STATE V. GUILLEN, 2001-NMCA-079, 130 N.M. 803, 32 P.3d 812
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
BENJAMIN GUILLEN, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2001-NMCA-079, 130 N.M. 803, 32 P.3d 812
September 10, 2001, Filed
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY. STEPHEN PFEFFER, District Judge.
Released for Publication October 12,
2001.
PATRICIA A. MADRID, Attorney General,
KATHERINE ZINN, Ass't Attorney General, Santa Fe, NM, for Appellee.
PHYLLIS H. SUBIN, Chief Public Defender,
SHEILA LEWIS, Ass't Appellate Defender, Santa Fe, NM, for Appellant.
LYNN PICKARD, Judge. WE CONCUR: CELIA FOY
CASTILLO, Judge, IRA ROBINSON, Judge.
{1} Defendant appeals
the trial court's refusal to grant him presentence confinement credit for time
spent under house arrest pursuant to an electronic monitoring program. The
trial court ruled that it lacked the authority to grant this credit based on
its understanding of the mandatory sentencing
{*813}
{*804} provision of the DWI statute, NMSA 1978, §
66-8-102 (1999). We hold that the conditions of Defendant's participation in
the electronic monitoring program, coupled with the fact that Defendant was
subject to punishment for the crime of escape under NMSA 1978, §
30-22-8.1
(1999), satisfied the requirements of
State v. Fellhauer, 1997-NMCA-64,
123 N.M. 476,
943 P.2d 123, and entitled Defendant to credit. We reverse
Defendant's sentence and remand with instructions to grant Defendant
presentence credit for the time spent in the electronic monitoring program.
{2} Defendant was
indicted on charges of driving while under the influence, driving on a
suspended or revoked license, no proof of financial responsibility, and
careless driving. Because he could not meet the original bond conditions set by
the trial court, Defendant spent three months, less six days, in jail. At a
subsequent hearing on Defendant's motion for reduction of bond, the trial court
agreed to release Defendant from jail on the condition that he participate in
an electronic monitoring program. In addition to imposing the standard
conditions of release pursuant to Rules 9-302 and
9-303 NMRA 2001, the trial
court imposed the following additional conditions:
(1) attend outpatient alcohol treatment and fully
comply with all conditions of the treatment program;
(2) execute a release authorizing the treatment
program and the electronic monitoring program to provide information to the
court, the district attorney, and defense counsel;
(
3) submit to random urinalysis three times a week for
the first month and thereafter as required by the electronic monitoring
program; and
(
4) remain at his home at all times except to attend
alcohol counseling, work, or religious services.
Furthermore, the alcohol treatment program was instructed to
immediately report any missed meetings to the electronic monitoring program,
the court, the district attorney, and defense counsel.
{3} At the time the
trial court set the conditions of Defendant's release, the court cautioned
Defendant that upon acceptance into the electronic monitoring program,
Defendant would be required to comply with all of the special conditions imposed
by the court. The court informed Defendant that it had filed a pre-signed
arrest warrant that would be activated upon notification from either the
treatment program or the electronic monitoring program that Defendant had
failed to comply with any of the conditions of his release. The pre-signed
arrest warrant was filed approximately one week after Defendant's release from
jail.
{4} Defendant
successfully participated in the electronic monitoring program and in alcohol
treatment from the time of his release until he was sentenced seven and
one-half months later. Defendant was sentenced after pleading guilty to felony
DWI (fourth offense) and driving with a suspended or revoked license. At
sentencing, Defendant asked the trial court to award him presentence
confinement credit for the time spent in the electronic monitoring program. The
trial court concluded that it was not authorized to grant Defendant's request.
The court sentenced Defendant to eighteen months imprisonment, twelve months of
which were suspended, with unsupervised probation for one year. The court
awarded Defendant presentence confinement credit for the approximately three
months that Defendant spent in jail prior to his release on bond. Defendant now
appeals the trial court's denial of credit for the time he spent in the
electronic monitoring program.
