State v. Hunt

• Court: New Mexico Court of Appeals
• Decided: May 13, 2010
• Docket: 30,049
• Status: Unpublished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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,049

10 KRISTINA YVETTE HUNT,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Douglas R. Driggers, District Judge

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

16 for Appellee

17 Kristina Yvette Hunt 18 Grants, NM

19 Pro Se Appellant

20 MEMORANDUM OPINION

21 FRY, Chief Judge.

22 Defendant pleaded guilty to one count of distributing marijuana and ten counts

23 of trafficking by distribution. [RP 69-70] Judgment and sentence was entered against

24 Defendant on February 7, 2005. [RP 89] Defendant filed a pro se notice of appeal 1 with this Court on December 9, 2009. This Court issued a calendar notice proposing

2 summary dismissal based on Defendant’s untimely notice of appeal and her waiver

3 of her right to appeal by entering into an unconditional guilty plea. Defendant has

4 filed a memorandum in opposition arguing that her notice of appeal should be

5 construed as timely and her counsel was ineffective. Having given due consideration

6 to Defendant’s arguments, we dismiss Defendant’s appeal.

7 In this Court’s calendar notice, we proposed to conclude that dismissal of this

8 appeal was appropriate given Defendant’s waiver of her right to appeal by entering

9 into an unconditional plea agreement. “[A] voluntary guilty plea ordinarily constitutes

10 a waiver of the defendant’s right to appeal his conviction on other than jurisdictional

11 grounds.” See State v. Hodge, 118 N.M. 410, 414, 882 P.2d 1, 5 (1994). Defendant

12 has not asserted that this Court’s reliance on Hodge is inappropriate. See State v.

13 Ibarra, 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing

14 summary disposition is required to come forward and specifically point out errors in

15 fact and/or law.”). We therefore conclude that Defendant waived her right to appeal

16 anything other than jurisdictional issues.

17 To the extent, however, Defendant challenges the legality of her sentence, the

18 legality of a sentence is a jurisdictional issue that is not waived by Defendant’s guilty

19 plea. See State v. Trujillo, 2007-NMSC-017, ¶ 8, 141 N.M. 451, 157 P.3d 16 (stating

2 1 that “a [district] court does not have subject-matter jurisdiction to impose a sentence

2 that is illegal”); Id. (“[A] plea of guilty does not waive jurisdictional errors.”).

3 However, we note that Defendant’s sentence was within the limits prescribed by

4 statute. Defendant was sentenced to eighteen months for one count of distribution of

5 marijuana in violation of NMSA 1978, Section 30-31-22(A)(1)(a) (2006), a fourth

6 degree felony. See NMSA 1978, § 31-18-15(A)(10) (2007) (providing that the basic

7 sentence for a fourth degree felony is eighteen months). Defendant was sentenced to

8 nine years for each of ten counts of trafficking by distribution, a second degree felony.

9 See Section 31-18-15(A)(6) (providing that the basic sentence for a second degree

10 felony is nine years). The sentence imposed by the district court was therefore not

11 illegal. See State v. Chavarria, 2009-NMSC-020, ¶ 12, 146 N.M. 251, 208 P.3d 896

12 (stating that “[t]he Criminal Sentencing Act . . . confers authority on the [district]

13 court to impose a criminal sentence in accordance with its provisions” (citation

14 omitted)); State v. Martinez, 1998-NMSC-023, ¶ 12, 126 N.M. 39, 966 P.2d 747

15 (stating that “[a district] court’s power to sentence is derived exclusively from

16 statute”).

17 This Court also proposed to dismiss Defendant’s appeal for lack of timely

18 notice. We pointed out in our proposed disposition that there is no conclusive

19 presumption of ineffective assistance of counsel in cases involving guilty pleas. See

3 1 State v. Peppers, 110 N.M. 393, 399, 796 P.2d 614, 620 (Ct. App. 1990). In her

2 memorandum in opposition, Defendant contends that this Court should consider her

3 appeal because defense counsel’s failure to file a notice of appeal after Defendant

4 requested he do so amounted to ineffective assistance of counsel. [MIO 2]

5 To establish a prima facie case of ineffective assistance of counsel, [the 6 d]efendant must show that (1) counsel’s performance was deficient in 7 that it fell below an objective standard of reasonableness; and (2) that 8 [the d]efendant suffered prejudice in that there is a reasonable probability 9 that, but for counsel’s unprofessional errors, the result of the proceeding 10 would have been different.

11 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation

12 marks and citation omitted). We conclude that defense counsel’s failure to file a

13 notice of appeal in this case was not prejudicial where Defendant had waived her right

14 to appeal by entering an unconditional guilty plea, and where Defendant has not

15 identified any meritorious jurisdictional arguments.

16 Finally, to the extent Defendant argues ineffective assistance of counsel with

17 respect to other aspects of defense counsel’s representation of Defendant, we do not

18 address these issues due to Defendant’s untimely notice of appeal.

19 CONCLUSION

20 For the reasons stated above and in this Court’s notice of proposed disposition,

21 we dismiss Defendant’s appeal.

22 IT IS SO ORDERED.

4 1 2 CYNTHIA A. FRY, Chief Judge

3 WE CONCUR:

4 5 MICHAEL D. BUSTAMANTE, Judge

6 7 RODERICK T. KENNEDY, Judge