     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
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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. 33,710

 5 CLYDE BLACKWATER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 William C. Birdsall, District Judge

 9 Hector H. Balderas, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.
 1   {1}   Defendant appeals the district court’s order denying his motion to dismiss the

 2 charge of commercial burglary. Defendant entered a conditional plea reserving for

 3 appeal the issues raised in his motion to dismiss. [RP 60] This Court issued a stay

 4 before addressing the merits of the appeal, pending our decision in State v. Archuleta,

 5 ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted,

 6 2015-NMCERT-001, ___ P.3d ___ (No. 35,005, Jan.

 7 26, 2015), the first of many cases raising the same issue relative to the charge of

 8 commercial burglary. On the basis of Archuleta, we lifted the stay and issued a notice

 9 of proposed summary disposition, proposing to reverse. The State has responded with

10 an objection to our notice and a request to hold this appeal in abeyance or provide the

11 State with a reasonable opportunity to seek guidance from the New Mexico Supreme

12 Court on all pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We

13 have provided the State with such an opportunity, and the Supreme Court has denied

14 the State a stay or other remedy that would suspend the precedential value of

15 Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule

16 12-405(C) (“A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA

17 or a Supreme Court order granting the petition does not affect the precedential value

18 of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme

19 Court.”).

                                              2
1   {2}   In its response to our notice, the State simply objects to our proposed

2 disposition without elaboration. [MIO 1, 3] We continue to believe that there are no

3 material factual distinctions to remove this case from the control of our opinion in

4 Archuleta. For the reasons stated in our notice, we reverse Defendant’s conviction for

5 commercial burglary.

6   {3}   IT IS SO ORDERED.



7                                         __________________________________
8                                         JONATHAN B. SUTIN, Judge


9 WE CONCUR:


10 _______________________________
11 JAMES J. WECHSLER, Judge


12 _______________________________
13 TIMOTHY L. GARCIA, Judge




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