1997 -NMCA- 64, State v. Fellhauer

• Decision Date: 04 June 1997
• Docket Number: No. 16773,16773
• Citation: 943 P.2d 123,1997 NMCA 64,123 N.M. 476
• Parties: , 1997 -NMCA- 64 STATE of New Mexico, Plaintiff-Appellee, v. Frank FELLHAUER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 123

943 P.2d 123

123 N.M. 476, 1997 -NMCA- 64

STATE of New Mexico, Plaintiff-Appellee, v. Frank FELLHAUER, Defendant-Appellant.

No. 16773.

Court of Appeals of New Mexico.

June 4, 1997.

Certiorari Denied July 24, 1997.

[123 N.M. 477] Tom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

T. Glenn Ellington, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

BUSTAMANTE, Judge.

¶1 In this case of first impression in New Mexico, Defendant Frank Fellhauer (Defendant) appeals the trial court's refusal to grant him presentence confinement credit for time spent under "house arrest." Deciding that Defendant's house arrest should not be deemed official confinement under NMSA 1978, Section 31-20-12 (Repl.Pamp.1994), we affirm.

FACTS AND PROCEEDINGS

¶2 Defendant was indicted on six counts of criminal sexual penetration in the first degree pursuant to NMSA 1978, Section 30-9-11(A) (Cum.Supp.1996) and three counts of criminal sexual contact of a minor in the third degree pursuant to NMSA 1978, Section 30-9-13(A) (Repl.Pamp.1994). Defendant was arrested on a bench warrant and incarcerated on May 20, 1992. Bail was initially set in the sum of $50,000, and Defendant was allowed to post either in cash or through a corporate surety. Apparently Defendant could not post the bond, and he remained in custody in the Bernalillo County Detention Center (BCDC) until August 5, 1992, when the district court entered an order releasing him to the custody of a relative. The order setting conditions of release imposed the following restrictions on Defendant:

1) Defendant will not leave Bernalillo County without Court permission; will keep his/her attorney informed of whereabouts and of any changes in work or home address.

2) Attorney has the duty and obligation to notify the Court that the defendant is not at normal address and has absconded.

3) House arrest.

4) No contact with children.

5) Pretrial services supervision.

6) Only leave home for medical treatment or attorney visit.

7) Random checking by PTS.

IF the defendant fails to appear as required, the Court may issue a warrant for his/her arrest. The Court may at any time modify or revoke the conditions of release imposed by this order. If the defendant willfully fails to appear as required, he/she may be charged with an additional felony charge.

The record below is not detailed, but it appears that at least one reason for Defendant's release from actual incarceration in the BCDC was so that he could receive medical treatment at the Veteran's Administration Hospital.

¶3 On October 30, 1992, Defendant entered a plea of no contest to two counts of attempting to commit the felony of criminal sexual penetration in the first degree and three counts of criminal sexual contact of a minor in the third degree. Defendant was sentenced to a total term of incarceration of nine years with a presentence confinement credit of seventy-eight days--the time spent in BCDC prior to his release to house arrest. Defendant filed a pro se motion on June 16, 1995 seeking to correct the judgment and sentence to allow him credit for the time he spent on house arrest. After a non-evidentiary hearing--in which Defendant was represented by the public defender--the district court denied the credit on two general grounds. First, the court felt that since the house arrest was at a private home and not at any place controlled by the State through correctional officers or otherwise, the confinement was not sufficiently jail-like. Second, the Court gave literal effect to the prior order, noting that at bottom it was an order of release, not of confinement or custody.

ANALYSIS

¶4 The courts in New Mexico have not had occasion to consider whether presentence confinement credit should be given for time spent not at a jail or other conventional correctional facility, but at a residence under conditions of release which limit the defendant's freedom of movement to some degree. We start our analysis with Section 31-20-12 which provides: "A person held in official confinement on suspicion or charges of the commission of a felony shall, upon conviction of that or a lesser included offense, be given credit for the period spent in presentence confinement against any sentence finally imposed for that offense." This provision, unchanged since its enactment in 1967, mandates that credit be given for time spent in "official confinement" prior to sentence. The statute does not, however, provide a definition or other indication of what may qualify as official confinement triggering the credit. Our basic task when interpreting any statute, of course, is to give effect to the legislature's intent. Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996) (when interpreting statutes appellate courts give effect to the legislature's intent). The difficulty here is that there is precious little in the statute itself, or the circumstances surrounding its enactment, from which we can draw any definitive conclusion as to how the legislature intended the statute should be applied to factual circumstances such as those we have before us. The usual canons of legislative interpretation are also of little help. For example, there is no commonly accepted plain meaning of the term "official confinement" which we could apply with confidence to resolve the issue in this case. See Sims v. Sims, 122 N.M. 618, 622, 930 P.2d 153, 157 (1996) (the plain meaning rule requires a court to give the effect to the statute's language and refrain from further interpretation when the language is clear and unambiguous).

