State v. Leon

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 14:28:12 2013.01.16
Certiorari Granted, December 26, 2012, No. 33,915; Certiorari Denied, January 2,
2013, No. 33,919

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-011

Filing Date: October 24, 2012

Docket No. 31,067

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MARIO LEON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa C. Schultz, District Judge

Gary K. King, Attorney General
Olga Serafimova, 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

VANZI, Judge.

{1} Defendant Mario Leon appeals the district court’s order revoking his probation. This
case requires us to decide whether (1) Defendant’s untimely appeal can be heard, (2) the
conditions of probation set by the New Mexico Corrections Department (Corrections
Department) were lawfully imposed on Defendant and were reasonably related to

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Defendant’s rehabilitation, (3) there was sufficient evidence to support the revocation of
Defendant’s probation, and (4) Defendant’s sentence was appropriately enhanced under the
Habitual Offender Statute. We conclude that we can consider Defendant’s appeal despite
the fact that it was untimely filed. However, finding no error in the district court’s rulings,
we affirm.

BACKGROUND

{2} After entering a plea of no contest, Defendant was convicted of one count of
contributing to the delinquency of a minor, in violation of NMSA 1978, Section 30-6-3
(1990), and one count of selling or giving alcoholic beverages to a minor, contrary to NMSA
1978, Section 60-7B-1(A)(1) (2004). On May 14, 2008, Defendant was sentenced to three
years of incarceration followed by one year of parole. The district court partially suspended
Defendant’s sentence and entered an order placing him on supervised probation and listing
conditions of that probation. These conditions included that Defendant not possess alcoholic
beverages, that he complete alcohol and substance abuse counseling, and that he comply
with any other reasonable condition specified by the probation division of the Corrections
Department.

{3} Defendant had a prior felony conviction for a sex offense. As a result of that
conviction and pursuant to state law, Defendant is a registered sex offender. At the direction
of his probation officer and pursuant to a Corrections Department policy regarding offenders
with previous sex offenses, Defendant signed the New Mexico Corrections Department Sex
Offender Supervision Behavioral Contract (SOSBC) and was placed under the supervision
of the sex offender unit. This level of supervision required, in part, that Defendant receive
permission from his probation officer before missing any counseling session and that he
obtain written approval from his probation officer before having unsupervised contact with
children under eighteen.

{4} On August 25, 2008, Defendant’s probation officer filed a preliminary probation
violation report after visiting Defendant’s home and observing alcohol and empty alcohol
containers there. Between September 19, 2008, and January 14, 2009, Defendant’s
probation officer filed three more preliminary probation violation reports based on
Defendant’s failure to timely re-register as a sex offender and for his failure to attend two
mandated counseling sessions without notifying the officer. On November 23, 2009,
Defendant was arrested for violating the conditions of his probation after he allegedly had
unsupervised contact with children under eighteen without prior written permission of his
probation officer. At that time, Defendant’s probation officer filed a report of violation and
recommended that his probation be revoked.

{5} On December 11, 2009, the State filed a petition to revoke Defendant’s probation
based on all of the alleged probation violations outlined in the probation officer’s reports.
The State also filed a supplemental criminal information stating that due to Defendant’s prior
conviction, Defendant is a habitual offender, and his sentence should be enhanced pursuant

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to the Habitual Offender Statute, NMSA 1978, § 31-18-17(A) (2003). Defendant moved to
dismiss, and the district court denied the motion. The district court then held a hearing to
determine whether Defendant had violated the conditions of his probation. After taking
testimony, the district court concluded that Defendant had violated the terms and conditions
of his probation as charged by the State. The court revoked Defendant’s probation and,
applying the habitual offender statute, sentenced Defendant to a total term of five years
followed by a period of supervised probation. Sixty-two days after the entry of the order,
Defendant filed a notice of appeal.

DISCUSSION

{6} Before addressing the merits of Defendant’s case, we must first decide whether this
Court can hear Defendant’s untimely appeal. Concluding that we can consider his appeal,
we then address whether the conditions of Defendant’s probation were reasonably related
to his rehabilitation and were lawfully imposed as part of the court’s order. We then
examine the record to determine whether the revocation of Defendant’s probation was
supported by sufficient evidence and whether the enhancement of Defendant’s sentence
under the Habitual Offender Statute was proper.

Defendant’s Untimely Appeal

{7} Pursuant to NMSA 1978, Section 39-3-3(A)(1) (1972), and Rule 12-201(A)(2)
NMRA, a criminal defendant must file his notice of appeal from the final judgment of a
district court within thirty days of the entry of that judgment. The timely filing of a notice
of appeal is a mandatory precondition to this Court’s exercise of jurisdiction. Trujillo v.
Serrano, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 (1994). The district court may grant
an extension of time for an appellant to file a notice of appeal upon a showing of good cause
if the request is filed prior to the expiration of the time for filing, or upon a showing of
excusable neglect if filed outside of that period but within sixty days from the entry of the
appealable order. Rule 12-201(E)(1), (2).

{8} There is no dispute that Defendant’s notice of appeal was filed in the district court
more than sixty days after the entry of the order revoking his probation and was thus
untimely. Furthermore, Defendant’s motion to accept the appeal as timely was filed more
than sixty days after the district court’s order revoking his probation; therefore, the district
court was without jurisdiction to grant Defendant’s motion to extend his time for filing. See
Rule 12-201(E)(2), (4). Nevertheless, Defendant urges us to consider his appeal on the
grounds that the untimely filing of a notice of appeal from an order revoking probation is per
se ineffective assistance of counsel.

{9} In State v. Duran, 105 N.M. 231, 232, 731 P.2d 374, 375 (Ct. App. 1986), this Court
first established a conclusive presumption of ineffective assistance of counsel when a notice
of appeal from a criminal conviction is untimely filed. As a result, in that case, we treated
the defendant’s appeal as if timely filed and reached the merits of the defendant’s arguments.

