State v. Woolf

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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. 33,053
5 BRETT WOOLF,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 William G.W. Shoobridge, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Law Offices of the Public Defender
13 Jorge A. Alvarado, Chief Public Defender
14 David Henderson, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
1 KENNEDY, Chief Judge.
2 {1} Brett Woolf (Defendant) appeals his judgment and sentence on the grounds that
3 it constitutes cruel and unusual punishment. This Court issued a calendar notice
4 proposing to affirm. Defendant has filed a memorandum in opposition, which we
5 have given due consideration. Unpersuaded, we affirm.
6 {2} In this Court’s calendar notice, we noted that this case has an unusual posture
7 in that it is one of seven appeals filed by Defendant arising out of the district court’s
8 judgments and sentences relating to seven different criminal cases. We further noted
9 that, on appeal, Defendant was challenging the constitutionality of his sentence under
10 both the federal and state constitutions. However, we proposed to conclude that
11 Defendant had failed to preserve any argument that the state constitution provides
12 greater protection than the federal constitution and declined to address that issue in
13 our notice of proposed disposition. Defendant does not argue in his memorandum in
14 opposition that the state constitutional issue was preserved. Therefore, our Opinion
15 is limited to the constitutionality of his sentence under the federal constitution.
16 {3} With respect to Defendant’s claim that his sentence violated the federal
17 constitution’s prohibition against cruel and unusual punishment, we pointed out that
18 Defendant’s sentence was within the parameters defined by our Legislature and was
19 not grossly disproportionate to the crime to which Defendant pleaded guilty.
20 Moreover, to the extent Defendant argued that his four-year habitual offender
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1 enhancement amounted to cruel and unusual punishment, this Court relied on State
2 v. Rueda to propose to conclude otherwise. 1999-NMCA-033, ¶ 16, 126 N.M. 738,
3 975 P.2d 351 (holding that an eight-year habitual offender enhancement on a fourth-
4 degree felony shoplifting charge did not constitute cruel and unusual punishment).
5 {4} In response, Defendant contends that this Court should view the sentences
6 imposed in each of the seven separate criminal prosecutions against him collectively
7 and hold that the collective sentence violates the federal constitutional prohibition
8 against cruel and unusual punishment. Defendant, however, provides no authority for
9 this proposition. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
10 676 P.2d 1329 (recognizing that where a party cites no authority to support an
11 argument, we may assume no such authority exists). Moreover, to the extent
12 Defendant argues that the district court abused its discretion in declining to run any
13 of the enhanced sentences concurrently because he accepted responsibility and
14 pleaded guilty, he provides no authority for the proposition that it is an abuse of
15 discretion for a sentencing judge to refuse to run sentences concurrently when a
16 criminal defendant accepts responsibility by pleading guilty. Id. In this Court’s
17 calendar notice, we directed Defendant to authority, stating that “the trial judge is
18 invested with discretion as to the length of the sentence, whether the sentence should
19 be suspended or deferred, or made to run concurrently or consecutively within the
20 guidelines imposed by the Legislature.” State v. Duran, 1998-NMCA-153, ¶ 41, 126
3
1 N.M. 60, 966 P.2d 768. By failing to provide authority for Defendant’s assertion that
2 the failure to run his sentences concurrently was an abuse of discretion, he has failed
3 to meet his burden of rebutting this Court’s notice of proposed disposition by pointing
4 out errors in law or in fact. See State v. Ibarra, 1993-NMCA-040, ¶ 11, 116 N.M.
5 486, 864 P.2d 302 (“A party opposing summary disposition is required to come
6 forward and specifically point out errors in fact and/or law.”).
7 {5} Accordingly, for the reasons stated above and in this Court’s notice of proposed
8 disposition, we affirm Defendant’s sentence.
9 {6} IT IS SO ORDERED.
10 ____________________________________
11 RODERICK T. KENNEDY, Chief Judge
12 WE CONCUR:
13 ___________________________
14 JONATHAN B. SUTIN, Judge
15 ___________________________
16 J. MILES HANISEE, Judge
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