Torres v. Santistevan

• Court: New Mexico Supreme Court
• Decided: July 24, 2023
• Status: Unpublished

Opinion

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: July 24, 2023

4 NO. S-1-SC-38147

5 RUFINO TORRES,

6 Petitioner,

7 v.

8 DWAYNE SANTISTEVAN, Warden,

9 Respondent.

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 Santa Fe, NM 15 Liane E. Kerr, LLC 16 Liane E. Kerr 17 Albuquerque, NM

18 for Petitioner

19 Hector H. Balderas, Attorney General 20 Emily C. Tyson-Jorgenson, Assistant Attorney General 21 Santa Fe, NM

22 for Respondent 1 OPINION

2 VIGIL, Justice.

3 {1} This case comes before us on a petition for writ of certiorari under Rule 12-

4 501 NMRA to review Petitioner Rufino Torres’s district court habeas corpus

5 proceedings. Petitioner contends that the judgment and sentence which required him

6 to serve consecutive, i.e., “stacked,” five-year terms of probation was illegal. We

7 agree. Furthermore, we determine that consolidation of four separate cases resulted

8 in a single judgment and sentence, and when the district court determined that

9 Petitioner had completed serving his sentence and probation in one case, the legal

10 effect was that the determination applied to the entire judgment and sentence. We

11 therefore conclude that Petitioner is entitled to be released from custody of the New

12 Mexico Department of Corrections immediately upon the issuance of our mandate.

13 We also determine that Petitioner’s three conspiracy convictions violate double

14 jeopardy.

15 I. FACTUAL AND PROCEDURAL BACKGROUND

16 {2} Four different indictments were filed against Petitioner in the Twelfth Judicial

17 District Court in Otero County charging Petitioner with sixteen crimes which

18 occurred between June 1, 2010, and June 3, 2010. The indictment in cause number

19 D-1215-CR-2010-0270 (-270 case) charged four offenses: that on June 2, 2010, 1 Petitioner burglarized two storage units located at the same address; and that on the

2 same day Petitioner conspired to commit nonresidential burglary and received stolen

3 property. The indictment in cause number D-1215-CR-2010-0290 (-290 case)

4 charged three offenses: that on June 2, 2010, Petitioner committed larceny of

5 property that was on display at the Alamogordo Chamber of Commerce Museum;

6 engaged in a conspiracy to commit the larceny; and received the property that was

7 stolen from the museum. The indictment in cause number D-1215-CR-2010-0269 (-

8 269 case) alleged six offenses: that on June 2, 2010, Petitioner burglarized a storage

9 unit and conspired to commit nonresidential burglary; and that on June 3, 2010,

10 Petitioner burglarized three other storage units and received stolen property. Finally,

11 the indictment in cause number D-1215-CR-2010-0271 (-271 case) alleged that on

12 June 1, 2010, Petitioner committed three offenses: that he broke into and entered a

13 self-storage business, burglarized the business, and stole property from the business.

14 {3} The State then filed a motion to consolidate the four cases for plea and

15 disposition. The district court granted the motion and ordered the cases

16 “consolidated into [the -269 case] for plea and disposition.” Thereafter, unless we

17 note otherwise, every subsequent pleading was filed in all four cases. This did not in

18 any way alter the fact that the cases were consolidated. In the plea and disposition

19 agreement Petitioner agreed to plead guilty to all sixteen of the original charges

2 1 “because he is in fact guilty of the foregoing charges.” There was no agreement as

2 to sentence, and Petitioner understood he was exposed to a twenty-seven year term

3 of imprisonment, a period of mandatory parole for each offense, and mandatory fines

4 and fees.

5 {4} Petitioner was sentenced on February 4, 2011. Petitioner received a twenty-

6 seven year term of imprisonment, and there is no issue about whether the term of

7 imprisonment imposed on each count was correct. The total term of twenty-seven

8 years resulted from the fact that the district court imposed a sentence of incarceration

9 for every crime charged in each case. Thus, in the -270 case Petitioner was sentenced

10 to a term of imprisonment of six years; in the -290 case he was sentenced to a term

11 of imprisonment of seven years and six months; in the -269 case he was sentenced

12 to a term of imprisonment of nine years; and in the -271 case he was sentenced to a

13 term of imprisonment of four years and six months, for a total of twenty-seven years.

14 {5} In addition, the district court ordered that the sentences in each case be served

15 consecutively. Specifically, the district court ordered that the sentence in the -290

16 case run consecutively to the -270 case, that the sentence in the -269 case run

17 consecutively to the -290 case, and that the sentence in the -271 case run

18 consecutively to the -269 case. In other words, Petitioner was ordered to serve the

19 sentence in the -270 case in full before beginning to serve the sentence in the -290

3 1 case, and to serve the sentence in the -290 case in full before beginning to serve the

2 sentence in the -269 case, and to serve the sentence in the -269 case in full before

3 beginning to serve the sentence in the -271 case.

4 {6} The district court then ordered that all but 364 days of the sentence in the -270

5 case, apparently the time served, be suspended and that Petitioner be placed on

6 probation for a period of five years; that the sentence of incarceration in the -290

7 case be suspended and that Petitioner be placed on probation for five years “after the

8 completion” of the -270 case; that the sentence of incarceration in the -269 case be

9 suspended and that Petitioner be placed on probation for thirty days “after the

10 completion” of the -290 case; and that the sentence in the -271 case be suspended

11 and that Petitioner be placed on probation for thirty days “after the completion” of

12 the -269 case. It is this feature of consecutive probationary terms and Petitioner’s

13 multiple probation violations which give rise to the primary issue in this case.

14 {7} Petitioner violated probation multiple times over the years following his

15 sentencing. The original five-year period of probation was from February 8, 2011,

16 to February 7, 2016. On June 11, 2013, the district court revoked Petitioner’s

17 probation, reinstated probation, and imposed a new probation term of five years,

18 beginning June 11, 2013. Subsequently, on September 27, 2013, the district court

19 once again revoked Petitioner’s probation, reinstated probation, and imposed a new

4 1 five-year probationary term from September 27, 2013, to September 26, 2018. On

2 May 23, 2014, the district court revoked Petitioner’s probation for the third time.

3 This order was different than the preceding orders because no new five-year term of

4 probation was imposed. Instead, the district court reinstated probation for the period

5 of September 27, 2013, to September 26, 2018. On July 15, 2016, the district court

6 revoked Petitioner’s probation a fourth time. In this order, the district court

7 continued Petitioner’s probation under the terms and conditions set forth in the

8 original judgment and sentence with the additional condition that Petitioner serve a

9 six-month sanction in the Otero County Detention Center. The resulting order of

10 probation states that Petitioner is “under probation supervision until 2/14/2017 or

11 until further order of the [c]ourt” (emphasis added).