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Here, Defendant asks us to extend the presumption of ineffective assistance of counsel to the
untimely filing of a notice of appeal from an order revoking Defendant’s probation. As the
State points out, however, a claim for ineffective assistance of counsel is based on a
defendant’s right to counsel in the first place. See Evitts v. Lucey, 469 U.S. 387, 396 n.7
(1985); State ex rel. Children, Youth & Families Dep’t v. Amanda M., 2006-NMCA-133,
¶ 19, 140 N.M. 578, 144 P.3d 137. The State argues that a defendant has no right to counsel
in an appeal from the revocation of probation and, thus, there can be no ineffective
assistance. Because the presumption can only apply in situations where a defendant has a
right to counsel, before we can make a determination of whether Defendant’s untimely
appeal was due to ineffective assistance of counsel, we must first determine whether
Defendant had a right to counsel at all. For the reasons that follow, we conclude that
Defendant had a right to counsel at his probation revocation proceedings and that the filing
of the notice of appeal was that counsel’s responsibility. Accordingly, we apply a conclusive
presumption of ineffective assistance of counsel where the notice of appeal is untimely filed.
We begin with three cases relevant to our decision.

{10} In Blea v. Cox, 75 N.M. 265, 267, 403 P.2d 701, 703 (1965) (per curiam), overruled
on other grounds by State v. Mendoza, 91 N.M. 688, 579 P.2d 1255 (1978), our Supreme
Court held that a defendant had a constitutional right to counsel at his hearing on the
revocation of a suspended sentence. The Court concluded that failure to provide a defendant
with counsel in that case constituted a violation of his constitutional rights. Id. In so doing,
the Court stated that “[t]he need for and right to be represented by counsel, unless
intelligently and knowingly waived, is as much a requisite in a hearing seeking revocation
of a suspended sentence as in the other mentioned stages of the proceedings.” Id. In its
decision, the Court noted that this right was guaranteed by the Sixth Amendment of the
federal constitution but that “[a]side” from the federal right, “the guaranty that an accused
shall have the right to appear and defend himself in person, and by counsel is likewise
contained in Art. II, § 14 of the New Mexico Constitution.” Id. at 266, 403 P.2d at 702-03
(alteration, internal quotation marks, and citation omitted).

{11} After Blea was decided, the United States Supreme Court announced a more limited
due process right to counsel in probation proceedings in Gagnon v. Scarpelli, 411 U.S. 778,
789-91 (1973). In Gagnon, the Supreme Court considered “whether an indigent probationer
or parolee has a due process right to be represented by appointed counsel at [those]
hearings.” Id. at 783. Although the due process right was not found under the Sixth
Amendment, the Court nevertheless recognized that in certain cases, due process’s
touchstone of fundamental fairness requires the state provide counsel to indigent defendants
at probation and parole revocation hearings and concluded that “the decision as to the need
for counsel must be made on a case-by-case basis in the exercise of a sound discretion of the
state authority charged with responsibility for administering the probation and parole
system.” Id. at 790. In discussing the case-by-case determination, the Supreme Court stated
that it was “neither possible nor prudent to attempt to formulate a precise and detailed set of
guidelines to be followed in determining when the providing of counsel is necessary to meet

4
the applicable due process requirements.” Id. However, the Court gave some direction,
providing that

it may be said that counsel should be provided in cases where, after being
informed of his right to request counsel, the probationer or parolee makes
such a request, based on a timely and colorable claim (I) that he has not
committed the alleged violation of the conditions upon which he is at liberty;
or (ii) that, even if the violation is a matter of public record or is uncontested,
there are substantial reasons which justified or mitigated the violation and
make revocation inappropriate, and that the reasons are complex or otherwise
difficult to develop or present.

Id. The Gagnon Court also reasoned that in some cases, a probationer’s “version of a
disputed issue can fairly be represented only by a trained advocate.” Id. at 788.

{12} Subsequently, in Barnett v. Malley, 90 N.M. 633, 634, 567 P.2d 482, 483 (1977), our
Supreme Court adopted the reasoning in Gagnon in the context of parole revocation
hearings. Barnett implicitly abrogates Blea to the extent Blea was decided under the federal
constitution. In this particular case, regardless of whether we apply Blea or Barnett, we
conclude that Defendant had a right to counsel at his probation revocation hearing. Given
the considerations set out in Gagnon and considering the judicial setting of probation
revocations in our state, as well as the constitutional and statutory issues that arise in those
hearings, it would seem to be a rare case where a defendant was not entitled to counsel. In
this case, Defendant contested the evidence against him, there were legal issues regarding
whether his alleged conduct actually violated the conditions of probation, and Defendant
made complicated legal arguments challenging the reasonable relationship of the conditions
of his probation to the crimes for which he was convicted. The issues raised in his motion
to dismiss and argued at the motion and probation revocation hearings are not the type that
a lay person could normally identify, develop, or present on his own. See Gagnon, 411 U.S.
at 788. Consequently, we conclude that Defendant had a right to counsel in the proceedings
regarding the revocation of his probation.

{13} The State further argues that Defendant did not have a right to counsel in his appeal
from the order revoking his probation. It contends that a criminal defendant only has a right
to counsel on his or her first appeal as of right and that the right to counsel should not attach
when a defendant, who has previously entered a guilty plea, exercises his subsequent right
to appeal from the revocation of his probation. We need not decide this issue today.
Although the filing of a notice of appeal is the first step in a defendant’s appellate process,
under our rules of appellate procedure, “trial counsel shall be responsible for preparing and
filing a docketing statement in the Court of Appeals.” Rule 12-208(A) NMRA. The
docketing statement must be filed within thirty days after the notice of appeal. Rule 12-
208(B). Only after the filing of the docketing statement does a trial counsel’s responsibility
to his or her client cease. Therefore, where a defendant has a recognized right to have
counsel appointed in a case, the failure to file a timely notice of appeal can raise a conclusive

5
presumption of ineffective assistance of counsel. Under these specific circumstances, the
presumption of ineffective assistance of counsel arises from the district court proceedings
below, rather than the later proceedings on appeal. Here, we have concluded that Defendant
was entitled to counsel at the proceedings on the revocation of his probation. We now
explain why we extend the Duran presumption in Defendant’s case.

