Torres v. Santistevan
| Docket Number | S-1-SC-38147 |
| Decision Date | 24 July 2023 |
| Parties | RUFINO TORRES, Petitioner, v. DWAYNE SANTISTEVAN, Warden, Respondent. |
| Court | New Mexico Supreme Court |
Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Liane E. Kerr, LLC
Liane E. Kerr
Albuquerque, NM
for Petitioner
Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM
for Respondent
{¶1} This case comes before us on a petition for writ of certiorari under Rule 12501 NMRA to review Petitioner Rufino Torres's district court habeas corpus proceedings. Petitioner contends that the judgment and sentence which required him to serve consecutive, i.e., "stacked," five-year terms of probation was illegal. We agree. Furthermore, we determine that consolidation of four separate cases resulted in a single judgment and sentence, and when the district court determined that Petitioner had completed serving his sentence and probation in one case, the legal effect was that the determination applied to the entire judgment and sentence. We therefore conclude that Petitioner is entitled to be released from custody of the New Mexico Department of Corrections immediately upon the issuance of our mandate. We also determine that Petitioner's three conspiracy convictions violate double jeopardy.
{¶2} Four different indictments were filed against Petitioner in the Twelfth Judicial District Court in Otero County charging Petitioner with sixteen crimes which occurred between June 1, 2010, and June 3, 2010. The indictment in cause number D-1215-CR-2010-0270 (-270 case) charged four offenses: that on June 2, 2010, Petitioner burglarized two storage units located at the same address; and that on the same day Petitioner conspired to commit nonresidential burglary and received stolen property. The indictment in cause number D-1215-CR-2010-0290 (-290 case) charged three offenses: that on June 2, 2010, Petitioner committed larceny of property that was on display at the Alamogordo Chamber of Commerce Museum; engaged in a conspiracy to commit the larceny; and received the property that was stolen from the museum. The indictment in cause number D-1215-CR-2010-0269 (269 case) alleged six offenses: that on June 2, 2010, Petitioner burglarized a storage unit and conspired to commit nonresidential burglary; and that on June 3, 2010, Petitioner burglarized three other storage units and received stolen property. Finally, the indictment in cause number D-1215-CR-2010-0271 (-271 case) alleged that on June 1, 2010, Petitioner committed three offenses: that he broke into and entered a self-storage business, burglarized the business, and stole property from the business.
{¶3} The State then filed a motion to consolidate the four cases for plea and disposition. The district court granted the motion and ordered the cases "consolidated into [the -269 case] for plea and disposition." Thereafter, unless we note otherwise, every subsequent pleading was filed in all four cases. This did not in any way alter the fact that the cases were consolidated. In the plea and disposition agreement Petitioner agreed to plead guilty to all sixteen of the original charges "because he is in fact guilty of the foregoing charges." There was no agreement as to sentence, and Petitioner understood he was exposed to a twenty-seven year term of imprisonment, a period of mandatory parole for each offense, and mandatory fines and fees.
{¶4} Petitioner was sentenced on February 4, 2011. Petitioner received a twenty seven year term of imprisonment, and there is no issue about whether the term of imprisonment imposed on each count was correct. The total term of twenty-seven years resulted from the fact that the district court imposed a sentence of incarceration for every crime charged in each case. Thus, in the -270 case Petitioner was sentenced to a term of imprisonment of six years; in the -290 case he was sentenced to a term of imprisonment of seven years and six months; in the -269 case he was sentenced to a term of imprisonment of nine years; and in the -271 case he was sentenced to a term of imprisonment of four years and six months, for a total of twenty-seven years.
{¶5} In addition, the district court ordered that the sentences in each case be served consecutively. Specifically, the district court ordered that the sentence in the -290 case run consecutively to the -270 case, that the sentence in the -269 case run consecutively to the -290 case, and that the sentence in the -271 case run consecutively to the -269 case. In other words, Petitioner was ordered to serve the sentence in the -270 case in full before beginning to serve the sentence in the -290 case, and to serve the sentence in the -290 case in full before beginning to serve the sentence in the -269 case, and to serve the sentence in the -269 case in full before beginning to serve the sentence in the -271 case.
