State v. O Marquez ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 28,938
5 OBED MARQUEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Ross C. Sanchez, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 CASTILLO, Judge.
18 Defendant appeals his sentence, arguing that the sentence, which provided for
19 no good time credit, was illegal. In our notice, we proposed to affirm the sentence.
1 Defendant has timely responded. We have considered his arguments and not being
2 persuaded, we affirm.
3 Defendant’s docketing statement framed the issue as the sentence was a
4 violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542
5 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). We proposed to
6 hold that a refusal to allow good time credit was not an increase in Defendant’s
7 sentence. [CN 2] Defendant’s response to our calendar notice appears to concede that
8 point, but argues that the sentence was illegal based on grounds different than those
9 raised in the docketing statement. We believe that is a different issue requiring a
10 motion to amend the docketing statement. See State v. Lara, 109 N.M. 294, 296-97,
11 784 P.2d 1037, 1039-40 (Ct. App. 1989) (reframing issue through motion to amend
12 docketing statement); State v. Anderson, 107 N.M. 165, 169, 754 P.2d 542, 546 (Ct.
13 Ohio App. 1988) (denying a motion to amend that sought to add issue relating to reasonable
14 suspicion when probable cause had been first asserted). We require motions to amend
15 the docketing statement as they require counsel to explain how the new issue was
16 preserved and whether it is viable. State v. Moore, 109 N.M. 119, 128-29, 782 P.2d
17 91, 100-01 (Ct. App. 1989) (setting out discussion regarding procedures for motions
18 to amend the docketing statement), overruled on other grounds by State v. Salgado,
19 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
2
1 While we recognize that a claim asserting that a sentence is illegal can be raised
2 at any time, the rule regarding amendment of docketing statements must be complied
3 with nevertheless. We urge counsel to be more careful about complying with the
4 Rules of Appellate Procedure.
5 Even if we were to consider the arguments made in the memorandum in
6 opposition, we point out that State v. Wyman, 2008-NMCA-113, 144 N.M. 701, 191
7 P.3d 559, cert. granted, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267, provides
8 controlling authority to this Court regarding all the arguments presented by Defendant.
9 Defendant argues that Wyman was incorrectly decided. However, we decline to
10 reconsider that case.
11 For the reasons stated herein and in the notice of proposed disposition, we
12 affirm the conviction.
13 IT IS SO ORDERED.
14 ________________________________
15 CELIA FOY CASTILLO, Judge
16 WE CONCUR:
17 ________________________________
18 CYNTHIA A. FRY, Chief Judge
19 ________________________________
20 RODERICK T. KENNEDY, Judge
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