1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the 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. 30,334
10 MICHAEL LEE CHANDLER,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 Jacqueline R. Medina, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender
20 Santa Fe, NM
21 B. Douglas Wood III, Assistant Appellate Defender
22 Aztec, NM
23 for Appellant
24 MEMORANDUM OPINION
25 SUTIN, Judge.
1 Defendant appeals from a district court judgment and sentence for his seventh
2 offense of driving while intoxicated (DWI) and accompanying offenses. We issued
3 a calendar notice proposing to hold that the State failed to satisfy its burden with
4 respect to two of the prior DWIs. The State has responded with a memorandum in
5 opposition. After due consideration, we reverse and remand for purposes of
6 resentencing.
7 The sole issue in this case involves a challenge to two of the six prior DWI
8 convictions used to enhance Defendant’s sentence. The State does not have to show
9 proof beyond a reasonable doubt of the prior DWI conviction, but instead must
10 provide a preponderance of the evidence. State v. Anaya, 1997-NMSC-010, ¶¶ 11-14,
11 123 N.M. 14, 933 P.2d 223 (filed 1996); State v. Sedillo, 2001-NMCA-001, ¶ 5, 130
12 N.M. 98, 18 P.3d 1051 (filed 2000). Procedurally, the State has the initial burden of
13 establishing a prima facie case that there is a prior DWI conviction. See State v.
14 Duncan, 117 N.M. 407, 412, 872 P.2d 380, 385 (Ct. App. 1994), abrogated on other
15 grounds by State v. Brule, 1999-NMSC-026, 127 N.M. 368, 981 P.2d 782. The
16 defendant is then entitled to come forward with contrary evidence to rebut the prima
17 facie showing. See Duncan, 117 N.M. at 412, 872 P.2d at 385. The State ultimately
18 bears the burden of persuasion. See State v. O'Neil, 91 N.M. 727, 729, 580 P.2d 495,
19 497 (Ct. App. 1978).
20 Here, Defendant challenged the use of a 1985 DWI conviction from Farmington
21 Municipal Court and a 1991 conviction from Aztec District Court. [MIO 3-4] With
2
1 respect to the 1985 conviction, the State relied on an abstract of conviction that
2 indicated that there was a guilty plea, a finding of guilt, and that Defendant had
3 received a three hundred dollar fine. [MIO 3] Although the State correctly implied
4 below that Defendant would not have been entitled to counsel if the sentence had not
5 resulted in jail time [MIO 3], we do not believe that the State satisfied its burden of
6 production to show that this was the case. In State v. Lopez, 2009-NMCA-127, ¶ 43,
7 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224
8 P.3d 1257, this Court held that a single, uncertified judgment and sentence was
9 insufficient to satisfy the State’s burden. We noted that this was particularly a
10 problem in that case because the document was not made part of the record, and the
11 only indication of its contents was presented through counsel. Id. We do not believe
12 that the fact the document in this case is in the record is sufficient to overcome the
13 concerns stated in Lopez. We also note that, although Sedillo, 2001-NMCA-001, ¶¶
14 7-9, relied on a computer printout, it was accompanied with a complaint with a
15 handwritten notation of a guilty plea and a judge’s signature, and a signed waiver of
16 counsel form. We are therefore not persuaded by the State’s reliance on Sedillo.
17 [MIO 7] In the absence of anything beyond the mere printout in this case, we do not
18 believe that the State satisfied its burden with respect to the 1985 conviction under the
19 Lopez analysis.
20 We likewise believe that Lopez answers the challenge to the 1991 conviction.
21 The State relied on documents that did not contain a date of birth or a social security
22 number. [MIO 8] The docketing statement in this appeal indicated that the court
3
1 reviewed its own records, consisting of a microfilm. [DS 4; RP 58] As we stated in
2 Lopez, “[t]he State’s failure in the present case to meet that burden cannot be
3 overcome by the trial court’s willingness to check its own records.” 2009-NMCA-
4 127, ¶ 44. In its memorandum in opposition, the State tries to distinguish Lopez by
5 noting that the district court here called a recess to permit the prosecutor to retrieve
6 the court’s own records for the judge’s review. [MIO 9] Regardless of who retrieved
7 the court records, the problem addressed by Lopez is that this manner of review
8 prevents an adequate record indicating that the State has met its burden. The State
9 acknowledges this problem, but requests that we place the burden on Defendant.
10 [MIO 9-10] We are not inclined to do so, because we are reviewing the record for
11 purposes of determining whether the State satisfied its burden of production and
12 persuasion. This is analogous to a substantial evidence review, where we would not
13 apply our often-stated general rule that an appellant has the burden of providing an
14 adequate record. This holds equally true for the inapplicability of our usual
15 presumption of correctness, which would not be applied as a substitute for a record
16 of sufficient evidence to support a conviction. In the absence of a record that satisfies
17 this Court’s analysis in Lopez, we conclude that the 1991 conviction could not be used
18 for purposes of the sentence at hand.
19 For the reasons discussed in this opinion, we reverse for purposes of re-
20 sentencing.
4
1 IT IS SO ORDERED.
2 __________________________________
3 JONATHAN B. SUTIN, Judge
4 WE CONCUR:
5 _________________________________
6 ROBERT E. ROBLES, Judge
7 _________________________________
8 LINDA M. VANZI, Judge
5