{5} As a preliminary
note, the State implies, without arguing, that presentence confinement credit
should not apply to the mandatory sentences set forth in the DWI statute,
Section 66-8-102. Our Supreme Court has presumed that a trial court is required
to grant presentence credit, for official confinement, to defendants convicted
of a fourth or subsequent DWI offense.
See State v. Martinez,
1998-NMSC-23, P10,
126 N.M. 39,
966 P.2d 747 ("Therefore, we presume,
based on [ NMSA 1978, § ] 31-20-12 [(1977)] and the Legislature's use of the
{*805} word 'felony' in Section 66-8-102, that
the Legislature intended to require that trial courts grant presentence credit,
for official confinement, to defendants convicted of a fourth or subsequent
offense of DWI."). We need not address whether credit for presentence
confinement other than jail would apply to mandatory sentences for aggravated,
second, or third DWI offenses because such sentences are not at issue in this
case.
See 1998-NMSC-23 P20,
126 N.M. 39 (declining to reach question
because not at issue, but noting distinction in language describing credits for
non-felony DWI ("for 'jail' time served prior to the conviction") and
felony DWI (for "'official confinement'")).
{6} In
Fellhauer,
we noted that our analysis of the law of presentence confinement credit is
guided by a desire to "simplify the sentencing court's inquiry to the
extent possible" by providing a clear guide that does not require fact
intensive inquiries into whether specific conditions of release subject a
defendant to jail-type confinement. 1997-NMCA-64, PP15-16. As such, we must
decide, as a matter of law, whether house arrest under a community custody
release program entitles a defendant to presentence credit for time spent in
the program. We review issues involving the interpretation and application of
law de novo.
See State v. Roman,
1998-NMCA-132, P8,
125 N.M. 688,
964
P.2d 852.
{7} In
Fellhauer,
1997-NMCA-64, P17,
123 N.M. 476,
943 P.2d 123, we held that time spent outside
of jail may qualify as "official confinement" for the purposes of
receiving presentence confinement credit under Section 31-20-12,
when (1) a court has entered an order releasing the
defendant from a facility but has imposed limitations on the defendant's
freedom of movement, OR the defendant is in the actual or constructive custody
of state or local law enforcement or correctional officers; and (2) the
defendant is punishable for a crime of escape if there is an unauthorized
departure from the place of confinement or other non-compliance with the
court's order.
The State concedes that the conditions of Defendant's release
meet the second prong of the Fellhauer test. See § 30-22-8.1
(defining crime of escape from a community custody release program such as an
electronic monitoring program). At issue in this case is whether the other
conditions of release were sufficiently restrictive to meet the alternative
requirements of the first prong.
{8} Defendant argues
that the time spent under house arrest pursuant to the community custody
release program qualifies as both a limitation on his freedom of movement, and
as constructive custody of state or local law enforcement or correctional officers.
We disagree that Defendant was in constructive custody. We understand
constructive custody to apply to situations in which a defendant is temporarily
outside a penal institution, but is expected to return to the place of
confinement.
See NMSA 1978, §
33-2-44 (1971) (describing standards for
participation in inmate release program); NMSA 1978, §
33-2-46 (1980) (defining
crime of escape from inmate release program); State v. Pearson,
2000-NMCA-102,
P7,
129 N.M. 762,
13 P.3d 980 (suggesting that constructive custody includes
work-release programs and temporary furlough);
Fellhauer, 1997-NMCA-64,
P19,
123 N.M. 476,
943 P.2d 123 (rejecting argument that defendant under house
arrest is in constructive custody of law enforcement or correctional officers);
State v. Weaver,
83 N.M. 362, 363,
492 P.2d 144, 145 (discussing the
"constructive confinement" rule which holds a prisoner liable for
escape if the prisoner has been given permission to temporarily leave the four
walls of the prison and, while outside of the institution, escapes). In this
case, although Defendant was being monitored by correctional officers, his
place of confinement was his home, not a penal institution. As such, the
critical question is whether the condition that Defendant "remain at his home
at all times except to attend alcohol counseling, work, or religious
services" is a sufficient limitation on Defendant's freedom of movement to
entitle him to presentence credit under the first sub-prong of the
Fellhauer
test. We conclude that it is.
