State v. Burkholder
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-36367 5 CHARLOTTE BURKHOLDER, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 James Waylon Counts, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 13 14 15 Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forsberg, Assistant Appellate Defender Albuquerque, NM 16 for Appellant 17 18 VIGIL, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals her convictions for aggravated assault with intent to kill, 2 aggravated battery (deadly weapon), and tampering with evidence. We issued a 3 calendar notice proposing to affirm. Defendant has responded with a memorandum 4 in opposition and a motion to amend the docketing statement. For the reasons 5 discussed below, we hereby deny the motion to amend and affirm the district court 6 judgment. 7 {2} Motion to Amend: Defendant has moved to amend the docketing statement to 8 add the issue of whether double jeopardy requires merger of her conviction for 9 aggravated assault with intent to kill and her conviction for aggravated battery (deadly 10 weapon). [MIO 2] See Rule 12-208(F) NMRA (providing that the Court may allow 11 an amendment of the docketing statement upon a showing of good cause). As 12 Defendant concedes [MIO 2], her argument is contrary to the holding in State v. 13 Cowden, 1996-NMCA-051, ¶ 10, 121 N.M. 703, 917 P.2d 972. Accordingly, we deem 14 the issue to be not viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 15 782 P.2d 91, superseded by rule on other grounds as stated in State v. Salgado, 199116 NMCA-044, 112 N.M. 537, 817 P.2d 730. 17 {3} Issue: Defendant’s sole issue in the docketing statement claimed that trial 18 counsel was ineffective. Our calendar notice proposed to hold that she had not 19 established a prima facie showing of ineffective assistance of counsel and, to the 2 1 extent that Defendant considers the issue to have merit, it is more appropriately 2 addressed in a habeas corpus proceeding. Defendant’s memorandum in opposition 3 does not dispute the correctness of our calendar notice. See State v. Mondragon, 19884 NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (noting that a party responding to a 5 summary calendar notice must come forward and specifically point out errors of law 6 and fact), superseded by statute on other grounds as stated in State v. Harris, 20137 NMCA-031, ¶ 3, 297 P.3d 374 8 {4} For the reasons set forth above, we affirm. 9 {5} IT IS SO ORDERED. 10 11 __________________________________ MICHAEL E. VIGIL, Judge 12 WE CONCUR: 13 ____________________________ 14 JULIE J. VARGAS, Judge 15 ____________________________ 16 DANIEL J. GALLEGOS, Judge 3
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