{14} In Duran, we held that “failure to file a timely notice of appeal or an affidavit of
waiver constitutes ineffective assistance of counsel per se[.]” 105 N.M. at 233, 731 P.2d at
376. We based that conclusion both on a defendant’s absolute right to appeal his or her
conviction, as well as the rule of criminal procedure requiring that defense counsel file either
a timely notice or waiver of appeal. Id. at 232, 731 P.2d at 375; see Rule 5-702 NMRA.
Since Duran, this Court has routinely excused untimely and improperly filed notices of
appeal in criminal appeals where the defendant is represented by counsel by applying this
conclusive presumption, so as not to deprive the defendant of his absolute first right to
appeal. See State v. Upchurch, 2006-NMCA-076, ¶ 4, 139 N.M. 739, 137 P.3d 679.

{15} Although our holding in Duran was, in part, based on the rule of criminal procedure
requiring defense counsel to file a notice or waiver of appeal in a timely manner, see Rule
5-702(B), we have since extended the presumption in cases where no such rule or procedural
safeguard controls. For instance, the rules of criminal procedure for magistrate courts set
out the time frame in which an appeal from an order of the court must be filed but do not
impose an obligation on defense counsel to file a notice or waiver of a defendant’s appeal.
Rule 6-703(A) NMRA. Yet, we have applied the presumption in cases where defense
counsel failed to file a notice of appeal in district court from the entry of a conditional plea
in magistrate court. State v. Eger, 2007-NMCA-039, ¶¶ 1, 3, 5, 141 N.M. 379, 155 P.3d 784.
In deciding that the district court must hear such an appeal, we cited to Duran stating that
“the defendant’s right to an appeal must not be denied because of ineffective assistance of
counsel.” Eger, 2007-NMCA-039, ¶ 5.

{16} We have also extended the presumption of ineffective of counsel where defense
counsel has failed to timely file a notice of appeal in cases outside the criminal context. In
State ex rel. Children, Youth & Families Dep’t v. Ruth Anne E., 1999-NMCA-035, ¶¶ 9-10,
126 N.M. 670, 974 P.2d 164, we applied the presumption of ineffective assistance of counsel
and considered the appeal as if timely filed in an appeal from the termination of parental
rights. In Amanda M., 2006-NMCA-133, ¶ 22, we extended that rule and applied the
presumption in the context of an untimely appeal from an adjudication of abuse and neglect.
In those cases, we extended the presumption based on our recognition that the adjudicatory
proceedings affected a parent’s fundamental liberty interest in the care, custody, and
management of his children as well as a parent’s right to counsel in these proceedings. Id.
In Amanda M., we stated that “where a notice of appeal from an adjudication of abuse and
neglect is filed late, this Court will presume that counsel was ineffective and accept
jurisdiction over the appeal.” Id.

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{17} In Ruth Anne E., we reasoned that “[i]n termination of parental rights cases, as in
criminal cases, a fundamental liberty interest is at stake.” 1999-NMCA-035, ¶ 10. This
fundamental liberty interest, in combination with circumstances in which a defendant has not
waived his right to appeal, appears to be the guiding factor in the cases where we have
expanded the Duran presumption. Defendant has a fundamental liberty interest at stake in
the revocation of his probation. As our Supreme Court recently reminded us in State v.
Guthrie, “[r]evocation of probation deprives an individual, not of the absolute liberty to
which every citizen is entitled, but only of the conditional liberty properly dependent on
observance of special probation restrictions.” 2011-NMSC-014, ¶ 10, 150 N.M. 84, 257
P.3d 904 (alteration, internal quotation marks, and citation omitted). Nevertheless, the end
result of the revocation of a defendant’s probation is incarceration and thus a significant loss
of liberty. See State v. DeBorde, 1996-NMCA-042, ¶ 9, 121 N.M. 601, 915 P.2d 906.
Although limited, a defendant facing the revocation of his probation is still “entitled to
minimum due process rights” to ensure that he is heard and that the facts underlying the
alleged probation violation are evaluated. State v. Sanchez, 2001-NMCA-060, ¶ 13, 130
N.M. 602, 28 P.3d 1143; see Guthrie, 2011-NMSC-014, ¶¶ 10-11 (stating that “the full
panoply of rights due a defendant in a criminal trial do not apply” (alterations, internal
quotation marks, and citation omitted)).

{18} Our Supreme Court’s recent case, State v. Ordunez, 2012-NMSC-024, ___ P.3d ___,
highlights the important issues affecting a defendant’s fundamental rights that arise in the
context of probation revocations. In Ordunez, the Court affirmed the dismissal of probation
revocation proceedings against the defendant after the state attempted to apply 2007 credit
provisions for DWI to an offense that occurred in 2004. Id. ¶¶ 19-20. The Court held that
to impose the later provisions would violate the federal and state constitutions’ ex post facto
clauses. Id.; see U.S. Const. art. I, § 10, cl. 1; N.M. Const. art. II, § 19.