12 {8} On February 21, 2017, the district court filed its order of discharge on

13 suspended sentence. This order recites that the period of suspension expired on

14 February 4, 2017. The order of discharge changes the termination date from

15 February 14, 2017, to February 4, 2017, but is nevertheless consistent with the latter

16 possibility in the order of probation stating that Petitioner is “under probation

17 supervision until 2/14/2017 or until further order of the [c]ourt” (emphasis added).

18 The order of discharge continues, stating that “pursuant to [NMSA 1978,] Section

19 31-20-8 [(1963)], [Petitioner] is relieved of any obligation imposed upon him[] by

5 1 said order of the [c]ourt and has satisfied his[] criminal liability for the crime charged

2 herein.” The order of discharge was filed only in the -270 case.

3 {9} Following the order of discharge, the State filed yet another petition to revoke

4 probation on February 26, 2018. This petition was not filed in the -270 case because

5 the State said Petitioner’s sentence in the -270 case “was completed on February 4,

6 2017.” The petition alleged that Petitioner’s then-current probation in the -290 case

7 was from February 4, 2017, to February 4, 2022. On May 9, 2018, the district court

8 entered its order revoking probation and committing Petitioner to the Department of

9 Corrections. After giving Petitioner credit for six years in the -270 case and credit

10 for time served in the -290 case, the district court calculated that the balance on

11 Petitioner’s sentence was 7,220 days. The district court ordered Petitioner to serve

12 2,292 days of those days in the custody of the Department of Corrections. The

13 balance of 4,928 days was suspended, and Petitioner was ordered to serve a new

14 five-year term of probation. This order was filed in the -269, -271, and -290 cases.

15 {10} Acting pro se, on October 17, 2018, Petitioner filed a habeas corpus petition

16 in the district court. Petitioner asserted he was illegally sentenced, did not receive

17 the proper credit calculations, and received ineffective assistance of counsel. The

18 district court appointed an attorney to review the illegal sentence and credit

6 1 calculation claims, but did not order the attorney to review the ineffective assistance

2 of counsel claim. 1

3 {11} The district court entered a procedural order on Petitioner’s petition for habeas

4 corpus in which the district court recalculated Petitioner’s credit for presentence

5 confinement. The district court concluded that Petitioner had not been awarded 245

6 days of credit for presentence confinement in the -270 case, with the result that the

7 February 21, 2017, order of discharge on suspended sentence should have stated that

8 Petitioner’s sentence in the -270 case expired on June 4, 2016, not February 4, 2017.

9 The result of the correction was that the balance on Petitioner’s sentence was 6,975

10 days instead of 7,220 days. Petitioner was still ordered to serve 2,292 of those days

11 in the custody of the Department of Corrections, with the balance suspended under

12 a new five-year term of probation. The district court otherwise denied Petitioner’s

13 requested habeas corpus relief.

14 {12} On February 7, 2020, the district court entered an amended order revoking

15 probation and committing Petitioner to the Department of Corrections, reiterating

16 that Petitioner was discharged from the -270 case on June 4, 2016, setting forth the

1 In light of our disposition of this case, we do not address the ineffective assistance of counsel issue in this opinion.

7 1 new calculations, and ordering Petitioner’s incarceration in the Department of

2 Corrections for 2,292 days, followed by the new five-year term of probation.

3 {13} Petitioner requested certiorari review pursuant to Rule 12-501, which we

4 granted. For the reasons stated herein, we reverse the district court, grant habeas

5 corpus relief, and order Petitioner’s immediate release from custody upon issuance

6 of the mandate.

7 II. DISCUSSION

8 {14} We begin by addressing the consequence of consolidating Petitioner’s district

9 court cases. We then address the error in stacking consecutive five-year terms of

10 probation with the result that Petitioner’s custody is now illegal. Finally, we address

11 Petitioner’s argument that his three convictions for conspiracy violate double

12 jeopardy.

13 A. Legality of Petitioner’s Sentence and Custody

14 {15} Petitioner maintains that he always believed he was facing a total of only five

15 years of probation, despite his total sentencing exposure equating to twenty-seven

16 years. Petitioner asserts that the total period of probation the district court could have

17 imposed was five years, and that the district court lacked authority to impose a new

18 five-year probation period following each probation violation. In response, the State

19 argues the district court properly placed Petitioner on new terms of probation

8 1 following each revocation. When, as here, a case “involves issues concerning the

2 district court’s interpretation and application of the sentencing law, it is subject to

3 de novo review.” State v. Brown, 1999-NMSC-004, ¶ 8, 126 N.M. 642, 974 P.2d

4 136.

5 {16} We first address the legal effect of consolidation on Petitioner’s four separate

6 cases. Since at least 1953, the rule has been that “if the separate informations were

7 properly consolidated they would thenceforth be considered as one information

8 containing separate counts.” State v. Compton, 1953-NMSC-036, ¶¶ 41-42, 57 N.M.

9 227, 257 P.2d 915 (considering the number of peremptory challenges a defendant is

10 allotted following consolidation of two cases). Subsequently, in State v. Paschall,

11 1965-NMSC-008, ¶ 3, 74 N.M. 750, 398 P.2d 439, we considered the effect of

12 consolidating separate criminal informations for trial. We said consolidation “means

13 trying the several different criminal informations, charging separate offenses, at one

14 time and before one jury—a procedure which involves separate verdicts respecting

15 each offense charged and tried.” Id.

16 {17} The current rules of criminal procedure lack explicit provisions about the

17 effect of consolidation. However, the local rules of several districts, which we have

18 approved, give direction on the effect of consolidation. For example, when two or

19 more cases are consolidated, all the pleadings filed after consolidation are docketed

9 1 and placed in the file with the lowest case number. See LR1-108(B) NMRA; LR3-

2 204(C) NMRA; LR5-213(B) NMRA. Further, “[t]he case number of each case

3 consolidated shall appear in the caption of all pleadings, motions, and other papers

4 filed after consolidation.” LR5-213(C); see also LR3-204(D). Based on the

5 procedural history of this case and lack of explicit provisions outlining the effect of

6 consolidation, we request that the appropriate rules committees define the effect of

7 consolidation within our Rules of Criminal Procedure for the District, Metropolitan,

8 and Magistrate Courts.

9 {18} Here, Petitioner’s four separate cases were “consolidated into [the -269 case]

10 for plea and disposition.” The legal effect was that upon consolidation, there was a

11 single case, the -269 case, with multiple underlying charges. The order of

12 consolidation ultimately resulted in a single judgment and sentence. However,

13 despite consolidation, the judgment and sentence sets forth a separate probation

14 period for each original case in which the probation terms were stacked. We now

15 turn to whether this was permissible.

