May 13, 2019- State of New Mexico v. Christopher Wheeler, No. A-1-CA-37528

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-37528
5 	CHRISTOPHER WHEELER,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 Mary L. Marlowe, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	John Charles Bennett, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 VANZI, Judge.
18 	{t} 	Defendant appeals from a district court order finding a probation violation,
19 retaining Defendant's conditional discharge, but giving him an unsatisfactory
20 	discharge from probation. We issued a calendar notice proposing to affirm. Defendant
21 	has responded with a motion to amend the docketing statement and a memorandum
Court of Appeals of New Mexico
Filed 5/13/2019 8:50 AM

1 in opposition. We hereby deny the motion to amend and affirm the district court.
2 Motion to Amend
3 	{2} 	Defendant has filed a motion to amend the docketing statement to add a new
4 issue. In cases assigned to the summary calendar, this Court will grant a motion to
5 amend the docketing statement to include additional issues if the motion ( 1) is timely;
6 (2) states all facts material to a consideration of the new issues sought to be raised;
7 (3) explains how the issues were properly preserved or why they may be raised for the
8 first time on appeal; (4) demonstrates just cause by explaining why the issues were
9 not originally raised in the docketing statement; and ( 5) complies in other respects
10 with the appellate rules. State v. Rael, 1983-NMCA-081, 115, 100 N.M. 193, 668
11 	P .2d 309. This Court will deny motions to amend that raise issues that are not viable,
· 12 even if they allege fundamental or jurisdictional-error. See State v. Moore, 1989-
13 	NMCA-073, 142, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State
14 v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.
15 	{3} 	Here, Defendant seeks to add the issue of whether the evidence was sufficient
16 to support the finding of probation violation. [MIO 3] "In a probation revocation
17 proceeding, the State bears the burden of establishing a probation violatio~ with a
. 	I
18 	reasonable certainty." See State v. Leon, 2013-NMCA-Ol l, 136,292 P.3d 493. "To
19 establish a violation of a probation agreement, the obligation is on the [s]tate to prove
2

1 willful conduct on the part of the probationer so as to satisfy the applicable burden
2 of proof." In Re Bruno R., 2003-NMCA-057,, 11, 133 N.M. 566, 66 P.3d 339; see
3 State v. Martinez, 1989-NMCA-036,, 8, 108 N.M. 604, 775 P.2d 1321 (explaining
4 that probation should not be revoked where the violation is not willful, in that it
5 resulted from factors beyond a probationer's control).
6 {4} 	The district court found that Defendant violated state law, in contravention of
7 condition 1 in his probation agreement. [RP 45, 69] At the hearing, the arresting
8 officer testified that he was dispatched to.J.C. Penney in reference to shoplifting.
9 [MIO 4] When he arrived he saw Defendant handcuffed and sitting on a sidewalk
10 next to mall security officers. [MIO 4] The officer further testified that he arrested
11 	Defendant after speaking to three eye-witnesses at the scene. [DS 3]
12 {5} 	Referring us to a United States Supreme Court case and a federal circuit court
13 	case, Defendant argues that his mere arrest was insufficient to establish the violation.
14 	[MIO 7] However, neither of those cases involved a probation violation, l~t alone
15 	testimony from an arresting .officer that provided the context of the incident. As
16 noted, the applicable inquiry here is whether the State showed to a reasonable
17 certainty that the violation occurred. Cf State v. DeBorde, 1996-NMCA-042,, 13,
18 	121 N.M. 601,915 P.2d 906 (noting the state's strong interest in being able to return
19 a probationer to imprisonment without the burden of a new adversary criminal trial).
3

1 Given this burden of proof, we conclude that a fact-finder could find that Defendant
2 violated the probation condition that he obey the law.
3 Issue in Docketing Statement
4 	{6} 	Defendant does not raise any new arguments on this issue. We therefore rely
5 on the analysis set forth in the calendar notice. See State v. Mondragon, 	1988-
6 NMCA-027, 110, 1071'T.M. 421, 759 P.2d 1003 (stating that "[a] party responding
7 to a summary calendar notice must come forward and specifically point out errors of
8 law and fact[,]" 	and the repetition 	of ,earlier arguments 	does not fulfill 	this
9 requirement).
10 {7} 	For the reasons set forth above, we affirm.
11 	{8} 	IT IS SO ORDERED.
14 WE CONCUR:
...
15 	J-~
16 J. MILES HANISEE, Judge
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