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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,949
10 JAVIER HURTADO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Stephen Bridgforth, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Law Office of Craig C. Kling
18 Craig C. Kling
19 San Diego, CA
20 for Appellant
21 MEMORANDUM OPINION
22 BUSTAMANTE, Judge.
1 Defendant was convicted of DWI and driving on a suspended or revoked
2 license. Defendant challenges the sufficiency of the State’s showing with respect to
3 the enhancement of his sentence based on prior DWI convictions. We proposed to
4 affirm in a calendar notice, and Defendant responded with a memorandum in
5 opposition. We have carefully considered Defendant’s arguments, but we are not
6 persuaded that affirmance is not the correct disposition in this case. We therefore
7 affirm.
8 Defendant continues to claim that the prior convictions used to enhance his
9 sentence were invalid because there is no evidence that counsel was provided or there
10 is no waiver of counsel on file. In our calendar notice, we proposed to hold that
11 presentation of a certified judgment and sentence, along with the admissions in the
12 plea agreement constituted a sufficient showing by the State that the prior convictions
13 were valid. We also proposed to hold that Defendant failed to present documentary
14 evidence or testimony to support his collateral attack on the prior DWI convictions,
15 and moreover, that Defendant agreed, in his plea agreement, to waive any collateral
16 attack on the validity of the convictions.
17 In his memorandum in opposition, Defendant makes his arguments pursuant to
18 State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M.
2
1 655, 712 P.2d 1 (Ct. App. 1985). Along with other arguments that were previously
2 made, Defendant argues that this case involves a “complete lack of waiver form” and
3 not just a missing signature, and therefore, this case should be assigned to the general
4 calendar. As discussed in our calendar notice, Defendant voluntarily entered into a
5 plea agreement that listed five prior DWI convictions. [RP 48-49] Defendant
6 admitted that the convictions were valid, and that his constitutional rights, including
7 the right to counsel, were explained to him at the time the convictions were obtained.
8 [RP 50] Defendant waived any collateral attack on the validity of the convictions and
9 agreed to not contest the validity of the convictions. [RP 50-51] The agreement was
10 signed by Defendant and approved by the district court. We hold that the prior
11 convictions were valid for purposes of enhancement of Defendant’s sentence.
12 For the reasons discussed above and in our calendar notice, we affirm
13 Defendant’s convictions and the enhancement of his sentence.
14 IT IS SO ORDERED.
15
16 MICHAEL D. BUSTAMANTE, Judge
17 WE CONCUR:
3
1
2 CYNTHIA A. FRY, Chief Judge
3
4 TIMOTHY L. GARCIA, Judge
4