State v. Crosby ( 2014 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 33,014
5 DOUGLAS KEITH CROSBY,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 William H. Brogan, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Mary Barket, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
1 {1} Defendant appeals for the sole purpose of requesting that the district court
2 amend his judgment and sentence by inserting language that would authorize the
3 Department of Corrections (the Department) to award him “good time” credit for pre-
4 sentence time he spent incarcerated in the custody of the Department. In our notice of
5 proposed summary disposition, we noted that the handling of good time credit is an
6 independent administrative responsibility of the Department, and proposed to affirm
7 on the basis that the inclusion of the language requested by Defendant would have no
8 effect upon his sentence.
9 {2} In his memorandum in opposition, Defendant continues to assert “that without
10 some acknowledgment by the district court that the Department has the authority to
11 do so, the Department may not give him good-time credit for his presentence
12 confinement time.” [MIO 5] Nothing in the record of this case discloses the source of
13 Defendant’s concern that the Department will not follow its own rules for the
14 administration of good time credits, which include procedures for the award of credit
15 for probation violators who participate in a work or program assignment while in the
16 custody of the Department. See New Mexico Corrections Department Policy CD-
17 080401, available at: http://www.corrections.state.nm.us/policies/policies.html.
18 {3} In any event, it does appear that good time credits are available for inmates who
19 are in the custody of the Department and participating in program assignments during
2
1 their pre-sentence incarceration. As this Court’s notice of proposed summary
2 disposition noted, however, Defendant’s docketing statement offered no reason to
3 suspect that “the Department will not determine the proper amount of good time credit
4 to award Defendant in connection with his incarceration prior to sentencing.” [CN 3]
5 Defendant’s memorandum in opposition still does not offer any reason to expect that
6 the Department will fail to award proper good time credits pursuant to its existing
7 policies.
8 {4} Defendant does not assert that authorization from the district court is necessary
9 for the Department to award the good time credit he seeks. To the contrary, Defendant
10 continues to assert that the Department has the necessary authority and that he merely
11 seeks a statement from the district court affirming that authority. Our notice of
12 proposed summary disposition agreed that inmates who are in the custody of the
13 Department as the result of a probation violation may be awarded good time credits
14 if they participate in program assignments and are otherwise eligible. [CN 2] We also
15 agree with Defendant that State v. Aqui dealt with a substantively different situation
16 because the defendants in that case were not in the custody of the Department during
17 their pre-sentence incarceration. 1986-NMSC-048, ¶ 4, 104 N.M. 345, 721 P.2d 771.
18 {5} We nonetheless proposed to affirm on the basis that the relief Defendant seeks
19 would have no effect on his sentence. [CN 4] Defendant’s memorandum in opposition
3
1 continues to assert that the Department already has the authority to grant good time
2 credits for incarceration prior to sentencing. We agree that the Department has that
3 authority. We are not persuaded, however, that Defendant has been prejudiced by the
4 district court’s decision not to include language to that effect in the judgment and
5 sentence.
6 {6} Thus, for the reasons stated here and in our notice of proposed summary
7 disposition, we affirm the judgment and sentence entered by the district court.
8 {7} IT IS SO ORDERED.
9 ___________________________
10 TIMOTHY L. GARCIA, Judge
11 WE CONCUR:
12
13 JAMES J. WECHSLER, Judge
14
15 MICHAEL E. VIGIL, Judge
4