1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,067
10 LUCIANO TORRES,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth H. Martinez, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 James W. Grayson, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender
20 Allison H. Jaramillo, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 GARCIA, Judge.
1 Defendant appeals from the district court’s revocation of his probation.
2 Defendant raises several issues on appeal: (1) the district court did not have
3 jurisdiction to hear the State’s allegation that Defendant had violated his probation
4 because the hearing was held after Defendant completed his probationary term; (2) the
5 district court erred in concluding that he was a fugitive during his probationary period;
6 (3) his due process right was violated when the court heard evidence relating to
7 allegations not contained in the violation reports and then determined he had violated
8 his probation based on that evidence; and (4) his due process and confrontation rights
9 were violated when the court allowed the State to call a witness not disclosed on the
10 State’s witness list and when the court allowed her to testify to hearsay. The
11 dispositive issue is whether the State presented substantial evidence to prove that
12 Defendant was a fugitive. We conclude that the State failed to present such evidence,
13 and consequently, the district court erred in determining Defendant was a fugitive, in
14 revoking his conditional discharge, and in issuing an unsatisfactory discharge from
15 probation. We reverse and remand.
16 BACKGROUND
17 On April 17, 2006, Defendant pled guilty to one count of contributing to the
18 delinquency of a minor. The court entered an order of conditional discharge and
19 placed Defendant on probation for a period of one year, five months, and twenty-nine
2
1 days. As part of his probation, Defendant had to submit to drug tests. In August
2 2007, Defendant submitted a urine sample. Defendant’s probation officer believed
3 the sample had been tampered with, and he asked Defendant to repeat the test. Upon
4 the request, Defendant ran out of the probation office.
5 The day after this incident, Defendant’s probation officer went to Defendant’s
6 father’s house, which Defendant had listed as his residence. When the probation
7 officer arrived at the residence, Defendant’s father told the officer that Defendant was
8 not there. The officer asked Defendant’s father to tell Defendant that he had twenty-
9 four hours to report to her or there would be a bench warrant issued for his arrest. The
10 probation officer did not hear from Defendant, and a bench warrant for Defendant was
11 issued on September 6, 2007. Shortly thereafter, the State filed a motion to revoke
12 Defendant’s probation. The probation officer made no effort to serve the warrant.
13 Additionally, the warrant was never entered into the NCIC database.
14 On July 21, 2008, over two years after Defendant’s original probationary
15 sentence, Defendant was arrested on other charges. A hearing was held on September
16 17, 2008 on the State’s motion to revoke probation. The State asked the district court
17 to revoke Defendant’s conditional discharge, sentence him to serve the remainder of
18 his original eighteen month sentence, and give him an unsatisfactory discharge from
19 probation. At the hearing, Defendant argued that he had served all of his time on
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1 probation and that the court no longer had jurisdiction to hear the matter. He further
2 argued that the State had not proven that Defendant was a fugitive because no attempt
3 was made to serve him with the warrant. Therefore, he asserted that the facts in this
4 case were insufficient for the district court to find that he was a fugitive and add
5 additional time to his sentence. The district court found that it had jurisdiction. The
6 court also found that Defendant violated the terms and conditions of his probation and
7 had absconded. The court ordered Defendant into custody for fifty-four days, revoked
8 Defendant’s conditional discharge, and issued an unsatisfactory discharge from
9 probation. This appeal followed.
10 ANALYSIS
11 Mootness
12 We begin by addressing the State’s argument that Defendant’s appeal is moot.
13 “Generally, appellate courts do not decide moot cases.” State v. Jose S., 2007-
14 NMCA-146, ¶ 23, 142 N.M. 829, 171 P.3d 768. “An appeal is moot when no actual
15 controversy exists, and an appellate ruling will not grant the appellant any actual
16 relief.” State v. Sergio B., 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764. The
17 State contends that there is no actual controversy because Defendant’s “claims are
18 limited to the revocation of probation and [Defendant] has completed the sentence for
19 violating his probation.” We disagree.
4
1 Defendant’s appeal involves not only the revocation of his probation but also
2 the revocation of his conditional discharge. Subsequent to Defendant’s guilty plea,
3 the district court entered an order of conditional discharge and placed Defendant on
4 eighteen months of probation. See NMSA 1978, § 31-20-13(A) (1994). The order
5 stated that there would be no adjudication of guilt and that further proceedings were
6 deferred. The district court later found that Defendant had violated his probation and
7 revoked Defendant’s conditional discharge. Defendant was also sentenced to
8 additional time in custody and received an unsatisfactory discharge from probation.
