State v. Jenkins

                                                                 Office of the         New Mexico
                                                                     Director          Compilation
                                                                                       Commission
                                                          09:04:41 2024.02.13
                                                                       '00'07-
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 20, 2023

No. A-1-CA-37868

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JA’KARL AHMED JENKINS a/k/a
JA KARL AHMED JENKINS a/k/a
JAKARL JENKINS,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Court Judge

Raúl Torrez, Attorney General
Santa Fe, NM
Leland M. Churan, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

DUFFY, Judge.

{1}     Defendant Ja’Karl Jenkins appeals the district court’s denial of his Rule 5-801
NMRA motion for reconsideration of sentence. The district court ruled that it did not
have jurisdiction to hear the motion because it was not timely filed within ninety days of
when the sentence was imposed, and alternatively, that the defense was required, but
failed, to present new information that was unavailable at the time of the original
sentencing. On appeal Defendant argues that his motion was timely because it was filed
seventy-eight days after the judgment and sentence was filed, and the district court
erred in using the date of oral sentencing as the starting point for the ninety-day period.
Defendant also argues that Rule 5-801 does not require that the evidence presented in
support of the motion be unavailable at the time of the original sentencing hearing. The
State urges this Court not to reach the merits of these issues on grounds that
Defendant’s plea agreement precludes his appeal and because errors in Defendant’s
appellate filings render this Court without jurisdiction to hear the appeal. We conclude
that none of the threshold issues raised by the State prevent us from reaching the
merits of Defendant’s appeal. On the merits, we hold that Rule 5-801 motions are timely
if filed within ninety days of the entry of the judgment and sentence and that Rule 5-801
does not require a defendant to provide information that was unavailable at the time of
sentencing. Therefore, we reverse on both issues.

BACKGROUND

{2}     Defendant pleaded guilty and was orally sentenced at a hearing on June 28,
2018. At the sentencing hearing, the district court received a pretrial services report, a
sentencing memorandum from the Law Offices of the Public Defender (LOPD), several
letters, and a psychological evaluation prepared by Dr. William Foote. The defense
presented evidence of Defendant’s serious developmental disabilities and his trauma
from witnessing a fatal shooting. Noting that Defendant was nineteen years old at the
time of his conviction, defense counsel asked the court to refer Defendant to young
adult court, a specialty court focused on rehabilitation, or in the alternative, one year of
house arrest with zero tolerance for violations followed by probation. The district court
orally sentenced Defendant to a term of nine years imprisonment with the remainder of
his sentence suspended. The court filed an order remanding Defendant into custody
immediately after the hearing. The final judgment and sentence was filed thirty-three
days later, on July 31, 2018.

{3}    Defendant filed a motion for reconsideration of sentence on October 17, 2018.
Defendant submitted reports from a social worker at the LOPD and a report from Dr.
George Davis. Defendant requested that the district court review Dr. Davis’s report,
findings, and recommendations and reconsider Defendant’s sentence. The State filed a
response arguing that Defendant’s motion was untimely because it was not filed within
ninety days of the sentencing hearing where the sentence was orally announced.

{4}     At the hearing on the motion, the district court ruled that it did not have
jurisdiction because the ninety-day deadline began to run at the oral announcement of
the sentence. The district court also ruled that timeliness is “only half the test that’s to
be applied to see if a motion to reconsider is proper. The other thing it has to include [is]
new information which was not available to the court at the time of the original
sentencing.” The court stated that Dr. Davis could have evaluated Defendant before the
sentencing hearing, and concluded that even though Dr. Davis had provided some new
information, “it was available prior to the sentencing. It has to be new information that
was unavailable.” On these two bases, the court denied the motion. Defendant appeals.
DISCUSSION

I.      Waiver and Jurisdiction

{5}    The State raises two threshold issues that we must address before turning to the
merits of the appeal, (1) whether Defendant’s plea agreement precludes his appeal and
(2) whether this Court has jurisdiction to hear the appeal given the procedural defects in
Defendant’s appeal. We address each in turn.

