City of Gallup v. Arviso

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 CITY OF GALLUP, 3 Plaintiff-Appellee, 4 v. No. 35,142 5 MICHAEL C. ARVISO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY 8 Robert A. Aragon, District Judge 9 Mason & Isaacson 10 Joshua M. Montagnini 11 Gallup, NM 12 for Appellee 13 The Kassakhian Firm, PC 14 Harutiun Kassakhian 15 Irvine, CA 16 L. Helen Bennett PC 17 Linda Helen Bennett 18 Albuquerque, NM 19 for Appellant 1 MEMORANDUM OPINION 2 BUSTAMANTE, Judge. 3 {1} Defendant appeals from the district court’s judgment and sentence, entered after 4 a de novo trial, convicting him for aggravated DWI (refused chemical testing) and 5 open container, both under the Gallup City Code. Unpersuaded that Defendant 6 demonstrated error, we issued a notice of proposed summary disposition, proposing 7 to affirm. Defendant has responded to our notice with a memorandum in opposition. 8 We remain unpersuaded and affirm. 9 {2} On appeal, Defendant argues that the district court erred by imposing a much 10 harsher sentence than that imposed by the magistrate court without permitting 11 Defendant an opportunity to speak in mitigation of his actions for a reduced sentence 12 or to request a treatment option instead of jail time. [DS 5; MIO 1] Defendant 13 concedes that the matter was not preserved below and pursues the issue under the 14 demands of State v. Franklin, 1967-NMSC-151 , ¶ 9, 78 N.M. 127 , 428 P.2d 982 ; and 15 State v. Boyer, 1985-NMCA-029 , ¶ 24, 103 N.M. 655 , 712 P.2d 1 . [DS 5-6; MIO 1-2] 16 {3} Our notice observed that the common law right of allocution in New Mexico 17 is extended only to noncapital felonies. See NMSA 1978, §§ 31-18-15(A) (2007) and 18 31-18-15.1(A) (2009); State v. Setser, 1997-NMSC-004, ¶ 20 , 122 N.M. 794 , 932 19 P.2d 484 . We also noted our case law holds that “in the absence of a statute or rule [2] 1 requiring allocution in misdemeanor cases, it was not error for the trial court to fail to 2 offer defendant an opportunity to speak before sentencing.” State v. Stenz, [3] 1990-NMCA-005 , ¶ 17, 109 N.M. 536 , 787 P.2d 455 . Defendant acknowledges that 4 he was not charged with a felony and that the law does not support his position. [DS 5 4; MIO 1-3] He expresses numerous public policy concerns with denying the right to 6 allocution in misdemeanor cases and the harsh consequences of incarceration. [MIO 7 2-3] Defendant articulates important concerns that should have been raised to the 8 court that sentenced him and are more appropriate for discussion in the political 9 process than in this Court. 10 {4} On the basis of our statute and case law, we cannot find error in this 11 unpreserved issue. For the reasons stated in this opinion and in our notice, we affirm. 12 {5} IT IS SO ORDERED. 13 _______________________________________ 14 MICHAEL D. BUSTAMANTE, Judge 15 WE CONCUR: [16] 17 TIMOTHY L. GARCIA, Judge [18] 19 M. MONICA ZAMORA, Judge