This memorandum opinion was not selected for publication in
the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions
on the citation of unpublished memorandum opinions. Please also note that this
electronic memorandum opinion may contain computer-generated errors or other
deviations from the official paper version filed by the Court of Appeals and
does not include the filing date.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DONALD POWERS,
Defendant-Appellant,
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Reed
S. Sheppard, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for
Appellee
Alex Chisholm, Albuquerque, NM, for
Appellant
CYNTHIA A. FRY, Judge. WE CONCUR: LINDA M.
VANZI, Judge, M. MONICA ZAMORA, Judge
{1} Defendant appeals
the district court’s order revoking his probation and enhancing his sentence.
Defendant argues that the district court lost jurisdiction to enhance his
conviction for escape from a community custody release program because Defendant
completed his term of probation for the conviction before the district court
ordered Defendant’s probation revoked and his sentence enhanced. As explained
below, however, Defendant’s argument misconstrues the timeline for the running
of his term of probation and, because Defendant has not provided this Court
with any authority indicating that the district court’s order was otherwise
contrary to law, we affirm.
{2} Defendant
was charged in two separate cases with receiving or transferring a stolen
vehicle and escape from a community custody release program. The cases were
eventually consolidated, and Defendant entered into a plea agreement whereby he
pleaded no contest to the charges in exchange for receiving one year for
possession of a stolen vehicle, eighteen months for escape from a community
release program, and one year habitual offender enhancements for each charge,
bringing his overall exposure to four-and-a-half years of incarceration. The
plea agreement also included Defendant’s admission to four other prior felony
convictions that Defendant agreed could be used to enhance his sentence if he
violated the terms of his probation or parole.
{3} At sentencing, the
district court suspended Defendant’s sentence for the underlying charges,
leaving Defendant with two years’ imprisonment on the habitual offender
enhancements and a two-and-a-half year term of probation. Defendant received
credit for twenty-three months of presentence confinement and was released from
custody soon after sentencing but under conditions of probation.
{4} Defendant was
subsequently arrested in August 2010 for battery against a household member and
resisting an officer, and the State soon after initiated probation revocation
proceedings. Defendant was adjudged guilty of the probation violation in
December 2010, and in May 2011, Defendant’s probation was revoked and his
sentence enhanced. Defendant successfully appealed the sentence enhancement as
applied to the conviction for possession of a stolen vehicle, arguing that his
probationary term for the stolen vehicle conviction had ended before probation
was revoked.
State v. Powers, No. 31,341 (Ct. App. Dec. 1, 2011)
. Although
this Court reversed enhancement of Defendant’s possession of a stolen vehicle
conviction in that appeal, we affirmed enhancement of the conviction for escape
from a community release program and remanded to the district court to sentence
Defendant accordingly.
Id.
{5} On remand, however,
Defendant argued that the district court had also lost jurisdiction to enhance
the escape conviction. According to Defendant, instead of his probation
beginning when he was released from custody in May 2009, it actually began
during his presentence confinement. Defendant thus argued that his first year
of presentence confinement was spent serving the one year enhancement for the
possession of a stolen vehicle conviction and the second year was spent serving
the enhancement for escape from a community release program while
simultaneously serving the first year of his probation. Under Defendant’s
calculation, when he was released from custody, he had eighteen months of
probation remaining and, by the time his probation was revoked in May 2011, the
district court had lost jurisdiction to revoke the probation and enhance his
sentence. For the reasons that follow, we conclude that Defendant’s term of
probation did not begin until he was released from custody. Accordingly,
Defendant’s term of probation ended in November 2011, not November 2010, and
the district court retained jurisdiction to revoke Defendant’s probation and
enhance his sentence for the conviction of escape from a community release
program.
{6} Defendant’s sole
argument on appeal is that the district court lost jurisdiction to revoke his
probation and enhance his sentence, in violation of double jeopardy principles.
