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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. 31,945
5 GARY MAYLON SANDERS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 William H. Brogan, District Judge
9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Gary Sanders
14 Las Cruces, NM
15 Pro Se Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
1 Defendant, Gary Maylon Sanders, appearing pro se, appeals from the district
2 court’s denial of his motion to reconsider sentence. The district court concluded it
3 lacked jurisdiction to consider the motion because it was not timely filed pursuant to
4 Rule 5-801(B) NMRA. We affirm.
5 BACKGROUND
6 Pursuant to a plea and disposition agreement dated June 19, 2006, Defendant
7 pled no contest to multiple offenses and admitted to having a prior felony conviction.
8 He was sentenced on October 6, 2006, to a term of 20 years’ imprisonment.
9 Defendant filed an amended petition for writ of habeas corpus on June 23, 2009,
10 which the district court denied on September 15, 2011. Defendant filed a petition for
11 writ of certiorari with the New Mexico Supreme Court, which the Supreme Court
12 denied on October 25, 2011. On November 18, 2011, Defendant filed a motion to
13 reconsider sentence in the district court pursuant to Rule 5-801. The State argued
14 Defendant’s motion was untimely pursuant to Rule 5-801(B). The district court
15 denied Defendant’s motion, concluding that the motion was untimely, and it therefore
16 lacked jurisdiction. Defendant challenges this determination on appeal.
17 DISCUSSION
2
1 “We review de novo the legal question of whether a trial court has jurisdiction
2 in a particular case.” State v. Torres, 2012-NMCA-026, ¶ 11, 272 P.3d 689, (internal
3 quotation marks and citation omitted), cert. granted, 2012-NMCERT-003, ___ P.3d
4 ___.
5 We apply the same rules of construction to procedural rules adopted by
6 the Supreme Court as we do to statutes. According to those rules of
7 construction, our overarching goal is to determine the underlying intent
8 of the drafters, and we begin that task by parsing the plain language of
9 the rule.
10 Id. ¶ 12 (internal quotation marks and citations omitted).
11 The district court determined it lacked jurisdiction to consider Defendant’s
12 motion for reconsideration under Rule 5-801(B). This rule states, in pertinent part:
13 A motion to reduce a sentence may be filed within ninety (90) days after
14 the sentence is imposed, or within ninety (90) days after receipt by the
15 court of a mandate issued upon affirmance of the judgment or dismissal
16 of the appeal, or within ninety (90) days after entry of any order or
17 judgment of the appellate court denying review of, or having the effect
18 of upholding, a judgment of conviction.
19 Rule 5-801(B) (emphasis added). Defendant contends that his motion to reconsider
20 sentence was timely because it was filed within ninety days of the Supreme Court’s
21 order denying his petition for writ of certiorari, which is “any order” within the
22 meaning of Rule 5-801(B). The State contends the motion was untimely because the
23 Supreme Court’s order denying Defendant’s petition for writ of certiorari is not an
3
1 “order . . . denying review of, or having the effect of upholding, a judgment of
2 conviction.” We agree with the State.
3 An order of the Supreme Court denying a petition for a writ of certiorari from
4 a habeas corpus petitioner is not an order triggering the Rule 5-801(B) clock. The
5 phrase “any order” in Rule 5-801(B) cannot be read independently from the clause in
6 which it is contained. This phrase is qualified by the language “denying review of,
7 or having the effect of upholding, a judgment of conviction” and must be read in
8 conjunction with that language. Rule 5-801(B). Thus, as relevant here, the triggering
9 event for the Rule 5-801(B) clock is the “entry of any order or judgment of the
10 appellate court denying review of, or having the effect of upholding, a judgment of
11 conviction.” An order denying a petition for writ of certiorari in a habeas proceeding
12 is neither an order denying review of a judgment of conviction, nor an order having
13 the effect of upholding a judgment of conviction.
14 This interpretation is bolstered by our review of Rule 5-801(B) as a whole. The
15 rule identifies two additional events triggering the Rule 5-801(B) clock: imposition
16 of sentence and “receipt by the court of a mandate issued upon affirmance of the
17 judgment or dismissal of the appeal[.]” Rule 5-801(B). These two events are clearly
18 tied to a defendant’s sentence and direct appeal; they do not extend to a habeas corpus
4
1 petition. We believe the drafters intended for this entire rule, including the “any order
2 or judgment” language relied upon by Defendant in this case, to limit a defendant to
3 seeking modification of his sentence within a time frame triggered by events relating
4 to his original sentence and his direct appeal.
5 Defendant cites State v. Ervin, 2002-NMCA-012, 131 N.M. 640, 41 P.3d 908,
6 in support of his reading of Rule 5-801(B). In Ervin, we declined to consider the
7 defendant’s argument that the sex offender registration requirement imposed on him
8 was unconstitutional and noted that the defendant could still raise the issue in the
9 district court pursuant to Rule 5-801(B). Ervin, 2002-NMCA-012, ¶ 25. Ervin
10 involved a direct appeal, not a petition for habeas corpus, see id. ¶ 1, and thus is
11 inapposite. The fact that the defendant in Ervin may have had recourse under Rule 5-
12 801(B) does not mean Defendant is entitled to recourse here. Under the plain
13 language of Rule 5-801(B), Defendant’s motion to reconsider sentence was not timely
14 filed and, therefore, the district court lacked jurisdiction to consider it.
15 CONCLUSION
16 We affirm the district court’s denial of Defendant’s motion to reconsider
17 sentence.
18 IT IS SO ORDERED.
5
1 __________________________________
2 LINDA M. VANZI, Judge
3 WE CONCUR:
4 _________________________________
5 JAMES J. WECHSLER, Judge
6 _________________________________
7 JONATHAN B. SUTIN, Judge
6