Certiorari Denied, No. 31,512, February 11, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-030
Filing Date: December 29, 2008
Docket No. 27,597
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ERNIE LEYBA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
Peggy Nelson, District Judge
Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
VIGIL, Judge.
{1} The State entered into a plea and disposition agreement with Defendant and agreed
not to bring habitual offender proceedings “if and only if” Defendant completed at least one
year of inpatient alcohol treatment and successfully completed probation without a violation.
Defendant violated his probation one month after beginning to serve his probation, and he
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admitted to the violation. The State did not bring habitual offender proceedings based on
the violation, and the district court gave Defendant a second chance at probation. The State
subsequently filed a motion to revoke probation, asserting that Defendant violated his
probation a second time. The State also initiated habitual offender proceedings because
Defendant had already admitted to the first probation violation, and it occurred within one
year of the plea and disposition agreement. Without a finding that Defendant committed a
second probation violation, the district court held a trial on the State’s supplemental habitual
offender information and enhanced Defendant’s original sentence. Defendant appeals. We
affirm.
BACKGROUND
{2} In June 2004, a four-count information charged Defendant with the felony offenses
of burglary, attempted burglary of a dwelling house, battery upon a peace officer, and
possession of burglary tools. The case was resolved when Defendant entered into a plea and
disposition agreement with the State, which the district court approved in July 2004.
Defendant agreed to plead guilty to battery upon a peace officer, and the State agreed to
dismiss the remaining three charges and not bring habitual offender proceedings for the three
prior convictions “IF AND ONLY IF [Defendant] completes at least one year of inpatient
alcohol treatment, and successfully completes probation without violation.” Defendant
signed the plea and disposition agreement acknowledging that he read and understood its
terms.
{3} In its July 2004 judgment and suspended sentence, the district court adjudged
Defendant guilty of battery upon a peace officer, sentenced Defendant to the Department of
Corrections for eighteen months, and suspended execution of the sentence subject to
standard and special supervised conditions of probation. Pertinent to this case, one of the
special conditions of probation was that “[D]efendant shall enroll in, enter and successfully
complete an inpatient alcohol and/or drug treatment facility of at least twelve months’
duration, immediately upon his release from jail following the plea and sentencing in this
matter. Defendant shall abide by all rules and regulations of said program as a condition of
his probation.” Defendant also signed the order of probation dated July 14, 2004, and placed
his initials beside each condition, stating that he read and understood the terms of the
probation order and agreed to abide by its terms. Defendant specifically acknowledged that
as a special condition of his probation, “I will enter, participate, and complete the
Opportunity House, inpatient program located at Hobbs, NM for a period of at least twelve
(12) [months] in duration, immediately upon my release from jail following the plea and
sentencing in this matter. I [shall] abide by all rules and regulations of said program as a
condition of my probation.”
{4} Defendant violated his probation the following month. The State filed a motion to
revoke probation alleging that Defendant violated the aforementioned special condition, “in
that on or about August 12, 2004, [Defendant] was terminated from [the Opportunity House
P]rogram for program violations.” In October 2004, the district court held a hearing, and
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after consulting with his attorney, Defendant admitted in a probation violation agreement
that he violated his probation as alleged. At the hearing, the district court first determined
that Defendant was aware of his constitutional rights and agreed to waive them and then
determined that Defendant knowingly, voluntarily, and intelligently agreed to admit that he
violated his probation. The district court then formally accepted Defendant’s admission that
he violated his probation.
{5} In its October 2004 order, the district court revoked Defendant’s probation. However,
instead of ordering Defendant to serve the balance of his sentence in prison, the district court
reinstated Defendant’s original eighteen-month suspended sentence. Probation was
reinstated for eighteen months, commencing on the date that the July 2004 judgment and
suspended sentence was imposed, with the requirement that Defendant “abide by all
conditions imposed therein,” with credit for the time already served on probation. The
district court wanted Defendant to have another opportunity to receive counseling and
treatment. Again, a special condition of probation in this order was that “Defendant shall
enter and successfully complete an in-patient alcohol/substance abuse program (of at least
one year duration–currently planned as Recovery House or Sept House), immediately upon
acceptance into the program and a bed being found for [Defendant].”
