State v. Williams

• Decision Date: 15 February 2021
• Docket Number: No. A-1-CA-37320,A-1-CA-37320
• Citation: 489 P.3d 949
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Chad Ian WILLIAMS, Defendant-Appellant.

489 P.3d 949

STATE of New Mexico, Plaintiff-Appellee,

v.Chad Ian WILLIAMS, Defendant-Appellant.

No. A-1-CA-37320

Court of Appeals of New Mexico.

Filing Date: February 15, 2021

Certiorari Denied, March 31, 2021, No. S-1-SC-38732

Hector H. Balderas, Attorney General, Santa Fe, NM, Walter Hart, Assistant Attorney General, Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM for Appellant

B. ZAMORA, Judge.

{1} Defendant Chad Williams appeals the district court's order revoking probation and ordering his commitment to the department of corrections. On appeal, Defendant argues: (1) the district court abused its discretion in concluding his probation violation was willful; (2) he was denied a right to allocution during the probation violation hearing; (3) the district court illegally sentenced him to more than five years of probation; (4) he was prohibited from presenting witness testimony during the probation violation hearing; and (5) he was deprived effective assistance of counsel. We hold Defendant had the right to allocution at his probation violation hearing and that the district court did not afford him that right. Accordingly, we reverse in part and remand for resentencing, but otherwise affirm.

BACKGROUND

{2} Defendant pled guilty to residential burglary, contrary to NMSA 1978, Section 30-16-3(A) (1971), two counts of receiving stolen property (over $2,500), contrary to NMSA 1978, Section 30-16-11(G) (2006), receiving or transferring a stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A) (2009), battery upon a peace officer, contrary to NMSA 1978, Section 30-22-24 (1971), and larceny, contrary to NMSA 1978, Section 30-16-1 (2006). At the initial sentencing, the district court suspended Defendant's entire sentence and placed him on supervised probation for a total of nine years. As part of his conditions of probation, Defendant was required to get permission from his probation officer before leaving the county, follow all orders and instructions of his probation officer, and not buy, sell, or consume illegal drugs.

{3} During the six months prior to the probation violation at issue in this case, Defendant had numerous violations of probation. Defendant tampered with his GPS monitor in April 2017, and he tested positive for methamphetamine on June 27, 2017, and again on July 30, 2017. The probation violation hearing for these alleged violations was held on August 24, 2017, and Defendant pled no contest to all the violations. After the district court expressed concern about Defendant's failure to engage in substance abuse treatment, Defendant responded that treatment programs were "a joke" and stated that rather than treatment he would "bareknuckle it." At the August 2017 hearing, the district court reinstated Defendant's probation despite Defendant's reluctance to complete a substance abuse treatment program.

{4} Approximately a month later, on September 27, 2017, the State filed a petition to revoke probation and alleged that Defendant failed to adhere to his curfew and used illegal drugs, in violation of the conditions of his probation. The district court held a probation violation hearing to determine whether Defendant violated the conditions of his probation. The State presented the testimony of the probation officer assigned to Defendant's case, who testified that on September 9, 2017, Defendant was outside of Lea County, his county of residence, after his 9:00 p.m. curfew. The State also presented testimony from Defendant's probation officer that Defendant admitted to using methamphetamine. Defendant testified, admitting to his use of methamphetamine during the same trip that led to the curfew violation. Defendant also testified at length about his desire to address his substance abuse issues. Defendant explained that he applied and was accepted to the Fourth Dimension Oxford House in Austin, Texas, for substance abuse treatment. Further, Defendant testified he "decided that [he] is going to get clean off of drugs, and that [he does] want a life, and that [he does] want to make his family happy." Before Defendant had a chance to elaborate further on his desire to get clean, the district court stated, "We are not to sentencing right now, let's just move on to something else." After the defense rested, but prior to the district court's ruling on whether Defendant violated his conditions of probation, the district court allowed Defendant to speak. The exchange was as follows:

Court: Mr. Williams do you have anything to say?

