State v. Cooley

• Docket Number: A-1-CA-39291,A-1-CA-40043
• Decision Date: 18 September 2023
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JEFFREY COOLEY a/k/a JEFFREY ALLEN COOLEY, Defendant-Appellant. And STATE OF NEW MEXICO, Plaintiff-Appellee, v. ALLEN ANTONIO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JEFFREY COOLEY a/k/a JEFFREY ALLEN COOLEY, Defendant-Appellant.

And

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ALLEN ANTONIO, Defendant-Appellant.

Nos. A-1-CA-39291, A-1-CA-40043

Court of Appeals of New Mexico

September 18, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY Daniel A. Bryant, District Court Judge

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APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett Loveless, District Court Judge

Raul Torrez, Attorney General

Emily C. Tyson-Jorgenson, Assistant Attorney General

Santa Fe, NM

Michael J. Thomas, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Mark A. Peralta-Silva, Assistant Appellate Defender

Albuquerque, NM

for Appellant Jeffrey Cooley

Bennett J. Baur, Chief Public Defender

Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM

for Appellant Allen Antonio

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SHAMMARA H. HENDERSON, Judge

{¶1} A sex offender whose sentence is deferred or suspended is required to serve "an indeterminate period of supervised probation" between five and twenty years. NMSA 1978, § 31-20-5.2(A) (2003). After five years on probation, and every two and one-half years going forward, a duration review hearing is held where the state has the burden of proving to a reasonable certainty that probation should continue. Section 31-20-5.2(B). If the state fails to carry its burden at the hearing, probation "may be for a period of less than twenty years," and end for the probationer.^[1]See § 31-20-5.2(A).

{¶2} In this consolidated opinion,^[2] we must determine the remedy if a duration review hearing is missed, but probation is later continued based on evidence that was unavailable at the time the hearing should have been held. We hold, based on the plain language of Section 31-20-5.2(B), that duration review hearings are mandatory and must be held by the district court on the timeline provided by the statute. However, failure to hold a timely hearing does not divest the district court of jurisdiction over the case. Moreover, a late duration review hearing may satisfy a

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probationer's right to due process, but only if it sufficiently accounts for the risk that the probationer may be erroneously continued on probation. In the cases before us, the district courts did not sufficiently address that risk, and Defendants' right to procedural due process was violated as a result. We therefore reverse and remand for a new duration review hearing for the district courts to consider additional factors, as we lay out below.

BACKGROUND

I. Defendant Jeffrey Cooley

{¶3} In September 2013, Cooley pleaded guilty to criminal sexual penetration in the third degree, contrary to NMSA 1978, Section 30-9-11(F) (2009). He was sentenced to three years' imprisonment and indeterminate parole for five to twenty years once his prison term ended. The district court suspended one year of Cooley's sentence, and accordingly imposed supervised probation for five to twenty years. One of the conditions of probation required Cooley to refrain from using alcohol and successfully complete alcohol abuse treatment.

{¶4} Cooley's probation began sometime between July and November 2014. In July 2016, the State sought to revoke his probation after discovering that an adult woman had been inside Cooley's home without his probation officer's knowledge or permission. However, the State could not demonstrate at the revocation hearing that Cooley violated the conditions of his probation. Cooley successfully completed

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roughly three more years of probation, until an incident in late January 2020-more than five years after he began probation-when his probation officer discovered Cooley had been drinking alcohol after receiving news of his fiance's declining health. The State once again sought to revoke Cooley's probation. Cooley pleaded no contest, and the district court revoked, and in the same order reinstated, his probation. See NMSA 1978, § 31-21-15(B) (1989, amended 2016) (stating that if a probation violation is established, the district court "may continue the original probation . . ."). At this point, Cooley had been satisfactorily discharged from his parole supervision since July 2019.

