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: March 13, 2023
4 NO. S-1-SC-38452
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellant,
7 v.
8 DERRICK ROMERO,
9 Defendant-Appellee
10 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 11 Melissa A. Kennelly, District Judge
12 Hector H. Balderas, Attorney General 13 Van Snow, Assistant Attorney General 14 Santa Fe, NM
15 for Appellant
16 Bennett J. Baur, Chief Public Defender 17 Kimberly Chavez Cook, Appellate Defender 18 Charles D. Agoos, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellee 1 OPINION
2 BACON, Chief Justice.
3 {1} The primary issue in this case concerns a district court’s inherent common law
4 authority to correct a sentence that is illegal due to clear error. Defendant-Appellee
5 Derrick Romero (Appellee) pleaded guilty to second-degree criminal sexual
6 penetration (CSP), contrary to NMSA 1978, Section 30-9-11(E)(1) (2009). In the
7 first judgment and sentence (J&S), the district court erred in ordering that Appellee
8 serve two years of parole, resulting in an unlawfully short period of mandatory
9 parole. Thirteen days later, the district court ostensibly corrected the sentencing error
10 by entering a second amended J&S, which replaced Appellee’s parole period of two
11 years with five-to-twenty years. Both of these parole periods were illegal sentences,
12 however, as NMSA 1978, Section 31-21-10.1(A)(2) (2007), requires a sex offender
13 convicted of CSP in the second degree to serve an “indeterminate period of
14 supervised parole for . . . not less than five years and up to the natural life of the sex
15 offender.”
16 {2} Appellee challenged the revised parole period of five-to-twenty years in his
17 Amended Petition for Writ of Habeas Corpus. The district court relied on State v.
18 Torres, 2012-NMCA-026, ¶ 37, 272 P.3d 689, which acknowledged Rule 5-801(A)
19 NMRA (2009), a former rule applicable to the district courts both in Torres and here, 1 as having “abrogated the common law principle that a district court retained inherent
2 jurisdiction to correct illegal sentences.” Under this abrogation conclusion in Torres,
3 the district court here determined that it had had no jurisdiction to correct the illegal
4 parole sentence in the first J&S and accordingly granted Appellee’s habeas petition,
5 thereby vacating the second amended J&S and reinstating the original two-year
6 parole period. Here, Plaintiff-Appellant State of New Mexico (State) appeals that
7 grant.
8 {3} The State argues that this Court should either remand for imposition of the
9 statutory five-years-to-life parole period, reverse the district court under a holding
10 that NMSA 1978, Section 39-1-1 (1917) provided a separate statutory basis from
11 Rule 5-801 for the second amended J&S, or overrule Torres to hold that district
12 courts retain their common law authority to correct illegal sentences. In addition, the
13 State argues that none of these outcomes would create a basis for Appellee to
14 withdraw his plea.
2 1 {4} We hold that historical changes leading to Rule 5-801 (2009) (former Rule 5-
2 801)1 did not remove a district court’s common law jurisdictional authority to correct
3 an illegal sentence. Thus, we overrule Torres in that regard. Under this holding, we
4 reverse the district court’s grant of the writ of habeas corpus and remand to the
5 district court to impose the statutorily required parole sentence. We further direct the
6 Rules of Criminal Procedure for State Courts Committee to clarify the length of time
7 in which a district court retains the relevant jurisdiction to correct an illegal sentence
8 in accordance with this opinion. Finally, under Boykin v. Alabama, 395 U.S. 238
9 (1969), and Rule 5-303 NMRA, we hold that Appellee is entitled to an opportunity
10 for plea withdrawal.
11 I. FACTUAL AND PROCEDURAL BACKGROUND
12 {5} Appellee was charged by criminal information in 2010, and he pleaded guilty
13 to CSP in the second degree (“use of force or coercion on a child thirteen to eighteen
1 Subsection A of former Rule 5-801⸻and of its predecessor Rule 5-801 NMRA (1992)⸺allows that a district court “may correct an illegal sentence at any time” pursuant to habeas corpus proceedings while Subsection B of both rules specifies procedures for “motions to reduce a sentence.” But the title and text of the two successor amendments, Rule 5-801 NMRA (2014) and the current Rule 5-801 NMRA (2016), limit these more recent rules solely to procedures for “motions to reduce a sentence.” The committee commentary on all four rule amendments identifies Rule 35 of the Federal Rules of Criminal Procedure as the historic reference for a district court’s authority to “modify a sentence.”
3 1 years of age”), contrary to Section 30-9-11(E)(1). On May 17, 2011, the district court
2 conducted a hearing on the plea agreement. At the outset of the plea hearing, the
3 prosecutor at the judge’s prompting recited “[t]he agreement as to sentencing.”
4 Notably, the only mention of parole in this recitation consisted of the agreement that
5 probation would run concurrent with parole.
6 {6} Subsequent to the recitation of plea terms, the district court conducted a
7 colloquy with Appellee which demonstrated the plea was knowing and voluntary,
8 and the court accepted the plea agreement. No mention was made as to the length of
9 the parole period until after the parties and court accepted the announced terms of
10 the plea agreement. The court’s oral pronouncement of the sentence specified an
11 incorrect parole period of two years, whereas the applicable statute required a parole
12 period of five years to life for the offense of CSP in the second degree. See § 31-21-
13 10.1(A)(1)-(2).
14 {7} The district court filed the Plea and Disposition Agreement on May 18, 2011.
15 Under the “TERMS” heading, the agreement states, “This agreement is made subject
16 to the following [six] conditions.” As in the oral recitation of the plea terms, the six
17 written conditions only mention parole in the context of the agreement for probation
18 to run concurrent with parole. Appellee’s signature appears below those conditions.
