This decision was not selected for publication inthe New Mexico Reports. Please see Rule 12- 1 405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this 2 electronic decision may contain computer-generated errors or other deviations from the official 3 paper version filed by the Supreme Court and does not include the filing date. 4 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellant, 7
v. 8 No. 31,129 9 RICHARD D. ALDERETE , 10 Respondent-Appellee. 11
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 12 Douglas Driggers, District Judge 13 Gary K. King, Attorney General 14 M. Anne Kelly, Assistant Attorney General 15 Albuquerque, NM 16 for Appellant 17 Jeff C. Lahann 18 Las Cruces, NM 19 for Appellee 20 DISPOSITIONAL ORDER OF REVERSAL 21 {1} This matter having come before the full Court on direct appeal by the State 22 from a grant of a habeas corpus petition filed in the district court, the Justices having 232 considered the briefs, the record, and othe r relevant file materials, and otherwise 1 having fully informed themselves on the issu es and applicable law as raised by the 2 parties; and 3 {2} Each Justice having concurred that there is no reasonable likelihood that a 4 written decision or opinion would affect the di sposition of this appeal or advance the 5 law of the State; and 6 {3} Acting within this Court’s discretion under Rule 12-405(B)(1) NMRA to 7 dispose of a case by order, decision, or memorandum opinion rather than formal 8 opinion because “[t]he issues presented have been previously decided by the 9 supreme court or court of appeals.” 10 IT IS ADJUDGED THAT: 11 {4} The habeas judge erred in granti ng Respondent-Appellee Richard Alderete’s 12 habeas corpus petition, on a theory that the sentencing judge had implicitly rejected 13 the plea agreement entered into by Alderete by imposing a sentence that exceeded 14 a prosecutor’s sentencing recommendation. Because we conclude that (1) Alderete 15 failed to preserve his claims by not maki ng any timely assertion of his claimed right 16 to set aside his plea before the senten cing judge and by not raising the issue on direct 17 appeal, and (2) there is no showing of f undamental error that would entitle Alderete 18 to litigate the unpreserved issue at this late date, we reverse the district court’s grant 193 of the writ of habeas corpus . Because of this resolution, there is no need to reach 1 any other potential issues in this case, in cluding (1) whether the record reflects that 2 the prosecutor agreed to affirmatively recommend that the trial court not impose 3 greater than three year’s in carceration, as opposed to ag reeing not to affirmatively 4 seek incarceration of more thanthree years, (2) the extent to which such a distinction 5 might or might not be significant, inlight of this Court’s opinions in State v. Pieri , 6 2009-NMSC-019, 146 N.M. 155, 207 P.3d 1132, and Eller v. State , 92 N.M. 52, 582 7 P.2d 824 (1978), and (3) whether the habeas court had the authority to resentence 8 Alderete, as opposed to affording him the opportunity to set aside his plea and go to 9 trial on all original charges. 10 {5} In order to rely on fundamental error to prevail in this habeas proceeding, 11 Alderete acknowledges that he must es tablish both that the sentencing court 12 committed clear error and that the error affected the outcome, as outlined in State v. 13 Bencomo , 109 N.M. 724, 790 P.2d 521 (Ct. App. 1990). We have determined that 14 the second requirement has not been met, and therefore there is no need to address 15 the first. 16 {6} We note the following undisputed matters in the record: (1) the court fully 17 informed Alderete of the potential sentence and consequences; (2) the court’s 18 sentence did not exceed those parameters; (3 ) neither Alderete nor his counsel made 194 any contemporaneous objection to the senten ce, requested that the plea be set aside, 1 nor indicated in any other way that th e sentence had exceeded their understanding 2 of the conditions of the plea agreement; (4 ) the sentencing court did not refuse in 3 any way to entertain a motion to set aside the plea, since no such request was made; 4 and (5) even when Alderete made his in itial motion to reduce his sentence two years 5 later, he did so based on a hardship basis, rather than any claim that the sentence had 6 violated any conditions of his plea agreement. 7 {7} Alderete has failed to show that the outcome clearly would have been 8 different even if the trial court had asked him at the time of sentencing if he would 9 like to set aside his plea and go to trial. That is, he has not shown that there was a 10 “high probability that defendant would have withdrawn his plea” if the option had 11 been explicitly offered to him. Bencomo, 109 N.M. at 725, 790 P.2d at 522. Unlike 12 the situation in Bencomo , Alderete had received numerous benefits that he would 13 have forfeited by withdrawing his plea and going to trial on the original charges and 14 sentencing consequences on his hand-to -hand undercover drug trafficking case, 15 including (1) avoidance of the statutory habitual offender enhancement of his 16 sentence, (2) concurrent time on the two offenses to which he pled, (3) running his 17 state sentences concurrently with his separate federal sentence, and (4) a suspension 18 of three of the statutory twelve-years of his trafficking sentence. 195 {8} We therefore reverse the district court’s issuance of a writ of habeas corpus 1 and remand with directions to reinst ate Alderete’s conviction and sentence. 2 {9} IT IS SO ORDERED. 3

_________________________________ 4 EDWARD L. CHÁVEZ, Chief Justice 5

_________________________________ 6 PATRICIO M. SERNA, Justice 7

_________________________________ 8 PETRA JIMENEZ MAES, Justice 9

_________________________________ 10 RICHARD C. BOSSON, Justice 11

_________________________________ 12 CHARLES W. DANIELS, Justice 13