{6} On January 6, 2005, the State filed a second motion to revoke probation, alleging that
in November 2004, Defendant had violated four different conditions of his probation in that
he was discharged from the Recovery House in Albuquerque for noncompliance with the
program rules or directives; that he failed to comply with his Albuquerque probation
officer’s order to report to his Raton probation officer; that his whereabouts were unknown
to probation authorities; and that he tested positive through urinalysis for marijuana and
cocaine, and he admitted to using controlled substances.
{7} Contemporaneous with the motion to revoke probation, the State also filed a
supplemental information on January 6, 2005, alleging that Defendant was previously
convicted of three other felonies, and that his sentence for the battery on a peace officer
conviction should be enhanced pursuant to the Habitual Offender Act. See NMSA 1978, §
31-18-17(C) (2003) (providing that the basic sentence of a person convicted of a noncapital
felony who has incurred three or more prior felony convictions shall be increased by eight
years, which shall not be suspended or deferred). Trial on the merits of the habitual offender
supplemental information was scheduled prior to the hearing on the outstanding motion to
revoke probation.
{8} Trial on the habitual offender supplemental information commenced on April 5,
2005. Defendant objected to having the habitual offender trial before the hearing on the
second probation revocation. Defendant argued that because he was reinstated to probation
at the first revocation hearing without a habitual offender supplemental information being
filed by the State at that time, the State waived its right to initiate habitual offender
proceedings based on the first probation violation. The State argued that it could proceed
on the supplemental information based on Defendant’s first probation violation, even though
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the second probation revocation hearing was not scheduled.
{9} The district court agreed with the State. The district court stated, “I think even
though the State did file a second motion to revoke probation, the first probation violation
admission triggered the language of the original plea and disposition agreement. And so the
State can proceed with its supplemental information.” After hearing the State’s evidence on
Defendant’s prior offenses, the district court found that Defendant had two prior felonies.
The district court subsequently filed a judgment, sentence and commitment on April 20,
2005, in which Defendant’s original sentence was enhanced by four years, to be served
concurrently with the original sentence of eighteen months in the Department of Corrections.
See Section 31-18-17(B) (providing that the basic sentence of a person convicted of a
noncapital felony who has incurred two prior felony convictions shall be increased by four
years, which shall not be suspended or deferred). The scheduled hearing on the outstanding
motion to revoke probation was never held.
{10} No direct appeal was filed, but Defendant was subsequently allowed to pursue an
appeal to this Court in 2007, after receiving habeas corpus relief based on the failure of trial
counsel to file a direct appeal.
DISCUSSION
I. Habitual Offender Enhancement
{11} Defendant claims that the district court denied him due process by enhancing his
sentence based on his admission that he violated his probation in the October 2004 probation
violation agreement. The general rule is that a prosecutor may seek habitual felony offender
enhancement at any time following conviction and prior to the expiration of the period of
incarceration and any parole or probation that follows that period. See State v. Freed, 1996-
NMCA-044, ¶ 8, 121 N.M. 569, 915 P.2d 325. This discretion to seek habitual offender
enhancement rests with the prosecutor and is not restricted even where the prosecutor knows
of prior felonies but chooses to delay seeking the enhancement. Id.
{12} The issue before us is whether the prosecutor was otherwise restricted from
exercising her discretion to file the habitual offender supplemental information in April
2005. Defendant makes three alternative arguments to support such a restriction. First,
Defendant argues that the State failed to prove that Defendant willfully violated the terms
of the initial probation agreement. We construe his argument as a contention that the
October 2004 probation violation agreement was invalid, with the result that the restriction
in the original plea agreement on any habitual offender enhancement remained intact.
Second, Defendant argues that, even if the probation violation agreement was valid, it should
be interpreted to prohibit the State from filing the supplemental information. Finally,
Defendant claims that, even if the terms of the agreement permitted the State to file the
supplemental information, the State’s delay in doing so amounted to a waiver of this right.
We discuss each of these arguments in turn.
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A. Enforceability of the Probation Violation Agreement
{13} As we interpret his argument, Defendant contends that the October 2004 probation
violation agreement was invalid and therefore, could not be used to trigger the language in
the original July 2004 plea agreement that would authorize the filing of the habitual offender
supplemental information. The October 2004 probation violation agreement contains no
express limitation on the State’s authority to bring the habitual offender charges.
Defendant’s arguments are based on his interpretation of comments made at the revocation
hearing. Defendant maintains that his strategy at the revocation hearing was to admit to a
technical violation of probation, but not one that would be sufficient, in and of itself, to
support a determination that a violation had occurred. Defendant characterizes the district
court’s acceptance of his admission at the beginning of the revocation hearing as a
“conditional acceptance,” subject to reconsideration, and he claims that the court ultimately
agreed with the argument he now makes on appeal that there was an insufficient showing of
willfulness or that the violation was otherwise insufficient to support revocation.
