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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. 32,781
 5                                                                 consolidated with NO. 32,782
 6 ADELA GONZALES,

 7          Defendant-Appellee.


 8 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 9 Ralph D. Shamas, District Judge


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

12 for Appellant

13 Bennett J. Baur, Acting Chief Public Defender
14 Karl Erich Martell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellee.


17                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   The State appeals an amended judgment reducing Defendant Adela Gonzales’s

 3 sentence from eighteen years’ imprisonment to nine years’ imprisonment. In our

 4 notice of proposed summary disposition, we proposed to reverse. Gonzales has filed

 5 a memorandum in opposition, which this Court has duly considered. As we do not

 6 find Gonzales’s arguments persuasive, we reverse.

 7   {2}   The State contends that the district court lacked jurisdiction to reduce

 8 Gonzales’s sentence several years after the entry of the original 2009 judgment and

 9 sentence. [DS 4] In our notice of proposed summary disposition, we proposed to hold

10 that the district court was without authority to consider Gonzales’s February 8, 2013

11 motion to amend her sentence. Rule 5-801 NMRA governs the time within which a

12 sentence may be modified, and its time limits are jurisdictional. See Hayes v. State,

13 1988-NMSC-021, ¶ 8, 106 N.M. 806, 751 P.2d 186, 188. Rule 5-801(A) provides that

14 an illegal sentence may be corrected at any time pursuant to Rule 5-802 NMRA, the

15 rule governing habeas corpus proceedings. Our notice stated that we did not believe

16 Gonzales’s motion came within the terms of this provision as there was nothing in her

17 motion or in the record to suggest that her sentence was illegal. Therefore, we stated

18 that it appeared that Gonzales’s motion could only be brought pursuant to Rule 5-

19 801(B).


                                             2
 1   {3}   Rule 5-801(B) states that a motion to reduce a sentence can be filed within

 2 ninety days of one of three triggering events: (1) the imposition of the original

 3 sentence, (2) the receipt of a mandate issued upon the affirmance of the judgment or

 4 dismissal of an appeal, or (3) the receipt of an appellate court order that has the effect

 5 of upholding a conviction. Because Gonzales entered into a guilty plea and therefore

 6 did not appeal her conviction, the only triggering event at issue in this case was the

 7 imposition of the original sentence. As Gonzales did not file her motion within ninety

 8 days of the original sentence, we proposed to hold that the district court lacked

 9 jurisdiction to amend her sentence. Although the district court stated that it was

10 modifying the sentence on its own motion, we proposed to hold that it lost jurisdiction

11 to do so after the ninety-day period set forth in Rule 5-801(B).

12   {4}   In Gonzales’s memorandum in opposition, she argues that principles of equity

13 and justice allow a district court judge to reduce a sentence, even when the

14 jurisdictional time limits imposed by Rule 5-801(B) have passed. [MIO 2] She argues

15 that the district court could have reduced her sentence pursuant to Rule 1-060(B)(6)

16 NMRA, based on exceptional circumstances. Gonzales cites no authority in support

17 of this proposition, and we presume that this is because there is none. See State v.

18 King, 2013-NMSC-014, ¶ 10, 300 P.3d 732 (stating that when a party fails to cite any

19 authority to support an argument, an appellate court will presume that no such


                                               3
 1 authority exists). As Gonzales recognizes, Rule 1-060(B) generally governs relief

 2 from a judgment or order in civil cases and serves to permit a criminal case to be

 3 reopened under limited circumstances. See State v. Barraza, 2011-NMCA-111, ¶ 10,

 4 267 P.3d 815 (holding that coram nobis type relief from a criminal judgment under

 5 Rule 1-060(B) is not available unless the petitioner demonstrates that relief through

 6 habeas corpus proceedings is unavailable or otherwise inadequate and explaining that

 7 such circumstances arise when a defendant has finished serving a sentence, including

 8 any probation, such that habeas corpus relief is unavailable and the only possible relief

 9 is through Rule 1-060(B)). Gonzales has not explained why Rule 1-060(B) should be

10 construed to provide relief for a criminal defendant who is still serving a sentence and

11 wishes to have that sentence reduced. It is the Rules of Criminal Procedure that offer

12 a means of reducing a sentence while it is being served, see Rule 5-801; Rule 5-802,

13 and we therefore conclude that these rules control.

14   {5}   In addition, even if a motion pursuant to Rule 1-060(B) had been procedurally

15 proper here, the evidence Gonzales presented at the hearing was simply that she had

16 learned her lesson in prison and that getting out sooner would allow her to support her

17 mother, children, and grandchildren, who were having various difficulties. [MIO 2]

18 Gonzales provides no authority to suggest that such evidence would be sufficient to




                                               4
 1 constitute exceptional circumstances justifying relief from a criminal sentence, and

 2 again, we presume that this is because there is none.

 3   {6}   In the alternative, Gonzales argues that because two prior motions to reduce her

 4 sentence raised possible claims of ineffective assistance of counsel, the district court

 5 could have properly reduced her sentence pursuant to Rule 5-802. Because exclusive

 6 jurisdiction over such decisions rests in our Supreme Court pursuant to Rule 12-

 7 102(A)(3) NMRA and Rule 5-802(H)(1), Gonzales asks this Court to transfer her case

 8 there. However, the February 8, 2013 motion does not mention any ineffective

 9 assistance of counsel, and Gonzales does not represent that the evidence at the hearing

10 addressed any possible claim of ineffective assistance of counsel. Instead, she states

11 that the evidence focused on Gonzales’s claim that she had been changed for the better

12 by her experience in prison and on her wish to be released sooner in order to help her

13 family. [MIO 2] There is nothing in Gonzales’s motion or in the evidence she

14 presented that would have alerted the district court to any claim that Gonzales’s

15 sentence was illegal or that her plea agreement was made on the improper advice of

16 counsel. Accordingly, there is no reason to believe that either Gonzales or the district

17 court thought that her motion was a petition for a writ of habeas corpus, and there is

18 no other basis on which we could construe the motion as such. We decline to transfer

19 this case to our Supreme Court.


                                               5
1   {7}   Therefore, for the reasons stated in this opinion and in our notice of proposed

2 summary disposition, we reverse.




3   {8}   IT IS SO ORDERED.


4                                                ________________________________
5                                                JAMES J. WECHSLER, Judge


6 WE CONCUR:


7 ________________________________
8 TIMOTHY L. GARCIA, Judge


 9 ________________________________
10 M. MONICA ZAMORA, Judge




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