A.      Defendant’s Plea Agreement

{6}    The State first argues that Defendant’s plea agreement waived his right to appeal
the district court’s ruling on the post-conviction motion at issue here. In support of its
position, the State notes only that in State v. Chavarria, 

, 

, 

, our Supreme Court held that an appellate waiver in a voluntary plea
agreement ordinarily constitutes a waiver of the defendant’s right to appeal his sentence
other than on jurisdictional grounds. Id. ¶¶ 9, 16. The State has offered no argument,
authority, or analysis to explain why this principle should be construed to apply to bar a
post-judgment motion or legal errors in the proceedings thereon. See Headley v.
Morgan Mgmt. Corp., 

, 

, 

 (explaining
that appellate courts do not review undeveloped arguments). Nor has the State
explored the potential scope and implications of such a construction, see, e.g., Rule 5-
803 NMRA, or undertaken the sort of case-specific contractual analysis required when
the language of a plea agreement is at issue. See State v. Miller, 

,

. Because the State’s argument is undeveloped, we decline to consider it
further. 1

B.      Jurisdiction

{7}     Defendant’s appeal suffers from two procedural problems that implicate our
jurisdiction. First, defense counsel never filed a notice of appeal, but instead filed a
docketing statement to open the appeal. See Rule 12-202(A) NMRA (“An appeal
permitted by law as of right from the district court shall be taken by filing a notice of
appeal with the district court clerk within the time allowed by Rule 12-201 NMRA.”).
Second, even if we were to treat Defendant’s docketing statement as a notice of appeal,
it was filed late. See Rule 12-201(A)(1)(b) (“A notice of appeal shall be filed . . . for all
other appeals, within thirty (30) days after the judgment or order appealed from is filed

1The State also argues for the first time on appeal that the appellate waiver precluded Defendant from
filing a Rule 5-801 motion in the first place. Curiously, however, the State also argues that “the
jurisdictional issue in this case is ultimately immaterial because Defendant is not precluded from filing
another Rule 5-801(A) motion following the outcome of this appeal.” It is ultimately unnecessary to
resolve the State’s inconsistent positions because the State has not developed any analysis regarding the
language of the plea agreement. See Miller, 

. We acknowledge that the State
offered additional argument regarding the appellate waiver in its supplemental brief. However, that
discussion is beyond the scope of our supplemental briefing order, which permitted the parties to brief a
jurisdictional issue that was not otherwise discussed in their briefing. It was not designed to give the State
a second bite at the apple for issues that were otherwise raised but not developed in its answer brief.
in the district court clerk’s office.”). The State argues that these errors prevent this Court
from exercising jurisdiction over the appeal. See Govich v. N. Am. Sys., Inc., 1991-
NMSC-061, ¶ 12, 

, 

 (holding that the appellate rules for the
time and place of filing of a notice of appeal are a mandatory precondition to the
exercise of jurisdiction). While these errors have unnecessarily complicated this appeal,
we conclude that neither of them deprive this Court of jurisdiction to address the merits
of the appeal.

{8}     Turning first to the fact that Defendant’s initial filing was a docketing statement
instead of a notice of appeal, our Supreme Court has held that a docketing statement
can function as a notice of appeal under Rule 12-202 as long as it substantially
complies with and provides the information required by Rule 12-202(B). See Marquez v.
Gomez, 

, ¶¶ 6-7, 

, 

; Rule 12-202(B), (C)
(stating that a notice of appeal shall identify the parties, the name and address of
counsel, the name of the court to which the appeal is taken, and include a copy of the
judgment or order appealed from). The docketing statement in this case contained all of
the substantive information required by Rule 12-202(B), but did not include as an
attachment the order Defendant appeals from—likely because the docketing statement
was filed before the district court entered its order. 2 Nevertheless, a docketing
statement suffices “if the intent to appeal a specific judgment fairly can be inferred from
the notice of appeal and if the appellee is not prejudiced by any mistake.” Govich, 1991-
NMSC-061, ¶ 13; see also Rule 12-312(C) NMRA (stating that a timely appeal “shall not
be dismissed for technical violations of Rule 12-202 which do not affect the substantive
rights of the parties”). The State does not argue that Defendant’s intent to appeal the
district court’s decision cannot be inferred from the docketing statement or that the State
suffered any prejudice from Defendant’s mistake. Therefore, under the circumstances, it
is appropriate to treat Defendant’s docketing statement as the functional equivalent of a
notice of appeal.

