 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   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. 30,055

10 DOMINIC MONTOYA,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Stan Whitaker, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 FRY, Chief Judge.

23          Defendant appeals the revocation of his probation claiming that he was entitled

24 to a continuance so that his competency could be determined. [DS 5] We proposed

25 to affirm in a notice of proposed summary disposition, and Defendant has filed a
 1 timely memorandum in opposition.          Remaining unpersuaded by Defendant’s

 2 memorandum, we affirm the revocation of his probation and imposition of his

 3 sentence.

 4        The record and memorandum in opposition indicate that after initially moving

 5 to revoke Defendant’s probation based on an indictment for first degree murder and

 6 battery on a peace officer, the State filed an addendum on May 26, 2009, alleging that

 7 Defendant had been convicted of battery on a peace officer by a jury on April 20,

 8 2009. [MIO 2; RP 146 CR 97-03704)] The State filed a second addendum on June

 9 16, 2009, stating that Defendant had been convicted of three counts of armed robbery

10 on June 11, 2009. [MIO 2; RP 151]

11        At the revocation hearing on July 23, 2009, Defendant sought a continuance

12 claiming that he had suffered a heart attack about six weeks prior to the hearing, and

13 that two weeks prior to the hearing, defense counsel had been told by prison officials

14 that Defendant was “in no shape to make decisions and [cannot] speak yet.” [MIO 3;

15 DS 4] Defendant’s counsel also informed the court that competency had been raised

16 in the armed robbery cases involving Defendant, and as recently as March 2009

17 Defendant’s counsel in the first degree murder case had indicated that he intended to

18 raise an insanity defense. [MIO 2; DS 4] Based upon these assertions, Defendant’s

19 counsel claimed to have raised a competency issue and asked for a continuance so


                                             2
 1 Defendant could be evaluated for competency to proceed in the probation revocation

 2 proceeding. [MIO 3; DS 4]

 3        In response to Defendant’s request, the prosecution noted that Defendant had

 4 stipulated to competency in the armed robbery cases and that he had been tried and

 5 convicted of those charges on June 11, 2009. [MIO 2-3; DS 4; RP 151] After hearing

 6 from both parties, the district court found insufficient evidence of incompetency to

 7 grant a continuance to obtain a competency evaluation. [DS 5] Defendant states that

 8 the court informed his counsel that, had there been a trial, he would have continued

 9 the matter, but since this involved a probation violation, he would deny the request.

10 [MIO 3]

11        Defendant claims that the district court abused its discretion when it refused to

12 suspend the proceedings to allow a determination of Defendant’s competency. [MIO

13 3-7] We disagree.

14        As discussed in our previous notice of propose summary disposition, in a

15 revocation proceeding, the state bears the burden of establishing a probation violation

16 with reasonable certainty. State v. Sanchez, 2001-NMCA-060, ¶ 13, 130 N.M. 602,

17 28 P.3d 1143. To satisfy its burden, the state must introduce proof which would

18 incline “a reasonable and impartial mind” to believe that the defendant violated the

19 terms of probation. Id. (internal quotation marks and citation omitted). Therefore, the


                                              3
 1 issue is whether Defendant was sufficiently competent to participate in the revocation

 2 proceeding and to attempt to rebut the State’s showing of the violation. See State v.

 3 Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct. App. 1989) (“Once the state

 4 offers proof of a breach of a material condition of probation, the defendant must come

 5 forward with evidence to excuse non-compliance.”).

 6        It is Defendant’s burden to establish his incompetency by a preponderance of

 7 the evidence and “[w]e review the district court’s ruling as to [the d]efendant’s

 8 competency for an abuse of discretion.” State v. Garcia, 2000-NMCA-014, ¶ 20, 128

 9 N.M. 721, 998 P.2d 186; see Rule 5-602(B)(2) NMRA (stating that the issue of

10 whether a defendant is competent to stand trial “shall be determined by the judge,

11 unless the judge finds there is evidence which raises a reasonable doubt as to the

12 defendant’s competency to stand trial”). In our previous notice, we proposed to hold

13 that the district court did not err in finding Defendant competent to participate in the

14 probation revocation proceeding. We noted that Defendant was apparently competent

15 enough to be tried for armed robbery in the month prior to the probation revocation

16 hearing. [DS 4; RP 151] Furthermore, we noted that the only issue appeared to be the

17 validity of Defendant’s conviction for battery upon a peace officer and that the

18 prosecution presented a certified copy of the judgment and sentence for that offense.

