This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6
STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 30,617 9 DANA WITHROW, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Stephen Bridgforth, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Chief Public Defender 17 Kathleen T. Baldridge, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 CASTILLO, Chief Judge. 222 Defendant appeals the revocation of his probation. This Court issued a notice 1 of proposed summary disposition, proposing to affirm. Defendant responded with a 2 memorandum in opposition, and we issued a second notice of proposed summary 3 disposition, in which we again proposed to affirm. Defendant has responded with a 4 second memorandum in opposition, which we have duly considered. As we are not 5 persuaded by Defendant’s arguments, we affirm. 6 In this Court’s second notice of proposed summary disposition, we proposed 7 to hold that: (1) the district court had s ubject matter jurisdiction to hold a hearing to 8 determine whether Defendant was a fugitive, see State v. Apache , 104 N.M. 290, 292, 9 720 P.2d 709, 711 (Ct. App. 1986) (stating that a “judicial determination of fugitive 10 status shall be made only after the probationer has been found and brought before the 11 court, regardless of whether this occurs before or after the date on which probation 12 was originally to have expi red”); (2) substantial evidence supported a determination 13 that Defendant was a fugitive based on a fi nding that attempts to serve him would 14 have been futile, such that the district court had subject matter jurisdiction to revoke 15 Defendant’s probation, see id. (holding that there was substantial evidence that the 16 defendant was a fugitive when a warrant wa s issued and placed in the NCIC database 17 and the defendant admitted to absconding from supervision and changing residences 18 without permission); (3) the district court’ s refusal to permit De fendant to introduce 193 evidence that the State did not attempt to serve the warrant was eith er not reserved for 1 appeal since it was not expressly reserved inDefendant’s guilty plea or in the district 2 court’s judgment, or was not reversible error because th ere was sufficient evidence to 3 support a conclusion that any attempt to serv e him would have been futile; and (4) the 4 district court could refuse to give Defendant credit fo r time served on probation from 5 the date that Defendant absconded from pr obation, rather than from the date he 6 became a fugitive, see NMSA 1978, § 31-21-15(C) (1989) (“After hearing upon 7 return, if it appears that [theprobationer] has violated the provisions of his release, the 8 court shall determine whether the time from the date of violation to the date of his 9 arrest, or any part of it, shall be counted as time served on probation.” (Emphasis 10 added.)). 11 In Defendant’s second memorandum inopposition, he res ponds to only two 12 aspects of this Court’s second proposed summary disposition. First, he states that 13 Defendant entered into a conditional plea agreement that re served for appeal both the 14 denial of his motion to dismiss for lack of jurisdiction and the denial of his motion to 15 reopen the evidence so that he could presen t testimony that the State did not attempt 16 to serve the bench warrant after entering it into the NCIC databa se. [2nd MIO 1] He 17 cites to the plea agreement in support of this assertion but, contrary to Rule 18 5-304(A)(2) NMRA, the agreement does not expressly reserve “in writing” the right 194 to appeal “any specified pre-trial moti on,” and the judgment does not provide any 1 indication that the plea was conditional or that any specified issues were reserved. 2 [RP 176-80, 183] However, assuming that th ere is evidence of record during the plea 3 hearing that would support Defendant’s assertion, see State v. Hodge , 118 N.M. 410, 4 417, 882 P.2d 1, 8 (1994) (stating that an appellate court can recognize a conditional 5 plea without written evidence when the recordreveals that the defendant has met the 6 requirements for a conditional plea), it would not affect our proposed disposition. We 7 have addressed the merits of Defendant’s arguments regarding the district court’s lack 8 of subject matter jurisdiction, as we may do so regardless of wh ether they have been 9 reserved for appeal. See State v. Garcia , 2005-NMCA-065, ¶ 6, 137 N.M. 583, 113 10 P.3d 406 (stating that challenges to a distri ct court’s subject matter jurisdiction cannot 11 be waived and may therefore be raised for the first time on appeal). With respect to 12 Defendant’s argument that the district court erred in refusing to permit him to reopen 13 the motion to dismiss in orde r to present evidence that the State did not attempt to 14 serve the warrant, we stated in our second notice of proposed summary disposition 15 that even if this issue had been reserv ed for appeal, it would not warrant reversal 16 where the State need not have made effort s to serve the warrant because there was 17 substantial evidence to support a conclusi on that such an attempt would have been 18 futile. See State v. Jimenez , 2004-NMSC-012, ¶ 8, 135 N.M. 442, 90 P.3d 461 195 (stating that pursuant to Section 31-21-15(C), a defendant is a fugitive either if the 1 state unsuccessfully attempted to serv e the bench warrant on the defendant or if any 2 attempt to serve the defendant would havebeen futile). As Defendant’s second 3 memorandum in opposition does not provide this Court with any reason to believe that 4 our conclusion regarding the sufficiency of the evidence on the issue of futility was 5 erroneous, Defendant has not established that reversal is warranted. See Hennessy v. 6 Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have 7 repeatedly held that, in summary calendar cases, the burden is on the party opposing 8 the proposed disposition to clearly point out errors in fact or law.”). 9 The second point Defendant raises inhis second memorandum in opposition is 10 that in entering his guilty plea to ab sconding from probation, Defendant did not 11 “concede” that any effort to locate him after the issuance of the bench warrant would 12 have been futile. [2nd MIO 1-2] However, this Court did not propose to conclude 13 that Defendant had made sucha concession. Instead, we stated that the evidence that 14 the State entered the warrant into the NCIC database [DS 4; RP 139], combined with 15 Defendant’s no contest plea to the State’s allegations that De fendant absconded from 16 probation, that Defendant’s probation officer attempted to locate him at his last known 17 residence on one date, and thenattempted to locate him at two other possible locations 18 where he might be staying on two other dates, and that Defendant’s location was 196 unknown to the State as of April 2009 [RP 123, 183], and the district court’s finding 1 that when Defendant was finally arrestedin January 2010, he was arrested by the 2 Unified Police Department in Utah [RP 178], was substantial evidence to support a 3 finding that an attempt to serve the warrant would have been futile since the State did 4 not know where Defendant was. See Apache , 104 N.M. at 292, 720 P.2d at 711 5 (holding that there was substantial evid ence that the defendant was a fugitive when 6 a warrant was issued and placed in the NC IC database and the defendant admitted to 7 absconding from supervision and changi ng residences without permission). 8 Defendant has not challenge d our conclusion that this evidence was sufficient to 9 support the district court’s finding, and we now hold that it was. Hennessy , 10 1998-NMCA-036, ¶ 24 (indicating that the party opposing a proposed summary 11 disposition has the burden of pointing out any errors of fact or law). 12 Therefore, for the reasons stated in this opinion and in our first and second 13 notices of proposed summary disposition, we affirm. 14 IT IS SO ORDERED. 15

__________________________________ 16 CELIA FOY CASTILLO, Chief Judge 177 WE CONCUR: 1

__________________________________ 2 CYNTHIA A. FRY, Judge 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5