State v. Harris

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New Mexico Compilation

Commission, Santa Fe, NM

'00'05- 09:51:17 2013.03.08

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-031

Filing Date: January 16, 2013

Docket No. 30,512

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

RYAN HARRIS,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Reed S. Sheppard, District Judge

Gary K. King, Attorney General

Margaret McLean, Assistant Attorney General

Santa Fe, NM

for Appellant

Bennett J. Baur, Acting Chief Public Defender

Karl Erich Martell, Assistant Appellate Defender

Santa Fe, NM

for Appellee

OPINION

BUSTAMANTE, Judge.

{1} The joint and stipulated motion for publication filed by the State and Defendant is

granted. The Memorandum Opinion filed in this case on October 26, 2012, is withdrawn and

this Formal Opinion is substituted in its place.

{2} The State appeals the dismissal of a felon in possession charge against Defendant.

The district court dismissed the charge on the ground that Defendant’s conditional discharge

entered in 2006 had not been revoked, and therefore could not serve as the predicate felony

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for the current felon in possession charge. On appeal, the State argues that a conditional

discharge is a “conviction” for purposes of satisfying the definition of the felon in possession

statute. Alternatively, the State argues that the district court erred in dismissing the charge

because the conditional discharge order had been revoked. We affirm based on our case law

holding that a conditional discharge order is not a “conviction,” and the fact that the

conditional discharge order in this case was not revoked.

DISCUSSION

{3} The felon in possession statute defines a “felon” as “a person convicted of a felony

offense.” NMSA 1978, § 30-7-16(C)(2) (2001). Prior to 1993, when the conditional

discharge option was made available for first-time felons, Defendant’s guilty plea would

have been considered a conviction because a conviction was considered a “finding of guilt,

even before formal adjudication by the court, much less before sentencing.” State v.

Mondragon, 107 N.M. 421, 424, 759 P.2d 1003, 1006 (Ct. App. 1988). However, as

discussed in State v. Herbstman, 1999-NMCA-014, ¶ 20, 126 N.M. 683, 974 P.2d 177, the

1993 enactment of the conditional discharge statute carved out an exception to that general

rule such that a conditional discharge order could not serve as a “conviction” unless a

particular statute expressly so stated. Cf. NMSA 1978, § 31-18-17(A) (2003) (stating that

for habitual offender enhancement a conditional discharge is considered a prior felony

conviction). Subsequent case law has reaffirmed this principle. See, e.g., In re Treinen,

2006-NMSC-013, ¶ 4, 139 N.M. 318, 131 P.3d 1282; State v. Fairbanks, 2004-NMCA-005,

¶ 8, 134 N.M. 783, 82 P.3d 954.

{4} The State argues that either Defendant’s conditional discharge was revoked by

operation of law or the failure to order it revoked was a ministerial oversight. In this case,

a conditional discharge order was entered in October 2006. Consistent with NMSA 1978,

Section 31-20-13 (1994), the order was entered without an adjudication of guilt and with a

sentencing term of two years and six months. The plea and disposition agreement

acknowledged Defendant’s potential incarceration. In June 2007, Defendant’s probation was

revoked, and he was placed back on probation. In February 2008, Defendant’s probation

was revoked again, but this time the district court ordered that Defendant be incarcerated for

182 days. The district court’s order did not state that the conditional discharge was revoked;

to the contrary, the box for revoking conditional discharge was unchecked.

{5} The State argues that the failure to mark the box was a ministerial oversight. The

transcript of the sentencing hearing does not support the State’s contention. The parties

announced to the district court that they had reached an agreement on the

violation: Defendant would serve six months in jail. The court accepted this agreement

without any discussion concerning the revocation of the conditional discharge order. In light

of the complete absence of any discussion about exercising the court’s discretion to revoke

the conditional discharge, we reject the claim that the unchecked box was a ministerial

oversight.

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{6} The State also argues that the conditional discharge order was revoked by operation

of law. First, the State maintains that a conditional discharge is a form of a deferred sentence

and, once Defendant was incarcerated, the conditional discharge was revoked as a matter of

law. The Legislature enacted the conditional discharge statute as an alternative to a deferred

sentence, however, in that there is no adjudication of guilt unless the court exercises its

discretion to revoke the conditional discharge order under Section 31-20-13(B). See

Herbstman, 1999-NMCA-014, ¶ 20. To equate a conditional discharge with a deferred

sentence would render the statute meaningless, a point emphasized in Herbstman. Id.

