May 14, 2019- State of New Mexico v. Frank Gutierrez, No. A-1-CA-37718

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-37718
5 FRANK GUTIERREZ,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
8 Pedro G. Rael, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Mary Barket, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 HANISEE, Judge.
18 	{t} 	Defendant appeals from the district court's judgment and sentence entered
19 pursuant to a plea agreement by which Defendant plead guilty to three charges of ·
20 criminal sexual contact of a minor (CSCM) in the second degree, whittled down from
21 	the sixty-five counts with which he was charged. 	[RP 	1-13, 	141-46, 	184-87]
Court of Appeals of New Mexico
Filed 5/14/2019 8:22 AM

1 Defendant's 	appeal 	challenges 	his 	sentence. 	Unpersuaded 	that 	Defendant
2 demonstrated that the district court erred by increasing his sentence or that he was
3 denied effective assistance of counsel, we issued a notice of proposed summary
4 disposition, proposing to affirm. Defendant has responded to our notice with a
5 memorandum in opposition. 	We remain unpersuaded and affirm.
6 	{2} 	Defendant's memorandum in opposition does not respond to our proposed
7 analysis of his claim of ineffective assistance of counsel. The claim, therefore, is
8 deemed abandoned. See State v. Salenas, 1991-NMCA-056, 12, 112 N.M. 268,814
9 P.2d 136 (stating that where a party has not responded to this Court's proposed
10 	disposition of an issue, that issue is deemed abandoned). This opinion focuses on
11 	Defendant's remaining claim that he had a reasonable expectation of finality in the
12 district court's initial, orally pronounced sentence and, therefore, the increased
13 	sentence set forth in the ensuing written judgment and sentence violated the
14 prohibition against double jeopardy. We avoid the unnecessary reiteration of facts and
15 	procedure contained in our proposed analysis and respond only to the arguments
16 Defendant raises in opposition to our notice.
17 	{3} 	Again relying on State v. Porras, 1999-NMCA-016, 126 N.M. 628,978 P.2d
18 	880, Defendant continues to argue that he had a reasonable expectation of finality in
2

1 the orally pronounced sentence because he had begun to serve that sentence. [MIO
2 6-7] As we set forth in our notice, inStatev. Soutar, 2012-NMCA-024, 272 P.3d 154,
3 a more recent case, this Court made clearer and more supported statements about the
4 finality of judgments and sentences and when double jeopardy attaches, and refused
5 to apply Porras. Soutar,2012-NMCA-024, ,-r,-r 11-14. InSoutar, we explained that our
6 case law is clear that "[a]n oral sentence is not 'a final judgment and is subject to
7 change until reduced to writing.'" Id. ,-r 13 (quoting State v. Rushing, 1985-NMCA-
8 091, ,-r 6, 103 N.M. 333, 706 	P.2d 875). But see Porras, 1999-NMCA-016, ,-r 7
9 (stating that "a trial court generally cannot increase avalid sentence once a defendant
10 begins serving that sent~nce," but relying on cases in which final writtenjudgments
11 	and sentences were entered). In Soutar, we rejected the argument that jeopardy
12 attaches at the oral sentencing. 2012-NMCA-024, ,-r,-r 11-12 (stating that "jeopardy
13 	attaches when the court enters a judgment and imposes a sentence on the guilty plea"
14 (intel'.llal quotation marks and citation omitted)). Relying on other recent Supreme
15 	Court precedent, this Court stated that "a trial court's oral announcement of a result
16 is not final, and parties to the case should have no reasonable expectation of its
17 finality." 	Soutar, 2012-NMCA-024, ,-r 13 (internal quotation marks and citation
18 	omitted). We further stated in Soutar that "entry of a judgment and sentence carries
3

1 with it an 'expectation of finality.'" Id. 112. Even though our notice compiled such
2 clear statements from Supreme Court precedent, we nevertheless acknowledged that
3 there appear to be factors that can influence our assessment 	of a legitimate
4 expectation of finality in an oral sentence:
5
6
7
8
9
[T]he analytical touchstone for double jeopardy is the defendant's
legitimate 	expectation 	of finality 	in the 	sentence, 	which may 	be
influenced by many factors such as the completion of the sentence, the
passage of time, the pendency of an appeal or review of the sentencing
determination, or the defendant's misconduct in obtaining the sentence.
10 Id. ( alteration, internal quotation marks, and citation omitted).
11 	{4} 	Applying these factors, our notice observed that, like in Soutar, there_ is no
12 indication here that Defendant began serving the orally announced sentence. See id.
13 1 14 ("[The d]efendant has done nothing to explain how he began serving his
14 sentence after the oral sentence was imposed beyond simply stating that he did so.").
15 	We note that in Porras the trial court orally imposed a ninety-day sentence to be
16 served in the county jail and that the defendant had served forty-two days in county
17 jail when the trial court held another sentencing hearing, and he had served seventy-
18 	nine days of the ninety-day sentence when the trial court resentenced Defendant to
19 serve a total of eleven years. 1999-NMCA-O 16, 113 -;5. As we explained in our notice,
20 Defendant in the current case had been in custody throughout the proceedings, and
4

1 the written judgment and sentence shows that Defendant had not yet been transferred
2 	from the local county detention center to serve his sentence in the Department of
3 Corrections. [RP 186] Our notice further observed that in the current case whatever
4 degree of an expectation of finality in the oral sentence Defendant may have had, he
5 had that expectation for only a single day, at most. As our notice explained, the
6 district court entered a sua·sponte order to reconsider sentence the day after its oral
7 pronouncement of sentence. [RP 153} Based on the foregoing, we hold that the
8 current case is more akin to Soutar in that there is an insufficient showing that
9 Defendant began to serve his sentence and no showing that Defendant served a
10 substantial portion of his oral sentence that would create a legitimate expectation of
11 	finality.
12 {5} 	Lastly, as our notice explained, the district court reconsidered its orally
13 	announced sentence because of the threats Defendant made to the safety of the young
14 children he abused, threats made immediately after he expressed apology and remorse
15 	to the district court. [RP 160] The district court, thus, essentially found that the lower
16 sentence was procured by misrepresentation, akin to the defendants in Soutar and
17 Rushing. [Id.]
5

1 {6} 	Defendant has not persuaded us that circumstances existed to 	create a
2 reasonable expectation of finality in the oral sentence; thus, Defendant is subject to
3 the general rules that "[ a]n oral sentence is not a final judgment and is subject to
4 change until reduced to writing[,]" Soutar, 2012-NMCA-024,, 13, and "jeopardy
5 attaches when the court enters a judgment and imposes a sentence on the guilty plea."
6 State v. Angel, 2002-NMSC-024,, 10, 2 132 N.M. 501, 51 P.3d 1155. Accordingly,
7 we hold that double jeopardy principles did not preclude the district court from
8 reconsidering the orally announced sentence and imposing a greater sentence.
9 {7} 	For the reasons stated in this opinion and our notice, we affirm Defendant's
10 sentence.
11 	{8}
12
13
IT IS SO ORDERED.
14 WE CONCUR:
J. MILES HANISEE, Judge
6