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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 33,866
5 ROCCO TINOCO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
8 Jennifer E. DeLaney, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Sergio Viscoli, Assistant Appellate Defender
14 B. Douglas Wood III, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 SUTIN, Judge.
1 {1} Defendant appeals from the district court’s order revoking his probation and
2 continuing him on probation. Defendant has filed self-represented pleadings in this
3 Court, but he was represented in district court and was appointed representation on
4 appeal. We address only those pleadings filed by counsel on appeal. Unpersuaded that
5 Defendant’s counseled docketing statement demonstrated error, we issued a notice of
6 proposed summary disposition, proposing to affirm. Defendant filed a counseled
7 response to our notice. Having duly considered Defendant’s response, we conclude
8 that Defendant has not demonstrated that the district court erred. We also conclude
9 that Defendant has raised several new matters in his response that were not raised in
10 the docketing statement and treat them as a motion to amend the docketing statement
11 to add new issues. Because the issues were not preserved and are not viable, we deny
12 the motion.
13 {2} On appeal, Defendant has maintained that he was charged with a probation
14 violation, incarcerated, and persecuted due to his religious beliefs, in violation of the
15 New Mexico Constitution’s right to freedom of religion. [DS unnumbered 2; MIO 1,
16 3-6] Defendant pursues this issue under the demands of State v. Franklin, 1967-
17 NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029,
18 ¶ 24, 103 N.M. 655, 712 P.2d 1. [MIO 1, 4]
2
1 {3} Our notice observed that Defendant raised this issue during his allocution,
2 although no specific instances of religious persecution were presented, [DS 2] and that
3 Defendant admitted his violation of probation [RP 95], which consisted of being
4 arrested for battery on a household member, battery on a police officer, and testing
5 positive for alcohol and marijuana. [RP 66, 68-69, 95; DS 2] Further, we noted that
6 the report of the probation violation that details the facts of the probation violations
7 provided no indication that there was any judicially recognized connection between
8 Defendant’s religion and his criminal actions, nor was there any indication of a
9 religious bias underlying the actions of the officers. Nothing else in the record
10 suggested to us that there was any religious persecution during the probation violation
11 proceedings.
12 {4} In response to our notice, Defendant does not argue that the record reflects
13 religious persecution by the district court. [MIO 4] Defendant seems to argue that the
14 State somehow acknowledged his right to the free exercise of religion when it
15 previously issued a notice of intent not to prosecute Defendant for having the presence
16 of marijuana in his system. [MIO 5-6] Defendant argues that his religion permits him
17 to take marijuana and alcohol. [MIO 6] Defendant did not develop this argument here
18 or in district court, either factually or legally. Because Defendant does not refer us to
19 any judicially recognized connection between Defendant’s religion and the violations
3
1 of the terms of his probation, we hold that Defendant has not demonstrated error. See
2 In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (holding
3 that an appellate court will not review issues raised on appeal that are unsupported by
4 cited authority and may presume that no such authority exists).
5 Motion to Amend
6 {5} Defendant raises the following new matters for the first time in his response to
7 our notice, which we treat as a motion to amend the docketing statement. These new
8 matters are also pursued under the demands of Franklin, 1967-NMSC-151, ¶ 9, and
9 Boyer, 1985-NMCA-029, ¶ 24. [MIO 6, 8] With respect to Defendant’s charge of
10 battery on a household member, Defendant contends: (1) he is not guilty, despite his
11 plea; (2) there is another case resolving those charges, which he will be vindicated of
12 on appeal; (3) the alleged victim of the battery is unstable and not credible; and (4)
13 Defendant was acting in self-defense. [MIO 6-8] With respect to Defendant’s charge
14 of battery on a peace officer, Defendant argues that because he was wrongfully
15 accused, he was acting under duress when he spat on an officer. [MIO 8] Defendant
16 complains that he was forced to choose between his innocence and his financial
17 stability when he admitted the facts as alleged by the State. [MIO 8] Defendant also
18 complains about the length of time he had to wait for a hearing and about the sentence
19 he received. [MIO 8-9]
4
1 {6} In cases assigned to the summary calendar, this Court will grant a motion to
2 amend the docketing statement to include additional issues if the motion (1) is timely,
3 (2) states all facts material to a consideration of the new issues sought to be raised, (3)
4 explains how the issues were properly preserved or why they may be raised for the
5 first time on appeal, (4) demonstrates just cause by explaining why the issues were not
6 originally raised in the docketing statement, and (5) complies in other respects with
7 the appellate rules. State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M.
8 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are
9 not viable, even if they allege fundamental or jurisdictional error. State v. Moore,
10 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superseded by rule on other
11 grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d
12 730.
13 {7} Defendant admitted that he violated his probation on the facts alleged in district
14 court, however, and did not raise or develop facts relative to any of these issues in
15 district court. “We require parties to assert the legal principle upon which their claims
16 are based and to develop the facts in the trial court primarily . . . to alert the trial court
17 to a claim of error so that it has an opportunity to correct any mistake[.]” State v.
18 Harrison, 2000-NMSC-022, ¶ 28, 129 N.M. 328, 7 P.3d 478 (internal quotation marks
19 and citation omitted). As a result, no facts appear in the record to support Defendant’s
5
1 claims of innocence, his justification defenses, his alleged objectionable choice
2 between financial stability and innocence, or any representations about the timing of
3 his probation revocation hearing. Defendant must first raise these matters in district
4 court to develop a record, and he may attempt to do so in the appropriate post-
5 conviction relief proceedings.
6 {8} To the extent that Defendant complains about his sentence, there is no
7 indication that the sentence was illegal. As we observed in our notice, the district
8 court’s lenient and lawful imposition of a 90-day sanction, which the court found
9 Defendant had already served, for his violent offenses that violated his probation and
10 the court’s return of Defendant on probation was not illegal and does not suggest that
11 the court failed to consider Defendant’s allocution or other wrongdoing. [RP 96; DS
12 unnumbered 2] See State v. Nieto, 2013-NMCA-065, ¶ 8, 303 P.3d 855 (holding that
13 “it was within the discretion of the district court to choose to suspend [the
14 d]efendant’s sentence and to decide the parameters of probation most suitable [and
15 that t]he pre-sentence confinement credit need not be credited against the probation
16 time ordered by the district court”).
17 {9} For the reasons stated in our notice and in this Opinion, we hold that Defendant
18 has not established error and deny the motion to amend to add the new issues. We
6
1 affirm the district court’s order revoking his probation and continuing him on
2 probation.
3 {10} IT IS SO ORDERED.
4 __________________________________
5 JONATHAN B. SUTIN, Judge
6 WE CONCUR:
7 _______________________________
8 MICHAEL E. VIGIL, Chief Judge
9 _______________________________
10 LINDA M. VANZI, Judge
7