16 {19} “When a person has been convicted of a crime for which a sentence of

17 imprisonment is authorized and when the . . . district court has . . . suspended [the]

18 sentence, it shall order the defendant to be placed on probation for all or some portion

19 of the period of deferment or suspension . . . .” NMSA 1978, Section 31-20-5(A)

10 1 (2003). Critical to the case before us, the statute explicitly directs, “the total period

2 of probation for district court shall not exceed five years.” Id. Our Court of Appeals

3 explained in State v. Devigne, 1981-NMCA-088, ¶¶ 28-33, 96 N.M. 561, 632 P.2d

4 1199, that when a period of probation is entered on a multiple count indictment at

5 one trial, the district court cannot impose a total term of probation longer than five

6 years. The Court of Appeals based its conclusion on the statutory text of Section 31-

7 20-5 and the statute’s legislative history. Id. ¶ 33. We agree with the Court of

8 Appeals on this point, and hold that when two or more cases are consolidated for a

9 plea and sentencing, if the district court in its discretion suspends all or part of the

10 sentence only a single term of probation, not to exceed five years, can be imposed.

11 {20} That is not to say that a probationer cannot be required to serve more than five

12 years on probation. When a probation violation “is established, the [district] court

13 may continue the original probation or revoke the probation and either order a new

14 probation with any condition provided for in Section 31-20-5 or [NMSA 1978,

15 Section] 31-20-6 [(2007)] . . . or require the probationer to serve the balance of the

16 sentence imposed or any lesser sentence.” NMSA 1978, § 31-21-15(B) (2016). Thus,

17 if all or a part of the sentence is suspended under a five-year term of probation, the

18 district court may properly revoke probation and impose a new five-year period of

19 probation if the defendant violates the terms and conditions of probation during the

11 1 original term of probation. State v. Baca, 2005-NMCA-001, ¶¶ 13-15, 136 N.M. 667,

2 104 P.3d 533. This case is an example of such a scenario. As explained subsequently

3 herein, Petitioner properly served six years of probation.

4 {21} We disagree with Petitioner’s argument that each of the district court’s

5 revocations and reinstatements of probation were illegal. The original probation term

6 was from February 8, 2011 to February 7, 2016. Within that term, on June 11, 2013,

7 the district court revoked and reinstated Petitioner’s probation and imposed a new

8 five-year term of probation from June 11, 2013 to June 10, 2018. Within this new

9 term of probation, on May 23, 2014, the district court revoked and reinstated

10 Petitioner’s probation. However, the district court did not impose a new probationary

11 term and opted to reinstate the existing term of probation which expired on

12 September 26, 2018. Finally, within the existing term of probation, on July 15, 2016,

13 the district court revoked Petitioner’s probation and reinstated the probation with an

14 additional condition that Petitioner serve six months in the Otero County Detention

15 Center. Each of the foregoing times the district court revoked and reinstated

16 probation, the district court complied with Section 31-20-5 and Baca, 2005-NMCA-

17 001, ¶¶ 13-15. These were followed by the district court’s order filed on February

18 21, 2017, that Petitioner’s five-year probation ended on February 4, 2017. The

12 1 illegality of Petitioner’s detention stems from what happened next under the

2 structure of the stacked probation terms set forth in the judgment and sentence.

3 {22} The February 21, 2017 order, which determined that Petitioner’s five-year

4 term of probation had expired was only filed in the -270 case. Correctly

5 understanding that the judgment and sentence intended to impose stacked terms of

6 probation, the State filed another petition to revoke probation in the -290 case,

7 contending that the period of probation in this case started on February 4, 2017, and

8 ended on February 4, 2022. Upon finding that Petitioner violated probation during

9 this time, on April 25, 2018, the district court revoked probation and ordered

10 Petitioner’s incarceration in the Department of Corrections for 2,292 days, followed

11 by another five-year term of probation. As noted previously herein, the district court

12 later recalculated Petitioner’s credit for presentence confinement (which resulted in

13 an earlier termination of probation in the -270 case), but still ordered incarceration

14 in the Department of Corrections for 2,292 days, followed by five years of probation.

15 When the district court subsequently revoked Petitioner’s probation, sentenced

16 Petitioner to the Department of Corrections, and imposed a new five-year term of

17 probation, those actions violated Section 31-20-5(A) as construed in Devigne, 1981-

18 NMCA-088, ¶¶ 28-33. In fact, while Section 31-20-5(A) limits a term of probation

19 to five years, the structure of the judgment and sentence here required Petitioner to

13 1 serve more than ten years of probation. The question remains: what relief is

2 Petitioner entitled to receive?

3 {23} For the answer to this question, we look to the district court’s February 21,

4 2017, order of discharge filed in the -270 case. The order provides:

5 [Petitioner was] placed under the supervision of the Probation Division 6 for a period of 5 year(s), 0 month(s), 0 day(s), as evidenced by a copy 7 of the Judgment and Sentence entered [in] this case, and;

8 It further appearing to the [c]ourt that the period of suspension expired 9 on 2/4/2017 . . . .

10 THEREFORE, IT IS ORDERED THAT pursuant to Section 31-20-8, 11 . . . [Petitioner] is relieved of any obligation imposed upon him[] by 12 said order of the [c]ourt and has satisfied his[] criminal liability for the 13 crime charged herein.

14 {24} The order says two things: (1) Petitioner’s five-year term of probation

15 imposed by the judgment and sentence has “expired”; and (2) Petitioner “is relieved

16 of any obligation imposed upon him[] by said order of the [c]ourt and has satisfied

17 his[] criminal liability for the crime charged herein.” As we already stated, the date

18 that the probation expired was later changed from February 4, 2017, to June 4, 2016

19 (after the district court recalculated Petitioner’s presentence confinement credits),

20 but the order was not otherwise changed and remains in full force and effect. The

21 fact that this order was only filed in the -270 case cannot change the fact that the

22 four separate cases were “consolidated into [the -269 case] for plea and disposition.”

14 1 The legal effect was that upon consolidation, there was a single case, the -269 case,

2 with multiple underlying charges, which resulted in a single judgment and sentence.

3 {25} The first consequence of the order of discharge is that after February 4, 2017,

4 the district court had no jurisdiction to revoke Petitioner’s probation. Under New

5 Mexico case law, Section 31-20-8 combined with Section 31-21-15(B) deprives

6 district courts of jurisdiction to revoke probation once the probationary period has

7 expired. See State v. Ordunez, 2012-NMSC-024, ¶¶ 2, 9, 283 P.3d 282 (concluding

8 the district court lacked jurisdiction over the petition to revoke probation after the

9 probationary term expired). The second consequence is that the district court order

10 declaring that Petitioner “has satisfied his[] criminal liability for the crime charged

11 herein” applies to the entire judgment and sentence. After February 4, 2017,

12 Petitioner was no longer subject to the judgment and sentence. The core purpose of

13 the writ of habeas corpus—to protect an individual from illegal custody or

14 restraint—goes to the heart of this case. Caristo v. Sullivan, 1991-NMSC-088, ¶ 25,

15 112 N.M. 623, 818 P.2d 401 (“Because the writ of habeas corpus protects our most

16 basic right of freedom from illegal restraint on personal liberty, the writ must be

17 construed to afford a swift and imperative remedy in all cases of illegal restraint or

18 confinement.” (internal quotation marks and citations omitted)). Petitioner shall be

19 immediately released from custody upon the issuance of our mandate in this case.

