State v. Aslin

• Decision Date: 12 December 2019
• Docket Number: NO. S-1-SC-36999,S-1-SC-36999
• Citation: 457 P.3d 249
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Jeffrey ASLIN, Defendant-Respondent.
• Court: New Mexico Supreme Court

457 P.3d 249

STATE of New Mexico, Plaintiff-Petitioner,

v.Jeffrey ASLIN, Defendant-Respondent.

NO. S-1-SC-36999

Supreme Court of New Mexico.

Filing Date: December 12, 2019

Hector H. Balderas, Attorney General, Marko David Hananel, Assistant Attorney General, Santa Fe, NM, for Petitioner

Bennett J. Baur, Chief Public Defender, Matthew J. Edge, Assistant Appellate Defender, Santa Fe, NM, for Respondent

VIGIL, Justice.

{1} Rule 5-805(C) NMRA allows each judicial district to establish a technical violation program (TVP) by local rules whereby probationers can agree to automatic sanctions for technical violations of probation. In the case of Defendant Jeffrey Aslin, the district court ruled that Defendant’s probation violation was not a technical violation under the First Judicial District’s temporary TVP, and the court revoked Defendant’s probation. On direct appeal the Court of Appeals reversed, holding that the definition of a technical violation in the First Judicial District’s temporary TVP conflicted with the definition of a technical violation in Rule 5-805(C). State v. Aslin , 2018-NMCA-043, 421 P.3d 843, cert. granted (S-1-SC-36999, June 25, 2018). On certiorari, the State contends that the Court of Appeals misinterpreted Rule 5-805(C). We agree.

I. BACKGROUND

{2} Rule 5-805(C) permits a judicial district to establish a TVP by local rule. A TVP is "a program for sanctions for probationers who agree to automatic sanctions for a technical violation of the conditions of probation." Id . However, all local rules proposed for the district courts must receive Supreme Court approval pursuant to Rule 5-102(A)(1) NMRA. When we adopted Rule 5-805(C), we recognized that the approval process could unreasonably delay the ability of a judicial district to establish a TVP, and we authorized each judicial district to establish a temporary TVP under a provisional administrative order, to remain effective until final Supreme Court approval of a judicial district’s local rule. Following this procedure, the First Judicial District established its temporary TVP in 2012. The local rule, LR1-306 NMRA, which establishes the permanent TVP in the First Judicial District, was approved for all cases filed in the district courts of the First Judicial District on or after December 31, 2016. Because the temporary TVP was in effect in December 2014 when the district court placed Defendant in the TVP and because the probation violations occurred in 2014 and 2015, LR1-306 does not apply, and the temporary TVP governs. For ease of reference we hereinafter refer to the temporary TVP simply as the TVP.

{3} Under the TVP, a probationer who was in the program and committed a technical violation of probation waived the procedural rights provided for in Rule 5-805 and was subject to a progressive disciplinary scheme. A first violation allowed a sanction of up to three days in jail, a second violation allowed up to seven days in jail, a third violation allowed up to fourteen days in jail, and a fourth violation allowed up to twenty-one days in jail. The TVP in pertinent part defined "technical violations" of a probation agreement as

(1) having a positive urine or breath test or other scientific means of detection for drugs or alcohol;

...;

(2) possessing alcohol;

(3) missing a counseling appointment;

(4) missing a community service appointment;

(5) missing an educational appointment; or

(6) the failure to comply with any term of, or to complete, any treatment program or any other program required by the court or probation.

{4} Pursuant to a plea and disposition agreement, Defendant had pleaded guilty to trafficking a controlled substance (methamphetamine) by distribution. On September 3, 2014, Defendant was sentenced to nine years of incarceration, all of which was suspended with three years of supervised probation. Defendant then signed a standard order setting conditions of probation, and he agreed to comply with its terms. Three months later, on December 15, 2014, Defendant admitted to violating probation after he tested positive for consuming alcohol. Under the TVP, "[t]he court, in its discretion, with the knowing and voluntary consent of the probationer, may order placement of a probationer into the TVP at any time during that person’s period of supervised probation." The district court reinstated Defendant’s probation and placed Defendant into the TVP.

{5} While in the TVP, Defendant committed first and second technical violations when he tested positive for methamphetamine in June and again in August 2015. In accordance with the TVP, Defendant served three days and then seven days in jail for these violations. Upon his release from the seven-day jail sentence, Defendant’s probation officer instructed Defendant to enter, participate in, and successfully complete the Community Corrections Program.

