STATE V. SMITH, 1985-NMCA-007, 102 N.M.
350, 695 P.2d 834 (Ct. App. 1985)
CASE HISTORY ALERT: affected by
1988-NMSC-068
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
RICHARD V. SMITH, a/k/a DENNIS RICHARD BIEHLE,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1985-NMCA-007, 102 N.M. 350, 695 P.2d 834
APPEAL FROM THE DISTRICT COURT OF QUAY
COUNTY, STANLEY F. FROST, Judge.
Petition for Writ of Certiorari Denied
February 14, 1985
PAUL G. BARDACKE, Attorney General, Santa
Fe, New Mexico, Attorney for Plaintiff-Appellee.
JANET CLOW, Chief Public Defender,
KATHRYN HORMBY, Assistant Public Defender, Santa Fe, New Mexico, Attorneys for
Defendant-Appellant.
Alarid, J., wrote the opinion. WE CONCUR:
THOMAS A. DONNELLY, Chief Judge, C. FINCHER NEAL, Judge
{1} Defendant appeals his
conviction of escape from jail, aggravated battery on a
{*352}
peace officer, aggravated burglary, larceny over $100, and unlawful taking
of a motor vehicle. The sole issue raised in the initial docketing statement
was whether the trial court erred in denying defendant's motion, made on the
day of trial, for a continuance and for substitution of counsel.
See State
v. Franklin, 78 N.M. 127,
428 P.2d 982 (1967). We proposed summary
affirmance of that issue because the grant or denial of a continuance is within
the discretion of the trial court, and in the absence of an abuse of discretion
resulting in prejudice to the defendant, there is no ground for reversal.
State
v. Perez, 95 N.M. 262,
620 P.2d 1287 (1980). Defendant did not show that he
was inadequately represented or prejudiced by counsel's representation.
See
State v. Orona, 97 N.M. 232,
638 P.2d 1077 (1982);
State v. Bell, 90
N.M. 134,
560 P.2d 925 (1977);
State v. McGuinty, 97 N.M. 360,
639 P.2d
1214 (Ct. App.1982). Defendant's first memorandum in opposition to our summary
calendaring did not address this issue and the issue is, therefore, deemed
abandoned.
State v. Rael, 100 N.M. 193,
668 P.2d 309 (Ct. App.1983).
{2} Defendant's first
memorandum in opposition and first motion to amend the docketing statement
raised the issue of whether the trial court imposed an illegal sentence by
sentencing defendant to a parole term of seven years to commence after
completion of his time of imprisonment. The motion to amend was granted because
jurisdictional questions may be raised for the first time on appeal, NMSA 1978,
Crim., Child.Ct., Dom. Rel. & W/C App. Rule 308 (Repl. Pamp.1983);
State
v. Otto, 98 N.M. 734,
652 P.2d 756 (Ct. App.1982);
State v. McNeece,
82 N.M. 345,
481 P.2d 707 (Ct. App.1971), and a trial court has no jurisdiction
to impose an illegal sentence,
State v. Crespin, 96 N.M. 640,
633 P.2d
1238 (Ct. App.1981);
see State v. McNeece. We proposed summary
affirmance as to this issue. Defendant has filed a memorandum in opposition to
the proposed summary affirmance and a second motion to amend the docketing
statement. Finding defendant's memorandum in opposition unpersuasive, we
affirm. In addition, defendant's second motion to amend is denied for the
reasons stated below.
{3} For a first, second or
third degree felony, the required period of parole is two years. NMSA 1978, §
31-21-10 (Cum. Supp.1984). For a fourth degree felony, the required period of
parole is one year.
Id. Pursuant to Section 31-21-10(C), the trial court
imposed a seven-year parole term on defendant for his convictions of a second
degree felony, a third degree felony, and three fourth-degree felonies.
Defendant contends that the meaning of Section 31-21-10(C) is that the parole
term attaches to the total sentence imposed by the court and not to each felony
for which a sentence is imposed. Defendant contends that he should be required
to serve only a two-year period of parole.
{4} When any convict has been
committed under several convictions with separate sentences, the sentences
shall be construed as one continuous sentence for the full length of the
combined sentences. NMSA 1978, §
33-2-39 (Repl. Pamp.1983). The trial court has
discretion to require sentences to be served consecutively.
