State v. Ramirez
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 33,203 5 THOMAS RAMIREZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY 8 Abigail Aragon, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Acting Chief Public Defender 13 Karl Erich Martell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 17 VIGIL, Judge. MEMORANDUM OPINION 1 {1} Defendant Thomas Ramirez appeals his sentence, which was imposed after his 2 probation was revoked. In our notice of proposed summary disposition, we proposed 3 to affirm. In response to this Court s notice, Ramirez has filed a memorandum in 4 opposition, which we have duly considered. As we do not find Defendant s arguments 5 persuasive, we affirm. 6 {2} Ramirez argues that the district court erred in using a conditional discharge for 7 the offense of possession of heroin entered pursuant to the Controlled Substances Act, 8 NMSA 1978, Section 30-31-28 (1972), to enhance his sentence as a habitual offender 9 under NMSA 1978, Section 31-18-17 (2003). [DS 2] In this Court s notice of 10 proposed summary disposition, we proposed to find no error. We relied on the fact 11 that the record reflects that the heroin charge was never conditionally discharged 12 because Ramirez failed to successfully complete the required period of probation. [RP 13 95-96 (stating that Ramirez s probation was revoked and the conditional discharge 14 withdrawn, and ordering Ramirez to be incarcerated for the remainder of his 15 original sentence)] 16 {3} In Ramirez s memorandum in opposition, he continues to argue, pursuant to 17 State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 18 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, that reversal is required. However, he 19 provides no new facts or authorities that persuade us that our proposed summary 2 1 disposition was in error. Our courts have repeatedly held that, in summary calendar 2 cases, the burden is on the party opposing the proposed disposition to clearly point out 3 errors in fact or law. Hennessy v. Duryea, 1998-NMCA-036, ΒΆ 24, 124 N.M. 754, 4 955 P.2d 683. Ramirez has failed to do so. 5 {4} Therefore, for the reasons stated here and in our notice of proposed summary 6 disposition, we affirm. 7 {5} IT IS SO ORDERED. 8 9 __________________________________ MICHAEL E. VIGIL, Judge 10 WE CONCUR: 11 ___________________________________ 12 JAMES J. WECHLSER, Judge 13 ___________________________________ 14 TIMOTHY L. GARCIA, Judge 3
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