{7} The State is correct that the conditional discharge statute contemplates that a

defendant will be subject to probation during his sentence. See § 31-20-13(A). However,

we are not limited to a consideration of Section 31-20-13(A). The statute provides the

district court with broad sentencing discretion upon a probation violation. See § 31-20-13(B)

(“If the person violates any of the conditions of probation, the court may enter an

adjudication of guilt and proceed as otherwise provided by law.”). It is a basic rule of

statutory construction that the use of the word “may,” as opposed to “shall,” confers

discretion with the court. See State v. Donahoo, 2006-NMCA-147, ¶ 7, 140 N.M. 788, 149

P.3d 104.

{8} In this case, the record indicates that the district court did not choose to enter an

adjudication of guilt. As we have stated, we are not inclined to speculate that this was an

oversight given the lack of any discussion on the matter at the sentencing hearing and the

absence of any indication to do so in the court’s order revoking probation. Cf. State v.

Lohberger, 2008-NMSC-033, ¶ 22, 144 N.M. 297, 187 P.3d 162 (noting that a lack of

certainty in court orders should not be at the expense of important rights). Oral comments

by a judge may be used to clarify a written ruling by the court, and in this case the judge’s

silence reaffirms the written order and its inaction on the revocation issue. See Ledbetter v.

Webb, 103 N.M. 597, 604, 711 P.2d 874, 881 (1985) (stating that a district court’s verbal

comments can be used to clarify written findings).

{9} The State refers us to Vives v. Verzino, 2009-NMCA-083, ¶ 15, 146 N.M. 673, 213

P.3d 823, where we examined a Florida sentencing procedure and concluded that it was not

analogous to a conditional discharge because the defendant had been sentenced to jail as part

of his punishment. We observed that under Section 31-20-13(A), a defendant is placed on

probation. Vives, 2009-NMCA-083, ¶ 15. In the current case, however, we are guided by

the language of Section 31-20-13(B), which gives a sentencing court broad discretion after

probation has been revoked. Defendant’s plea specifically authorized the district court to

impose a period of incarceration in the event of a probation violation. Therefore, even if

Section 30-20-13 does not itself contemplate incarceration, the district court, in its broad

sentencing discretion, could conclude that the conditional discharge would not be revoked,

but Defendant would nevertheless be punished according to the terms of the plea agreement

he had with the State, which permitted incarceration upon a probation violation. See State

v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994) (observing the sentencing court’s

broad discretion to apply the unique terms of a plea agreement, which may deviate from the

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statutory punishment that would otherwise occur). Finally, the State relies on State v.

Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33 (Ct. App. 1995), where the defendant had

included a conditional discharge as a prior felony in his plea agreement. Handa does not

support the State’s argument, because it is an “invit[ed] error” case. We held that the

defendant could not complain about the erroneous inclusion of the conditional discharge

because he himself had suggested it. Id.

{10} We acknowledge that Defendant did not successfully complete the term of his

probation. See Fairbanks, 2004-NMCA-005, ¶ 10 (noting that “the successful completion

of probation under the terms of a conditional discharge results in the eradication of the guilty

plea or verdict and there is no conviction”). However, Section 31-20-13(B) gives the district

court the discretion to revoke or not revoke the conditional discharge after a finding of non-

compliance. In the absence of any oral or written indication that the district court intended

to revoke the conditional discharge order, the record in this case supports the view that the

conditional discharge order was not revoked. Instead, the court crafted a punishment

permitted by the underlying plea agreement.

CONCLUSION

{11} For the reasons stated above, we affirm the district court’s dismissal of the felon in

possession charge.

{12} IT IS SO ORDERED.

____________________________________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________

MICHAEL E. VIGIL, Judge

____________________________________

LINDA M. VANZI, Judge

Topic Index for State v. Harris, No. 30,512

CRIMINAL LAW

Controlled Substances

CRIMINAL PROCEDURE

Conditional Discharge

Deferred Sentence

Probation

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STATUTES

Rule of Construction

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