State v. Munoz

Annotate this Case

Download PDF

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,815 5 FRANCISCO MUNOZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Gary L. Clingman, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 Law Offices of the Public Defender Jorge A. Alvarado, Chief Public Defender David Henderson, Assistant Appellate Defender Santa Fe, NM 16 for Appellant 17 18 SUTIN, Judge. MEMORANDUM OPINION 1 {1} Defendant Francisco Munoz appeals from the judgment and sentence convicting 2 him of two counts of kidnapping (second degree). [RP144] Defendant raises one 3 issue on appeal, contending that his sentence, which he acknowledges is the maximum 4 allowed by law [DS 2 (¶ 6)], constitutes cruel and unusual punishment given the 5 mitigating circumstances he presented at sentencing. [DS 1-2 (¶¶ 3-7)] 6 {2} The calendar notice proposed summary dismissal. [CN 1] Defendant has filed 7 a memorandum in opposition and a motion to amend the docketing statement that we 8 have duly considered. [MIO] We deny the motion to amend as not viable for the 9 reasons discussed in this Opinion. Finding the memorandum in opposition 10 unpersuasive, we dismiss the appeal. 11 DISCUSSION 12 Original Issue on Appeal 13 {3} In his memorandum in opposition, Defendant continues to argue that this Court 14 has jurisdiction over the cruel and unusual punishment issue on appeal and that it 15 should be decided on the merits. [MIO 4] Defendant recognizes that State v. 16 Chavarria supports this Court’s reasoning in the calendar notice, but argues that 17 waiver of appeal in the plea agreement does not divest this Court of subject matter 18 jurisdiction, relying on State v. Rudy B., 2010-NMSC-045, ¶ 13, 149 N.M. 22, 243 19 P.3d 726. [MIO 4-5] Defendant also argues this Court’s reliance on Chavarria 2 1 “conflates waiver and jurisdiction concepts” [MIO 6] and suggests that this analysis 2 has no place and “constitutes a remnant of an abandoned doctrine” where fundamental 3 error has occurred. [Id.] Defendant insists that, in any case, he did not waive appeal 4 of an unconstitutional sentence and that his sentence constitutes cruel and unusual 5 punishment given his role in the underlying crimes, assistance to the police, and 6 young age. [MIO 7-8] We are not persuaded. 7 {4} Contrary to Defendant’s assertions in the memorandum in opposition, in the 8 calendar notice, this Court exercised its jurisdiction in order to determine that 9 Defendant did not preserve at sentencing nor reserve in the plea agreement his cruel 10 and unusual punishment issue on appeal. This Court also considered Defendant’s 11 claim that, despite lack of preservation and reservation, fundamental error occurred 12 in sentencing Defendant without mitigation. Because Defendant was sentenced to the 13 maximum sentence allowed under the law and in accordance with the plea agreement, 14 we concluded, however, that no fundamental error had occurred. We also pointed out 15 that when a sentence is authorized by statute and complies with the plea agreement, 16 applicable law does not require the sentencing court to mitigate the sentence. Finally, 17 we noted that Defendant did not move to set aside the plea agreement nor has he 18 availed himself of his post-conviction remedies. Under the circumstances, we reject 3 1 Defendant’s request in his memorandum in opposition that we distinguish or overrule 2 Chavarria. 3 {5} Thus, as we discussed in the calendar notice, Defendant pled guilty to two 4 counts of second degree kidnapping. [RP 123] The memorandum confirms that 5 Defendant did not raise his cruel and unusual claim below. [MIO 5] Moreover, 6 Defendant did not reserve any issues for appeal in the plea agreement. [RP 123, 124 7 (¶ 5)] Further, Defendant does not challenge the validity of the guilty plea, and he 8 acknowledges that his sentence is the maximum allowed by statute. [DS 2 (¶ 6)] See, 9 e.g., State v. Gardner, 2003-NMCA-107, ¶ 42, 134 N.M. 294, 76 P.3d 47 10 (“Regardless of what mitigating evidence [the d]efendant presented, the statutory 11 scheme does not require the trial court to depart from the basic sentence.”); see also 12 State v. Vasquez, 2010-NMCA-041, ¶ 41, 148 N.M. 202, 232 P.3d 438 (stating that 13 “there is no abuse of discretion if the sentence imposed is authorized by law”). 14 {6} In State v. Chavarria, our Supreme Court noted that “a sentence authorized by 15 statute, but claimed to be cruel and unusual punishment under the state and federal 16 constitutions, does not implicate the jurisdiction of the sentencing court and, therefore, 17 may not be raised for the first time on appeal.” 2009-NMSC-020, ¶ 14; see also State 18 v. Burdex, 1983-NMCA-087, ¶ 14, 100 N.M. 197, 668 P.2d 313 (holding that a cruel 19 and unusual punishment claim is not jurisdictional and, therefore, may not be raised 4 1 for the first time on appeal). As in Chavarria, in this case, because Defendant’s 2 sentence “was authorized by statute, [his] cruel and unusual punishment claim may 3 not be raised for the first time on appeal.” 2009-NMSC-020, ¶ 14. 