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on the citation of unpublished memorandum opinions.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.
RUBEN JARAMILLO,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Charles W. Brown, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, Laurie Blevins, Assistant Attorney General, Albuquerque, NM, for
Appellee
Bennett J. Baur, Chief Public Defender,
Tania Shahani, Assistant Appellate Defender, Nina Lalevic, Assistant Appellate
Defender, Santa Fe, NM, for Appellant
MICHAEL E. VIGIL, Judge. WE CONCUR: M.
MONICA ZAMORA, Judge, EMIL J. KIEHNE, Judge
{1} Ruben Jaramillo
(Defendant) appeals from the district court’s orders revoking his probation and
imposing a term of incarceration to be followed by a term of probation, and the
district court’s order denying his motion for reconsideration of his sentence.
Defendant makes six arguments on appeal: (1) the district court erred in
failing to calculate and include in its probation revocation and remand orders
the amount of credit to which he is entitled to receive toward his sentence
based on the time he served (a) on probation, or alternatively, (b) in
presentence confinement; (2) the district court erred in denying his motion for
reconsideration without a hearing; (3) the district court violated Defendant’s
right to equal protection by ordering him to serve consecutive sentences when
other similarly situated defendants have been permitted to serve concurrent
sentences; (4) the judgment and sentence failed to comply with mandatory
requirements of NMSA 1978, Section
31-20-6 (2007); (5) the sentence imposed at
the probation violation hearing was contrary to law because it increased
Defendant’s sentence; and (6) Defendant’s sentence to eighteen years’
imprisonment after his probation violation was excessive and constitutes cruel
and unusual punishment. We affirm Defendant’s sentence, but remand for the
district court to calculate and correct its orders to include the credit toward
his sentence to which he is entitled under the statute governing revocation of
probation. Because this is a memorandum opinion and the parties are familiar
with the facts and procedural posture of the case, we set forth only such facts
and law as are necessary to decide the merits.
{2} On June 12, 2013,
the district court approved a plea and disposition agreement in which Defendant
agreed to plead guilty to one count of trafficking methamphetamine, one count
of trafficking anabolic steroids, and one count of conspiracy to commit
trafficking in methamphetamine. On August 7, 2013, the district court sentenced
Defendant to nine years for each of the two trafficking convictions and three
years for the conspiracy conviction. The district court further ruled that
Defendant’s sentences were to run consecutively, but suspended the sentences
and placed Defendant on supervised probation for five years.
{3} As a special
condition of Defendant’s probation, the district court ordered a zero tolerance
for illegal drugs and substances. This condition was reiterated in the order of
probation, in which Defendant agreed “I will not buy, sell, consume, possess or
distribute any controlled substances or illegal synthetic substances except
those legally prescribed for my use by a State Certified Medical Doctor. I will
also provide urine or breath test specimens for laboratory analysis upon
request of the Probation or Parole division.” Defendant further agreed “I shall
not possess, use or consume any alcoholic beverages and will not at any time
enter what is commonly known as a bar or lounge where alcoholic beverages are
served or sold for consumption on the premises.”
{4} Approximately eight
months into his term of probation, on April 4, 2014, Defendant tested positive
for alcohol. However, rather than revoking Defendant’s probation, the district
court ordered that Defendant be placed on random drug testing and complete
three days of community service. The district court made it clear to Defendant
that he was being given a chance, but would not be given a second chance in the
event of another probation violation in the future.
{5} On October 2, 2014,
the State filed a motion to revoke probation, alleging multiple violations of
Defendant’s conditions of probation. The State attached to its motion a
probation violation report, stating that on September 22, 2014, the United
States Postal Inspection Office contacted law enforcement with information that
its inspectors had intercepted a shipment of illegal anabolic steroids addressed
to Defendant. The report further states that on September 23, 2014, Homeland
Security and Postal Inspectors conducted a controlled delivery of the
intercepted anabolic steroids which Defendant picked up, and that in a
subsequent search, pursuant to a search warrant, executed at Defendant’s home,
law enforcement discovered and seized “numerous vials of [a]nabolic steroids
(over 100).” Defendant was charged with new counts of trafficking controlled
substances, and Defendant was subsequently arrested, although the record is
unclear as to the exact date of the arrest.
{6} At the evidentiary
hearing on Defendant’s alleged probation violations, Defendant admitted to
violating the zero tolerance condition of probation for illegal drugs or
substances, which the district court accepted. A sentencing hearing was held on
December 18, 2014, in which the district court revoked Defendant’s probation
and reinstated his entire twenty-one year sentence, imposing incarceration for
eighteen years and suspending the remaining three. The district court further
ordered that Defendant serve five years of probation after the expiration of
his incarceration and that Defendant receive probationary credit “for all time
served on the original probation.” These rulings were memorialized in the
district court’s written remand order and order revoking probation.
