Court of Appeals of New Mexico

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JONATHAN McKINLEY BOULDIN,
Defendant-Appellant.

No. 34,214

COURT OF APPEALS OF NEW MEXICO

March 5, 2015

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Benjamin Chavez, District Judge

COUNSEL

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

Jorge A. Alvarado, Chief Public Defender, Sergio Viscoli, Assistant Appellate Defender, Santa Fe, NM, for Appellant

JUDGES

MICHAEL D. BUSTAMANTE, Judge. WE CONCUR: LINDA M. VANZI, Judge, TIMOTHY L. GARCIA, Judge

AUTHOR: MICHAEL D. BUSTAMANTE

MEMORANDUM OPINION

BUSTAMANTE, Judge.

{1}       Defendant appeals the district court’s denial of his motion to dismiss the sole charge of commercial burglary. Defendant entered a conditional plea reserving this issue for appeal. [RP 84, 86] Based on our recent decision in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted, ___-NMCERT-____ (No. 35,005, Jan. 26, 2015), we issued a notice of proposed summary disposition, proposing to reverse. The State has filed a response, objecting to our notice and requesting that we hold this appeal in abeyance or provide the State with a reasonable opportunity to seek guidance from the New Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State with such an opportunity, and the Supreme Court has denied the State a stay or other remedy that would suspend the precedential value of Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition does not affect the precedential value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme Court.”).

{2}       In its response to our notice, the State simply objects to our proposed disposition without elaboration. [MIO 1] We continue to believe that there are no material factual distinctions to remove this case from the control of our opinion in Archuleta. Accordingly, for the reasons stated in our notice, we reverse the district court’s order denying Defendant’s motion to dismiss the commercial burglary charge.

{3}       IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

LINDA M. VANZI, Judge

TIMOTHY L. GARCIA, Judge