19 A subsequent page of the agreement under “DISTRICT COURT APPROVAL”
4 1 specifies “a mandatory TWO (2) YEARS on parole on the second degree felony
2 count.”
3 {8} Also on May 18, 2011, the district court entered its order of Judgment,
4 Partially Suspended Sentence and Commitment (original J&S). The original J&S
5 included that Appellee had “been convicted by a plea and disposition agreement”
6 and that Appellee’s nine-year sentence of incarceration would “be followed by a
7 TWO (2) YEAR parole period.”
8 {9} Thirteen days later, on May 31, 2011, the district court entered the second
9 amended J&S, 2 which included the ostensible correction that Appellee’s nine-year
10 sentence of incarceration would “be followed by a FIVE (5) to TWENTY (20)
11 YEAR parole period.”
12 {10} In 2018, 3 Appellee filed a petition for writ of habeas corpus followed by two
13 amended petitions. The district court held a hearing on the second amended habeas
14 petition on December 3, 2019.
15 {11} On June 22, 2020, the district court granted Appellee’s petition. As discussed
16 further subsequently herein, the court’s decision and order relied on the abrogation
A first amended J&S was entered on May 24, 2011, to correct the date of 2
transport to the Department of Corrections. 3 We omit intervening procedural history that is not relevant to this proceeding.
5 1 conclusion in Torres, 2012-NMCA-026, in determining that “the district court had
2 no jurisdiction under former Rule 5-801(A) to amend the [original J&S] for the
3 purpose of increasing the parole period to conform with the law.” In support of its
4 decision, the district court quoted Torres, 2012-NMCA-026, ¶ 17: “‘[I]t is apparent
5 that the Rules Committee intended to strictly limit the district court’s jurisdiction to
6 correct illegal sentences to only habeas corpus-based motions [filed by the person in
7 custody or under restraint] under Rule 5-802 [NMRA].’” The district court
8 concluded that it “must grant the [p]etition and reinstate the original illegal
9 sentence,” relying on Torres, 2012-NMCA-026, ¶ 39, and State v. Tafoya, A-1-CA-
10 34599, mem. op. ¶ 19 (N.M. Ct. App. July 23, 2019) (nonprecedential)⸺cases
11 remanded to the district courts for reinstatement of illegal sentences. Under that
12 conclusion, the district court order granted the petition, invalidated and voided the
13 second amended J&S, and reinstated the original J&S.
14 {12} The State timely appealed pursuant to Rule 5-802(N)(1) and Rule 12-
15 102(A)(3) NMRA.
16 II. DISCUSSION
17 {13} We begin by analyzing the holding in Torres that former “Rule 5-801(A) . . .
18 abrogated the common law principle that a district court has inherent and unlimited
19 jurisdiction to correct illegal sentences.” 2012-NMCA-026, ¶ 37. We then apply our
6 1 conclusion therein to the district court’s grant of Appellee’s petition for writ of
2 habeas corpus. Finally, we analyze whether changes to his parole sentence entitle
3 Appellee to an opportunity to withdraw his plea.
4 A. Torres is overruled regarding abrogation of a district court’s jurisdiction 5 to correct an illegal sentence
6 {14} Because the district court relied heavily on Torres in granting Appellee’s
7 petition, we first address whether the jurisdictional holding in Torres was correctly
8 decided. “[T]he question of whether a [district] court has jurisdiction in a particular
9 case is a question of law that we review de novo.” Smith v. City of Santa Fe, 2007-
10 NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. “We have the ultimate authority to
11 fashion, adopt, and amend rules of procedure by virtue of the authority granted to
12 this Court in Article III, Section 1 and Article VI, Section 3 of the New Mexico
13 Constitution.” State v. Pieri, 2009-NMSC-019, ¶ 19, 146 N.M. 155, 207 P.3d 1132.
14 Therefore, because Torres had the effect of modifying a district court’s jurisdiction
15 under former Rule 5-801, we may properly address its continued validity.
16 {15} The State makes two arguments that the Torres Court erred in concluding that
17 a district court’s common law jurisdiction to correct illegal sentences was abrogated
18 by historic changes to Rule 5-801. See Torres, 2012-NMCA-026, ¶ 17. First, the
19 State argues that Torres “minimized important developments in [federal] Rule 35,”
20 Fed. R. Crim. P. 35 (Rule 35), supporting the proposition that “New Mexico courts
7 1 retained at least a limited authority to fix obvious errors until the time for taking an
2 appeal expired.” Second, the State argues that Torres “improperly held that Rule [5-
3 ]801 abolished a well-established provision of the common law by implication,”
4 violating the express abrogation requirement established in Sims v. Sims, 1996-
5 NMSC-078, ¶ 23, 122 N.M. 618, 930 P.2d 153.
6 {16} In opposition, Appellee makes two arguments that Torres need not be
7 overruled. First, erroneously claiming that the State’s argument focuses on “changes
8 in the federal clerical error rule,” Appellee argues that Torres is inapplicable to that
9 issue “because the illegal sentence [here] was not clerical.” We note that this
10 mischaracterization conflates the State’s clear error argument with a clerical error
11 argument that has not been made. A clerical error argument would fall under the
12 purview of Rule 5-113(B) NMRA, not Rule 5-801. Because Appellee’s first
13 argument does not address the State’s position, we do not consider it further. State
14 v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (“[T]he appellate court does not
15 review unclear or undeveloped arguments.”). Second, Appellee implicitly argues
16 under stare decisis that the relevant holding in Torres abides with this Court’s intent
17 in promulgating Rule 5-801 and that the State’s claim under Sims does not meet the
18 State’s burden to overturn the settled precedent of Torres.
8 1 {17} Holding “that the district court did not have jurisdiction to correct [the
2 d]efendant’s illegal sentence,” our Court of Appeals in Torres “therefore remand[ed]
3 to the district court to reinstate [the d]efendant’s sentence as originally imposed.”