{14} The State responds to Defendant’s arguments by correctly observing that Defendant
has never previously sought to set aside the October 2004 probation violation agreement.
As such, the State argues that Defendant has failed to preserve the issue. See State v. Hodge,
118 N.M. 410, 414, 882 P.2d 1, 5 (1994) (observing that “a plea of guilty or nolo contendere,
when voluntarily made after advice of counsel and with full understanding of the
consequences, waives objections to prior defects in the proceedings and also operates as a
waiver of statutory or constitutional rights, including the right to appeal”). Not only did
Defendant fail to attack the October 2004 probation violation agreement prior to the hearing
on the habitual offender supplemental information, but even at that hearing, defense counsel
conceded to the district court that Defendant had admitted to the probation violation; defense
counsel’s sole argument was that the State had waived by inaction its right to seek the
enhancement.
{15} Notwithstanding Defendant’s failure to preserve the alleged invalidity of the
probation violation, we disagree with his characterization of those proceedings. At the
probation revocation hearing the court asked Defendant whether he was willing to make an
admission, to which Defendant answered: “I admit that I–I didn’t complete the program,
that’s why I got thrown out. So I’m admitting, yes, today, that I didn’t complete the
Opportunity House, the program.” In response to the district court, Defendant also stated
that he was knowingly waiving applicable constitutional protections and rights.
{16} For her part, defense counsel stated that Defendant was willing to admit to the
violation, and she agreed with the court that the only issue concerned sentencing. Defendant
claims that this merely amounts to argument of counsel. See State v. Cochran, 112 N.M.
190, 192, 812 P.2d 1338, 1340 (Ct. App. 1991) (“Argument of counsel is not evidence.”).
However, this claim overlooks Defendant’s own statement to the court that he was admitting
to the State’s allegation that he was terminated from the Opportunity House program.
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{17} Defendant’s primary contention is that there was no showing that his conduct to
support the violation was willful. See State v. Martinez, 108 N.M. 604, 606-07, 775 P.2d
1321, 1323-24 (Ct. App. 1989) (explaining that probation should not be revoked where the
violation is not willful, in that it resulted from factors beyond a probationer’s control). As
we have already stated, the record supports the conclusion that Defendant knowingly and
voluntarily admitted to the probation violation, and we are not inclined to address any
additional alleged defect because Defendant never reserved the right to make this challenge
by entering a conditional plea. See Hodge, 118 N.M. at 415-17, 882 P.2d at 6-8. This is not
a situation where evidence used to support a plea compels us to set aside the plea agreement
notwithstanding our limited review. See State v. Nash, 2007-NMCA-141, ¶¶ 10-19, 142
N.M. 754, 170 P.3d 533 (permitting successful collateral attack of a prior plea-based
conviction where there was clear and convincing evidence of innocence). To the contrary,
in the present case Defendant repeatedly stated that he was admitting to the violation. The
defense strategy at the probation revocation hearing was, in effect, to admit to a willful
violation of probation, but to minimize the seriousness of the violation for purposes of
advocating for continued probation and treatment in another facility. Defendant’s own
witness, a social worker, testified that Defendant had otherwise been an exemplary
participant in the Opportunity House program, and had left after being upset with the amount
of money he was being paid. The witness quoted Defendant as saying, “this isn’t working
for me,” which buttressed Defendant’s own admission with respect to willfulness. In fact,
this evidence of willfulness was used to support Defendant’s request to be placed back on
probation, because another facility might be better suited to his personality. Defendant’s
strategy succeeded, and he was placed back on probation.
{18} Finally, Defendant argues that the district court implicitly determined that, while
there was a technical violation, there was no actual violation. We believe that Defendant
misconstrues the court’s comments. At the end of the revocation hearing, after it had already
accepted Defendant’s admission of a probation violation, the district court simply articulated
the reasons why it was agreeing to place Defendant back on probation. Moreover, the
court’s comment on Defendant’s need for anger management treatment was an implicit
reference to the reason for Defendant’s violation, and additional comments support the view
that the district court agreed with Defendant’s own position that the violation was not so
serious that another attempt at treatment should be foreclosed. Defendant’s claim that the
district court implicitly found that no violation occurred is also contradicted by the fact that
the district court entered the order revoking Defendant’s probation.
