State v. Aslin

• Citation: 421 P.3d 843
• Decision Date: 28 February 2018
• Docket Number: NO. A-1-CA-35471,A-1-CA-35471
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey ASLIN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

421 P.3d 843

STATE of New Mexico, Plaintiff-Appellee,

v.Jeffrey ASLIN, Defendant-Appellant.

NO. A-1-CA-35471

Court of Appeals of New Mexico.

Filing Date: February 28, 2018

Certiorari Granted, June 25, 2018, No. S-1-SC-36999

Hector H. Balderas, Attorney General, Marko D. Hananel, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, MJ Edge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

VANZI, Chief Judge.

{1} Defendant Jeffrey Aslin raises two issues on appeal challenging the district court's decision revoking his probation. First, he argues that there was insufficient evidence of willfulness to support the finding that he violated probation. Second, he argues that the district court abused its discretion in ruling that the violation was not a "technical violation" under the First Judicial District's technical violation program (TVP). We affirm on the first issue and reverse and remand on the second.

BACKGROUND

{2} In November 2013, Defendant was charged with trafficking of a controlled substance (methamphetamine), conspiracy to commit trafficking of a controlled substance, and possession of drug paraphernalia. Defendant subsequently pleaded guilty to one count of trafficking for which the district court imposed a suspended sentence of nine years imprisonment and a three-year term of probation. In September 2014, a month after entering his plea, Defendant signed an order of probation that, among other things, listed the conditions of Defendant's release and his understanding of them. Of particular relevance, condition five of the probation order required Defendant to "follow all orders and instructions of [his p]robation ... [o]fficer including actively participating in and successfully completing any ... treatment program ... as deemed appropriate by the [p]robation ... [o]fficer."

{3} Defendant admitted to violating his probation on December 15, 2014, after he tested positive for alcohol. The district court reinstated him to probation and Defendant opted into the TVP. As we explain in greater detail below, the TVP in effect at the time, was a program established at the First Judicial District Court for sanctioning adult probationers for "technical violations of their probation[.]"¹ The program provided progressive discipline, including days in jail, for certain "technical violations" up to and including removal from the TVP after a fourth violation.

{4} Defendant tested positive for methamphetamine twice while under the TVP and received jail sanctions of three and seven days, respectively. In October 2015, two months after his second sanction, Defendant was arrested and charged with possession of a stolen motor vehicle and altering or changing engine or other numbers. Defendant's probation officer, Mary Ann Sarmiento, filed a probation violation report alleging that Defendant had committed new criminal offenses and that he had failed to enter a drug treatment program.

{5} The district court held an evidentiary hearing on November 13, 2015, at which two witnesses testified. New Mexico State Police Officer Jessie Whittaker testified regarding the new criminal offenses, and Sarmiento testified regarding the probation violations. Sarmiento stated that she instructed Defendant "multiple times" that he had to find and complete an outpatient drug treatment program "as soon as possible" before Community Corrections would accept him. Defendant told Sarmiento that he would pursue treatment through the Los Alamos Family Council (LAFC), but Sarmiento later learned that LAFC would not be able to provide treatment for him. On September 10, 2015, Sarmiento advised Defendant that he could not get treatment from LAFC and provided him with alternatives, including Presbyterian Medical Services and Hoy Recovery, both located in Española, New Mexico. Defendant never enrolled or participated in those programs or any other outpatient drug treatment program between the time of his conversation with Sarmiento on September 10th and his arrest on October 6th.

{6} At the conclusion of the hearing, the district court found that the State had not proven a violation based on new charges; however, the court found that Defendant had failed to "enter into, participate, and successfully complete drug treatment" in violation of his probation agreement. The district court rejected Defendant's argument that the infraction was a technical violation 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 court revoked Defendant's probation and imposed a sentence of time served, plus two years, seven months, and seven days in prison, to be followed by four years, eight months, and twenty-seven days on probation. This appeal followed.

