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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from the official paper vers ion 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. 33,272 4 JOHN SIMMS LOMBARDEUX, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Mark A. Macaron, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 B. Douglas Wood III, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17 {1} Defendant appeals the district court’s revocation of his probation. We issued 18 a calendar notice proposing to affirm, and Defendant has filed a memorandum 19 opposing the proposed affirmance. We have carefully reviewed the arguments made 202 in the memorandum in opposition, but we continue to believe affirmance is the correct 1 result. Therefore, we affirm for the reas ons stated below and in our calendar notice. 2 {2} We review a decision revoking probati on only for abuse of discretion. See State 3 v. Martinez , 1989-NMCA-036, ¶ 5, 108 N.M. 604, 775 P.2d 1321. The evidence 4 supporting revocation must be such that it “inclines a reasonable and impartial mind 5 to the belief that a de fendant has violated the terms of probation.” Id. ¶ 4. Defendant 6 argues that his failure to comply with the terms of his probation was not willful 7 because it was based, at least in part, on his inability to pay for the counseling sessions 8 that had been scheduled for him. He points out that at the hearing there was evidence 9 of his inability to pay, and that the couns eling service had used a sliding scale to 10 determine that he could pay an undetermined amount toward the costs of the 11 counseling sessions. [MIO 4] The amount that he was requested to pay, and 12 information concerning Defendant’s resources , has not been provided to this Court. 13 {3} As we stated in the calendar notice, we find no indication that the district court 14 based the revocation of Defe ndant’s probation on any matter that is at all connected 15 to Defendant’s ability to pay for counseli ng. Evidence was presented to the district 16 court indicating that Defendant was argumentative with his counselors, was resistant 17 to addressing his substance abuse and se xual-offense issues, showed psychopathic 18 behavior, and demonstrated an overall pattern of believing that treatment requirements 193 did not apply to him. [RP 157] In addition, there was evidence that Defendant was 1 aggressive and defiant during counseli ng and treatment sessions, at one point 2 challenging his therapist to a physical confrontation. [RP 157-58] The district court 3 found that Defendant violated his probation by failing to comply with the treatment 4 requirements imposed on him as a condition of his probation. [RP 244] The district 5 court’s finding was amply supported by the evidence of Defendant’s lack of 6 cooperation with, and open hostility toward, his counselors and therapist. 7 {4} The fact that Defendant may have pres ented evidence of his inability to pay, 8 and that his failure to attend some counse ling sessions was a result of that inability to 9 pay, is not grounds for reversal. First, it wa s within the districtcourt’s discretion to 10 reject Defendant’s claim of inability to pay, and without any specific information on 11 that topic we are in no position to disagree with the district court. Second, there is 12 nothing to show that the district court’s decision was based on De fendant’s failure to 13 attend counseling sessions. As we pointed out above, there was ample evidence 14 showing that Defendant was hostile, uncooperativ e, and aggressive in the sessions that 15 he did attend, and the district court could well have based its decision on that evidence 16 rather than any failure by De fendant to attend other sessions . Again, we note that we 17 must affirm the district court’s decision unless we find an abus e of discretion has 18 occurred, and given the evidence presented in this case we can find no such abuse. 194 {5} Defendant next argues that the district court erred by using a 1979 felony 1 conviction from Colorado to enhance his sentence in this case. Defendant points out 2 that under current law, the 1979 conviction would be too remote in time and would 3 not qualify as a basis for habitual-offender enhancement of his sentence. This 4 argument was not addressed in the cal endar notice because, from the docketing 5 statement, it was unclear exactly what argument Defendant was making. Defendant 6 has now clarified his argument, pursuant to a conversation De fendant’s appellate 7 counsel had with trial counsel, to raise the above issue. Since this remoteness-in-time 8 argument was not raised in the docketing st atement, we will treat Defendant’s current 9 argument as a motion to amend the docketing statement to add this issue. For the 10 reasons discussed below, we find that the issue is not viable and therefore deny the 11 motion to amend. See State v. Sommer , 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 12 P.2d 1007 (denying a motion to amend the docketing statement based upon a 13 determination that the argument sought to be raised was not viable). 