15 1 B. Double Jeopardy Violations

2 {26} Next, we address whether Petitioner’s three convictions and sentences for

3 conspiracy violate double jeopardy. The sentence imposed under a plea agreement

4 can violate double jeopardy. State v. Jackson, 1993-NMCA-092, ¶¶ 10-11, 116 N.M.

5 130, 860 P.2d 772. Furthermore, the fact that we have determined Petitioner has

6 served his sentence is no bar to our review of this claim. See id. ¶ 12 (“In New

7 Mexico, ‘double jeopardy may not be waived and may be raised . . . at any stage of

8 a criminal prosecution, either before or after judgment.’” (quoting NMSA 1978, §

9 30-1-10 (1963))).

10 {27} Petitioner argues his three conspiracy convictions violate double jeopardy

11 because his conduct underlying the conspiracy convictions was unitary. The State

12 argues that the conduct was not unitary because the convictions either involved

13 different victims or occurred on different days. “This Court reviews claims involving

14 alleged violations of a defendant’s right to be free from double jeopardy de novo.”

15 State v. Loza, 2018-NMSC-034, ¶ 4, 426 P.3d 34.

16 {28} Both the United States Constitution and the New Mexico Constitution

17 guarantee that no person shall be “twice put in jeopardy” for the same offense. U.S.

18 Const. amend. V; N.M. Const. art. II, § 15. Double jeopardy protects against

19 successive prosecutions and multiple punishments for the same offense. See

16 1 Swafford v. State, 1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223. Multiple

2 punishment cases are classified in one of two ways: double description cases or unit

3 of prosecution cases. State v. Gallegos, 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254

4 P.3d 655. In double description cases, “a single act results in multiple charges under

5 different criminal statutes”; unit of prosecution cases arise when “an individual is

6 convicted of multiple violations of the same criminal statute.” Id. (internal quotation

7 marks and citations omitted). Petitioner pleaded guilty to three conspiracy crimes

8 under NMSA 1978, Section 30-28-2 (1979), so this is a multiple punishment case,

9 and we therefore apply the unit of prosecution analysis. In analyzing a unit of

10 prosecution claim, the relevant inquiry is “whether the [L]egislature intended

11 punishment for the entire course of conduct or for each discrete act.” Swafford, 1991-

12 NMSC-043, ¶ 8.

13 {29} This Court originally applied the unit of prosecution analysis to the conspiracy

14 statute, § 30-28-2, in Gallegos, 2011-NMSC-027, ¶¶ 43-64. The Gallegos Court

15 inferred that based on the “text, history, and purpose of our conspiracy statute . . .

16 the Legislature established . . . a rebuttable presumption that multiple crimes are the

17 object of only one, overarching, conspiratorial agreement subject to one, severe

18 punishment set at the highest crime conspired to be committed.” Id. ¶ 55. The State

19 may overcome this presumption of singularity, “but doing so requires the state to

17 1 carry a heavy burden.” Id. To determine whether the presumption of singularity is

2 overcome, Gallegos adopted a totality of the circumstances test. Id. ¶ 56. Under this

3 totality of the circumstances test, we consider whether

4 “(a) the location of the two alleged conspiracies is the same; (b) there 5 is a significant degree of temporal overlap between the two conspiracies 6 charged; (c) there is an overlap of personnel between the two 7 conspiracies (including unindicted as well as indicted co-conspirators); 8 and (d) the overt acts charged and (e) the role played by the defendant 9 in the alleged conspiracies are similar.”

10 Id. ¶ 42 (alterations, ellipsis, and citation omitted). We continue to rely on these

11 factors from the Gallegos analysis in analyzing conspiracy double jeopardy cases.

12 State v. Comitz, 2019-NMSC-011, ¶¶ 33-34, 443 P.3d 1130; State v. Ortega, 2014-

13 NMSC-017, ¶ 27, 327 P.3d 1076.

14 {30} Since there was no trial, we consider only the limited facts contained in the

15 statement of facts from Petitioner’s guilty plea. See Jackson, 1993-NMCA-092, ¶¶

16 11, 18 (considering only the facts established at the guilty plea hearing to determine

17 if the sentence imposed under a plea agreement violated double jeopardy). The facts

18 are as follows:

19 On or about June 02 and 03, 2010, I did enter four separate locked 20 storage units, located at 2801 Indian Wells Rd., Alamogordo, NM, 21 without authorization or permission, with intent to commit a theft when 22 I got inside and I conspired by words and acts together with another 23 person to break into the units. . . .

18 1 On or about June 02, 2010, I did enter two different locked storage 2 units, located at 3110 North Florida, Alamogordo, NM, without 3 authorization or permission, with intent to commit a theft when I got 4 inside and I conspired by words and acts together with another person 5 to break into the units. . . .

6 On or about June 02, 2010, I did take and carry away two metal dyes 7 and one Columbia Shuttle medallion, belonging to Tularosa Basin 8 Historical Society (Mrs. Dolores Rogers), which had a market value of 9 over $2500, and at the time the property was taken, intended to 10 permanently deprive the owner of it and . . . I conspired by words and 11 acts together with another person to take said property.

12 The two metal dyes and the medallion were stolen from the Alamogordo Chamber

13 of Commerce Museum. We apply the factors from the Gallegos analysis to these

14 facts from Petitioner’s guilty plea.

15 {31} First—as to whether the conspiracies occurred at the same location—the

16 statement of facts provides that the two conspiracies to commit nonresidential

17 burglary and the conspiracy to commit larceny occurred at three separate locations:

18 (1) four storage units at 2801 Indian Wells Road, (2) two storage units at 3110 North

19 Florida, and (3) the Alamogordo Chamber of Commerce Museum. This first factor

20 weighs towards finding separate conduct.