We review this issue under a de novo standard of review.
State v. Redhouse,
2011-NMCA-118, ¶ 5,
269 P.3d 8.
Defendant Was On Probation When
He Committed the Crimes Underlying His Probation Revocation Proceedings
{7} “[T]he jurisdiction
of a trial court to enhance a felony sentence under the habitual offender
statute expires once a defendant has completed service of that sentence.”
State
v. Lovato,
2007-NMCA-049, ¶ 6,
141 N.M. 508,
157 P.3d 73;
see also State
v. Freed,
1996-NMCA-044, ¶ 8,
121 N.M. 569,
915 P.2d 325 (“The prosecutor
may seek [a habitual offender] enhancement at any time following conviction, as
long as the sentence enhancement is imposed before the defendant finishes
serving the term of incarceration and any parole or probation that may follow
that term.”). “This jurisdictional limitation is founded upon principles of
double jeopardy: once a sentence has been served, a defendant’s punishment for
the crime has come to end.”
Lovato,
2007-NMCA-049, ¶ 6 (internal
quotation marks and citation omitted). Thus, “[f]urther punishment for that
crime under any enhancement provision would violate the prohibition on double
jeopardy.”
State v. Roybal,
1995-NMCA-097, ¶ 8,
120 N.M. 507,
903 P.2d
249.
{8} Double jeopardy
concerns are only implicated, however, if the defendant has “an objectively
reasonable expectation of finality” in the sentence.
Redhouse,
2011-NMCA-118, ¶ 10 (“Increasing a defendant’s sentence after a defendant
begins serving the sentence implicates double jeopardy concerns if a
defendant’s objectively reasonable expectations of finality in the original
sentencing proceedings are violated.”). Therefore, in order to establish that
the district court was without jurisdiction to impose the enhancement, two
things must be established: “(1) [the Defendant] must have had an expectation
of finality in his original sentence; and (2) that expectation must have been
reasonable.”
State v. Trujillo,
2007-NMSC-017, ¶ 11,
141 N.M. 451,
157
P.3d 16.
1
{9} In this case, we
understand Defendant’s argument to be that he had a reasonable expectation of
finality in his sentence because it was reasonable for him to believe that his term
of probation began during his second year of incarceration and was completed
before his probation was revoked. Generally, however, an individual on
probation has no reasonable expectation of finality in his sentence if he
acknowledges in a plea agreement that if he violates the terms of his probation
that he could be subject to habitual offender enhancements.
See State v.
Villalobos,
1998-NMSC-036, ¶¶ 10-13,
126 N.M. 255,
968 P.2d 766 (holding
that the defendant on probation had no reasonable expectation of finality in
his sentence because in his plea agreement he acknowledged that if he violated
the terms of his probation he would be subject to habitual offender
enhancements). Therefore, because Defendant admitted in the plea agreement to
his prior felonies and agreed that they could serve as the basis for further
habitual offender proceedings should he violate probation, the issue before us
is the more basic question of whether Defendant was on probation when he
committed the crimes that served as the basis of his probation revocation
proceedings. And, in this case, determining whether Defendant was on probation
does not turn on Defendant’s reasonable expectations; rather, it is based on
the plain language of the judgment and sentence.
{10} The district court
ordered that Defendant be placed on supervised probation for two-and-a-half
years “following release from custody.” Similarly, the district court’s order
of probation stated that Defendant would be placed under supervised probation
for a “period of [two] year(s), [six] month(s) . . . beginning 5/21/2009 . . .
until 11/20/2011.” Given this clear language, we cannot agree with Defendant
that there is any ambiguity as to when the district court intended Defendant’s
term of probation to begin. It was to begin following his release from custody
and end in November 2011.
Cf. State v. Pando,
1996-NMCA-078, ¶ 12,
122
N.M. 167,
921 P.2d 1285 (“We will not substitute an artificial and inaccurate
interpretation for the plain and clear meaning of an unambiguous sentence.”).
