This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 35,315 4 GUY YOUNG, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Judge. 172 {1} Defendant appeals from a judgment and sentence entered after he pled guilty 1 to two counts of aggravated battery (deadly weapon), two counts of armed robbery, 2 one count of aggravated burglary, three counts of tampering with evidence, and one 3 count of unlawful taking of a motor vehicle. We issued a calendar notice proposing 4 to affirm. Defendant has filed a memorandum in opposition and a motion to amend 5 the docketing statement. For the reasons set forth below, the motion to amend is 6 denied. We affirm. 7 MOTION TO AMEND 8 {2} Defendant has filed a motion to amend the docketing statement to add a new 9 issue. [MIO I] In cases assigned to the summary calendar, this Court will grant a 10 motion to amend the docketing statement to in clude additional issues if the motion (1) 11 is timely, (2) states all facts material to a consideration of the new issues sought to be 12 raised, (3) explains how the issues were pr operly preserved or why they may be raised 13 for the first time on appeal, (4) demonstrates just cause by explaining why the issues 14 were not originally raised in the docke ting statement, and (5) complies in other 15 respects with the appellate rules. See State v. Rael , 1983-NMCA-081, ¶ 15, 100 N.M. 16 193, 668 P.2d 309. This Court w ill deny motions to amend that raise issues that are 17 not viable, even if they allege f undamental or jurisdictional error. See State v. Moore , 183 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by 1 State v. Salgado , 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. 2 {3} Here, Defendant claims that his se ntence amounted to cruel and unusual 3 punishment. [MIO 1, 8] Defendant does not argue that the length of sentence exceeded 4 what was permitted by the plea, and we address the district court’s decision to run the 5 sentence consecutive to a separate sentence belo w. In light of the violent nature of the 6 acts committed in this case, we conclude th at Defendant has not established that his 7 sentence constitutes cruel and unusual punishment. See State v. Ira , 2002-NMCA-037, 8 ¶ 18, 132 N.M. 8, 43 P.3d 359 (noting thatcruel and unusual sentence must be so 9 disproportionate to crime that it shocks the conscience). 10 Issue A 11 {4} Defendant continues to claim that doubl e jeopardy requires that his aggravated 12 battery convictions merge with his armed robbery convictions. [MIO 3] In State v. 13 Fuentes , this Court rejected an argument that the defendant's convictions for armed 14 robbery and aggravated battery with a d eadly weapon that were premised on unitary 15 conduct, violated double jeopardy. 1994- NMCA-158, ¶¶ 2-3, 18, 119 N.M. 104, 888 16 P.2d 986. In his motion belo w, Defendant argued that Fuentespre-dated our Supreme 17 Court's implementation of a “modified” Blockburger analysis. [RP 170] See State v. 18 Swick , 2012-NMSC-018, ¶ 21, 279 P.3d 747 (recognizing the adoption, inState v. 194 Gutierrez , 2011-NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024, of a “modified . . . 1 Blockburge r analysis to be used in New Mexico”). 2 {5} In any double-description double jeopardy argument, such as the one made by 3 Defendant, we consider (1) whether the de fendant's convictions were premised on 4 unitary conduct, and if so, (2) whether the Legislature intended to punish the crimes 5 separately. Swick , 2012-NMSC-018, ¶ 11 (stating the two-part analysis used to 6 determine whether the defendant 's separate convictions vi olate the prohibition against 7 double jeopardy in a double-description case). Pursuant to the modified Blockburger 8 analysis, courts evaluating the second factor must consider whether one of the statutes 9 is “vague and unspecific,” and if so, whether the State's legal theo ry of the case caused 10 one crime to be subsumed within the other. Swick , 2012-NMSC-018, ¶¶ 21, 24 11 (internal quotation marks and citation omitted); Gutierrez , 2011-NMSC-024, ¶ 59. 12 This modification precludes a “mechanical” application of the Blockburger analysis 13 whereby “it [was] enough for two statutes to have different elements.” Swick , 2012- 14 NMSC-018, ¶ 21. 15 {6} In this case, it does not appear that th e State’s theory of the case caused the 16 aggravated battery to be subsumed with in armed robbery. Because Defendant entered 17 a plea, without the benefit of a factual recordthat a trial provides, we rely on the basic 18 facts. The criminal complain t indicates that Defendant fi rst battered each victim with 195 a hammer, completing the aggravated batteries prior to demanding money from the 1 victims. [RP 15-16] BecauseDefendant was armed with the hammer, it was not 2 necessary for the State to prove the batte ries in order to prove the armed robbery 3 charges. Although Defendant argues that th e battery constituted the use of force 4 necessary to show armed robbery, the threats made after the batteries constituted a 5 separate factual predicate to prove armed robbery. NMSA 1978, § 30-16-2 (1973) 6 (“Robbery consists of the theft of anything of value from the person of another or 7 from the immediate control of another, by use or threatened use of force or violence.” 8 (Emphasis added)). In addition, even if the conduct wereunitary, the separate crimes 9 relate to different sociatal interests. See Fuentes , ¶ 16 (“We have no difficulty 10 concluding that these two criminal statutes regulate distinct deviant social conducts 11 and protect separate, societal interests.”). As such, the aggravated battery convictions 12 were not subsumed within the armed robbery convictions. 13 Issue B 14 {7} Defendant continues to claim that the di strict court erred in running his sentence 15 consecutive to another sentence that had been imposed on him in a separate 16 proceeding. [MIO 8] Our case law holds that the decision to run sentences 17 concurrently or consecutively is a matter w ithin the discretion of the trial court. See 18 e.g. State v. Allen , 2000-NMSC-002, ¶ 91, 128 N.M. 482, 994 P.2d 728 (stating that 196 “whether multiple sentences for multiple o ffenses run concurrently or consecutively 1 is a matter resting in the sound discretion of the trial court.” (internal quotation marks 2 and citation omitted)). Defendant does not demonstrate th at the combined sentences 3 were beyond the time authorized by the applicab le statutes, and we also note that the 4 facts of this case are supportive of the district court’s decision. See State v. Duran , 5 1998-NMCA-153, ¶ 41, 126 N.M. 60, 966 P.2d 768 (“There is no abuse of discretion 6 if the sentence imposed is consistent w ith the applicable statutory provisions.”), 7 abrogation recognized by State v. Merhege , 2016-NMCA-059, 376 P.3d 867. 8 Issue C [Issue D in the Docketing Statement] 9 {8} Defendant continues to claim that the district court erred by failing to assure 10 that there was a factual basi s for the plea. [MIO 11] “Whe n a defendant enters a plea 11 of guilty or nolo contendere, the charging doc ument, plea agreement, or transcript of 12 the plea hearing should establish the factual basis for the plea.” State v. Hall , 2013- 13 NMSC-001, ¶ 22, 294 P.3d 1235; see Rule 5-304(G) NMRA. In this case, we believe 14 that the record provided the district court a sufficient factual basis for the plea. [RP 15 15-18] 16 Issue D [Issue C in the Docketing Statement] 17 {9}Defendant has withdrawn this issue. [MIO 13] 18 {10} For the foregoing reasons, we affirm. 197 {11} IT IS SO ORDERED. 1

__________________________________ 2 MICHAEL E. VIGIL, Judge 3

WE CONCUR: 4

___________________________ 5 LINDA M. VANZI, Chief Judge 6

_______________________________ 7 JAMES J. WECHSLER, Judge 8