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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
8 STATE OF NEW MEXICO,
9 Plaintiff-Appellee,
10 v. NO. 29,828
11 PHILLIP MORGAN HART,
12 Defendant-Appellant.
13 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
14 J. C. Robinson, District Judge
15 Gary K. King, Attorney General
16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender
19 Karl Erich Martell, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
1 Defendant attempts to appeal from the district court’s May 5, 2009, judgment
2 and sentence. This Court’s first notice of proposed disposition proposed to not
3 address issues concerning the voluntariness of the plea agreement because this Court’s
4 prior opinion resolving those issues was the law of the case. We further proposed to
5 hold that any substantive issues concerning the propriety of the plea agreement were
6 waived when Defendant entered into a non-conditional plea agreement. The only
7 issues reviewable on appeal were those related to the process on re-sentencing and the
8 remand order to allow Defendant the opportunity for allocution. As to those issues,
9 we proposed to hold that permitting the prosecutor to present argument against a lesser
10 sentence did not prejudice Defendant because the same sentence was entered after
11 Defendant was given an opportunity for allocution. Defendant acknowledges that this
12 was the case. [MIO 6]
13 Pursuant to State v. Franklin and State v. Boyer, Defendant reiterates the same
14 arguments raised in the docketing statement. State v. Franklin, 78 N.M. 127, 129, 428
15 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.
16 App. 1985) (stating that on appeal, defense counsel has the duty to advance
17 defendant’s non-meritorious contentions on appeal). Defendant does not otherwise
2
1 point to any errors in the fact or law. We are not persuaded by Defendant’s
2 arguments, and affirm the district court’s judgment and sentence.
3 For these reasons, and those stated in the first notice of proposed disposition,
4 we affirm.
5 IT IS SO ORDERED.
6
7 MICHAEL D. BUSTAMANTE, Judge
8 WE CONCUR:
9
10 CYNTHIA A. FRY, Chief Judge
11
12 JAMES J. WECHSLER, Judge
3