The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: May 7, 2026
4 NO. S-1-SC-40308
5 STATE OF NEW MEXICO, 6 Plaintiff-Respondent, 7 v.
8 HEZEKIAH EAKER,
9 Defendant-Petitioner.
10 ORIGINAL PROCEEDING ON CERTIORARI 11 Angie K. Schneider, District Judge
12 Bennett J. Baur, Chief Public Defender 13 Kimberly M. Chavez Cook, Appellate Defender 14 Mark A. Peralta-Silva, Assistant Appellate Defender 15 Santa Fe, NM
16 for Petitioner 17 Raúl Torrez, Attorney General 18 Santa Fe, NM 19 Sarah M. Karni, Assistant Solicitor General 20 Albuquerque, NM 21 for Respondent 1 OPINION
2 VARGAS, Chief Justice.
3 {1} Defendant Hezekiah Eaker appeals from the district court’s denial of
4 presentence confinement credit in this Rule 12-501 NMRA habeas proceeding. We
5 reject Defendant’s challenge to our well-established test for calculating presentence
6 confinement credit pursuant to NMSA 1978, Section 31-20-12 (1967), in cases
7 where a defendant is serving a sentence in one case and seeks presentence
8 confinement credit in a second case. These are sometimes referred to as dual credit
9 cases. We clarify that in dual credit cases, the three factors to determine whether
10 presentence confinement credit is appropriate are: “(1) the defendant was not
11 confined in either case[,] (2) the charges in case two triggered and caused the
12 confinement in case one, and (3) the defendant was also confined [in] case two.”
13 State v. Herrera, 2024-NMCA-025, ¶ 23, 544 P.3d 260.
14 {2} In particular, we reject Defendant’s argument that we should jettison the final
15 factor of our three-factor test. Defendant relies on a Court of Appeals case, State v.
16 French, 2021-NMCA-052, 495 P.3d 1198, for his argument that the third factor is
17 unnecessary. The French presentence confinement analysis does not reflect our
18 precedent and is contrary to this opinion. Accordingly, we abrogate French to the
19 extent that it departs from the analysis herein. 1 {3} Defendant is not entitled to his desired presentence confinement credit under
2 our three-factor test. Instead, we hold that he is entitled to one day of credit for the
3 only day he was confined, in part, on the basis of this case (identified below as Case
4 Two).
5 {4} Defendant also raises an unpreserved argument. He contends that he was
6 illegally sentenced to a parole term of between five years and his natural life and to
7 a probation term of five to twenty years. He argues that his crime—sexual
8 exploitation of children, contrary to NMSA 1978, Section 30-6A-3(A) (2016)—
9 cannot support either sentence. We agree with Defendant that his probation and
10 parole sentences are illegal. The appropriate statutory parole term for Defendant’s
11 fourth-degree felony is one year, and the appropriate probation term is up to five
12 years.
13 {5} We remand for proceedings consistent with our holdings.
14 I. BACKGROUND
15 {6} Defendant was convicted of criminal sexual penetration and incest in 2012, a
16 third-degree felony (Case One). He was paroled in that case on December 2, 2016.
17 On March 28, 2019, parole officers discovered that, along with other parole
18 violations, Defendant possessed two cell phones containing child sexual abuse 1 material. 1 Defendant was taken into custody that day. On April 4, 2019, Defendant
2 was served notice of a parole revocation hearing and waived his right to a
3 preliminary hearing on the revocation. Defendant’s parole was revoked following a
4 hearing on May 9, 2019.
5 {7} While in custody on April 5, 2019, Defendant was charged with a new
6 crime—sexual exploitation of children, a fourth-degree felony—based at least in
7 part on the factual allegations resulting in his parole violation (Case Two). That same
8 day, the magistrate court released him in Case Two on an unsecured bond of $5,000.