{19} Our courts are routinely presented with issues impacting the fundamental rights of
a defendant facing the revocation of his or her probation. For instance, when a defendant
is found to have violated his or her probation, ambiguity can arise as to how much time the
defendant is required to serve under a plea agreement. In State v. Gomez, 2011-NMCA-120,
¶¶ 1, 14, 267 P.3d 831, we addressed this issue and reversed the sentencing judge’s post-
conviction order that imposed excessive time on the defendant and remanded for the entry
of an order that conformed with the plea agreements and amounted to a considerably shorter
period of incarceration. Additionally, defendants who have their probation revoked and
qualify as habitual offenders may be subject to longer terms of incarceration based on that
violation. See, e.g., State v. Leyba, 2009-NMCA-030, ¶ 1, 145 N.M. 712, 204 P.3d 37
(holding that the state could pursue habitual offender enhancement after the defendant failed
to successfully complete probation); see also § 31-18-17. Even this cursory review of the
issues that arise in the context of probation revocations persuade us that although probation
is an act of clemency by the district court, State v. Donaldson, 100 N.M. 111, 119, 666 P.2d
1258, 1266 (Ct. App. 1983), and a probationer’s liberty interest is conditional, Guthrie,
2011-NMSC-014, ¶ 10, a probationer nonetheless has a fundamental interest in that liberty,

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which is seriously impacted by the revocation of probation. See DeBorde, 1996-NMCA-
042, ¶ 9.

{20} A defendant contesting the revocation of probation has a right to appeal that
revocation. State v. Castillo, 94 N.M. 352, 354, 610 P.2d 756, 758 (Ct. App. 1980). As
Defendant points out here, he contested the revocation of his probation and therefore did not
waive this right. See Rule 5-805(C) NMRA (stating that probationers may agree to
automatic sanctions for a technical violation of the conditions of probation and agree not to
contest the alleged violation); compare Eger, 2007-NMCA-039, ¶¶ 1-2 (stating that the
defendant did not waive his right to appeal where he entered a conditional plea), with State
v. Peppers, 110 N.M. 393, 398-99, 796 P.2d 614, 619-20 (Ct. App. 1990) (declining to
extend the presumption of ineffective assistance of counsel to defendant’s appealing from
a non-conditional plea). Considering the impact on a defendant’s liberty that the revocation
of probation has and the myriad of issues implicating due process and other constitutional
rights that arise within the context of probation revocation, we are persuaded that a
defendant who has not waived his right to appeal the revocation of his probation should not
be denied this right because of a procedural defect. The liberty interest at stake warrants
appellate review of the basis for depriving the individual of that liberty, despite its
conditional nature. See Ruth Anne E., 1999-NMCA-035, ¶ 10 (stating that “[t]he mistake
of counsel . . . should not deprive [a defendant] of appellate review on the merits” where the
defendant had the right to counsel and a fundamental liberty interest was at stake). Thus,
where a defendant possessed a right to counsel, we will presume that a defense counsel’s
failure to timely file a notice of appeal from an order revoking a defendant’s probation is per
se ineffective assistance. See Eger, 2007-NMCA-039, ¶ 5; Amanda M., 2006-NMCA-133,
¶ 22. Accordingly, here, where Defendant’s counsel untimely filed his notice of appeal
thirty-two days late and failed to timely file a motion for an extension of time, we will
nonetheless consider his appeal as if timely filed. See Duran, 105 N.M. at 232, 731 P.2d at
375.

The Conditions of Defendant’s Probation Were Lawful, and the District Court Did Not
Err in Finding Them Reasonable

{21} The district court’s May 14, 2008 order partially suspending Defendant’s sentence
required that Defendant abide by a number of enumerated conditions, including that
Defendant “comply with any other reasonable condition specified by the Probation and
Parole Division of the New Mexico Corrections Department.” The Corrections Department
policy states that “[o]ffenders placed under supervision for a crime other than a sex offense,
but who have prior sex offense history, may be considered for referral to sex offender
supervision if the prior history continues to be of concern.” Due to Defendant’s previous
conviction for a sex offense, he was referred to sex offender supervision and signed the
SOSBC on May 20, 2008. Under this contract, Defendant agreed to specific conditions of
probation, including that he would not miss any counseling session without prior permission
of his probation officer and that he would not have unsupervised contact with children
without prior written permission from his probation officer. On June 9, 2008, the district

8
court entered Defendant’s order of probation. It specified that Defendant agreed to
participate in and complete “any level of supervision” deemed appropriate by his probation
officer. The order was signed by Defendant, his probation officer, and the district court
judge.

{22} After the State filed its petition to revoke Defendant’s probation based in part on his
alleged violation of conditions set out in the SOSBC, Defendant filed a motion to dismiss.
Defendant made two arguments regarding the conditions of his probation. He asserted that
the requirement that he comply with the conditions of probation in the SOSBC was without
legal effect because it was not specifically stated in the district court’s judgment and order.
He also argued that the sex offender conditions of his probation were unreasonable because
they were not reasonably related to the non-sex offense crimes for which he was convicted.
Defendant continues with both of these arguments on appeal. We address each argument in
turn.

The Conditions of Probation Imposed by Defendant’s Probation Officer Were Lawful

{23} Defendant argues that his placement on sex offender supervision and the conditions
that accompanied that supervision were without legal effect because these conditions were
not specifically stated in the district court’s judgment and order suspending sentence. This
is a question of law that we review de novo. State v. Kerby, 2007-NMSC-014, ¶ 11, 141
N.M. 413, 156 P.3d 704. The State acknowledges that the specific condition that Defendant
be subject to sex offender supervision was not stated in the court’s order; however, the State
asserts that the exact terms of Defendant’s probation did not have to be spelled out. It
contends that the language in the order was sufficient. We agree.

