State v. Mendoza ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,781
10 MARCO MENDOZA,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Silvia Cano-Garcia, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 M. Anne Kelly, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Liane E. Kerr, Assistant Appellate Defender
20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
1 Defendant Marco A. Mendoza urges this Court to reverse his prison sentence
2 and to remand to the district court for resentencing. Defendant was sentenced to a
3 108-year prison term after pleading guilty to eight counts of criminal sexual
4 penetration in the second degree and no contest to an additional nine counts.
5 Defendant also pleaded guilty to a single count of criminal sexual contact of a minor
6 in the third degree. On appeal Defendant argues that he had a due process right to an
7 independent expert to assist in allocution at sentencing, and that the district court erred
8 in denying his request for State funding to pay for an independent expert evaluation.
9 Defendant’s plea and disposition agreement contained “no agreements as to
10 sentencing” and explicitly stated that the maximum penalty was nine years for each
11 of the seventeen charges of criminal sexual penetration in the second degree and three
12 years for the charge of criminal sexual contact of a minor in the third degree. Pursuant
13 to the plea and disposition agreement, Defendant expressly waived
14 any and all motions, defenses, objections or requests which the defendant
15 has made or raised, or could assert hereafter, to the court’s entry of
16 judgment and imposition of a sentence consistent with this agreement.
17 The defendant waives the right to appeal the conviction that results from
18 the entry of this plea agreement.
19 Defendant acknowledged that his plea was made with the advice of counsel and that
20 he understood the plea and disposition agreement, including “the range of possible
21 sentences for the offenses charged.” The plea and disposition agreement also
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1 provided that “[i]f after reviewing this agreement and any presentence report the court
2 concludes that any of its provisions are unacceptable, the court will allow the
3 withdrawal of the plea.” We affirm the district court, and hold that Defendant waived
4 any defenses at sentencing and his right to appeal.
5 DISCUSSION
6 “[A] plea of guilty or nolo contendere, when voluntarily made after advice of
7 counsel and with full understanding of the consequences . . . operates as a waiver of
8 statutory or constitutional rights, including the right to appeal.” Stave v. Chavarria,
9 2009-NMSC-020, ¶ 9, 146 N.M. 251, 208 P.3d 896 (internal quotation marks and
10 citation omitted). In Chavarria, the defendant pleaded guilty to one count of murder
11 and was sentenced to life in prison. Id. ¶ 1. The defendant later argued on appeal that
12 his sentence constituted cruel and unusual punishment in violation of his
13 constitutional rights. Id. Analyzing waiver provisions identical to those from
14 Defendant’s plea and disposition agreement, the New Mexico Supreme Court held
15 that absent any challenge to the validity of the guilty plea itself, any right to challenge
16 the constitutionality of the sentence is waived. Id. ¶ 16.
17 Where a defendant does not challenge the validity of a plea and disposition
18 agreement, appellate review of a sentence is limited to jurisdictional errors. Id. ¶ 10.
19 In Chavarria, the Court reasoned that the only jurisdictional question with respect to
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1 the defendant’s sentence was “whether [the matter before the court] falls within the
2 general scope of authority conferred upon such court by the constitution or statute.”
3 Id. ¶ 11 (alteration in original) (internal quotation marks and citation omitted).
4 Ultimately, the Court concluded that there was no basis for appeal based on a
5 jurisdictional question where the district court’s sentence was not inconsistent with
6 the applicable sentencing guidelines. Id. ¶ 13.
7 Here, Defendant argues that his sentence was unconstitutional because the
8 district court’s denial of a second presentence report infringed upon his right to due
9 process. We make no determination as to whether due process would have required
10 a second presentence report under the facts of this case. Even if such a due process
11 right did exist, pursuant to Chavarria, Defendant’s decision to proceed with his
12 sentencing without a reservation of his due process claim resulted in an express waiver
13 of the right to raise this challenge on appeal. Thus, Defendant’s basis for appeal is
14 limited to the jurisdictional question of whether his sentence was illegal.
15 Defendant has not presented a jurisdictional argument asserting that his
16 sentence was illegal or outside any authorized sentencing parameters. The offense of
17 criminal sexual penetration in the second degree is a second degree felony. NMSA
18 1978, § 30-9-11(D) (2003) (amended 2009). Consistent with Defendant’s plea and
19 disposition agreement, second degree felonies are punishable by a sentence of nine
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1 years. NMSA 1978 § 31-18-15(A)(4) (2003) (amended 2007). Having pleaded guilty
2 or no contest to seventeen counts, Defendant was subject to incarceration of up to 153
3 years for these counts alone. Defendant does not set out any basis under which this
4 Court can conclude that his 108-year sentence was illegal or inconsistent with the
5 sentence parameters expressly authorized by law. In addition, Defendant never
6 requested to withdraw his plea and disposition agreement.
7 CONCLUSION
8 For the foregoing reasons, Defendant waived any right to assert a constitutional
9 due process argument at the time of sentencing and has provided no jurisdictional
10 basis under which his sentence may be reversed. We affirm.
11 IT IS SO ORDERED.
12
13 MICHAEL D. BUSTAMANTE, Judge
14 WE CONCUR:
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16 JAMES J. WECHSLER, Judge
17
18 TIMOTHY L. GARCIA, Judge
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