 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,056

10 HENRY PACHECO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
13 John M. Paternoster, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 Max Shepherd, Assistant Attorney General
17 Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Allison Jaramillo, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24          Henry Pacheco (Defendant) appeals from the judgment and the amended
 1 judgment, partially suspended sentence and commitment. [RP 18, 32] Defendant

 2 raises two issues on appeal, contending that: (1) Defendant was not guilty of any

 3 crime, for not returning from a furlough to the county jail, after having been

 4 sentenced, both orally and in writing, to the Department of Corrections; and (2)

 5 alternatively, if a crime was committed, the correct charge is escape from jail, a fourth

 6 degree felony rather than escape from the penitentiary, a second degree felony. [DS

 7 3]

 8        This Court’s first calendar notice proposed summary affirmance. Defendant

 9 filed a memorandum in opposition that persuaded us to propose summary reversal in

10 a second calendar notice. The State now agrees with the proposed disposition but asks

11 this Court to reverse and remand for the district court to enter a guilty verdict and

12 sentence Defendant for escaping from jail pursuant to NMSA 1978, § 30-22-8 (1963),

13 rather than escaping from the penitentiary pursuant to NMSA 1978, § 30-22-9 (1963).

14 After considering the State’s request, however, we decline to do so. See, e.g., State

15 v. Villa, 2004-NMSC-031, ¶¶ 12-13, 136 N.M. 367, 98 P.3d 1017 (holding that giving

16 Defendant notice of the lesser-included offenses after conviction hardly provides

17 Defendant with adequate notice of those charges). This is not merely a re-sentencing

18 issue as the State asserts. As our Supreme Court stated in Villa, this Court cannot

19 convict a defendant on appeal of a charge that the State did not pursue and Defendant


                                               2
 1 did not defend below. Id. ¶ 13.

 2        For these reasons and the reasons set forth in the second calendar notice, we

 3 reverse and remand to the district court to vacate Defendant’s conviction for escape

 4 from the penitentiary pursuant to Section 30-22-9. See State v. Hodge, 118 N.M. 410,

 5 417, 882 P.2d 1, 8 (1994) (discussing that when the defendant has reserved for appeal

 6 an issue that does not deal simply with the sufficiency of the evidence to establish one

 7 or more factual determinations but rather a question of law or a mixed question of fact

 8 and law, the favorable resolution requires the defendant’s acquittal).

 9         IT IS SO ORDERED.



10                                         ___________________________________
11                                         RODERICK T. KENNEDY, Judge

12 WE CONCUR:



13 ___________________________
14 MICHAEL E. VIGIL, Judge



15 ___________________________
16 TIMOTHY L. GARCIA, Judge




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