21 {32} Regarding the second factor—whether the conspiracies overlap in time—

22 because all of the alleged conspiracies occurred on the same day, June 2, 2010, and

23 because the State failed to introduce evidence of intervening conduct or distinct

24 conspiratorial agreements, the State failed to satisfy its burden by showing “how this

19 1 Court can meaningfully distinguish between the three charged conspiracies in a way

2 that would justify multiple punishment under the conspiracy statute.” Gallegos,

3 2011-NMSC-027, ¶ 62; see id. ¶ 46 (“A single conspiracy can last for years, with

4 many of its substantive offenses being completed during that time. . . . Furthermore,

5 a conspiracy may mature and expand over time, adding more members and

6 embracing additional criminal objectives without changing the fundamental nature

7 of the single agreement.” (internal quotation marks and citations omitted)). Even if

8 we were to attempt to distinguish the discreet conspiracies temporally throughout

9 that day, it does not follow that Defendant entered into a new conspiracy each time

10 he committed burglary and larceny, and it “would be contrary to the plain language

11 of our conspiracy statute, which punishes the act of combining with another, not the

12 objects that were to be committed” to presume such a finding. Id. ¶ 62. Thus, the

13 second factor weighs in favor of singularity.

14 {33} As to the third factor—whether there was the same or overlapping

15 personnel—the record indicates Petitioner conspired with at least one other person.

16 However, there is no conclusive evidence before this Court as to whether there was

17 more than one other coconspirator. We conclude this third factor cannot be used to

18 meaningfully weigh towards a finding of separate conduct or towards a finding of

19 singularity.

20 1 {34} Fourth, to determine whether defendant was charged with similar overt acts,

2 we look to the statutory definitions of the criminal acts underlying the conspiracy

3 convictions. NMSA 1978, Section 30-16-3(B) (1971), outlining the elements of

4 nonresidential burglary, states: “Any person who, without authorization, enters any

5 vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to

6 commit any felony or theft therein is guilty of a fourth degree felony.” “The crime

7 of burglary is complete when there is an unauthorized entry with the necessary

8 intent; the intent does not have to be carried out after entry.” State v. McAfee, 1967-

9 NMSC-139, ¶ 17, 78 N.M. 108, 428 P.2d 647. NMSA 1978, Section 30-16-1(A)

10 (2006), outlines the elements of larceny: “Larceny consists of the stealing of

11 anything of value that belongs to another.” Moreover, as established in McAfee, the

12 elements of burglary and larceny do not merge: “Since stealing is a necessary

13 element of larceny but is not a necessary element of burglary, larceny is not

14 necessarily involved in a burglary. . . . [A d]efendant could be convicted of and

15 sentenced for both crimes.” McAfee, 1967-NMSC-139, ¶ 18. Because the elements

16 of nonresidential burglary and larceny do not have similar overt acts, this fourth

17 factor weighs towards finding separate conduct.

21 1 {35} Fifth, looking as to whether Petitioner played a similar role in each

2 conspiracy, the record establishes that Petitioner was the constant actor in each of

3 the three conspiracies. This fifth factor weighs towards a finding of singularity.

4 {36} Thus, of the five factors, two factors weigh towards a finding of singularity,

5 two factors weigh in favor of a finding of separate conduct, and one factor does not

6 meaningfully affect the analysis. It is therefore untenable to conclude that there were

7 three separate agreements in such a way that would justify multiple punishments

8 under the conspiracy statute based on the limited factual record before us. The

9 evidence does not demonstrate more than one agreement between two or more

10 coconspirators nor that two conspirators made multiple agreements on or about June

11 2, 2010.

12 {37} In addition to the lack of facts, the presumption of singularity is the strongest

13 barrier to concluding that there were three separate conspiracies. During the plea

14 hearing and sentencing hearings, the State did not present more evidence to prove

15 there were three separate agreements. Further, on appeal the State has not

16 highlighted specific evidence in the record to overcome the presumption of

17 singularity. Therefore, the presumption has not been rebutted and we hold that

18 Petitioner’s conspiratorial conduct was unitary.

22 1 {38} Thus, we turn to the proper remedy for violation of Petitioner’s double

2 jeopardy rights. In Jackson, the defendant appealed two consecutive sentences

3 imposed for conspiracy which were imposed as a result of his guilty plea. 1993-

4 NMCA-092, ¶¶ 1, 4, 8. The Court of Appeals agreed with the defendant that there

5 was only one conspiracy. Id. ¶¶ 2, 21. Treating the appeal as a request to vacate the

6 plea agreement, the Court of Appeals determined that the defendant was entitled to

7 have his plea vacated only if the state agreed; alternatively, the state could agree to

8 accept the sentence imposed, as corrected by the determination that there was only

9 one conspiracy. Id. ¶ 24. Importantly, in Jackson, the defendant had not yet fully

10 served his sentence. Id. ¶¶ 5, 8. In contrast, in this case, Petitioner has already served

11 his sentence, including the probation term for one conspiracy conviction. Therefore,

12 on remand, we direct the district court to enter an amended judgment and sentence

13 vacating Petitioner’s remaining two conspiracy convictions.

14 III. CONCLUSION

15 {39} We grant habeas corpus relief. Petitioner shall be released from custody

16 immediately upon the issuance of our mandate. The district court’s order

17 consolidating the four cases resulted in a single judgment and sentence. We reverse

18 the district court because the subsequent February 21, 2017, order of discharge on

19 suspended sentence, as amended, not only terminated Petitioner’s probation but also

23 1 determined that Petitioner satisfied his criminal liability for the crimes charged, and

2 discharged Petitioner from any obligation imposed by the judgment and sentence as

3 of June 4, 2016. In addition, upon remand, the district court shall enter an amended

4 judgment and sentence vacating two conspiracy convictions.

5 {40} IT IS SO ORDERED.

6 7 MICHAEL E. VIGIL, Justice

8 WE CONCUR:

9 10 C. SHANNON BACON, Chief Justice

11 12 DAVID K. THOMSON, Justice

13 14 JULIE J. VARGAS, Justice

15 BRIANA H. ZAMORA, Justice, concurring in part, dissenting in part 16

24 1 ZAMORA, Justice (concurring in part and dissenting in part).

2 {41} I agree with the majority that orders of consolidation result in a single

3 judgment and sentence, that only a single term of probation can be imposed when

4 two or more cases are consolidated for plea and sentencing, and that Petitioner

5 should be immediately released from custody because he is no longer lawfully

6 detained. Maj. op. ¶¶ 18-19, 25. But I cannot join the majority’s opinion for two

7 reasons. First, the Court’s conclusion that a district court may order a defendant to

8 complete a new five-year period of probation each and every time there is a

9 probation violation, regardless of the severity of the alleged violation and regardless

10 of how many years of probation the defendant has already served, is contrary to the

11 plain language of NMSA 1978, Section 31-20-5(A) (2003). I also believe the Court

12 should remand the double jeopardy issue to the district court. Petitioner did not raise

13 double jeopardy below so no record on the issue was developed in the district court.

