Message
×
loading..

State v. Herrera ( 2024 )


Menu:
  • The slip opinion is the first version of an opinion released by the Clerk of the Court
    of Appeals. Once an opinion is selected for publication by the Court, it is assigned
    a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-
    112 NMRA, authenticated and formally published. The slip opinion may contain
    deviations from the formal authenticated opinion.
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: _____________
    Filing Date: June 20, 2024
    No. A-1-CA-41362
    STATE OF NEW MEXICO,
    Plaintiff-Appellee,
    v.
    MARCOS F. HERRERA a/k/a
    MARCOS FLORENTINO HERRERA,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
    Karen L. Townsend, District Court Judge
    Raúl Torrez, Attorney General
    Lee Green, Assistant Solicitor General
    Santa Fe, NM
    for Appellee
    Wadsworth Law, LLC
    Mathew R. Wadsworth
    Rio Rancho, NM
    for Appellant
    OPINION
    BOGARDUS, Judge.
    {1}   Defendant Marcos F. Herrera appeals from the district court’s order revoking
    his probation. On appeal Defendant raises several issues: (1) Defendant argues for
    the first time that the action to revoke his probation was barred by NMSA 1978,
    Section 30-31-27.1(B)(3) (2007, amended 2019), providing for limited immunity in
    cases of alcohol and drug overdoses, “based on evidence obtained due to calling for
    medical assistance for a drug-related overdose” so he is entitled to limited immunity;
    (2) Defendant also argues that his previous counsel’s failure to move to dismiss,
    pursuant to Section 30-31-27.1(B), constitutes ineffective assistance of counsel.1
    Because we agree that the limited immunity provided for by Section 30-31-
    27.1(B)(3) applies to both of Defendant’s probation violations, we reverse.
    BACKGROUND
    {2}   This case comes before us in a unique procedural posture. 2 Defendant
    committed multiple offenses and was sentenced to multiple term-of-years sentences
    1
    Defendant raises a third argument that the State failed to prove his probation
    violations to a reasonable degree of certainty. We do not address this argument
    because we agree with Defendant that the action to revoke his probation was barred
    by Section 30-31-27.1(B).
    2
    This appeal is from the order revoking probation and commitment to the
    department of corrections filed on March 20, 2023, in D-1116-CR-2018-00533-8,
    D-1116-CR-2018-00535-8, D-116-CR-2018-00536-8, and D-116-CR-2018-00540-
    8.
    in the district court, to be served consecutively. At the time Defendant was sentenced
    for these offenses in district court, he was incarcerated in a federal penitentiary in
    Colorado. In light of the circumstances, the district court decided to run Defendant’s
    sentence concurrently to his “federal sentence in U.S. District Court (District of
    Colorado).” The district court then suspended his sentence and placed him on
    unsupervised probation for a period of five years “on the condition that [he] shall
    observe all federal, state, county and city laws and ordinances, so long as . . .
    [D]efendant resides out of State.” The district court further ordered that
    [i]f at any time . . . [D]efendant is present in the State of New Mexico,
    [he] is ordered to be placed on supervised probation for a period of five
    (5) years, under the terms and conditions of the standard order of
    supervised probation in effect in this district and on the further
    condition that [he] obey all rules, regulations and orders of the
    Department of Corrections and Adult Parole and Probation authorities
    and observe all federal, state, county and city laws and ordinances.
    {3}   Some years after Defendant was placed on unsupervised probation, police
    officers were dispatched to a hotel room to respond to a possible overdose. The
    responding police officers found Defendant lying on his back in the corner of the
    hotel room, near a chair. According to the responding officers, it looked like
    Defendant had fallen out of that chair and onto the floor. One of the responding
    officers testified at the probation revocation hearing that, at this point, the officers
    entered the room to assess the situation. The officer further testified that they tried
    to ask Defendant what he had taken but Defendant was unresponsive. A woman in
    2
    Defendant’s hotel room told the officers that Defendant had taken a substance called
    “White China,” which the officer testified that he understood to be slang for a
    narcotics containing Fentanyl. According to the officer, Defendant looked like he
    was overdosing based on his experience witnessing overdoses in the past.
    {4}   As emergency medical services arrived on scene and began rendering aid to
    Defendant, the responding officers spoke to the woman in Defendant’s hotel room.
    At some point, the responding officers noticed a firearm along with a debit card
    under Defendant’s name on the table, near where they had initially found Defendant.
    The officer testified that he observed “a torn grocery bag with a white, powdery,
    crystalline substance in it” that the officer thought appeared to be some combination
    of “Methamphetamine and Fentanyl.” “Due to the items found in the room . . . the
    room was sealed and secured for a search warrant.” Several items were seized from
    the room—including a firearm.
    {5}   On February 22, 2022, the State filed a motion to revoke Defendant’s
    probation and to commit him to the New Mexico Corrections Department (NMCD)
    for the remainder of his sentence. The State moved to revoke Defendant’s probations
    on grounds that he violated (1) state or federal law, (2) failed to report to probation,
    (3) possessed a controlled substance, and (4) failed to report an arrest. An evidentiary
    hearing was held on the State’s motion. Following the hearing, the district court
    found that Defendant “had violated the terms and conditions of his probation . . . by
    3
    violating [s]tate [l]aws (picking up new charges) and by failing to report to NMCD
    Probation and Parole.” In its oral ruling, the district court stated, “There has been a
    willful violation proven, and I’m going to find it on two bases, (1) the violation of
    state laws for having a firearm; and (2) . . . for failing to report when he arrive[d]
    back in the State.”
