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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 31,312 4 WILLIAM CORY GANN, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Thomas J. Hynes, District Judge 8 Gary K. King, Attorney General 9 Andrew S. Montgomery, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jacqueline L. Cooper, Chief Public Defender 13 Will O’Connell, Assistan t Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 WECHSLER, Judge. 182 Defendant was convicted of aggravated assault upon a peace officer with a 1 deadly weapon, contrary to NMSA 1978, Section 30-22-22(A)(1) (1971), and 2 possession of a firearm by a felon, contrary to NMSA 1978, Section 30-7-16(A) 3 (2001). Defendant appeals his sentence, argui ng that the district court violated his 4 constitutional guarantee against double jeopardy when it granted his motion to run his 5 sentence concurrently with the sentence imposed in his probation proceeding, and 6 thereafter reconsidered and reinstated th e original consecutive sentence. For the 7 reasons that follow, we affirm Defendant’s consecutive sentence. 8 BACKGROUND 9 On February 7, 2011, Defendant pled no contest to aggrav ated assault on a 10 peace officer with a deadly weapon and po ssession of a firearm by a felon. The 11 district court entered a judgment convicti ng Defendant and sentencing him to a total 12 prison term of four years followed by a two-y ear parole term. The district court was 13 aware of a pending proceeding regarding De fendant’s probation vi olation and ordered 14 that the four-year sentence “shall run cons ecutively to the sentence imposed [in the 15 probation proceeding].” 16 On April 5, 2011, Defendant filed a moti on to reconsider the sentence, asking 17 the district court to recons ider its decision to run the sentences consecutively versus 18 concurrently. One day later, and without awaiting a response from the State or 193 holding a hearing on Defendant’s motion, the district court signed the form order 1 submitted by Defendant ordering that the se ntence “shall run concurrently with the 2 sentence in [the probation proceeding].” Tw o days later, on April 8, 2011, the State 3 filed a motion to set aside the new order, arguing that the State had not had an 4 opportunity to respond to Defendant’s motion to reconsider and that the victims are 5 entitled to notice of any and all hearings. In response, Defendant conceded that the 6 State should have had an opportunity to be heard regarding whether the sentence 7 should run consecutively or concurrently, but requested that the April 6, 2011 order 8 remain in place. The district court pro ceeded to hold a heari ng on the State’s motion 9 and ultimately reinstated Defendant ’s original consecutive sentence. 10 Defendant filed another motion to reconsider, arguing that he had begun serving 11 his sentence at the time of the April 6, 2011 order and that his sentence therefore could 12 not be increased without violating double jeopardy because he had a reasonable 13 expectation of finality in the amended senten ce. The district court denied Defendant’s 14 motion, and this appeal followed. 15 DOUBLE JEOPARDY 16 On appeal, Defendant argues that he had an expectation of finality in the 17 concurrent sentences imposed by the April 6, 2011 order because he was already 18 serving his sentences at the time the order wa s issued. Therefore, he argues that the 194 subsequent April 8, 2011 order, reinstating consecutive sentencing, violated his right 1 to finality in his sentence and implicated the constitutional guarantee against double 2 jeopardy. We review Defendant’s contention that the subsequent modification of his 3 sentence violated his constitutional guarantee against double jeopardy de novo. See 4 State v. Lopez , 2008-NMCA-002, ¶ 12, 143 N.M. 274, 175 P.3d 942. 5 “It is a well-established principle of Ne w Mexico law that a [district] court 6 generally cannot increase a valid senten ce once a defendant begins serving that 7 sentence.” State v. Porras , 1999-NMCA-016, ¶ 7, 126 N.M. 628, 973 P.2d 880. This 8 Court has since clarified that “[i]ncreas ing a defendant’s sentence after a defendant 9 begins serving the sentence implicates double jeopardy concerns if a defendant’s 10 objectively reasonable expectations of finality in the original sentencing proceedings 11 are violated.” State v. Redhouse , 2011-NMCA-118, ¶ 10, 269 P.3d 8. Thus, the 12 question presented in this appeal is whether Defendant had an objectively reasonable 13 expectation of finality that would prevent the district court’s reconsideration of the 14 April 6, 2011 order. We conclude that under the circumstances, Defendant had no 15 reasonable expectation of finality and that double jeopardy did not preclude the 16 subsequent modification of Defendant’s sentence. 