State v. Soutar

• Decision Date: 10 February 2012
• Docket Number: No. 28,167.,28,167.
• Citation: 272 P.3d 154,2012 -NMCA- 024
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Michael SOUTAR, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

2012 -NMCA- 024

272 P.3d 154

STATE of New Mexico, Plaintiff–Appellee,

v.Michael SOUTAR, Defendant–Appellant.

No. 28,167.

Court of Appeals of New Mexico.

Feb. 10, 2012.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Eleanor Brogan, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

CASTILLO, Chief Judge.

{1} Convicted of racketeering and several state securities violations, Michael Soutar (Defendant) now appeals his convictions. He challenges the court's revocation of his plea deal, the nature of the jury instructions, and the sufficiency and admission of evidence used to convict him. For reasons explained below, we affirm.

I. BACKGROUND

{2} Defendant was tried and convicted of multiple violations of the New Mexico Securities Act of 1986, NMSA 1978, Sections 58–13B–1 to –57 (1986, as amended through 2003) (repealed 2009), and one count of racketeering in violation of NMSA 1978, Section 30–42–4 (2002). These convictions arose out of Defendant's formation of Santa Fe International Development, a Limited Liability Company (the LLC), under which Defendant operated a business called the Santa Fe Market (the Market).

{3} Defendant acted as general manager of the Market and advertised it as a facility near the Plaza in Santa Fe where artists could lease space, sell their products, and keep eighty-five percent of their proceeds, relinquishing the remainder to the Market. Defendant attracted several investors who bought interests in the LLC through investment contributions. These investments were significant, in the range of $25,000 and up.

{4} The Market failed, and the investors lost all of their money. The victims alleged that they had been defrauded. Defendant was indicted in December 2004 on nine counts of securities violations for unlawfully selling interests in the LLC, one count of racketeering based on the securities violations, and numerous other charges including escape from jail, forgery, and fraud.

{5} Defendant entered into plea negotiations with the State. He represented that he had $125,000 at his disposal from a third party and informed the State that he was willing to provide this money to the victims as an initial lump-sum restitution payment if an acceptable plea agreement was reached. Defendant further indicated that, if no plea was reached and Defendant was required to stand trial, this money would have to be put toward the costs of his defense. Defendant also informed the district court of the existence of these funds and his desire to compensate the victims as part of a plea agreement.

{6} In October 2006, a plea hearing was held, and the district court accepted and entered a plea and disposition agreement. The agreement included a provision requiring Defendant to make restitution but did not specifically reference a lump-sum payment. Defendant agreed to plead no contest to three counts of fraudulent practices in connection with the sale of securities, one count of escape from jail, and one count of racketeering. Immediately after accepting the agreement, the district court proceeded to orally sentence Defendant. The sentence imposed—twelve years' confinement with all but three years suspended, entitlement to good time, and a five-year probationary period—was consistent with the terms of the agreement.

{7} Seventeen days after the plea hearing, the State filed a “motion for reconsideration of sentence or to withdraw [the] plea.” The State alerted the court to the fact that Defendant had failed to live up to his commitment to make restitution.

{8} At the hearing on that motion, Defendant confirmed that he was either unable or unwilling to make an initial lump-sum payment. The district court informed Defendant that the only reason it had accepted the plea was because it understood that the terms of the agreement required Defendant to make restitution and that restitution involved a substantial, initial lump-sum payment. Defendant responded that, while the plea agreement did include a restitution provision, it did not include any reference to a lump-sum payment. Defendant further argued that double jeopardy and other legal principles precluded the court from withdrawing the plea or altering the orally imposed sentence. The court disagreed, withdrew the plea, and ordered Defendant to stand trial.

{9} At the close of trial, Defendant proposed several instructions that the court denied. Defendant was convicted of one count of racketeering and three counts each of fraudulent practices in connection with the sale of securities in violation of Section 58–13B–30; selling unregistered securities in violation of Section 58–13B–20; and selling securities without a license in violation of Section 58–13B–3. He was sentenced to eighteen years' confinement for these offenses and an additional sixteen years' confinement as a habitual offender for a total period of thirty-four years' confinement.

