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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
WAYLON JOHNSON,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, John
A. Dean, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender,
Will O’Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant
J. MILES HANISEE, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, MICHAEL E. VIGIL, Judge
{1} Defendant Waylon
Johnson argues that the State failed to establish that his prior aggravated
driving while intoxicated (DWI) conviciton was valid for the purposes of
enhancing his sentence. This Court’s notice proposed to affirm. Defendant filed
a memorandum in opposition to this Court’s proposed disposition. Not persuaded
by Defendant’s arguments, we affirm.
{2} Defendant
essentially reasserts the same arguments made in the docketing statement. [DS
3, MIO 1, 4-5] He continues to argue that the notation “Plea Agreement Asst
City Atty A. Bell & Public Defender,” in the “Final Order on Criminal
Complaint” (Final Order) [RP 58] was insufficient to establish a valid prior
conviction because the evidence did not show that he was represented by counsel
or that he waived counsel. Defendant asserts that the commitment order showing
he pled guilty at arraignment did not indicate if he was represented by
counsel, and the waiver of counsel box was not marked; nor did it refer to a
plea agreement. [RP 61] He also asserts that unlike the “Final Order,” the
order on Defendant’s failure to comply with probation in that case contains a
notation that Defendant “signed a waiver of counsel” [RP 57], and Defendant’s
signed “waiver of counsel” is included [RP 62]. Thus, Defendant essentially
implies that because there was no waiver of counsel form attached to the Final
Order, as there was for the probation violation order, or entry of appearance
by an attorney, the evidence does not establish that he entered into a
counseled plea agreement. [MIO 3] The only other additional facts provided seem
to have come from the transcript of the hearing. Defendant asserts that the
district court judge examined the municipal court file and noted with concern
that the pleadings contained no plea agreement. [MIO 2; RP 57-66] In addition,
the district court apparently took judicial notice of the fact that the city of
Farmington provides a public defender to indigent parties in municipal court
and that the notation “Public Defender” connotes a licensed attorney. [MIO 3]
{3} We are not
persuaded that the district court erred.
See Farmers, Inc. v. Dal
Mach. & Fabricating, Inc.,
1990-NMSC-100, ¶ 8,
111 N.M. 6,
800
P.2d 1063 (stating that the burden is on the appellant to clearly demonstrate
that the trial court erred). While the memorandum in opposition provides
additional facts from the hearing, it does not point to any errors in fact or
law relied upon in this Court’s proposed disposition.
See Hennessy v.
Duryea,
1998-NMCA-036, ¶ 24,
124 N.M. 754,
955 P.2d 683 (“Our courts
have repeatedly held that, in summary calendar cases, the burden is on the
party opposing the proposed disposition to clearly point out errors in fact or
law.”). Moreover, Defendant presented no evidence to the contrary, such as
testimony asserting he was not, in fact, represented by counsel.
See State
v. Bullcoming,
2008-NMCA-097, ¶ 22,
144 N.M. 546,
189 P.3d 679 (“If the
state presents a prima facie case, the defendant may present contrary
evidence.”). Based on the evidence in the record, we conclude that the State
met its burden of proving Defendant’s prior DWI conviction by a preponderance
of the evidence.
See State v. Sedillo,
2001-NMCA-001, ¶¶ 5, 6,
130 N.M. 98,
18 P.3d 1051 (viewing the evidence in the light most favorable to
the state, while recognizing that “[p]roof beyond a reasonable doubt of the
prior DWI convictions is not needed”);
see also Bullcoming,
2008-NMCA-097, ¶ 25 (recognizing holding that “in proving prior convictions for
habitual offender enhancement, the [s]tate need only meet the standard of
preponderance of the evidence”).
{4} For these reasons,
and those stated in this Court’s calendar notice, we affirm.