Court of Appeals of New Mexico

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LUIS ABEYTA,
Defendant-Appellant,

NO. 33,485

COURT OF APPEALS OF NEW MEXICO

October 27, 2015

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY, J.C. Robinson, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Santa Fe, NM, for Appellee

Jorge A. Alvarado, Chief Public Defender, Nicole S. Murray, Assistant Appellate Defender, Santa Fe, NM, for Appellant

JUDGES

M. MONICA ZAMORA, Judge. WE CONCUR: MICHAEL D. BUSTAMANTE, Judge, CYNTHIA A. FRY, Judge

AUTHOR: M. MONICA ZAMORA

MEMORANDUM OPINION

ZAMORA, Judge.

{1}       Defendant appeals from a district court judgment and sentence entered after he was found guilty of three counts of aggravated assault (deadly weapon), and one count of unlawful carrying of a deadly weapon. We issued a second calendar notice proposing to affirm. Defendant has responded with a memorandum in opposition. We affirm.

{2}       Issue 1: Defendant’s original docketing statement raised the issue of whether the district court improperly imposed fees as a part of his sentence, because the court did not take into account Defendant’s indigency. [DS 2] The judgment states that the payment of these fees is to be directed by Defendant’s parole officer. [RP 161] Pursuant to NMSA 1978, Section 31-12-3(C) (1993), when a defendant is called upon to pay these fees, they may at that time raise the inability to pay as a defense - the failure to pay must be wilful. As such, the issue is not ripe, because there is no indication that a demand for payment of these fees has been made, or that Defendant will not be excused of his obligation in whole or in part as a result of his indigency, or that Defendant will be given the opportunity to participate in community service in lieu of the payments. See NMSA 1978, § 31-12-3(A) (1993); New Energy Economy, Inc. v. Shoobridge, 2010-NMSC-049, ¶ 18, 149 N.M. 42, 243 P.3d 746 (“The mere possibility or even probability that a person may be adversely affected in the future by official acts fails to satisfy the actual controversy requirement.” (alteration, internal quotation marks, and citation omitted)).

{3}       Issue 2: Defendant’s supplemental docketing statement challenged the district court’s ruling denying his motion to reduce sentence. [SDS 3] Defendant’s motion argued that his post-arrest conduct weighed in favor of a reduced sentence, including running his sentences concurrently instead of consecutively. [SDS 2-3] We review the district court's sentencing for abuse of discretion. See State v. Bonilla, 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491. “Judicial discretion is abused if the action taken by the trial court is arbitrary or capricious. . . . Such abuse of discretion will not be presumed; it must be affirmatively established.” Id. (internal quotation marks and citation omitted). Because the decision to reduce a sentence is a matter within the sound discretion of the district court, and there are no legal defects here such as failure to award pre-sentence confinement credit or double jeopardy concerns, we defer to the district court’s discretion. See State v. Follis, 1970-NMCA-083, ¶ 8, 81 N.M. 690, 472 P.2d 655 (“The suspension or deferment of a sentence is not a matter of right but is an act of clemency within the [district] court’s discretion.”); see also State v. Allen, 2000-NMSC-002, ¶ 91, 128 N.M. 482, 994 P.2d 728 (stating that “whether multiple sentences for multiple offenses run concurrently or consecutively is a matter resting in the sound discretion of the trial court”).

{3}       For the reasons discussed above, we affirm.

{4}       IT IS SO ORDERED.

M. MONICA ZAMORA, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

CYNTHIA A. FRY, Judge