{7} Defendant filed a
motion to reconsider the sentence, which the district court denied without a
hearing. Defendant appeals.
I. Credit for Time Served on Probation
{8} Defendant argues,
and the State agrees, that the district court erred in failing to calculate and
credit Defendant for the days he served on probation prior to the order
revoking probation. We agree.
{9} The district
court’s “power to sentence is derived exclusively from statute.”
State v.
Chavarria,
2009-NMSC-020, ¶ 12,
208 P.3d 896 (internal quotation marks and
citation omitted). “Statutory interpretation presents a question of law that we
review de novo.”
State v. Jackson,
2018-NMCA-066, ¶ 4,
429 P.3d 674
(internal quotation marks and citation omitted),
cert. denied 2018-NMCERT-___
(No, S-1-SC-37267, Oct. 15, 2018). “When interpreting statutes, we seek to give
effect to the intent of the legislature.”
Id. (internal quotation marks
and citation omitted). “The first indicator of the Legislature’s intent is the
plain language of the statute.”
Id.
{10} NMSA 1978, Section
31-21-15(B) (2016), governing probation revocation, provides that if it is
established that a probationer has committed a probation violation, “the court
may continue the original probation or revoke the probation and either order a
new probation . . . or require the probationer to serve the balance of the
sentence imposed or any lesser sentence. If imposition of sentence was deferred,
the court may impose any sentence that might originally have been imposed, but
credit shall be given for time served on probation.”
See State v. Ordunez,
2012-NMSC-024, ¶ 7,
283 P.3d 282 (interpreting Section 31-21-15(B) “to mean
that where a court decides to revoke probation based on a probation violation,
the court must give credit against the defendant’s sentence for time previously
served on probation”). Further, upon revocation of a probationer’s probation,
“the trial court is to make a judicial determination of the proper credit to be
allowed.”
State v. Murray,
1970-NMCA-045, ¶ 13,
81 N.M. 445,
468 P.2d
416.
{11} Under the foregoing
authority, we conclude that Defendant is entitled to credit toward his sentence
for the time he served on probation prior to the district court’s order of
revocation. Defendant was sentenced, in pertinent part, to a five year term of
probation on August 7, 2013. After finding that Defendant violated the zero
tolerance condition of probation for illegal drugs or substances, the district
court revoked Defendant’s probation on December 18, 2014 and reinstated his
original sentence with a partial suspension. The district court further stated
in the order revoking Defendant’s probation that Defendant was entitled to
receive probationary credit “for all time served on the original probation.”
However, as the parties assert in their briefs, the district court failed to
calculate the actual number of days of credit that Defendant is entitled to
receive. Therefore, we remand to the district court to correct its order
revoking probation and remand order to reflect the actual number of days
Defendant served on probation before his probation was revoked—i.e., between
August 7, 2013 and December 18, 2014.
{12} Because we conclude
that Defendant is entitled to credit for the time he served on probation, we
need not address Defendant’s alternative argument that he is entitled to
presentence confinement credit for the time he spent incarcerated after he was
arrested for the probation violation to the time he was sentenced for that
violation.
II. Denial of Defendant’s Motion for
Reconsideration
{13} Defendant argues
that the district court erred in denying his motion for reconsideration without
a hearing. We review the district court’s denial of Defendant’s motion for
reconsideration of his sentence for an abuse of discretion.
State v.
Herbstman,
1999-NMCA-014, ¶ 8,
126 N.M. 683,
974 P.2d 177 (stating that “it
is within the trial court’s discretion whether to modify a valid sentence”).
The district court abuses its discretion when its decision “is clearly against
the logic and effect of the facts and circumstances of the case.”
State v.
Nehemiah G.,
2018-NMCA-034, ¶ 42,
417 P.3d 1175 (internal quotation marks
and citation omitted),
cert. denied, 2018-NMCERT-___ (No. S-1-SC-36974,
Apr. 26, 2018).
{14} Defendant was
afforded a full evidentiary hearing on the merits of his probation violation.
Defendant was also given the opportunity at the December 18, 2014 sentencing
hearing, though he declined, to give an allocution with regard to his sentence.
Defendant’s motion for reconsideration offered two reasons for reducing his
sentence: (1) aside from the charges underlying his probation violation,
Defendant had been compliant with his probation; and (2) Defendant’s dependents
were struggling financially as a result of his incarceration. However,
Defendant cited no legal basis in support of his stated reasons for reducing
his sentence. As the State asserts in its brief, “[n]o reason existed for the [district]
court to hold an additional hearing in which Defendant would have presented
evidence as to the facts already known to the [district] court[.]” We agree;
and under these circumstances, Defendant stated no valid basis for the relief
sought.
