May 20, 2019- State of New Mexico v. Fernando Clyde, No. A-1-CA-37663

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Court of Appeals of New Mexico
Filed 5/20/2019 8:35 AM

Mark
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Reynolds

STATE OF NEW MEXICO,

Plaintiff-Appellee,

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Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee

Nn 44.7 TR M1 $ ~£T)..1.15 WAL A

DCMNCul J. DAU, CMMCL FUDIIC DCICNUel

John C. Bennet, Assistant Appellate Defender
Santa Fe, NM

for Appellant

VANZI, Judge.

3. Defendant appeals from the judgment and sentence convicting him for driving

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while under the influence of influence of intoxicating liquor or drugs (DWI). Our

notice of proposed disposition proposed to summarily affirm. Defendant filed a

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memorandum in opposition (MIO) to the proposed disposition and a motion to amend
the docketing statement. Not persuaded by Defendant’s arguments, we deny the
motion to amend as non-viable and affirm.

2} Defendant continues to argue that the State failed to present sufficient evidence

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to establish that the 1992 Farmington Municipal Court DWI conviction was valid and |

should be considered as a prior conviction for purposes of sentencing. [DS PDF 3].

the basis of the district court’

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Our calendar notice
determination that the prior conviction was valid because the same case number on

the judgment and sentence also appeared on the waiver of counsel, although written

to State v. Franklin, 1967-NMSC-151, § 9, 78 N.M. 127, 428 P.2d 982, and State v. |

Boyer, 1985-NMCA-029, q 24, 103 N.M. 655, 712 P.2d 1. Because Defendant does

nat naint ta anv enarifir arrara
LIVL pyit It ty al opeviriwe VLLVL UV

the validity of the prior conviction for enhancement purposes. See State v.

Mondragon, 1988-NMCA-027, { 10, 107 N.M. 421, 759 P.2d 1003 (stating that a

Sten ene pay a snare “ee aay yenee

7 r respondi Jen tn a a ralandase anticre
Pally FOsponainy lO d sulluniary CdlChadr notice

point out errors of law and fact, and the repetition of earlier arguments does not fulfill

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this requirement), superseded by statute on other grounds as stated in State v. Harris,
2013-NMCa-031, 3, 297 P.3d 374.

33 Defendant also continues to argue that imposing an increased sentence based

on NMSA 1978, Section 66-8-102(J)

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2016), using prior convictions datin
J? or :
2016, when the provision became effective, violates Article II, Section 19 of the New

Mexico Constitution prohibiting ex post facto laws. [DS PDF 4] See N.M. Const. art.

I, §1

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(No ex
(“No ex
contracts shall be enacted by the egislature.”). Our calendar notice proposed to

conclude that the prohibition against ex post facto laws in our Constitution is not at

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provisions of Section 66-8-102, effective July 1, 2016, for repeat DWI offenses,

namely subsection J, was clearly in effect. [CN 3] See State v. Smith, 2004-NMSC-

qq NA A

29 A792 1264 2 Dp
34, || 4/746, 130 IN.IVL. 5 r.

98 ill—amending DWI
statute to provide for harsher penalties for repeat DWI offenders—was actually
signed into effect at the time the defendants committed their crimes, the State
Constitution’s prohibition against ex post facto la

Defendant cannot point to any error in fact or law with the proposed disposition, we

affirm. See Mondragon, 1988-NMCA-027, { 10.

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{44 Defendant filed, 2 as part of his memorandum in opposition, a 1 timely motion to

amend the docketing statement. See State v. Rael, 1983-NMCA-081, 7 8, 100 N.M.

193, 668 P.2d 309 (stating that a motion to amend is timely when filed prior to the

amend the docketing statement when the movant shows good cause for the

amendment. See id. Good cause is shown when the motion is timely and the issues

time on appeal. See State v. Moore, 1989-NMCA-073, J 42, 109 N.M. 119, 782 P.2d

91, superceded by rule on other grounds as recognized in State v. Salgado, ¥ 2,

amend that raise issues that are not viable, even if they allege fundamental or

jurisdictional error. See id. 4 36-51.