14 {6} Defendant essentially argue s that the 2002 amendment to the habitual offender 15 statute, NMSA 1978, Section 31-18-17 (2002), bars the use of his 1979 felony 16 conviction for enhancement purposes. According to Defendant, he finished serving 17 his punishment for the 1979 felony more thanten years prior to the 1998 conviction 18 that is involved in this case. Under the current version of Section 31-18-17, such a 195 remote-in-time felony cannot be the basi s for a habitual-offender enhancement. See 1 § 31-18-17(D). Defendant argues that the amended version of the statute applies to 2 this case. 3 {7} Defendant’s argument is barred by State v. Ortega , 2004-NMCA-080, ¶¶ 8-9, 4 135 N.M. 737, 93 P.3d 758. In Ortega , as in this case, the defendant was convicted 5 and sentenced for the underlying crime prior to the effective date of the 2002 6 amendment to the habitu al-offender statute. In Ortega , as in this case, the defendant 7 negotiated a plea agreement under which certain charges were dropped and the 8 defendant received a partiallysuspended sentence that in cluded a period of probation. 9 In Ortega , as in this case, the defendant later violated the terms of his probation, and 10 was sentenced to a term th at included the habitual-offe nder enhancement that had not 11 been imposed at the time of original sentencing. Finally, in Ortega , as in this case, the 12 defendant had a prior felony thatwould have been too remote in time to be used as a 13 basis for enhancement, if the amended vers ion of Section 31-18-17 were to be applied. 14 We rejected the defendant’s argument that the amended version should apply, for two 15 reasons: first, because it is the conviction and not a subsequent probation violation that 16 triggers enhancement as a habitual offender; and second, because the defendant and 17 the State had reached a bargained-for agreement as to sentencing and a subsequent 18 change in the applicable statute would unfairly upset the parties’ established 196 expectations. See Ortega , 2004-NMCA-080, ¶¶ 8-9. Ortegais on all fours with this 1 case and therefore, for the reasons stated in Ortega , Defendant’s argument for 2 application of the 2002 amendment to his case is not viable. We therefore reject the 3 motion to amend his docketing statement to raise this argument. 4 {8} Defendant again argues that the forfeitures of his good-time deductions were 5 erroneous. According to Defendant, if the deductions had not occurred he would have 6 completely served his sentence and the district court would havehad no jurisdiction 7 to revoke his probation. As we pointed out in the calendar notice, the district court 8 determined that Defendant had presente d no evidence showing that the deduction of 9 good-time credits was unjustified. [RP 246] In the memorandum in opposition, 10 Defendant does not refer to any such eviden ce in the record, but simply repeats his 11 contention that the deductions were erroneous . We therefore continue to rely on the 12 analysis set out in the calendar notice, and hold that Defendant failed to provide 13 evidentiary support for this argument. 14 {9} Defendant also contends that his due-p rocess rights were violated because the 15 district court did not sufficiently accommodate his hearing disability. The transport 16 officer did not allow Defendant to stop at the V.A. medical facilityto obtain hearing 17 aids and have them fitted. As a result, De fendant was forced to read the real-time 18 transcript of the proceedings at his probation-violation hearing, and allegedly was 197 unable to fully assist his attorney. [MIO 9-10] In the calendar notice we suggested 1 that this issue had not been preserved fo r appeal, because there was no indication that 2 Defendant had objected to the proce dure at the time it was employed. The 3 memorandum in opposition does not contest this point, but asks us to address the issue 4 as a matter of fundamental error. 5 {10} In order to sustain a claim of fundament al error, a defendant must demonstrate 6 that he has been prejudiced by the claimed error. See, e.g., State v. Singleton , 2001- 7 NMCA-054, ¶ 19, 130 N.M. 583, 28 P.3d 1124 (rejecting a defendant’s claim of 8 fundamental error because the “[d]efendant has not shown that he was prejudiced in 9 any way by the juror’s excusal”). In this case, however, there was no specific 10 objection at any point in the proceedings that could show Defendant was unable to 11 assist his attorney at that specific time. Instead, all we have is Defendant’s global 12 argument that because he was reading the real-time transcript, he was too occupied to 13 provide meaningful help to trial counsel . Significantly, Defendant does not explain 14 how his assistance would havechanged the result below, or how he might have been 15 able to help his attorney present a particular argument or respond to a particular 16 argument raised by the State. In sum, Defendant’s general claim of prejudice is not 17 sufficient to establish that fundamental error occurred. See generally In re Ernesto 188 M., Jr. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of 1 prejudice is not a showing of prejudice.”). 2 {11} Based on the foregoing discussion, and for the reasons stated in the calendar 3 notice, we affirm the district c ourt’s decision in this case. 4 {12} IT IS SO ORDERED. 5

____________________________________ 6 M. MONICA ZAMORA, Judge 7 WE CONCUR: 8

__________________________________ 9 JAMES J. WECHSLER, Judge 10

__________________________________ 11 JONATHAN B. SUTIN, Judge 12