1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 28,771
5 RANDELL SIMS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Stan Whitaker, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Eleanor Brogan, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 SUTIN, Chief Judge.
18 Defendant appeals the revocation of his probation. We issued a notice of
19 proposed summary disposition, proposing to affirm. Defendant has filed a combined
20 motion to amend the docketing statement and memorandum in opposition. After due
1 consideration, we remain unpersuaded by Defendant’s assertions of error. We
2 therefore affirm.
3 We will begin with the motion to amend. Such a motion will only be granted
4 upon a showing that the supplemental issue is viable. See State v. Moore, 109 N.M.
5 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989) (providing that issues sought to be
6 presented must be viable), superseded by rule as stated in State v. Salgado, 112 N.M.
7 537, 538, 817 P.2d 730, 731 (Ct. App. 1991). By his motion to amend, Defendant
8 argues that the probation revocation proceedings were not conducted in a timely
9 fashion, within the mandates of Rule 5-805 NMRA. [MIO 2-10] We conclude that
10 this issue is not viable.
11 Rule 5-805(L) provides that probation revocation proceedings “shall be
12 dismissed with prejudice” if an adjudicatory hearing is not held within the prescribed
13 time limit. Subpart (H) specifies that an adjudicatory hearing must commence within
14 sixty days after an initial hearing is conducted.
15 Although the record proper is not entirely clear about the course of the
16 proceedings below, it appears that an initial hearing was conducted on December 12,
17 2007. [RP 73] See generally State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438,
18 971 P.2d 829 (holding that where the record is doubtful or deficient, “every
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1 presumption must be indulged by the reviewing court in favor of the correctness and
2 regularity of the [district] court’s judgment” (internal quotation marks and citation
3 omitted)). The adjudicatory hearing was subsequently conducted on January 9, 2008.
4 [RP 76-77] Because the adjudicatory hearing was conducted well within the allotted
5 sixty-day time frame, Rule 5-805 provides no basis for dismissal of the proceedings.
6 We understand Defendant to suggest that the prosecutor’s failure to file a
7 motion to revoke within five days after receiving the report of violation, as well as the
8 district court’s apparent failure to conduct the initial hearing within thirty days after
9 the date of arrest, should have provided grounds for dismissal of the proceedings.
10 [MIO 2-3, 6, 8-10] However, the provision for dismissal is limited to situations in
11 which “adjudicatory hearings” are not timely conducted. See Rule 5-805(L). There
12 is no provision in Rule 5-805 for dismissal of cases such as this, where deadlines
13 associated with the filing of motions and the commencement of initial hearings are
14 exceeded.
15 We have recognized that “delay in the institution and prosecution of probation
16 revocation proceedings . . . may constitute a denial of due process, thereby requiring
17 the [S]tate to waive any right to revoke [the] defendant’s probation.” State v. Chavez,
18 102 N.M. 279, 282, 694 P.2d 927, 930 (Ct. App. 1985). However, a probationer may
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1 only obtain relief pursuant to this principle upon a showing of prejudice. See id.
2 (“The burden of showing actual prejudice by delay in the initiation or prosecution of
3 proceedings to revoke probation rests upon the probationer.”). Defendant has made
4 no effort to establish prejudice.
5 In light of the foregoing, we perceive no basis for Defendant’s claims of
6 fundamental error and ineffective assistance of counsel. See generally State v.
7 Cunningham, 2000-NMSC-009, ¶ 12, 128 N.M. 711, 998 P.2d 176 (stating that
8 fundamental error will not protect “strictly legal, technical, or unsubstantial claims”
9 (internal quotation marks and citation omitted)); Duncan v. Kerby, 115 N.M. 344,
10 348-49, 851 P.2d 466, 470-71 (1993) (stating that prejudice must be shown before a
11 defendant is entitled to relief based on ineffective assistance of counsel); State v.
12 Sanchez, 98 N.M. 781, 783, 652 P.2d 1232, 1234 (Ct. App. 1982) (observing that
13 failure to file a non-meritorious motion is not ineffective assistance). We therefore
14 deny Defendant’s motion to amend. See generally State v. Ibarra, 116 N.M. 486, 490,
15 864 P.2d 302, 306 (Ct. App. 1993) (observing that a motion to amend will be denied
16 if the issue is not viable).
17 Defendant has also renewed his challenge of the sufficiency of the evidence to
18 establish that he violated the terms and conditions of probation. [MIO 10-12] We
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1 remain unpersuaded. As we observed in our notice of proposed summary disposition,
2 the State called Defendant’s probation officer, who testified that Defendant failed to
3 report, failed to obtain permission prior to changing his residence, failed to participate
4 in an intensive supervision program, and failed to participate in urinalysis and/or
5 breath testing. [DS 1; RP 88-89, 120] Defendant admitted the violations. [MIO 11;
6 RP 115] This testimony provided ample support for the district court’s determination
7 that Defendant willfully violated his probation. See, e.g., State v. Neal,
8 2007-NMCA-086, ¶¶ 42, 46, 142 N.M. 487, 167 P.3d 935 (affirming the revocation
9 of probation based in part on the defendant’s admission that he had moved without
10 providing his new address to his probation officer and in part on an officer’s testimony
11 that the defendant had committed another offense); State v. Jimenez,
12 2003-NMCA-026, ¶¶ 5, 10-11, 17, 133 N.M. 349, 62 P.3d 1231 (observing that the
13 probation officer’s testimony that the defendant had failed to report was sufficient to
14 support the revocation of his probation), rev’d on other grounds, 2004-NMSC-012,
15 135 N.M. 442, 90 P.3d 461; State v. Sanchez, 109 N.M. 718, 720, 790 P.2d 515, 517
16 (Ct. App. 1990) (holding that probation may properly be revoked based on the
17 defendant’s admission that he or she violated the terms of probation); see generally
18 State v. Frank, 92 N.M. 456, 458, 589 P.2d 1047, 1049 (1979) (“Intent is subjective
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1 and is almost always inferred from other facts in the case.”); State v. Gattis, 105 N.M.
2 194, 200, 730 P.2d 497, 503 (Ct. App. 1986) (stating that intent can be inferred from
3 an accused’s acts, conduct, and words). This, in turn, provides an adequate basis for
4 the district court’s election to revoke Defendant’s probation. See generally NMSA
5 1978, § 31-21-15(B) (1989); State v. Rivera, 2004-NMSC-001, ¶ 21, 134 N.M. 768,
6 82 P.3d 939 (observing that the courts are vested with “broad discretion to sentence
7 defendants to probationary terms and strictly monitor their compliance”).
8 For the foregoing reasons, we affirm.
9 IT IS SO ORDERED.
10 __________________________________
11 JONATHAN B. SUTIN, Chief Judge
12 WE CONCUR:
13 _________________________________
14 JAMES J. WECHSLER, Judge
15 _________________________________
16 MICHAEL D. BUSTAMANTE, Judge
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