State v. Cortez ( 2014 )

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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. 33,487
5 ROBERT CORTEZ,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Mark Terrence Sanchez, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 ZAMORA, Judge.
1 {1} Defendant appeals from the revocation of his probation. We previously issued
2 a notice of proposed summary disposition in which we proposed to affirm. Defendant
3 has filed a memorandum in opposition, which we have duly considered. Because we
4 remain unpersuaded by Defendant’s assertions of error, we uphold the revocation of
5 Defendant’s probation.
6 {2} In his docketing statement Defendant challenged the timeliness of the probation
7 revocation proceedings. He renews that argument in his memorandum in opposition.
8 [MIO 6-10] As we previously observed, the deadline associated with the initial
9 hearing does not appear to have been met. [MIO 6-8] See Rule 5-805(G) NMRA. The
10 State also appears to have filed its petition beyond the five-day window. [MIO 7] See
11 Rule 5-805(F). However, the imposition of sanctions for these delays was not
12 mandatory. See Rule 5-805(L). Although Defendant contends that the district court’s
13 failure to dismiss constituted an abuse of discretion, [MIO 9-10] we disagree.
14 “Extreme sanctions such as dismissal are to be used only in exceptional cases.” State
15 v. Harper, 2011-NMSC-044, ¶ 16, 150 N.M. 745, 266 P.3d 25 (internal quotation
16 marks and citation omitted). The brief delays that occurred in this case do not rise to
17 that level. We therefore reject Defendant’s first assertion of error.
18 {3} Defendant also continues to argue that the district court abused its discretion in
19 electing to revoke his probation and to impose the balance of his original sentence.
2
1 [MIO 10-13] However, insofar as the district court acted within the scope of its
2 sentencing authority, we remain unpersuaded that it abused its discretion. See NMSA
3 1978, § 31-21-15(B) (1989) (authorizing the court to require the probationer to serve
4 the balance of the sentence imposed, upon proof of a violation); State v. Vasquez,
5 2010-NMCA-041, ¶ 41, 148 N.M. 202, 232 P.3d 438 (“[T]here is no abuse of
6 discretion if the sentence imposed is authorized by law.”). Insofar as Defendant
7 entered an unconditional guilty plea, [RP 43-47] we are unpersuaded that Defendant’s
8 claim of cruel and unusual punishment is properly presented. See generally State v.
9 Chavarria, 2009-NMSC-020, ¶¶ 9-10, 146 N.M. 251, 208 P.3d 896 (holding that the
10 entry of an unconditional plea of guilty operates as a waiver of the right to raise a
11 cruel and unusual punishment claim on appeal). And although Defendant asserts that
12 the sentence is “unduly harsh,” [MIO 10] Defendant cannot claim entitlement to
13 judicial clemency. See State v. Padilla, 1987-NMCA-116, ¶ 7, 106 N.M. 420, 744
14 P.2d 548 (observing, relative to probation, that “[t]he suspension or deferment of a
15 sentence is not a matter of right, but a decision reserved to the sound discretion of the
16 sentencing court . . . [which] is considered an act of clemency”).
17 {4} Third and finally, Defendant seeks to advance a claim of ineffective assistance
18 of counsel. [MIO 13-15] Because this issue was not previously articulated, we will
19 treat it as an implicit motion to amend. Insofar as the record contains no support for
3
1 the alleged faults and errors of counsel, [MIO 13-15] a prima facie showing has not
2 been made. See generally State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973
3 P.2d 845 (holding that without a record, we cannot consider claims of ineffective
4 assistance of counsel on direct appeal). We therefore deny the motion to amend, and
5 note in passing that habeas proceedings may provide a more appropriate avenue. See
6 State v. Samora, 2013-NMSC-038, ¶ 23, 307 P.3d 328 (observing that where the
7 record supplies no support for a claim of ineffective assistance of counsel, habeas
8 proceedings are best suited to further development of the issue).
9 {5} Accordingly, for the reasons stated in our notice of proposed summary
10 disposition and above, we affirm.
11 {6} IT IS SO ORDERED.
12 _______________________________
13 M. MONICA ZAMORA, Judge
14 WE CONCUR:
15 ___________________________________
16 RODERICK T. KENNEDY, Chief Judge
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1 ___________________________________
2 MICHAEL E. VIGIL, Judge
5