{24} Defendant correctly notes that when entering an order suspending a defendant’s
sentence, the district court is required to attach to the order “reasonable conditions as it may
deem necessary to ensure that the defendant will observe the laws of the United States and
the various states and the ordinances of any municipality.” NMSA 1978, § 31-20-6 (2007).
The conditions of probation should be made clear in the judgment and “may not be added
by amendment subsequent to imposition of a valid original judgment.” State v. Martinez,
84 N.M. 295, 296, 502 P.2d 320, 321 (Ct. App. 1972). Here, the district court ordered that
Defendant comply with the standard conditions of probation as well as certain special
conditions as specified by the Probation and Parole Division. One of the enumerated special
conditions required Defendant to “comply with any other reasonable condition specified by
the Probation and Parole Division.” Pursuant to our decision in Martinez, we conclude that
this was sufficient to give legal effect to the terms and conditions imposed by the Probation
and Parole Division.

{25} In Martinez, the district court’s order stated that the “defendant is to report to that
[probation] office as it directs” and stated that “the conditions and terms of probation are
made conditions and terms of the deferred sentence.” Id. (internal quotation marks omitted).
The defendant in that case argued that the conditions imposed by the probation office were

9
without legal effect because they were not part of the district court’s order deferring his
sentence. Id. We disagreed and concluded that the language of the district court’s order
made the conditions of the defendant’s probation those conditions imposed by the probation
office. Id. We concluded that the conditions of probation were sufficiently stated in the
deferred sentence. Id. at 296-97, 502 P.2d at 321-22.

{26} As in Martinez, here, the language of the district court’s order incorporated any
reasonable conditions as specified by the probation office. Thus, these conditions were
included in those imposed by the court. That the terms and conditions set by the probation
office were not spelled out in the order itself did not establish that those terms and conditions
were not imposed by the court. See id. at 296, 502 P.2d at 321. Therefore, we hold that the
conditions of probation were sufficiently stated in the order, and Defendant’s placement on
sex offender supervision was lawful. We next consider whether the district court erred in
concluding that the term of Defendant’s probation and the conditions included in it were
reasonable.

Conditions of Defendant’s Probation Were Reasonable

{27} “The grant of probation is a discretionary act of the sentencing court. We therefore
review probation terms and conditions that the sentencing court has imposed for abuse of
discretion.” State v. Williams, 2006-NMCA-092, ¶ 3, 140 N.M. 194, 141 P.3d 538 (citations
omitted). Probation is a criminal sanction, and the district court “may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”
State v. Baca, 2004-NMCA-049, ¶ 17, 135 N.M. 490, 90 P.3d 509 (internal quotation marks
and citation omitted). “The court has broad discretion to effect rehabilitation and may
impose conditions designed to protect the public against the commission of other offenses
during the term, and which have as their objective the deterrence of future misconduct.”
State v. Garcia, 2005-NMCA-065, ¶ 11, 137 N.M. 583, 113 P.3d 406 (internal quotation
marks and citation omitted); see State v. Ponce, 2004-NMCA-137, ¶ 8, 136 N.M. 614, 103
P.3d 54. It may “require the defendant to . . . satisfy any other conditions reasonably related
to the defendant’s rehabilitation.” Section 31-20-6(F). “To be reasonably related, the
probation condition must be relevant to the offense for which probation was granted.” Baca,
2004-NMCA-049, ¶ 18 (internal quotation marks and citation omitted). We will not set
aside the terms and conditions of probation imposed by the sentencing court unless they “(1)
have no reasonable relationship to the offense for which the defendant was convicted, (2)
relate to activity which is not itself criminal in nature[,] and (3) require or forbid conduct
which is not reasonably related to deterring future criminality.” Williams, 2006-NMCA-092,
¶ 3 (alteration, internal quotation marks, and citation omitted).

{28} Defendant asserts that no reasonable relationship existed between his convictions for
contributing to the delinquency of a minor and giving alcohol to minors and his placement
under the sex offender conditions of probation. Defendant contends that because he was not
on probation for a sex offense, he should not have been subjected to sex offender supervision
and the conditions of probation that accompany it. On the other hand, the State argues that

10
these conditions were designed to deter Defendant’s future misconduct and were thus
reasonable. On appeal, Defendant has the burden of persuading us that the district court
abused its discretion in concluding that there was a reasonable relationship between the
convictions for which he is on probation and the conditions of that probation. Baca, 2004-
NMCA-049, ¶ 16. Defendant fails to do so here.

{29} Defendant does not present us with a factual basis or an argument to persuade us why
the condition of being placed on sex offender supervision pursuant to the Corrections
Department policy is not reasonably related to his rehabilitation. See id. ¶ 19. Defendant
merely states, “no reasonable relationship existed between [his] convictions for contributing
to the delinquency of a minor and giving alcohol to a minor and his sex offender conditions
of probation.” Defendant presented this same argument at the hearing on his motion to
suppress. The district court heard the testimony of the probation officer who placed
Defendant under sex offender supervision and supervised his probation. She testified that
she determined that Defendant should be placed under sex offender supervision after
considering that his original sex offense involved the attempted criminal sexual penetration
of a seven-year-old child and the fact that his current case involved contributing to the
delinquency of minors and providing alcohol to minors, as well as that he was currently a
registered sex offender. She testified that these factors led her to believe that placing
Defendant on sex offender supervision was related to Defendant’s rehabilitation and to
community safety. Upon questioning by the district court, the probation officer testified that
she considered the conditions prohibiting Defendant from having unsupervised contact with
children and requiring him to attend counseling to be reasonable and reasonably related to
the offenses in this case. At the hearing, Defendant did not present any evidence or
argument to the contrary other than to assert that the conditions were not reasonable because
he was not on probation for a sex offense.

