 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 27,799

10 JAIME L., Jr.,

11          Defendant-Appellant,

12 and

13 STATE OF NEW MEXICO,

14          Plaintiff-Appellee,

15 v.                                                                                    NO. 27,900

16 RONALD T.,

17          Defendant-Appellant.


18 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
19 Frank K. Wilson, District Judge



20 Gary K. King, Attorney General
21 Ann M. Harvey, Assistant Attorney General
22 Santa Fe, NM
 1 M. Victoria Wilson, Assistant Attorney General
 2 Albuquerque, NM

 3   for Appellee
 4   Robert E. Tangora, L.L.C.
 5   Robert E. Tangora
 6   Santa Fe, NM

 7 for Appellant Jaime L., Jr.

 8 Chief Public Defender
 9 Allison H. Jaramillo, Assistant Appellate Defender
10 Santa Fe, NM

11 for Appellant Ronald T.



12                            MEMORANDUM OPINION

13 CASTILLO, Chief Judge.

14         Jaime L. (Jaime) and his cousin, Ronald T. (Ronald), appeal their sentences.

15 Both challenge the constitutionality of NMSA 1978, Section 32A-2-20 (2005)

16 (amended 2009) and assert that a jury, not the district court, must determine the issue

17 of amenability to treatment as a juvenile. Jaime also challenges the sufficiency of the

18 evidence underlying the district court’s conclusion that he is not amenable to

19 treatment. Ronald makes a similar argument and also contends that the district court

20 used the wrong standard of evidence to evaluate amenability. In addition, Ronald

21 argues that his sentence was imposed in violation of NMSA 1978, Section 32A-2-17


                                              2
 1 (2005) (amended 2009), because the district court neither requested nor reviewed a

 2 predisposition report from the New Mexico Department of Corrections. Ronald also

 3 claims that the sentence imposed was contrary to the plea agreement. We affirm.

 4 I.     BACKGROUND

 5        In October 2005, Jaime and Ronald (together referred to as Children) were both

 6 fifteen years old and participated in a stabbing incident that ultimately resulted in the

 7 death of another young man. Both were charged as serious youthful offenders with

 8 second degree murder and conspiracy to commit murder. They both pled no contest

 9 to one count of second degree murder and one count of conspiracy to commit second

10 degree murder. Each of the plea agreements contained the same waiver language, as

11 well as identical language regarding sentencing that specified the range of

12 dispositional alternatives to be from “juvenile disposition until age 21 . . . or up to 10

13 years[’] incarceration as an adult.”

14        Pursuant to Section 32A-2-20, the district court held an amenability hearing in

15 May 2007 to determine whether Children should be adjudicated as juveniles or as

16 adults. Dr. Noah Kaufman testified on the State’s behalf and proffered his clinical

17 assessment that neither Jaime nor Ronald was amenable to treatment as a juvenile. Dr.

18 Christine Johnson testified on Jaime’s behalf and concluded that he was amenable to

19 treatment. Similarly, Dr. Marc Caplan testified on Ronald’s behalf and offered his


                                               3
 1 conclusion that Ronald was amenable to treatment. A social worker from the

 2 detention center and Ronald’s mother also testified on Ronald’s behalf and stated that

 3 Ronald could be rehabilitated.

 4        The district court, after considering the factors laid out in Section 32A-2-20(C),

 5 concluded that neither was amenable to treatment. The court imposed adult sanctions

 6 and sentenced Jaime to the maximum term permitted by the plea agreement: ten

 7 years’ confinement, two years’ mandatory parole, and five years’ supervised

 8 probation. As to Ronald, the court sentenced him to fifteen years for the second

 9 degree murder charge and three years for the conspiracy charge, a total of eighteen

10 years. The court suspended eight years of Ronald’s sentence for a total of ten years’

11 incarceration to be followed by two years’ parole and five years’ supervised

12 probation.

13        We now proceed to the arguments Children make on appeal regarding their

14 sentences.

15 II.    DISCUSSION

16 A.     Constitutionality of Section 32A-2-20 and Waiver

17        We begin with the joint argument that Section 32A-2-20 violates Children’s

18 Sixth Amendment right to trial by jury in that the statute directs the district court to

19 make the amenability determination and impose either an adult or juvenile sentence.


                                              4
 1 Citing Apprendi v. New Jersey, 530 U.S. 466 (2000) and its federal progeny, and State

 2 v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144, Children claim that the

 3 amenability determination must be made by a jury. The State counters that Children

 4 waived the right to raise this objection by entering into the plea agreement, and even

 5 if there is no waiver, Section 32A-2-20 is constitutional, State v. Gonzales, 2001-

 6 NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled on other grounds as recognized

 7 by State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726, controls, and the

 8 amenability determination was properly made by the district court.