{9}     Even accepting the docketing statement as a functional notice of appeal, the
document was not timely filed in the district court within thirty days of entry of the order
denying Defendant’s motion. See Rule 12-202(A) (requiring that notices of appeal be
filed with the district court clerk within the time limits set forth in Rule 12-201); Rule 12-
201(A)(1)(b) (stating that the notice of appeal must be filed within thirty days after the
order appealed from is filed in the district court clerk’s office). In this case, the district
court’s order was filed on January 24, 2019. Defendant did not file the docketing
statement in the district court until September 17, 2019, almost eight months after the
order was entered. He did, however, file the docketing statement in the Court of
Appeals on January 9, 2019—even before the district court’s order was entered—and
certified that the docketing statement was “delivered/mailed” to the Second Judicial
District Court on January 4, 2019. We must consider whether, under these


2In cases where a notice of appeal is filed before the district court’s order is entered, our Rules of
Appellate Procedure treat the notice of appeal as if it had been filed the same day the lower court’s order
was filed. See Rule 12-201(A)(3) (“A notice of appeal filed after the announcement of a decision, or return
of the verdict, but before the judgment or order is filed in the district court clerk’s office shall be treated as
filed after that filing and on the day of the filing.”).
circumstances, the late filing precludes this Court from exercising jurisdiction over the
appeal. See Govich, 

, ¶ 12

{10} Neither party addressed this issue in their initial briefing. Because it is incumbent
on this Court to raise jurisdictional concerns sua sponte, we requested supplemental
briefing on the effect of the late filing. Defendant responded by arguing that the
presumption of ineffective assistance of counsel adopted in State v. Duran, 1986-
NMCA-125, 

, 

, applies in this case, or alternatively, that we
should conclude counsel was ineffective under the circumstances presented. We are
persuaded by Defendant’s second argument.

{11} As a general rule, “criminal defendants are not to be deprived of an appeal as of
right where a procedural defect results from ineffective assistance of counsel on
appeal.” Id. ¶ 3. In Duran, this Court adopted a “conclusive presumption of ineffective
assistance of counsel where notice of appeal or affidavit of waiver are not filed within
the time limit required.” Id. ¶ 1. We observed that New Mexico’s rules of criminal
procedure were designed to safeguard a defendant’s constitutional right to one appeal
by requiring defense counsel, within the time limits set forth in the rules of appellate
procedure, to file with the court either a notice of appeal or an affidavit waiving the
appeal. Id. ¶ 3 (citing to NMSA 1978, Crim. P. Rule 54(b) (Repl. 1985), the prior version
of Rule 5-702(B) NMRA). Rather than continuing the practice of litigating on a case-bycase basis whether a late filing was the result of ineffective assistance, the Duran Court
concluded that the failure to timely file either of these documents constituted ineffective
assistance per se, 

, ¶¶ 5, 10 (noting that “in the vast majority of our
unpublished cases in which defendants sought late appeals, late appeals were granted
because there was no hint of any reason for delay other than attorney neglect”). As a
result, when the Duran presumption applies, this Court will consider an appeal timely
despite the late filing, allowing us to reach the merits.

{12} Not all late-filed criminal appeals benefit from the Duran presumption, however,
and the State argues the Duran presumption does not apply here because Defendant
pleaded guilty below. See State v. Peppers, 

, ¶ 21, 

, 

 (holding that the Duran presumption does not apply to appeals from pleas of
guilty or no contest). Without deciding whether the Duran presumption applies as a
general matter under the circumstances here, we note that this Court’s post-Duran case
law demonstrates that courts will continue to consider whether ineffective assistance of
counsel resulted in an untimely appeal on a case-by-case basis when the Duran
presumption does not otherwise apply. In Peppers, for example, this Court permitted the
defendant’s untimely appeal because the case presented an unusual fact pattern
wherein the defendant was wholly without counsel during the period of time in which he
could have asserted his appellate rights. Id. ¶¶ 22-23. This Court concluded that under
the circumstances, “it would be contrary to the efficient administration of justice to
remand for a hearing on the issue of effective assistance of counsel and then
reconsider the matter on a further appeal.” Id. ¶ 23. Therefore, this Court held that it
would “assume that the untimeliness of the appeal was the consequence of ineffective
assistance of counsel and will treat [the] defendant’s appeal as if the notice had been
filed in a timely fashion.” Id.