{30} Based on the testimony of the probation officer and the lack of evidence or argument
presented by Defendant to refute that testimony, we cannot say that the district court abused
its discretion in deciding that the terms of Defendant’s probation were reasonably related
both to his convictions and to his rehabilitation. The district court did not order Defendant
to register as a sex offender as punishment for his crimes. See Williams, 2006-NMCA-092,
¶ 9 (holding that it is impermissible for a district court to order a defendant not convicted of
sex offenses to register as a sex offender). Defendant was already a registered sex offender.
It appears that the district court merely considered Defendant’s prior conviction in
determining that placement under the supervision of the sex offender unit was reasonably
related to Defendant’s current convictions and rehabilitation and, presumably, was in the
interest of public safety. See id. ¶¶ 7, 8.

{31} Defendant, however, asserts that his previous sex offense should not have been
considered in determining whether the conditions of probation were reasonable. Defendant
cites United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001), in support of that contention.
Scott is factually distinguishable and does not support Defendant’s argument. There, the
defendant was convicted of armed bank robbery and placed on sex offender supervision as

11
the result of a conviction for a sex offense that occurred fifteen years earlier. Id. at 633-34.
The appellate court concluded that this special condition bore no reasonable relationship to
the nature of the convicted offense. Id. at 636. The Eighth Circuit did not rule that generally
prior offenses could not be considered when fashioning the conditions of a defendant’s
probation. Instead, it emphasized that there was no evidence to show how the special
condition of sex offender supervision was at all related to the defendant’s conviction for
armed bank robbery. Id. The court reasoned that the lack of a shown connection, the length
of time elapsed between the convictions, as well as the absence of any evidence that the
defendant had committed sex offenses in the interim, supported the conclusion that “the
special conditions seem[ed] unlikely to serve the goals of deterrence or public safety[.]” Id.
Unlike the defendant in Scott, here, Defendant’s current convictions involved criminal
contact with children. Defendant’s prior conviction for a sex offense was considerably more
proximate being just six-and-a-half years in the past, and the State presented evidence of the
probation officer’s reasoning in placing Defendant under this supervision. Given that
Defendant’s current convictions involved providing alcohol to minors and contributing to
their delinquency, we cannot say the district court abused its discretion in considering
Defendant’s prior conviction in making the determination that the conditions of his probation
were reasonably related to his current convictions, rehabilitation, and public safety. To the
extent Defendant implies doing so abridged the court’s statutory authority, this argument is
unexplained and unsupported by authority. See Republican Party of N.M. v. N.M. Taxation
& Revenue Dep’t, 2010-NMCA-080, ¶ 38, 148 N.M. 877, 242 P.3d 444 (“[W]e do not
review unclear or inadequately developed arguments or arguments for which no authority
has been cited.”).

{32} Additionally, we note that although Scott held that it was an abuse of discretion to
impose the special condition of sex offender supervision in that case, it favorably discussed
another case that it understood to “authorize a court to take into account a defendant’s past
offense, unrelated to the offense of conviction, in fashioning conditions of probation or
supervised release.” Scott, 270 F.3d at 636. However, the court concluded that to do so was
inappropriate in the case before it. Accordingly, we conclude Defendant’s reliance on Scott
to support his contention that the district court could not consider his past conviction in
determining whether the conditions were reasonably related to his convictions or
rehabilitation is misplaced. See NMSA 1978, § 31-21-4 (1963) (allowing for an
“individual[’s] characteristics, circumstances, needs and potentialities” to be taken into
account when determining the appropriate conditions of probation).

{33} Finally, Defendant raises two issues that we do not decide here. First, to the extent
Defendant asserts a challenge to the Corrections Department policy itself, we conclude that
this issue was not preserved below. “To preserve a question for review it must appear that
a ruling or decision by the district court was fairly invoked[.]” Rule 12-216(A) NMRA.
Below, as on appeal, rather than challenging the policy as a whole, Defendant appears to
challenge the adult probation and parole office’s (APPO) authority to impose conditions he
contends were not reasonably related to his current convictions. “We generally do not
consider issues on appeal that are not preserved below.” Garcia, 2005-NMCA-065, ¶ 6.

12
Even if this issue had been preserved, it was not adequately developed in Defendant’s
briefing. Accordingly, we do not determine whether it is within the Corrections
Department’s authority to place offenders on probation for a non-sexual offense on sex
offender supervision as long as the condition can be said to be relevant to the defendant’s
convictions and rehabilitation. See Republican Party of N.M., 2010-NMCA-080, ¶ 38.
Second, to the extent that Defendant claims it was improper for the APPO to impose sex
offender supervision on him based on a sex offense committed when he was a juvenile, this
argument is also undeveloped, and Defendant did not cite any supporting authority for this
contention. In the absence of cited authority, we assume that none exists and decline to
consider the argument further. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329,
1330 (1984).

{34} For the foregoing reasons, we conclude that the condition of sex offender supervision
imposed by the district court was lawful, and the district court did not abuse its discretion
in determining that it was reasonably related to Defendant’s current convictions,
rehabilitation, and public safety. See Ponce, 2004-NMCA-137, ¶ 8. We now turn to
Defendant’s contention that the State presented insufficient evidence to support the
revocation of his probation.

Sufficiency of the Evidence

{35} The State’s petition to revoke Defendant’s probation alleged that Defendant violated
the conditions of his probation when he (1) had contact with children under the age of
eighteen without prior written permission from his probation officer; (2) failed to attend his
counseling session on January 9, 2009, as required; (3) failed to attend his counseling session
on December 19, 2008, as required; (4) failed to renew his sex offender registration1; and (5)
had alcoholic beverages in his home on August 23, 2008. After holding a hearing on the
State’s petition, the district court found that “Defendant ha[d] violated the terms and
conditions of his probation as charged.” Defendant now contends that the State failed to
prove he violated any of the conditions of his probation. We disagree.

