State v. Sotelo

• Court: New Mexico Court of Appeals
• Decided: January 25, 2018
• Docket: A-1-CA-35984
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-35984

5 REBECCA SOTELO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 8 Fred T. Van Soelen, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson 12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender 15 Kathleen T. Baldridge, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant

18 MEMORANDUM OPINION

19 ZAMORA, Judge.

20 {1} Defendant Rebecca Sotelo appeals from the revocation of her probation. This 1 Court issued a notice of proposed disposition, in which we proposed to reverse

2 Defendant’s probation revocation on the basis that the State had failed to demonstrate

3 that Defendant willfully violated her probation, as it was unclear whether Defendant

4 knew that she was required to report. The State responded to this Court’s notice

5 proposing to reverse by asserting that the evidence establishing non-compliance with

6 a condition of probation is sufficient to justify a finding that the failure was willful

7 unless Defendant comes forward with evidence to excuse the non-compliance. See

8 State v. Parsons, 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99. The State

9 asserted that, because Defendant had not come forward with any evidence at the

10 probation revocation hearing to establish that she was unaware of the requirement to

11 report, it had satisfied its burden.

12 {2} This Court issued a third calendar notice applying Parsons and proposing to

13 agree with the State. We proposed to rely on the analysis contained in this Court’s first

14 notice of proposed disposition wherein we suggested that testimony by the

15 Defendant’s probation officer that Defendant was supposed to report to him on March

16 3, 2016, but did not report until August 2016 was sufficient to establish a violation.

17 Thus, we proposed to conclude in our third calendar notice that Defendant then had

18 the burden of establishing below that the violation was not willful and, as Defendant

2 1 had failed to come forward with any evidence that she was unaware of the requirement

2 to report, affirmance appeared appropriate.

3 {3} In response, Defendant has filed a memorandum in opposition asserting that she

4 is relying on the arguments made in her previous memorandum in opposition filed on

5 April 5, 2017. We note, however, that Defendant’s April 5, 2017, memorandum in

6 opposition does not address the burden shifting established by Parsons and on which

7 this Court’s third notice of proposed disposition is based. A party responding to a

8 summary calendar notice must come forward and specifically point out errors of law

9 and fact, and the repetition of earlier arguments does not fulfill this requirement. See

10 State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003.

11 Accordingly, we affirm.

12 {4} IT IS SO ORDERED.

13 14 M. MONICA ZAMORA, Judge

15 WE CONCUR:

16 17 STEPHEN G. FRENCH, Judge

3 1 EMIL J. KIEHNE, Judge