{9} In
Fellhauer,
we noted that the "conditions included in a release order modeled after
Rules 9-302 and 9-303 . . . as they
{*806} exist
today would normally not be sufficient to earn the credit." 1997-NMCA-64,
P18,
123 N.M. 476. These rules have not been amended since
Fellhauer was
decided. With respect to limitations on freedom of movement, Rules 9-302 and
9-303 provide the following standard condition: "I will not leave my
residence between the hours of __ (p.m.) and __ (a.m.) without prior permission
of the court[.]" We agree that a curfew, without more, is an insufficient
restriction on movement to entitle a defendant to presentence credit. However,
house arrest is substantially more onerous than a curfew. In both
Fellhauer
and case at bar, the defendants were not allowed to leave home except for
specified events. In addition, Defendant's compliance with the conditions of
release were monitored by correctional officers through the electronic
monitoring program.
See Fellhauer, 1997-NMCA-64, P16,
123 N.M. 476,
943
P.2d 123 (noting that the identity of a custodian is an important factor to
consider in determining whether a person is in official confinement). Given
this level of monitoring, the conditions of Defendant's house arrest are in
many ways similar to the conditions of constructive custody under the inmate
release program.
{10} The State argues
that Defendant should not receive credit for the time spent in the electronic
monitoring program because the other conditions of his release, such as participation
in alcohol treatment and submission to random urinalysis, were standard
conditions and because house arrest is not an "extraordinary"
restraint on an individual's freedom of movement. Nothing in
Fellhauer
supports the State's contention that presentence confinement credit applies
only when the limitations on freedom of movement are extraordinary.
See
1997-NMCA-64, P17,
123 N.M. 476 (authorizing confinement credit when a court
"imposes limitations on the defendant's freedom of movement"). To the
contrary, in reviewing out-of-state cases addressing the issue of whether house
arrest qualifies as "official confinement," we noted that the primary
difference between the cases holding that house arrest qualifies for credit and
those holding that it does not qualify was "whether the defendant would be
subject to a charge of escape for an unauthorized departure from the place of
confinement." 1997-NMCA-64 P13,
123 N.M. 476. We cited with approval a
Maryland case which distinguished cases in which credit for home detention had
not been allowed on the ground that "'where an individual is punishable
for escape for any unexcused absence from the place of confinement, his
confinement is necessarily involuntary.'"
Id. (quoting
Dedo v.
State, 343 Md. 2, 680 A.2d 464, 470 (Md. Ct. App. 1996)). We note that the
conditions of Defendant's release in this case are substantially the same as
the conditions imposed on the defendant in
Dedo, although it appears
that the defendant in
Dedo was not under total house arrest, but was
subject to a curfew.
See 680 A.2d at 469-70 (listing conditions of
release as electronic monitoring, site visits by correctional personnel,
abstinence from alcohol, and random urinalysis).
{11} As pointed out by
Defendant in his reply brief, following the State's argument would require us
to hold that time spent in home detention could never qualify for presentence
confinement credit. This is clearly contrary to the reasoning of our decision
in
Fellhauer. We hold that any defendant charged with a felony who is
released (1) under conditions of house arrest that require the defendant to
remain at home except to attend specified events such as treatment, work, or
school and (2) pursuant to a community custody release program that holds the
defendant liable to a charge of escape under Section 30-22-8.1, is entitled to
presentence confinement credit for the time spent in the program.
{12} For the foregoing
reasons, we reverse Defendant's sentence and remand with instructions to grant
Defendant the credit to which he is entitled.
CELIA FOY CASTILLO, Judge