{6} On October 6, 2015, Defendant was arrested on new criminal charges of possessing a stolen vehicle, NMSA 1978, § 30-16D-4 (2009), and altering or changing a motor vehicle engine number or other number, NMSA 1978, § 30-16D-6 (2009). The State thereupon filed a petition to revoke probation on two grounds: (1) Defendant had committed new criminal offenses, and (2) Defendant failed to enter a drug treatment program as ordered. Filing the petition to revoke probation triggered the normal probation revocation procedures under Rule 5-805(D)-(L), and the district court held an evidentiary hearing on the alleged new offenses. We do not discuss the first allegation because the district court found the evidence that Defendant committed new criminal offenses to be insufficient. In support of the second allegation, Defendant’s probation officer testified that Defendant failed to enter an outpatient drug treatment program as she had instructed him to do multiple times between September 1, 2015, and Defendant’s arrest on the new charges. Based on this evidence, the district court found "to a reasonable certainty" that "Defendant violated his conditions of probation by failing to enroll in treatment as ordered by probation." The district court also found that this was "not a mere technical violation." At the hearing, the district court rejected Defendant’s argument that this was a technical violation under the TVP, stating that "failing to find a program and enter is not the same thing as testing positive. It is more than a mere technical violation." The district court therefore revoked Defendant’s probation and ordered that he serve his remaining sentence of two years, seven months, and seven days in the custody of the New Mexico Department of Corrections followed by a specified period of probation.

{7} Defendant appealed to the Court of Appeals, raising two issues: (1) There was insufficient evidence to support a finding that Defendant willfully violated his probation, and (2) the district court erred in ruling that the violation was not a technical violation under the TVP. Aslin , 2018-NMCA-043, ¶¶ 1, 7, 421 P.3d 843. On the first issue, the Court of Appeals affirmed the district court. Id . ¶¶ 1, 10-11. However, the Court of Appeals did not address the second issue as Defendant had presented it. Instead, the Court of Appeals determined that the definition of a "technical violation" in the TVP impermissibly conflicted with the definition of a "technical violation" in Rule 5-805(C). Aslin , 2018-NMCA-043, ¶ 16, 421 P.3d 843. Because the district court found insufficient evidence that Defendant violated conditions of probation by committing new offenses and because "the plain language of Rule 5-805(C) provides that a technical violation is limited to violations that do not involve new criminal charges," the Court of Appeals held that Defendant’s failure to enter and complete outpatient drug treatment "must therefore be construed as a ‘technical violation’ under Rule 5-805(C)." Aslin , 2018-NMCA-043, ¶ 17, 421 P.3d 843. Accordingly the Court of Appeals reversed the district court’s finding that Defendant’s violation was not a technical violation under the TVP, vacated the district court order revoking Defendant’s probation, and remanded the case for imposition of the sanction for a third technical violation under the TVP (up to fourteen days in jail). Id . ¶¶ 17-18.

{8} We granted the State’s petition for certiorari to review the opinion of the Court of Appeals. Our review is limited to the question presented by the State’s petition. See Rule 12-502(C)(2)(b) NMRA. The State contends the "Court of Appeals [m]isinterpreted Rule 5-805(C)" in "determin[ing] that all probation violations that do not consist of new charges must be subject to an automatic sanction according to the [TVP] schedule."

II. DISCUSSION

A. Standard of Review

{9} This case requires us to interpret Rule 5-805(C). As such, we are presented with a question of law subject to de novo review. Allen v. LeMaster , 2012-NMSC-001, ¶ 11, 267 P.3d 806 ("The proper interpretation of our Rules of Criminal Procedure is a question of law that we review de novo."). "When construing our procedural rules, we use the same rules of construction applicable to the interpretation of statutes." Kipnis v. Jusbasche , 2017-NMSC-006, ¶ 10, 388 P.3d 654 (internal quotation marks and citation omitted). "We begin by examining the plain language of the rule as well as the context in which it was promulgated, including the history of the rule and the object and purpose." Id . ¶ 11 (brackets, ellipsis, internal quotation marks, and citation omitted).

B. Analysis

{10} Rule 5-805(C) provides,

A judicial district may by local rule approved by the Supreme Court in the manner provided by Rule 5-102 NMRA, establish a program for sanctions for probationers who agree to automatic sanctions for a technical violation of the conditions of probation. Under the program a probationer may agree:

(1) not to contest the alleged violation of probation;

(2) to submit to sanctions in accordance with the local rule; and

(3) to waive the provisions of Paragraphs D

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