State v. Green

• Decision Date: 22 September 2014
• Docket Number: 31,787.,No. 34,939.,34,939.
• Citation: 341 P.3d 10
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. John GREEN, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

341 P.3d 10

STATE of New Mexico, Plaintiff–Appellee

v.John GREEN, Defendant–Appellant.

31,787.

No. 34,939.

Court of Appeals of New Mexico.

Sept. 22, 2014.

Certiorari Denied, Dec. 11, 2014,

Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Kimberly Chavez Cook, Assistant Public Defender, Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} This appeal follows the revocation of Defendant's probation and his ensuing return to incarceration in order to conclude his original term of imprisonment in full. In 2003, after pleading guilty to second-degree kidnapping and murder, Defendant was sentenced to nineteen years, of which nine were suspended by the district court. In 2008, after about five years in prison, Defendant was released on probation. Within months of his release, however, the State began to allege what became a series of ensuing violations that culminated in the revocation of Defendant's probation. Ultimately, the district court ordered Defendant to serve the balance of his sentence in prison, including a previously imposed one year habitual offender enhancement. Defendant appeals both the revocation of his probation, as well as the conditions of probation. We affirm.

BACKGROUND

{2} In 2001 Defendant was indicted for the kidnapping, rape, and murder of Kathryn Dockweiller, an Albuquerque attorney, in 1988. Defendant was allowed to plead guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (holding that a district court may accept a defendant's guilty plea despite an absence of admission to criminal wrongdoing), to second-degree murder, contrary to NMSA 1978, § 30–2–1(B) (1980) and kidnapping, contrary to NMSA 1978, § 30–4–1 (1973).¹ During the plea hearing, Defendant did not oppose the State's request that the district court take judicial notice of the grand jury proceedings and content of the indictment to establish a factual basis for the plea.

{3} The record reveals that Detective Bill Peters of the cold-case unit of the Bernalillo County Sheriff's Department provided testimony to the grand jury that indicted Defendant. He informed the grand jury that Ms. Dockweiller had disappeared on May 12, 1988, and was found several days later in a shallow grave, still bound and gagged. The Office of the Medical Investigator (OMI) concluded that the nature and manner of death had been homicide by strangulation. Pursuant to the death investigation conducted by OMI, vaginal swabs were taken from Ms. Dockweiller that revealed the presence of semen within Ms. Dockweiller's body that had been deposited there “at or near the time of her death.” Defendant was originally a suspect in Ms. Dockweiller's murder, and following a report from his ex-wife over a decade later, wherein she disclosed her discovery of Ms. Dockweiller's calendar concealed within Defendant's vehicle, Detective Peters obtained a search warrant for Defendant's DNA, which was found to match the DNA obtained from Ms. Dockweiller's body. Based on this discovery, Defendant was indicted and chose to plead guilty in lieu of trial.

{4} Following the plea colloquy, the district court observed that the murder of Ms. Dockweiller was in fact the second murder Defendant had committed. A pre-sentencing report informed the district court that Defendant had been previously sentenced to serve a twenty-year period of imprisonment in Texas based upon an unrelated homicide and attempt to commit criminal rape in 1979.² Based on the circumstances of the instant case and in light of Defendant's past criminal history, the district court ordered that he serve the statutory maximum penalty of nine years for the second-degree murder of Ms. Dockweiller, nine additional years for her kidnapping, and an extra year because he was a habitual offender. Due to the ten-year sentencing cap established within the plea agreement, however, the district court suspended nine of Defendant's nineteen year cumulative sentence. It imposed the maximum available period of probation of five years, alongside two years of supervised parole. In its judgment and sentence, the district court ordered probation to be wholly conditioned upon Defendant “obey[ing] all rules, regulations[,] and orders of the [p]robation [a]uthorities.”

