State v. Gipson ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 34,552
5 RICHARD GIPSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 James Waylon Counts, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Sergio Viscoli, Appellate Defender
14 B. Douglas Wood III, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 ZAMORA, Judge.
19 {1} Defendant Richard Gipson (“Defendant”) was convicted of thirty-five counts
20 of criminal sexual contact of a minor, twelve counts of criminal sexual penetration of
1 a minor, and two counts of bribery or intimidation of a witness resulting in a final
2 judgment and sentence in 2008. [RP 242-48] Defendant timely appealed from that
3 judgment and sentence, resulting in an opinion of this Court affirming his convictions
4 in 2009. See State v. Gipson, 2009-NMCA-053, ¶ 1, 146 N.M. 202, 207 P.3d 1179.
5 Since then, Defendant filed a motion to amend his judgment and sentence and the
6 district court has held a hearing on that motion, although it does not appear that
7 Defendant’s sentence was amended as a result, and no other order of the court appears
8 in the record following that hearing. [RP 591-98, 605] Defendant then filed this appeal
9 challenging his original convictions, as memorialized in the 2008 judgment and
10 sentence. [DS 3] Our calendar notice proposed to dismiss Defendant’s appeal as
11 untimely. [CN 2-3] Defendant has filed a memorandum in opposition to that proposed
12 summary judgment. Having duly considered that memorandum, we now dismiss.
13 {2} Defendant’s memorandum in opposition asserts that his present appeal was
14 taken “within thirty days of the last action taken in his case with respect to the
15 judgment and sentence, [which] is the district court’s hearing as to his motion to
16 correct his judgment and sentence.” [MIO 6] As we noted in our calendar notice,
17 however, Defendant is not appealing anything that happened at that hearing. [CN 2]
18 Indeed, it is unclear from Defendant’s docketing statement, the record proper, or from
19 Defendant’s memorandum in opposition what, if anything, even happened at that
2
1 hearing. The fact that Defendant has not informed this Court of any appealable action
2 of the district court flowing from that hearing demonstrates that Defendant is not
3 attempting to appeal anything that happened at that hearing and we are not persuaded
4 that the mere occurrence of a hearing entitles Defendant to a second appeal of his
5 convictions.
6 {3} Defendant also asserts that his appeal is timely because that hearing was
7 “intended to finalize his judgment and sentence.” [MIO 6] We are not persuaded by
8 that assertion. Defendant’s judgment and sentence were final when originally entered
9 in 2008, otherwise Defendant would not have been entitled to an appeal at that time.
10 And, of course, Defendant was not merely entitled to an appeal back then, he actually
11 pursued an appeal. This Court heard that appeal and affirmed the convictions that
12 Defendant now seeks to challenge. See Gipson, 2009-NMCA-053.
13 {4} Because the judgment and sentence at issue in this case was final more than
14 seven years ago, Defendant’s notice of appeal that was filed on March 20, 2015, is
15 untimely. As a result, we dismiss this appeal as untimely filed.
16 {5} IT IS SO ORDERED.
17
18 M. MONICA ZAMORA, Judge
19 WE CONCUR:
3
1
2 MICHAEL E. VIGIL, Chief Judge
3
4 J. MILES HANISEE, Judge
4