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State v. Simpson11/24/1993
affirmance. The Court of Appeals reviewed his memorandum and then responded to it in a second calendar notice, again proposing summary affirmance. Under the rule, Simpson was again invited to submit a memorandum responding to the second calendar notice -- an invitation he declined. Through this process, Simpson was afforded the opportunity to express his arguments and have them reviewed by the Court of Appeals. Consequently, he was not prejudiced by the summary calendar system's denial of the opportunity to file "briefs."
Finally, Simpson has demonstrated no injury from the requirement that his trial attorney prepare the docketing statement. Here, the same attorney served as defendant's trial and appellate counsel. Simpson has not alleged that his attorney failed to recognize and argue any issues on appeal. In fact, the New Mexico Criminal Defense Lawyers Association affirms that "Simpson had highly qualified counsel to recognize appellate issues as they arose . . . ." Thus, Simpson was not disadvantaged by the requirement that trial counsel prepare the docketing statement.
Simpson also argues that summary affirmance violated Article VI, Section 28 of the New Mexico Constitution, which provides: "Three Judges of the court of appeals shall constitute a quorum for the transaction of business, and a majority of those participating must concur in any judgment of the court." The Criminal Defense Lawyers Association supplements this argument by contending that Rule 12-210 does not, but should, guarantee a defendant a full panel of Judges to make the calendaring decision and that, although at least two Judges always concur in the Disposition of a case on the summary calendar, there is no rule or case law, as there should be, that requires the Concurring Judges to review fully the defendant's memoranda before deciding to concur.
We respond as follows: First, Article VI, Section 28, does not require a full panel of Judges to make the calendaring decision; it only requires a majority of Judges to concur in a judgment of the Court. Here, three Judges concurred in the summary affirmance, so there was no violation of Article VI, Section 28. Second, while no rule requires the Concurring Judges to fully review relevant documents before deciding whether to concur in a Disposition, we are confident that they read the docketing statement, memoranda, and calendar notices before making their decision. In the absence of anything but speculation to support defendant's and the Association's arguments, we see no constitutional violation.
For the foregoing reasons, defendant's convictions are affirmed.
IT IS SO ORDERED.
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