State v. Esquibel

• Decision Date: 18 April 2022
• Docket Number: A-1-CA-39715
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. NICHOLAS ALFRED ESQUIBEL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. NICHOLAS ALFRED ESQUIBEL, Defendant-Appellant.

No. A-1-CA-39715

Court of Appeals of New Mexico

April 18, 2022

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 MCKINLEY COUNTY Robert A. Aragon District Judge

Hector H. Balderas, Attorney General Emily Tyson-Jorgenson Assistant Attorney General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender William O'Connell Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} This matter was submitted to the Court on Defendant's brief in chief pursuant to the Administrative Order for Appeals in Criminal Cases Involving the Law Offices of the Public Defender, From the Eleventh Judicial District Court in In re Pilot Project for Criminal Appeals, No. 2019-002, effective October 1, 2019. Following consideration of the brief in chief, the Court assigned this matter to Track 2 for additional briefing. Now having considered the brief in chief, answer brief, and reply, we reverse and remand for the following reasons.

{¶2} Following entry of a plea, Defendant appeals the district court's calculation of presentence confinement credit (PSCC) for purposes of his judgment and sentence. Defendant argues that he was entitled to PSCC for 296 days, for the approximate ten months between April 6, 2020 and January 27, 2021 [BIC 21; RB 3], during which time Defendant was ordered to house arrest with electronic monitoring, excepting work [2 RP 303; BIC 9]. The State concedes that Defendant is entitled to 280 days of PSCC [AB 5], but argues that Defendant is not entitled to PSCC for the forty-day period between December 18, 2020 and January 27, 2021, ^[1]during which time Defendant was not compliant with the conditions of his house arrest [AB 5, 8].

{¶3} While we are not bound by the State's concession regarding the 280-day period of time from April 6, 2020 through December 18, 2020 [AB 5, 8], State v. Comitz, 2019-NMSC-011, ¶ 25, 443 P.3d 1130, we agree with it. See State v. Fellhauer, 1997-NMCA-064, ¶ 17, 123 N.M. 476, 943 P.2d 123 (outlining the requirements for conditions of confinement to qualify as PSCC). As such, we address only the State's contention that Defendant is not entitled to PSCC for the time following his non-compliance with the conditions of his house arrest because, although not charged, Defendant had committed the crime of escape from a community custody program, and was, therefore, no longer "in presentence confinement." [AB 8, 9] According to the State, Defendant violated the conditions of his house arrest on multiple occasions, between December 18, 2020 and December 27, 2020, by leaving his home for short periods of time and returning thereafter. [AB 4] In addition, the State contends that Defendant was not in compliance with the terms of his electronic monitoring throughout January 2021. [AB 4] We are unpersuaded by the State's argument.

{¶4} Initially, we note that the State's approach invites the type of fact-intensive evaluations that we have previously held would "would result in case-specific line-drawing incapable of principled implementation." State v Hansen, 2021-NMCA-048, ¶ 26, 495 P.3d 1173, cert. denied (S-1-SC-38778); see id. ("The more lines get drawn, the more they will become blurry or so fine as to be arbitrary, and the more difficult it will become for sentencing courts throughout our state and our appellate courts to evenhandedly and uniformly apply our 'mandatory' presentence confinement credit statute."). More significantly, we agree with Defendant's claim that "[i]t cannot seriously be argued that as soon as [Defendant] violated his [house arrest conditions by] leaving his house for up to two hours on occasions between December 18 and December 27, he...