State v. Borunda

• Court: New Mexico Court of Appeals
• Decided: December 21, 2011
• Docket: 31,402
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 31,402

10 DANA BORUNDA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Stan Whitaker, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM 16 M. Victoria Wilson, Assistant Attorney General 17 Albuquerque, NM 18 for Appellee

19 Jacqueline L. Cooper, Acting Chief Public Defender 20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION

23 WECHSLER, Judge.

24 Defendant appeals her sentence upon a guilty plea, where the district court 1 determined that the crimes were serious violent offenses for purposes of the Earned

2 Meritorious Deduction Act (EMDA). In our notice, we proposed to reverse as it

3 appeared that the district court had not articulated its reasoning for determining that

4 Defendant was a serious violent offender. The State responded that the district court

5 had articulated its reasons. [MIO 2] This Court ordered a transcript of the sentencing

6 presentment hearing in order to confirm this assertion. Our review of the transcript

7 makes clear that the district court did not articulate its reasons for determining that the

8 offenses here were serious violent offenses. The district court states only that its

9 intention was to classify the crimes as serious violent offenses. [TR 6] It did not,

10 however, explain the reasons for making such a determination.

11 Our case law is clear that the district court must make factual findings that

12 support its determination and that those factual findings must be supported by

13 substantial evidence. State v. Scurry, 2007-NMCA-064, ¶ 4, 141 N.M. 591, 159 P.3d

14 1034. The district court failed to do so here.

15 Therefore, for the reasons stated herein and in the calendar notice, we reverse

16 and remand to the district court for resentencing; either to enter factual findings that

17 will support its conclusion that the crimes were serious violent offenses or to remove

18 that designation.

19 IT IS SO ORDERED.

2 1 ________________________________ 2 JAMES J. WECHSLER, Judge 3 WE CONCUR:

4 __________________________________ 5 MICHAEL D. BUSTAMANTE, Judge

6 __________________________________ 7 LINDA M. VANZI, Judge