State v. Neal

• Decision Date: 20 June 2007
• Docket Number: No. 26,108.,26,108.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Marcus NEAL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

167 P.3d 935

2007 NMCA 086

STATE of New Mexico, Plaintiff-Appellee, v. John Marcus NEAL, Defendant-Appellant.

No. 26,108.

Court of Appeals of New Mexico.

June 20, 2007.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} This case requires us to determine whether the district court had jurisdiction to revoke Defendant's probation. Resolution of this issue depends on the application of NMSA 1978, § 31-20-5(B) (2003). Section 31-20-5(B)(2) provides that if a defendant's parole is revoked, "the period of parole served in the custody of a correctional facility shall not be credited as time served on probation." The appeal involves two separate sentences, arising from two separate convictions. The essential issue is whether Defendant's failure to successfully complete parole in one case tolled the time for bringing a probation revocation petition in the second case. If it did, the time for revoking probation was extended, and the district court had jurisdiction. If it did not, the time for revoking probation had run, and the district court was without jurisdiction to take action in the second case.

{2} The State argues that Defendant's failure to successfully complete parole in one case meant that he was not entitled to a credit against his probation in the second case, thereby extending the period in which the district court had jurisdiction to revoke probation. Defendant argues that Section 31-20-5(B) only applies to a single case and a single sentence and does not apply to a situation, like this one, in which a defendant has more than one sentence running at the same time. We conclude that the legislature intended Section 31-20-5(B) to apply, whether a defendant has a single sentence or multiple sentences. Consequently, we affirm the district court's determination that it had jurisdiction to revoke Defendant's probation. We also address arguments concerning credit for time in which Defendant was a fugitive, double jeopardy, admissibility of evidence, and several arguments raised pursuant to State v Franklin, 78 N.M. 127, 428 P.2d 982 (1967). We reverse the denial of credit for time served on probation for approximately two months during which the State alleged Defendant was a fugitive. We affirm on all other grounds.

FACTS

{3} Essentially, this appeal is about a defendant who was the subject of two cases, who was given clemency in the two cases, through parole and probation, and who continued to falter. Eventually, after a period of several years, the district court revoked probation. Defendant argues that the district court's order revoking probation came too late because his probationary period had been served. We review the tangled procedural history of the two cases because understanding Defendant's conduct and the structure of his sentences is necessary to understand the issues.

A. DEFENDANT'S FIRST CASE, NO. 827

{4} The relevant history began January 8, 2001, when Defendant was convicted of unlawful taking of a motor vehicle in CR-2000-827 and was given a deferred sentence. We refer to this case as "No. 827."

B. DEFENDANT'S SECOND CASE, NO. 406

{5} In 2002, Defendant found new trouble. On September 30, 2002, he pleaded no contest to theft of a credit card and larceny in CR-2002-406. We refer to this case as "No. 406."

C. COMBINING OF BOTH CASES IN A NEW SENTENCE

{6} In deciding the sentence in No. 406, the district court considered both of Defendant's cases. The district court sentenced Defendant to eighteen months, followed by one year on parole. The district court then suspended the sentence and ordered Defendant to be placed on probation. The district court also ordered that the sentence in No. 406 be served consecutively to the sentence previously imposed in No. 827. As part of his plea, Defendant agreed that if he did not complete his sentence in the new case, No. 406, he would be subject to habitual-offender enhancement.

{7} On November 25, 2002, the district court dealt with both cases again. In No. 406, it entered an order of probation. In No. 827, it revoked the deferred judgment, entered judgment, and placed Defendant on probation.

D. REVOCATION OF DEFENDANT'S PROBATION IN NO. 827 AND INCARCERATION

{8} It was not long until Defendant faltered again. On April 30, 2003, the State filed a petition, in both cases, to revoke probation. Also on April 30, 2003, the State filed a supplemental criminal information seeking habitual-offender enhancement in No. 406. The State filed an amended petition to revoke probation on May 9, 2003 in No. 406. On May 19, 2003, the district court revoked Defendant's probation in No. 827.

