State v. Valdez

• Court: New Mexico Court of Appeals
• Decided: August 30, 2012
• Docket: 32,077
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 32,077

5 TOMMY VALDEZ,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Stephen D. Pfeffer, District Judge

9 Gary K. King, Attorney General 10 Albuquerque, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender 13 Sergio L. Viscoli, Assistant Appellate Defender 14 Albuquerque, NM

15 for Appellant

16 MEMORANDUM OPINION

17 KENNEDY, Judge. 1 Tommy Valdez (Defendant) appeals his conviction for aggravated assault

2 entered pursuant to a conditional guilty plea reserving the right to appeal the denial

3 of his motion to dismiss for a speedy trial violation. In our notice of proposed

4 summary disposition, we proposed to affirm. Defendant has filed a memorandum in

5 opposition, as well as a motion to amend the docketing statement, both of which we

6 have duly considered. As we are not persuaded by Defendant’s arguments, we deny

7 his motion to amend, and we affirm.

8 Speedy Trial

9 In our notice of proposed summary disposition, we pointed out that it appeared

10 that the only motion Defendant actually made in the district court based on a claimed

11 speedy trial violation was an oral motion he made on June 6, 2011, less than one year

12 after the indictment. Since less than a year had passed since the date of the

13 indictment, we proposed to conclude that the time was insufficient to trigger a speedy

14 trial analysis under State v. Garza, which provides that, even in a simple case, the

15 speedy trial analysis is not triggered until there has been at least twelve months’ delay.

16 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387. Therefore, we proposed to hold

17 that the district court did not err in denying the June 6, 2011 motion.

18 In Defendant’s memorandum in opposition, he does not assert that the district

19 court erred in denying the June 6, 2011 motion. Instead, he argues that the district

2 1 court erred in failing to subsequently dismiss the case for a speedy trial violation as

2 of February 6, 2012, when Defendant entered his plea. [MIO 3] However, Defendant

3 does not assert that he actually made a motion to dismiss on that date or sought any

4 other ruling on a renewed claim of a speedy trial violation. Instead, Defendant

5 suggests that because he reserved the right to appeal the speedy trial issue in his plea

6 agreement, the district court should have known that the issue he sought to appeal was

7 not the denial of the June 6 motion, but some later implied motion that he never

8 actually made in the district court. We decline to find any error based on the district

9 court’s failure to rule on a motion that was never made. “It is well-settled law that in

10 order to preserve a speedy trial argument [for appellate review], [the d]efendant must

11 properly raise it in the lower court and invoke a ruling.” State v. Lopez, 2008-NMCA-

12 002, ¶ 25, 143 N.M. 274, 175 P.3d 942. Even when a defendant has filed a motion to

13 dismiss based on speedy trial grounds, this Court will not review the issue if the

14 district court has not made a ruling on the motion, since the speedy trial analysis

15 requires factual determinations that must be made in the first instance in the district

16 court. Id.; see also State v. Olivas, 2011-NMCA-030, ¶ 22, 149 N.M. 498, 252 P.3d

17 722 (same), cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

18 We recognize that Defendant attached a “memorandum of understanding” about

19 certain facts to his plea agreement [RP 51], but this memorandum has no impact on

3 1 our decision in this case. First, it is not clear what effect this memorandum of

2 understanding was intended to have, other than to ensure that Defendant reserved his

3 right to appeal the speedy trial issue, a right that was already reserved in the plea and

4 disposition agreement itself. Although the memorandum recites certain facts, it is not

5 an agreement between Defendant and the State about the factual predicate of a speedy

6 trial claim, since the prosecutor’s signature is “[n]oted as to form only.” [RP 53] The

7 memorandum is not signed by the district court, and it therefore cannot be construed

8 as a set of factual findings relevant to any speedy trial claim Defendant may have had.

9 Because the district court did not err in denying Defendant’s June 6, 2001

10 motion to dismiss on speedy trial grounds, and because it did not err in declining to

11 rule on a subsequent motion that was never made, we find no reversible error on the

12 basis of Defendant’s claim of a speedy trial violation.

13 Motion to Amend the Docketing Statement

14 Valdez moves this Court to permit him to amend his docketing statement to add

15 a claim that his conviction in this case violated his right to be free from double

16 jeopardy because he had already been punished for the assault on the prison guard

17 when he was administratively disciplined by the prison. [MIO 6-11] We deny

18 Defendant’s motion to amend because the issue he seeks to raise is not viable. See

19 State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying the

4 1 defendant’s motion to amend the docketing statement to add a new issue when the

2 issue sought to be added was not viable). The law in New Mexico is that solitary

3 confinement and other disciplinary actions taken by a correctional facility do not give

4 rise to double jeopardy protections. See Washington v. Rodriguez, 82 N.M. 428, 429,

5 483 P.2d 309, 310 (Ct. App. 1971) (holding that disciplinary action by penitentiary

6 authorities, including “solitary confinement, restricted diet, and the denial of certain

7 privileges,” did not bar subsequent prosecution in a criminal action for the act that was

8 the basis of the prison discipline).

9 Therefore, for the reasons stated in this Opinion and in our notice of proposed

10 summary disposition, we affirm.

11 IT IS SO ORDERED.

12 _______________________________ 13 RODERICK T. KENNEDY, Judge

14 WE CONCUR:

15 ___________________________ 16 MICHAEL E. VIGIL, Judge

17 ___________________________

5 1 TIMOTHY L. GARCIA, Judge