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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. A-1-CA-37080 5 GABRIEL MIERA, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Mary L. Marlowe, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender 13 Allison H. Jaramillo, Assistant Public Defender 14 Santa Fe, NM
15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 {1} Defendant Gabriel Miera appeals the district court’s amended order revoking 19 his probation. Unpersuaded by Defendant’s docketing statement, we issued a notice
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1 of proposed summary disposition, proposing to affirm. Defendant filed a 2 memorandum in opposition to this Court’s notice of proposed disposition, including 3 what we construe to be a motion to amend his docketing statement, which we have 4 duly considered. Remaining unpersuaded, we deny the motion to amend, and we 5 affirm. 6 {2} In his docketing statement, Defendant raised three issues. [DS 8-10] In our 7 notice of proposed disposition, we set forth the relevant background information and 8 principles of law and stated our reasons for proposing to affirm. [See generally CN] 9 {3} First, we proposed to conclude that, even if we were to agree with Defendant 10 that his adjudicatory hearing was not timely held, in violation of Rule 5-805(H) 11 NMRA, we would propose to conclude that this violation did not require the district 12 court to dismiss the petition to revoke his probation. [CN 4] See Rule 5-805(L) 13 (providing that “the court may dismiss the motion to revoke probation for violating 14 any of the time limits in this rule” (emphasis added)). In response, Defendant 15 acknowledges the discretionary language of Rule 5-805(L) [MIO 5]; nevertheless, 16 Defendant maintains that the district court erred by not dismissing the petition to 17 revoke in this case. [MIO 4-12] Notably, Defendant’s memorandum in opposition 18 does not point to any specific errors in fact or in law in our proposed disposition to 19 this issue. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d
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1 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is 2 on the party opposing the proposed disposition to clearly point out errors in fact or 3 law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 4 (stating that a party responding to a summary calendar notice must come forward and 5 specifically point out errors of law and fact, and the repetition of earlier arguments 6 does not fulfill this requirement), superseded by statute on other grounds as stated in 7 State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. 8 {4} Related to the untimely adjudicatory hearing issue, Defendant also now asserts 9 that he was not released from custody, in violation of Rule 5-805(H). [MIO 9 (“In this 10 case, the time limits were violated and [Defendant] was not released.”); see also MIO 11 8-9, 11]. See Rule 5-805(H) (“If the probationer is in custody and an adjudicatory 12 hearing is not timely commenced as required by this paragraph, upon its own motion 13 or upon presentation of a release order without a hearing required, the court shall 14 order the probationer immediately released back to probation supervision pending 15 final adjudication.”). However, as discussed in our notice of proposed disposition, the 16 record reflects that an adjudicatory hearing was scheduled for July 18, 2017; the State 17 failed to appear at the adjudicatory hearing, so the district court dismissed the petition 18 to revoke probation and the addendum to revoke probation, released Defendant from 19 custody, and reinstated Defendant on probation; following that hearing, the State filed
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1 an expedited motion to reconsider the dismissal of the petition to revoke probation and 2 the addendum to revoke probation, which was granted; and Defendant failed to appear 3 to the adjudicatory hearing scheduled for August 3, 2017, resulting in a bench warrant 4 for his arrest. [CN 2-3] Defendant has not pointed out any error with these facts. [See 5 MIO 3 (noting that Defendant failed to appear to a hearing on August 3, resulting in 6 a bench warrant)] See Hennessy, 1998-NMCA-036, ¶ 24. Therefore, we are not 7 convinced by the arguments made in Defendant’s memorandum in opposition as to 8 this newly raised issue. 9 {5} Second, we addressed Defendant’s challenge to the sufficiency of the evidence 10 to support that he violated his probation. [CN 4-7] We noted that Probation Officer 11 Wolf Fielenbach testified at the adjudicatory hearing, and the district court found that 12 Defendant violated the terms and conditions of his probation by not reporting to his 13 probation officer. [CN 5] We summarized the testimony as we understood it, and we 14 proposed to conclude that there was sufficient evidence to support the district court’s 15 decision to revoke Defendant’s probation in this case. [CN 6-7] In response, 16 Defendant acknowledges that the probation officer testified regarding “[Defendant’s] 17 failure to report,” but alleges that he did not provide specific details. [MIO 14; see 18 also MIO 3] Defendant also challenges the other allegations made by the State in 19 various petitions to revoke his probation. [MIO 14-15] Unpersuaded by Defendant’s
