State v. Branham

Full title: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN BRANHAM…

Court: Court of Appeals of New Mexico

Date published: Nov 18, 2021

No. A-1-CA-39502 (N.M. Ct. App. Nov. 18, 2021)

Opinion

A-1-CA-39502

11-18-2021

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN BRANHAM, Defendant-Appellant.

Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee. Bennett J. Baur, Chief Public Defender Santa Fe, NM for Appellant.

MEGAN P. DUFFY, Judge.

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen, District Judge.

Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee.

Bennett J. Baur, Chief Public Defender Santa Fe, NM for Appellant.

MEMORANDUM OPINION

MEGAN P. DUFFY, Judge.

{¶1} Defendant appeals his sentence to the enhanced period of parole outlined in NMSA 1978, Section 31-21-10.1(A) (2007). In this Court's notice of proposed disposition, we proposed to summarily reverse. The State filed a memorandum in opposition, which we have duly considered. Remaining unpersuaded, we reverse. 1

{¶2} In its memorandum in opposition, the State argues that Defendant's sentence to an enhanced period of parole was proper. [MIO 1] The State, however, has not asserted any new facts, law, or argument that persuade this Court that our notice of proposed disposition was erroneous. 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."); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary calendar notice must come forward and specifically point out errors of law and fact, and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore refer Defendant to our analysis therein.

{¶3} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we reverse Defendant's sentence and remand this case to the district court for proceedings consistent with our notice of proposed disposition.

{¶4} IT IS SO ORDERED. 2

WE CONCUR: KRISTINA BOGARDUS, Judge, JANE B. YOHALEM, Judge. 3