State v.
Mayberry, 97 N.M. 760,
643 P.2d 629 (Ct. App.1982);
Deats v. State,
84 N.M. 405,
503 P.2d 1183 (Ct. App.1972). Section 33-2-39 is general in its
effect and was applied in considering eligibility for parole under the
predecessor to Section 31-21-10.
Deats v. State; see also State v. Martinez,
92 N.M. 256,
586 P.2d 1085 (1978).
{5} Defendant's contention
would require either (1) that the period of parole for each of his first four
felonies be served while he was serving the basic sentence for the next felony,
(2) that a period of parole not be imposed for four of his felonies, or (3)
that a maximum two-year period of parole be imposed whenever a defendant is
sentenced on more than one felony count. Parole terms must be served after
completion of the time of imprisonment. NMSA 1978, Section
31-18-15(C) (Repl.
Pamp.1981);
see State v. Freeman, 95 N.M. 127,
619 P.2d 572 (Ct.
App.1980).
{*353} Therefore, the first
alternative suggested above could not be implemented. Alternative two violates
the requirement that the trial judge
shall include the period of parole
as part of the sentence in addition to the basic sentence. NMSA 1978, Section
31-18-15(C) (Repl. Pamp.1981);
see State v. Johnson, 94 N.M. 636,
614
P.2d 1085 (Ct. App.1980). There is no statutory authority for the third
alternative. However, the legislature has enacted Section 31-21-10, which we
construe herein. Because the trial judge may impose consecutive sentences and
because Section 33-2-39 applied to eligibility for parole, under the
predecessor to Section 31-21-10, we hold that the trial court did not err in
imposing a seven-year parole term pursuant to the current Section 31-21-10(C).
{6} A motion to amend will be
considered timely when filed prior to the expiration of the time for filing a
memorandum in opposition in cases assigned to the summary calendar.
State v.
Rael. However,
State v. Rael does not appear to contemplate that a
defendant may file multiple motions to amend the docketing statement. We
believe that defendant's second motion to amend (filed December 27, 1984) was
untimely filed because the time to file a memorandum in opposition to the
initially proposed summary calendar expired on Monday, December 10, 1984. NMSA
1978, Crim., Child.Ct., Dom. Rel. & W/C App.R. 207(d)(3) (Repl. Pamp.1983).
Even if defendant's second motion to amend is timely, it must be denied
pursuant to the principles set out in
State v. Rael. Defendant seeks to
raise an issue relating to his right to confront and cross-examine witnesses,
and the admissibility of hearsay. The issue apparently arises because
statements made by co-defendants being held in Kansas were admitted through the
testimony of a sheriff who had spoken to the co-defendants by telephone.
Defendant states that he does not know whether this issue was properly
preserved below.
See App.R. 308. Such an issue is not jurisdictional.
State
v. Baca, 81 N.M. 686,
472 P.2d 651 (Ct. App.1970). Defendant does not
contend that the admission of the sheriff's testimony constituted fundamental
error.
See App.R. 308;
State v. Rogers, 80 N.M. 230,
453 P.2d 593
(Ct. App.1969). Defendant's motion to amend is deficient in that it does not
contain all facts material to this issue.
See State v. Rael. For
example, the motion does not contain sufficient facts from which we may
determine whether the testimony complained of was admissible pursuant to NMSA
1978, Evid. Rules 803 or 804 (Repl. Pamp.1983). Absent fundamental error or
jurisdictional issues, the motion to amend to add this issue should be denied.
State
v. Rael. Defendant also seeks to raise the issue of the sufficiency of the
evidence linking him to the aggravated burglary, the larceny and the unlawful
taking of a motor vehicle. He states that the only evidence presented as to
these charges was the sheriff's testimony regarding statements made by the
co-defendants. Defendant does not contend that the evidence was insufficient if
such testimony was admissible. Because we hold that defendant may not raise the
confrontation and hearsay issue on appeal, there is no issue as to the
sufficiency of the evidence. In addition, the motion to amend is deficient with
respect to this issue in that it does not contain all facts material to the
issue.
See State v. Rael.
{7} The motion to amend is
therefore denied. The trial court's judgment and sentence is affirmed.
WE CONCUR: THOMAS A. DONNELLY, Chief Judge, C. FINCHER NEAL,
Judge