State v. Gilmore

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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. 33,752
5 RANDALL GILMORE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean, Jr., District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 FRY, Judge.
18 {1} Defendant appeals his conviction for fourth degree felony fraud, which was
19 enhanced due to his habitual offender status. [RP 58] Defendant specifically contests
20 the enhancement of his sentence by four years rather than one. Our notice proposed
1 to affirm and Defendant filed a memorandum in opposition. We remain unpersuaded
2 by Defendant’s arguments and therefore affirm.
3 {2} Defendant continues to argue that the district court erred in re-sentencing him
4 and that “the original sentence should have remained in place” [DS 3; MIO 1], and
5 refers to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and
6 State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1, in support of his
7 argument. [DS 3; MIO 2] As addressed in our notice, Defendant entered into a plea
8 agreement where he pled guilty to fraud and to having three felony convictions, two
9 of which would be used for enhancement. [RP 33, 34] At the initial December 13,
10 2013, sentencing hearing, the district court referenced only one of the two sentence
11 enhancements agreed upon in the plea agreement. [RP 44-45, 33] Given this apparent
12 oversight, Defendant maintains that the judgment and sentence [RP 48] improperly
13 sentences him for the two agreed-upon sentencing enhancements. [DS 3; MIO 2]
14 {3} Defendant’s argument is not persuasive, because the plea agreement specifically
15 contemplates that two of his prior felony convictions would be used for enhancement
16 [RP 33, 34] and because any oral statement made by the judge at the sentencing
17 hearing was not binding. See generally State v Jaramillo, 2004-NMCA-041, ¶ 27, 135
18 N.M. 322, 88 P.3d 264 (recognizing that it is well settled that an oral ruling is merely
19 evidence of what a judge intends to do, it is not binding, and it can be changed at any
2
1 time before a written order is filed). Moreover, after the initial December 13, 2013,
2 sentencing hearing, the State filed its January 21, 2014, motion for re-sentencing,
3 where it pointed out the judge’s apparent oversight in referencing only one of the two
4 agreed-upon enhancements. [RP 46] Another sentencing hearing was held [RP 51],
5 at which time the judge noted the oversight and stated his intention to sentence
6 Defendant as contemplated by the parties in the plea agreement. [RP 51] See generally
7 State v. Freed, 1996-NMCA-044, ¶ 8, 121 N.M. 569, 915 P.2d 325 (providing that the
8 habitual offender enhancement “is mandatory if the prosecutor exercises discretion to
9 pursue the enhancement”).
10 {4} Because the written judgment and sentence imposes the enhanced sentence
11 agreed upon in the plea agreement, we conclude that no sentencing error took place.
12 In so concluding, we disagree that the written judgment and sentence somehow
13 violated Defendant’s expectation of finality [MIO 2], because Defendant did not have
14 any reasonable expectation of finality in a sentence that was not in conformance with
15 the plea agreement and had not yet been reduced to writing. We affirm.
16 {5} IT IS SO ORDERED.
17
18 CYNTHIA A. FRY, Judge
19 WE CONCUR:
3
1
2 JAMES J. WECHSLER, Judge
3
4 TIMOTHY L. GARCIA, Judge
4