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State v. House3/28/1996
Defendant's challenges to his conviction for DWI, second offense, do not constitute a "substantial question" as contemplated by Section 31-11-1(C)(2). I also agree with the majority that Defendant is not eligible for release pending appeal of his DWI conviction and sentence.
{45} I write separately, however, because, although I agree with the majority that Defendant's motion for review of the trial court's order denying post-conviction release on bail pending appeal of his other convictions demonstrates that his venue challenge raises a substantial question of law, I do not join in the majority's Discussion of this issue. As observed by the majority, in 1988 New Mexico voters approved an amendment to the state constitution deleting any state constitutional right to post-conviction bail. N.M. Const. art. II, § 13. The 1988 legislature also substantially modified Section 31-11-1 and adopted a statutory test for determining whether individuals convicted of noncapital offenses or offenses other than violent offenses, as defined in Subsection D, are entitled to be released on bail pending appeal. The latter statute, as amended, provides in applicable part:
C. If a defendant is convicted of a noncapital offense other than a violent offense and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
{46} Because Section 31-11-1(C) and (D) closely parallel the language of its federal counterpart, 18 U.S.C.A. § 3143(b) (West 1985 & Supp. 1995), I agree that decisions of the federal courts construing the language of the Federal Bail Reform Act are instructive in interpreting similar New Mexico statutory provisions regulating the right of an individual following a criminal conviction to release pending the resolution of his appeal. Cf.) (federal court decisions interpreting language closely paralleling state rules are deemed persuasive).
{47} In the present case the trial court found that Defendant's motion for release pending appeal satisfied the provisions of Section 31-11-1(C) necessitating a showing by clear and convincing evidence that he was not likely to flee or pose a danger to the safety of others if released pending appeal, and that his appeal was not for purposes of delay. However, the trial court found that Defendant failed to meet the final requirement of Section 31-11-1(C)(2), because the issues sought to be asserted by Defendant on appeal did not raise "a substantial question of law or fact likely to result in reversal or an order for a new trial. " (Emphasis added.)
{48} In resolving the question of whether Defendant has satisfied his burden of eligibility for release pending appeal, I concur with the majority that the court in ), properly articulates the standard of review which should be applied in this case. The Affleck court, in pertinent part, succinctly states:
In sum, we hold that in order to grant bail pending appeal, a court must find that the defendant has met his burden of proving by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or to the community if released . . ., and that he has established . . . that the appeal is not for purpose of delay, and:
[1.] that the appeal raises a substantial question of law or fact; and
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