{¶6} The district court then ordered that all but 364 days of the sentence in the -270 case, apparently the time served, be suspended and that Petitioner be placed on probation for a period of five years; that the sentence of incarceration in the -290 case be suspended and that Petitioner be placed on probation for five years "after the completion" of the -270 case; that the sentence of incarceration in the -269 case be suspended and that Petitioner be placed on probation for thirty days "after the completion" of the -290 case; and that the sentence in the -271 case be suspended and that Petitioner be placed on probation for thirty days "after the completion" of the -269 case. It is this feature of consecutive probationary terms and Petitioner's multiple probation violations which give rise to the primary issue in this case.
{¶7} Petitioner violated probation multiple times over the years following his sentencing. The original five-year period of probation was from February 8, 2011, to February 7, 2016. On June 11, 2013, the district court revoked Petitioner's probation, reinstated probation, and imposed a new probation term of five years, beginning June 11, 2013. Subsequently, on September 27, 2013, the district court once again revoked Petitioner's probation, reinstated probation, and imposed a new five-year probationary term from September 27, 2013, to September 26, 2018. On May 23, 2014, the district court revoked Petitioner's probation for the third time. This order was different than the preceding orders because no new five-year term of probation was imposed. Instead, the district court reinstated probation for the period of September 27, 2013, to September 26, 2018. On July 15, 2016, the district court revoked Petitioner's probation a fourth time. In this order, the district court continued Petitioner's probation under the terms and conditions set forth in the original judgment and sentence with the additional condition that Petitioner serve a six-month sanction in the Otero County Detention Center. The resulting order of probation states that Petitioner is "under probation supervision until 2/14/2017 or until further order of the [c]ourt" (emphasis added).
{¶8} On February 21, 2017, the district court filed its order of discharge on suspended sentence. This order recites that the period of suspension expired on February 4, 2017. The order of discharge changes the termination date from February 14, 2017, to February 4, 2017, but is nevertheless consistent with the latter possibility in the order of probation stating that Petitioner is "under probation supervision until 2/14/2017 or until further order of the [c]ourt" (emphasis added). The order of discharge continues, stating that "pursuant to [NMSA 1978,] Section 31-20-8 [(1963)], [Petitioner] is relieved of any obligation imposed upon him[] by said order of the [c]ourt and has satisfied his[] criminal liability for the crime charged herein." The order of discharge was filed only in the -270 case.
{¶9} Following the order of discharge, the State filed yet another petition to revoke probation on February 26, 2018. This petition was not filed in the -270 case because the State said Petitioner's sentence in the -270 case "was completed on February 4, 2017." The petition alleged that Petitioner's then-current probation in the -290 case was from February 4, 2017, to February 4, 2022. On May 9, 2018, the district court entered its order revoking probation and committing Petitioner to the Department of Corrections. After giving Petitioner credit for six years in the -270 case and credit for time served in the -290 case, the district court calculated that the balance on Petitioner's sentence was 7,220 days. The district court ordered Petitioner to serve 2,292 days of those days in the custody of the Department of Corrections. The balance of 4,928 days was suspended, and Petitioner was ordered to serve a new five-year term of probation. This order was filed in the -269, -271, and -290 cases.
{¶10} Acting pro se, on October 17, 2018, Petitioner filed a habeas corpus petition in the district court. Petitioner asserted he was illegally sentenced, did not receive the proper credit calculations, and received ineffective assistance of counsel. The district court appointed an attorney to review the illegal sentence and credit calculation claims, but did not order the attorney to review the ineffective assistance of counsel claim.[1]
{¶11} The district court entered a procedural order on Petitioner's petition for habeas corpus in which the district court recalculated Petitioner's credit for presentence confinement. The district court concluded that Petitioner had not been...
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