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1 arguments, we conclude that there was sufficient evidence to support the district 2 court’s finding that Defendant violated his probation. See In re Bruno R., 2003- 3 NMCA-057, ¶ 9, 133 N.M. 566, 66 P.3d 339 (stating that in reviewing a sufficiency 4 of the evidence challenge to support a probation revocation, “we view the evidence 5 in a light most favorable to the [State], indulging all reasonable inferences and 6 resolving all conflicts to uphold the [district] court’s decision”); cf. State v. Leon, 7 2013-NMCA-011, ¶ 37, 292 P.3d 493 (stating that “although [the d]efendant 8 challenges the sufficiency of the evidence supporting each of his probation violations, 9 if there is sufficient evidence to support just one violation, we will find the district 10 court’s order was proper”). 11 {6} Third, we addressed Defendant’s contention that the district court abused its 12 discretion by (a) reinstating the alleged probation violations and by (b) waiting for the 13 prosecutor to appear at the sentencing hearing instead of calling the case and giving 14 the defense an opportunity to be heard on a motion to dismiss for lack of prosecution. 15 [CN 7-8] In our notice of proposed disposition, we suggested that Defendant had not 16 asserted any prejudice that he suffered as a result of the district court’s rulings; we 17 noted that the district court imposed a $50.00 sanction against the prosecutor for 18 arriving twenty minutes late to the sentencing hearing; and we indicated that we did 19 not understand Defendant’s argument that, due to the prosecutor’s tardiness, he was
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1 not given an opportunity to be heard on a motion to dismiss for lack of prosecution 2 at the sentencing hearing. [CN 7-8] In response, Defendant summarizes the 3 proceedings below and asserts, without establishing, that he was prejudiced by the 4 district court’s rulings. [MIO 15-18] See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 5 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of 6 prejudice.”). 7 {7} Additionally, Defendant now raises judicial bias and argues that “his prison 8 sentence is disproportionate to the relatively weak evidence presented by the State that 9 he violated his probation.” [MIO 16-17] Because these latter issues were not raised 10 in Defendant’s docketing statement, we construe their inclusion in the memorandum 11 in opposition as a motion to amend the docketing statement. See Rule 12-208(F) 12 NMRA (permitting the amendment of the docketing statement based upon “good 13 cause shown”); State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 14 309 (setting out requirements for a successful motion to amend the docketing 15 statement). The essential requirements to show good cause for our allowance of an 16 amendment to an appellant’s docketing statement are: (1) that the motion be timely, 17 (2) that the new issue sought to be raised was either (a) properly preserved below or 18 (b) allowed to be raised for the first time on appeal, and (3) that the issues raised are 19 viable. State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled
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1 on other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 2 730. 3 {8} Defendant claims that this was his first alleged probation violation and the 4 district court treated him unfairly. [MIO 17] He further asserts that “[t]his unfair 5 treatment . . . violated [his] right to due process, right to an impartial judge, and by 6 refusing to even call the case stripped [him] of his right to be heard.” [MIO 17] We 7 are not convinced that these are viable claims. See United Nuclear Corp. v. Gen. 8 Atomic Co., 1980-NMSC-094, ¶ 425, 96 N.M. 155, 629 P.2d 231 (stating that adverse 9 rulings do not demonstrate bias); State v. Fernandez, 1994-NMCA-056, ¶ 21, 117 10 N.M. 673, 875 P.2d 1104 (“The mere fact that a judge has consistently ruled for or 11 against one party cannot, standing alone, provide a basis for a finding of judicial 12 bias.”); State v. Burdex, 1983-NMCA-087, ¶ 15, 100 N.M. 197, 668 P.2d 313 (“Here, 13 nothing indicates that [the] defendant’s sentence was statutorily improper; a statutorily 14 lawful sentence does not constitute cruel and unusual punishment.”). Accordingly, 15 Defendant’s motion to amend the docketing statement is denied. See Rael, 16 1983-NMCA-081, ¶ 7 (stating that “allowance of an amendment to the initial 17 docketing statement is discretionary with the appellate court on appeal” and that “we 18 look with disfavor upon the addition of issues not raised in the docketing statement”).
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1 {9} For the reasons set forth in our notice of proposed disposition and herein, we 2 affirm. 3 {10} IT IS SO ORDERED.
4 ______________________________ 5 MICHAEL E. VIGIL, Judge
6 WE CONCUR:
7 _____________________________ 8 J. MILES HANISEE, Judge
9 _____________________________ 10 DANIEL J. GALLEGOS, Judge