14 Moreover, Petitioner’s counsel neglected to sufficiently address double jeopardy in

15 the brief in chief and at oral argument. Accordingly, I respectfully concur in part and

16 dissent in part.

25 1 I. ORDERING A NEW FIVE-YEAR PROBATIONARY PERIOD IS NOT 2 PERMITTED UNDER SECTION 31-20-5(A) EACH TIME A 3 DEFENDANT VIOLATES PROBATION

4 {42} In its analysis of the probation issue, the majority relies in part on State v.

5 Baca, 2005-NMCA-001, 136 N.M. 667, 104 P.3d 533. This Court has yet to review

6 the holding in Baca, which the majority relies on to conclude that pursuant to NMSA

7 1978, Section 31-21-15(B) (2016), a district court can start a new five-year period

8 of probation each time a defendant commits a probation violation until the Court no

9 longer has jurisdiction. Maj. op. ¶¶ 20-21. Because I believe this result contravenes

10 legislative intent and that the Baca Court’s interpretation of Section 31-21-15(B)

11 conflicts with the plain language of Section 31-20-5(A), I would overrule Baca and

12 hold that a district court may not start a new five-year period of probation each time

13 a defendant is found to have violated probation.

14 {43} Here, the district court sentenced Petitioner in 2011 to a total term of twenty-

15 seven years based on his guilty plea to charges that were consolidated for purposes

16 of plea and disposition. Maj. op. ¶¶ 3-4. The court suspended part of Petitioner’s

17 initial sentence and he was ordered to a period of probation. Maj. op. ¶ 7. Petitioner

18 violated his probation three times prior to the expiration of this term. Maj. op. ¶ 7.

19 In each instance, the district court revoked and reinstated Petitioner’s probation

20 pursuant to Section 31-21-15(B). Maj. op. ¶ 7. However, following the first and

26 1 second revocations, the district court started an entirely new five-year period of

2 probation, setting new expiration dates of June 10, 2018, and September 26, 2018,

3 respectively. Maj. op. ¶ 7.

4 {44} The majority concludes that each order starting a new five-year period of

5 probation was proper and that it was only when the district court revoked Petitioner’s

6 probation on May 9, 2018, that it acted outside its authority. Maj. op. ¶¶ 20-22. While

7 I agree that the district court did not have jurisdiction to issue its May 9, 2018,

8 revocation order, I disagree that its June 11, 2013, and September 27, 2013, orders

9 extending Petitioner’s probationary term beyond the five-year statutory limit

10 established in Section 31-20-5(A) were lawful. The legality of Petitioner’s probation

11 term depends upon the interplay between two statutes bearing on the imposition of

12 probation: Section 31-20-5(A) (the probation statute) and Section 31-21-15(B) (the

13 probation revocation statute). Section 31-20-5(A) provides:

14 When a person has been convicted of a crime for which a sentence of 15 imprisonment is authorized and when the magistrate, metropolitan or 16 district court has deferred or suspended sentence, it shall order the 17 defendant to be placed on probation for all or some portion of the period 18 of deferment or suspension if the defendant is in need of supervision, 19 guidance or direction that is feasible for the corrections department to 20 furnish. Except for sex offenders as provided in [NMSA 1978,] Section 21 31-20-5.2 [(2003)], the total period of probation for district court shall 22 not exceed five years . . . .

27 1 Id. (emphasis added). Section 31-21-15(B) states that, following a revocation

2 application:

3 The court shall then hold a hearing, which may be informal, on the 4 violation charged. If the violation is established, the court may continue 5 the original probation or revoke the probation and either order a new 6 probation with any condition provided for . . . or require the 7 probationer to serve the balance of the sentence imposed or any lesser 8 sentence. If imposition of sentence was deferred, the court may impose 9 any sentence that might originally have been imposed, but credit shall 10 be given for time served on probation.

11 Id. (emphasis added).

12 {45} The majority asserts that the district court’s orders restarting Petitioner’s

13 probation were lawful because “the district court complied with Section 31-20-5 and

14 Baca, 2005-NMCA-001, ¶¶ 13-15” in issuing them. Maj. op. ¶ 21. However, by its

15 plain language, Section 31-20-5(A) establishes that “[e]xcept for sex offenders as

16 provided in Section 31-20-5.2 NMSA 1978, the total period of probation for district

17 court shall not exceed five years.” (Emphasis added). Accordingly, the majority’s

18 conclusion that the district court’s orders restarting Petitioner’s probation term were

19 lawful rests on the Court of Appeals’ decision in Baca. Because I believe Baca was

20 wrongly decided, I cannot join the majority’s endorsement of that holding in this

21 opinion.

22 {46} Our primary purpose in interpreting statutes is to give effect to the

23 Legislature’s intent. Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047. The

28 1 primary indicator of that intent is the plain language of the provision. Id. Therefore,

2 where the language of a statute is plain, our inquiry is at an end. State v. Trujillo,

3 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. We “will not depart from the

4 plain language of the statute unless it is necessary to resolve an ambiguity, correct a

5 mistake or an absurdity that the Legislature could not have intended, or . . . deal with

6 an irreconcilable conflict among statutory provisions.” Maestas v. Zager, 2007-

7 NMSC-003, ¶ 9, 141 N.M. 154, 152 P.3d 141 (internal quotation marks and citation

8 omitted).

9 {47} In my view, the language of Section 31-20-5(A) is unambiguous. The statute

10 mandates that a probationary period is not to exceed five years in total. See Marbob

11 Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 22, 146 N.M.

12 24, 206 P.3d 135 (“[W]hen construing statutes, ‘shall’ indicates that the provision is

13 mandatory.”).

14 {48} In Baca, the Court of Appeals nonetheless held that Section 31-20-5(A) could

15 not mean what it says because, in the Court’s estimation, the plain meaning of the

16 provision would contravene the legislative purpose behind the probation statutes.

17 Baca, 2005-NMCA-001, ¶¶ 16-17, 19. In that case, the defendants argued that

18 Section 31-20-5(A) prohibits imposition of more than five years of probation in the

19 aggregate. Id. ¶¶ 8, 11. The State asserted that the statute prohibits only the

29 1 imposition of a probationary term of greater than five years at initial sentencing,

2 arguing that nothing in Section 31-20-5(A) prevents a defendant from serving longer

3 than five years overall if there are probation violations. Id. ¶ 18. The Court agreed

4 with the State. Id.

5 {49} According to the Baca Court, adherence to the plain language of Section 31-

6 20-5(A) would frustrate the purposes of the probation statutes in three ways. First,

7 the Court asserted that the word “total” in Section 31-20-5(A) could not be construed

8 to mean five years in the aggregate without rendering the option to “order a new

9 probation with any condition” in Section 31-21-15(B) a “nullity.” Id. ¶¶ 13, 18.