{13} Likewise, in State v. Manuelito, 

, ¶ 1, 

, 

, defense counsel failed to timely file a notice of appeal in the district court after the
defendant was convicted in metropolitan court. The district court dismissed the
defendant’s appeal on that basis. Id. ¶ 4. We reversed and reinstated the appeal,
concluding that the defendant was denied effective assistance of counsel. Id. ¶¶ 8-9.
This Court held that “because [the d]efendant’s intent to appeal was evident, it became
the obligation of his counsel to protect this right.” Id. ¶ 7. Therefore, defense counsel
“had an obligation to file a timely notice of appeal in order to preserve his client’s right to
appeal.” Id. ¶ 8.

{14} In this case, like Peppers, we assume the late filing of Defendant’s notice of
appeal in the district court was the result of ineffective assistance of counsel. Just as in
Manuelito, the record here contains clear evidence of Defendant’s intent to appeal. Trial
counsel filed a docketing statement with this Court on January 9, 2019, and certified
that the docketing statement had been sent to the clerk of the Second Judicial District
Court on January 4, 2019—well before the thirty-day deadline for filing the notice of
appeal. The record contains no explanation for the eight-month delay between the filing
of the docketing statement in the Court of Appeals and the Second Judicial District
Court. Regardless of the reason for the delay, the untimeliness of Defendant’s notice of
appeal is due primarily, if not solely, to the fact that trial counsel failed to follow the rules
of appellate procedure and filed the wrong opening document in the wrong forum. But
for these errors, Defendant’s appeal would have been timely. Like Peppers, this case
presents unusual facts, the sum of which allow us to assume that the untimeliness of
this appeal was the consequence of ineffective assistance of counsel. As a result, we
will treat Defendant’s appeal as if it had been timely filed.

{15} In conclusion, although this appeal suffers from a number of procedural flaws,
none deprive this Court of jurisdiction or prevent us from reaching the merits of the
appeal.

II.    Defendant’s Rule 5-801 Motion Was Timely

{16} The primary issue presented in this appeal is whether Defendant’s motion for
reconsideration of sentence was timely filed “within ninety (90) days after the sentence
[was] imposed” as required by Rule 5-801(A). See Hayes v. State, 

,
¶ 8, 

, 

 (stating that the deadline set forth in Rule 5-801 for
filing a motion is jurisdictional). The answer depends on when the time for filing the
motion began to run. The State urges us to conclude that Defendant’s sentence was
imposed when the district court orally announced the sentence, and that Defendant’s
motion was untimely because it was filed 111 days after that date. Defendant contends
that the time did not begin to run until the written judgment and sentence was filed, and
his motion was timely filed only seventy-eight days after that date. The parties’
competing views require us to interpret Rule 5-801 to determine when a sentence is
“imposed” for purposes of the rule.

{17} “We apply the same rules of construction to procedural rules adopted by the
Supreme Court as we do to statutes.” State v. Miller, 

, 

, 

. “In interpreting rules, we seek to give effect to the enacting
authority’s intent.” Roark v. Farmers Grp., Inc., 

, 

,

 (alterations, internal quotation marks, and citation omitted). “In
determining the proper application of procedural rules, our review is de novo.” Miller,

.

{18} Turning first to the plain language of Rule 5-801, the rule does not specify
whether a sentence is imposed upon the oral announcement of sentence or the filing of
the written judgment and sentence. This very issue resulted in a federal circuit split
regarding the federal analogue to Rule 5-801, Federal Rule of Criminal Procedure 35.
See Andrew P. Rittenberg, “Imposing” A Sentence Under Rule 35(C), 

 (1998). This split was eventually resolved by an amendment to the rule that defined
sentencing as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c).

{19} Although the plain language of Rule 5-801 does not resolve the issue before us,
Defendant argues that previous cases interpreting and applying Rule 5-801 do. In State
v. Romero, this Court stated that “Rule 5-801 authorizes the filing of a motion within
ninety days of the entry of the judgment and sentence.” 

, ¶ 11, 

 (contrasting the ninety-day period for filing a Rule 5-801 motion with the
shorter time limits in most civil rules governing post-judgment motions). In other cases,
courts have calculated whether a Rule 5-801 motion is timely using the date the written
judgment and sentence is filed. See State v. House, 

, ¶ 26, 

, 

 (noting that the defendant’s Rule 5-801 motion was timely because it
was filed less than a month after the judgment and sentence was filed), modified on
other grounds, State v. Taylor, 

, 

; State v. Trujillo,

, ¶ 10, 

, 

 (holding that even if the
defendant’s habeas petition could be considered as a Rule 5-801 motion, the district
court did not have jurisdiction because “the petition was not filed until . . . well after
ninety days from the date the district court filed its amended judgment and sentence”);
State v. Conant, A-1-C-39063, mem. op. ¶ 10 (N.M. Ct. App. Sept. 11, 2023)
(nonprecedential) (concluding that the defendant’s motion challenging the amount of
restitution ordered by the district court must be brought within the time provided in Rule
5-801 and was untimely because it was filed 258 days after the entry of the judgment
and sentence).