9 Under a conditional discharge, there is no adjudication of guilt. Once
10 Defendant’s conditional discharge was revoked, he became subject to all of the
11 collateral consequences associated with a felony conviction. See § 31-20-13(B);
12 Sergio B., 2002-NMCA-070, ¶ 10. Since Defendant can still receive his conditional
13 discharge if the district court erred, Defendant’s appeal is not moot.
14 Defendant’s Arguments
15 First, we must consider whether the State presented sufficient evidence to prove
16 that Defendant was a fugitive during his probationary period. The district court found
17 that Defendant was an absconder and refused to credit him for time served while on
18 probation. We review the district court’s finding under NMSA 1978, Section 31-21-
19 15(C) (1989) for substantial evidence. See State v. Apache, 104 N.M. 290, 292, 720
5
1 P.2d 709, 711 (Ct. App. 1986); see also State v. Jimenez, 2004-NMSC-012, ¶ 14, 135
2 N.M. 442, 90 P.3d 461 (“On appeal, the district court’s decision regarding whether
3 the defendant is entitled to credit or is instead a fugitive will be affirmed only if the
4 decision is supported by substantial evidence.”). Under this review, “all disputed facts
5 are resolved in favor of the decision below, all reasonable inferences are indulged in
6 support of that decision, and all inferences to the contrary are disregarded.” Apache,
7 104 N.M. at 292, 720 P.2d at 711.
8 Preliminarily, Defendant argues that because the probation revocation hearing
9 was held after Defendant’s probationary period had expired, the district court no
10 longer had jurisdiction to consider the matter. Defendant is correct that “[a]s a general
11 matter, . . . a court has no jurisdiction to revoke probation after the probationary term
12 has been served.” State v. Neal, 2007-NMCA-086, ¶ 17, 142 N.M. 487, 167 P.3d 935.
13 However, there is an exception for defendants who have been fugitives during the
14 probationary period because the probationary period tolls while a defendant is in
15 fugitive status. See Apache, 104 N.M. at 291-92, 720 P.2d at 710-11 (holding that
16 “the judicial determination of fugitive status shall be made only after the probationer
17 has been found and brought before the court, regardless of whether this occurs before
18 or after the date on which probation was originally to have expired”). It would be
19 contrary to the legislative intent of Section 31-21-15(C) and a violation of due process
6
1 to require the state to hold a probation revocation hearing and determine fugitive
2 status while a defendant is not present. Apache, 104 N.M. at 292, 720 P.2d at 711.
3 Pursuant to Apache, the district court maintained jurisdiction over Defendant to
4 determine whether he was a fugitive during a portion of his probation. See id.
5 Accordingly, the district court properly conducted the probation revocation hearing
6 where Defendant’s original probationary period would have ended unless tolling was
7 found to apply by the court.
8 We now consider the merits of Defendant’s argument that the district court
9 erred in determining that he was a fugitive and revoking his probation. A defendant
10 “is entitled to credit for all the time served on probation unless the [district] court
11 determined that [the defendant] was a fugitive” while on probation. State v. Thomas,
12 113 N.M. 298, 300, 825 P.2d 231, 233 (Ct. App. 1991), overruled on other grounds
13 by Jimenez, 2004-NMSC-012, ¶ 11; see § 31-21-15(B), (C); Jimenez, 2004-NMSC-
14 012, ¶ 8; Neal, 2007-NMCA-086, ¶ 30. “The state has the burden of proving that a
15 defendant is a fugitive within the meaning of the statute.” Thomas, 113 N.M. at 300,
16 825 P.2d at 233. Under Section 31-21-15(C), a defendant is a fugitive if a bench
17 warrant cannot be served. To prove that a defendant is a fugitive, the state is required
18 to show “either (1) it unsuccessfully attempted to serve the warrant on the defendant
19 or (2) any attempt to serve the defendant would have been futile.” Jimenez, 2004-
7
1 NMSC-012, ¶ 8. “Our cases have made it clear that the state must ordinarily prove
2 that it issued a warrant for the [defendant’s] arrest and entered it in the National Crime
3 Information Center (NCIC) database in order to support a finding of fugitive status.”
4 Neal, 2007-NMCA-086, ¶ 31.
5 In Neal, the state failed to prove that the defendant was a fugitive when the state
6 obtained the bench warrant, and entered it into the NCIC database, but the state never
7 attempted to serve the defendant with the warrant or prove that his location was
8 unknown. Id. ¶¶ 32-34. In Jimenez, the defendant was not a fugitive when the state
9 obtained a bench warrant but failed to attempt to serve the warrant or enter it into the
10 NCIC database. 2004-NMSC-012, ¶¶ 3, 15. In Thomas, the state presented
11 insufficient evidence to prove the defendant was a fugitive where there was no
12 evidence that the warrant was entered into the NCIC database or that an effort was
13 made to locate and serve the defendant. 113 N.M. at 302, 825 P.2d at 235.