 9        In this case, Children waived “any and all motions, defenses, objections or

10 requests which [Children have] made or raised, or could assert hereafter, to the

11 [c]ourt’s entry of judgment and imposition of a sentence consistent with this

12 agreement.” Although the plea agreement contained this language, the record shows

13 that the issue of waiver was raised and discussed at length below. At the outset of the

14 amenability hearing, counsel for Jaime attempted to raise the issue of the

15 constitutionality of Section 32A-2-20, but the district court interjected and explained

16 that Children had waived this argument in light of the fact that they had entered a plea

17 of no contest and accepted the terms of the plea agreement. The State agreed with this

18 conclusion and pointed out that, as long as the plea agreement was in effect, the only

19 issues Children could raise were jurisdictional matters. The court asked Jaime and


                                              5
 1 Ronald if they wished to withdraw their plea agreements and both responded that they

 2 did not. Generally, “a voluntary guilty plea ordinarily constitutes a waiver of the

 3 defendant’s right to appeal his conviction on other than jurisdictional grounds.” State

 4 v. Chavarria, 2009-NMSC-020, ¶ 9, 146 N.M. 251, 208 P.3d 896 (internal quotation

 5 marks and citation omitted).

 6        Whether the issue was waived or not, the result is the same. In its recent case

 7 of Rudy B., 2010-NMSC-045, our Supreme Court examined Section 32A-2-20 and

 8 held that the Sixth Amendment does not require a jury to perform the amenability

 9 determination, thus upholding “from constitutional challenge New Mexico’s statutory

10 preference for judge-made amenability decisions.” Rudy B., 2010-NMSC-045, ¶ 2.

11 We affirm on this issue.

12 B.     Substantial Evidence/Abuse of Discretion

13        Children also challenge the district court’s determination that they were not

14 amenable to treatment under Section 32A-2-20(B). “Whether [a d]efendant is

15 amenable to treatment or rehabilitation as a child is a determination ultimately left to

16 the discretion of the district court.” State v. Todisco, 2000-NMCA-064, ¶ 36, 129

17 N.M. 310, 6 P.3d 1032 (internal quotation marks and citation omitted); see State v.

18 Sosa, 1997-NMSC-032, ¶ 9, 123 N.M. 564, 943 P.2d 1017 (same). “We review

19 non-amenability findings for substantial evidence or abuse of discretion.” State v.


                                              6
 1 Trujillo, 2009-NMCA-128, ¶ 13, 147 N.M. 334, 222 P.3d 1040, cert. granted, 2009-

 2 NMCERT-011, 147 N.M. 464, 225 P.3d 794. “[A] district court abuses its discretion

 3 when its decision is not supported by substantial evidence.” State v. Solano,

 4 2009-NMCA-098, ¶ 7, 146 N.M. 831, 215 P.3d 769 (internal quotation marks and

 5 citation omitted). Similarly, “[i]n assessing a claim of evidentiary insufficiency, this

 6 Court asks whether substantial evidence supports the court’s decision.” Gonzales,

 7 2001-NMCA-025, ¶ 40. “Substantial evidence is relevant evidence that a reasonable

 8 mind would accept as adequate to support a conclusion.” Id. (internal quotation marks

 9 and citation omitted). We view the evidence in the light most favorable to the

10 decision below, resolve all conflicts and indulge all permissible inferences to uphold

11 that decision, and disregard all evidence and inferences to the contrary. Id. “It is the

12 factfinder’s prerogative to weigh the evidence and to judge the credibility of the

13 witnesses.     The court [is] free to disregard expert opinion.”               Trujillo,

14 2009-NMCA-128, ¶ 18 (internal quotation marks and citation omitted). With this as

15 a background, we turn to Children’s arguments.

16 1.     Amenability as to Jaime

17        Jaime argues, pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982,

18 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App.

19 1985), that the district court was precluded from finding him unamenable to treatment


                                              7
 1 in light of the conflicting expert testimony presented at the amenability hearing.