II. DISCUSSION

{10} On appeal, Defendant raises five issues. He asserts that the oral sentence the court imposed under the plea agreement was final and binding and that double jeopardy precluded the court from ordering him to stand trial. Second, he contends that the district court abused its discretion when it ordered the plea agreement withdrawn and claims that “after the court accepted the plea agreement[,] it was bound by its terms to sentence [him] to the negotiated sentence.” He maintains that the plea agreement did not require him to make an initial lump-sum payment, yet the district court granted the State's request to withdraw the agreement due to his inability to make that payment. Third, he claims two errors regarding the court's denial of his proposed jury instructions. Fourth, he challenges the sufficiency of the evidence underlying his convictions. Fifth, and finally, he asserts that the court erred in admitting evidence of his prior bad acts. We address these issues in turn.

A. Double Jeopardy

{11} “We generally review double jeopardy claims de novo.” State v. Rodriguez, 2006–NMSC–018, ¶ 3, 139 N.M. 450, 134 P.3d 737. The Double Jeopardy Clause of the United States Constitution guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb [.]” U.S. Const. amend. V. However, “[i]n order to successfully claim double jeopardy, a former jeopardy must have occurred—there must have been a previous proceeding in which jeopardy attached.” State v. Angel, 2002–NMSC–025, ¶ 7, 132 N.M. 501, 51 P.3d 1155. Here, Defendant acknowledges that jeopardy did not attach when the court accepted his plea. See id. ¶ 13 (holding that jeopardy does not attach upon a court's acceptance of a guilty plea). Rather, he argues that jeopardy attached at the oral sentencing. We disagree.

{12} Our Supreme Court has previously recognized that “jeopardy attaches when the court enters a judgment and imposes a sentence on the guilty plea.” Id. ¶ 10. This is because entry of judgment and sentence carries with it an “expectation of finality.” Id. ¶ 15.

[T]he analytical touchstone for double jeopardy is the defendant's legitimate expectation of finality in the sentence, which may be influenced by many factors such as the completion of the sentence, the passage of time, the pendency of an appeal or review of the sentencing determination, or the defendant's misconduct in obtaining the sentence.

State v. Hardesty, 129 Wash.2d 303, 915 P.2d 1080, 1085 (1996) (en banc).

{13} In our view, Defendant could not have formed an expectation of finality in the oral sentence. An oral sentence is not “a final judgment and is subject to change until reduced to writing.” State v. Rushing, 103 N.M. 333, 334, 706 P.2d 875, 876 (Ct.App.1985). As such, our Supreme Court has explained that “a trial court's oral announcement of a result is not final, and parties to the case should have no reasonable expectation of its finality.” State v. Lohberger, 2008–NMSC–033, ¶ 20, 144 N.M. 297, 187 P.3d 162. Defendant acknowledges this law, but directs us to State v. Porras, 1999–NMCA–016, ¶ 14, 126 N.M. 628, 973 P.2d 880, where we held that the defendant had a reasonable expectation of finality in an oral pronouncement of sentence because the defendant had begun serving his sentence. For the reasons that follow, Porras is inapplicable here.

{14} As the State observes, Defendant has done nothing to explain how he began serving his sentence after the oral sentence was imposed beyond simply stating that he did so. See Santa Fe Exploration Co. v. Oil Conservation Comm'n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992) (stating that where a party fails to cite any portion of the record to support its factual allegations, appellate courts need not consider its argument on appeal). More critically, the oral sentence arose out of the plea agreement and, as we explain in the following section of this Opinion, Defendant made representations about making an immediate lump-sum restitution payment, a basis upon which the district court accepted the agreement. Later, Defendant either could not or would not provide that payment. Defendant could not have formed an expectation of finality in an oral sentence imposed pursuant to a plea agreement, the terms of which he either could not or would not keep. See Rushing, 103 N.M. at 335, 706 P.2d at 877 (holding that the defendant had no reasonable expectation of finality in a sentence obtained through misrepresentations at the time of sentencing). This conclusion is in line with other authorities. Cf. Brown v. State, 367 So.2d 616, 623 (Fla.1979) (“We hold, therefore, that the [D]ouble [J]eopardy [C]lause does not bar the reprosecution of an accused who willfully refuses to perform a condition of a guilty plea which has been accepted by the trial court on that basis.”); 22 C.J.S. Criminal Law § 286 (2011) (“The Double Jeopardy...