9 Although he was released in Case Two, he remained incarcerated in Case One.
10 {8} Defendant pleaded guilty in Case Two on July 20, 2021, and received a
11 twelve-year sentence with five years suspended. The district court did not award any
12 presentence confinement credit. Defendant received an indeterminate parole
13 sentence of not less than five years and up to his natural life, and he received an
14 indeterminate probation sentence of five to twenty years.
1 While the term child pornography is often used to describe “visual depiction of sexually explicit conduct involving a person less than 18 years old,” the term we use here, child sexual abuse material (CSAM), “better reflects the abuse that is depicted in the images and videos and the resulting trauma to the child.” U.S. Dep’t of Just., National Strategy for Child Exploitation Prevention & Interdiction: A Report to Congress 2 n.5 (2023), https://www.justice.gov/d9/2023- 06/2023_national_strategy_for_child_exploitation_prevention_interdiction_- _a_report_to_congress.pdf [https://perma.cc/9M6U-ZJ3P]. 1 {9} On November 22, 2021, Defendant filed a motion to correct his sentence.
2 Defendant asserted he was entitled to presentence confinement credit in Case Two
3 “for time he spent incarcerated on his [Case One] parole violation” because it was
4 “predicated, at least in main part, on the same facts” as those underlying Case Two.
5 The district court denied the motion.
6 {10} Defendant appealed the denial of presentence confinement credit to the Court
7 of Appeals. The Court of Appeals requested transfer to this Court. We ordered
8 transfer because we agreed with the Court of Appeals that Defendant’s motion to
9 correct his sentence—filed approximately four months after he was sentenced—was
10 untimely and therefore properly construed as a petition for a writ of habeas corpus.
11 See NMSA 1978, § 39-1-1 (1917) (providing that final judgments remain under the
12 control of the district court for thirty days after entry of the judgment); Rule 5-802
13 NMRA comm. cmt. (stating that Rule 5-802, which governs the filing of a writ of
14 habeas corpus in the district court, “is designed to address petitions filed after the
15 entry of a final judgment and all direct appeals, however styled, in a criminal case”
16 (emphasis added)); Rule 5-802(N)(2) (providing this Court with exclusive
17 jurisdiction to review a district court denial of a petition for a writ of habeas corpus).
18 {11} We further ordered that the brief in chief filed in the Court of Appeals be
19 construed as a petition for writ of certiorari to review the district court’s denial of a 1 habeas petition, the answer brief as a response to that petition, and the reply brief as
2 a reply to that response. We additionally ordered supplemental briefing, instructing
3 the parties to address whether Defendant’s “release in Case Two while he remained
4 confined in . . . [Case One was] sufficient to deny him an award of presentence
5 confinement credit” and “[w]hat role, if any, . . . New Mexico’s revamped pretrial
6 release and detention rules play in resolving” the prior question. 2
7 II. DISCUSSION
8 {12} Defendant raises two arguments. First, he argues that he is entitled to
9 presentence confinement credit in Case Two under Section 31-20-12 for the period
10 of time “he was confined during the pendency of [Case Two] . . . because he was
11 confined as a result of the conduct which led to this [sic] charges in th[at] case.”
12 Second, he argues that the crime to which he pleaded guilty—sexual exploitation of
13 children in the fourth degree—cannot support the indeterminate sex offender parole
14 and probation terms imposed by the district court. We address these arguments in
15 turn.
We agree with the parties that the revamped pretrial release and detention 2
rules, which effectuate the 2016 amendment to Article II, Section 13 of the New Mexico Constitution, have no direct bearing on the outcome of this case. See 2016 N.M. Laws, Constitutional Amendment 1; see also, e.g., Rule 5-401 NMRA. Accordingly, we discuss this issue no further. 1 A. Standard of Review
2 {13} Defendant’s appeal requires statutory interpretation, which we review de
3 novo. State v. Tafoya, 2010-NMSC-019, ¶ 9, 148 N.M. 391, 237 P.3d 693. “We
4 begin with the plain language of the . . . statute, and when it is clear and
5 unambiguous, we must give effect to that language and refrain from further statutory
6 interpretation.” Amdor v. Grisham, 2025-NMSC-024, ¶ 29, 578 P.3d 971 (internal
7 quotation marks and citation omitted).