{36} We review a district court’s revocation of a defendant’s probation for an abuse of
discretion. State v. Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct. App. 1989). In
a probation revocation proceeding, the State bears the burden of establishing a probation
violation with a reasonable certainty. See Sanchez, 2001-NMCA-060, ¶ 13. To meet this
burden, the State must introduce evidence that a reasonable and impartial mind would be

1
This alleged violation was based on the condition of Defendant’s probation requiring
that he obey all laws. We note that on appeal, the State concedes it failed to present
sufficient evidence that Defendant’s failure to timely re-register as a sex offender violated
NMSA 1978, Section 29-11A-4(N) (2005), which makes it a crime for a sex offender to
“willfully or knowingly” fail to comply with the registration requirements set forth in that
section.

13
inclined to conclude that the defendant has violated the terms of probation. Martinez, 108
N.M. at 606, 775 P.2d at 1323. “Once the state offers proof of a breach of a material
condition of probation, the defendant must come forward with evidence to excuse non-
compliance.” Id. We conclude that the State has met its burden and that Defendant has not
provided evidence sufficient to excuse non-compliance.

{37} When Defendant signed his order of probation, he was “advised that under the law
of the Court, it may at any time during the probation term issue a warrant for [his] arrest and
[his] probation may be revoked if [he] violate[d] any one of the conditions” of the Court
order. Accordingly, although Defendant challenges the sufficiency of the evidence
supporting each of his probation violations, if there is sufficient evidence to support just one
violation, we will find the district court’s order was proper. See, e.g., id. at 607, 775 P.2d
at 1324 (finding no abuse of discretion even when the evidence that the district court relied
on in revoking the defendant’s probation was “not that substantial”).

{38} At the hearing, the State first addressed Defendant’s alleged violation of the
condition that “Defendant shall not consume or possess alcoholic beverages.” As evidence
showing that Defendant violated the condition, the State presented the testimony of
Defendant’s probation officer. She testified that in August 2008, she visited Defendant’s
home and found alcohol there. She recalled that there was an empty bottle of Jack Daniels,
more than a case worth of empty beers, and more than a case of unopened beer in the
refrigerator. Further, she testified that it was a violation of Defendant’s conditions of
probation to have alcohol in his home and that he was not allowed to possess alcohol.

{39} On appeal Defendant does not point us to anywhere in the record that contains
evidence to overcome the reasonable inference from the probation officer’s testimony that,
by having alcohol in his home, he was in possession of alcohol in violation of the conditions
of his probation. Nor does he point us to any place in the record to show an excuse for this
non-compliance. Accordingly, we conclude that the evidence was sufficient for a reasonable
mind to conclude that Defendant had violated this condition of his probation. The district
court’s revocation of Defendant’s probation was not an abuse of discretion.

{40} Defendant nevertheless contends that the State should be barred from seeking to
revoke Defendant’s probation based on his violation of the condition prohibiting him from
having alcohol because of the amount of time elapsed between the violation and the State’s
petition to revoke his probation. He argues that his due process rights were violated by the
delay and that it was prejudicial to be previously informed of the violation, told to correct
his actions, and then over a year later to have to defend against the past violation. This Court
addressed the issue of the timeliness of a revocation proceeding in State v. Chavez, 102 N.M.
279, 281, 694 P.2d 927, 929 (Ct. App. 1985). In Chavez, we said that “[a]lthough there are
no specific mandatory time limits imposed by court rule or statute in New Mexico for
instituting and prosecuting a probation revocation proceeding, the proceedings must be held
within a reasonable time after probation authorities become aware of an alleged violation.”
Id.; see Rule 5-805(G) (providing time lines for hearings after there is a recommendation that

14
probation be revoked). However, for a delay in the institution and prosecution of a probation
revocation proceeding to constitute a denial of due process, the probationer must show that
he or she was prejudiced by the delay. Chavez, 102 N.M. at 282, 694 P.2d at 930. In
Chavez, the district court stated that the defendant “made no showing that he demanded an
earlier hearing, was unable to call necessary witnesses on his behalf, or that any of the
witnesses had trouble remembering any of the critical events surrounding the events relevant
to the revocation proceedings.” Id. Under those facts, the district court found no prejudice.
Id.

{41} Here, the State initiated proceedings to revoke Defendant’s probation on December
11, 2009. Defendant violated the condition of probation prohibiting him from possessing
alcohol in August of 2008. We need not decide whether the State was required to bring the
probation revocation proceedings earlier. Defendant failed to make any showing that he was
prejudiced by this delay. He merely concludes that he was prejudiced by having to defend
against the violation a year and a half later and makes no attempt to explain why. “An
assertion of prejudice is not a showing of prejudice.” In re Ernesto M., Jr., 1996-NMCA-
039, ¶ 10, 121 N.M. 562, 915 P.2d 318. Therefore, under the analysis set out in Chavez,
Defendant has failed to show that the State’s delay in prosecuting this probation violation
violated his due process rights.

Habitual Offender Enhancement

{42} Defendant’s plea agreement stated that he understood that if he violated any of the
conditions of his probation, he would be subject to habitual offender proceedings based on
his prior felony conviction. Accordingly, when sentencing Defendant after revoking his
probation, the district court applied the habitual offender enhancement. Pursuant to State
v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer, 103 N.M. 655, 712 P.2d
1 (Ct. App. 1985), Defendant argues that the district court could not enhance his sentence
under the Habitual Offender Statute based on the prior felony conviction that he received
when he was a juvenile. Although Defendant was in fact a minor at the time he committed
the sexual offense for which he was convicted, the record reflects that he received an adult
sentence for the crime. For the following reasons, we conclude the district court had the
authority to enhance Defendant’s sentence under the Habitual Offender Statute.

