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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. 33,815

 5 FRANCISCO MUNOZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

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

11 for Appellee

12   Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   David Henderson, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Defendant Francisco Munoz appeals from the judgment and sentence convicting

 2 him of two counts of kidnapping (second degree). [RP144] Defendant raises one

 3 issue on appeal, contending that his sentence, which he acknowledges is the maximum

 4 allowed by law [DS 2 (¶ 6)], constitutes cruel and unusual punishment given the

 5 mitigating circumstances he presented at sentencing. [DS 1-2 (¶¶ 3-7)]

 6   {2}   The calendar notice proposed summary dismissal. [CN 1] Defendant has filed

 7 a memorandum in opposition and a motion to amend the docketing statement that we

 8 have duly considered. [MIO] We deny the motion to amend as not viable for the

 9 reasons discussed in this Opinion.       Finding the memorandum in opposition

10 unpersuasive, we dismiss the appeal.

11 DISCUSSION

12 Original Issue on Appeal

13   {3}   In his memorandum in opposition, Defendant continues to argue that this Court

14 has jurisdiction over the cruel and unusual punishment issue on appeal and that it

15 should be decided on the merits. [MIO 4] Defendant recognizes that State v.

16 Chavarria supports this Court’s reasoning in the calendar notice, but argues that

17 waiver of appeal in the plea agreement does not divest this Court of subject matter

18 jurisdiction, relying on State v. Rudy B., 2010-NMSC-045, ¶ 13, 149 N.M. 22, 243

19 P.3d 726. [MIO 4-5] Defendant also argues this Court’s reliance on Chavarria


                                             2
 1 “conflates waiver and jurisdiction concepts” [MIO 6] and suggests that this analysis

 2 has no place and “constitutes a remnant of an abandoned doctrine” where fundamental

 3 error has occurred. [Id.] Defendant insists that, in any case, he did not waive appeal

 4 of an unconstitutional sentence and that his sentence constitutes cruel and unusual

 5 punishment given his role in the underlying crimes, assistance to the police, and

 6 young age. [MIO 7-8] We are not persuaded.

 7   {4}   Contrary to Defendant’s assertions in the memorandum in opposition, in the

 8 calendar notice, this Court exercised its jurisdiction in order to determine that

 9 Defendant did not preserve at sentencing nor reserve in the plea agreement his cruel

10 and unusual punishment issue on appeal. This Court also considered Defendant’s

11 claim that, despite lack of preservation and reservation, fundamental error occurred

12 in sentencing Defendant without mitigation. Because Defendant was sentenced to the

13 maximum sentence allowed under the law and in accordance with the plea agreement,

14 we concluded, however, that no fundamental error had occurred. We also pointed out

15 that when a sentence is authorized by statute and complies with the plea agreement,

16 applicable law does not require the sentencing court to mitigate the sentence. Finally,

17 we noted that Defendant did not move to set aside the plea agreement nor has he

18 availed himself of his post-conviction remedies. Under the circumstances, we reject




                                              3
 1 Defendant’s request in his memorandum in opposition that we distinguish or overrule

 2 Chavarria.

 3   {5}   Thus, as we discussed in the calendar notice, Defendant pled guilty to two

 4 counts of second degree kidnapping. [RP 123] The memorandum confirms that

 5 Defendant did not raise his cruel and unusual claim below. [MIO 5] Moreover,

 6 Defendant did not reserve any issues for appeal in the plea agreement. [RP 123, 124

 7 (¶ 5)] Further, Defendant does not challenge the validity of the guilty plea, and he

 8 acknowledges that his sentence is the maximum allowed by statute. [DS 2 (¶ 6)] See,

 9 e.g., State v. Gardner, 2003-NMCA-107, ¶ 42, 134 N.M. 294, 76 P.3d 47

10 (“Regardless of what mitigating evidence [the d]efendant presented, the statutory

11 scheme does not require the trial court to depart from the basic sentence.”); see also

12 State v. Vasquez, 2010-NMCA-041, ¶ 41, 148 N.M. 202, 232 P.3d 438 (stating that

13 “there is no abuse of discretion if the sentence imposed is authorized by law”).

14   {6}   In State v. Chavarria, our Supreme Court noted that “a sentence authorized by

15 statute, but claimed to be cruel and unusual punishment under the state and federal

16 constitutions, does not implicate the jurisdiction of the sentencing court and, therefore,

17 may not be raised for the first time on appeal.” 2009-NMSC-020, ¶ 14; see also State

18 v. Burdex, 1983-NMCA-087, ¶ 14, 100 N.M. 197, 668 P.2d 313 (holding that a cruel

19 and unusual punishment claim is not jurisdictional and, therefore, may not be raised


                                               4
 1 for the first time on appeal). As in Chavarria, in this case, because Defendant’s

 2 sentence “was authorized by statute, [his] cruel and unusual punishment claim may

 3 not be raised for the first time on appeal.” 2009-NMSC-020, ¶ 14.

