State v. French

• Decision Date: 27 July 2021
• Docket Number: No. A-1-CA-37792,A-1-CA-37792
• Citation: 495 P.3d 1198
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Justin FRENCH, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

495 P.3d 1198

STATE of New Mexico, Plaintiff-Appellee,

v.Justin FRENCH, Defendant-Appellant.

No. A-1-CA-37792

Court of Appeals of New Mexico.

Filing Date: July 27, 2021

Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender Caitlin C.M. Smith, Assistant Appellate Defender Santa Fe, NM, for Appellant

HENDERSON, Judge.

{1} Following a jury trial, Defendant Justin French was convicted of possession of methamphetamine, aggravated fleeing of a law enforcement officer, and resisting, evading or obstructing an officer. Defendant raises two issues on appeal. First, he appeals the district court's ruling on presentence confinement credit. Second, he appeals his convictions for aggravated fleeing of a law enforcement officer and resisting, evading or obstructing an officer on the grounds that these convictions violate his protection against double jeopardy. We reverse the district court's ruling on presentence confinement credit and Defendant's conviction for resisting, evading or obstructing an officer. We remand the case to the district court with instructions to enter an amended judgment and sentence and to vacate Defendant's conviction for resisting, evading or obstructing an officer.

BACKGROUND

{2} On September 8, 2017, Defendant led law enforcement officers on a vehicle chase from Logan, New Mexico to Tucumcari, New Mexico. After stopping, Defendant exited the vehicle and ran away from the officers. Following a foot chase, an officer located Defendant in a shed. The officer detained Defendant, and upon performing a pat down of Defendant's person, found suspected methamphetamine tucked in Defendant's sock.

{3} Defendant was charged with, among other things, possession of methamphetamine, aggravated fleeing of a law enforcement officer, and resisting, evading or obstructing an officer. At the time of his arrest in the instant case, Defendant was serving a term of probation in two separate criminal cases, D-1010-CR-2016-00092¹ (PV-1) and D-1010-CR-2016-00094 (PV-2).

{4} On July 18, 2017, before Defendant engaged in the conduct that gave rise to the charges against him in the instant case, the State petitioned the district court to revoke Defendant's probation in PV-1, alleging that he had violated the terms of his probation by failing to report to probation and submit reports in the manner required, and that he had absconded. The district court issued a bench warrant with a no bond hold for alleged probation violations in that case. Defendant was booked into custody on that warrant on September 8, 2017—the date of his arrest in the instant case. Pursuant to a stipulated pretrial detention order entered that same day, Defendant was held without bond for the charges in the instant case. On September 19, 2017, the State petitioned the district court to revoke Defendant's probation in PV-2, alleging that Defendant had violated the terms of his probation by engaging in the conduct that resulted in the charges in the instant case. That same day, the State similarly amended its petition to revoke Defendant's probation in PV-1, alleging, in addition to the allegations outlined above, that Defendant violated the terms of his probation by engaging in the conduct that resulted in the charges in the instant case.

{5} The district court arraigned Defendant on the charges in the instant case on October 10, 2017, and entered an order releasing Defendant on his own recognizance. However, the order also specified that Defendant was to be held in custody without bond for his alleged probation violations in PV-1 and PV-2. The district court stated that the effect of the order would deny Defendant presentence confinement in the instant case beginning that day.

{6} On December 15, 2017, after a final revocation hearing, the district court revoked Defendant's probation in both PV-1 and PV-2.

In PV-1, the violations tracked the allegations in the original petition to revoke probation filed on July 18, 2017. Notably, the district court did not find a violation based on the September 8, 2017 conduct that gave rise to the charges in the instant case. However, in PV-2, the district court did find violations based on the September 8, 2017 conduct. Defendant remained in custody until he was convicted of the charges in the instant case on July 31, 2018. At that time, the district court amended Defendant's conditions of release to a no-bond hold so that Defendant would begin earning presentence confinement credit.

{7} The instant case proceeded to sentencing on September 25, 2018. At that time, the district court sentenced Defendant to eleven years, eleven months, and twenty-nine days of imprisonment, followed by one year of parole. The district court suspended three years, eleven months, and twenty-nine days of the sentence. Upon completion of imprisonment, Defendant was further sentenced to three years, eleven months, and twenty-nine days of probation, to run concurrently with his term of parole. The district court awarded Defendant ninety days of presentence confinement credit, which reflected the time he spent in custody between his arrest and arraignment in the instant case, and the time he spent in custody between the conclusion of his trial and his sentencing hearing in the instant case. He appeals.

