1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the 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. 30,506

10 RHONDA TRUJILLO,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

13 William A. Sanchez, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 for Appellee

17 Rhonda Trujillo

18 Grants, NM

19 Pro se Appellant

20 MEMORANDUM OPINION

21 CASTILLO, Judge.
2

1 Pro se Defendant filed a docketing statement with this Court claiming that the

2 sentence imposed for her convictions for two counts of homicide by vehicle and one

3 count of child abuse was an illegal sentence. We proposed to dismiss in a calendar

4 notice, and Defendant has responded with a memorandum in opposition. We have

5 considered Defendant’s arguments, but we are not persuaded by them. We therefore

6 dismiss the appeal.

7 Defendant entered a plea of guilty to the charges in this case. [RP 109] See

8 State v. Hodge, 118 N.M. 410, 414, 882 P.2d 1, 5 (1994) (stating that a plea of guilty

9 or nolo contendere waives any objection to prior defects in the proceedings and

10 waives statutory and constitutional rights, including a right to appeal); see also State

11 v. Dominguez, 2007-NMSC-060, ¶ 14, 142 N.M. 811, 171 P.3d 750 (holding that the

12 defendant failed to preserve his objection to his guilty plea because he failed to move

13 to withdraw his plea). The district court determined that the two charges of homicide

14 by vehicle were serious violent offenses. [RP 110] The district court did not enter

15 findings supporting its determination that the offenses were serious violent offenses

16 as discussed in State v. Morales, 2002-NMCA-016, ¶ 16, 131 N.M. 530, 39 P.3d 747.

17 The judgment and sentence was filed on July 14, 2009. [RP 109]

18 Defendant did not move to withdraw her plea, and she did not file a notice of

19 appeal from the judgment and sentence. Instead, she filed a motion on October 7,
3

1 2009, asking the district court to reconsider its determination that two of the charges

2 were serious violent offenses. [RP 113] Defendant claimed that the district court

3 should exercise its discretion to reconsider its designation of the charges as serious

4 violent offenses because Defendant had entered a plea “in an effort to assume full

5 responsibility for this incident and to not burden either the Sate or the victim’s (sic)

6 family (sic) with the trauma and expenses of a trial.” [RP 114] The State, in its

7 response, referred to evidence that could support the determination that the offenses

8 were serious violent offenses. [RP 119] The district court did not enter an order on

9 Defendant’s motion. The case came to this Court when Defendant filed her docketing

10 statement. On appeal, for the first time, Defendant claims that her sentence is illegal

11 because the district court made no finding under Morales that the offenses were

12 committed with an intent to do serious bodily harm. See NMSA 1978, § 33-2-34

13 (L)(4)(o) (2006) (explaining earned meritorious deductions).

14 Notice of Appeal

15 Initially, we note that Defendant filed no notice of appeal in the district court

16 in this case, either from the judgment and sentence or based on the filing of the motion

17 to reconsider her sentence. Under Rules 12-201(A)(2) and 12-202(A) NMRA, a

18 notice of appeal must be filed within thirty days of the judgment and must be filed

19 with the district court clerk. Defendant filed a notice of appeal with this Court almost
4

1 one year after the judgment and sentence was filed. [Ct. App. File] However, the

2 notice filed with this Court was not timely and was not filed in the district court as

3 required by our appellate rules. In addition, although Defendant claims that she has

4 now sent a notice of appeal to the district court, the referenced pleading is not in the

5 record. Cf. State v. Martin, 101 N.M. 595, 603, 686 P.2d 937, 945 (1984) (stating that

6 court may not consider matters not of record).

7 We are aware that, in certain criminal cases, there is a conclusive presumption

8 of ineffective assistance of counsel where a notice of appeal is not filed within the

9 time limit required. State v. Duran, 105 N.M. 231, 232, 731 P.2d 374, 375 (Ct. App.

10 1986). However, that presumption is not extended to cases such as this where a

11 defendant has entered a guilty or no contest plea. See State v. Peppers, 110 N.M. 393,

12 399, 796 P.2d 614, 620 (Ct. App. 1990). In addition, Defendant has chosen to

13 represent herself in this appeal, and Defendant cannot rely on the presumption that the

14 defects regarding her notice of appeal was due to ineffective assistance of counsel.

15 Cf. Newsome v. Farer, 103 N.M. 415, 419, 708 P.2d 327, 331 (1985) (holding that pro

16 se litigants are held to the “same standard of conduct and compliance with court rules,

17 procedures, and orders as are members of the bar”). We hold that, because a timely

18 notice of appeal from the judgment and sentence was not filed by Defendant, the

19 appeal should be dismissed.
5

1 Motion to Reconsider Sentence

2 It is not clear to this Court under what authority Defendant filed the motion to

3 reconsider her sentence. To the extent that the motion was filed pursuant to NMSA

4 1978, Section 39-1-1 (1917), it was not filed within thirty days after the judgment and

5 sentence was entered in this case. Therefore, we hold that the district court had lost

6 control over the case and could not hear a motion under Section 39-1-1. To the extent

7 that Defendant’s motion was filed pursuant to Rule 5-801 NMRA, it was filed within

8 the required ninety-day time limit. However, our Supreme Court has held that earned

9 meritorious deductions under Section 33-2-34 is an administrative responsibility and

10 have no bearing on the validity of the original sentence imposed. State v.Aqui, 104

11 N.M. 345, 348, 721 P.2d 771, 774 (1986), limited in part on other grounds by Brooks

12 v. Shanks, 118 N.M. 716, 719-20, 885 P.2d 637, 640-41 (1994). The Court in Aqui

13 stated that claims of entitlement to meritorious deductions challenge the execution of

14 a sentence, not the sentence itself, and such claims cannot be brought under Rule 5-

15 801. Aqui, 104 N.M. at 348, 721 P.2d at 774. We hold that Defendant’s motion could

16 not be brought under Rule 5-801, and her claim that the sentence imposed by the

17 district court was illegal due to the effect on her opportunity to earned meritorious

18 deductions must fail. Based on the fact that Defendant’s motion would have been

19 untimely under Section 39-1-1 and the fact that the motion could not be categorized
6

1 as a motion under Rule 5-801, as well as the Supreme Court’s holding in Aqui that

2 factors under Section 33-2-34 have no bearing on the validity of the original sentence

3 imposed, we hold that Defendant’s appeal should be dismissed.

4 For the reasons discussed in this opinion and those included in our calendar

5 notice, we dismiss Defendant’s appeal.

6 IT IS SO ORDERED.

7 ___________________________________

8 CELIA FOY CASTILLO, Judge

9 WE CONCUR:

10 __________________________________

11 MICHAEL D. BUSTAMANTE, Judge

12 __________________________________

13 ROBERT E. ROBLES, Judge