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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. 31,988

 5 JAVIER M. VASQUEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Jane Shuler Gray, District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 KENNEDY, Judge.
 1        Javier M. Vasquez (Defendant) appeals from the revocation of his probation

 2 and the enhancement of his sentence. This Court issued a calendar notice proposing

 3 to affirm. Defendant has filed a memorandum in opposition, which this Court has

 4 duly considered. Unpersuaded, we affirm.

 5 The District Court Had Jurisdiction to Revoke Defendant’s Probation

 6        Defendant contends that the district court lacked jurisdiction to find a violation

 7 of his probation where the State failed to file the petition to revoke his probation

 8 within the time frame established in Rule 5-805(F) NMRA. Rule 5-805(F) provides

 9 that “[w]ithin five (5) days of receiving the probation violation or a summary report,

10 the district attorney shall either file a motion to revoke probation setting forth each of

11 the alleged violations or file a notice of intent not to prosecute the alleged violations.”

12 Defendant relied on State v. Montoya to argue that dismissal was appropriate. 2011-

13 NMCA-009, ¶ 1, 149 N.M. 242, 247 P.3d 1127.

14        In this Court’s calendar notice, we pointed out that Montoya was

15 distinguishable and that Rule 5-805 had been amended to make dismissal

16 discretionary. Defendant has not rebutted this Court’s proposed conclusion by

17 pointing out error in law or fact and has not provided any argument as to how the

18 district court abused its discretion in not dismissing. See State v. Ibarra, 116 N.M.

19 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing summary disposition

                                                2
 1 is required to come forward and specifically point out errors in fact and/or law.”); see

 2 also State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (“An abuse

 3 of discretion occurs when the ruling is clearly against the logic and effect of the facts

 4 and circumstances of the case. We cannot say the trial court abused its discretion by

 5 its ruling unless we can characterize it as clearly untenable or not justified by reason.”

 6 (internal quotation marks and citations omitted)). As a result, we rely on the analysis

 7 contained in our notice of proposed disposition and conclude the district court had

 8 jurisdiction to revoke Defendant’s probation.

 9 Sufficient Evidence Was Introduced to Support Revocation

10        Defendant continues to argue that there was insufficient evidence to find a

11 probation violation had occurred. In this Court’s calendar notice, we proposed to

12 conclude that the probation officer’s testimony that Defendant admitted to having

13 “self-injected heroin on October 22” and that probationer’s drug test was “positive for

14 opiates” was sufficient to demonstrate a violation of his probation based on illegal

15 drug use. See State v. Brusenhan, 78 N.M. 764, 766, 438 P.2d 174, 176 (Ct. App.

16 1968) (“[A] violation of the conditions of probation must be established with such

17 reasonable certainty as to satisfy the conscience of the court of the truth of the

18 violation. It does not have to be established beyond a reasonable doubt.” (internal

19 quotation marks and citation omitted)). Moreover, we suggested that, to the extent



                                               3
 1 Defendant was arguing that there was mitigating evidence and that the probation

 2 officer’s testimony was untruthful, he was requesting that this Court assess credibility

 3 and reweigh the evidence on appeal, which we do not do. See State v. Mora, 1997-

 4 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (providing that an appellate court

 5 “does not weigh the evidence or substitute its judgment for that of the fact finder as

 6 long as there is sufficient evidence to support the verdict”).

 7        In his memorandum in opposition, Defendant continues to argue that the

 8 probation officer’s testimony about his admission was not true, that Defendant was

 9 not really admitting to illegal drug use, and that the drug test did not confirm heroin

10 use. [MIO 6] Again, we do not reweigh evidence or assess credibility on appeal.

11 Instead, “[w]e view the evidence in a light most favorable to the State, indulging all

12 reasonable inferences and resolving all conflicts to uphold the decision below.” State

13 v. Tony G., 121 N.M. 186, 190, 909 P.2d 746, 750 (Ct. App. 1995). Accordingly, we

14 conclude there was sufficient evidence to support Defendant’s revocation.

15 Defendant Was Not Subject to an Illegal Sentence

16        Defendant contends that, pursuant to State v. Franklin, 78 N.M. 127, 129, 428

17 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct.

18 App. 1985), the State violated the terms of his probation agreement by filing an

19 amended supplemental criminal information alleging three prior felonies. In our



                                              4
 1 calendar notice, we noted Defendant’s reliance on State v. Leyba, 2009-NMCA-030,

 2 ¶¶ 19-20, 145 N.M. 712, 204 P.3d 37, for the proposition that, if the plea agreement

 3 did not authorize enhancement, and the defendant’s sentence was later enhanced, this

 4 would amount to an illegal sentence. We noted that, in the present case, the plea

 5 agreement authorized enhancement if Defendant violated his probation. [RP 104]

 6 According to the terms of the plea agreement, the State reserved the right to “bring

 7 habitual offender proceedings as provided by law based on any conviction not

 8 admitted in this plea agreement.” [RP 103] As a result, we conclude that Defendant

 9 was not subjected to an illegal sentence, since it was within the terms of his plea

10 agreement.

11 Defendant’s Due Process Rights Were Not Violated

12        Defendant contends that the district court violated his due process rights by not

13 advising him of his rights and the potential penalties that would result from his

14 admission to prior offenses. Defendant maintains that this rendered any resulting

15 admission to being the same person that committed the prior offenses alleged by the

16 State invalid. In his docketing statement, Defendant directed this Court to Rule 5-303

17 NMRA and Marquez v. Hatch, 2009-NMSC-040, ¶ 12, 146 N.M. 556, 212 P.3d 1110,

18 in support of his argument. We noted that Rule 5-303 governed guilty pleas with

19 respect to the underlying criminal charges and that Rule 5-303 was complied with in



                                              5
 1 this case.    We therefore proposed to conclude that Defendant had failed to

 2 demonstrate error, as he had not provided this Court with any authority indicating that

 3 the Court was required to again advise him of the consequences of his prior

 4 convictions when the State acted in accordance with the plea agreement in pursuing

 5 enhancement. To the extent Defendant continues to rely on cases involving plea

 6 agreements to criminal convictions where a defendant is admitting guilt to criminal

 7 charges, rather than admitting to being the same person previously convicted, we

 8 conclude Defendant has not demonstrated error in this Court’s notice of proposed

 9 disposition. See Ibarra, 116 N.M. at 489, 864 P.2d at 305 (“A party opposing

10 summary disposition is required to come forward and specifically point out errors in

11 fact and/or law.”).

12        Moreover, to the extent Defendant’s argument is more appropriately construed

13 as claiming a violation of his right against self-incrimination, we note that Defendant

14 was represented by counsel, appears to have answered the question posed by the judge

15 voluntarily, and never invoked the privilege. See State v. Gutierrez, 119 N.M. 618,

16 620, 894 P.2d 395, 397 (Ct. App. 1995) (“[A] witness before a judicial or

17 administrative tribunal ordinarily is entitled to no protection under the privilege

18 against self-incrimination unless the witness invokes the privilege and refuses to

19 answer.”).



                                              6
1       Accordingly, for the reasons stated above and in this Court’s notice of proposed

2 disposition, we affirm.

3       IT IS SO ORDERED.



4                                               _______________________________
5                                               RODERICK T. KENNEDY, Judge


6 WE CONCUR:



7 _________________________________
8 CELIA FOY CASTILLO, Chief Judge



 9 _________________________________
10 MICHAEL E. VIGIL, Judge




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