10 Second, the Baca Court concluded that the defendants’ proposed construction would

11 permit a defendant to violate probation multiple times without consequence. Id. ¶

12 19. Finally, the Court concluded that a new five-year period of probation furthered

13 the legislative purpose of enhancing the rehabilitation of probationers by offering

14 additional flexibility to district courts beyond either continuing the probation or

15 revoking probation and sending the defendant to jail. Id. ¶ 20.

16 {50} I disagree. The Court of Appeals’ conclusions in Baca are predicated on a

17 mistaken premise. The Court appeared to believe that the option to “revoke the

18 probation and . . . order a new probation with any [authorized] condition” under

19 Section 31-21-15(B) must mean “revoke the existing probation and restart the

30 1 probationary term” because, if it did not, then it would be indistinguishable from the

2 first option (continue the probation). See Baca, 2005-NMCA-001, ¶ 18. However,

3 “revoke the probation and . . . order a new probation with any [authorized]

4 condition” is readily susceptible to a different interpretation that would distinguish

5 it from continuing probation. See § 31-21-15(B). A court could order a “new

6 probation with any condition provided for” under Sections 31-20-5 and -6 even if it

7 did not extend the probation term if the court attached new or different conditions.

8 Moreover, if the original probationary term were for a period shorter than five years,

9 “order[ing] a new probation term” could mean imposing a longer probationary term,

10 so long as it did not exceed five years in total when combined with the prior

11 probation term. In other words, Section 31-21-15(B) could be construed to authorize

12 a district court to: (1) continue the probation as is for the balance of the existing

13 probation term, which cannot be longer than five years; (2) revoke the probation and

14 order a new probation for the balance of the term with different and/or additional

15 conditions or for a longer term, so long as the total probation period does not exceed

16 five years; or (3) revoke the probation and incarcerate the defendant for the balance

17 of the sentence or some lesser term.

18 {51} This is a more harmonious reading of Sections 31-21-15(B) and 31-20-5(A)

19 than that adopted by the majority and Baca because it gives effect to the plain

31 1 language of both statutes. See State v. Farish, 2021-NMSC-030, ¶ 11, 499 P.3d 622

2 (stating that the Court reads statutes as a whole and that the Legislature “is presumed

3 not to have used any surplus words in a statute; each word must be given meaning”).

4 Recall that Section 31-20-5(A) provides, in part, that “[e]xcept for sex offenders as

5 provided in Section 31-20-5.2 NMSA 1978, the total period of probation for district

6 court shall not exceed five years . . . .” (Emphasis added.) The dictionary definition

7 of the word “total” indicates it most commonly signifies an entire amount, including

8 an amount produced by adding or summing constituent parts. Total, Merriam-

9 Webster’s Collegiate Dictionary (11th ed. 2004) (defining “total” as “a product of

10 addition: sum,” “an entire quantity”); see State v. Vest, 2021-NMSC-020, ¶ 14, 488

11 P.3d 626 (noting that this Court “consult[s] common dictionary definitions” when

12 giving words “their ordinary meaning”). Thus, a plain reading of Section 31-20-5(A)

13 indicates that a defendant’s entire probationary term—including any and all partial

14 probationary periods—must not exceed five years. By contrast, the Baca Court’s

15 interpretation of the probation statutes renders the word “total” superfluous to this

16 provision. Such a construction is disfavored by New Mexico law. State v. Juan,

17 2010-NMSC-041, ¶ 39, 148 N.M. 747, 242 P.3d 314 (“A statute must be construed

18 so that no part of the statute is rendered surplusage or superfluous.” (internal

19 quotation marks, brackets, and citations omitted)).

32 1 {52} The interpretation of Section 31-21-15(B) that I propose would also resolve

2 the Baca Court’s second concern: that a probationer could repeatedly violate

3 probation and simply run out the clock on the original probation term without

4 consequence. Baca, 2005-NMCA-001, ¶¶ 19-20. On my reading of the statute, a

5 defendant who continued to violate probationary conditions would always be subject

6 to incarceration or to the imposition of new or more restrictive conditions until his

7 or her probation term ran out. Or, if the probationary term imposed at sentencing

8 were for a period of less than five years, the district court could extend it so long as

9 the overall term did not exceed five years. In other words, the district court would

10 not be without options to address a probationer who committed repeat violations.

11 {53} In sum, each of the Court of Appeals’ concerns in Baca may be addressed by

12 construing the option to “start a new probation” under Section 31-21-15(B) to mean

13 that a district court may revoke a defendant’s probation and order a new probation

14 for the balance of the existing probationary period with new or different conditions,

15 or order a longer probation period so long as the total period of probation does not

16 exceed five years. Each of these options provides a clear mechanism by which a

17 district court may reconsider and recalibrate a defendant’s probation to enhance its

18 rehabilitative potential. See State v. Rivera, 2004-NMSC-001, ¶ 21, 134 N.M. 768,

19 82 P.3d 939 (“Sections 31-20-5 and 31-21-15 [are] indicative of the Legislature's

33 1 intent to give trial courts broad discretion to sentence defendants to probationary

2 terms and strictly monitor their compliance with an eye toward the goal of prompt

3 and effective rehabilitation”). By contrast, it is not at all clear how the Baca Court’s

4 reading of the statute—which authorizes a district court to simply extend its

5 jurisdiction over a defendant rather than reconsider the rehabilitative purposes of the

6 probation conditions—does anything to advance the legislative purpose of our

7 probation statutes. “The broad general purposes to be served by probation are

8 education and rehabilitation. . . . The conditions of probation are directed to that

9 end.” State v. Baca, 1977-NMCA-030, ¶ 10, 90 N.M. 280, 562 P.2d 841.

10 {54} Even if there were an ambiguity in the probation statutes, I do not believe that

11 the Baca Court’s interpretation of the interplay between Sections 31-20-5 and 31-

12 21-15 is either necessary or desirable to give effect to the Legislature’s intent in

13 enacting them. To the contrary, the interpretation advanced by Baca and endorsed

14 by the majority in this opinion could result in several absurd sentencing outcomes.

15 For example, a defendant (like Petitioner) charged with multiple counts in a

16 consolidated case could serve decades of probation if a district court is permitted to

17 start a new five-year period of probation each time a defendant violates probation,

18 as occurred in this case. And of course a new five-year period of probation could

19 start again and again upon a finding of a violation, rendering the five-year limit stated

34 1 in Section 31-20-5(A) barely a suggestion, much less a requirement. Moreover,

2 while all agree that Petitioner could not be sentenced to more than five years’

3 probation at initial sentencing, regardless of the court’s overall jurisdiction, maj. op.