DISCUSSION

{7} Defendant makes two arguments on appeal. First, he argues that there was insufficient evidence to support the district court's finding that he violated probation. In particular, he contends that the evidence presented at the evidentiary hearing did not prove that he "willfully avoided treatment." Second, Defendant argues that his failure to enter and complete an outpatient drug treatment program was a technical violation that should have been sanctioned in accordance with the TVP, and the district court abused its discretion when it revoked his probation. Although we conclude that the district court did not err in finding that Defendant's failure to enter and complete treatment constituted a probation violation, we agree that Defendant should have been sentenced under the TVP for a third technical violation.

{8} We review the district court's decision to revoke probation under an abuse of discretion standard. State v. Leon , 2013-NMCA-011, ¶ 36, 292 P.3d 493. The state "bears the burden of establishing a probation violation with a reasonable certainty." Id. Moreover, "[t]o establish a violation of a probation agreement, the obligation is on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof." In re Bruno R. , 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339.

{9} We pause to address the State's request for clarification of the law governing the willfulness analysis in probation revocation hearings. Citing to a plethora of mostly unpublished opinions, the State contends that our case law "spans several decades and while not contradictory, is at times inconsistent." Although we see no consequential split or inconsistency in our authority, we nevertheless reiterate that, "[o]nce the state offers proof of a breach of a material condition of probation, the defendant must come forward with evidence to excuse non-compliance." Leon , 2013-NMCA-011, ¶ 36, 292 P.3d 493 (internal quotation marks and citation omitted). Thus, while the burden of proving a willful violation always remains on the state, after the state presents a prima facie case of a violation, the burden shifts to the defendant to come forward with evidence that the failure to comply was through no fault of his own. State v. Martinez , 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 ; see also State v. Parsons , 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99 (noting that it was the state's burden to prove that the defendant violated probation by not paying probation fees and costs, and once the state did so, it was the defendant's responsibility to demonstrate that non-compliance was not willful). As we explained in Leon , there is no shifting of the burden of proof, but a shifting of the burden of going forward with evidence to meet or rebut a presumption that has been established by the evidence. 2013-NMCA-011, ¶ 36, 292 P.3d 493. In other words, once the state establishes to a reasonable certainty that the defendant violated probation, a reasonable inference arises that the defendant did so willfully, and it is then the defendant's burden to show that failure to comply was either not willful or that he or she had a lawful excuse. See id. ¶¶ 36, 39 (noting that the defendant did not present any evidence to rebut the reasonable inference that he willfully violated his probation); see also In re Bruno R. , 2003-NMCA-057, ¶ 9, 133 N.M. 566, 66 P.3d 339 (stating that we indulge all reasonable inferences to uphold a finding that there was sufficient evidence of a probation violation). Having reiterated the law, we now turn to the issues in this case. We begin with whether Defendant's conduct constituted a "willful violation."

{10} At the November 13, 2015 evidentiary hearing, the State presented evidence that Defendant had failed to enter into, participate in, and complete outpatient drug treatment. The probation order—which Defendant acknowledged and signed—required him, among other things, to follow his probation officer's orders, including "actively participating in and successfully completing" a drug treatment program. Defendant's probation officer, Sarmiento, testified that she told Defendant "multiple times" that he had to find and complete an outpatient drug treatment program but he failed to do so. Although Defendant told Sarmiento that he would pursue treatment through LAFC, Sarmiento later found out that Defendant was unable to obtain treatment at that facility. Sarmiento then provided Defendant with two outpatient drug treatment alternatives to LAFC, but he never entered those or any other programs. We agree with the district court that through Sarmiento's testimony the State established a prima facie case that Defendant willfully violated a term of his probation agreement. Accordingly, to rebut this presumption Defendant was required to come forward with evidence showing that his non-compliance was not willful.

{11} On appeal, Defendant contends that his "failure to get treatment resulted from factors beyond his control." However, Defendant does not direct us to anything in the record that provides evidence to...