State v. Bartlett

• Court: New Mexico Court of Appeals
• Decided: October 31, 2012
• Docket: 32,206
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 32,206

5 JOSH BARTLETT,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Angela J. Jewell, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender 13 Kimberly Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION 1 CASTILLO, Chief Judge.

2 Defendant appeals from the district court’s order revoking his probation,

3 denying his motion to clarify (or limit) the probationary period, and ordering him to

4 serve 301 days in the Metropolitan Detention Center, followed by a new five-year

5 probationary period. Defendant challenges this sentence on grounds that it exceeds

6 his total sentence exposure from the underlying judgment and sentence. Unpersuaded

7 that Defendant demonstrated error, we issued a notice of proposed summary

8 disposition, proposing to affirm. Defendant has filed a memorandum in opposition

9 in response to our notice. We have considered Defendant’s response and remain

10 unpersuaded that Defendant has demonstrated error. We therefore affirm.

11 In his response to our notice, Defendant contends that his original judgment and

12 sentence included too much time on his suspended sentence, because it should have

13 reflected the fact that the district court necessarily ran his armed robbery sentences

14 with firearm enhancements fully or partially concurrently, rather than consecutively,

15 as the district court stated. [MIO 9-14] Defendant reasons as follows. The district

16 court sentenced him to nine years for two counts of armed robbery, both with firearm

17 enhancements. [CR-1999-3910 RP 94 (hereinafter “RP”)] Each conviction for armed

18 robbery with the firearm enhancement carries a sentence of ten years. See NMSA

19 1978, § 31-18-15(A)(6) (2007) (stating that a second degree felony carries a sentence

2 1 of nine years); NMSA 1978, § 31-18-16(A) (1993) (stating that the use of a firearm

2 in the commission of noncapital felony carries a mandatory one-year enhancement to

3 the basic sentence to be served first, and it shall not be suspended or deferred).

4 Defendant maintains that sentences may not be fragmented and that therefore each

5 firearm enhancement must be served with each basic sentence for armed robbery.

6 [MIO 4-9] Defendant states that because the district court sentenced him to serve nine

7 years in prison for both armed robbery convictions with the firearm enhancements,

8 and because the firearm enhancement must be served first, must not be suspended, and

9 must be followed by the basic sentence, the district court’s judgment and sentence

10 ordering that the sentences be served consecutively is incorrect; the district court

11 could only order that the convictions be served, at least partially, concurrently. [MIO

12 5-9; RP 94] As a result, Defendant argues that his suspended sentence was too long,

13 because it incorporated the armed robbery sentence that was necessarily ordered to be

14 served concurrently to the other one. [MIO 9-16]

15 We do not agree with Defendant’s premise that the original judgment and

16 sentence can only be reconciled with Section 31-18-16(A) by running the two

17 enhanced armed robbery sentences at least partially, if not wholly, concurrently.

18 [MIO 6-7] Even assuming that Defendant is correct that the firearm enhancement

19 must be served immediately before the basic sentence, which the case law Defendant

3 1 cites does not squarely state, we see no reason why the district court would be

2 prohibited from suspending part or all of the basic sentences for armed robbery. The

3 Legislature has stated clearly that district courts have the authority and discretion to

4 suspend all or part of the execution of a sentence unless the defendant has been

5 convicted of a capital felony or a first degree felony. See NMSA 1978, § 31-20-3(B)

6 (1985). In addition, this Court has viewed the firearm enhancement statute and stated

7 the following: “the basic sentence in the firearm enhancement section can be

8 suspended or deferred. We see no policy reason or glean any legislative intent to

9 prohibit the altering of the basic sentence.” State v. Russell, 94 N.M. 544, 545, 612

10 P.2d 1355, 1356 (Ct. App. 1980).

11 Based on these principles, the district court acted well within its discretion by

12 ordering that Defendant serve the mandatory firearm enhancements, and either

13 suspending part of both basic sentences or suspending all of one basic sentence and

14 two years of the other basic sentence, and ordering that the sentences be served

15 consecutively. We see nothing in the statutes or Defendant’s argument that would

16 prohibit this result, and it is consistent with the restrictions of the firearm enhancement

17 statute, Section 31-18-16(A), and the court’s discretion to suspend all or part of

18 sentence for a noncapital, second degree felony under Section 31-20-3(B).

19 For these reasons, we affirm the district court’s order.

4 1 IT IS SO ORDERED.

2 __________________________________ 3 CELIA FOY CASTILLO, Chief Judge

4 WE CONCUR:

5 __________________________________ 6 JAMES J. WECHSLER, Judge

7 __________________________________ 8 TIMOTHY L. GARCIA, Judge