4 2012-NMCA-026, ¶ 1. In support of its holding, the Torres Court provided a
5 jurisdictional analysis of Rule 5-801(A) that included “the context of its history and
6 background.” Torres, 2012-NMCA-026, ¶ 17. That jurisdictional analysis resulted
7 in the following erroneous conclusion in Torres: “Since the amendments of 1984,
8 federal case law and legislation have made clear that it was Congress’s specific intent
9 to remove any historical common law jurisdiction the federal district courts once
10 enjoyed with respect to correction of illegal sentences” pursuant to Rule 35. Torres,
11 2012-NMCA-026, ¶ 24. The Torres Court compounded its error by further
12 concluding that, because our Rule 5-801(A) “has closely tracked” Rule 35(a), the
13 New Mexico rule “reflects a clear intent to strictly limit the district court’s
14 jurisdiction to habeas corpus proceedings to correct an illegal sentence.” Torres,
15 2012-NMCA-026, ¶ 27. We now summarize the Torres Court’s historical analysis
16 and explain the errors in both conclusions.
17 {18} The Torres Court traced the relationship of Rule 5-801 and its predecessor
18 Rule 57.1 SCRA (1986) to Rule 35, focusing on four significant historical rules
19 changes. First, Torres noted the 1944 adoption of federal Rule 35, which codified
9 1 existing common law regarding a district court’s authority to set aside or alter its
2 final judgment. 2012-NMCA-026, ¶ 18 (citing Duggins v. United States, 240 F.2d
3 479, 483 (6th Cir. 1957); Gilmore v. United States, 131 F.2d 873, 874 (8th Cir.
4 1942)). The Court stated that this authority included “indefinite jurisdiction . . . ‘to
5 correct sentences when the judgment was void, because these sentences were invalid
6 and not final dispositions.’” Id. (quoting United States v. Rico, 902 F.2d 1065, 1067
7 (2d Cir. 1990)).
8 {19} Second, Torres noted this Court’s 1980 adoption of Rule 57.1 “to be virtually
9 identical to federal Rule 35, thereby codifying existing New Mexico common law.”
10 2012-NMCA-026, ¶ 20. The Court recognized that, like federal law, our common
11 law had been interpreted “as including an inherent jurisdiction to correct illegal
12 sentences.” Id.
13 {20} Third, Torres noted the federal adoption of the Sentencing Reform Act of
14 1984 (SRA), which included “repeal[ of] the indefinite jurisdiction principle
15 embodied in Rule 35(a) altogether.” Torres, 2012-NMCA-026, ¶ 21. The Court
16 stated that “the underlying purpose of the [SRA] ‘was to impose on the new
17 sentencing system a requirement that the sentence imposed . . . would remain
18 constant, immune from later modification.’” Id. (quoting United States v. Cook, 890
19 F.2d 672, 674-75 (4th Cir. 1989)). Importantly, the Torres Court quoted and relied
10 1 on United States v. Jordan, 915 F.2d 622, 627-28 (11th Cir. 1990), for the
2 proposition that the SRA, rather than merely limiting the relevant jurisdiction of a
3 district court, “‘explicitly foreclosed [the Rule 35(a)] route for obtaining judicial
4 review of an allegedly illegal sentence’ at any time.” 2012-NMCA-026, ¶ 22
5 (alteration in original) (emphasis added). Importantly, as we discuss subsequently
6 herein, the advisory committee commentary on the 1991 amendments to Rule 35
7 implicitly rejected this interpretation in Jordan.
8 {21} Fourth, Torres noted this Court’s 1986 “adopt[ion of] the recommendation of
9 the Rules Committee to repeal [Rule] 57.1(a), which had previously allowed for
10 indefinite jurisdiction over illegal sentences.” Torres, 2012-NMCA-026, ¶ 23.
11 Torres correctly recognized that our relevant order also constituted a
12 “comprehensive overhaul of Rule 57 [SCRA (1986)],” which included “explicitly
13 open[ing habeas corpus as an] avenue for review of ‘illegal’ sentences under the
14 scope of the rule.” Torres, 2012-NMCA-026, ¶ 23. However, our order did not
15 expressly limit correction of clearly illegal sentences to habeas proceedings, nor did
16 it expressly remove a district court’s jurisdiction for such correction.
17 {22} We conclude that the erroneous conclusions in Torres discussed previously—
18 that Congress specifically intended to remove a federal district court’s common law
19 jurisdiction to correct an illegal sentence and that this Court followed suit for state
11 1 district courts—stem from three main errors. First, the Torres Court did not properly
2 consider either the 1991 amendments to Rule 35 or the circuit court cases on which
3 those amendments relied. See Torres, 2012-NMCA-026, ¶¶ 18, 21-22. Second, the
4 Torres Court misread United States v. Washington, 549 F.3d 905, 917 (3d Cir. 2008),
5 regarding congressional abrogation of a district court’s common law jurisdiction.
6 See 2012-NMCA-026, ¶ 24. Third, the Torres Court recognized but then improperly
7 ignored the express abrogation rule in Sims, 1996-NMSC-078, ¶ 23. Torres, 2012-
8 NMCA-026, ¶¶ 29-30. We discuss these errors in turn.
9 {23} Contrary to the relevant erroneous conclusion in Torres, the 1991
10 amendments recognized that the SRA did not foreclose “the ability of the sentencing
11 court to correct a sentence imposed as a result of an obvious . . . clear error, if the
12 error is discovered shortly after the sentence is imposed.” Fed. R. Crim. P. 35
13 advisory comm. notes (1991). The 1991 amendments “effect[ively] codifie[d]” the
14 holdings of Cook, 890 F.2d 672, 675, and Rico, 902 F.2d 1065, 1069, that the district
15 court retained “the inherent authority . . . to correct a sentence,” notwithstanding the
16 SRA’s repeal of a district court’s indefinite jurisdiction to correct a sentence. Fed.
17 R. Crim. P. 35 advisory comm. notes (1991).
18 {24} In Cook, the Fourth Circuit “recognize[d] the inherent power in a [district]
19 court to correct an acknowledged and obvious mistake,” distinguishing the SRA’s
12 1 focus on “appellate review of sentences.” 890 F.2d at 674-75 (emphasis added).