4 {7} Moreover, Defendant’s cruel and unusual claim does not constitute fundamental 5 error on direct appeal. As in Chavarria, because Defendant did not reserve any issues 6 for appeal in the plea agreement, and he does not challenge the validity of his guilty 7 plea, we conclude that Defendant waived his right to challenge the constitutionality 8 of his sentence on appeal. See 2009-NMSC-020, ¶ 16. As recognized in Chavarria, 9 there is no fundamental error necessitating reversal of Defendant’s conviction and 10 sentence, and therefore, we do not reach the merits of Defendant’s cruel and unusual 11 punishment claim. See id. 12 {8} In Chavarria, we noted that “a defendant can enter a conditional plea of guilty 13 and reserve the right to challenge the constitutionality of his sentence on appeal.” Id. 14 ¶ 17 (citing Rule 5-304(A)(2) NMRA). Moreover, a defendant has post-judgment 15 remedies if he considers the sentence to be illegal, or in excess of the maximum 16 allowed by law, or if it was imposed “in violation of the constitution of the United 17 States, or of the constitution or laws of New Mexico.” Chavarria, 2009-NMSC-020, 18 ¶ 17 (citing Rule 5-801 NMRA, Rule 5-802(A) NMRA, and NMSA 1978, § 31-11-6 19 (1966)). As in Chavarria, in this case, however, Defendant “did not pursue any of 5 1 these alternative avenues of relief.” Id. Therefore, we hold that Defendant “waived 2 his right to challenge the constitutionality of his sentence on appeal.” Id. ¶ 18. 3 Motion to Amend 4 {9} Defendant moves to amend his docketing statement [MIO 2] to add the 5 following issue: Defendant contends that the sentencing court’s determination that 6 second degree kidnapping charges were serious violent felonies under the Earned 7 Meritorious Deductions Act (EMDA) was not based on legally sufficient findings of 8 fact, and this Court should remand for resentencing. [MIO 8] We deny Defendant’s 9 motion because the issue is not viable. See State v. Moore, 1989-NMCA-073, ¶ 45, 10 109 N.M. 119, 782 P.2d 91 (stating that “we should deny motions to amend that raise 11 issues that are not viable and we should grant motions to amend that raise issues of 12 demonstrated fundamental or jurisdictional error”), overruled on other grounds by 13 State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. 14 {10} Defendant’s plea agreement does not waive an appeal on the grounds that the 15 district court was without authority to impose an illegal sentence. See State v. Tafoya, 16 2010-NMSC-019, ¶ 7, 148 N.M. 391, 237 P.3d 693. NMSA 1978, Section 33-217 34(L)(4)(a)-(n) (2006) enumerates specific “serious violent offenses,” and Section 3318 2-34(L)(4)(o) enumerates further offenses that may be considered serious violent 6 1 offenses “when the nature of the offense and the resulting harm are such that the court 2 judges the crime to be a serious violent offense for the purpose of this section[,]” 3 including “second degree kidnapping, as provided in [NMSA 1978,] Section 30-4-1 4 [(2003).]” See Tafoya, 2010-NMSC-019, ¶ 12. 5 {11} In this case, the record proper indicates that the district court properly 6 considered the two kidnapping convictions to be serious violent offenses for purposes 7 of Section 33-2-34. As discussed in this Opinion, Defendant pled guilty to two counts 8 of second degree kidnapping. [RP 123] The two kidnapping counts were joined and 9 tried with the two counts of murder of the same victims because the two offenses 10 occurred from the same incident and the same conduct or series of acts that were 11 connected or constituted parts of a single scheme or plan. [RP 105, 107] See Ct. App. 12 No. 33,817. Defendant agreed in the plea agreement relating to the kidnappings that 13 “there exists a basis in fact for believing . . . [D]efendant is guilty of the offenses 14 charged [which are two counts of kidnapping and two counts of murder of the two 15 victims].” [RP 127 (¶ 5)] The judgment and sentence provides that the sentence is 16 fifteen years for each count of second degree kidnapping, and the district court 17 determined each of the crimes to be a “Serious Violent Offen[s]e; Justification: 18 [Section] 33-2-34, NMSA 1978[.]” [RP 144] The State filed its sentencing 19 memorandum prior to the sentencing hearing and recommended that the district court 7 1 determine the two kidnapping counts were serious violent offenses pursuant to Section 2 33-2-34. [RP 137-41] Under the circumstances, therefore, we are not persuaded the 3 district court entered an illegal sentence by failing to consider the factual basis or 4 failing to adequately justify providing that the two kidnappings that led to the two 5 murders were serious violent offenses under Section 33-2-34(L)(4)(o)(7). 6 {12} Accordingly, we deny Defendant’s motion to amend. 7 CONCLUSION 8 {13} We dismiss Defendant’s appeal. 9 {14} IT IS SO ORDERED. 10 11 __________________________________ JONATHAN B. SUTIN, Judge 12 WE CONCUR: 13 ___________________________________ 14 RODERICK T. KENNEDY, Chief Judge 15 ___________________________________ 16 CYNTHIA A. FRY, Judge 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.