State v. McGee

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-37222 5 VERNON MCGEE, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Angie K. Schneider, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Gregory B. Dawkins, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 18 {1} Defendant, Vernon McGee, appeals the district court’s order revoking his 19 probation. We issued a notice of proposed summary disposition proposing to affirm, 20 and Defendant has responded with a timely memorandum in opposition and a motion

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1 to amend the docketing statement. See State v. Rael, 1983-NMCA-081, ¶ 8, 100 N.M. 2 193, 668 P.2d 309 (stating that a motion to amend is timely when filed prior to the 3 expiration of the time for filing a memorandum in opposition). We have considered 4 Defendant’s arguments and remain unpersuaded that our initial proposed disposition 5 was incorrect. We therefore affirm. 6 {2} We have already outlined the procedural and factual background in our notice 7 of proposed summary disposition. Therefore, in order to avoid unnecessary repetition, 8 we will focus instead on the contents of Defendant’s memorandum in opposition, 9 discussing only such facts as are relevant to his arguments. 10 {3} We begin with Defendant’s motion to amend the docketing statement in which 11 he argues that the district court could not revoke his probation for failing to turn 12 himself in as ordered to the Otero County Detention Center (OCDC) to begin his term 13 of imprisonment because turning himself in was not a condition of his probation. 14 [MIO 3-6] We disagree. The judgment and sentence entered by the district court 15 imposing sentence and ordering the term of probation contains a section entitled 16 “Probation Conditions” in which it states that in addition to all standard conditions of 17 probation certain specific additional terms of probation are imposed. Under this 18 section it is specifically ordered that Defendant shall report to the OCDC on 19 September 25, 2017 at 8:00 am to begin his jail term. [RP 56]

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1 {4} Defendant states in his motion to amend the docketing statement that it is clear 2 from the judgment and sentence that the order to report was separate and apart from 3 the terms and conditions of probation. [MIO 5] However, the portion of the record 4 proper cited by Defendant in support of this assertion does not reference the judgment 5 and sentence. [RP 72; MIO 5] Additionally, as described, the language ordering 6 Defendant to report to the OCDC is contained in a section of the judgment and 7 sentence describing the terms and conditions of probation and is not separate and 8 apart. Further, Defendant does not indicate where in the record this issue was raised 9 before the district court. See Rule 12-208(D)(4) NMRA (requiring a docketing 10 statement to contain “a statement of how [the issues] arose and how they were 11 preserved in the trial court”). Moreover, “[t]he suspension or deferment of a sentence 12 is not a matter of right, but a decision reserved to the sound discretion of the 13 sentencing court.” State v. Padilla, 1987-NMCA-116, ¶ 7, 106 N.M. 420, 744 P.2d 14 548. And we long have held that “[t]he sentencing court retains jurisdiction to revoke 15 a suspended sentence for good cause shown at any time subsequent to the entry of 16 judgment and prior to the expiration of the sentence.” Id. Accordingly, we do not 17 believe that Defendant has shown that this issue is viable, and we therefore deny the 18 motion to amend the docketing statement. See State v. Sommer, 1994-NMCA-070, ¶ 19 11, 118 N.M. 58, 878 P.2d 1007 (denying a motion to amend the docketing statement

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1 based upon a determination that the argument sought to be raised was not viable). 2 3 {5} Defendant next continues his argument that the evidence was insufficient to 4 establish that he violated his probation. [MIO 5-9 ] We review the district court’s 5 decision to revoke probation under an abuse of discretion standard. State v. Leon, 6 2013-NMCA-011, ¶ 36, 292 P.3d 493. “In a probation revocation proceeding, the 7 State bears the burden of establishing a probation violation with a reasonable 8 certainty.” Id.; see State v. Sanchez, 2001-NMCA-060, ¶ 13, 130 N.M. 602, 28 P.3d 9 1143 (stating that a probation violation must be proved to a reasonable certainty, such 10 that a reasonable and impartial mind would believe that the defendant violated the 11 terms of probation). 12 {6} Defendant argues in his memorandum in opposition that the district court 13 abused its discretion in finding that a probation violation occurred because it had to 14 rely on hearsay evidence to show that no one saw Defendant in the booking area on 15 the date in question. [MIO 6-7] However, hearsay is admissible in a probation 16 revocation hearing, and there was no objection to admission of this evidence on either 17 hearsay or confrontation grounds at the revocation hearing. See Rule 11- 18 1101(D)(3)(d) NMRA (stating that the rules of evidence do not apply to proceedings 19 “revoking probation or supervised release”); see also State v. Green, 2015-NMCA-

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1 007, ¶ 30, 341 P.3d 10 (recognizing that the rules of evidence do not apply to 2 probation revocation proceedings). We therefore see no error in the district court’s 3 consideration of this evidence. 4 {7} Defendant next argues that his testimony that he tried to turn himself into the 5 OCDC but was rebuffed was supported by his documentary evidence that he went to 6 his attorney’s office on that date. [MIO 7] Defendant argues that he would not have 7 gone to the trouble of going to his attorney’s office if he had not been turned away at 8 the detention center, and the only rational conclusion is that he was truthful and that 9 his probation violation was not willful. [MIO 7-8] See In re Bruno R., 10 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339 (stating that “[t]o establish a 11 violation of a probation agreement, the obligation is on the [s]tate to prove willful 12 conduct on the part of the probationer so as to satisfy the applicable burden of 13 proof.”). 14 {8} We disagree that the evidence was insufficient to establish a willful violation. 15 “Once the state offers proof of a breach of a material condition of probation, the 16 defendant must come forward with evidence to excuse non-compliance.” State v. 17 Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321. “Thus while the 18 burden of proving a willful violation always remains on the state, after the state 19 presents a prima facie case of a violation, the burden shifts to the defendant to come

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1 forward with evidence that the failure to comply was through no fault of his own.” 2 State v. Aslin, 2018-NMCA-043, ¶ 9, 421 P.3d 843. 3 {9} In this case, Defendant did present evidence in the form of his testimony that 4 the violation was not willful. However, the district court was not required to accept 5 that evidence. See State v. Trujillo, 2002-NMSC-005, ¶ 31, 131 N.M. 709, 42 P.3d 6 814 (reasoning that a fact-finder may reject the defendant’s version of an incident). 7 Moreover, the truth of Defendant’s version of events was not the only rational 8 conclusion the fact-finder could draw from the evidence presented. The evidence that 9 no one who worked in booking at the OCDC saw Defendant on the relevant date and 10 the evidence that he was arrested nearly a month later in another city provide 11 sufficient support for the district court’s conclusion that Defendant’s failure to report 12 to the OCDC was proved to a reasonable certainty and that it was willful. See Bruno 13 R., 2003-NMCA-057, ¶ 9 (stating that we indulge all reasonable inferences to uphold 14 a finding that there was sufficient evidence of a probation violation). [DS 3; RP 120] 15 CONCLUSION 16 {10} For these reasons, we affirm the revocation of Defendant’s probation. 17 {11} IT IS SO ORDERED.

18 19 LINDA M. VANZI, Chief Judge

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1 WE CONCUR:

2 3 J. MILES HANISEE, Judge

4 5 JENNIFER L. ATTREP, Judge