2 Similarly in Rico, the Second Circuit found “no mention in the legislative history [of
3 the SRA] of any diminution in the district court’s inherent power to correct sentences
4 . . . [and] no indication that [Congress] intended to repudiate this long-standing
5 authority of district courts.” 902 F.2d at 1067. In affirming Cook and Rico, the 1991
6 amendments implicitly rejected the contrary 1990 holding of the Eleventh Circuit on
7 which Torres relied. See Torres, 2012-NMCA-026, ¶ 22 (quoting Jordan, 915 F.2d
8 at 627-28).
9 {25} By not properly considering the 1991 amendments to Rule 35, the Torres
10 Court reached its erroneous conclusion regarding the scope of the SRA’s repeal of
11 the federal rule. See Torres, 2012-NMCA-026, ¶ 22. In turn, the Torres Court
12 misinterpreted the scope of this Court’s 1986 order. See id. ¶ 23. To the extent that
13 this Court’s 1986 order followed the SRA’s lead, our repeal of Rule 57.1(a) similarly
14 did not remove a district court’s inherent authority to correct a sentence.
15 {26} The Torres Court also erred in reading Washington as supporting the
16 proposition that Congress abrogated the relevant power of a district court. See 2012-
17 NMCA-026, ¶¶ 24, 29 (citing Washington, 549 F.3d at 911, 917). Washington did
18 not involve a district court’s power to correct a sentence that would constitute clear
19 error but rather concerned a district court’s power to correct a sentence that was
13 1 procured by fraud. See 549 F.3d at 912, 914. The Third Circuit in Washington
2 reversed the district court’s finding, upon discovery of the defendant’s true identity,
3 that the court “had the inherent power to vacate judgments procured by fraud.” Id.
4 at 909 (internal quotation marks and citation omitted). The Washington Court
5 concluded that any such inherent power to correct a sentence resulting from fraud
6 had been abrogated by Congress, whereas the 1991 amendments to Rule 35
7 recognized the narrow corrective power of a district court in “cases in which an
8 obvious error or mistake has occurred in the sentence.” Washington, 549 F.3d at 914,
9 916. The foregoing makes clear that the inherent power of a district court considered
10 in Washington is distinct from the inherent power considered by Torres and by this
11 Court, and thus Washington does not support the holding in Torres.
12 {27} The Torres Court ultimately erred in not following “our long-standing rule
13 that ‘only if a statute so provides with express language or necessary implication
14 will New Mexico courts be deprived of their inherent equitable powers.’” 2012-
15 NMCA-026, ¶ 29 (emphasis added) (quoting Sims, 1996-NMSC-078, ¶ 30). In Sims,
16 we explained:
17 The comprehensiveness of [a New Mexico court’s] equitable 18 jurisdiction is not to be denied or limited in the absence of a clear and 19 valid legislative command. Unless a statute in so many words, or by a 20 necessary and inescapable inference, restricts the court’s jurisdiction in 21 equity, the full scope of that jurisdiction is to be recognized and applied.
14 1 “The great principles of equity, securing complete justice, should not 2 be yielded to light inferences, or doubtful construction.”
3 1996-NMSC-078, ¶ 30 (citation omitted).
4 {28} The Torres Court acknowledged that the purported abrogation of a district
5 court’s “inherent common law jurisdiction . . . over correction of illegal sentences”
6 was “not expressly stated” in changes to the rule. Torres, 2012-NMCA-026, ¶¶ 29-
7 30. Despite the absence of express abrogation language, the Torres Court
8 nonetheless held “that the Rules Committee meant to defeat the broad jurisdiction
9 embodied in the common law by repeatedly narrowing Rule 5-801(A).” Torres,
10 2012-NMCA-026, ¶ 30. To the extent that the Torres Court concluded from such
11 narrowing that the relevant inherent authority of sentence correction was abrogated
12 by necessary implication under Sims, we clarify that our changes to Rule 5-801(A),
13 as we have discussed, did not foreclose that authority. See Torres, 2012-NMCA-
14 026, ¶¶ 29-30. Accordingly, there was no such necessary implication of abrogation.
15 Under Sims, the Torres Court erred in concluding that our changes to Rule 5-801
16 implicated abrogation of the relevant common law jurisdiction where such a
17 principle appeared neither in our express language nor as a necessary implication of
18 those changes. See Torres, 2012-NMCA-026, ¶ 29.
19 {29} Applying the foregoing analysis, we hold that historical changes to Rule 5-
20 801(A) did not remove a district court’s common law jurisdictional authority to
15 1 correct a sentence that is illegal due to clear error. Torres is overruled to the extent
2 that it holds otherwise. Under our holding, we do not reach the State’s argument that
3 Section 39-1-1 provided a separate statutory basis from Rule 5-801 for the district
4 court to amend its sentence. Additionally, we direct the Rules of Criminal Procedure
5 for State Courts Committee to clarify the time period during which a district court
6 retains such jurisdiction in accordance with this opinion.4
7 B. The district court had jurisdiction thirteen days after the original J&S to 8 correct the illegal sentence of parole, but the district court on remand 9 must impose the parole sentence required by Section 31-21-10.1(A)(2)
10 {30} We next apply our holding above to the district court’s grant of the writ of
11 habeas corpus. This Court reviews the legal conclusions of a district court in a habeas
12 proceeding de novo. Lukens v. Franco, 2019-NMSC-002, ¶ 15, 433 P.3d 288.
