This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-35961 4 WAYLON JOHNSON, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 HANISEE, Judge. 17
{1} Defendant Waylon Johnson argues that the State failed to establish that his prior 18 aggravated driving while intoxicated (DW I) conviciton was valid for the purposes of 192 enhancing his sentence. This Court’s noti ce proposed to affirm. Defendant filed a 1 memorandum in opposition to this Court’s proposed disposition. Not persuaded by 2 Defendant’s arguments, we affirm. 3
{2} Defendant essentially reasserts the same arguments made in the docketing 4 statement. [DS 3, MIO 1, 4-5] He con tinues to argue that the notation “Plea 5 Agreement Asst City Atty A. Bell & Pub lic Defender,” in the “Final Order on 6 Criminal Complaint” (Final Order) [RP 58] wa s insufficient to establish a valid prior 7 conviction because the evidence did not showthat he was represented by counsel or 8 that he waived counsel. Defendant asserts that the commitment order showing he pled 9 guilty at arraignment did not indicate if hewas represented by counsel, and the waiver 10 of counsel box was not marked; nor did it re fer to a plea agreement. [RP 61] He also 11 asserts that unlike the “Final Order,” the order on Defendant ’s failure to comply with 12 probation in that case contains a notation th at Defendant “signed a waiver of counsel” 13 [RP 57], and Defendant’s signed “waiver of counsel” is included [RP 62]. Thus, 14 Defendant essentially implies that becau se there was no waiver of counsel form 15 attached to the Final Order, as there was for the probation violation order, or entry of 16 appearance by an attorney, th e evidence does not establish that he entered into a 17 counseled plea agreement. [MIO 3] The onl y other additional facts provided seem to 18 have come from the transcript of the hearing. Defendant asserts thatthe district court 19 judge examined the municipal court file and noted with concern that the pleadings 203 contained no plea agreement. [MIO 2; RP57-66] In addition, the district court 1 apparently took judicial notice of the fact that the city of Farmington provides a public 2 defender to indigent parties in municipal court and that the not ation “Public Defender” 3 connotes a licensed attorney. [MIO 3] 4
{3} We are not persuaded that the district court erred. See Farmers, Inc. v. Dal 5 Mach. & Fabricating, Inc. , 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating 6 that the burden is on the appellant to clearlydemonstrate that the trial court erred). 7 While the memorandum in opposition provides additional facts from the hearing, it 8 does not point to any errors in fact or law relied upon in this Court’s proposed 9 disposition. See Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 10 683 (“Our courts have repeatedly held th at, in summary calendar cases, the burden is 11 on the party opposing the proposed disposition to clearly point out errors in fact or 12 law.”). Moreover, Defendant presented no evidence to the contrary, such as testimony 13 asserting he was not, in fact, represented by counsel. See State v. Bullcoming , 2008- 14 NMCA-097, ¶ 22, 144 N.M. 546, 189 P.3d 679 (“If the state presents a prima facie 15 case, the defendant may present contrary evidence.”). Based on the evidence in the 16 record, we conclude that the State met its burden of proving Defendant’s prior DWI 17 conviction by a preponderance of the evidence. See State v. Sedillo , 2001-NMCA-001, 18 ¶¶ 5, 6, 130 N.M. 98, 18 P.3d 1051 (viewing th e evidence in the light most favorable 19 to the state, while recognizing that “[p]roof beyond a reasonable doubt of the prior 204 DWI convictions is not needed”); see also Bullcoming , 2008-NMCA-097, ¶ 25 1 (recognizing holding that “in proving prio r convictions for habitual offender 2 enhancement, the [s]tate need only meetthe standard of preponderance of the 3 evidence”). 4
{4} For these reasons, and those stated in th is Court’s calendar notice, we affirm. 5

{5} IT IS SO ORDERED. 6

7 J. MILES HANISEE, Judge 8 WE CONCUR: 9

10 JONATHAN B. SUTIN, Judge 11

12 MICHAEL E. VIGIL, Judge 13