State v. Casillas

• Court: New Mexico Court of Appeals
• Decided: July 6, 2011
• Docket: 31,053
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the 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. 31,053

10 DARRELL CASILLAS,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 13 Drew D. Tatum, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Law Office of Jamison Barkley, LLC 18 Jamison Barkley 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge.

23 Defendant appeals the denial of his motion for new trial. We issued a notice of

24 proposed summary disposition, proposing to uphold the underlying disposition.

25 Defendant has filed a memorandum in opposition and motion to amend the docketing 1 statement. After due consideration, we remain unpersuaded. We therefore affirm. We

2 deny Defendant’s motion to amend the docketing statement.

3 Defendant continues to claim that it was error to deny his motion for new trial

4 which was based on a claim of newly-discovered evidence. As discussed in our

5 calendar notice, Defendant filed his motion beyond the two-year window, which is set

6 forth in Rule 5-614(C) NMRA. See Case v. Hatch, 2008-NMSC-024, ¶ 5, 144 N.M.

7 20, 183 P.3d 905. We explained that the time limit is jurisdictional. See State v.

8 Lucero, 2001-NMSC-024, ¶¶ 9-10, 130 N.M. 676, 30 P.3d 365. We concluded that

9 it was not an abuse of the district court’s discretion to deny the untimely motion for

10 new trial. See State v. Volpato, 102 N.M. 383, 385, 696 P.2d 471, 473 (1985).

11 Defendant now argues that the evidence that formed the basis of his motion was

12 “not discoverable within two years because of a potential witness’ intentional silence,”

13 and Defendant was therefore unable to comply with the time limits “due to forces

14 beyond his control.” [MIO 3,7] Therefore, Defendant argues, “strict adherence” to

15 the time limit violates his rights to a fair trial, to due process, and to equal protection.

16 As explained in our calendar notice, although a motion for new trial must be

17 filed within two years of a final judgment, defendants have other avenues that they can

18 pursue beyond that time limit, including executive clemency and the writ of habeas

19 corpus. See Hatch, 2008-NMSC-024, ¶ 6; see also United Nuclear Corp. v. Gen.

2 1 Atomic Co., 93 N.M. 105, 123, 597 P.2d 290, 308 (1979) (“The requirements of due

2 process are not technical, and no particular form of procedure is necessary for

3 protecting substantial rights.”). Therefore, we reject Defendant’s claims regarding

4 violations of his constitutional rights.

5 Defendant appears to argue that the denial of his motion for new trial and

6 “errors in his first appeal,” when considered together, amount to cumulative error.

7 This Court specifically found no cumulative error in State v. Casillas,

8 2009-NMCA-034, ¶ 51, 145 N.M. 783, 205 P.3d 830, and we hold that the district

9 court did not err in denying Defendant’s motion for new trial. When there is no error,

10 “there is no cumulative error.” State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M.

11 393, 981 P.2d 1211.

12 Although Defendant did not specify what arguments were to be included in his

13 motion to amend the docketing statement, the latter two arguments were not included

14 in the docketing statement. Therefore, we consider Defendant’s motion to amend as

15 referring to his argument that the evidence was not discoverable within two years of

16 the judgment and his argument regarding cumulative error. We conclude that these

17 arguments are not viable, and we deny Defendant’s motion. See State v. Sommer, 118

18 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the defendant’s motion

3 1 to amend the docketing statement when the argument offered in support thereof is not

2 viable).

3 Accordingly, for the reasons stated above and in the notice of proposed

4 summary disposition, we affirm.

5 IT IS SO ORDERED.

6 _______________________________ 7 MICHAEL E. VIGIL, Judge

8 WE CONCUR:

9 _________________________________ 10 MICHAEL D. BUSTAMANTE, Judge

11 _________________________________ 12 JONATHAN B. SUTIN, Judge