13 {31} Under our holding, we reverse the district court’s grant of the writ of habeas
14 corpus, as the district court had jurisdiction thirteen days after the original J&S to
4 We note the principle adopted by the 1991 amendments to Rule 35
that the time for correcting [obvious arithmetical, technical, or other clear errors] should be [restricted to] the time for appealing the sentence to reduce the likelihood of jurisdictional questions in the event of an appeal and to provide the parties with an opportunity to address the court’s correction of the sentence, or lack thereof, in any appeal of the sentence.
Fed. R. Crim. P. 35 advisory comm. notes (1991).
16 1 correct the clearly illegal parole sentence of two years. However, while reversal here
2 would otherwise reinstate the second amended J&S, we cannot reinstate the parole
3 sentence therein of five-to-twenty years as it also constitutes a clearly illegal
4 sentence. See § 31-21-10.1(A)(2) (requiring that a sentence for second-degree CSP
5 “shall include . . . an indeterminate period of supervised parole for a period of . . .
6 not less than five years and up to the natural life of the sex offender”).
7 {32} An illegal sentence is void and a nullity. See State v. Peters, 1961-NMSC-
8 160, ¶ 5, 69 N.M. 302, 366 P.2d 148 (“The . . . sentence . . . being unauthorized by
9 law . . . was null and void, and [the district court] was warranted in disregarding it
10 as mere surplusage.”); see also Rico, 902 F.2d at 1067 (“[U]nder common law a
11 district court was free at any time to correct sentences when the judgment was void,
12 because these sentences were invalid and not final dispositions.” (internal quotation
13 marks omitted)). In State v. Miller, 2013-NMSC-048, ¶ 36, 314 P.3d 655, we
14 explained in the plea context that a “court must . . . be mindful of our sentencing
15 statutes and cannot impose an illegal sentence. If the sentence in an accepted plea is
16 illegal, [it] cannot be imposed by a court.” Id.; see State v. Mares, 1994-NMSC-123,
17 ¶ 10, 119 N.M. 48, 888 P.2d 930 (“This Court has long held that the [district] court
18 may impose only sentences which are authorized by law.”); State v. Lucero, 1944-
19 NMSC-036, ¶ 17, 48 N.M. 294, 150 P.2d 119 (“[W]e conclude that the sentence . . .
17 1 was in excess of punishment warranted by law . . . and is therefore void.”); see also
2 Sneed v. Cox, 1964-NMSC-250, ¶ 8, 74 N.M. 659, 397 P.2d 308 (“[S]entences which
3 are unauthorized by law are null and void.”), abrogated on other grounds as
4 recognized by State v. Sublett, 1968-NMCA-001, ¶ 22, 78 N.M. 655, 436 P.2d 515.
5 {33} Under these precedents, we are unauthorized to reinstate the clearly illegal
6 sentence of parole in the second amended J&S. Instead, we remand to the district
7 court for imposition of the parole period required by Section 31-21-10.1(A)(2).
8 {34} We note that the district court order cited two cases in support of the
9 proposition that reinstatement of an illegal sentence can be proper, neither of which
10 is persuasive here. The order first cites Torres, 2012-NMCA-026, ¶ 39, wherein the
11 Court of Appeals remanded for reinstatement of the defendant’s illegal prior
12 sentence under the very abrogation principle which we overrule in this opinion. The
13 order also cites Tafoya, A-1-CA-34599, mem. op. ¶ 19, which is an unpublished
14 memorandum opinion. This Court subsequently quashed the State’s petition for writ
15 of certiorari in Tafoya based on mootness and specifically “ordered that the Court of
16 Appeals [m]emorandum [o]pinion . . . SHALL NOT be cited as persuasive
17 authority.” State v. Tafoya, S-1-SC-37872, Dispositional Order to Quash ¶ 16 (N.M.
18 Sept. 2, 2021). In sum, these cases do not provide compelling support for a court’s
19 reinstatement of an illegal sentence.
18 1 {35} Citing Lopez v. LeMaster, 2003-NMSC-003, ¶ 17, 133 N.M. 59, 61 P.3d 185,
2 Appellee argues that while “New Mexico courts have broad authority to order
3 discretionary relief through . . . writs of habeas corpus . . . , an order increasing a
4 criminal sentence is not among the remedies available in a collateral habeas corpus
5 proceeding.” As Lopez states explicitly, however, “[a] court may not ignore statutes,
6 rules, and precedents when fashioning such a remedy.” Id. Under this foundational
7 principle, we are not at liberty to ignore the parole sentence required by Section 31-
8 21-10.1(A)(2). Contrary to Appellee’s characterization, imposition of the statutorily
9 required parole period constitutes replacing the nullity of the illegal parole sentence
10 in the second amended J&S, not increasing an otherwise valid sentence.
11 C. Appellee is entitled to an opportunity for plea withdrawal
12 {36} Finally, we analyze whether a change to his parole sentence entitles Appellee
13 to an opportunity to withdraw his plea under his constitutional right to due process.
14 We analyze this issue under the Fourteenth Amendment to the United States
15 Constitution, which Appellee argues under federal due process cases without
16 specifying additional due process rights under the New Mexico Constitution.
