State v. Bau ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,357
10 DOMINIC BAU,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
13 Sam B. Sanchez, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Will O’Connell, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 SUTIN, Judge.
1 Defendant appeals from the district court’s order denying his motion to
2 reconsider his sentence, which was imposed after Defendant pleaded guilty to criminal
3 sexual penetration of a minor in the third degree and criminal sexual contact of a
4 minor in the third degree. We issued a notice of proposed summary disposition,
5 proposing to affirm. Defendant has filed a memorandum in opposition to our notice.
6 We have considered Defendant’s response and remain unpersuaded that the district
7 court erred. We therefore affirm.
8 Defendant asks whether the district court sufficiently considered the testimony
9 of members of the Taos Pueblo community in denying the motion to reconsider
10 Defendant’s sentence. [DS 8] He asks this Court to reverse his sentence and remand
11 with instructions that he be sentenced no more than severely than a concurrent
12 sentence on both counts. [MIO 2-3] Defendant pursues this contention on appeal
13 pursuant to the demands of State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and
14 State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985). [DS 8; MIO 2]
15 We explained in our notice that, as the appellate court, we review the sentence
16 imposed by the district court for an abuse of discretion. See State v. Cumpton, 2000-
17 NMCA-033, ¶ 12, 129 N.M. 47, 1 P.3d 429. We cannot find an abuse of discretion
18 where the sentence imposed was authorized by law. Id. Also, “whether multiple
19 sentences for multiple offenses run concurrently or consecutively is a matter resting
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1 in the sound discretion of the trial court.” State v. Allen, 2000-NMSC-002, ¶ 91, 128
2 N.M. 482, 994 P.2d 728 (internal quotation marks and citation omitted).
3 In the current case, the district court imposed the basic sentence for Defendant’s
4 crimes that was authorized by law, each carrying a six-year term of imprisonment,
5 under NMSA 1978, Section 31-18-15(A)(8) (2007), and ran the sentences
6 consecutively, followed by two years of parole. [RP 196-99]. The court also
7 determined that the convictions were for serious violent offenses, thereby limiting the
8 earned meritorious deductions for which he would be eligible for time served,
9 pursuant to NMSA 1978, Section 33-2-34(L)(4)(g). [RP 197-98] The district court
10 heard and considered the sentiments that could mitigate his sentence and chose not to
11 do so. “There is no obligation on the part of a judge to depart from the basic sentence.
12 The opportunity for a district court to mitigate a sentence depends solely on the
13 discretion of the court and on no entitlement derived from any qualities of the
14 defendant.” Cumpton, 2000-NMCA-033, ¶ 12. Because “Defendant is entitled to no
15 more than a sentence prescribed by law,” we proposed to affirm. Id.16 Defendant’s response to our notice does not argue that the district court’s
17 sentence was illegal. Rather, he continues to argue that the district court failed to
18 sufficiently consider the testimony of the witnesses who spoke favorably on his
19 behalf. [MIO 2] As we detailed in our notice, the court heard and considered the
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1 testimony and chose not to depart from the basic sentence. [CN 2-4] It was well
2 within the district court’s discretion to do so. See id. Because Defendant has not
3 presented us with adequate grounds for district court error, we affirm the district
4 court’s sentence.
5 IT IS SO ORDERED.
6 __________________________________
7 JONATHAN B. SUTIN, Judge
8 WE CONCUR:
9 _________________________________
10 MICHAEL D. BUSTAMANTE, Judge
11 _________________________________
12 ROBERT E. ROBLES, Judge
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