     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. 34,125

 5 TITO A. RODRIGUEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Raymond L. Romero, 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   Debra Lautenschlager, Assistant Public Defender
16   Carlsbad, NM

17 for Appellant


18                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant appeals from the district court’s order denying his motion to dismiss

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

 4 appeal the issues raised in his motion to dismiss. [RP 111-21, 132] On the basis of this

 5 Court’s opinion in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794,

 6 Oct. 27, 2014), cert.          granted,        2015-NMCERT-___                   (No.

 7 35,005,       Jan.     26,    2015), we issued a notice of proposed summary

 8 disposition, proposing to reverse. The State has responded with an objection to our

 9 notice and a request to hold this appeal in abeyance or provide the State with a

10 reasonable opportunity to seek guidance from the New Mexico Supreme Court on all

11 pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided

12 the State with such an opportunity, and the Supreme Court has denied the State a stay

13 or other remedy that would suspend the precedential value of Archuleta. Thus,

14 pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A

15 petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme

16 Court order granting the petition does not affect the precedential value of an opinion

17 of the Court of Appeals, unless otherwise ordered by the Supreme Court.”).

18   {2}   In its response to our notice, the State simply objects to our proposed

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

                                              2
1 material factual distinctions to remove this case from the control of our opinion in

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

3 commercial burglary.

4   {3}   IT IS SO ORDERED.


5                                               ________________________________
6                                               JAMES J. WECHSLER, Judge


7 WE CONCUR:


 8 ________________________________
 9 CYNTHIA A. FRY, Judge
10


11 ________________________________
12 TIMOTHY L. GARCIA, Judge




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