8 B. Presentence Confinement Credit
9 {14} Section 31-20-12 governs presentence confinement credit. It states, “A person
10 held in official confinement on suspicion or charges of the commission of a felony
11 shall, upon conviction of that or a lesser included offense, be given credit for the
12 period spent in presentence confinement against any sentence finally imposed for
13 that offense.” Id.
14 {15} Under limited circumstances, a defendant may receive credit against a
15 sentence in one case and credit for presentence confinement credit in another case;
16 that is, dual credit. Herrera, 2024-NMCA-025, ¶ 22. Under this scenario, dual credit
17 is required where “there is a sufficient connection between case two and the
18 confinement at issue.” Id. ¶ 23 (citing State v. Facteau, 1990-NMSC-040, ¶ 5, 109
19 N.M. 748, 790 P.2d 1029). To determine whether the connection is sufficient to 1 entitle a defendant to dual credit, our courts apply a well-established three-part test.
2 Id.; see also Facteau, 1990-NMSC-040, ¶ 7 (discussing and applying the three-factor
3 dual credit test); State v. Ramzy, 1982-NMCA-113, ¶ 11, 98 N.M. 436, 649 P.2d 504
4 (applying the three-factor test). The three factors are: “(1) the defendant was not
5 confined in either case[,] (2) the charges in case two triggered and caused the
6 confinement in case one, and (3) the defendant was also confined [in] case two.”3
7 Herrera, 2024-NMCA-025, ¶ 23.
8 {16} We note that our courts have sometimes stated the third factor differently,
9 usually examining whether bond was set. See, e.g., State v. Romero, 2002-NMCA-
10 106, ¶ 11, 132 N.M. 745, 55 P.3d 441 (formulating the third factor as “whether bond
11 was set in the case related to the sentence”). For two reasons, we conclude that the
12 appropriate formulation of the third factor in this case is as we state above in
13 Herrera. First, this formulation more directly states the relevant inquiry, which is
3 There are rare instance where confinement is at issue in more than two cases. See, e.g., State v. Miranda, 1989-NMCA-068, ¶¶ 2-4, 108 N.M. 789, 779 P.2d 976 (adjudicating presentence confinement where three cases were at issue). In such cases, the third factor may be modified accordingly: that is, in a case with three cases at issue, the third factor might be formulated as, “the defendant was also confined in case three”; or, more generally as, “the defendant was also confined in the case for which the defendant seeks presentence confinement credit.” The first factor may also be modified as necessary in such cases: for example, “the defendant was not incarcerated in any case at issue.” 1 whether case two led to a defendant’s presentence confinement. Second, since the
2 2016 amendment to Article II, Section 13 of the New Mexico Constitution, whether
3 a defendant is confined pretrial is generally a matter of whether “no release
4 conditions will reasonably protect the safety of any other person or the community”;
5 as such, bond is no longer central to our pretrial release framework and is not a factor
6 in this case. Accordingly, we instruct that the third factor is whether the defendant
7 was also confined in case two.
8 {17} Defendant requests that we eliminate the third factor altogether. We decline
9 that invitation. Defendant grounds his position in French, 2021-NMCA-052. French
10 awarded presentence confinement credit even though the defendant was not held in
11 whole or in part on the basis of the case for which he sought credit. See id. ¶ 5 (stating
12 that the defendant was confined on a probation violation but released in the case for
13 which he sought presentence confinement credit); id. ¶ 13 (concluding, nevertheless,
14 to award presentence confinement credit for the case in which he was released).
