State v. Head

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 35,144

5 HERBERT HEAD,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Michael E. Martinez, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Tania Shahani, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 SUTIN, Judge. 1 {1} Defendant appeals from a district court order revoking his probation. We issued

2 a calendar notice proposing to affirm. Defendant has filed a motion to amend the

3 docketing statement to add an issue. He has also filed a memorandum in opposition

4 to our calendar notice. For the reasons discussed in this Opinion, the motion to amend

5 is hereby denied and the district court order revoking probation is affirmed.

6 Motion to Amend

7 {2} Defendant has filed a motion to amend the docketing statement to add a new

8 issue. [MIO 1] In cases assigned to the summary calendar, this Court will grant a

9 motion to amend the docketing statement to include additional issues if the motion (1)

10 is timely, (2) states all facts material to a consideration of the new issues sought to be

11 raised, (3) explains how the issues were properly preserved or why they may be raised

12 for the first time on appeal, (4) demonstrates just cause by explaining why the issues

13 were not originally raised in the docketing statement, and (5) complies in other

14 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M.

15 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are

16 not viable, even if they allege fundamental or jurisdictional error. See State v. Moore,

17 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by

18 State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.

2 1 {3} Here, Defendant claims that the district court was precluded from enhancing his

2 sentence as a habitual offender because a probation violation is not a crime that would

3 allow for such enhancement. [MIO 4] However, Defendant’s underlying plea

4 agreement expressly stated that he may be subject to habitual offender enhancement

5 of his sentence if he violated probation. [RP 9] Under these circumstances, this Court

6 has held that the enhancement contemplated by the plea is permitted. See State v.

7 Ortega, 2004-NMCA-080, ¶ 9, 135 N.M. 737, 93 P.3d 758. As such, we conclude that

8 the issue in the motion to amend is not viable.

9 Issue in Docketing Statement

10 {4} Defendant continues to challenge to the sufficiency of the evidence to support

11 the revocation of his probation. [MIO 3] “In a probation revocation proceeding, the

12 [prosecution] bears the burden of establishing a probation violation with a reasonable

13 certainty.” State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To establish a

14 violation of a probation agreement, the obligation is on the [prosecution] to prove

15 willful conduct on the part of the probationer so as to satisfy the applicable burden of

16 proof.” In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see State

17 v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that

18 probation should not be revoked where the violation is not willful, in that it resulted

19 from factors beyond a probationer’s control).

3 1 {5} Here, Defendant pleaded guilty to possession of methamphetamine and was

2 placed on probation. [RP 12-13] The State thereafter filed a motion to revoke

3 probation, alleging a violation of two conditions: the failure to obey the law and the

4 failure to report. [RP 18, 20] The State presented evidence that Defendant assaulted

5 his wife and failed to report to his probation officer. [MIO 2] On appeal, Defendant

6 has specifically argued that the State failed to prove his identity. [MIO 2-3] However,

7 Defendant’s wife testified and her identification of Defendant was implicit in her

8 testimony. [MIO 2-3] In addition, Defendant’s identity was established through

9 various filings in the record. See Lopez v. LeMaster, 2003-NMSC-003, ¶ 32, 133 N.M.

10 59, 61 P.3d 185 (permitting the district court to take judicial notice of its own

11 records). Not only did these filings contain standard identification information such

12 as date of birth and address, but the court could also refer to a photograph of

13 Defendant. [RP 34] As such, we conclude that the evidence was sufficient to support

14 the revocation order.

15 {6} For the reasons set forth in this Opinion, we affirm the district court.

16 {7} IT IS SO ORDERED.

17 __________________________________ 18 JONATHAN B. SUTIN, Judge

19 WE CONCUR:

4 1 _______________________________ 2 TIMOTHY L. GARCIA, Judge

3 _______________________________ 4 M. MONICA ZAMORA, Judge