¶5 There are two sources of interpretative aid upon which we can draw other than the language of the statute itself: (1) other statutes containing similar language; and (2) case law applying the statute. NMSA 1978, Section 30-1-12(H) (Repl.Pamp.1994) defines a similar term as follows: " 'lawful custody or confinement' means the holding of any person pursuant to lawful authority, including, without limitation, actual or conseructive [constructive] custody of prisoners temporarily outside a penal institution, reformatory, jail, prison farm or ranch[.]" Defendant asserts that this definition, when read in conjunction with Section 31-20-12, establishes that the "legislature has decided to liberally grant presentence confinement time." We do not believe the statutes can bear that broad an interpretation even assuming they should be read in pari materia, but they do offer a small insight.

¶6 The terms used in the two statutes are not identical, but it is reasonable to treat "lawful custody or confinement" and "official confinement" as closely related, if not functionally equivalent, concepts. Section 30-1-12(H) was enacted in 1963 as part of a general revision of the entire criminal code and has not been amended since. See 1963 N.M.Laws, ch. 303, § 1-13(H). Thus, it was in place when Section 31-20-12 was enacted in 1967. The terms "lawful custody" and "confinement" or variations of them are used primarily in the statutes prohibiting escape from custody. ¹ The escape statutes, combined with the reference in Section 30-1-12(H) to constructive custody outside a penal institution, reformatory or jail, lead to the conclusion that a person can be in confinement outside the four walls of a prison or jail or other institution in which inmates are controlled by the police or other correctional officials. None of these provisions provide any specific guidance, however, as to the extent of limitation of freedom necessary to require a finding that a person should be deemed to be in official confinement even though not in prison or jail.

¶7 New Mexico cases interpreting Section 31-20-12 provide a general framework for analysis, but they do not provide any specific guidance. In State v. Ramzy, 98 N.M. 436, 437, 649 P.2d 504, 505 (Ct.App.1982) we observed that the statute is mandatory. In State v. La Badie, 87 N.M. 391, 393, 534 P.2d 483, 485 (Ct.App.1975), we held that a defendant was entitled to credit for time spent at the state hospital where he had been committed after being found incompetent to stand trial. In State v. Clah, No. 17,222, slip op. at 5 (N.M.Ct.App. June 4, 1997) decided today, we interpret La Badie to mean that actual incarceration in a jail facility is not an absolute prerequisite to a finding that a person has been in official confinement under Section 31-20-12. See State v. Watchman, 111 N.M. 727, 734-35, 809 P.2d 641, 648-49 (Ct.App.1991), overruled on other grounds as recognized in State v. Hosteen, 122 N.M. 228, 232, 923 P.2d 595, 599 (Ct.App.), cert. granted, 122 N.M. 227, 923 P.2d 594 (1996). Thus, our cases teach that under the statute actual jail time is not required to earn the credit. Again, however, there is no specific guidance as to the type of limitation of freedom necessary to find confinement outside a place of incarceration. La Badie, for example, presents a very different factual circumstance than is present here. Commitment to a locked facility from which the defendant may not voluntarily leave, even though he is not subject to control by police or correctional officers, is obviously very different from home detention or house arrest.

¶8 Interestingly, the basic purpose of the statute is also of little value in deciding the issue before us. We have observed that "[t]he purpose of Section 31-20-12 is to give some relief to persons who, because of an inability to obtain bail, are held in custody." State v. Howard, 108 N.M. 560, 562, 775 P.2d 762, 764 (Ct.App.1989). In this case, Defendant was not in jail after his release to house arrest. The purpose behind Section 31-20-12 would thus be served only to the extent that the lack of bail resulted in significantly more onerous conditions of release. And, that is the basic question presented by this appeal: whether the conditions placed...