15 Relying on French, Defendant argues that his nominal release in Case Two—that is,
16 the fact that he was released in Case Two on the very day he was charged—does not
17 prevent this Court from providing the 881 days of presentence confinement credit
18 he seeks. But the French Court did not explicitly analyze whether the defendant was
19 incarcerated in the case for which he sought credit. See id. ¶ 13 & n.3. Put another 1 way, French misapplied the third factor of our test. 4 Id. (stating that the defendant
2 met all three factors of the test even though the defendant was held only on a
3 probation violation in another case). Indeed, Defendant recognizes that “the French
4 Court did not analyze the third prong or reference the district court’s order releasing
5 the defendant.” Because the French Court’s interpretation of Section 31-20-12 is
6 incongruent with our precedent until now and with this opinion, we hereby abrogate
7 French to the extent that it departs from the analysis herein and, relatedly, reject
8 Defendant’s argument relying on that case.
9 {18} Also unpersuasive are Defendant’s arguments that absurdity and
10 “gamesmanship” may result from the third factor of our test for presentence
11 confinement. Defendant warns of absurdity because defendants who commit serious
12 new crimes are more likely to be held in custody for that crime—and receive
13 presentence confinement credit—than defendants who commit minor new crimes.
14 Even if we accept Defendant’s premise, we reject Defendant’s argument that this is
4 The three-judge Court of Appeals panel expressed the same view in transferring the matter to this Court. See Order Transferring to the New Mexico Supreme Court, State v. Eaker, A-1-CA-40709, at 3 n.1 (N.M. Ct. App. Mar. 1, 2024) (“French, in its application of the three-part test, appears to have diverged from . . . precedent with respect to the third factor—concluding that Mr. French was entitled to presentence confinement credit in case two, even though he was not confined in that case.”). 1 absurd or militates against retaining the third factor. Section 31-20-12 does not
2 establish any relationship between the seriousness of the new crime and earning
3 presentence confinement credit, and we perceive no such relationship. The statute
4 does, however, establish a relationship between the confinement for which a
5 defendant seeks presentence confinement credit and the conviction against which
6 credit is sought. See § 31-20-12 (stating that “[a] person held . . . on suspicion or
7 charges of . . . a felony” must be granted presentence confinement credit “against
8 any sentence finally imposed for that offense” (emphases added)); State v. Miranda,
9 1989-NMCA-068, ¶ 21, 108 N.M. 789, 779 P.2d 976 (“The determinative issue for
10 presentence confinement credit is whether the basis for the confinement was actually
11 related to the charge upon which the final conviction and sentence are based.”).
12 {19} Defendant’s “gamesmanship” argument is similarly unavailing. Defendant
13 argues that the district court might nominally release a defendant in a case two who
14 is confined in a case one, with the specific intent to deny that defendant presentence
15 confinement. Defendant also contends that the state might not pursue pretrial
16 detention of a dangerous but otherwise confined defendant in order to deny that
17 defendant presentence confinement credit. Defendant offers no reason that he
18 believes such “gamesmanship” will occur. We find these scenarios highly
19 speculative, and we perceive no good reason that a judge or the state would follow 1 such an approach. We are unpersuaded to abandon our established test for this
2 reason.
3 C. Defendant Is Entitled to One Day of Presentence Confinement Credit in 4 Case Two
5 {20} We turn now to the question of how much presentence confinement credit
6 Defendant is due under the correct, three-factor analysis. At issue is the third
7 factor—whether Defendant was confined in Case Two.5 Defendant concedes that he
8 was not confined in Case Two and that he would have been released into the
9 community but for the Case One parole violation. The State argues that Defendant’s
10 case does not satisfy the third factor and the district court’s denial of any presentence
11 confinement credit should therefore be affirmed.
12 {21} We agree with the parties that the district court released Defendant in Case
13 Two. However, we note that Defendant was released on the Case Two docket later
14 in the day that he was charged. Because he was in part confined as a result of Case
5 Because the “State agrees with Defendant that it is the third prong that is at issue,” we assume without deciding that the other two factors were met in ultimately granting one day of confinement credit. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (refusing to develop arguments for the parties because “effectively performing the parties’ work for them . . . creates a strain on judicial resources and a substantial risk of error[, and i]t is of no benefit either to the parties or to future litigants for this Court to promulgate case law based on our own speculation” (citation omitted)). 1 Two for a portion of one day, he is entitled to one day of presentence confinement
2 credit. See Miranda, 1989-NMCA-068, ¶¶ 7-8 (stating that one day of presentence
3 confinement credit is “granted for every twenty-four hours [of confinement], or
4 fraction thereof,” and that to receive presentence confinement credit in a dual credit
5 case, the confinement need not “be related exclusively to the charges in question”).