17 {37} The parties disagree as to whether Appellee accepted the plea knowingly and
18 voluntarily. The State points to the district court “confirm[ing] that [Appellee]
19 understood the range of possible penalties associated with his plea.” Relatedly, the
19 1 State argues that Appellee has not shown prejudice, that “the district court
2 established that he entered the agreement knowingly and voluntarily,” and that,
3 under United States v. Timmreck, 441 U.S. 780, 785 (1979), “habeas relief is
4 unavailable when ‘all that is shown is a failure to comply with the formal
5 requirements’ of the federal counterpart to Rule 5-303.” In response, Appellee
6 argues that “[p]rejudice from an increased sentence is self-evident” and that “[t]he
7 record in this case does not reflect any affirmative, voluntary, knowing, and
8 intelligent waiver by [Appellee] of his fundamental due process rights.” We infer
9 from his waiver argument that Appellee contends that imposition of the more
10 onerous sentence constituted a violation of fundamental due process. To the extent
11 that the State suggests Appellee abandoned this issue on appeal, we invoke our right
12 to review an issue involving the fundamental rights of a party. See Rule 12-
13 321(B)(2)(d) NMRA.
14 {38} The parties also dispute whether the two-year parole sentence was among the
15 terms of the negotiated plea agreement and thus would constitute part of the benefit
16 of Appellee’s bargain. The State argues that “[t]he plea agreement unambiguously
17 did not address the length of parole” and that the two-year parole sentence was a
18 finding made by the district court separate from and subsequent to the parties’
19 negotiated plea agreement. The State further argues that correction of Appellee’s
20 1 parole sentence did not violate due process where parole periods are statutorily
2 mandated and “cannot be the subject of bargaining.” In response, Appellee asserts
3 that “the terms of the written plea agreement expressly included a two-year parole
4 sentence” and argues that “the imposition of an enhanced parole sentence violates
5 the binding plea agreement between the State and [Appellee].” Appellee also argues
6 that the “parole sentence was clearly part of the bargain in light of the
7 disproportionate impact the [five- to twenty-year parole] sentence had on the overall
8 agreement.”
9 {39} The parties’ foregoing due process arguments fall under the
10 two separate, though closely related, constitutional challenges that may 11 be made [when seeking relief from a guilty plea]: (1) that the plea of 12 guilty was not made voluntarily and with full knowledge of the 13 consequences, and (2) that [the] defendant did not receive the benefit 14 of the bargain [the defendant] made with the [s]tate when [the 15 defendant] pled guilty.
16 People v. Whitfield, 840 N.E.2d 658, 663, 673 (Ill. 2005) (holding that the
17 defendant’s “constitutional right to due process and fundamental fairness was
18 violated” where he was never advised at the plea hearing that mandatory parole
19 would be imposed and where subsequent imposition thereof resulted in a more
20 onerous sentence). A due process challenge to the plea being knowing and voluntary
21 “derives from Boykin, . . . 395 U.S. [at 242-43 & n.5],” whereas a due process
22 “‘benefit of the bargain’ claim finds its roots in Santobello v. New York, 404 U.S.
21 1 257, 262 . . . (1971).” Whitfield, 840 N.E.2d at 663-64 (“Boykin and Santobello deal
2 with two different aspects of a plea—its acceptance and its implementation.”).
3 Because Boykin and Santobello govern the parties’ arguments, we provide the
4 applicable principles of both cases despite the parties’ failure in this appeal to apply
5 Boykin.
6 {40} In Boykin, the United States Supreme Court held that the record for acceptance
7 of a guilty plea must affirmatively show that the plea was “intelligent and
8 voluntary.”5 395 U.S. at 242, 243 n.5 (identifying “a defendant’s guilty plea [that] is
9 not equally voluntary and knowing” as a “violation of due process and . . . therefore
10 void”). The Boykin Court noted that a defendant’s “waiver of . . . three important
11 federal [constitutional] rights”—the privilege against self-incrimination, the right to
12 trial by jury, and the right to confront one’s accusers—cannot be presumed from a
13 silent record. Id. at 243. “What is at stake for an accused facing death or
14 imprisonment demands the utmost solicitude of which courts are capable in
15 canvassing the matter with the accused to make sure [the accused] has a full
5 We recognize “knowing” and “intelligent” as synonymous and interchangeable for purposes of pleas. See United States v. Dominguez, 998 F.3d 1094, 1102 n.5 (10th Cir. 2021) (“In . . . our precedent, the two terms ‘knowing’ and ‘intelligent’ frequently have traveled together, even though we have not made a meaningful effort to attribute distinct meanings to them.”), cert. denied, 142 S. Ct. 2756 (2022).
22 1 understanding of what the plea connotes and of its consequence.” Id. at 243-44. In
2 New Mexico, “Rule 5-303 NMRA essentially codified Boykin . . . and requires an
3 affirmative showing on the record that a guilty plea was voluntary and intelligent.”
4 State v. Yancey, 2019-NMSC-018, ¶ 12, 451 P.3d 561 (brackets, internal quotation
5 marks, and citations omitted).
6 {41} In Santobello, the United States Supreme Court noted that “‘plea bargaining[]’
7 is an essential component of the administration of justice” but one which
8 “presuppose[s] fairness in securing agreement between an accused and a
9 prosecutor.” 404 U.S. at 260-61. The Santobello Court stated that as a “safeguard[]
10 to insure the defendant what is reasonably due” under a plea agreement, a “constant
11 factor is that when a plea rests in any significant degree on a promise or agreement
12 of the prosecutor, so that it can be said to be part of the inducement or consideration,
13 such promise must be fulfilled.” Id. at 262. We note that this Court has quoted the
14 latter language in Santobello in multiple cases. See, e.g., State v. King, 2015-NMSC-
15 030, ¶ 18, 357 P.3d 949; Pieri, 2009-NMSC-019, ¶¶ 15, 33.
16 {42} The parties’ arguments “require[] us to evaluate constitutional principles,
17 statutes, and the rules of criminal procedure. Our review of these matters is de novo.”
