ActivePaper Archive Penick pleads no contest to charges - Hobbs News Sun, 10/3/2019

Penick pleads no contest to charges

Hobbs city commissioner gets one year of probation, anger management classes





CARLSBAD — Hobbs City Commissioner Dwayne Penick pleaded no contest in Carlsbad district court Wednesday to three charges stemming from two altercations earlier this year at his shopping center.

As part of a plea deal, Penick pleaded no contest to petty misdemeanor charges of public affray, battery and disorderly conduct.

District Judge Jane Shuler Gray gave Penick a deferred sentence of one year for all three convictions, meaning he will not have to serve any jail time if he complies with the terms of his probation. Penick faced a possible sentence of six months in jail and a $500 fine on each charge.

Shuler Gray gave Penick a year of unsupervised probation, during which time Penick must not violate any federal, state or local laws, and during which he must complete anger management classes and a one-day A.S.P.E.N. class that teaches offenders second chance-life values.

Penick was also ordered to pay a $15 domestic violence treatment fee.

Special prosecutor RoxeAnne B. Esquibel, a deputy district attorney for the 12th Judicial District Attorney’s Office, explained the criminal complaint against Penick was amended last week to include charges stemming from two altercations at Penick’s shopping center. The first on Feb. 8, 2019, and the other was on March 18, 2019.

Penick was charged with public affray for the March 18 altercation in which Penick got into a boxing match in the parking lot of his shopping center in the 200 block of East Navajo Drive with a man after the man’s spouse parked in a handicap spot.

Penick was charged with battery and disorderly conduct for an altercation with tenants after the Feb. 8 grand opening of an ice cream shop in his shopping center.

“Basically, both cases ended up in our office,” Esquibel told the News-Sun. An original charge of assault stemming from the Feb. 8 incident was dropped and replaced in the amended criminal complaint with a charge of public affray stemming from the March 18 incident as part of the plea agreement, Esquibel explained.

“Basically, the judge followed the plea agreement,” Esquibel said.

Penick was scheduled to face trial on the three petty misdemeanor charges in Lovington District Court on Dec. 2.

In a statement Wednesday afternoon, Penick said he wants to move forward.

“I maintain my innocence,” Penick said. “This is nothing more than an attempt to smear my good name and to get out of a lease agreement. I decided not to contest the matter in court in order to quickly get this behind me and move forward. I will continue to serve the citizens of our fine City of Hobbs and move forward from these ridiculous accusations.”

Truckston McKay, one of the two victims in the Feb. 8 altercation, attended Wednesday’s court hearing in Carlsbad. The hearing was held in Carlsbad at the convenience of the attorneys, and because some of the district judges in Lea County recused themselves from the case, Esquibel explained.

“I think justice was served, but he’s still a hothead,” McKay told the News-Sun. McKay said his business, Curls & Swirls Rolled Ice Cream, remains a commercial tenant at Penick’s shopping center.

Considering Penick’s three convictions, McKay said he believes Penick, a first-term city commissioner, should resign from the Hobbs City Commission.

“I think he should step down, personally,” McKay said. “He’s on probation, for one. City commissioners and stuff should be in the public eye and not be committing crimes.”

Esquibel declined to comment on Penick’s public position, but said justice was served.

Penick’s lawyer, fellow City Commissioner Chris Mills, said the March incident was a continuation of the February incident. Mills said both incidents stem from a landlord-tenant dispute between Penick and the McKays, in which Penick isn’t releasing the McKays from their lease for the ice cream shop.

Mills said Penick’s public position elevated and exacerbated the criminal charges.

“I think he was treated much more harshly,” Mills said. “This is a very low-level offense. I’ve done about 15,000 or 16,000 of these, this is the first time that a district attorney has ever prosecuted this low level of offense.

“These are typically prosecuted by the police officer who writes the ticket. I don’t ever remember seeing the DA take one of theses cases. In our district, the district attorney does not prosecute petty misdemeanors unless they are DWI. So for them to prosecute a petty misdemeanor, it is being treated differently. These cases generally are dropped, almost across the board.”

Mills said Penick wants to put the charges behind him.

“This decision was made, justice was done, and it’s over and closed,” Mills said.

According to court records, Penick got into an altercation with McKay and his son the night of Feb. 8 after Penick became upset with the tone and alleged threats of the younger McKay, who complained after the tennant’s mother drove into the stump.

Penick said Chandler McKay kept calling “and using a bad tone.” Penick told police Chandler McKay said he would beat up Penick if Penick went to the shopping center.

Truckston McKay told police Penick cursed at him over the phone and threatened that he was coming over to beat up his son.

In the subsequent altercation the morning of March 18 involving the handicap parking spot, Penick got into an altercation with the spouse of a Curls & Swirls store manager in the parking lot of his commercial property. The altercation, captured on surveillance video from inside a store and obtained by the News-Sun, shows Penick approaching a man in a car and then punches were thrown by both men when the man got out of the car.

Both Penick, 53, and the other man, Aric Cowger, 27, were charged with public affray following the altercation. The petty misdemeanor charges against both men were later dismissed, although Esquibel said in court records the public affray charge against Penick would be considered with Penick’s other charges.

New Mexico State Police investigated both incidents.

Jeff Tucker can be reached at managingeditor@hobbsnews. com.