State v. Foust
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 5 6 DENNY FOUST, 7 NO. 34,060 & 34,074 (Consolidated) Defendant-Appellant. 8 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 9 Karen L. Parsons, District Judge 10 Hector H. Balderas, Attorney General 11 James W. Grayson, Assistant Attorney General 12 Santa Fe, NM 13 for Appellee 14 Jorge A. Alvarado, Chief Public Defender 15 Kathleen T. Baldridge, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant 18 19 VANZI, Judge. MEMORANDUM OPINION 1 {1} Defendant challenges the district court’s denial of his oral motion to withdraw 2 his plea and proceed to trial. [DS unnumbered 1] This Court issued two calendar 3 notices in this case. In our second calendar notice, we proposed to affirm because 4 Defendant was told, before entering his plea, that his plea was contingent only on the 5 filing, not pursual, of federal charges, and federal charges were indeed filed. [2nd CN 6 4] Defendant has filed a memorandum in opposition to this Court’s second calendar 7 notice, which we have duly considered. Unpersuaded, we affirm. 8 {2} In this Court’s second calendar notice, we proposed to hold that the district 9 court did not abuse its discretion by not allowing Defendant to withdraw his plea 10 because Defendant had been expressly informed prior to entry of the plea that he 11 could only withdraw his plea if federal charges were never filed—and that Defendant 12 could not withdraw his plea in the event that federal charges were filed but later 13 dropped or dismissed. [2nd CN 4; MIO 5] Accordingly, we proposed to conclude that 14 the district court adhered to the terms of the oral agreement made at the plea hearing 15 and that Defendant’s plea was entered into knowingly and voluntarily. [2nd CN 4] See 16 State v. Hunter, 2006-NMSC-043, ¶ 12, 140 N.M. 406, 143 P.3d 168 (“A trial court 17 abuses its discretion when it denies a motion to withdraw a plea that was not knowing 18 or voluntary.”). 2 1 {3} In his memorandum in opposition, Defendant does not dispute the factual 2 recitation provided in our second calendar notice. Defendant agrees that the district 3 court “explained to him that he could only withdraw his plea if the federal government 4 declined to charge him” and that the court specifically told him “that if the federal 5 government charged him, but decided not to proceed with the charge, he could not 6 withdraw his plea.” [2nd MIO 2] Defendant stated that he understood these terms and 7 entered a plea of no contest. [2nd MIO 2, 5] Defendant maintains, however, that he 8 should be allowed to withdraw his plea because he entered the plea “in contemplation 9 of federal proceedings.” [2nd MIO 6] In doing so, Defendant has failed to demonstrate 10 that his plea was not entered into knowingly and voluntarily. 11 {4} Additionally, Defendant has advanced no new arguments in his memorandum 12 in opposition. Accordingly, we conclude that Defendant has failed to demonstrate 13 error on appeal. See State v. Ibarra, 1993-NMCA-040, ¶ 11, 116 N.M. 486, 864 P.2d 14 302 (“A party opposing summary disposition is required to come forward and 15 specifically point out errors in fact and/or law.”). 16 {5} For the reasons stated above and in this Court’s second notice of proposed 17 disposition, we affirm. 18 {6} IT IS SO ORDERED. 3 1 2 __________________________________ LINDA M. VANZI, Judge 3 WE CONCUR: 4 _________________________________ 5 JONATHAN B. SUTIN, Judge 6 _________________________________ 7 J. MILES HANISEE, Judge 4
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.
