State v. Hart

• Court: New Mexico Court of Appeals
• Decided: February 16, 2010
• Docket: 29,828
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

8 STATE OF NEW MEXICO,

9 Plaintiff-Appellee,

10 v. NO. 29,828

11 PHILLIP MORGAN HART,

12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY 14 J. C. Robinson, District Judge

15 Gary K. King, Attorney General 16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender 19 Karl Erich Martell, Assistant Appellate Defender 20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION

23 BUSTAMANTE, Judge. 1 Defendant attempts to appeal from the district court’s May 5, 2009, judgment

2 and sentence. This Court’s first notice of proposed disposition proposed to not

3 address issues concerning the voluntariness of the plea agreement because this Court’s

4 prior opinion resolving those issues was the law of the case. We further proposed to

5 hold that any substantive issues concerning the propriety of the plea agreement were

6 waived when Defendant entered into a non-conditional plea agreement. The only

7 issues reviewable on appeal were those related to the process on re-sentencing and the

8 remand order to allow Defendant the opportunity for allocution. As to those issues,

9 we proposed to hold that permitting the prosecutor to present argument against a lesser

10 sentence did not prejudice Defendant because the same sentence was entered after

11 Defendant was given an opportunity for allocution. Defendant acknowledges that this

12 was the case. [MIO 6]

13 Pursuant to State v. Franklin and State v. Boyer, Defendant reiterates the same

14 arguments raised in the docketing statement. State v. Franklin, 78 N.M. 127, 129, 428

15 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.

16 App. 1985) (stating that on appeal, defense counsel has the duty to advance

17 defendant’s non-meritorious contentions on appeal). Defendant does not otherwise

2 1 point to any errors in the fact or law. We are not persuaded by Defendant’s

2 arguments, and affirm the district court’s judgment and sentence.

3 For these reasons, and those stated in the first notice of proposed disposition,

4 we affirm.

5 IT IS SO ORDERED.

6 7 MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:

9 10 CYNTHIA A. FRY, Chief Judge

11 12 JAMES J. WECHSLER, Judge