B. Interpretation of Probation Violation Agreement
{19} Defendant claims that, even if the October 2004 probation violation agreement is
valid, it should be interpreted to prohibit the State from filing the supplemental information
in this case. As we observed above, Defendant’s argument at the hearing on the
supplemental information was limited to waiver. Nevertheless, we consider Defendant’s
arguments with respect to the terms of the agreement, because if they did not authorize
enhancement, then Defendant was subject to an illegal sentence. See State v. Shay,
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2004-NMCA-077, ¶ 6, 136 N.M. 8, 94 P.3d 8 (stating the rule that an illegal sentence
challenge does not have to be preserved); cf. State v. Trujillo, 2007-NMSC-017, ¶ 7-13, 141
N.M. 451, 157 P.3d 16 (rejecting illegal sentence preservation argument where—unlike the
present case—there was no claim that the terms of the underlying plea prohibited habitual
offender charges).
{20} Plea agreements are binding upon the parties in the absence of a constitutional or
statutory invalidity. See State v. Montaño, 2004-NMCA-094, ¶ 7, 136 N.M. 144, 95 P.3d
1059. Upon review, an appellate court “construe[s] the terms of the plea agreement
according to what [the d]efendant reasonably understood when he entered the plea.” State
v. Fairbanks, 2004-NMCA-005, ¶ 15, 134 N.M. 783, 82 P.3d 954. Defendants do not get
to choose which part of a plea bargain to follow; plea agreements are generally viewed and
enforced in their entirety. See State v. Gibson, 96 N.M. 742, 743, 634 P.2d 1294, 1295 (Ct.
App. 1981). With respect to ambiguities:
[I]f the ambiguities are not addressed by the district court and there is no other relevant
extrinsic evidence to resolve the ambiguity, the reviewing court may rely on the rules
of construction, construing any ambiguity in favor of the defendant. Under these
circumstances, contract interpretation is a legal issue that this Court reviews de novo.
Fairbanks, 2004-NMCA-005, ¶ 15 (citation omitted).
{21} In this case, the October 2004 probation violation agreement has the title, “Repeat
Offender and Probation Violation Agreement.” The document itself states that Defendant
agrees he was convicted of three prior felonies, but this provision and the information
identifying the felonies were crossed out and initialed by the prosecutor. Defendant suggests
this action constituted an agreement that no habitual offender sentence would be sought
because of these three prior felony convictions. We disagree. The fact that Defendant did
not admit to being a habitual offender at that time does not control whether the State had
authority to seek a habitual offender enhancement based on the previously admitted
probation violation under the terms of the original July 2004 plea and disposition agreement.
Defendant’s argument is also undermined by the fact that there is no express language in the
October 2004 probation violation agreement binding the State from subsequently seeking
an enhanced sentence. Given the terms of the original plea and disposition agreement,
coupled with the State’s broad discretion to seek habitual offender enhancement, the absence
of any express language limiting this discretion demonstrates that no such agreement
between the State and Defendant was reached.
{22} To the extent that any ambiguity can be inferred by the crossed-out language in the
October 2004 probation violation agreement, a full review of the transcript of the October
2004 hearing demonstrates that there was no dispute with respect to the probation violation,
that the focus was on whether Defendant would be incarcerated or given another chance at
probation and in-patient treatment, and that the State was willing to give Defendant this
second chance. The State’s willingness to provide Defendant another opportunity would
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have been meaningless if it would have sought habitual enhancement at that time, since
“enhancement is mandatory if the prosecutor exercises discretion to pursue the
enhancement.” Freed, 1996-NMCA-044, ¶ 8; see § 31-18-17(C). Again, we emphasize that
a prosecutor is not required to seek an enhancement simply because it has the authority to
do so. See Freed, 1996-NMCA-044, ¶ 8. This explains why the prosecutor in this case
specifically informed the district court that “today will not be the day for resolution of the
supplemental information.” It is clear from this and other similar statements by the
prosecutor that the State was willing to see what treatment options were available, and revisit
Defendant’s prior felonies at another time, if necessary. Finally, Defendant may not rely on
the absence of any resolution of the prior felonies in the October 2004 probation violation
agreement to the subsequent filing of the habitual offender supplemental information. See
Trujillo, 2007-NMSC-017, ¶ 12 (stating that a “plea agreement’s silence on the subject of
habitual-offender charges cannot inure to [a defendant’s] benefit”).
