State v. Porras

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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. 36,161
5 ADAM PORRAS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
8 J.C. Robinson, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 HANISEE, Judge.
18 {1} Defendant Adam Porras appeals from the district court’s order revoking his
19 probation. This Court issued a notice of proposed disposition in which we proposed
1 to affirm. Defendant has filed a memorandum in opposition, which we have duly
2 considered. Unpersuaded, we affirm.
3 {2} In his memorandum in opposition, Defendant continues to argue that the district
4 erred in failing to hold his adjudicatory hearing on the petition to revoke his probation
5 within the time limit imposed by Rule 5-805(H) NMRA (Issue 1), and he was denied
6 due process based on the delay of almost eleven months between his arrest and the
7 matter being brought before the district court for final disposition (Issue 2). [MIO 1-2;
8 see also DS unpaginated 4]
9 {3} Issue 1: As discussed in our notice of proposed disposition, even if we were to
10 agree with Defendant that his adjudicatory hearing was held seventy days after his
11 initial hearing in violation of Rule 5-805(H), this violation did not require the district
12 court to dismiss the petition to revoke his probation. [See CN 2-4] See id. (“The
13 adjudicatory hearing shall commence no later than sixty (60) days after the initial
14 hearing is conducted.”). But see Rule 5-805(L) (“[T]he court may dismiss the motion
15 to revoke probation for violating any of the time limits in this rule.” (emphasis
16 added)).
17 {4} Issue 2: As discussed in our notice of proposed disposition, “in order to
18 establish a violation of due process, a defendant must show prejudice.” State v. Neal,
19 2007-NMCA-086, ¶ 42, 142 N.M. 487, 167 P.3d 935. [See CN 4] We note that
2
1 Defendant “contends that he was prejudiced by the delay in this case because he was
2 held in detention, mostly in the county jail, for the entire duration of the delay” [MIO
3 2]; however, this assertion, without more, is not sufficient to establish prejudice. See
4 In re Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion
5 of prejudice is not a showing of prejudice.”).
6 {5} Accordingly, we affirm the revocation of Defendant’s probation.
7 {6} IT IS SO ORDERED.
8
9 J. MILES HANISEE, Judge
10 WE CONCUR:
11
12 STEPHEN G. FRENCH, Judge
13
14 HENRY M. BOHNHOFF, Judge
3