State v. Tarver

2005 NMCA 030

108 P.3d 1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. KEVIN SAMUEL TARVER, Defendant-Appellant.

Docket No. 24,572.

Court of Appeals of New Mexico.

Filing Date: January 19, 2005.

Patricia A. Madrid Attorney General, Ann M. Harvey, Assistant Attorney General Santa Fe, NM, for Appellee.

Brick P. Storts, III, Barton & Storts, P.C., Tucson, AZ, David Norvell, Albuquerque, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} The question for decision in this case is whether New Mexico courts have the authority under the Western Interstate Corrections Compact and accompanying statutes, NMSA 1978, §§ 31-5-4 to -9 (1959, as amended through 1985) (the Compact), to order the transfer of a prisoner from New Mexico to a neighboring state when that prisoner has not alleged any constitutional violations and instead seeks transfer due to a desire to be near his parents and an unproven fear of other prisoners. We hold that the district court correctly ruled that it did not have jurisdiction to order the transfer in this case, and we therefore affirm.

FACTS AND PROCEEDINGS

{2} On June 16, 1997, Defendant was sentenced, upon his plea of guilty, to eighteen years of imprisonment for child abuse resulting in death or great bodily harm. Five years later, he began to seek transfer by requesting that the prison administration transfer him to Arizona. Finding that he did not present a threat to security or that his own safety was in danger, the prison administration declined his request. He then sought relief by filing a motion in his criminal case in the district court, asking that the district court order the transfer pursuant to the Compact. Upon stipulation of an assistant district attorney, the district court ordered the requested transfer.

{3} That order, however, was vacated, at the request of the Department of Corrections. The matter was thereafter heard by the district court upon motions, memoranda, and exhibits by Defendant and the Department of Corrections and also upon argument at a hearing. The district court concluded that it did not have jurisdiction to order the transfer under the circumstances of the case and ruled that its order vacating the previous transfer order would stand. Defendant appeals.

PRELIMINARY MATTERS

{4} Initially, the State seeks to have this appeal dismissed on the ground that there is no procedure, except perhaps habeas corpus over which this Court does not have jurisdiction, pursuant to which Defendant would be permitted to ask the district court to order a transfer of place of imprisonment. See Rules 5-807 and 12-102 NMRA. However, the district courts are courts of general jurisdiction, and this Court has appellate jurisdiction over their decisions except in certain named classes of cases of which this is not one. See Ottino v. Ottino, 2001-NMCA-012, ¶¶ 6-8, 14, 130 N.M. 168, 21 P.3d 37; Rule 12-102. Therefore, we will not dismiss the appeal.

{5} Secondly, the State seeks to strike large portions of Defendant's brief in chief because he did not cite to specific pages of the record proper, instead citing to pleadings by name and date of filing, and because the State contends that certain factual representations are not supported by the record. Although we read Rule 12-213 NMRA to contemplate, and we generally require, citation to specific pages of the record proper, because the record is quite small and we have easily been able to find Defendant's references, we have chosen in this case to decline to strike portions or require Defendant to submit another, proper brief. As for the factual assertions, we have found most of them in the parties' memoranda or exhibits below, and the factual assertions were not disputed below. Therefore, we decline as well to strike portions of the brief on this ground. See Rule 12-312(D) NMRA (granting discretion in the appellate courts to decide the applicable sanction, if any: "for any failure to comply with the Rules of Appellate Procedure . . . the appellate court may . . . take such action as it deems appropriate").

DISCUSSION

{6} We next turn to the issue at hand, which is whether a district court has jurisdiction, absent any constitutional violations, to order the transfer of a prisoner under the Compact upon a prisoner's allegations that (1) he is fearful of other prisoners due to the nature of his crime and one past assault that has not been repeated, perhaps because the prison authorities have taken action to successfully avoid its being repeated and (2) he wishes to be near his parents, who find it difficult to visit him in another state.

{7} Defendant relies on certain language in the Compact that appears to allow courts to issue orders pursuant to it. The Compact states:

Whenever the duly constituted judicial or administrative authorities in a state party to this Compact, and which has entered into a contract pursuant to Article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary in order to provide adequate quarters and care or desirable in order to provide an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state.

Section 31-5-4 (Article IV(A) (emphasis added)). Section 31-5-6 also provides:

The courts, departments, agencies and officers of New Mexico and its subdivisions shall enforce this Compact . . . and do all things appropriate to the effectuation of its purposes and intent which may be within their respective jurisdictions including but not limited to the making and submission of reports required by the Compact.

(Emphasis added.)

{8} The State, on the other hand, relies on statutory language indicating that it is the secretary of the Department of Corrections that has primary responsibility for ordering the transfer of prisoners pursuant to the Compact. In particular, Section 31-5-5 provides that "the secretary of corrections may commit or transfer an inmate to any institution in or outside New Mexico if New Mexico has entered into a contract or contracts for the confinement of inmates in the institution pursuant to Article III of the Western Interstate Corrections Compact." (Emphasis added.) In addition, NMSA 1978, § 31-20-2(A) (1993) provides, "Persons sentenced to imprisonment for a term of one year or more shall be imprisoned in a corrections facility designated by the corrections department." Section 31-20-2(C)(5) further provides that:

there is created within the

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