{¶5} Four months later, Cooley crashed his vehicle after driving while intoxicated. Cooley had been grieving the death of his fiance at the time, according to his probation officer. The State requested that probation be revoked, but this time, Cooley filed a motion to dismiss in response. He noted that he had been on probation for more than five years, and, according to Cooley, the district court's failure to hold a duration review hearing mandated by Section 31-20-5.2(B) resulted in his successful completion of probation, so the district court had no jurisdiction over him. As a result, he argued that revoking any probation would violate his right to due process under the Fourteenth Amendment of the United States Constitution and Article II, Section 18 of the New Mexico Constitution.

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{¶6} After a hearing, the district court denied Cooley's motion, and revoked and reinstated his probation. This time, the district court imposed additional requirements that Cooley be screened for "intense outpatient treatment" and participate in four Alcoholics Anonymous (AA) meetings each week for the next ninety days, all subject to adjustment based on the screening results. In its order denying Cooley's motion to dismiss, the district court found that Cooley had been on probation for nearly six years without a duration review hearing. However, it concluded that Section 31-20-5.2(B) did not divest the court of jurisdiction or require it to end Cooley's probation. Instead, the district court determined that the appropriate course of action was to require the State to file a petition for a review hearing. Cooley's appeal followed, but while his appeal was pending the State requested a duration review hearing.

{¶7} Before the district court had acted on the State's request, the State once again asked that Cooley's probation be revoked, this time because he had driven with a revoked license. The State later voluntarily withdrew its motion to revoke probation in exchange for Cooley's guilty plea to driving while under the influence. The State made two more requests for a duration review hearing before the district court finally held the hearing on October 7, 2021-approximately six years and eleven months after Cooley began probation, at least.

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{¶8} At the hearing, Cooley testified to his continued efforts to comply with the terms of his probation, while also acknowledging his alcohol use and grief over his fiance's death. Cooley's probation officer testified that Cooley was "very communicative" with her and had not committed another sexual offense, but she was concerned that his alcohol use could cause him to reoffend. Based on the testimony at the hearing, and the record in the case, the district court concluded that the State met its burden of proving to a reasonable certainty that Cooley's probation should continue. The district court relied on the fact that the offense for which Cooley was convicted involved alcohol use, and that all of the recent offenses involved alcohol. Cooley was accordingly ordered to continue to abide by the conditions of his probation.

II. Defendant Allen Antonio

{¶9} In July 2015, Antonio pleaded no contest to criminal sexual penetration in the third degree, contrary to Section 30-9-11(F). He was sentenced to three years' imprisonment and indeterminate parole for five to twenty years once his prison term ended. Two years of Antonio's sentence was suspended, resulting in supervised probation for five to twenty years. Antonio began his probation on December 25, 2015.

{¶10} Five years elapsed without any evidence of probation violations or attempts by the State to revoke Antonio's probation. On December 30, 2020, five years and

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five days after Antonio began probation, the State requested a duration review hearing seeking to continue his probation. Before the district court held a hearing, however, in February 2021, Antonio's probation officer alleged that he had violated the conditions of probation by failing to disclose his sexual relationships and continued use of dating websites. Soon after, the State moved to revoke Antonio's probation. Several circumstances caused the revocation hearing to be delayed twice. First, Antonio was required to quarantine after falling ill with COVID-19, and second, the parties agreed to continue the hearing pending Antonio's parole review hearing in front of the parole board. In April 2021, without ever having a revocation hearing, Antonio admitted that he failed to report his use of dating websites as part of an agreement with the State. The district court revoked, but reinstated Antonio's probation.

{¶11} The district court finally held a hearing on the State's motion to continue Antonio's probation in May 2021. But at this point Antonio was in custody, and for some reason was not given notice of the hearing, so the New Mexico Department of Corrections did not make him available. Moreover, his defense counsel asked that the hearing be reset so that Antonio could file a response to the State's motion to continue. The hearing was rescheduled, and soon after Antonio filed his response. He argued that Section 31-20-5.2(B) mandated a duration review hearing once he had completed five years of probation, and having not been given one, the district

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court was deprived of jurisdiction to make any further decisions regarding his...