1998 -NMCA- 34, State v. Jensen
| Decision Date | 06 November 1997 |
| Docket Number | No. 17949,17949 |
| Citation | 1998 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. |
| Court | Court of Appeals of New Mexico |
¶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 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.
¶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.
¶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. See Dominguez, 115 N.M. at 456, 853 P.2d at 158.
¶7 Under NMSA 1978, § 31-20-6(C), (F) (), 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 objected below to either the fact that he was financially obligated to his victims or to the particular amount of that obligation. Cf. Lack, 98 N.M. at 509, 650 P.2d at 31 (). Consequently, if requiring Defendant to sign the notes was proper as a condition of probation, Defendant cannot complain of the note amounts or that the notes might create a debt that is enforceable civilly apart from restitution.
¶10 Defendant next argues that the execution of the promissory notes with interest is not reasonable and also not related to his rehabilitation. See Donaldson, 100 N.M. at 119-20, 666 P.2d at 1266-67; Taylor, 104 N.M. at 96, 717 P.2d at 72. We disagree. In our view, the promissory notes impress upon Defendant the seriousness of his crimes and his responsibility to recompense his victims. We consider the district court's action as intending for the promissory notes to memorialize Defendant's commitment to pay restitution to his victims and to impress on him the magnitude of the harm he caused them. The interest remunerates the victims for the loss of use of their money. Consequently, we hold that the conditions are reasonably related to Defendant's rehabilitation.
¶11 Defendant also contends that the execution of promissory notes with interest does not require or forbid conduct that is reasonably related to deterring future criminality. See Taylor, 104 N.M. at 97, 717 P.2d at 73; Donaldson, 100 N.M. at 120, 666 P.2d at 1267. Again, we disagree. Defendant was convicted of embezzlement, fraud, the unlawful practice of public accounting, and racketeering. We therefore believe that his probation conditions emphasize the financial consequences of his crimes. As a result, the execution of promissory notes with interest serves to deter future criminality.
¶12 Defendant next asserts that the promissory notes and accrued interest are not authorized by statute. See Ayala, 95 N.M. at 465, 623 P.2d at 585; Dominguez, 115 N.M. at 456, 853 P.2d at 158. In an order deferring or suspending sentence, the district court may require defendant "to satisfy any other conditions reasonably related to his rehabilitation." Section 31-20-6(F). We have concluded previously that the promissory notes and interest are reasonably related to Defendant's rehabilitation. Additionally, if this were a civil matter, the amount of interest would be permitted by NMSA 1978, Section 56-8-4(A) (1993), which allows interest of 15% on judgments involving tortious conduct, bad faith, intentional, or willful acts. See § 31-17-1(A)(2) (). It follows that the notes and interest are permitted by law.
¶13 Defendant argues that 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. Section 31-17-1(G) provides in part that "the [district] court may modify the plan of restitution or extend the period of time for restitution, but not beyond the maximum probation or parole period specified in Section 31-21-10 NMSA 1978." As we previously noted, the promissory notes were not intended to be a substitute for restitution, but simply a memorialization of what Defendant admitted he owed the victims.
¶14 Finally, Defendant argues that the...
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