1998 -NMCA- 34, State v. Jensen

Decision Date06 November 1997
Docket NumberNo. 17949,17949
Citation1998 NMCA 34,124 N.M. 726,955 P.2d 195
Parties, 1998 -NMCA- 34 STATE of New Mexico, Plaintiff-Appellee, v. Robert Scott JENSEN, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Page 195

955 P.2d 195
124 N.M. 726, 1998 -NMCA- 34
STATE of New Mexico, Plaintiff-Appellee,
v.
Robert Scott JENSEN, Defendant-Appellant.
No. 17949.
Court of Appeals of New Mexico.
Nov. 6, 1997.
Certiorari Denied Dec. 30, 1997.

Page 196

[124 N.M. 727] Tom Udall, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Robert Scott Jensen, Las Cruces, Pro se.

OPINION

APODACA, Judge.

¶1 Defendant appeals from the district court's judgment and sentence. He pled guilty to embezzlement over $20,000, two counts of fraud over $20,000, fraud over $2,500, unlawful practice of public accounting, and racketeering. Defendant raises four issues on appeal, arguing that the trial court erred in: (1) requiring Defendant, as a condition of probation, to execute promissory notes payable to the victims; (2) considering

Page 197

[124 N.M. 728] previously undisclosed "ex parte" communications concerning resentencing; (3) violating double jeopardy safeguards by sentencing Defendant based on facts and events that were previously used in a civil trial as a basis for punitive damages; and (4) ordering that Defendant's sentences run consecutively. Not persuaded by Defendant's arguments, we affirm on all issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Defendant was charged with having stolen money from several clients while representing himself as a certified public accountant. The basis for the various criminal charges against him were the following alleged actions by Defendant: (1) misappropriating over $300,000 from Dr. and Mrs. Dennis Madrid intended as payment for taxes owed, by changing the payee on the Madrids' checks from the taxing authorities to himself; (2) misappropriating over $50,000 from Jim Bailey by requesting reimbursements for tax payments owed by Mr. Bailey's business that Defendant had not previously paid; (3) misappropriating over $75,000 from Larry Maddox of Maddox Plumbing and Heating; (4) misappropriating over $2,500 from the Madrids; (5) engaging in the unlawful practice of public accounting by failing to pay renewal fees for a CPA license; and (6) transferring the stolen money into enterprises he established.

¶3 The district court accepted Defendant's guilty pleas. At the sentencing hearing, Defendant was convicted of six counts and was sentenced to twenty-seven years in prison with five years probation and two years parole. The court also ordered Defendant to pay restitution of $355,000 to Dr. and Mrs. Madrid at 15% compound interest from the date the criminal information was filed (June 22, 1994); $39,000 to Mr. Maddox at 15% compound interest; and $101,000 to Mr. Bailey at 15% compound interest. The court directed Defendant, upon his release from prison, to execute promissory notes payable to the victims of his crimes and evidencing the respective amounts of restitution.

¶4 Defendant later filed a motion for modification of sentence. At the hearing on this motion, Defendant requested that the court impose probation rather than incarceration. A resentencing hearing was held at a later date, and the court reduced Defendant's sentence by suspending six of the nine years sentenced on Count III. The court ordered probation for the suspended years and directed Defendant to make restitution during that period.

II. DISCUSSION

A. The Promissory Notes

¶5 Defendant argues that the district court improperly made a condition of probation the execution of promissory notes payable to his victims with compound interest. Defendant challenges this requirement because: (1) the concept of restitution does not create a debtor-creditor relationship, see State v. Lack, 98 N.M. 500, 506, 650 P.2d 22, 28 (Ct.App.1982); State v. Steele, 100 N.M. 492, 493, 672 P.2d 665, 666 (Ct.App.1983); (2) the execution of promissory notes is not reasonably related to Defendant's rehabilitation, see State v. Donaldson, 100 N.M. 111, 119-20, 666 P.2d 1258, 1266-67 (Ct.App.1983); State v. Taylor, 104 N.M. 88, 96-97, 717 P.2d 64, 72-73 (Ct.App.1986); (3) the condition does not require or forbid conduct that is reasonably related to deterring future criminality, see Taylor, 104 N.M. at 96-97, 717 P.2d at 72-73; (4) the promissory notes and accrued interest are not authorized by statute, NMSA 1978, § 31-17-1 (1993); see State v. Ayala, 95 N.M. 464, 465, 623 P.2d 584, 585 (Ct.App.1981); State v. Dominguez, 115 N.M. 445, 456, 853 P.2d 147, 158 (Ct.App.1993); (5) the conditions of restitution extend beyond the maximum probation or parole period, contrary to Section 31-17-1(G); see Lack, 98 N.M. at 505, 650 P.2d at 27; and (6) requiring the signing of the promissory notes as a condition of probation could result in a violation of Defendant's probation and reinstatement of his suspended sentence if he made what could be deemed insufficient payment.