See State v. Kenney,
1970-NMCA-038, ¶ 2,
81 N.M. 368,
467
P.2d 34 (stating that in order to be entitled to an evidentiary hearing on a
motion for post-conviction relief, the defendant must allege factual basis for
the relief “which cannot be conclusively determined from the files and records,
and those claims must be such, that if true, provide a legal basis for the
relief sought”; “vague conclusional charges are insufficient”);
see also
State v. Tafoya,
1970-NMCA-088, ¶ 1,
81 N.M. 686,
472 P.2d 651 (stating
that the district court did not abuse its discretion in denying the defendant’s
motion for post-conviction relief without a hearing, where the defendant’s
motion stated no valid basis for relief). We conclude, therefore, that the
district court’s decision to deny Defendant’s motion for reconsideration
without a hearing was not an abuse of discretion.
III. Constitutionality of Imposition of Consecutive
Sentences
{15} Defendant argues
that the district court violated his right to equal protection under the law by
ordering him to serve consecutive sentences when other defendants similarly
situated have been permitted to serve concurrent sentences.
{16} However, as the
State asserts, Defendant “neglected to preserve the alleged error . . . at the
probation sentencing.”
See Rule
12-321(A) NMRA (“To preserve an issue
for review, it must appear that a ruling or decision by the trial court was
fairly invoked.”) Nor did Defendant raise the issue of the constitutionality of
the district court’s imposition of consecutive sentences in his motion for
reconsideration.
Id. Therefore, failing to preserve an equal protection
claim with regard to his sentencing, Defendant has waived all but a claim of
fundamental error, which we determine did not occur because his claim lacks
merit as a matter of law.
{17} “The doctrine of
fundamental error applies only under exceptional circumstances and only to
prevent a miscarriage of justice.”
State v. Barber,
2004-NMSC-019, ¶ 8,
135 N.M. 621,
92 P.3d 633. We have stated that “alleged inequality in sentences
for the same offense, if true, does not provide a basis for post-conviction
relief. The equal protection of the law provisions of the United States and New
Mexico [c]onstitutions do not require uniform enforcement of the law and do not
protect a defendant from the consequences of [their] crime.”
State v. Sharp,
1968-NMCA-073, ¶ 2,
79 N.M. 498,
445 P.2d 101 (internal quotation marks and
citation omitted). It follows that notwithstanding Defendant’s claim that
similarly-situated defendants have been permitted to serve concurrent
sentences, the district court did not err in imposing consecutive sentences as
a matter of law.
Cf. State v. Baldonado,
1968-NMCA-025, ¶¶ 8-19,
79 N.M.
175,
441 P.2d 215 (determining that the defendant’s equal protection rights
were not violated by the district court’s decision to sentence him under the
habitual offender criminal statute as a result of a prior conviction in New
Mexico, where the defendant asserted that the habitual offender statute was not
enforced by the district attorney’s office with respect to persons whose former
convictions occurred outside of New Mexico).
IV. Validity of the Initial Judgment and Sentence
{18} Defendant argues
that his initial sentence was invalid because the district court failed to
attach to its order suspending his sentence reasonable probation conditions to
ensure that he would observe the law as required by Section 31-20-6. This
argument is without merit; the district court attached the required written
conditions for Defendant’s probation to the initial judgment and sentence.
{19} Further, while
unclear from his brief, to the extent that Defendant’s argument is that the
district court’s conditions of probation were not reasonable, we disagree. The
district court may require a defendant to satisfy any conditions of probation
“reasonably related to his rehabilitation.”
State v. Baca,
2004-NMCA-049, ¶ 18,
135 N.M. 490,
90 P.3d 509 (internal quotation marks and
citation omitted). “To be reasonably related, the probation condition must be
relevant to the offense for which probation was granted.”
Id. (internal
quotation marks and citation omitted) Defendant pled guilty to trafficking
methamphetamine and steroids, as well as conspiracy to commit trafficking in
methamphetamine. The district court imposed conditions of probation including
that Defendant was required to complete an alcohol and substance abuse
treatment program, prohibited from using alcohol or illegal drugs, would be
subject to random urinalysis, and that there would be zero tolerance for
illegal drugs and substances. Given the nature of Defendant’s offenses, the
district court’s conditions of probation were reasonable.