{20} The State argues these cases do not provide the necessary facts and analysis to
conclude that a sentence is imposed only upon the filing of the judgment and sentence.
In Romero, however, an evaluation of the rule’s time requirements was integral to this
Court’s reasoning, and we cannot agree with the State’s suggestion that our conclusion
was merely dicta. See 

, ¶ 11 (acknowledging that Rule 5-801’s
requirement that motions be filed within ninety days of the entry of judgment and
sentence created a “temporal anomaly” as to whether the judgment was final for
purposes of appeal); see also Rule 5-801 comm. cmt. (citing Romero, 2014-NMCA-
063). Because our previous cases have consistently looked to the date the judgment
and sentence is filed, they are persuasive authority for the conclusion that a sentence is
“imposed” for purposes of Rule 5-801(A) when the judgment and sentence is filed.

{21} The State also suggests that even if it is appropriate to rely on the date the
written judgment and sentence is filed in some cases, it is not the exclusive measure.
Relying on State v. Garcia, 

, 

, the State argues that in
some instances, a sentence is imposed “when the district court informs the defendant
orally of the sentence, reduces that sentence to writing, and the defendant begins
serving that sentence.” We are not persuaded that the double jeopardy principles
discussed in Garcia require us to depart from Romero’s assessment that “Rule 5-801
authorizes the filing of a motion within ninety days of the entry of the judgment and
sentence.” Romero, 

.

{22} In Garcia, we were asked to determine whether the district court’s decision to
increase the term of imprisonment in the defendant’s sentence violated double jeopardy
principles. 

. The district court announced the defendant’s
sentence orally at a sentencing hearing and remanded him into custody after the
hearing. Id. ¶ 15. Before the district court entered the written judgment and sentence,
the defendant moved to reconsider his sentence, arguing that one of his convictions
should be vacated on double jeopardy grounds. Id. ¶ 16. The district court agreed and
resentenced the defendant twice, ultimately increasing the actual term of imprisonment
from ten to fifteen years. Id. ¶¶ 16-17. We concluded that the subsequent imposition of
a greater term of incarceration violated the defendant’s right to be free from double
jeopardy. Id. ¶ 28.

{23} Garcia observed that “[t]he double jeopardy clauses of the United States and
New Mexico Constitutions protect a criminal defendant’s reasonable expectation of
finality in a sentence.” Id. ¶ 19 (internal quotation marks and citation omitted). This
Court’s holding relied on a “well-established principle of New Mexico law that a trial
court generally cannot increase a valid sentence once a defendant begins serving that
sentence” without violating the double jeopardy clauses of the state and federal
constitutions. Id. (emphasis added) (internal quotation marks and citation omitted). The
Court emphasized that the finality of a sentence does not turn on whether it was oral or
written, but rather whether the defendant had commenced serving his sentence. Id. ¶ 21
(“[A] defendant can reasonably rely on the finality of a sentence—oral or written—once
the defendant has begun serving the sentence.”). Consequently, this Court concluded
that “upon remand to custody for the purpose of serving the originally-imposed
sentence, [the d]efendant began serving his sentence, with a reasonable expectation in
its finality, before his resentencings.” Id. ¶ 20.

{24} The State argues that the same principles apply here such that Defendant’s
sentence was “imposed” when the sentence was announced in open court and
Defendant was remanded into custody. See id. ¶ 28. While those facts are relevant to
whether Defendant had a reasonable expectation that his sentence would not be
increased—a matter not at issue here—Garcia was clear that the oral sentence remains
interlocutory in nature until the judgment and sentence is entered. Id. ¶ 21. Our courts
have long recognized that “[t]he trial judge ha[s] authority to change the orallypronounced sentence prior to entry of [the] written judgment and sentence.” State v.
Rushing, 

