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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,752 4 RANDALL GILMORE, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, Jr., District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Karl Erich Martell, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 FRY, Judge. 17
{1} Defendant appeals his conviction for fourth degree fel ony fraud, which was 18 enhanced due to his habitual offender status. [RP 58] Defendant specifically contests 19 the enhancement of his sentence by four years rather than one. Our notice proposed 202 to affirm and Defendant filed a memorandum in opposition. We remain unpersuaded 1 by Defendant’s arguments and therefore affirm. 2
{2} Defendant continues to arguethat the district court erred in re-sentencing him 3 and that “the original sentence should have remained in place” [DS 3; MIO 1], and 4 refers to State v. Franklin , 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and 5 State v. Boyer , 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1, in support of his 6 argument. [DS 3; MIO 2] As addressed in our notice, Defendant entered into a plea 7 agreement where he pled guilty to fraud and to having three felony convictions, two 8 of which would be used for enhancemen t. [RP 33, 34] At the initial December 13, 9 2013, sentencing hearing, the district court referenced only one of the two sentence 10 enhancements agreed upon in the plea agreement. [RP 44-45, 33] Given this apparent 11 oversight, Defendant maintains that the judgment and sentence [RP 48] improperly 12 sentences him for the two agreed-upon se ntencing enhancements. [DS 3; MIO 2] 13
{3} Defendant’s argument is not persuasive , because the plea ag reement specifically 14 contemplates that two of his prior felony convictions would be used for enhancement 15 [RP 33, 34] and because any oral statement made by the judge at the sentencing 16 hearing was not binding. See generally State v Jaramillo , 2004-NMCA-041, ¶ 27, 135 17 N.M. 322, 88 P.3d 264 (recognizing that it is we ll settled that an oral ruling is merely 18 evidence of what a judge inte nds to do, it is not binding, and it can be changed at any 193 time before a written order is filed). Mo reover, after the initial December 13, 2013, 1 sentencing hearing, the State filed its January 21, 2014, motion for re-sentencing, 2 where it pointed out the judge’s apparent ove rsight in referenci ng only one of the two 3 agreed-upon enhancemen ts. [RP 46] Another sentencing hearing was held [RP 51], 4 at which time the judge noted the oversightand stated his intention to sentence 5 Defendant as contemplated by the parties in the plea agreement. [RP 51] See generally 6 State v. Freed , 1996-NMCA-044, ¶ 8, 121 N.M. 569, 915 P.2d 325 (providing that the 7 habitual offender enhancement “is mandatory if the prosecutor exercises discretion to 8 pursue the enhancement”). 9
{4} Because the written judgment and sent ence imposes the enhanced sentence 10 agreed upon in the plea agreement, we c onclude that no sentencing error took place. 11 In so concluding, we disagree that the written judgment and sentence somehow 12 violated Defendant’s expectation of finality [MIO 2], because De fendant did not have 13 any reasonable expectation of finality in a sentence that was not in conformance with 14 the plea agreement and had not yet b een reduced to writing. We affirm. 15
{5} IT IS SO ORDERED. 16

17 CYNTHIA A. FRY, Judge 18 WE CONCUR: 194 1 JAMES J. WECHSLER, Judge 2

3 TIMOTHY L. GARCIA, Judge 4