18 Yancey, 2019-NMSC-018, ¶ 11. Whether a plea is knowing and voluntary under
19 these authorities “must be assessed from the totality of the circumstances.” Id. ¶ 1
23 1 (citing United States v. Rollings, 751 F.3d 1183, 1188 (10th Cir. 2014)); accord
2 Garcia v. State, 2010-NMSC-023, ¶ 50, 148 N.M. 414, 237 P.3d 716.
3 1. The two-year parole sentence was not a term of the plea agreement, and 4 correction of that sentence does not deprive Appellee of the benefit of his 5 bargain
6 {43} We begin our discussion by clarifying the critical distinction between a plea
7 agreement and an accepted plea. “A plea agreement is a unique form of contract the
8 terms of which must be interpreted, understood, and approved by the [district]
9 court.” Mares, 1994-NMSC-123, ¶ 12. A plea agreement is negotiated between the
10 defendant and the prosecution, and the parties may “negotiate the terms of a plea
11 agreement to the full extent allowed by law.” Id. ¶ 11; see id. ¶ 17 (“[A] plea
12 agreement may be the product of negotiation between the prosecutor and the
13 defense.”); see State v. Taylor, 1988-NMSC-023, ¶ 23, 107 N.M. 66, 752 P.2d 781
14 (“A defendant may enter into an agreement with the state to plead guilty to any
15 proper condition and the state may recommend a particular sentence to the court.”),
16 overruled on other grounds by Gallegos v. Citizens Ins. Agency, 1989-NMSC-055,
17 ¶ 28, 108 N.M. 722, 779 P.2d 99. “[T]he district court judge [shall] not be a
18 participant in any plea negotiations[, and] ‘[t]he judge’s role is explicitly limited to
19 acceptance or rejection of the bargain agreed to by counsel for the state, defense
24 1 counsel, and [the] defendant.’” Miller, 2013-NMSC-048, ¶ 12 (quoting Rule 5-304
2 NMRA (2010), comm. cmt.).6
3 {44} While “a [district] court has broad discretion to accept or reject a plea
4 agreement,” Mares, 1994-NMSC-123, ¶ 10, the court cannot accept the agreement
5 until additional process under Rule 5-303 ensures that the defendant has entered into
6 the plea knowingly and voluntarily. The requirements of Rule 5-303(F) include that
7 the court “address[] the defendant personally in open court, informing the defendant
8 of and determining that the defendant understands . . . the nature of the charge to
9 which the plea is offered . . . and the maximum possible penalty provided by law for
10 the offense to which the plea is offered.” Rule 5-303(F)(1)-(2). Under Rule 5-
11 303(G), “The court shall not accept a plea of guilty . . . without first, by addressing
12 the defendant personally in open court, determining that the plea is voluntary and
13 not the result of force or threats or of promises apart from a plea agreement.”
14 {45} Under these authorities, several principles emerge that are relevant to the
15 parties’ arguments here. First, the parties’ broad latitude to negotiate the terms of a
6 Consistent with committee commentary on the 2010 amendment, the body of the 2022 amendment further provides that the “judge who presides over any phase of a criminal proceeding shall not participate in plea discussions” while allowing that a judge not so presiding “may be assigned to participate in plea discussions to assist the parties in resolving a criminal case in a manner that serves the interests of justice.” Rule 5-304(A)(1) NMRA (2022).
25 1 plea agreement cannot result in a term that is contrary to law. See Mares, 1994-
2 NMSC-123, ¶ 11. Accordingly, even if the parties here had negotiated a two-year
3 parole sentence, their authority to negotiate would not have rendered that illegal
4 sentence lawful or enforceable. Second, the applicable rule in this case required the
5 district court to play no role in determining the negotiated terms of a plea agreement,
6 notwithstanding the court’s broad latitude to accept or reject those terms. Rule 5-304
7 (2010), comm. cmt. Thus, a term that is established in the first instance by the court
8 is presumptively not a term of the plea agreement. Third, the negotiated terms of a
9 plea agreement do not necessarily include all components of the accepted plea. For
10 example, parties could solely negotiate the term of incarceration and leave all other
11 sentencing determinations to the district court, subject to the court assuring the
12 defendant’s understanding of the terms and consequences of the plea where a
13 defendant pleads guilty. See Rule 5-303(F). Finally, the knowing and voluntary
14 requirement under Rule 5-303(F)-(G) cannot be circumvented or waived for a plea
15 of guilty. Cf. Rule 5-303(J). Where the advisement requirements of Rule 5-303 are
16 not satisfied, such a lack of due process “presumptively affects [the] defendant’s
17 substantial rights and renders the plea unknowing and involuntary.” State v. Garcia,
18 1996-NMSC-013, ¶¶ 22-23, 121 N.M. 544, 915 P.2d 300 (“[T]he defendant must
26 1 understand the consequences of his plea at the time the plea is taken.” (emphasis
2 omitted)).
3 {46} The record in this case is clear that, contrary to Appellee’s representation, the
4 negotiated terms of the plea agreement did not include the length of the parole period
5 and that the two-year parole period was established in the first instance by the district
6 court. At the plea hearing, the length of the parole period was not included in the
7 terms of the plea agreement as read by the prosecution, and the two-year parole
8 period was announced initially by the court during the subsequent Rule 5-303
9 colloquy. Similarly in the Plea and Disposition Agreement, the length of the parole
10 period is not listed in the six terms of the plea agreement signed by Appellee. The
11 two-year parole sentence appears for the first time in the district court’s subsequent
12 findings supporting that the accepted plea was knowing and voluntary.
13 {47} Because the two-year parole sentence was not a term of the plea agreement,
14 correction of that illegal sentence does not constitute a change to the plea agreement.