The District Court’s Sentencing
Order Was Not Otherwise Contrary to Law
{11} We further conclude
that our interpretation of the district court’s sentencing order does not
conflict with any reasonable expectation of finality Defendant had in his
sentence, either by virtue of his plea agreement or via any other principle of
law mandating that Defendant’s term of probation begin during his presentence
confinement.
{12} With respect to the
plea agreement, Defendant expressly agreed that if he violated probation, he
could receive enhanced sentences. Therefore, Defendant could not have had a
reasonable expectation of finality in the sentence set out in the plea
agreement given his express acknowledgment of potential enhancements if he
violated probation.
{13} Furthermore,
Defendant has not cited any authority supporting the proposition that once a
defendant is granted a term of probation, that probation must be retroactively
applied to or credited with time served in presentence confinement.
Cf. In
re Adoption of Doe,
1984-NMSC-024, ¶ 2,
100 N.M. 764,
676 P.2d 1329 (stating
that where a party cites no authority to support an argument, we may assume no
such authority exists). Defendant was credited two years toward his sentence
due to time served in presentence confinement. Such credit is statutorily
mandated.
See NMSA 1978, §
31-20-12 (1977) (requiring that a defendant
be given credit toward the eventual sentence for time served in presentence
confinement). However, in arguing that his probation began concurrently with
his second year of presentence confinement, Defendant is essentially asking us
to conclude that he was also serving a term of probation during his presentence
confinement, despite the fact that he had not been granted probation until his
actual sentencing.
Cf. State v. Follis,
1970-NMCA-083, ¶ 8,
81 N.M. 690,
472 P.2d 655 (“The suspension or deferment of a sentence is not a matter of
right but is an act of clemency within the [district] court’s discretion.”).
The district court is not required to credit one’s time served toward a term of
probation such that the time served on probation following release from custody
is reduced by the amount of time spent in presentence confinement.
See State
v. Nieto,
2013-NMCA-065, ¶ 7,
303 P.3d 855 (“[W]e cannot construe Section
31-20-12 to mean that pre[]sentence confinement credit must reduce sentences of
probation[.]”),
cert. denied, 2013-NMCERT-004, 301 P.3d 858.
{14} Finally, we are not
persuaded by Defendant’s reliance on
Brock v. Sullivan for the
proposition that he could reasonably expect his term of probation to begin
concurrently with his second year of incarceration.
2
1987-NMSC-013, ¶ 13,
105 N.M. 412,
733 P.2d 860 (holding that in cases of
consecutive sentencing, “the
parole period of each offense commences
immediately after the period of imprisonment for that offense, and such parole
time will run concurrently with the running of any subsequent basic sentence
then being served” (emphasis added)). The Court in
Brock was construing
NMSA 1978, Section
31-18-15(C) (2007). This statutory provision is concerned
with parole and makes no mention of probation.
See § 31-18-15(C) (“The
court shall include in the judgment and sentence of each person convicted and
sentenced to imprisonment . . . a period of parole to be served . . . after the
completion of any actual time of imprisonment. . . . The period of parole shall
be deemed to be part of the sentence of the convicted person[.]”). And
Defendant has not cited any further authority indicating that the rule
announced in
Brock has been extended to apply to probation.
Cf. In re
Adoption of Doe,
1984-NMSC-024, ¶ 2. Therefore, we do not agree that
Brock
requires a different result in this case.
{15} Thus, there is no
basis to conclude that the district court was required to credit Defendant’s
time served in presentence confinement to his term of probation. Consequently,
because the district court did not err in imposing the term of probation
after
Defendant’s release from custody, the district court did not further err in
revoking Defendant’s probation on the escape conviction and in enhancing
Defendant’s sentence.
{16} For the foregoing
reasons, we affirm the district court’s order revoking Defendant’s probation
and enhancing his sentence.