State v. Weinberger ( 2011 )

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 31,318 10 SHANNON WEINBERGER, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Denise Barela-Shepherd, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Jacqueline R. Medina, Assistant 17 Albuquerque, NM 18 for Appellee 19 Jacqueline L. Cooper, Acting Chief Public Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 24 Defendant appeals her sentence and argues that the district court erred in 1 allowing the State to pursue habitual offender proceedings because the State did not 2 present sufficient evidence of a violation of the plea agreement. We issued a calendar 3 notice in which we proposed summary reversal on July 26, 2011. The State has 4 responded with a timely memorandum in response to the notice of proposed summary 5 reversal. 6 In this case, the district court determined that Defendant violated her conditions 7 of release, and therefore the State could seek a habitual offender enhancement under 8 the plea agreement. [DS 4, State’s response 4] In our notice of proposed summary 9 disposition, we proposed to reverse the district court in part because the plea 10 agreement, by its terms, did not contemplate that habitual offender proceedings could 11 be initiated based on a violation of Defendant’s conditions of release. [CN 4-5] In its 12 response, the State agrees that the plea agreement did not permit enhancement of 13 Defendant’s sentence for a violation of her conditions of release and that the 14 enhancement of Defendant’s sentence should be reversed. [State’s response 4, 8] 15 Accordingly, we reverse the district court on this basis. 16 IT IS SO ORDERED 17 _______________________________ 18 JAMES J. WECHSLER, Judge 2 1 WE CONCUR: 2 __________________________________ 3 CYNTHIA A. FRY, Judge 4 __________________________________ 5 MICHAEL E. VIGIL, Judge 3