, ¶ 6, 

, 

. This is true even where
the defendant’s sentence has taken effect. See 

 Ultimately, “it is the written sentence
which controls.” State v. Kenneman, 

, ¶ 9, 

, 

;
see also Rushing, 

, ¶ 6 (“An oral pronouncement is not a final
judgment and is subject to change until reduced to writing.”); Bouldin v. Bruce M.
Bernard, Inc., 

, ¶ 3, 

, 

 (stating that an oral
ruling by a trial judge “is merely evidence of what the court had decided to do—a
decision that the trial court can change at any time before the entry of a final judgment”).
Given this, we are not persuaded that Garcia’s concern for a defendant’s reasonable
expectation of finality governs when a sentence is “imposed” for purposes of Rule 5-
801. Instead, because the written judgment and sentence is controlling, it is the
appropriate measure for evaluating when a defendant’s time for filing a motion for
reduction begins to accrue. The date on which the judgment and sentence is entered
has the additional benefit of providing a date certain for calculating the timeliness of a
Rule 5-801 motion, rather than the fact-specific, case-by-case analysis required in the
double jeopardy context. Cf. State v. Banghart-Portillo, 

, ¶ 27, 

 (holding in a 3-2 decision that the defendant did not have a reasonable expectation
of finality in her sentence at the time the district court enhanced her sentence). As with
Romero, House, Trujillo, and Conant, we conclude the time for filing a Rule 5-801
motion did not begin to run until the written judgment and sentence was entered.

{25} We briefly address the State’s argument that our holding will mean that
defendants are precluded from filing 5-801 motions before the written judgment and
sentence is filed. This is not the case. As Defendant points out, the plain language of
the rule states only that a motion may be filed “within ninety (90) days after the sentence
is imposed.” Rule 5-801(A) (emphasis added). Defendant construes this to mean that
the motion may be filed any time before that deadline. We agree with this analysis. The
rule provides an outer, jurisdictional limit for filing a motion seeking a reduction of the
defendant’s sentence; it does not prohibit a defendant from filing such a motion before
the written judgment and sentence is filed. In fact, this was the very circumstance
presented in Garcia, where the defendant sought discretionary reconsideration of his
sentence before the judgment and sentence was entered. 

, 22-
25. The State has provided no authority for its interpretation and we have likewise found
no support for it. Consequently, there is nothing to prevent a defendant from filing a 5-
801 motion before the judgment and sentence is filed.

{26} In conclusion, we hold that “Rule 5-801 authorizes the filing of a motion within
ninety days of the entry of the judgment and sentence.” Romero, 

. Because Defendant’s motion for reconsideration of sentence was filed seventy-eight days after the judgment and sentence was entered in this case, we hold that
Defendant’s motion was timely and reverse the district court’s contrary conclusion.
III.   The Evidence Presented Did Not Have to Be Unavailable at Sentencing

{27} The district court also ruled that a defendant seeking reconsideration of a
sentence must present new information that was not reasonably discoverable at the
time of sentencing. On appeal, Defendant argues that the Rule does not contain this
requirement. The State argues that Defendant failed to preserve his argument because
he failed to elicit a clear ruling on the issue and proceeded below on the premise that he
satisfied this requirement. But as Defendant notes, we review a district court’s denial of
the motion for abuse of discretion, and any mistake of law is, by definition, an abuse of
discretion. See State v. Lavone, 

, 

, 

(“A court abuses its discretion if it acts contrary to law.”).

{28} The plain language of Rule 5-801 contains no requirement that the information
offered in support of the motion be “unavailable” at the time of sentencing. Rather,
under Rule 5-801 “it is within the trial court’s discretion whether to modify a valid
sentence.” State v. Herbstman, 

, 

, 

.
Neither party has directed us to any authority interpreting Rule 5-801 as requiring
evidence that was otherwise unavailable at the time of sentencing, and in the absence
of such a requirement, the district court erred in its interpretation of the rule. On remand,
the district court has discretion to consider whether the evidence Defendant offers in
support of his motion is new or persuasive and what weight to accord the Defendant’s
evidence. The absence of new evidence may impact the persuasive value of a
defendant’s motion, but it does not prevent the district court from considering the motion
in the first place.

CONCLUSION

{29}   We reverse and remand for further proceedings consistent with this opinion.

{30}   IT IS SO ORDERED.

MEGAN P. DUFFY, Judge

WE CONCUR:

SHAMMARA H. HENDERSON, Judge

GERALD E. BACA, Judge