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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRETT WOOLF,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, William
G.W. Shoobridge, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Law Offices of the Public Defender, Jorge
A. Alvarado, Chief Public Defender, David Henderson, Assistant Appellate
Defender, Santa Fe, NM, for Appellant
RODERICK T. KENNEDY, Chief Judge. WE
CONCUR: JAMES J. WECHSLER, Judge, MICHAEL E. VIGIL, Judge
AUTHOR: RODERICK T. KENNEDY
{1} Brett Woolf
(Defendant) appeals his judgment and sentence on the grounds that it
constitutes cruel and unusual punishment. This Court issued a calendar notice
proposing to affirm. Defendant has filed a memorandum in opposition, which we
have given due consideration. Unpersuaded, we affirm.
{2} In this Court’s
calendar notice, we noted that this case has an unusual posture in that it is
one of seven appeals filed by Defendant arising out of the district court’s
judgments and sentences relating to seven different criminal cases. We further
noted that, on appeal, Defendant was challenging the constitutionality of his
sentence under both the federal and state constitutions. However, we proposed
to conclude that Defendant had failed to preserve any argument that the state
constitution provides greater protection than the federal constitution and
declined to address that issue in our notice of proposed disposition. Defendant
does not argue in his memorandum in opposition that the state constitutional
issue was preserved. Therefore, our Opinion is limited to the constitutionality
of his sentence under the federal constitution.
{3} With respect to
Defendant’s claim that his sentence violated the federal constitution’s
prohibition against cruel and unusual punishment, we pointed out that
Defendant’s sentence was within the parameters defined by our Legislature and
was not grossly disproportionate to the crime to which Defendant pleaded guilty.
Moreover, to the extent Defendant argued that his four-year habitual offender
enhancement amounted to cruel and unusual punishment, this Court relied on
State
v. Rueda to propose to conclude otherwise.
1999-NMCA-033, ¶ 16,
126 N.M.
738,
975 P.2d 351 (holding that an eight-year habitual offender enhancement on
a fourth-degree felony shoplifting charge did not constitute cruel and unusual
punishment).
{4} In response,
Defendant contends that this Court should view the sentences imposed in each of
the seven separate criminal prosecutions against him collectively and hold that
the collective sentence violates the federal constitutional prohibition against
cruel and unusual punishment. Defendant, however, provides no authority for
this proposition.
See In re Adoption of Doe,
1984-NMSC-024, ¶ 2,
100
N.M. 764,
676 P.2d 1329 (recognizing that where a party cites no authority to
support an argument, we may assume no such authority exists). Moreover, to the
extent Defendant argues that the district court abused its discretion in
declining to run any of the enhanced sentences concurrently because he accepted
responsibility and pleaded guilty, he provides no authority for the proposition
that it is an abuse of discretion for a sentencing judge to refuse to run sentences
concurrently when a criminal defendant accepts responsibility by pleading
guilty.
Id. In this Court’s calendar notice, we directed Defendant to
authority, stating that “the trial judge is invested with discretion as to the
length of the sentence, whether the sentence should be suspended or deferred,
or made to run concurrently or consecutively within the guidelines imposed by
the Legislature.”
State v. Duran,
1998-NMCA-153, ¶ 41,
126 N.M. 60,
966
P.2d 768. By failing to provide authority for Defendant’s assertion that the
failure to run his sentences concurrently was an abuse of discretion, he has
failed to meet his burden of rebutting this Court’s notice of proposed
disposition by pointing out errors in law or in fact.
See State v. Ibarra,
1993-NMCA-040, ¶ 11,
116 N.M. 486,
864 P.2d 302 (“A party opposing summary
disposition is required to come forward and specifically point out errors in
fact and/or law.”).
{5} Accordingly, for the reasons stated above
and in this Court’s notice of proposed disposition, we affirm Defendant’s
sentence.
RODERICK T. KENNEDY, Chief Judge