 2 Though he styles this argument as an attack on the sufficiency of the evidence, Jaime

 3 is really asking this Court to reweigh the evidence. He argues that the district court

 4 could not have concluded that he was not amenable to treatment because there was

 5 evidence presented that he was amenable to treatment. The court was presented with

 6 conflicting testimony on the issue of Jaime’s amenability. The State’s expert opined

 7 that Jaime was not amenable to treatment whereas Jaime’s expert proffered testimony

 8 supporting the opposite conclusion. The district court resolved the conflict in

 9 evidence in the State’s favor. We will not disturb that determination on appeal. State

10 v. Johnson, 99 N.M. 682, 685, 662 P.2d 1349, 1352 (1983) (“Conflicts in evidence are

11 to be resolved by the trier of facts, and this includes any conflicts in testimony among

12 witnesses.”); State v. Tapia, 79 N.M. 344, 345, 443 P.2d 514, 515 (Ct. App. 1968)

13 (“On review of a criminal case we do not pass upon the weight of the evidence.”). We

14 also affirm on this issue.

15 2.     Amenability as to Ronald

16        In Ronald’s case, the determination was based on evidence that is largely

17 uncontested: Ronald’s offense was serious, was committed in a violent and aggressive

18 manner, and was committed against a person. The court heard evidence that Ronald

19 had an extensive history of delinquent and criminal misconduct. Ronald had been


                                              8
 1 involved in fights and gangs; regularly used illegal substances; had stabbed a person

 2 with a screwdriver; had fired guns at people; had engaged in serious and deviant acts

 3 of animal cruelty; had broken into homes; had committed theft; and, while in

 4 detention, had caused disturbances and threatened to “shank” another inmate. The

 5 court heard evidence that, despite his young age, Ronald is a sophisticated and mature

 6 adult. Finally, the court heard evidence that a juvenile sentence was inappropriate as

 7 Ronald posed too great a risk to the public and would likely have an ill effect on the

 8 other children at any juvenile facility.

 9        Ronald makes several arguments that the court should have given additional

10 weight to other evidence. This line of argument is unavailing as we do not reweigh

11 the evidence on appeal but merely ask whether there was substantial evidence for the

12 conclusion reached. Gonzales, 2001-NMCA-025, ¶ 40.

13        Ronald complains that the Court failed to discuss the third factor in Section

14 32A-2-20(C)(3)—whether a firearm was used during the offense. Section 32A-2-

15 20(C) refers to the findings that must be made in Subsection (B) and directs the judge

16 to consider certain factors including whether a firearm was used. In this case, the

17 victim was stabbed and there was never any suggestion that a firearm was involved.

18 At the end of the amenability hearing, during the explanation of its determination, the

19 district court acknowledged that it had “to take into account the factors in Subsection


                                              9
 1 C in the statute.” Later in the explanation, the district court described the manner in

 2 which the crime occurred—by shanking the victim. The record demonstrated that the

 3 district court considered this factor and the absence of a statement regarding the use

 4 of a firearm is not error.

 5        Ronald also asserts that the court should have considered the varying hardships

 6 that would inure to Ronald if placed in an adult facility. This argument does not

 7 persuade us. The court heard evidence that Ronald was not suited for placement in

 8 a juvenile facility and agreed with this assessment.

 9        Finally, Ronald contends that the district court erred in deciding the issue of

10 amenability under the preponderance of the evidence standard. The transcript of the

11 hearing reveals that the court stated:

12        And so I find in favor of adult sanctions as well.
13              I regret that that’s what we have in this case, that the [c]ourt finds
14        by clear and convincing evidence, even if the standard’s only by a
15        preponderance, I’m making these findings by the preponderance of the
16        evidence that these children are not amenable to treatment and
17        rehabilitation as a child in any available facility.

18 We agree that the statement is unclear in some respect, but we believe that the court

19 was indicating that it used the clear and convincing standard to find non-amenability.

20        In Gonzales, we declined to resolve what evidentiary standard a judge must use

21 to decide amenability, but nonetheless concluded that amenability could be resolved

22 under the clear and convincing standard. 2001-NMCA-025, ¶¶ 37, 46. We, too,

                                              10
 1 decline to resolve the issue and instead determine that it is sufficient that the district

 2 court decided the issue under the clear and convincing standard and further conclude

 3 that there was substantial evidence to support the district court’s finding of non-

 4 amenability by clear and convincing evidence. We find no error here.

 5 C.     Predisposition Report and Sentencing

 6        Ronald makes two additional arguments on appeal. We take them in order.

 7 1.     Predisposition Report

 8        Citing Section 32A-2-17, Ronald next argues that he is entitled to be

 9 resentenced because the district court failed to have the New Mexico Department of

10 Corrections prepare a predisposition report after the amenability hearing and prior to

11 sentencing. The State asserts that Ronald failed to preserve this argument. We agree

12 with the State.

