State v. Leyba
| Decision Date | 29 December 2008 |
| Docket Number | No. 27,597.,27,597. |
| Citation | 2009 NMCA 030,204 P.3d 37 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ernie LEYBA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee.
Hugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} The State entered into a plea and disposition agreement with Defendant and agreed not to bring habitual offender proceedings "if and only if" Defendant completed at least one year of inpatient alcohol treatment and successfully completed probation without a violation. Defendant violated his probation one month after beginning to serve his probation, and he admitted to the violation. The State did not bring habitual offender proceedings based on the violation, and the district court gave Defendant a second chance at probation. The State subsequently filed a motion to revoke probation, asserting that Defendant violated his probation a second time. The State also initiated habitual offender proceedings because Defendant had already admitted to the first probation violation, and it occurred within one year of the plea and disposition agreement. Without a finding that Defendant committed a second probation violation, the district court held a trial on the State's supplemental habitual offender information and enhanced Defendant's original sentence. Defendant appeals. We affirm.
{2} In June 2004, a four-count information charged Defendant with the felony offenses of burglary, attempted burglary of a dwelling house, battery upon a peace officer, and possession of burglary tools. The case was resolved when Defendant entered into a plea and disposition agreement with the State, which the district court approved in July 2004. Defendant agreed to plead guilty to battery upon a peace officer, and the State agreed to dismiss the remaining three charges and not bring habitual offender proceedings for the three prior convictions "IF AND ONLY IF [Defendant] completes at least one year of inpatient alcohol treatment, and successfully completes probation without violation." Defendant signed the plea and disposition agreement acknowledging that he read and understood its terms.
{3} In its July 2004 judgment and suspended sentence, the district court adjudged Defendant guilty of battery upon a peace officer, sentenced Defendant to the Department of Corrections for eighteen months, and suspended execution of the sentence subject to standard and special supervised conditions of probation. Pertinent to this case, one of the special conditions of probation was that Defendant also signed the order of probation dated July 14, 2004, and placed his initials beside each condition, stating that he read and understood the terms of the probation order and agreed to abide by its terms. Defendant specifically acknowledged that as a special condition of his probation,
{4} Defendant violated his probation the following month. The State filed a motion to revoke probation alleging that Defendant violated the aforementioned special condition, "in that on or about August 12, 2004, [Defendant] was terminated from [the Opportunity House P]rogram for program violations." In October 2004, the district court held a hearing, and after consulting with his attorney, Defendant admitted in a probation violation agreement that he violated his probation as alleged. At the hearing, the district court first determined that Defendant was aware of his constitutional rights and agreed to waive them and then determined that Defendant knowingly, voluntarily, and intelligently agreed to admit that he violated his probation. The district court then formally accepted Defendant's admission that he violated his probation.
{5} In its October 2004 order, the district court revoked Defendant's probation. However, instead of ordering Defendant to serve the balance of his sentence in prison, the district court reinstated Defendant's original eighteen-month suspended sentence. Probation was reinstated for eighteen months, commencing on the date that the July 2004 judgment and suspended sentence was imposed, with the requirement that Defendant "abide by all conditions imposed therein," with credit for the time already served on probation. The district court wanted Defendant to have another opportunity to receive counseling and treatment. Again, a special condition of probation in this order was that "Defendant shall enter and successfully complete an in-patient alcohol/substance abuse program (of at least one year duration— currently planned as Recovery House or Sept House), immediately upon acceptance into the program and a bed being found for [Defendant]."
{6} On January 6, 2005, the State filed a second motion to revoke probation, alleging that in November 2004, Defendant had violated four different conditions of his probation in that he was discharged from the Recovery House in Albuquerque for noncompliance with the program rules or directives; that he failed to comply with his Albuquerque probation officer's order to report to his Raton probation officer; that his whereabouts were unknown to probation authorities; and that he tested positive through urinalysis for marijuana and cocaine, and he admitted to using controlled substances.
{7} Contemporaneous with the motion to revoke probation, the State also filed a supplemental information on January 6, 2005, alleging that Defendant was previously convicted of three other felonies, and that his sentence for the battery on a peace officer conviction should be enhanced pursuant to the Habitual Offender Act. See NMSA 1978, § 31-18-17(C) (2003) (). Trial on the merits of the habitual offender supplemental information was scheduled prior to the hearing on the outstanding motion to revoke probation.
{8} Trial on the habitual offender supplemental information commenced on April 5, 2005. Defendant objected to having the habitual offender trial before the hearing on the second probation revocation. Defendant argued that because he was reinstated to probation at the first revocation hearing without a habitual offender supplemental information being filed by the State at that time, the State waived its right to initiate habitual offender proceedings based on the first probation violation. The State argued that it could proceed on the supplemental information based on Defendant's first probation violation, even though the second probation revocation hearing was not scheduled.
{9} The district court agreed with the State. The district court stated, After hearing the State's evidence on Defendant's prior offenses, the district court found that Defendant had two prior felonies. The district court subsequently filed a judgment, sentence and commitment on April 20, 2005, in which Defendant's original sentence was enhanced by four years, to be served concurrently with the original sentence of eighteen months in the Department of Corrections. See Section 31-18-17(B) (). The scheduled hearing on the out-standing motion to revoke probation was never held.
{10} No direct appeal was filed, but Defendant was subsequently allowed to pursue an appeal to this Court in 2007, after receiving habeas corpus relief based on the failure of trial counsel to file a direct appeal.
{11} Defendant claims that the district court denied him due process by enhancing his sentence based on his admission that he violated his probation in the October 2004 probation violation agreement. The general rule is that a prosecutor may seek habitual felony offender enhancement at any time following conviction and prior to the expiration of the period of incarceration and any parole or probation that follows that period. See State v. Freed, 1996-NMCA-044, ¶ 8, 121 N.M. 569, 915 P.2d 325. This discretion to seek habitual offender enhancement rests with the prosecutor and is not restricted even where the prosecutor knows of prior felonies but chooses to delay seeking the enhancement. Id.
{12} The issue before us is whether the prosecutor was otherwise restricted from exercising her discretion to file the habitual offender supplemental information in April 2005. Defendant makes three alternative arguments to support such a restriction. First, Defendant argues that the State failed to prove that Defendant willfully violated the terms of the initial probation agreement. We construe his argument as a contention that the October 2004...
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...apply habitual offender enhancements—allocution still is required and serves a meaningful purpose. See Leyba , 2009-NMCA-030, ¶ 27, 145 N.M. 712, 204 P.3d 37 (providing that "the opportunity to personally address the sentencer retains both symbolic and practical significance ... [and] may i......
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...offenders may be subject to longer terms of incarceration based on that violation. See, e.g., State v. Leyba, 2009–NMCA–030, ¶ 1, 145 N.M. 712, 204 P.3d 37 (holding that the state could pursue habitual offender enhancement after the defendant failed to successfully complete probation); see ......
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...strongest against the party who drafted and prepared it[;]” “this rule should ... be [applied] to plea agreements.”); State v. Leyba, 145 N.M. 712, 204 P.3d 37, 42 (2009) (finding plea agreements are to be viewed and enforced in their entirety with ambiguities construed in defendant's favor......
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