C. Waiver
{23} We now consider the only argument that was actually made by Defendant at the
hearing on the supplemental information: that the State’s failure to resolve the habitual
offender issue at the probation violation hearing in October 2004 constituted a waiver of its
right to subsequently file the supplemental habitual offender information.
{24} Defendant’s waiver argument is made in two respects. First, Defendant argues that
the prosecutor’s comments at the probation violation hearing, together with crossing out the
language referencing prior convictions on the face of the written agreement amounted to a
waiver of the express terms of the original plea. We have considered and resolved this
argument above. Defendant’s other waiver argument, which we now address, is his
contention that the State waived its right to seek enhancement by failing to timely file the
habitual offender supplemental information. Defendant refers us to State v. Chavez, 102
N.M. 279, 694 P.2d 927 (Ct. App. 1985), for support that the State was required to timely
file the habitual offender supplemental information. However, that case addressed the
reasonable time requirement between an alleged probation violation and the filing of a
petition to revoke based on that conduct. Id. at 281, 694 P.2d at 929. Defendant’s waiver
argument has been specifically rejected by the Legislature because a prosecutor may bring
habitual-offender charges at any time prior to limits that are not at issue here. See Freed,
1996-NMCA-044, ¶ 8 (noting that the Legislature has given its express approval of the
initiation of habitual-offender proceedings after the imposition of the basic sentence).
{25} Having determined that the probation violation was valid, that its terms supported
the filing of the habitual offender supplemental information, and that waiver is inapplicable,
we conclude that the district court was authorized to enhance Defendant’s sentence.
II. Allocution
{26} Defendant claims that the district court filed the judgment, sentence and commitment
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following the trial on the habitual offender supplemental information in violation of his right
to allocution. In State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794, 932 P.2d 484 our
Supreme Court stated:
Allocution is defined as the formal inquiry or demand made by the court or clerk to accused
at the time for pronouncing sentence as to whether accused has anything to say why sentence
should not be pronounced on him. In New Mexico, this common-law doctrine has been
extended to non-capital felonies. This means that, at least in cases involving felony
convictions, the trial judge must give the defendant an opportunity to speak before he
pronounces sentence. Failure to do so renders the sentence invalid.
(internal quotation marks and citations omitted). In this case, Defendant was denied his right
of allocution because further proceedings were anticipated on the second motion to revoke
probation, but none took place. Instead, the district court filed the judgment, sentence and
commitment approximately two weeks after the trial on the habitual offender supplemental
information was held.
{27} The State maintains that the right of allocution does not apply to habitual offender
sentencing. The State’s argument is based on the lack of the district court’s sentencing
discretion, because where the prior felonies are established, “the court shall sentence [the
defendant] to the punishment as prescribed in Section 31-18-17.” NMSA 1978, § 31-18-
20(C) (1983). We believe that the State’s outcome-based argument overlooks the
fundamental due process underpinnings of this right. As our Supreme Court has observed,
“[t]he right developed at a time when the criminal defendant had no right to counsel and no
right to testify. Allocution was created so that a defendant would be aware of the single
situation in which he could address the court. Although this is no longer the case, the right
of allocution has remained a part of the common law.” Setser, 1997-NMSC-004, ¶ 20 n.1
(citation omitted). We disagree with State’s claim that allocution under these circumstances
is essentially meaningless, because “the opportunity to personally address the sentencer
retains both symbolic and practical significance. It may increase for some defendants the
perceived equity of the process.” 6 Wayne R. LaFave et al., Criminal Procedure § 26.4(g),
at 780 (3d ed. 2007). Accordingly, we must remand for re-sentencing.
CONCLUSION
{28} For the reasons set forth above, we conclude that the State was authorized to bring
habitual offender charges against Defendant and affirm, but we remand for re-sentencing
with Defendant present in open court where he is accorded his right to allocution.
{29} IT IS SO ORDERED.
MICHAEL E. VIGIL, Judge
WE CONCUR:
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________________________________
CYNTHIA A. FRY, Judge
________________________________
CELIA FOY CASTILLO, Judge
Topic Index for State v. Leyba, No. 27,597
CA CRIMINAL PROCEDURE
CA-AC Allocution
CA-ES Enhancement of Sentence
CA-HC Habitual Criminal
CA-PP Plea and Plea Bargaining
CA-PB Probation
CA-PU Revocation of Probation
CA-WV Waiver
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