{43} Whether Defendant’s previous felony conviction can be used for the purposes of
sentence enhancement under Section 31-18-17 is a question of law that we review de novo.
See State v. Smith, 2000-NMCA-101, ¶ 4, 129 N.M. 738, 13 P.3d 470. The Habitual
Offender Statute provides in pertinent part that “[a] person convicted of a noncapital felony
in this state whether within the Criminal Code . . . or the Controlled Substances Act . . . or
not who has incurred one prior felony conviction . . . is a habitual offender and his basic
sentence shall be increased by one year.” Section 31-18-17(A). The Children’s Code
provides that “[i]f a judgment on a proceeding under the Delinquency Act results in an adult
sentence, the determination of guilt at trial becomes a conviction for the purposes of the
Criminal Code.” NMSA 1978, § 32A-2-18(C) (1996).

15
{44} Defendant admits that he was sentenced as an adult for attempted criminal sexual
penetration of a child under thirteen. Accordingly, pursuant to Section 32A-2-18(C), that
determination of guilt is a conviction for the purposes of the Criminal Code. Regardless of
whether Defendant was convicted under the Criminal Code, it is undisputed that he was
convicted of a felony. The Habitual Offender Statute applies to persons convicted of
felonies whether they are convicted under the Criminal Code, Controlled Substances Act,
“or not.” Section 31-18-17(A). Thus, the Habitual Offender Statute simply applies to
anyone convicted of a felony. Because Defendant was convicted of a felony, the district
court had the authority to enhance his sentence under the Habitual Offender Statute.

{45} Defendant’s case is distinguishable from Smith, in which this Court concluded that
a defendant’s prior out-of-state conviction for a burglary committed when he was seventeen
could not be used to enhance his sentence under Section 31-18-17. Smith, 2000-NMCA-101,
¶¶ 1-2. There, we determined that the defendant had been sentenced as a youthful offender
and placed on youthful offender probation. Id. ¶ 9. Unlike Defendant, the defendant in
Smith was not sentenced as an adult. Id. Accordingly, the defendant’s offense was not
treated as a felony, and the Habitual Offender Statute did not apply. Id. ¶¶ 10-11. Because
Defendant was sentenced as an adult, rather than adjudicated delinquent, and was convicted
of a felony for the purposes of the Criminal Code, the Habitual Offender Statute is
applicable.

CONCLUSION

{46} The conditions of Defendant’s probation had legal effect and were reasonable. The
district court’s revocation of Defendant’s probation was supported by sufficient evidence,
and, as a person convicted of a felony, Defendant was subject to the enhancement of his
sentence under the Habitual Offender Statute. We affirm the district court’s revocation of
Defendant’s probation.

{47} IT IS SO ORDERED.

____________________________________
LINDA M. VANZI, Judge

I CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge (specially concurring).

GARCIA, Judge (specially concurring)

16
{48} I concur in the result reached by the majority in this case, but I disagree with the
majority’s extension of Duran to appeals involving the revocation of a convicted defendant’s
probation. 105 N.M. at 232, 731 P.2d at 375; see Majority Opinion ¶¶ 9, 13-20. I agree that
a limited due process right to counsel does arise in certain case-by-case circumstances for
probation revocation hearings under Gagnon, 411 U.S. at 790. See Barnett, 90 N.M. at 634,
567 P.2d at 483; Majority Opinion ¶ 11. However, a defendant’s liberty interest while on
probation is correctly identified as a conditional liberty interest and not the type of
fundamental or absolute liberty interest arising from a conviction or other fundamental
circumstances. See Guthrie, 2011-NMSC-014, ¶ 14. This conditional liberty interest cannot
be equated with the fundamental liberty interest at stake in Duran.

{49} The minimum due process right that a probationary defendant is entitled to assert
may necessitate the appointment of counsel during certain probation violation/revocation
hearings. Barnett, 90 N.M. at 634, 567 P.2d at 483. However, an automatic per se right to
appeal the district court’s probation revocation decision should not result from such a
minimal due process right. This does not leave a defendant without recourse or a remedy.

{50} We recognize that a defendant has the right to appeal from a revocation of
probation. See State v. Montoya, 93 N.M. 84, 85, 596 P.2d 527, 528 (Ct. App. 1979)
(appealing the validity of a defendant’s probation revocation hearing); State v. Brusenhan,
78 N.M. 764, 765, 438 P.2d 174, 175 (Ct. App. 1968) (recognizing the defendant’s right to
appeal the revocation of his probation under the rules and statutory provisions in existence
at that time). If a defendant chooses to appeal and notifies his trial counsel that he desires
to appeal, trial counsel can be found ineffective if a notice of appeal is not timely filed on
defendant’s behalf. See Evitts, 469 U.S. at 396-97; State v. Torres, 2012-NMCA-026, ¶ 6,
272 P.3d 689, cert. granted, 2012-NMCERT-003, __ P.3d __. The existing rules and
judicial precedent protect a defendant under these circumstances. However, where a
defendant never notifies his trial counsel of the desire to appeal his revocation of probation
or only notifies his counsel of the desire to appeal after the time for an appeal has run, such
circumstances should not establish a conclusive per se presumption of ineffective assistance
of counsel. We have no procedure in place for probation revocation decisions that are
comparable to the written affidavit requirement under Rule 5-702 where a defendant waives
his constitutional right to appeal a criminal conviction entered by the district court. The
majority would extend the per se presumption established under Duran to this particular
circumstance, and I disagree. It should not be assumed that every defendant desires to
appeal every revocation of probation unless counsel is notified of the defendant’s desire to
appeal, and our appellate courts should not be required to accept every probation revocation
case where a notice of appeal was not timely filed. Due process should not be expanded to
provide such a per se right as the majority has now concluded.

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Leon, No. 31,067

17
APPEAL AND ERROR
Substantial or Sufficient Evidence
Timeliness of Appeal

CRIMINAL LAW
Sex Offences

CRIMINAL PROCEDURE
Habitual Criminal
Probation
Sentencing

18