4 ¶ 19, the Baca Court’s interpretation of Section 31-21-15 allows for an actual

5 probation period spanning many times that length. Surely, this cannot be what the

6 Legislature intended.

7 {55} Further, to the extent that there remains “insurmountable ambiguity” about

8 the Legislature’s intent, such doubts should be resolved in favor of lenity toward the

9 defendant. State v. Tafoya, 2010-NMSC-019, ¶ 23, 148 N.M. 391, 237 P.3d 693

10 (internal quotation marks and citation omitted); see United States v. Bass, 404 U.S.

11 336, 347 (1971) (“[A]mbiguity concerning the ambit of criminal statutes should be

12 resolved in favor of lenity.” (internal quotation marks and citation omitted)).

13 Applying the rule of lenity is important for two reasons, both of which are of

14 significance in this case. First, the law must provide a fair warning “in language that

15 the common world will understand, of what the law intends to do if a certain line is

16 passed.” Bass, 404 U.S. at 348 (internal quotation marks and citation omitted). Next,

17 “because of the seriousness of criminal penalties, and because criminal punishment

18 usually represents the moral condemnation of the community, legislatures and not

19 courts should define criminal activity.” Id.; see also United States v. Simpson, 319

35 1 F.3d 81, 86 (2nd Cir. 2002) (applying the rule of lenity to sentencing guidelines

2 because one of the purposes of the rule of lenity is “to maintain the proper balance

3 between Congress, prosecutors, and courts” (internal quotation marks and citation

4 omitted)).

5 {56} Finally, in my view, the Court of Appeals’ reading of the probation statutes in

6 Baca relied in part on an insupportable reading of State v. Devigne, 1981-NMCA-

7 088, 96 N.M. 561, 632 P.2d 1199. According to the Baca Court, Devigne offered no

8 support for the proposition that Section 31-20-5(A) imposes a five-year cap on the

9 total probation that may be served because Devigne “stands for the principle that the

10 maximum period of probation that a district court may impose at sentencing is a total

11 of five years, . . . not that five years is the total amount of time a defendant can serve

12 on probation, regardless of the number of violations.” Baca, 2005-NMCA-001, ¶ 18

13 (emphasis added).

14 {57} In Devigne, the defendant “was sentenced to three years imprisonment on each

15 of five counts.” 1981-NMCA-088, ¶ 22. The court suspended the sentence and

36 1 ordered six years of probation. Id. The defendant argued that Section 31-20-5 2

2 prohibited the imposition of a probation term in excess of five years. Id. ¶ 23. Based

3 on the plain language of the statute, the Devigne Court agreed with the defendant

4 that “the maximum length of his probation cannot exceed five years,” id. (emphasis

5 added), and held that Section 31-20-5 establishes “that the maximum probation for

6 the five sentences imposed upon defendant, for convictions that occurred at one

7 trial, [is] five years.” Id. ¶ 33 (emphasis added).

8 {58} The Court of Appeals in Baca read Devigne as holding only that the five-year

9 limitation period applied to the probation term imposed at initial sentencing, not that

10 a probation term could not be restarted and therefore lengthened during the

11 probationary period. Baca, 2005-NMCA-001, ¶ 18. The Baca Court adopted this

12 interpretation of Devigne based on the concerns already identified. Id. ¶¶ 18-20.

13 However, there is nothing in the Devigne opinion—including its holding—that

14 suggests the Court intended to distinguish between a probationary term imposed at

2 Devigne concerned an earlier version of Section 31-20-5, but the two provisions are nearly identical and there is nothing in the legislative history of Section 31-20-5 that suggests the change enacted in 2003 was intended to modify the effect of the five-year limitation on probation. Compare § 31-20-5(A) (1977), with § 31-20-5(A) (2003). The provision was almost certainly amended to account for the enactment of the sex offender parole statute, Section 31-20-5.2, which was enacted in the same legislative session. See 2003 N.M. Laws, 1st Spec. Sess., ch. 1, § 7.

37 1 sentencing and the period of probation actually served by a defendant. See Devigne,

2 1981-NMCA-088, ¶¶ 23, 33. Nor is there anything in the plain language of Section

3 31-20-5 that suggests the five-year limitation applies only to the probation imposed

4 at sentencing. Section 31-20-5 (referring to “the total period of probation.”).

5 Contrary to the Baca Court’s strained reading of the decision, in my opinion the

6 Devigne Court properly held that “the maximum probation for the five sentences

7 imposed upon defendant, for convictions that occurred at one trial, was five years.”

8 Devigne, 1981-NMCA-088, ¶ 33.

9 {59} I would apply that principle here. Petitioner’s probationary period should have

10 ended after five years, thereafter depriving the district court of authority to revoke

11 his probation. I concur in the majority’s conclusion that Petitioner should be

12 immediately released from custody.

13 II. THE DOUBLE JEOPARDY CLAIM WAS NOT ADEQUATELY 14 DEVELOPED

15 {60} Petitioner did not raise the issue of double jeopardy in his pro se Petition for

16 Writ of Certiorari. Instead, this Court sua sponte raised the issue in the Order

17 granting the petition. Despite our raising the issue, Petitioner neglected to adequately

18 develop an argument in his brief in chief or at oral argument. Where a conviction

19 arises from a guilty plea and there is no factual record developed at trial, “[w]e place

20 the burden on the defendant, the party raising the double jeopardy challenge, to

38 1 provide a sufficient record for the court to determine unitary conduct and complete

2 the remainder of the double jeopardy analysis.” State v. Sanchez, 1996-NMCA-089,

3 ¶ 11, 122 N.M. 280, 923 P.2d 1165. This higher burden provides fundamental

4 fairness to the State, which “must have the opportunity to contest [the d]efendant’s

5 version of the facts.” Id. Here, the majority faults the State for failing to “highlight[]

6 specific evidence in the record to overcome the presumption of singularity,” maj.

7 op. ¶ 37, but in my opinion, the State was deprived of an opportunity to develop a

8 record below because the issue was not raised in the district court.

9 {61} “Courts risk overlooking important facts or legal considerations when they

10 take it upon themselves to raise, argue, and decide legal questions overlooked by the

11 lawyers who tailored the case to fit within their legal theories.” N. M. Dep’t of Hum.

12 Servs., Income Support Div. v. Tapia, 1982-NMSC-033, ¶ 11, 97 N.M. 632, 642 P.2d

13 1091. Because the issue was not adequately developed on appeal and the State was

14 deprived of its opportunity to present evidence showing that the conduct at issue

15 may not have been unitary, I believe the matter should have been remanded to the

16 district court to determine in the first instance whether a double jeopardy violation

17 exists. Accordingly, I respectfully dissent from the majority’s conclusion that

18 Petitioner’s three conspiracy convictions violate the prohibition on double jeopardy.

19 Maj. op. ¶¶ 1, 37-38.

39 1 2 BRIANA H. ZAMORA, Justice