State v. Gonzalez ( 2015 )

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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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. 33,884
5 OMAR ENRIQUE GONZALEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Darren M. Kugler, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM
14 Sergio J. Viscoli, Assistant Appellate Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VANZI, Judge.
1 {1} Defendant appeals from a district court order revoking his probation and re-
2 sentencing him. We issued a calendar notice proposing to affirm. Defendant has
3 responded with a memorandum in opposition. We affirm.
4 {2} Defendant continues to challenge the district court sentence, which was
5 imposed after Defendant did not contest that he violated probation. Sentences are
6 reviewed for an abuse of discretion, and there is no abuse of discretion where the
7 sentence imposed is one that is authorized by law. See State v. Cumpton, 2000-
8 NMCA-033, ¶ 10, 129 N.M. 47, 1 P.3d 429.
9 {3} Defendant has abandoned issue B. [MIO 3] See State v. Johnson, 1988-NMCA-
10 029, ¶ 8, 107 N.M. 356, 758 P.2d 306. We do not address this argument further,
11 except to note that we remain persuaded that summary affirmance is appropriate based
12 on the analysis in our notice.
13 {4} Defendant has continued to argue that the district court relied on
14 misinformation and denied him the opportunity to correct the error. Specifically,
15 Defendant claims that the judge stated, “He has already killed one person” as the
16 judge walked away from the bench. [MIO 3] It does not appear that this comment is
17 part of the record and therefore is not subject to review on appeal. See In re Aaron L.,
18 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431. In addition, Defendant did not
19 include any alleged correction in his motion for reconsideration, which was denied by
2
1 the district court. [RP 129, 131] Accordingly, we affirm the district court judgment
2 and sentence.
3 {5} IT IS SO ORDERED.
4 __________________________________
5 LINDA M. VANZI, Judge
6 WE CONCUR:
7 _________________________________
8 JONATHAN B. SUTIN, Judge
9 _________________________________
10 CYNTHIA A. FRY, Judge
3