State v. Venegas ( 2013 )

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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. 32,603
5 JUAN VENEGAS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 Lisa B. Riley, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals from the district court’s ruling that revokes his suspended
19 sentence and enhances his two felony convictions by a period of four years each for
1 being a habitual offender. [RP 150] Our notice proposed to affirm and Defendant filed
2 a memorandum in opposition. We remain unpersuaded by Defendant’s arguments and
3 therefore affirm, and additionally remand for correction of an apparent clerical error
4 in the district court failing to recite all of Defendant’s convictions in its final order.
5 {2} Defendant argues that the district court improperly imposed an eight-year
6 habitual offender enhancement following his probation revocation, rather than a four-
7 year habitual offender enhancement. [DS 4-6; MIO 5; RP 155-56] In support of his
8 position, Defendant maintains that the language in the written plea agreement misled
9 him into believing that he was subject only to a four-year habitual offender
10 enhancement. [DS 5] Defendant also maintains that the parties’ discourse at the May
11 21, 2012 hearing following his probation violation, supported his view of the
12 sentencing consequences of his plea agreement. [MIO 7]
13 {3} We address first the terms of the plea agreement, and consider whether the
14 agreement adequately informed Defendant of the sentencing consequences, such that
15 Defendant was on notice that, if he violated his probation, he was subject to an eight-
16 year habitual offender enhancement. See generally State v. Santillanes, 98 N.M. 448,
17 451, 649 P.2d 516, 519 (Ct. App. 1982) (unless there exists constitutional or statutory
18 invalidity, plea agreements are binding upon both parties); see also Marquez v. Hatch,
19 2009-NMSC-040, ¶¶ 7-11, 146 N.M. 556, 212 P.3d 1110 (recognizing that a
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1 defendant must be advised of potential sentencing enhancements based on prior
2 convictions). Here, the plea agreement under the “admission of identity” section [RP
3 58] sets forth Defendant’s admission to his prior felony convictions [RP 58, 61], such
4 that he is a habitual offender subject to a four-year enhancement. [RP 59] See NMSA
5 1978, § 31-18-17(B) (2003) (providing that “[a] person convicted of a noncapital
6 felony in this state . . . who has incurred two prior felony convictions . . . is a habitual
7 offender and his basic sentence shall be increased by four years”). Consistent with
8 this admission, the plea agreement sets forth that the maximum penalties for
9 Defendant’s new crimes include a four-year habitual offender enhancement for each
10 of the crimes. [RP 59-60] Lastly, the plea agreement, in relevant part, provides that,
11 in the event Defendant violates the law or his probation conditions, he will be subject
12 to habitual offender proceedings based on his admission. [RP 61] See generally State
13 v. Freed, 1996-NMCA-044, ¶ 3, 121 N.M. 569, 915 P.2d 325 (discussing and
14 enforcing a plea agreement in which the defendant admitted to being a habitual
15 offender and was subject to a habitual offender enhancement if he violated any
16 conditions of his probation or parole). Given the plea’s above-noted provisions, we
17 conclude that the plea adequately advised Defendant of the sentencing consequences
18 and that the district court did not err in imposing an eight-year habitual enhancement
19 upon Defendant’s subsequent probation violation.
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1 {4} As acknowledged by Defendant, the terms of the plea agreement take
2 precedence over any subsequent discourse between the parties that took place at the
3 May 21, 2012 hearing following Defendant’s revocation of his probation. See State
4 v. Fairbanks, 2004-NMCA-005, ¶ 15, 134 N.M. 783, 82 P.3d 954 (providing that,
5 upon review, an appellate court “construe[s] the terms of the plea agreement according
6 to what [the d]efendant reasonably understood when he entered the plea” (Emphasis
7 added.) (internal quotation marks and citation omitted)). We nevertheless note that
8 any reference at the hearing to a four-year enhancement of Defendant’s sentence is not
9 inconsistent with the underlying agreement, because “sentence” by law means that the
10 sentence for each of the felonies at issue is subject to a four-year enhancement. See,
11 e.g., State v. Howard, 108 N.M. 560, 561-63, 775 P.2d 762, 763-65 (Ct. App. 1989)
12 (holding that where a statute attaches an enhancement to a defendant’s “‘basic
13 sentence,’” that statute “requires that the sentence for each of [the] defendant’s
14 current multiple felonies be enhanced on the basis of the prior felony conviction”
15 (Emphasis added.)).
16 {5} Lastly, we address an apparent clerical error in the district court’s November
17 30, 2012 order revoking suspended sentence. [RP 155] The order provides that
18 Defendant was originally sentenced for residential burglary, larceny, and criminal
19 damage to property. [RP 156] By oversight, the order fails to also recite Defendant’s
20 conviction for resisting, evading or obstructing an officer. [RP 58, 69] While this
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1 omission does not appear to have affected the proper calculation of Defendant’s
2 sentence, it is appropriate to remand so that all of Defendant’s convictions are recited
3 in the order revoking suspended sentence.
4 {6} In conclusion, we affirm the district court’s imposition of an eight-year habitual
5 offender enhancement as a consequence of Defendant’s probation revocation. We
6 also remand for correction of the noted error in the order revoking suspended
7 sentence.
8 {7} IT IS SO ORDERED.
9 __________________________________
10 LINDA M. VANZI, Judge
11 WE CONCUR:
12 _________________________________
13 CYNTHIA A. FRY, Judge
14 _________________________________
15 J. MILES HANISEE, Judge
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