19 Therefore, we proposed to hold that the district court needed only to find Defendant


                                              4
 1 sufficiently competent to participate in what appeared to be a straight-forward

 2 revocation proceeding by introducing any available evidence suggesting that he was

 3 not the person convicted of battery upon a peace officer. See State v. Phillips,

 4 2006-NMCA-001, ¶ 17, 138 N.M. 730, 126 P.3d 546 (stating that the district court’s

 5 finding of a probation violation must be based on verified facts). There is nothing in

 6 the record or Defendant’s memorandum in opposition suggesting the he raised a

 7 credible question of fact as to whether he was sufficiently competent to participate in

 8 the probation revocation proceeding.

 9        We agree with Defendant’s claim in his memorandum in opposition that he has

10 a right not to be tried while incompetent. [MIO 3-6] Moreover, for purposes of this

11 opinion, we will assume that Defendant has a due process right to be able to

12 understand and to participate in a revocation proceeding. [MIO 6-7]

13        However, we disagree that the district court’s actions in this case deprived

14 Defendant of any due process right regarding competency to participate in the

15 revocation proceeding because he has failed to show that there was good cause to

16 question his competency or to require an evaluation. [MIO 3-5] See State v. Herrera,

17 2001-NMCA-073, ¶ 31, 131 N.M. 22, 33 P.3d 22. As Defendant acknowledges, a

18 question as to his competency is not raised by the assertion of that issue, even if that

19 assertion is in good faith. Id. ¶ 33; see State v. Flores, 2005-NMCA-135, ¶ 29, 138


                                              5
 1 N.M. 636, 124 P.3d 1175 (stating that “a court may consider defense counsel’s

 2 observations and opinions, but that those observations and opinions alone cannot

 3 trigger reasonable doubt about the defendant’s competency”). Moreover, Defendant

 4 does not claim that the request for a continuance was accompanied by affidavits or

 5 any other documentary evidence that could “substantiate his claim of incompetency.”

 6 Herrera, 2001-NMCA-073, ¶ 34; see Flores, 2005-NMCA-135, ¶ 31 (noting that, in

 7 support of a claim of incompetency, “a defendant could offer an affidavit from

 8 someone who has observed the defendant and formulated an opinion about his or her

 9 competency, such as a corrections officer or defense counsel’s paralegal”).

10        Therefore, “we cannot say that the [district] court abused its discretion in

11 determining that there was not good cause to order a mental examination. Nor did the

12 [district] court err in failing to hold an evidentiary hearing on [the d]efendant’s

13 competency.” Herrera, 2001-NMCA-073, ¶ 34; see State v. Najar, 104 N.M. 540,

14 543, 724 P.2d 249, 252 (Ct. App. 1986) (stating that “[w]hen a claim of incompetency

15 to stand trial is made, it must be established by a preponderance of the evidence [and

16 w]hen a defendant or his counsel asserts the doubtfulness of that competency, the

17 assertions must be substantiated” (citation omitted)).

18 CONCLUSION




                                             6
1        In conclusion, we are not persuaded that Defendant was deprived of due process

2 by the district court’s failure to grant a continuance so that Defendant’s competency

3 could be established. For the foregoing reasons as well as those set forth in our notice

4 of proposed disposition, we affirm the revocation of Defendant’s probation and the

5 imposition of his sentence.

6        IT IS SO ORDERED.



7
8                                         CYNTHIA A. FRY, Chief Judge

9 WE CONCUR:



10
11 JAMES J. WECHSLER, Judge



12
13 TIMOTHY L. GARCIA, Judge




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