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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO CITY OF GALLUP, 3 Plaintiff-Appellee, v. No. 35,142 MICHAEL C. ARVISO, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY Robert A. Aragon, District Judge Mason & Isaacson Joshua M. Montagnini Gallup, NM for Appellee The Kassakhian Firm, PC Harutiun Kassakhian Irvine, CA L. Helen Bennett PC Linda Helen Bennett Albuquerque, NM for Appellant 1 MEMORANDUM OPINION BUSTAMANTE, Judge.

3 {1} Defendant appeals from the district court’s judgment and sentence, entered after a de novo trial, convicting him for aggravated DWI (refused chemical testing) and open container, both under the Gallup City Code. Unpersuaded that Defendant demonstrated error, we issued a notice of proposed summary disposition, proposing to affirm. Defendant has responded to our notice with a memorandum in opposition.

8 We remain unpersuaded and affirm.

9 {2} On appeal, Defendant argues that the district court erred by imposing a much harsher sentence than that imposed by the magistrate court without permitting Defendant an opportunity to speak in mitigation of his actions for a reduced sentence or to request a treatment option instead of jail time. [DS 5; MIO 1] Defendant concedes that the matter was not preserved below and pursues the issue under the demands of State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982; and State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. [DS 5-6; MIO 1-2] {3} Our notice observed that the common law right of allocution in New Mexico is extended only to noncapital felonies. See NMSA 1978, §§ 31-18-15(A) (2007) and 31-18-15.1(A) (2009); State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794, 932 19 P.2d 484. We also noted our case law holds that “in the absence of a statute or rule

1 requiring allocution in misdemeanor cases, it was not error for the trial court to fail to offer defendant an opportunity to speak before sentencing.” State v. Stenz, 1990-NMCA-005, ¶ 17, 109 N.M. 536, 787 P.2d 455. Defendant acknowledges that he was not charged with a felony and that the law does not support his position. [DS 4; MIO 1-3] He expresses numerous public policy concerns with denying the right to allocution in misdemeanor cases and the harsh consequences of incarceration. [MIO 2-3] Defendant articulates important concerns that should have been raised to the court that sentenced him and are more appropriate for discussion in the political process than in this Court.

10 {4} On the basis of our statute and case law, we cannot find error in this unpreserved issue. For the reasons stated in this opinion and in our notice, we affirm.

12 {5} IT IS SO ORDERED.

13 _______________________________________ 14 MICHAEL D. BUSTAMANTE, Judge WE CONCUR:

17 TIMOTHY L. GARCIA, Judge

19 M. MONICA ZAMORA, Judge