State v. Rivera ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-41056
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
VANESSA RIVERA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Jared G. Kallunki, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
{1} Defendant appeals from the district court’s judgment and sentence, convicting
her of driving while intoxicated (DWI) (impaired to the slightest degree), and aggravated
fleeing from a law enforcement officer. Unpersuaded by Defendant’s docketing
statement, we issued a calendar notice proposing to summarily affirm. Defendant filed a
combined memorandum in opposition and motion to amend the docketing statement to
add a challenge to the parole term of her sentence. We issued a second calendar
notice, granting the motion to amend and proposing to vacate Defendant’s parole term,
remand for resentencing, and again proposed to affirm Defendant’s convictions.
Defendant has filed a second memorandum in response to our notice, continuing to
oppose affirmance and support reversal of her sentence. The State has filed a notice of
intent, informing this Court that it will not be filing a memorandum in opposition to our
second notice. See Frick v. Veazey, 1993-NMCA-119, ¶ 2, 116 N.M. 246, 861 P.2d 287(“Failure to file a memorandum in opposition constitutes acceptance of the disposition
proposed in the calendar notice.”).
{2} Defendant’s second memorandum in opposition does not set forth any new
factual or legal argument that persuades us our proposed affirmance of Defendant’s
convictions was incorrect. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M.
421, 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice
must come forward and specifically point out errors of law and fact,” and the repetition
of earlier arguments does not fulfill this requirement.”), superseded by statute on other
grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. Therefore, for
the reasons set forth in our first and second notices, we hold that sufficient evidence
supports Defendant’s convictions for aggravated fleeing from a police officer and DWI.
{3} We also remain persuaded that the district court erred by sentencing Defendant
to a period of parole because Defendant was sentenced to serve time in jail, rather than
in prison, and pursuant to NMSA 1978, Section 31-21-10(D) (2009, amended 2023),
“only prison sentences, not jail sentences, can have a parole requirement.” State v.
Brown, 1999-NMSC-004, ¶ 12, 126 N.M. 642, 974 P.2d 136 (explaining that because
the trial court “sentenced [the defendant] to jail and not to prison, parole was not
authorized,” reasoning that Section 31-21-10(D) discusses “parole only in relation to
prison and not to jail”); see also § 31-21-10(D) (stating, in relevant part, “an inmate who
was convicted of a first, second or third degree felony and who has served the sentence
of imprisonment imposed by the court in an institution designated by the corrections
department shall be required to undergo a two-year period of parole”).
{4} For the reasons provided above, we affirm Defendant’s convictions. However,
because parole was not authorized in the current case, we vacate Defendant’s parole
term, and remand for resentencing.
{5} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
ZACHARY A. IVES, Judge
SHAMMARA H. HENDERSON, Judge