DISCUSSION

{8} Defendant advances two arguments on appeal: (1) that the district court erroneously calculated his sentence in the instant case by denying him presentence confinement credit for the time spent in custody due to his probation violations; and (2) that his convictions for aggravated fleeing of a law enforcement officer and resisting, evading or obstructing an officer violate his protection against double jeopardy. We address each argument in turn.

I. The District Court Erred in Its Presentence Confinement Credit Calculation

{9} The statute that governs awards of presentence confinement credit is NMSA 1978, Section 31-20-12 (1977), which provides, "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 confinement against any sentence finally imposed for that offense." We review the district court's application of Section 31-20-12 de novo to determine whether Defendant "had a right to presentence credit." State v. Romero , 2002-NMCA-106, ¶ 6, 132 N.M. 745, 55 P.3d 441. Section 31-20-12 does not afford the district court discretion in awarding presentence confinement credit.² See Romero , 2002-NMCA-106, ¶¶ 6-7, 132 N.M. 745, 55 P.3d 441 (noting that the statute "requires the district court to grant presentence confinement credit against a final sentence" and expressly rejecting an argument that such action is discretionary (emphasis added)); State v. Miranda , 1989-NMCA-068, ¶ 7, 108 N.M. 789, 779 P.2d 976 (noting that the district court is "required" to grant presentence confinement credit "as long as the presentence confinement is related to the charge on which the conviction is based").

A. Defendant's Confinement is Related to the Charges in the Instant Case

{10} Defendant asserts that his presentence confinement in both PV-1 and PV-2 "was related to this case, and therefore he is entitled to credit for that confinement." Meanwhile, the State argues that Defendant "is not entitled to credit against the sentence in this case for confinement after arrest on the charges in this case that coincided with the unexpired term of the sentence(s) in his previous case(s)."

{11} In deciding whether Defendant is entitled to the credit he seeks, "[t]he determinative issue is whether the basis for [the] defendant's confinement is actually related to the charge upon which his conviction is based[,]" State v. Page , 1984-NMCA-012, ¶ 26, 100 N.M. 788, 676 P.2d 1353, although the "confinement [need not] be related exclusively to the charges in question." Miranda , 1989-NMCA-068, ¶ 7, 108 N.M. 789, 779 P.2d 976. To determine if confinement is actually related to the charge, we apply the following three-factor test derived from State v. Facteau , 1990-NMSC-040, ¶ 7, 109 N.M. 748, 790 P.2d 1029 and State v. Orona , 1982-NMCA-143, ¶¶ 5-6, 98 N.M. 668, 651 P.2d 1312 : "(1) whether [the] defendant was originally confined, (2) whether the charges related to the sentence triggered the confinement, and (3) whether bond was set in the case related to the sentence." Romero , 2002-NMCA-106, ¶ 11, 132 N.M. 745, 55 P.3d 441.

{12} While decided before Facteau and Orona , the analysis employed in State v. Ramzy , 1982-NMCA-113, 98 N.M. 436, 649 P.2d 504, is synonymous with the test derived from those cases and informs our analysis here. In Ramzy , the defendant was released on an appeal bond for his first case when he acquired charges in a second case. Id. ¶ 4. These subsequent charges led to revocation of the defendant's appeal bond in his first case, which resulted in his confinement. Id. ¶ 5. This Court held that the subsequent charges that led to the defendant's parole to be revoked in the first case provided a "sufficient connection" between the defendant's second case and his confinement to warrant presentence confinement credit. Id. ¶ 11. We reasoned that "[the d]efendant's incarceration and confinement for the period in question was undoubtedly partly, if not totally, caused by [the] charges" in the second case despite the defendant being held in custody "due to the revocation of the appeal bond in" the first case. Id.

{13} Like the defendant in Ramzy , Defendant was not originally confined when he acquired the charges in the instant case. The charges in the instant case triggered Defendant's confinement. Defendant was on probation for PV-2 when he acquired the charges in the instant case. The State petitioned the district court to revoke Defendant's probation in PV-2 in response to the charges in this case. Finally, Def...