6 We remand to the district court to effectuate this holding.
7 D. Defendant’s Parole and Probation Sentences
8 {22} Defendant argues that his indeterminate sex offender parole sentence of “[n]ot
9 less than [five] years and up to [his] natural life” is illegal. He also argues that his
10 probation sentence of five to twenty years is illegal. These issues are not preserved,
11 but preservation is not necessary to challenge an illegal sentence. See State v.
12 Trujillo, 2007-NMSC-017, ¶ 8, 141 N.M. 451, 157 P.3d 16 (“Because a trial court
13 does not have subject-matter jurisdiction to impose a sentence that is illegal, the
14 legality of a sentence need not be raised in the trial court.”).
15 {23} The statute which governs parole for sex offenders, NMSA 1978, § 31-21-
16 10.1 (2007), provides for a parole term of not less than five years and up to the
17 natural life of sex offenders convicted of certain crimes enumerated in Section 31-
18 21-10.1(A)(2). Defendant’s crime, sexual exploitation of children in the fourth
19 degree, is not one of the enumerated crimes. See id. (providing for a parole term of 1 “not less than five years and up to the natural life of . . . sex offender[s convicted] of
2 aggravated criminal sexual penetration, criminal sexual penetration in the first or
3 second degree, criminal sexual contact of a minor in the second or third degree or
4 sexual exploitation of children by prostitution in the first or second degree”). The
5 State concedes that Defendant’s parole sentence is contrary to law. We agree with
6 the parties and therefore hold that Defendant’s parole sentence is illegal.
7 {24} Similarly, Defendant’s probation term is illegal. Certain enumerated crimes
8 are designated sex offenses and are therefore subject to the five- to twenty-year term
9 of probation that Defendant received. See NMSA 1978, § 31-20-5.2(A) (2003)
10 (providing for an indeterminate five- to twenty-year term of probation for sex
11 offenses enumerated in Section 31-20-5.2(F)). But Defendant’s crime is not one of
12 them. See § 31-20-5.2(F) (noting the absence of sexual exploitation of children in
13 the fourth degree). The State is silent on this point. We agree with Defendant and
14 hold that his probation sentence is illegal.
15 {25} Defendant was convicted of a fourth-degree felony for sexual exploitation of
16 children. Defendant’s crime is subject to a parole sentence of one year and a
17 probation sentence of up to five years. See NMSA 1978, § 31-21-10(D) (2009,
18 amended 2025) (providing for a one-year parole term for fourth-degree felonies);
19 NMSA 1978, § 31-20-5(A) (2003, amended 2025) (providing for a probation term 1 of up to five years for all offenses except sex offenses as defined in Section 31-20-
2 5.2). We remand to the district court for resentencing of Defendant in accordance
3 with this opinion.
4 III. CONCLUSION
5 {26} For the reasons stated, we hold that Defendant is entitled to one day of
6 presentence confinement credit. We further hold that Defendant’s probation and
7 parole sentences are illegal. His conviction for sexual exploitation of children in the
8 fourth degree is subject to a parole term of one year and a probation term of up to
9 five years. We remand to the district court for proceedings in accordance with our
10 holdings.
11 {27} IT IS SO ORDERED.
12 13 JULIE J. VARGAS, Chief Justice 1 WE CONCUR:
2 3 MICHAEL E. VIGIL, Justice
4 5 C. SHANNON BACON, Justice
6 7 DAVID K. THOMSON, Justice
8 9 BRIANA H. ZAMORA, Justice