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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. A-1-CA-35961

 5 WAYLON JOHNSON,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 HANISEE, Judge.

18   {1}    Defendant Waylon Johnson argues that the State failed to establish that his prior

19 aggravated driving while intoxicated (DWI) conviciton was valid for the purposes of
 1 enhancing his sentence. This Court’s notice proposed to affirm. Defendant filed a

 2 memorandum in opposition to this Court’s proposed disposition. Not persuaded by

 3 Defendant’s arguments, we affirm.

 4   {2}   Defendant essentially reasserts the same arguments made in the docketing

 5 statement. [DS 3, MIO 1, 4-5] He continues to argue that the notation “Plea

 6 Agreement Asst City Atty A. Bell & Public Defender,” in the “Final Order on

 7 Criminal Complaint” (Final Order) [RP 58] was insufficient to establish a valid prior

 8 conviction because the evidence did not show that he was represented by counsel or

 9 that he waived counsel. Defendant asserts that the commitment order showing he pled

10 guilty at arraignment did not indicate if he was represented by counsel, and the waiver

11 of counsel box was not marked; nor did it refer to a plea agreement. [RP 61] He also

12 asserts that unlike the “Final Order,” the order on Defendant’s failure to comply with

13 probation in that case contains a notation that Defendant “signed a waiver of counsel”

14 [RP 57], and Defendant’s signed “waiver of counsel” is included [RP 62]. Thus,

15 Defendant essentially implies that because there was no waiver of counsel form

16 attached to the Final Order, as there was for the probation violation order, or entry of

17 appearance by an attorney, the evidence does not establish that he entered into a

18 counseled plea agreement. [MIO 3] The only other additional facts provided seem to

19 have come from the transcript of the hearing. Defendant asserts that the district court

20 judge examined the municipal court file and noted with concern that the pleadings
                                              2
 1 contained no plea agreement. [MIO 2; RP 57-66] In addition, the district court

 2 apparently took judicial notice of the fact that the city of Farmington provides a public

 3 defender to indigent parties in municipal court and that the notation “Public Defender”

 4 connotes a licensed attorney. [MIO 3]

 5   {3}   We are not persuaded that the district court erred. See Farmers, Inc. v. Dal

 6 Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating

 7 that the burden is on the appellant to clearly demonstrate that the trial court erred).

 8 While the memorandum in opposition provides additional facts from the hearing, it

 9 does not point to any errors in fact or law relied upon in this Court’s proposed

10 disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d

11 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is

12 on the party opposing the proposed disposition to clearly point out errors in fact or

13 law.”). Moreover, Defendant presented no evidence to the contrary, such as testimony

14 asserting he was not, in fact, represented by counsel. See State v. Bullcoming, 2008-

15 NMCA-097, ¶ 22, 144 N.M. 546, 189 P.3d 679 (“If the state presents a prima facie

16 case, the defendant may present contrary evidence.”). Based on the evidence in the

17 record, we conclude that the State met its burden of proving Defendant’s prior DWI

18 conviction by a preponderance of the evidence. See State v. Sedillo, 2001-NMCA-001,

19 ¶¶ 5, 6, 130 N.M. 98, 18 P.3d 1051 (viewing the evidence in the light most favorable

20 to the state, while recognizing that “[p]roof beyond a reasonable doubt of the prior
                                               3
1 DWI convictions is not needed”); see also Bullcoming, 2008-NMCA-097, ¶ 25

2 (recognizing holding that “in proving prior convictions for habitual offender

3 enhancement, the [s]tate need only meet the standard of preponderance of the

4 evidence”).

5   {4}   For these reasons, and those stated in this Court’s calendar notice, we affirm.

6   {5}   IT IS SO ORDERED.


7
8                                         J. MILES HANISEE, Judge

9 WE CONCUR:


10
11 JONATHAN B. SUTIN, Judge


12
13 MICHAEL E. VIGIL, Judge




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