State v. Duhon, 24,222.

• Citation: 2005 NMCA 120, 122 P.3d 50
• Case Date: October 13, 2005
• Court: Supreme Court of New Mexico

122 P.3d 50 2005 NMCA 120 STATE of New Mexico, Plaintiff-Appellee,
v.
Valerie A. DUHON, Defendant-Appellant. No. 24,222. Court of Appeals of New Mexico. August 22, 2005. Certiorari Granted, No. 29,435. October 13, 2005.

Page 51

Patricia A. Madrid, Attorney General, Santa Fe, Joel Jacobsen, Assistant Attorney General, Albuquerque, for Appellee.

Liane E. Kerr, Albuquerque, for Appellant.

OPINION

VIGIL, J.

{1} Defendant appeals the district court's refusal to grant her presentence confinement credit for the full period of time that she spent under house arrest pursuant to an electronic monitoring program. We reverse Defendant's sentence and remand with instructions to grant her presentence credit for the full period of time that she spent under house arrest.

BACKGROUND

{2} Defendant was charged with committing forgery on February 28, 2001. On May 9, 2001, she was charged in a homicide/burglary case with being an accessory to second degree murder, burglary, tampering with evidence, and harboring a felon. The cases were subsequently consolidated.

{3} On July 11, 2001, Defendant and the State agreed to a "Stipulated Order on Appearance Bond and Conditions of Release" (Stipulated Order) which was approved and adopted as an order of the district court. It directed that Defendant be released on a $20,000 appearance bond with the following conditions: (1) that she be placed on "strict house arrest"; (2) that she "wear an ankle bracelet provided and monitored twenty-four (24) hours a day"; (3) that she submit to random urinalysis by the adult probation office; (4) that she check in daily with the adult probation office; and (5) that she be allowed to travel while accompanied by her parents only to meet with her attorney, for medical emergencies, to church, and to mental health counseling. [Id.]

{4} Defendant and the State also negotiated a guilty plea agreement which they filed on July 11, 2001. The plea agreement required Defendant to cooperate fully with law enforcement in the investigation and subsequent prosecution of all individuals involved in the homicide/burglary. The guilty plea agreement was subsequently approved by the district court on September 13, 2001. Disposition of Defendant's case was then deferred pending disposition of the homicide/burglary case, and Defendant's house arrest continued under the conditions of release set forth in the Stipulated Order.

{5} Defendant remained under house arrest pursuant to the electronic monitoring program as specified in the Stipulated Order from July 12, 2001, until she appeared for final sentencing on May 23, 2003, after the homicide/burglary case was concluded. Defendant complied with all the conditions of the Stipulated Order and requested presentence confinement credit for the entire time she was under house arrest. The State objected and a subsequent hearing was held, in which the parties addressed the credit issue. The district court ultimately granted Defendant credit for 340 days, which was only one-half

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of the time that she spent under house arrest. Defendant appeals.

DISCUSSION

A. Entitlement to Presentence Confinement Credit

{6} Defendant is entitled to presentence confinement credit if her house arrest pursuant to the electronic monitoring program constituted "official confinement." NMSA 1978, § 31-20-12 (1977) ("A person held in official confinement on suspicion or charges of the commission of a felony shall, upon conviction of that or a lesser included offense, be given credit for the period spent in presentence of confinement against any sentence finally imposed for that offense."). A two-part test applies, requiring that:

(1) a court has entered an order releasing the defendant from a facility but has imposed limitations on the defendant's freedom of movement, OR the defendant is in the actual or constructive custody or state or local law enforcement or correctional officers; and (2) the defendant is punishable for a crime of escape if there is an unauthorized departure from the place of confinement or other non-compliance with the court's order.

State v. Fellhauer, 1997-NMCA-064, ¶ 17, 123 N.M. 476, 943 P.2d 123.

{7} The State concedes that the Stipulated Order setting the conditions of Defendant's release meets the first part of the Fellhauer test. We agree. The conditions that she be on "strict house arrest," that she check in daily with the adult probation office, and that she be allowed to travel only to meet with her attorney, for medical emergencies, to church, and to mental health counseling, and then only while accompanied by her parents clearly constitute limitations on her freedom of movement to satisfy the first part of Fellhauer. State v. Guillen, 2001-NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812 (holding that any defendant charged with a felony who is released "under conditions of house arrest that require the defendant to remain at home except to attend specified events such as treatment, work, or school" places sufficient limitations on that defendant's freedom of movement to satisfy first part of Fellhauer test).

{8} The issue presented here is whether Defendant was subject to punishment for a crime of escape under the second part of the Fellhauer test. Guillen holds that release of a defendant under conditions of house arrest pursuant to a community custody release program that holds the defendant liable to a charge of escape under NMSA 1978, § 30-22-8.1 (1999) satisfies the second prong of Fellhauer. Guillen, 2001-NMCA-079, ¶¶ 7, 11, 130 N.M. 803, 32 P.3d 812. The dispute in the district court centered on whether Defendant was subject to liability for escape under Section 30-22-8.1. The offense is statutorily defined in Subsection (A) as follows:

Escape from a community custody release program consists of a person, excluding a person on probation or parole, who has been lawfully committed to a judicially approved community custody release program, including a day reporting program, an electronic monitoring program, a day detention program or a community tracking program, escaping or attempting to escape from the community custody release program.

Section 30-22-8.1(A).

{9} The district court focused on whether Defendant's house arrest was pursuant to a "judicially approved community custody release program." The district court stated it was unaware of a "judicially approved community custody release program" in the Ninth Judicial District, and in its letter decision to counsel, the district court stated that the county had not authorized the establishment of a community-release program, citing NMSA 1978, § 33-3-24 (1981) ("The sheriff of...