Defendant: As far as the, well I just want to admit. I have always admitted that I used meth, every time I went in there ... and I turned myself in Mr. Clingman [district court judge] the last two times knowing I was going to jail. I went there because I am trying to handle this. I really am. And I'm sorry that ... I wanted to bare knuckle everybody. The last time I was in here before you ... I was confident. And I did think that I could do it. But the fact of the matter is Mr. Clingman, I failed miserably.

Court: Be that as it may, you violated your probation. You got a travel permit; you didn't go where you said you were going to go. You didn't come back on time. And you smoked meth while you were at it. That violates your probation. We are not debating this, that is the rule of the court.

Defendant: Alright.

Court: Set this matter for disposition, we are ready to go right now.

{5} After hearing argument from the prosecutor and Defendant's attorney, the district court proceeded to disposition, revoked Defendant's probation for all six convictions, and sentenced Defendant to approximately eight years of confinement in the department of corrections. After the district court announced its disposition, the following exchange occurred:

Defendant May I say something?

Court No, get him out of here right now.

Defendant Do I go to prison on all the cases or just ... [inaudible] ...?

Court All of them, every one of them.

The district court entered orders revoking Defendant's probation in all of his cases. This appeal followed.

DISCUSSION

I. Sufficient Evidence Supports the District Court's Finding That Defendant Willfully Violated the Condition of His Probation Prohibiting Drug Use

{6} Defendant argues the district court abused its discretion in concluding that he violated the conditions of his probation because his failure to comply with his curfew was not willful. "We review a district court's decision to revoke probation under an abuse of discretion standard. To establish an abuse of discretion, it must appear that the district court acted unfairly or arbitrarily or committed manifest error." State v. Green , 2015-NMCA-007, ¶ 22, 341 P.3d 10 (alterations, internal quotation marks, and citation omitted). We view "the evidence in a light most favorable to the [s]tate and indulg[e] all reasonable inferences in favor of the [district] court's judgment." State v. Erickson K. , 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258. In a probation violation hearing, "the [s]tate bears the burden of establishing a probation violation with a reasonable certainty." State v. Leon , 2013-NMCA-011, ¶ 36, 292 P.3d 493, "The proof necessary is that which inclines a reasonable and impartial mind to the belief that the defendant has violated the terms of probation." State v. Martinez , 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 1321. The violation must entail "willful conduct on the part of the probationer[.]" In re Bruno R ., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339. When a "violation of probation is not willful, but resulted from factors beyond a probationer's control, probation may not be revoked." Id. ¶ 13.

{7} Here, the district court found that Defendant violated his probation by failing to adhere to his probation officer's prescribed curfew, and because Defendant used methamphetamine. While Defendant contends there was insufficient evidence that he willfully violated his curfew, he does not challenge the sufficiency of the evidence to support the drug use violation. Based on our review of the record, there was sufficient evidence supporting the district court's finding of illicit drug use. Defendant signed a written admission form stating that he used methamphetamine on September 9, 2017, the day of the trip that led to the alleged curfew violation. Defendant further admitted to using methamphetamine when he testified unequivocally, "Yes sir I did. I admit it every time when I showed up and I was dirty." The State's presentation of his signed admission form as well as his own admittance to using methamphetamine support the district court's finding that Defendant possessed and consumed methamphetamine. Because substantial evidence supports the finding that Defendant violated the conditions of his probation by using methamphetamine, we need not address the district court's finding with respect to the curfew violation. See Leon , 2013-NMCA-011, ¶ 37, 292 P.3d 493 ("[A]lthough [a d]efendant challenges the sufficiency of the evidence supporting each of his violations, if there is sufficient evidence to support just one violation, we will find the district court's order was proper."). We hold that the district court did not abuse its discretion by finding that Defendant willfully violated the condition of his probation.

II. The District Court Failed to Afford Defendant a Right to Allocution During the Probation Violation Hearing

{8} At the crux of this case is whether a defendant has a right to allocution in a probation violation hearing. Defendant argues that he was entitled to this right during the hearing and that the district court deprived him of that right. The State contends that New Mexico does not extend the right to allocution to probation violations involving imposition of a suspended sentence, that Defendant failed to preserve his argument, and that there is no due process right to allocution. We are persuaded by Defendan...