V. Defendant’s Claim That the District Court’s
Order Revoking Probation Increased Defendant’s Sentence Contrary to
Law
{20} Defendant argues the
sentence imposed by the district court of eighteen years of incarceration upon
revocation of his probation increased his sentence in violation of his right to
be free from double jeopardy, citing
State v. Allen,
1971-NMSC-026, ¶ 4,
82 N.M. 373,
482 P.2d 237 (stating that “[i]ncreasing a sentence, after a
defendant has commenced to serve it is a violation of the constitutional
guarantee against double jeopardy”). The State responds that Defendant’s argument
ignores the plain meaning of Section 31-21-15(B) (stating that upon revocation
of a probationer’s probation, the district court may “require the probationer
to serve the balance of the sentence imposed or any lesser sentence[,] . . .
but credit shall be given for time served on probation”), which “in this
instance means the remainder of [Defendant’s] entire [twenty-one]-year sentence
not already served on probation.” We agree and conclude that because in
sentencing Defendant after his probation violation the district court ordered a
period of incarceration no longer than Defendant’s original sentence, the
district court did not increase Defendant’s sentence in violation of the
prohibition against double jeopardy.
{21} Defendant also
argues that “[t]he district court’s imposition of another five year
probationary term after [he] completes his eighteen year sentence was error as
it exceeds the court’s jurisdiction of his case.” We disagree. As we have
already stated, when the district court revoked Defendant’s probation, it
reinstated Defendant’s original twenty one year sentence, but suspended the
final three years. As a result, when Defendant is released, there will be time
remaining to serve on his sentence. The district court is permitted under these
circumstances, in the context of a suspended sentence pursuant to Section
31-20-6(C), to place Defendant “on probation . . . for a term not to exceed
five years.”
See also State v. Baca,
2005-NMCA-001, ¶ 15,
136 N.M. 667,
103 P.3d 533 (“The sentencing court retains jurisdiction to revoke a suspended
sentence for good cause shown at any time subsequent to entry of judgment and
prior to the expiration of the sentence” (internal quotation marks and citation
omitted)). It follows that the district court did not err or exceed its
jurisdiction in reinstating Defendant’s original sentence, suspending the
sentence in part, and ordering Defendant’s incarceration to be followed by
probation for a period not exceeding five years.
See id. ¶¶ 14-15
(holding that after the defendants violated the conditions of their probation,
the district court did not err in reinstating the defendants’ original
sentences, suspending them in part, and imposing a period of probation not
exceeding five years).
VI. Defendant’s Claim That the Sentence Constitutes
Cruel and Unusual Punishment
{22} Defendant’s final
argument is that the district court’s “sentence of eighteen years imposed after
the probation violation was excessive and constitutes cruel and unusual
punishment” in violation of his constitutional rights. As we stated above,
Defendant’s sentence, after the district court revoked his probation, was
authorized by statute pursuant to Section 31-21-15(B) and Section 31-20-6(C).
Defendant failed to raise the issue of cruel and unusual punishment at any time
to the district court. It follows that Defendant failed to preserve a claim
that his sentence constitutes cruel and unusual punishment and will not be
permitted to raise the issue for the first time on appeal.
See Chavarria,
2009-NMSC-020, ¶ 14 (holding that because the defendant failed to claim to the
district court that his sentence violated the prohibition against cruel and
unusual punishment and his sentence was authorized by statute, the defendant’s
cruel and unusual punishment claim could not be raised for the first time on
appeal).
{23} Further, we conclude
that the district court’s sentence of eighteen years for Defendant’s two
trafficking convictions did not constitute fundamental error. As we have
already stated, “[t]he doctrine of fundamental error applies only under
exceptional circumstances and only to prevent a miscarriage of justice.”
Barber,
2004-NMSC-019, ¶ 8. Defendant asserts that his “eighteen-year sentence for
non-violent offenses offends contemporary standards of decency, given that
harsh sentences for non-violent drug offenses are increasingly viewed with
disfavor as unnecessarily contributing to America’s ballooning prison
population while doing nothing to undermine the use of illegal drugs.” However,
because there is no dispute that Defendant’s sentence was in accordance with
the law,
see NMSA 1978, §
30-31-20(A),(B) (2006) (stating that a person
who commits trafficking of a controlled substances is “guilty of a second
degree felony and shall be sentenced pursuant to” NMSA 1978, Section
31-18-15
(2016)). Section 31-18-15(A)(7) provides that a person who is convicted of a
second degree felony may be sentenced to a term of imprisonment of nine years.
It follows that the district court did not err, or otherwise abuse its
discretion, in imposing two nine-year sentences for Defendant’s two trafficking
convictions for a total amount of eighteen-years of incarceration.
See State
v. Clah,
1997-NMCA-091, ¶ 19,
124 N.M. 6, 210,
946 P.2d 210 (stating that
“courts may only impose sentences authorized by statutes. . . . but “[w]ithin
the limitations of the provision prescribing the punishment for a particular
offense, the [district] court has discretion to structure the sentence to best
fit the defendant and the crime”).
{24} Defendant’s sentence
is affirmed. We remand for further proceedings in accordance with this opinion.