State v. Sepulveda

• Court: New Mexico Court of Appeals
• Decided: June 24, 2015
• Docket: 34,219
• Status: Unpublished

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,219

5 JOSEPH SEPULVEDA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 8 J.C. Robinson, District Judge

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 J.K. Theodosia Johnson, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION 1 WECHSLER, Judge.

2 {1} Defendant appeals from the denial of his motion to withdraw his plea agreement

3 and resulting judgment and sentence convicting him of escape from jail, pursuant to

4 NMSA 1978, Section 30-22-8 (1963), and possession of methamphetamine, pursuant

5 to NMSA 1978, Section 30-31-23(E) (2011). [RP 85, 92, 73-771] We issued a notice

6 of proposed summary disposition, proposing to affirm. In response to our notice,

7 Defendant has filed a memorandum in opposition. Having considered Defendant’s

8 arguments, we remain unpersuaded, and therefore affirm the district court.

9 {2} Defendant continues to argue, pursuant to State v. Franklin, 1967-NMSC-151,

10 78 N.M. 127, 428 P.2d 982, and its progeny, that he should have been allowed to

11 withdraw his plea. [DS 4; MIO 2-3] See generally State v. Carlos, 2006-NMCA-141,

12 ¶ 9, 140 N.M. 688, 147 P.3d 897 (“A motion to withdraw a guilty plea is addressed

13 to the sound discretion of the trial court, and we review the trial court’s denial of such

14 a motion only for abuse of discretion.” (internal quotation marks and citation

15 omitted)). As the basis for his argument, Defendant maintains that his plea was not

16 knowing and voluntary for various reasons that were set forth in our proposed

17 disposition. [DS 3-5; MIO 1-2; CN 2-3] See State v. Hunter, 2006-NMSC-043, ¶ 12,

1 18 There are two separate records with different district court numbers in this 19 case; citations are to D-608-CR-2014-00097.

2 1 140 N.M. 406, 143 P.3d 168.(“A trial court abuses its discretion when it denies a

2 motion to withdraw a plea that was not knowing or voluntary.”). Our notice of

3 proposed summary disposition fully addressed Defendant’s arguments relative to this

4 issue, and Defendant’s memorandum in opposition fails to respond to this Court’s

5 analysis of Defendant’s issue. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

6 N.M. 421, 759 P.2d 1003 (stating that “[a] party responding to a summary calendar

7 notice must come forward and specifically point out errors of law and fact,” and the

8 repetition of earlier arguments does not fulfill this requirement), superseded by statute

9 on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.

10 Accordingly, for the reasons stated in this Court’s proposed summary disposition, we

11 conclude that the district court did not abuse its discretion in denying Defendant’s

12 motion to withdraw his plea. We therefore affirm.

13 {3} IT IS SO ORDERED.

14 ________________________________ 15 JAMES J. WECHSLER, Judge

16 WE CONCUR:

17 ________________________________ 18 MICHAEL D. BUSTAMANTE, Judge

3 1 ________________________________ 2 JONATHAN B. SUTIN, Judge