 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 30,334

10 MICHAEL LEE CHANDLER,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Jacqueline R. Medina, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19   Hugh W. Dangler, Chief Public Defender
20   Santa Fe, NM
21   B. Douglas Wood III, Assistant Appellate Defender
22   Aztec, NM

23 for Appellant

24                                 MEMORANDUM OPINION

25 SUTIN, Judge.
 1        Defendant appeals from a district court judgment and sentence for his seventh

 2 offense of driving while intoxicated (DWI) and accompanying offenses. We issued

 3 a calendar notice proposing to hold that the State failed to satisfy its burden with

 4 respect to two of the prior DWIs. The State has responded with a memorandum in

 5 opposition.     After due consideration, we reverse and remand for purposes of

 6 resentencing.

 7        The sole issue in this case involves a challenge to two of the six prior DWI

 8 convictions used to enhance Defendant’s sentence. The State does not have to show

 9 proof beyond a reasonable doubt of the prior DWI conviction, but instead must

10 provide a preponderance of the evidence. State v. Anaya, 1997-NMSC-010, ¶¶ 11-14,

11 123 N.M. 14, 933 P.2d 223 (filed 1996); State v. Sedillo, 2001-NMCA-001, ¶ 5, 130

12 N.M. 98, 18 P.3d 1051 (filed 2000). Procedurally, the State has the initial burden of

13 establishing a prima facie case that there is a prior DWI conviction. See State v.

14 Duncan, 117 N.M. 407, 412, 872 P.2d 380, 385 (Ct. App. 1994), abrogated on other

15 grounds by State v. Brule, 1999-NMSC-026, 127 N.M. 368, 981 P.2d 782. The

16 defendant is then entitled to come forward with contrary evidence to rebut the prima

17 facie showing. See Duncan, 117 N.M. at 412, 872 P.2d at 385. The State ultimately

18 bears the burden of persuasion. See State v. O'Neil, 91 N.M. 727, 729, 580 P.2d 495,

19 497 (Ct. App. 1978).

20        Here, Defendant challenged the use of a 1985 DWI conviction from Farmington

21 Municipal Court and a 1991 conviction from Aztec District Court. [MIO 3-4] With

                                             2
 1 respect to the 1985 conviction, the State relied on an abstract of conviction that

 2 indicated that there was a guilty plea, a finding of guilt, and that Defendant had

 3 received a three hundred dollar fine. [MIO 3] Although the State correctly implied

 4 below that Defendant would not have been entitled to counsel if the sentence had not

 5 resulted in jail time [MIO 3], we do not believe that the State satisfied its burden of

 6 production to show that this was the case. In State v. Lopez, 2009-NMCA-127, ¶ 43,

 7 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224

 8 P.3d 1257, this Court held that a single, uncertified judgment and sentence was

 9 insufficient to satisfy the State’s burden. We noted that this was particularly a

10 problem in that case because the document was not made part of the record, and the

11 only indication of its contents was presented through counsel. Id. We do not believe

12 that the fact the document in this case is in the record is sufficient to overcome the

13 concerns stated in Lopez. We also note that, although Sedillo, 2001-NMCA-001, ¶¶

14 7-9, relied on a computer printout, it was accompanied with a complaint with a

15 handwritten notation of a guilty plea and a judge’s signature, and a signed waiver of

16 counsel form. We are therefore not persuaded by the State’s reliance on Sedillo.

17 [MIO 7] In the absence of anything beyond the mere printout in this case, we do not

18 believe that the State satisfied its burden with respect to the 1985 conviction under the

19 Lopez analysis.

20        We likewise believe that Lopez answers the challenge to the 1991 conviction.

21 The State relied on documents that did not contain a date of birth or a social security

22 number. [MIO 8] The docketing statement in this appeal indicated that the court

                                               3
 1 reviewed its own records, consisting of a microfilm. [DS 4; RP 58] As we stated in

 2 Lopez, “[t]he State’s failure in the present case to meet that burden cannot be

 3 overcome by the trial court’s willingness to check its own records.” 2009-NMCA-

 4 127, ¶ 44. In its memorandum in opposition, the State tries to distinguish Lopez by

 5 noting that the district court here called a recess to permit the prosecutor to retrieve

 6 the court’s own records for the judge’s review. [MIO 9] Regardless of who retrieved

 7 the court records, the problem addressed by Lopez is that this manner of review

 8 prevents an adequate record indicating that the State has met its burden. The State

 9 acknowledges this problem, but requests that we place the burden on Defendant.

10 [MIO 9-10] We are not inclined to do so, because we are reviewing the record for

11 purposes of determining whether the State satisfied its burden of production and

12 persuasion. This is analogous to a substantial evidence review, where we would not

13 apply our often-stated general rule that an appellant has the burden of providing an

14 adequate record.     This holds equally true for the inapplicability of our usual

15 presumption of correctness, which would not be applied as a substitute for a record

16 of sufficient evidence to support a conviction. In the absence of a record that satisfies

17 this Court’s analysis in Lopez, we conclude that the 1991 conviction could not be used

18 for purposes of the sentence at hand.

19        For the reasons discussed in this opinion, we reverse for purposes of re-

20 sentencing.




                                               4
1      IT IS SO ORDERED.



2                               __________________________________
3                               JONATHAN B. SUTIN, Judge

4 WE CONCUR:


5 _________________________________
6 ROBERT E. ROBLES, Judge


7 _________________________________
8 LINDA M. VANZI, Judge




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