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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 32,495

 5 GUILLERMO VELASQUEZ,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Samuel L. Winder, District Judge

 9 Gary K. King, Attorney General
10 Olga Serifimova
11 Santa Fe, NM

12 for Appellant

13 Bennett J. Baur, Acting Chief Public Defender
14 B. Douglas Wood III, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 VANZI, Judge.
 1   {1}    The State is appealing from a district court ruling that a 1999 prior

 2 misdemeanor driving while intoxicated (DWI) conviction could not be used to

 3 enhance a current conviction because Defendant had not been represented by counsel

 4 in the 1999 proceeding. [RP 77] Our second calendar notice proposed to affirm. The

 5 State has responded with a memorandum in opposition. Not persuaded by the State’s

 6 arguments, we affirm.

 7   {2}   In State v. Aragon, 1997-NMSC-062, ¶ 8, 124 N.M. 399, 951 P.2d 616, our

 8 Supreme Court stated the following.

 9         Uncounseled convictions that result in a sentence of imprisonment,
10         whether actually served or suspended, violate the Sixth Amendment right
11         to counsel as applied to the states through the Fourteenth Amendment.

12   {3}   In this case, contrary to the State’s assertion [MIO 3-4], the 1999 judgment

13 contained a term of imprisonment, which was suspended with conditions. [RP 57-62]

14 Accordingly, it could not be used to enhance Defendant’s sentence unless he had

15 counsel or had waived counsel, and the State concedes that the 1999 conviction was

16 uncounseled. [MIO 5] Nevertheless, in its memorandum in opposition, the State

17 argues [MIO 5-6] that the above-quoted language is dicta, because the defendant in

18 Aragon received a fine and not a suspended sentence. See Aragon, 1997-NMSC-062,

19 ¶ 9. However, we consider the above-quoted language to be controlling because it

20 draws a legal boundary for the requirement of counsel, and the fact that the judgment

21 in that case fell on the other side of that boundary does not affect the substance and

                                             2
1 impact of the rule. See Alexander v. Delgado, 1973-NMSC-030, ¶ 8, 84 N.M. 717,

2 507 P.2d 778 (noting that our Supreme Court precedent controls). In other words, it

3 is not dicta. Accordingly, we affirm the district court.



4   {4}   IT IS SO ORDERED.
5                                         __________________________________
6                                         LINDA M. VANZI, Judge

7 WE CONCUR:



8 _________________________________
9 JAMES J. WECHSLER, Judge



10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge




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