Tha loca that Tiefandant caalee tr add sshathae tha Alotelat anit lanbead
{5} Ine issue that Defendant seeks to aaa—wnetner the district court iackea

jurisdiction to enter the sentence imposed—is an issue that can be raised for the first

time on appeal. [MIO 2] See State v. Chavarria, 2009-NMSC-020, § 14, 146 N.M.

89 Lf

251, 208 P.3d 8 6 (recogniz zing that a voluntary guilty plea ordinarily constitutes a
waiver of the defendant’s right to appeal his conviction on other than jurisdictional

grounds, but that an illegal sentence, such as one not authorized by the applicable

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statute, may be challenged for the first time on appeal). We nevertheless conclude that
the issue Defendant seeks to add is not viable. See id. {| 42 (stating that the issues
sought to be added must be viable—i.e., colorable or arguable—and not devoid of
any merit).

6} Defendant argues that the bind-over order and criminal information both charge
Defendant with a third-degree DWI [RP 3], and the judgment and sentence also
identifies the offense as a third-degree

DWI was imposed [RP 166, 168]. The MIO indicates that after the criminal

information was filed, the State realized that Defendant actually had seven prior DWI

at a pretrial hearing. [MIO 3] The amended conditional plea expressly states that

Defendant agrees to the maximum penalties for sentencing as follows: “eighth or

subsequent TYWT ten gar nnd
suuseyu ent Pwilis d sOuullu

prison “ten (10) of which is mandatory, followed by two (2) years of parole[.]” [RP

156] See § 66-8-102(K) (providing sentencing consequences for an eighth or

4 TV convicti saae\
t DWI COLTVICLIOTL).

subseque
{7; We conclude that Defendant had adequate notice of the charges so as to

prepare a defense. See State v. Lyon, 1985-NMCA-082, J 28, 103 N.M. 305, 706 P.2d

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516 (“Defendant must be given notice of the crime charged so as to enable him to
prepare his defense to that crime.”). Defendant pled to the existence of seven prior

DWI convictions, although he contested the validity of one, and was aware of the

relates only to the enhancement of Defendant’s sentence. Although the State initially

charged Defendant with DWI seventh, Defendant was put on notice that the State

original DWI charge. See id. § 27 (“The enhancement sentence is not an element of
the conviction; rather, it is a consequence of the prior DWI conviction.”). Defendant

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enhancement. [MIO 3] Defendant pled to an eighth or subsequent DWI, a second-

degree felony, and signed the plea notifying him of the maximum sentence. [RP 156,
159] We therefore conclude that Defendant suffered no prejudice. See State v

Watkins, 1986-NMCA-080, § 14, 104 N.M. 561, 724 P.2d 769 (“The complaint gave

defendant notice of the crime with which he was charged and enabled him to prepare

Ling ~ en alias « ne owmmadean nnn chante nl eens
his defense; thus, defendant has made no showing o

statute on other grounds as recognized by State v. Gardner, 1998-NMCA-160, § 10,

126 N.M. 125, 967 P.2d 465; see also State v. Warsop, 1998-NMCA-033, {{f} 24-25,

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124 N.M., 683, 954 P.2d 748 (determining that the defendant failed to show how he
was prejudiced by the state’s alleged failure to give him adequate notice of its intent

to seek aggravation of the sentence where the defendant was already on notice of an

and ill will toward the victim, as it was

among the circumstances forming the basis of the retaliation charges on which

defendant was charged). Accordingly, we deny Defendant’s motion to amend. See

raise issues that are not viable’).

83} |Wedo, however, remand to the district court for correction of the judgment to

plea. See Rule 5-113(B) NMRA (“Clerical mistakes in judgments . . . arising from

oversight or omission may be corrected.”).

we affirm and remand to the district court for correction of the judgment and
sentence.

cans mroanmn v7.
{10} Lip SoVU URVLIALU.

1
WE CONCUR:
3 2
SULAR
JENNIFER L. ATTREP, Judge
4 Briana
Ramera
5|BRIANA H. ZAMORA, Judge
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