State v. McDonald, 12641
| Citation | 825 P.2d 238,113 N.M. 305,1991 NMCA 132 |
| Decision Date | 18 November 1991 |
| Docket Number | No. 12641,12641 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Scott W. McDONALD, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from the trial court's order revoking his suspended sentence, imposing the balance of his original eighteen-month sentence, and enhancing the original sentence by one year under our state's habitual offender statute. On appeal, defendant argues that the trial court erred by enhancing defendant's sentence and revoking his suspended sentence after he had completed his underlying sentence. Defendant essentially raises three sub-issues under this argument: (1) the trial court did not make an explicit finding that defendant was a fugitive under NMSA 1978, Section 31-21-15 (Repl.Pamp.1990); (2) the state did not raise the issue of defendant's fugitive status below; and (3) the state failed to make a showing that the bench warrant could not be served. We hold that the trial court's order was proper and thus affirm on all issues.
Defendant pled guilty to a charge of unlawful taking of a motor vehicle. In November of 1987, he was sentenced to eighteen months in the penitentiary, to be followed by a one-year mandatory parole. The trial court then suspended all but six months of the sentence and placed defendant on probation. The judgment and sentence expressly stated that the state reserved the right to file a supplemental criminal information alleging any appropriate prior felony convictions for purposes of habitual criminal enhancement. Defendant signed a standard probation order and was released from confinement that same day. In March of 1988, the state filed a motion to revoke defendant's probation. The motion alleged that defendant had not reported to his probation officer since November of 1987, as he had been ordered to do, and that defendant had moved without leaving a forwarding address. A bench warrant was issued that same day, based on defendant's failure to comply with the conditions of his probation.
At some point between defendant's initial failure to report to his probation officer and March of 1988, he went to Arizona without notifying his probation officer. One condition of his probation was that he obtain permission from his probation officer before leaving the county of his residence. In September of 1988, defendant was convicted in Arizona of two felonies, attempted theft and criminal trespass. The Arizona order of confinement gave defendant credit for one hundred and eighty-five days of presentence confinement, indicating that defendant had been in jail in Arizona since approximately March 6, 1988. As a result of these convictions, defendant was committed to the penitentiary in Arizona to serve a four-year and a three-year sentence, to run concurrently.
The record does not reflect when exactly the district attorney in New Mexico became aware that defendant was incarcerated in Arizona, nor is it clear when the detainer was imposed on defendant's incarceration. There are indications that, as early as November 1988, defendant wrote to the trial court indicating his whereabouts and asking that he be brought before the trial court for a hearing on the parole revocation. Copies of this correspondence were sent by defendant to the district attorney. On December 14, 1989, defendant filed a pro se motion for speedy disposition of the detainer, which was denied.
When defendant completed his confinement in Arizona in June of 1990, the Arizona authorities released him to the Eddy County sheriff under authority of the detainer, and defendant was returned to New Mexico. That same month, defendant was arraigned on the petition to revoke and entered a plea of not guilty. Later, the state filed a supplemental criminal information, contending that defendant was a habitual criminal offender based on a prior felony conviction in the state of Washington.
Ultimately, defendant was found to have violated his probation and to be a habitual criminal offender. The suspended sentence was revoked, and both the balance of the original eighteen-month sentence and a one-year enhancement were imposed. The trial court gave defendant credit against his sentence for certain periods of time, but explicitly denied any credit for the time from March 28, 1988, the date the warrant was issued on the probation violation, until June 4, 1990, the date defendant was turned over to the Eddy County Sheriff and returned to New Mexico. It is from this ruling that defendant appeals.
Defendant first argues that the trial court lacked jurisdiction either to revoke his probation or to impose the habitual offender enhancement because he completed the underlying sentence on November 3, 1988, the date that the probation agreement indicated his term of probation would end. See State v. Gaddy, 110 N.M. 120, 792 P.2d 1163 (Ct.App.1990) (); State v. Travarez, 99 N.M. 309, 657 P.2d 636 (Ct.App.1983) ().
The state concedes that, had defendant completed the underlying sentence, the trial court would have lacked jurisdiction to proceed on either the probation revocation or the enhancement. The state argues however, that, on the facts of this appeal, the underlying sentence had not been completed. Thus, the critical question we must resolve is whether the underlying sentence was completed.
Defendant's argument that the probationary period and the underlying sentence were completed on November 3, 1988, depends factually on his contention that the trial court erred in denying him credit against his sentence for the time he was incarcerated in Arizona. Defendant correctly contends that he can be denied credit for this time only if he was a fugitive during the time in question. See Sec. 31-21-15(B) and (C); State v. Kenneman, 98 N.M. 794, 653 P.2d 170 (Ct.App.1982). Defendant is a fugitive within the meaning of the statute if the trial court finds that "a warrant for [his] return ... cannot be served...." Sec. 31-21-15(C); State v. Apache, 104 N.M. 290, 720 P.2d 709 (Ct.App.1986).
The state argues that defendant did not raise below, and thus did not preserve, the issue that the trial court lacked jurisdiction on the basis that the sentencing period had expired. Thus, the state contends, defendant should not be allowed to raise this issue for the first time on appeal. In support of this argument, the state contends that defendant's incarceration in Arizona precluded service of the warrant.
We agree with the state that the issue defendant has argued on appeal was not raised or argued below or in the original docketing statement. Neither is the issue jurisdictional in nature, thus permitting defendant to raise it for the first time on appeal. The facts of this appeal do not present us with a situation in which the sentence imposed is illegal. Instead, the sentence was authorized by law. In State v. Thomas, 113 N.M. 298, 825 P.2d 231 (Ct.App.1991) we addressed a similar claim in the context of fundamental error. The doctrine of fundamental error will be invoked by an appellate court only when the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or when the court considers it necessary to avoid a miscarriage of justice. State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991). The application of the fundamental error doctrine was appropriate to prevent a miscarriage of justice in Thomas because there was an insufficient showing in the record to substantiate the trial court's denial of credit for time served on probation against defendant's sentence. We decline to apply the doctrine of fundamental error in this case for the following reasons.
Both parties agree on appeal that the trial court's order did not contain an explicit finding that defendant was a fugitive during the period of time that he was incarcerated in Arizona. To the extent that defendant contends that the lack of a formal finding is reversible error, we disagree.. See State v. Baca, 101 N.M. 415, 683 P.2d 970 (Ct.App.1984) (). The issue on appeal is not whether the formal finding is made, but whether the finding that is implicit in the trial court's actions is supported by the requisite showing. See State v. Baca; State v. Garcia, 98 N.M. 186, 646 P.2d 1250 (Ct.App.1982). In any case, defendant failed to make the claim concerning the lack of a formal finding in the trial court and, therefore, has waived it for purposes of appeal. SCRA 1986, 12-216.
We also disagree with defendant's contention that the state failed to raise the issue of defendant's fugitive status below. The state originally raised the issue in July of 1990, at the hearing on the probation revocation, by asking the court to deny defendant credit against his sentence during the period of time in question. It pursued the issue again at the combined hearing on the supplemental criminal information and sentence on August 3, 1990. In both instances, it was clear that the state was requesting the trial court to deny defendant credit against his sentence for the period when he was incarcerated in Arizona. Additionally, defendant did not object to the lack of notice during the proceedings below, and, thus, any error arising from such a claim has been waived. SCRA 1986, 12-216. On this point, then, the only issue to be resolved by us focuses on the question of whether, on the...
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