State v. Medina

• Court: New Mexico Court of Appeals
• Decided: February 1, 2011
• Docket: 30,601
• Status: Unpublished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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,601

10 ROBERT GONZALO MEDINA,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 13 Freddie J. Romero, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Tania Shahani, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 CASTILLO, Chief Judge. 1 Defendant appeals the revocation of his probation. We issued a calendar notice

2 proposing to affirm. Defendant has filed a memorandum in opposition to our calendar

3 notice. We have duly considered the memorandum in opposition, but we are not

4 persuaded by Defendant’s arguments. We therefore affirm.

5 In our calendar notice, we addressed Defendant’s claims that probation was not

6 included in the plea agreement and that the revocation of probation amounted to an

7 increase in his sentence. In response, Defendant concedes that the judgment and

8 sentence was not invalid and concedes that the district court was entitled to place

9 Defendant on probation based on the suspension of all or part of the sentence.

10 However, Defendant continues to claim that the addition of probation in the judgment

11 and sentence was treated by Defendant as “additional conditions of parole,” and the

12 two orders of probation, signed by Defendant after his release from prison, amounted

13 to an increase in his sentence, making his sentence illegal. In the memorandum in

14 opposition, Defendant raises a number of arguments that were not properly preserved.

15 For example, Defendant includes arguments regarding the wording in the judgment

16 and sentence, the lack of a formal proceeding with regard to the orders of probation

17 signed by Defendant, and claims that Defendant was coerced into signing the

18 probation orders and into agreeing that he understood them without advice from an

19 attorney. In order to preserve an issue for appeal, defendant must make a timely

2 1 objection that specifically apprises the trial court of the nature of the claimed error and

2 invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128

3 N.M. 454, 993 P.2d 1280. The court will not search the record to find whether an

4 issue was preserved where defendant did not refer the court to appropriate transcript

5 references. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829.

6 We will not address any arguments that were not properly preserved in the district

7 court. See Varela, 1999-NMSC-045, ¶ 25.

8 The judgment and sentence included a provision that a portion of the underlying

9 sentence be suspended. [RP 46] The judgment stated, “[a]s a condition of the

10 probation and the suspension, the Defendant is required to comply with the standard

11 conditions of probation and with” certain special conditions. [Id.] As indicated by the

12 language in the judgment and as permitted under NMSA 1978, Section 31-20-5

13 (2003), the district court imposed probation after suspending a portion of the sentence.

14 Section 31-20-5(A) limits the total period of probation to five years. When Defendant

15 was released from prison, he signed an order of probation that included a term of less

16 than five years from the date of his release. [RP 50] After violating his probation,

17 Defendant signed an amended order of probation that included a term of less than five

18 years. [RP 98] For both orders, Defendant signed a statement that he read and

19 understood the terms of the probation orders. Defendant did not attempt to change the

3 1 probation requirement included in the judgment and sentence, and he did not

2 challenge the probation orders presented to him. In fact, Defendant signed both

3 probation orders agreeing to abide by probation terms set out in those orders. The

4 district court did not abuse its discretion in determining that Defendant violated the

5 terms of his probation. See State v. Phillips, 2006-NMCA-001, ¶ 10, 138 N.M. 730,

6 126 P.3d 546.

7 For the reasons discussed in this opinion and in our calendar notice, we affirm

8 the district court’s decision.

9 IT IS SO ORDERED.

10 __________________________________ 11 CELIA FOY CASTILLO, Chief Judge

12 WE CONCUR:

13 __________________________________ 14 JAMES J. WECHSLER, Judge

15 __________________________________ 16 LINDA M. VANZI, Judge