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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. 35,586

 5 ROLANDO GONZALES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando R. Macias, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Bennett J. Baur, Chief Public Defender
13   C. David Henderson, Appellate Defender
14   MJ Edge, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.
 1   {1}   Defendant appeals from the district court’s judgment and sentence, entered

 2 pursuant to a jury trial, convicting Defendant for aggravated driving while intoxicated

 3 (DWI) (fourth offense). Unpersuaded that Defendant’s docketing statement

 4 demonstrated error, we issued a notice of proposed summary disposition, proposing

 5 to affirm. Defendant has responded to our notice with a memorandum in opposition

 6 and a motion to amend the docketing statement. We deny Defendant’s motion to

 7 amend because it is not viable. Defendant has not otherwise established error. We

 8 therefore affirm.

 9   {2}   On appeal, Defendant has argued that his right to a speedy trial was violated.

10 [MIO unnumbered 4-5] Our notice contained a comprehensive speedy trial analysis

11 of the Barker factors, despite the lack of information or analysis provided by the

12 docketing statement, and we even indulged in presumptions that could favor

13 Defendant. We do not reiterate that proposed analysis here and discuss in detail only

14 those arguments raised in response to our notice.

15   {3}   Defendant’s memorandum in opposition again fails to supply this Court with

16 facts or an analysis under the Barker factors, despite our admonition regarding the

17 consequences of such deficiencies. Rather, Defendant contends that he demonstrated

18 prejudice by the grave restrictions placed on his liberties while he was out of custody

19 on bond. [MIO unnumbered 5] This is not the particularized showing of prejudice that

20 our notice explained is required where the first three factors do not weigh heavily in

                                              2
 1 the defendant’s favor. See State v. Garza, 2009-NMSC-038, ¶ 40, 146 N.M. 499, 212

 2 P.3d 387; see also State v. Gallegos, 2016-NMCA-076, ¶¶ 33-34, ___ P.3d ___

 3 (holding that where there was fourteen months and three weeks of negligent and

 4 administrative delay—only exceeding the presumptively prejudicial period by a few

 5 months—the defendant’s failure to make a particularized showing of prejudice did not

 6 support a speedy trial violation), cert. denied, 2016-NMCERT-008, ___ P.3d ___. For

 7 the reasons stated in our notice and above, we hold that Defendant has not established

 8 a speedy trial violation.

 9 Motion to Amend

10   {4}   Defendant seeks to amend his docketing statement to add an unpreserved issue:

11 the district court violated Defendant’s right to jury trial under the Federal and State

12 Constitutions by imposing an enhanced sentence for his prior DWI convictions based

13 on facts not found by a jury. [MIO unnumbered 1, 3, 6-11]

14   {5}   In cases assigned to the summary calendar, this Court will grant a motion to

15 amend the docketing statement to include additional issues if the motion (1) is timely,

16 (2) states all facts material to a consideration of the new issues sought to be raised, (3)

17 explains how the issues were properly preserved or why they may be raised for the

18 first time on appeal, (4) demonstrates just cause by explaining why the issues were not

19 originally raised in the docketing statement, and (5) complies in other respects with

20 the appellate rules. See State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100

                                                3
 1 N.M. 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that

 2 are not viable, even if they allege fundamental or jurisdictional error. See State v.

 3 Moore, 1989-NMCA-073, ¶¶ 42-45, 109 N.M. 119, 782 P.2d 91, superseded by rule

 4 on other grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537,

 5 817 P.2d 730.

 6   {6}   We deny Defendant’s motion to amend because it is not viable. Defendant has

 7 not demonstrated why he believes our state’s DWI self-enhancing sentencing scheme

 8 requires findings beyond the existence of prior DWI convictions for purposes of his

 9 argument that the statute falls outside the exception for prior convictions stated in

10 Apprendi v. New Jersey, 530 U.S. 466, 488, 490 (2000), and we are not persuaded that

11 the statute requires findings that fall outside of that exception to the Sixth Amendment

12 right to a jury trial. As Defendant acknowledges, we have rejected the precise

13 argument he raises in his motion to amend in our decision in State v. Sandoval,

14 2004-NMCA-046, ¶¶ 3, 5, 7, 135 N.M. 420, 89 P.3d 92. [MIO unnumbered 9, 12-13]

15 See State v. Villegas, 2009-NMCA-023, ¶¶ 4-5, 145 N.M. 592, 203 P.3d 123

16 (rejecting the defendant’s argument that Apprendi and its progeny requires that all

17 facts essential to sentence enhancement be found by a jury, despite the recognition in

18 Apprendi of a prior conviction exception, and observing that we rejected this argument

19 specifically in the DWI context). Defendant’s arguments do not persuade us that



                                              4
 1 Apprendi jurisprudence has rendered a reliance on Sandoval or Villegas fundamental

 2 error.

 3   {7}    Defendant also seems to argue that the language of the New Mexico

 4 Constitution offers greater protection and that the prior conviction exception has

 5 always violated the right to a jury trial. [MIO unnumbered 9-10] Defendant does not

 6 refer this Court to, nor have we located, any case in which the district court’s failure

 7 to sua sponte establish a state constitutional protection that had not yet been

 8 recognized was deemed fundamental error. Further, Defendant does not persuade us

 9 that our reasoning in Sandoval or Villegas or our other similarly decided cases are so

10 fundamentally flawed and unfair as to undermine the integrity of the judicial system.

11 See State v. Barber, 2004-NMSC-019, ¶¶ 17-18, 135 N.M. 621, 92 P.3d 633 (defining

12 structural fundamental error as a mistake in the process that worked “a fundamental

13 unfairness within the system that would undermine judicial integrity if left

14 unchecked”).

15   {8}    For the reasons stated in the notice and this opinion, we affirm the district

16 court’s judgment and sentence and deny the motion to amend the docketing statement.

17   {9}    IT IS SO ORDERED.


18                                          __________________________________
19                                          LINDA M. VANZI, Chief Judge



                                              5
1 WE CONCUR:


2 _________________________________
3 JAMES J. WECHSLER, Judge


4 _________________________________
5 TIMOTHY L. GARCIA, Judge




                                  6
