concern to society in general, and to our courts and Legislature in particular.\u201d (internal quotation marks and citation omitted)).\n{16} While we acknowledge that our law is replete with references to the seriousness with which we regard DWI, such statements made in other contexts do not inform our decision herein. Rather, as Blanton provides, it is the severity of the penalty that we must consider in determining whether a defendant is entitled to a trial by jury and, based on the penalties provided in Section 66-8-102(E), we conclude that Defendant cannot overcome the presumption that we view the offense of DWI, first offense, as \u201cpetty\u201d for purposes of the Sixth Amendment.\n{17} In Blanton, the United States Supreme Court noted that the Nevada legislature had chosen to punish first DWI offenses by imposing the following penalties: (1) \u201ca minimum term of two days\u2019 imprisonment and a maximum term of six months\u2019 imprisonment\u201d or, alternatively, \u201c[forty-eight] hours of work for the community while dressed in distinctive garb which identifies him as [a [DWI] offender]\u201d; (2) \u201ca fine ranging from $200 to $1,000\u201d; (3) revocation of the defendant\u2019s driver\u2019s license; and (3) attendance of \u201can alcohol abuse education course\u201d at the defendant\u2019s expense. 489 U.S. at 539-40. There, despite the combination of a maximum six months\u2019 imprisonment and the additional penalties listed above, the United States Supreme Court determined that the Nevada legislature had not clearly indicated that DWI was a serious offense. Id. at 544.\n{18} While New Mexico provides more additional penalties than the Nevada legislature was identified as having done in Blanton, the total period of incarceration for a DWI, first offense, in New Mexico is ninety days, where the maximum incarceration under the Nevada legislation discussed in Blanton was six months. The United States Supreme Court concluded that the Nevada legislature had not indicated that DWI was a serious offense for purpose of the Sixth Amendment when it provided for a six-month maximum sentence and additional penalties and fines. Given that Blanton states that \u201c[p]rimary emphasis ... must be placed on the maximum authorized period of incarceration[,]\u201d id. at 542, we cannot conclude that the additional penalties contained in Section 66-8-102(E), when viewed in conjunction with a ninety-day sentence, are sufficient to render DWI, first offense, a serious offense for Sixth Amendment purposes. As a result, we disagree with Defendant that he had a constitutional right to a jury trial.\n{19} Defendant further argues that the district court\u2019s denial of his request for a jury trial violated the rules of criminal procedure and therefore his right to due process. Specifically, Defendant asserts that the rules require that an appeal from magistrate court to district court be in the form of a trial de novo. See Rules 6-703(A); 5-826(J) NMRA. According to Defendant, \u201c[t]he [same] rights and procedures afforded at the trial de novo must match those provided below.\u201d Defendant provides no authority for this argument. See In re Adoption of Doe, 1984-NMSC-024, \u00b6 2, 100 N.M. 764, 676 P.2d 1329 (providing that, where a party cites no authority to support an argument, we may assume no such authority exists). Moreover, Defendant\u2019s argument is contrary to the concept of a de novo trial \u201cin which the whole case is gone into as if no trial whatever had been had in the court below.\u201d Miera v. Waltemeyer, 1982-NMCA-007, \u00b6 18, 97 N.M. 588, 642 P.2d 191 (internal quotation marks and citation omitted). Accordingly, we conclude that the district court did not violate Defendant\u2019s constitutional rights by denying his request for a jury trial.\nCONCLUSION\n{20} We hold that the Duran presumption applies when counsel files an untimely appeal to this Court following a de novo trial in district court. Having applied the Duran presumption in this case and considered the merits of Defendant\u2019s appeal, we conclude that D WI, first offense, is not a serious offense for purpose of a defendant\u2019s Sixth Amendment right to a jury trial. Because we conclude that the district court did not err in denying Defendant\u2019s request for a jury trial, we affirm Defendant\u2019s conviction.\n{21} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender Nicole Murray, Assistant Appellate Defender Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, June 3, 2014,\nNo. 34,619;\nNo. 34,647\nDocket No. 32,127\nCertiorari Denied, May 8, 2014,\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-058\nFiling Date: March 13, 2014\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. HOWARD CANNON, Defendant-Appellant.\nGary K. King, Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender Nicole Murray, Assistant Appellate Defender Santa Fe, NM\nfor Appellant" }, "file_name": "0131-01", "first_page_order": 147, "last_page_order": 154 }