State v. Frederickson

• Court: New Mexico Court of Appeals
• Decided: November 1, 2016
• Docket: 35,727
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 35,727

5 DONOVAN FREDERICKSON,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Angela J. Jewell, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 VANZI, Judge.

18 {1} Defendant appeals from the district court’s second order revoking his probation 1 and committing him to the Department of Corrections. This Court issued a notice of

2 proposed disposition in which we proposed to affirm. Defendant has filed a

3 memorandum in opposition, which we have duly considered. Unpersuaded, we affirm.

4 {2} Defendant asserts that the district court abused its discretion in revoking his

5 probation where insufficient evidence existed to support a violation. State v. Martinez,

6 1989-NMCA-036, ¶ 5, 108 N.M. 604, 775 P.2d 1321 (“We review the trial court’s

7 decision to revoke probation under an abuse of discretion standard.”). In this Court’s

8 calendar notice, we proposed to conclude that there was sufficient evidence to

9 establish to a reasonable certainty that Defendant violated his probation by violating

10 state law by failing to maintain a traffic lane and driving without a valid driver’s

11 license and by failing to seek, obtain, and maintain employment. [CN 3-4]

12 {3} In response to this Court’s notice of proposed disposition, Defendant continues

13 to assert that the State failed to establish Defendant’s violations to a reasonable

14 certainty. [MIO 1, 4] With respect to the driving without a valid driver’s license

15 charge, Defendant contends that his “inability to show his license to the officer cannot

16 be equated with not having a valid driver’s license.” [MIO 5] Further, Defendant

17 argues that “the State produced no testimony that [Defendant] did not actually have

18 a valid driver’s license” and, therefore, he was not shown to be non-compliant with

19 his probation. [MIO 5] Notably, this argument disregards New Mexico State Police

20 Lieutenant Henderson’s testimony that he pulled Defendant over on March 16, 2016,

2 1 for crossing the lane line several times and that Defendant was unable to produce a

2 valid driver’s license at that time. [CN 3] The plain language of NMSA 1978, Section

3 66-5-2(C) (2013), is clear in that a “person charged with violating the provisions of

4 this section shall not be convicted if the person produces, in court, a driver’s license

5 issued to the person that was valid at the time of the person’s arrest.” Here, there is

6 nothing in the record, the docketing statement, or the memorandum in opposition to

7 indicate that Defendant produced a valid driver’s license during his probation

8 revocation hearing. Consequently, we are not convinced by Defendant’s argument,

9 and we conclude that the State introduced proof—through Lieutenant Henderson’s

10 testimony—that would incline “a reasonable and impartial mind to the belief that a

11 defendant has violated the terms of probation.” Martinez, 1989-NMCA-036, ¶ 4.

12 {4} Defendant next appears to argue in his memorandum in opposition that even if

13 a violation was proven, the State did not demonstrate that his violation was willful.

14 [MIO 5-6] Specifically, Defendant asserts that “if violation of probation is not willful

15 . . . probation may not be revoked.” [MIO 4 (quoting In re Bruno R., 2003-NMCA-

16 057, ¶ 13, 133 N.M. 566, 66 P.3d 339)] We acknowledge that willful conduct is a

17 requisite. However, as we have previously stated, “[o]nce the [S]tate offers proof of

18 a breach of a material condition of probation, [D]efendant must come forward with

19 evidence [to show that his non-compliance] was not willful.” State v. Parsons, 1986-

20 NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99; see also Martinez, 1989-NMCA-036,

3 1 ¶ 8 (explaining that probation should not be revoked where the violation is not willful,

2 in that it resulted from factors beyond a probationer’s control).“[I]f [D]efendant fails

3 to carry his burden, then the trial court is within its discretion in revoking

4 [Defendant’s probation].” Martinez, 1989-NMCA-036, ¶ 8. In the present case, there

5 is no indication that Defendant came forward with evidence to show that his non-

6 compliance—driving without a valid driver’s license—was somehow not willful.

7 Therefore, we conclude that Defendant did not carry his burden, and the district court

8 was within its discretion in revoking his probation.

9 {5} Thus, for the reasons stated above and in this Court’s notice of proposed

10 disposition, we conclude that there was sufficient evidence to support the district

11 court’s determination that Defendant violated his probation agreement. Given that, as

12 Defendant acknowledges [MIO 6], this Court may affirm the revocation if there is

13 sufficient evidence supporting just one violation, see State v. Leon, 2013-NMCA-011,

14 ¶ 37, 292 P.3d 493, we do not address Defendant’s violations of his probation for

15 failing to maintain a traffic lane and for failing to seek, obtain, and maintain

16 employment. Accordingly, we affirm the revocation of Defendant’s probation.

17 {6} IT IS SO ORDERED.

18 __________________________________ 19 LINDA M. VANZI, Judge

4 1 WE CONCUR:

2 _________________________________ 3 JAMES J. WECHSLER, Judge

4 _________________________________ 5 STEPHEN G. FRENCH, Judge