State v. Bouldin
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,214 5 JONATHAN McKINLEY BOULDIN, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Benjamin Chavez, District Judge 9 Hector H. Balderas, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 18 BUSTAMANTE, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals the district court’s denial of his motion to dismiss the sole 2 charge of commercial burglary. Defendant entered a conditional plea reserving this 3 issue for appeal. [RP 84, 86] Based on our recent decision in State v. Archuleta, ___4 NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted, ___-NMCERT5 ____ (No. 35,005, Jan. 26, 2015), we issued a notice of proposed summary 6 disposition, proposing to reverse. The State has filed a response, objecting to our 7 notice and requesting that we hold this appeal in abeyance or provide the State with 8 a reasonable opportunity to seek guidance from the New Mexico Supreme Court on 9 all pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have 10 provided the State with such an opportunity, and the Supreme Court has denied the 11 State a stay or other remedy that would suspend the precedential value of Archuleta. 12 Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) 13 (“A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme 14 Court order granting the petition does not affect the precedential value of an opinion 15 of the Court of Appeals, unless otherwise ordered by the Supreme Court.”). 16 {2} In its response to our notice, the State simply objects to our proposed 17 disposition without elaboration. [MIO 1] We continue to believe that there are no 18 material factual distinctions to remove this case from the control of our opinion in 2 1 Archuleta. Accordingly, for the reasons stated in our notice, we reverse the district 2 court’s order denying Defendant’s motion to dismiss the commercial burglary charge. 3 {3} IT IS SO ORDERED. 4 5 6 _______________________________________ MICHAEL D. BUSTAMANTE, Judge 7 WE CONCUR: 8 9 LINDA M. VANZI, Judge 10 11 TIMOTHY L. GARCIA, Judge 3
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