¶6 Because Defendant claims that the sentences ordered were not authorized by statute, this issue is jurisdictional and may be raised for the first time on appeal.

Page 198

[124 N.M. 729] See Dominguez, 115 N.M. at 456, 853 P.2d at 158.

¶7 Under NMSA 1978, § 31-20-6(C), (F) (1988, prior to the 1997 amendment), the court may require a defendant "to be placed on probation ... for a term not to exceed five years" and "to satisfy any other conditions reasonably related to his rehabilitation." "If the trial court exercises [a] sentencing option[ ] under Section 31-20-6 ..., the court shall require as a condition of probation ... that the defendant ... promptly prepare a plan of restitution ... to each victim." Section 31-17-1(B).

¶8 We "will not ... set aside [probation conditions] unless: 1) they have no reasonable relation to the offense for which the defendant was convicted; 2) relate to activity [that] is not itself criminal in nature; and, 3) require or forbid conduct [that] is not reasonably related to deterring future criminality ." Taylor, 104 N.M. at 96-97, 717 P.2d at 72-73.

¶9 Defendant first contends that execution of promissory notes is inappropriate because the conditions of restitution do not create a debt or a debtor-creditor relationship. See Lack, 98 N.M. at 506, 650 P.2d at 28; Steele, 100 N.M. at 493, 672 P.2d at 666. Defendant contends that the district court was not permitted to require him to do anything that would create "the ordinary characteristics of a judgment debt" such as "certainty of and absolute right to payment." See Steele, 100 N.M. at 493, 672 P.2d at 666. Under the circumstances of this case, we disagree. Although restitution alone does not create a debt, Defendant never...

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  • State v. Wilson, 21,279.
    • United States
    • Court of Appeals of New Mexico
    • April 11, 2001
    ...authorized by statute is jurisdictional and may be raised for the first time on appeal, see State v. Jensen, 1998-NMCA-034, ¶ 6, 124 N.M. 726, 955 P.2d 195, this narrow exception to the rules of preservation does not extend to all sentencing issues, see id. ¶ 15 (holding that the defendant'......
  • State v. Sotelo, 31,061.
    • United States
    • Court of Appeals of New Mexico
    • January 22, 2013
    ...it relates to this case. {37} “We review the trial court's sentencing for an abuse of discretion.” State v. Jensen, 1998–NMCA–034, ¶ 19, 124 N.M. 726, 955 P.2d 195. A trial court abuses its discretion when it exercises its discretion based on a misunderstanding of the law. See State v. Elin......
  • State v. Vincent, 23,832.
    • United States
    • Court of Appeals of New Mexico
    • March 24, 2005
    ...representation was compromised by an actual, active conflict of interest); see also State v. Jensen, 1998-NMCA-034, ¶ 18, 124 N.M. 726, 955 P.2d 195 ("Without a factual basis in the record, even a double-jeopardy claim must be rejected."). WAIVER OF COUNSEL {11} Defendant argues that his Si......
  • State v. Gardner, 22,321.
    • United States
    • Court of Appeals of New Mexico
    • June 19, 2003
    ...as required by due process. "We review the trial court's sentencing for an abuse of discretion." State v. Jensen, 1998-NMCA-034, ¶ 19, 124 N.M. 726, 955 P.2d {40} At sentencing, Defendant called four witnesses to testify on his behalf. On appeal, Defendant states that these witnesses "were ......
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