13        Despite having provided statements of preservation as to the other issues raised,

14 Ronald failed to include a statement of preservation as to this issue. See Rule

15 12-213(A)(4) NMRA (“The brief in chief of the appellant, under appropriate headings

16 and in the order herein indicated, shall contain: . . . an argument which, with respect

17 to each issue presented, shall contain a statement . . . explaining how the issue was

18 preserved in the court below[.]”); State v. Boergadine, 2005-NMCA-028, ¶ 30, 137

19 N.M. 92, 107 P.3d 532 (“Without an appropriate cite to the record, we do not comb


                                               11
 1 the record to find whether an issue was properly preserved. As such, we need not

 2 address this contention.” (citation omitted)). Moreover, Ronald did not respond in his

 3 reply brief to the State’s assertion that this argument was not preserved. We conclude

 4 that Ronald failed to preserve this argument. As he does not argue fundamental error,

 5 we decline to further address this issue.

 6 2.     Sentencing

 7        Finally, Ronald argues that the sentence the district court imposed was contrary

 8 to the terms of the plea agreement. Ronald claims that the agreement limited his

 9 exposure to incarceration to ten years and did not include any agreement as to

10 probation. As such, Ronald objects to having been sentenced to eighteen years with

11 eight of those years suspended and objects to having been given five years’ probation.

12        The plea agreement provides the following:

13               1.     Agreement as to sentence. That the following disposition
14        will be made of the charges: The Court will not impose a sentence of
15        more than ten (10) years[’] incarceration as an adult. The range of
16        dispositional alternatives therefore will be from juvenile disposition until
17        age 21 with periodic reviews or up to 10 years[’] incarceration as an
18        adult. This is a ‘serious violent offense’ and [NMSA 1978, Section] 33-
19        2-34 [(2006)] for earned meritorious deductions applies.

20 The agreement further provides that the maximum possible penalties Ronald accepted

21 are those provided within the statutes underlying the charges to which Ronald pled.

22 The maximum possible penalty for those offenses is eighteen years.


                                               12
 1        We find little merit in Ronald’s objection to the fact that he was sentenced to

 2 eighteen years with eight of those years suspended. The eighteen-year sentence was

 3 the maximum possible penalty for Ronald’s offenses. The agreement expressly

 4 provided that these maximum penalties could be imposed. Having imposed the

 5 maximum penalties, the district court suspended eight years for a total period of ten

 6 years’ incarceration, the maximum period of incarceration permitted under the plea

 7 agreement. This aspect of the sentence imposed was not contrary to the plea

 8 agreement.

 9        As to the issue of probation, Ronald is correct that the agreement is silent as to

10 this issue. Ronald also correctly observes that “we construe the terms of the plea

11 agreement according to what [the d]efendant reasonably understood when he entered

12 the plea.” State v. Orquiz, 2003-NMCA-089, ¶ 7, 134 N.M. 157, 74 P.3d 91. We

13 disagree, however, with Ronald’s conclusion that because the agreement was silent

14 on the issue of probation, he could reasonably conclude the agreement excluded the

15 possibility for probation.

16        As discussed above, the agreement provided that Ronald would serve no more

17 than ten years’ incarceration. Yet, the agreement also provided that the maximum

18 possible penalties for Ronald’s offenses could be imposed, i.e., an eighteen-year

19 sentence. Given the structure of the agreement, it is reasonable, in our view, to


                                              13
 1 conclude that Ronald would understand that the agreement necessarily incorporated

 2 the potential for a suspended sentence. As such, it is also reasonable to conclude that

 3 Ronald would understand that the imposition of a suspended sentence would

 4 necessarily involve the imposition of a probationary period. See NMSA 1978, § 31-

 5 20-5(A) (2003) (“When a person has been convicted of a crime for which a sentence

 6 of imprisonment is authorized and when the . . . district court has . . . suspended

 7 sentence, it shall order the defendant to be placed on probation for all or some portion

 8 of the period of . . . suspension[.]”).

 9 III.   CONCLUSION

10        For the foregoing reasons, the sentences imposed on Children by the district

11 court are affirmed.

12        IT IS SO ORDERED.


13                                           __________________________________
14                                           CELIA FOY CASTILLO, Chief Judge

15 WE CONCUR:




16 __________________________________
17 JONATHAN B. SUTIN, Judge




                                              14
1 __________________________________
2 CYNTHIA A. FRY, Judge




                                  15