14 The present case is similar to Neal, Jimenez, and Thomas. After the issuance
15 of the warrant, no efforts were made to locate Defendant or to serve him with the
16 warrant. The State did not enter the warrant in the NCIC database. See Jimenez,
17 2004-NMSC-012, ¶ 15 (noting that the state’s failure to enter the warrant into the
18 NCIC database “weigh[ed] heavily against a finding that the [s]tate acted with due
19 diligence” in attempting to serve a warrant to a defendant on probation). The district
8
1 court erred in finding that it would have been futile to attempt to serve Defendant and
2 that he was a fugitive because the State failed to enter the warrant into the NCIC
3 database and failed to make any effort to locate Defendant once the warrant was
4 issued. Defendant’s probation officer’s single conversation with Defendant’s father
5 before the warrant was issued is insufficient to show reasonable efforts on the part of
6 the State to locate Defendant and issue the warrant. Consequently, Defendant could
7 not be found to be a fugitive when no effort had been made to locate him after the
8 warrant has been issued. The district court erred in determining that Defendant was
9 a fugitive and in ruling on the State’s motion to revoke probation that was premised
10 upon the tolling of Defendant’s probationary period.
11 The State contends that the evidence presented was sufficient to prove that any
12 attempt to serve the warrant on Defendant would have been futile and attempts to
13 analogize this case to the facts in Apache, 104 N.M. 290, 720 P.2d 709. We are not
14 persuaded. In Apache the state made efforts to locate the defendant. Id. at 291, 720
15 P.2d at 710. Prior to the issuance of the bench warrant, the probation officer
16 attempted to locate the defendant at the defendant’s sister’s house where the defendant
17 said he was staying and at a hotel, which the officer believed was the defendant’s last
18 known residence. Id. After the warrant was issued, the warrant officer followed
19 standard procedures by sending two bulletins six months apart to the defendant’s most
9
1 recent address on file with the department, and he listed the warrant with the NCIC
2 database. Id. The efforts in Apache, unlike in this case, demonstrated that the state
3 had attempted to serve the warrant on the defendant.
4 Additionally, the State argues that if Defendant is correct in his assertion that
5 his fugitive status was not proven at the hearing then the proper remedy is to remand
6 the case to the district court to determine the proper credit to be given against the
7 sentence. We disagree. The facts are undisputed that Defendant’s probationary
8 period was scheduled to end well before he was brought before the district court on
9 July 21, 2008. A tolling of the probationary period was the stated basis for retaining
10 jurisdiction to revoke probation. Thus, a recalculation of Defendant’s proper credit
11 for time served on his original probation is unnecessary. Once the State failed to
12 prove that Defendant had been a fugitive during the final portion of his probation, it
13 effectively conceded that jurisdiction to revoke probation was lost. Therefore, the
14 district court no longer had jurisdiction over Defendant. See Neal, 2007-NMCA-086,
15 ¶ 17; State v. Lara, 2000-NMCA-073, ¶ 12, 129 N.M. 391, 9 P.3d 74 (“[T]he [district]
16 court is without jurisdiction to enter an order of unsatisfactory completion after the
17 probation period ends.”). We reverse and remand the case to the district court to
18 reinstate Defendant’s conditional discharge and to issue a certificate of satisfactory
19 completion of probation. Since we are reversing on this issue, Defendant’s other
10
1 arguments are now moot, and we decline to address them.
2 CONCLUSION
3 The State failed to prove that Defendant was a fugitive during his probationary
4 period. Since the State failed to meet its burden and Defendant’s probation period had
5 ended prior to the probation revocation hearing, the district court no longer had
6 jurisdiction to determine that Defendant violated his probation. The district court
7 erred when it granted the motion to revoke probation after the probationary period
8 expired. We therefore remand to the district court to reinstate Defendant’s conditional
9 discharge and to issue a certification of satisfactory completion of probation.
10 IT IS SO ORDERED.
11 ______________________________
12 TIMOTHY L. GARCIA, Judge
13 WE CONCUR:
14 _________________________________
15 CYNTHIA A. FRY, Chief Judge
16 _________________________________
17 JAMES J. WECHSLER, Judge
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