 4   {7}   Moreover, Defendant’s cruel and unusual claim does not constitute fundamental

 5 error on direct appeal. As in Chavarria, because Defendant did not reserve any issues

 6 for appeal in the plea agreement, and he does not challenge the validity of his guilty

 7 plea, we conclude that Defendant waived his right to challenge the constitutionality

 8 of his sentence on appeal. See 2009-NMSC-020, ¶ 16. As recognized in Chavarria,

 9 there is no fundamental error necessitating reversal of Defendant’s conviction and

10 sentence, and therefore, we do not reach the merits of Defendant’s cruel and unusual

11 punishment claim. See id.

12   {8}   In Chavarria, we noted that “a defendant can enter a conditional plea of guilty

13 and reserve the right to challenge the constitutionality of his sentence on appeal.” Id.

14 ¶ 17 (citing Rule 5-304(A)(2) NMRA). Moreover, a defendant has post-judgment

15 remedies if he considers the sentence to be illegal, or in excess of the maximum

16 allowed by law, or if it was imposed “in violation of the constitution of the United

17 States, or of the constitution or laws of New Mexico.” Chavarria, 2009-NMSC-020,

18 ¶ 17 (citing Rule 5-801 NMRA, Rule 5-802(A) NMRA, and NMSA 1978, § 31-11-6

19 (1966)). As in Chavarria, in this case, however, Defendant “did not pursue any of


                                              5
 1 these alternative avenues of relief.” Id. Therefore, we hold that Defendant “waived

 2 his right to challenge the constitutionality of his sentence on appeal.” Id. ¶ 18.



 3 Motion to Amend

 4   {9}    Defendant moves to amend his docketing statement [MIO 2] to add the

 5 following issue: Defendant contends that the sentencing court’s determination that

 6 second degree kidnapping charges were serious violent felonies under the Earned

 7 Meritorious Deductions Act (EMDA) was not based on legally sufficient findings of

 8 fact, and this Court should remand for resentencing. [MIO 8] We deny Defendant’s

 9 motion because the issue is not viable. See State v. Moore, 1989-NMCA-073, ¶ 45,

10 109 N.M. 119, 782 P.2d 91 (stating that “we should deny motions to amend that raise

11 issues that are not viable and we should grant motions to amend that raise issues of

12 demonstrated fundamental or jurisdictional error”), overruled on other grounds by

13 State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.

14   {10}   Defendant’s plea agreement does not waive an appeal on the grounds that the

15 district court was without authority to impose an illegal sentence. See State v. Tafoya,

16 2010-NMSC-019, ¶ 7, 148 N.M. 391, 237 P.3d 693. NMSA 1978, Section 33-2-

17 34(L)(4)(a)-(n) (2006) enumerates specific “serious violent offenses,” and Section 33-

18 2-34(L)(4)(o) enumerates further offenses that may be considered serious violent


                                              6
 1 offenses “when the nature of the offense and the resulting harm are such that the court

 2 judges the crime to be a serious violent offense for the purpose of this section[,]”

 3 including “second degree kidnapping, as provided in [NMSA 1978,] Section 30-4-1

 4 [(2003).]” See Tafoya, 2010-NMSC-019, ¶ 12.

 5   {11}   In this case, the record proper indicates that the district court properly

 6 considered the two kidnapping convictions to be serious violent offenses for purposes

 7 of Section 33-2-34. As discussed in this Opinion, Defendant pled guilty to two counts

 8 of second degree kidnapping. [RP 123] The two kidnapping counts were joined and

 9 tried with the two counts of murder of the same victims because the two offenses

10 occurred from the same incident and the same conduct or series of acts that were

11 connected or constituted parts of a single scheme or plan. [RP 105, 107] See Ct. App.

12 No. 33,817. Defendant agreed in the plea agreement relating to the kidnappings that

13 “there exists a basis in fact for believing . . . [D]efendant is guilty of the offenses

14 charged [which are two counts of kidnapping and two counts of murder of the two

15 victims].” [RP 127 (¶ 5)] The judgment and sentence provides that the sentence is

16 fifteen years for each count of second degree kidnapping, and the district court

17 determined each of the crimes to be a “Serious Violent Offen[s]e; Justification:

18 [Section] 33-2-34, NMSA 1978[.]”         [RP 144]     The State filed its sentencing

19 memorandum prior to the sentencing hearing and recommended that the district court


                                              7
 1 determine the two kidnapping counts were serious violent offenses pursuant to Section

 2 33-2-34. [RP 137-41] Under the circumstances, therefore, we are not persuaded the

 3 district court entered an illegal sentence by failing to consider the factual basis or

 4 failing to adequately justify providing that the two kidnappings that led to the two

 5 murders were serious violent offenses under Section 33-2-34(L)(4)(o)(7).

 6   {12}   Accordingly, we deny Defendant’s motion to amend.

 7 CONCLUSION

 8   {13}   We dismiss Defendant’s appeal.

 9   {14}   IT IS SO ORDERED.



10                                         __________________________________
11                                         JONATHAN B. SUTIN, Judge


12 WE CONCUR:


13 ___________________________________
14 RODERICK T. KENNEDY, Chief Judge


15 ___________________________________
16 CYNTHIA A. FRY, Judge




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