{9} On May 27, 2003, apparently because Defendant's probation had been revoked in No. 827 and he had been committed to the penitentiary, the State filed a nolle prosequi on the supplemental information. The nolle prosequi stated that it was without prejudice and that the State would refile the supplemental information if Defendant again violated his plea agreement. Defendant was incarcerated in No. 827.

E. PAROLE IN NO. 827

{10} On November 7, 2003, Defendant was paroled in No. 827.

F. VIOLATION IN NO. 827

{11} On October 26, 2004, Defendant violated the conditions of his parole in No. 827. A retake warrant was issued on November 9, 2004. Defendant was arrested on this warrant on January 12, 2005, when he attempted to shoplift ribeye steak and chicken from a Safeway store in Colorado. Defendant's parole was revoked on February 7, 2005, and he was again incarcerated.

G. MOTION TO REVOKE PROBATION IN NO. 406

{12} On May 3, 2005, the State filed yet another petition to revoke probation in No. 406. The State also refiled the supplemental criminal information seeking habitual-offender enhancement. In June 2005, the State filed an amended petition to revoke probation based on Defendant's failure to provide a current address, among other violations, and then a second amended petition to revoke probation based on Defendant's attempt to shoplift, among other violations.

H. DEFENDANT'S MOTION TO DISMISS THE PROBATION REVOCATION PETITION IN NO. 406

{13} This chain of events brings us to the primary legal issue in this appeal. Defendant filed a motion to dismiss the petition to revoke probation in No. 406, contending that it was untimely. He argued that he received an eighteen-month sentence in No. 406 and had been given thirty-eight days pretrial confinement credit. He argued that the parole period in No. 827 ran concurrently with the probation period in No. 406. That period began running when he was paroled on November 7, 2003. Using these calculations, he contended that his probation in No. 406 expired on March 30, 2005 (eighteen months, less thirty-eight days, from November 7, 2003). Therefore, he argued, it was too late to revoke probation. Moreover, having completed his sentence in No. 406, Defendant argued that it was also too late to seek habitual-offender enhancement.

{14} In response, the State argued that the sentence in No. 406 was to be served consecutively to the sentence in No. 827. The State argued that even if Defendant's parole in No. 827, and probation in No. 406, were running at the same time, Defendant is not entitled to credit for time when Defendant was incarcerated. This argument, as well, relies on Section 31-20-5(B), which Defendant argues does not apply to a sentence like Defendant's and only applies when a defendant is serving a single sentence.

{15} The district court denied Defendant's motion to dismiss the probation revocation petition. The district court reasoned that Defendant was receiving credit against his probation in No. 406 from November 7, 2003, the date he was paroled in No. 827, until November 9, 2004, when the retake warrant was issued by the parole division director. The district court would not allow Defendant credit for time from November 9, 2004, through January 12, 2005, when Defendant was an absconder. Thus, the district court determined that Defendant was entitled to approximately one year of credit against his probation in No. 406. The district court noted that Defendant's parole had been revoked and he was currently incarcerated. The district court calculated that Defendant had approximately six months of probation remaining to be served upon his release from prison. Therefore, Defendant's sentence in No. 406 had not been completely served, and the district court still had jurisdiction over the petition to revoke probation. After a hearing on the merits, the district court revoked Defendant's probation and imposed a new sentence.

STANDARD OF REVIEW

{16} This case requires us to determine whether Section 31-20-5(B) applies to this case. Our review is de novo. See State v. Baca, 2005-NMCA-001, ¶ 9, 136 N.M. 667, 104 P.3d 533 (stating that the construction of a sentencing statute is a question of law).

SECTION 31-20-5

{17} As a general matter, Defendant is correct that a court has no jurisdiction to revoke probation after the probationary term has been served. See State v. Travarez, 99 N.M. 309, 311, 657 P.2d 636, 638 (Ct.App.1983). The district court in this case reasoned that, based on Section 31-20-5(B), Defendant's probation in No. 406 had not been completed. The statute provides:

B. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

(1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and (2) in the event that the defendant violates any condition of that parole, the parole board shall cause him to be brought before it pursuant to the provisions of Section...