17 In this case, the district court originally ruled that Defendant’s sentences were 18 to be run consecutively. Defendant file d a motion to reconsider attaching a form 195 order, which the district court signed the day after the motion was filed. After the 1 district court signed Defendant’s form order on April 6, 2011, without allowing the 2 State an opportunity to respond, the State had the right to ask the district court to 3 reconsider its decision pursuant to both NMSA 1978, Section 39-1-1 (1917), and Rule 4 5-801(A) NMRA. Section 39- 1-1 provides that a district court’s final judgment or 5 decree shall remain under the court’s control for a period of thirty days and for such 6 additional time as may be nece ssary to enable the court to rule on any motion directed 7 against the judgment or decree and filed withinthe thirty-day peri od. The State filed 8 its motion for reconsideration on April 8, 2011, just two days after the entry of the 9 April 6, 2011 order, and the district c ourt’s May 13, 2011 ruling on the motion was 10 within the time permitted by Section 39-1-1. 11 Additionally, the State had the right to ask the district court to reconsider its 12 decision pursuant to Rule 5-801(A), which authorizes the district court to “correct a 13 sentence imposed in an illegal manner withinthe time provided by this rule for the 14 reduction of sentence.” This Court has recently confirmed that Rule 5-801(A) applies 15 to the state as well as defendants, holding that there is no indication that Rule 5- 16 801(A) was “meant to apply only to de fendants or except the [s]tate from its 17 seemingly broad reach.” State v. Torres , 2012-NMCA-026, ¶ 31, 272 P.3d 689, cert. 18 granted , 2012-NMCERT-__, __ P.3d __ (March 2, 2012). Defendant’s sentence was 196 imposed in an illegal manner in that the district court violated the New Mexico Rules 1 of Criminal Procedure and local court rules when granting Defendant’s motion 2 without allowing the State anopportunity to respond. See State v. Chung , 2012- 3 NMCA-049, ¶ 9, __ P.3d __, cert. granted , 2012-NMCERT-__, __ P.3d __ (May 11, 4 2012). Under our Rules of Criminal Proce dure, the State had a right to file a 5 responsive pleading within fifteen days after service of Defendant’s motion. Rule 5- 6 120(C) NMRA (stating that the moving party shall determine if the motion is opposed, 7 and if it is not opposed, an order initialed by opposing counsel shall accompany the 8 motion); Rule 5-120(E) (“Unless otherwise specifically provided in these rules, a 9 written response shall be filed within fifteen (15) days after service of the motion.”). 10 The State also had the right to file a re sponse under the district court’s local rules. 11 LR11-104(B) NMRA (“The responding party shall have fifteen (15) days after service 12 of the motion to answer by written brief.”). Nonetheless, the district court granted the 13 motion without affording the State an opportun ity to respond, in violation of the Rules 14 of Criminal Procedure and the district court’ s own rules. Further, the district court 15 granted the motion without holding a hearing or considering any evidence, 16 considering or applying applicable case law and standards, or making pertinent 17 findings of fact and conc lusions of law. By gran ting the motion under these 18 circumstances, the district court sentencedDefendant “in an illegal manner,” and the 197 State had the right to move the court to reconsider its ruling under Rule 5-801(A). See 1 Chung, 2012-NMCA-049, ¶ 9 (holding that granti ng the state’s motion the day after 2 it was filed, without affording the defendant an opportun ity to respond, and without 3 a hearing or considering evidence, was error). 4 Defendant is charged with knowledge of applicable rules and statutes, and he 5 therefore was on notice that, for a limite d period of time, the State could seek 6 reconsideration and correction of the April 6, 2011 order pursuant to both Section 39- 7 1-1 and Rule 5-801(A). In fact, Defendant conceded in response to the State’s motion 8 to reconsider that the State should be gi ven an opportunity to be heard on whether 9 Defendant’s sentences should run concurrently or consecutiv ely. Therefore, on these 10 facts, Defendant can have no reasonable expectation of finality in his sentence until 11 the applicable time periods for reconsideration have expired. See State v. Rushing , 12 103 N.M. 333, 335, 706 P.2d 875, 877 (Ct. App. 1985) (holding that the defendant 13 had no reasonable expectation of finality in a sentence obtained through 14 misrepresentations at the time of senten cing). Without a reasonable expectation of 15 finality, the district court’s subsequent reinstatement of Defendant’s consecutive 16 sentence does not violate Defendant’s constitutional guarantee against double 17 jeopardy. 18 CONCLUSION 198 We affirm Defendant’s conviction and sentence. 1

IT IS SO ORDERED. 2

______________________________ 3 JAMES J. WECHSLER, Judge 4 WE CONCUR: 5

__________________________________ 6 CELIA FOY CASTILLO, Chief Judge 7

__________________________________ 8 MICHAEL E. VIGIL, Judge 9