15 It follows logically that imposition of a more onerous indeterminate parole sentence
16 does not deprive Appellee of the benefit of his bargain, as he did not bargain
17 concerning the length of parole. Accordingly, neither the district court’s purported
18 parole sentence correction of five-to-twenty years nor imposition on remand of the
19 five-years-to-life parole period can be construed as a broken promise of the
27 1 prosecution. Because Santobello governs such broken promises of a plea agreement,
2 the parties’ arguments under Santobello are inapposite.
3 {48} Appellee attempts nonetheless to bring the district court’s sentencing error
4 within that scope, quoting United States v. Walker, 98 F.3d 944, 946 (7th Cir. 1996),
5 for the proposition that “‘Santobello itself involved a breach of a plea agreement by
6 the prosecutor rather than by the judge, but the remedial implications are similar.’”
7 Appellee’s argument does not avail, first and foremost because, as just discussed,
8 the district court’s purported sentence correction did not involve a breach of the plea
9 agreement. Further, we decline any implicit invitation to extend Santobello to
10 encompass errors by a sentencing court at a plea hearing. See Pieri, 2009-NMSC-
11 019, ¶ 28 (“It is now clear that Santobello only requires that the State fulfill the
12 promises it makes in plea agreements.”).
13 2. Appellee is entitled to an opportunity to withdraw his plea under Boykin 14 and Rule 5-303
15 {49} The record is clear that the accepted plea in this case involved Appellee’s
16 knowing and voluntary plea to a maximum possible penalty that included a parole
17 sentence of two years. Under this record, imposition by the district court of either
18 indeterminate parole period—whether of five-to-twenty years in the second
19 amended J&S or of five years to life on remand—has not occurred under a knowing
20 and voluntary plea. Stated differently, the record does not affirmatively show that
28 1 Appellee understood that the range of possible penalties associated with his plea
2 included either of the indeterminate parole sentences.
3 {50} Based on the foregoing, we agree with Appellee that he was denied due
4 process, but for reasons other than those offered by the parties. The fundamental
5 flaw with the process that Appellee received is that he was completely deprived of
6 his right to a knowing and voluntary plea when his sentence was changed in the
7 second amended J&S to include more onerous consequences than those explained at
8 the plea hearing. Under Boykin and Rule 5-303, due process required an additional
9 hearing at which Appellee would have been advised of the increased consequence,
10 a five- to twenty-year parole sentence, with an opportunity for Appellee to withdraw
11 his plea. See State v. Jones, 2010-NMSC-012, ¶ 52, 148 N.M. 1, 229 P.3d 474 (“A
12 plea bargain stands or falls as a unit.” (brackets, internal quotation marks, and
13 citation omitted)); see also Garcia, 1996-NMSC-013, ¶¶ 23-24 (granting plea
14 withdrawal as a proper remedy where the record did not clearly demonstrate
15 substantial compliance with Rule 5-303).
16 {51} On remand, due process similarly requires imposition of the statutorily
17 mandated parole sentence to occur in an additional Rule 5-303 hearing, wherein the
18 district court shall advise Appellee as to his increased maximum possible penalty
19 and Appellee shall have an opportunity to withdraw his plea. Without such
29 1 additional process, Appellee’s plea under our ruling herein cannot be knowing and
2 voluntary.
3 {52} We reject the State’s argument that the district court’s colloquy established
4 that Appellee “understood the range of possible penalties associated with his plea.”
5 The record here demonstrates that the maximum possible penalty was never
6 explained to Appellee, and thus the district court’s finding that Appellee’s plea was
7 knowing cannot satisfy the requirements of Rule 5-303. We also agree with Appellee
8 that prejudice here is “self-evident” where Appellee’s plea consequences increase
9 under either indeterminate parole period.
10 {53} In addition we reject the State’s argument under Timmreck, 441 U.S. at 785,
11 as the constitutional considerations implicated here constitute much more than
12 merely “‘a failure to comply with the formal requirements’” of due process. In
13 Timmreck, the United States Supreme Court found only a technical violation of Rule
14 11 of the Federal Rules of Criminal Procedure where the district court at the plea
15 hearing “failed to describe the mandatory special parole [period] of at least [three]
16 years” because the defendant’s ultimate sentence of ten years of imprisonment plus
17 five years of parole was still “within the maximum [fifteen years of imprisonment]
18 described to him” at the plea hearing. Id. at 782-83. Where the changed sentence did
19 not involve more onerous consequences, the Timmreck Court found no error which
30 1 “resulted in a complete miscarriage of justice or in a proceeding inconsistent with
2 the rudimentary demands of fair procedure.” Id. at 784 (internal quotation marks and
3 citation omitted). In contrast here, the five- to twenty-year parole period implicated
4 more onerous consequences than the maximum possible penalty in the district
5 court’s plea advisement and in its Plea and Disposition Agreement, and thus the due
6 process violation was substantive and not merely technical.
7 III. CONCLUSION
8 {54} We hold that Torres is overruled regarding abrogation of a district court’s
9 common law jurisdictional authority to correct an illegal sentence. Under this
10 holding, we reverse the district court and remand for imposition of the statutorily
11 required parole sentence. We direct the Rules of Criminal Procedure for State Courts
12 Committee to clarify the length of time that a district court retains jurisdiction to
13 correct an illegal sentence in accordance with this opinion. Finally we hold,
14 consistent with the additional Rule 5-303 hearing required by due process, that
15 Appellee is entitled to an opportunity for plea withdrawal.
16 {55} IT IS SO ORDERED.
17 18 C. SHANNON BACON, Chief Justice
31 1 WE CONCUR:
2 3 MICHAEL E. VIGIL, Justice
4 5 DAVID K. THOMSON, Justice
6 7 JULIE J. VARGAS, Justice
8 9 BRIANA H. ZAMORA, Justice