{5} When Defendant was released from prison, he signed a sex offender behavioral contract. Although not required to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29–11A–1 to –10 (1995, as amended through 2013), Defendant was compelled to comply with various sex-offender-related terms of probation, including abstention from the purchase, possession, or subscription to “any sexually oriented or sexually stimulating material.” In the contract, Defendant agreed that probation authorities were free to examine any computer Defendant could access for inappropriate content, including, but not limited to pornography. Within months of Defendant's release and placement on probation in 2008, probation authorities alleged that he was in violation of specific prohibitions to which he had agreed. Specifically, the probation violation report alleged that Defendant had associated with other probationers and parolees, responded to personal dating ads on the internet, and left the county without permission. He was arrested on the probation violations, and the State sought revocation of his probation.

{6} At the time, Defendant challenged the allegations on the grounds that the sex offender behavioral contract he was required to sign was not reasonably related to the charges of conviction, and that the “overbroad, pervasive, and undifferentiated restrictions” associated with sex offender probation violated his due process rights. He relied on State v. Williams, in which we held that a defendant not convicted of a sex offense under SORNA cannot be subjected to SORNA requirements. 2006–NMCA–092, ¶ 12, 140 N.M. 194, 141 P.3d 538. The State, through the New Mexico Corrections Department (NMCD), filed a response, maintaining that the crimes of conviction, considered alongside what was known regarding his prior murder conviction, justified the probationary supervision he received. NMCD asserted that probation authorities have broad discretion to supervise probationers with those conditions it deems appropriate and that NMSA 1978, Section 31–21–4 (1963) requires that the post-release probationary treatment of persons convicted of crimes “shall take into consideration their individual characteristics, circumstances, need[s,] and potentialities.” Following a hearing, the district court denied Defendant's motion to modify the terms and conditions of his probation, yet did not then revoke Defendant's probation.

{7} In May 2011 Defendant was again arrested for what were alleged to be additional probation violations. This time, the probation report asserted that Defendant: (1) was in violation of his behavioral contract as he was found to have pornographic imagery on his computer; (2) had responded to personal advertisements on his laptop computer in violation of the behavioral contract; and (3) had violated his probation by associating with other probationers and parolees. During the ensuing violation hearing, Officer Baum, Defendant's probation supervisor, testified that when Defendant had initially signed the behavioral contract and Defendant had reviewed the conditions contained within it, specifically including the conditions on computer usage that disallowed pornography and sexually explicit material. The officer testified that upon opening and examining Defendant's computer, he observed a “photo of a nude woman.” Officer Baum testified that he asked Defendant if “there [were] any porn images” on the computer, and Defendant replied that there were. Officer Baum stated that he and a colleague later conducted a forensic examination of the computer and found numerous pornographic images. Over Defendant's objection as to foundation, a collage of the images found were entered into evidence as State's Exhibit 2 (Exhibit 2) during Defendant's revocation hearing. Following the hearing, the court revoked Defendant's probation and ordered that he serve the remainder of his original sentence.

{8} Defendant appeals the revocation of his probation on three bases, arguing that: (1) the requirement that he sign a sex offender behavior contract was an illegal condition of probation; (2) there was insufficient evidence to support any of the probation violations found by the district court or, in the alternative, he lacked notice that his conduct could constitute violations of the conditions of probation; and (3) the images found on Defendant's laptop lacked a proper foundation and should have been determined to be inadmissible.

LEGALITY OF CONDITIONS OF PROBATION

{9} New Mexico law places squarely within purview of the district court the authority to order a defendant to “satisfy any other conditions reasonably related to ... rehabilitation.” NMSA 1978, § 31–20–6(F) (2007). An award of probation is a discretionary act of the sentencing court, and a challenge to its terms and conditions is reviewed on appeal only for an abuse of discretion. Williams, 2006–NMCA–092, ¶ 3, 140 N.M. 194, 141 P.3d 538. “However, a sentencing court may not impose an illegal sentence. [I]t does not have the discretion to impose a probation term or condition that is contrary to law.” Id. ¶ 4. “We review the legality of a [criminal] sentence under the de novo standard of review.” Id.

The Conditions of Probation Imposed by NMCD were Authorized by the District Court

{10} Defendant first contends that the conditions of probation to which he was required to adhere were illegal because NMCD lacked the authority to mandate that his release be conditioned upon his being party to any “sex offender behavior contract” that included conditions not...