    {6}   After allowing for presentence confinement and other applicable credit, the
    district court sentenced Defendant to the custody of the NMCD for a period of
    nineteen years, four months, and twenty-one days. Defendant now appeals.
    DISCUSSION
    {7}   Defendant argues that the action to revoke his probation was statutorily barred
    by Section 30-31-27.1(B)(3). As such, we begin by interpreting Section 30-31-
    27.1(B)(3). As Defendant acknowledges, he failed to preserve this argument below,
    so we review for fundamental error. We then address the State’s contention that we
    ought to go beyond the plain language of the statute to discern legislative intent.
    Because we conclude that the district court’s revocation of Defendant’s probation
    constitutes fundamental error, we reverse.
    I.    The Revocation of Defendant’s Probation Constitutes Fundamental
    Error
    {8}   Defendant argues that the district court’s revocation of his probation
    constitutes fundamental error because the action to revoke his probation in the first
    place was barred by Section 30-31-27.1(B)(3). According to Defendant, the plain
    4
    language of Section 30-31-27.1(B)(3) is “explicit and unambiguous regarding
    probation violations” because it states that evidence obtained as a result of an
    overdose cannot be used to revoke probation. Therefore, according to Defendant, the
    district court erred in finding that he violated the conditions of his probation based
    on the evidence arising from his overdose. Moreover, Defendant asserts that this
    error is fundamental because he was denied substantial justice as “the entire
    prosecution of [his] probation violation was explicitly and unambiguously statutorily
    barred.” The State responds that despite its plain language, Section 30-31-27.1(B)(3)
    should not be interpreted so broadly as to reach nondrug related probation violations.
    We agree with Defendant.
    {9}   Ordinarily we review the district court’s decision to revoke probation under
    an abuse of discretion standard. State v. Leon, 
    2013-NMCA-011
    , ¶ 36, 
    292 P.3d 493
    .
    However, as Defendant concedes, he failed to raise this issue to the district court so
    he requests that we review for fundamental error. The State agrees that this issue is,
    in fact, unpreserved and that fundamental error review is normally appropriate under
    these circumstances. Accordingly, we review for fundamental error. See State v.
    Salas, 
    2017-NMCA-057
    , ¶ 42, 
    400 P.3d 251
     (stating appellate courts review
    unpreserved questions for fundamental error); see also Rule 12-321(B)(2)(c), (d)
    NMRA (providing that appellate courts have discretion to review unpreserved
    questions involving fundamental error or fundamental rights).
    5
    {10}   When engaging in fundamental error analysis we begin by asking whether an
    error occurred—if we determine that it has, we then ask whether the error was
    fundamental. See State v. Ocon, 
    2021-NMCA-032
    , ¶¶ 7-8, 
    493 P.3d 448
    . We apply
    the fundamental error doctrine “only under exceptional circumstances and only to
    prevent a miscarriage of justice.” State v. Barber, 
    2004-NMSC-019
    , ¶ 8, 
    135 N.M. 621
    , 
    92 P.3d 633
    . “The error must shock the conscience or implicate a fundamental
    unfairness within the system that would undermine judicial integrity if left
    unchecked.” State v. Castillo, 
    2011-NMCA-046
    , ¶ 29, 
    149 N.M. 536
    , 
    252 P.3d 760
    (internal quotation marks and citation omitted). To the extent that our review
    involves statutory interpretation, we review de novo. See State v. Rivera, 2004-
    NMSC-001, ¶ 9, 
    134 N.M. 768
    , 
    82 P.3d 939
    .
    {11}   In order to determine whether the district court erred in revoking Defendant’s
    probation we must determine whether, as Defendant argues, Section 30-31-
    27.1(B)(3) barred the probation revocation action in the first place. Both parties
    acknowledge that there is an absence of case law interpreting Section 30-31-
    27.1(B)(3). Thus, we must engage in statutory interpretation. “Interpretation of a
    statute is a matter of law, as is the determination of whether the language of a statute
    is ambiguous.” State v. Rael, 
    2024-NMSC-010
    , ¶ 38, 
    548 P.3d 66
     (internal quotation
    marks and citation omitted). “Our primary goal when interpreting statutory language
    is to give effect to the intent of the Legislature.” State v. Warford, 
    2022-NMCA-034
    ,
    6
    ¶ 22, 
    514 P.3d 31
     (alteration, internal quotation marks, and citation omitted). “The
    plain language of the statute is the primary indicator of legislative intent, so we look
    first to the words the Legislature used and their ordinary meaning.” State v.
    Gutierrez, 
    2007-NMSC-033
    , ¶ 30, 
    142 N.M. 1
    , 
    162 P.3d 156
    . “Under the plain
    meaning rule, when a statute’s language is clear and unambiguous, we will give
    effect to the language and refrain from further interpretation.” State v. Hubble, 2009-
    NMSC-014, ¶ 10, 
    146 N.M. 70
    , 
    206 P.3d 579
     (internal quotation marks and citation
    omitted). In applying the plain meaning rule, we also consider the “context
    surrounding a particular statute, such as its history, its apparent object, and other
    [related] statutes.” See State v. Cleve, 
    1999-NMSC-017
    , ¶ 8, 
    127 N.M. 240
    , 
    980 P.2d 23
    . As our Supreme Court recently acknowledged, “[W]e presume that a
    [L]egislature says in a statute what it means and means in a statute what it says.”
    Rael, 
    2024-NMSC-010
    , ¶ 40 (internal quotation marks and citation omitted).
    {12}   We therefore look to the plain language of Section 30-31-27.1(B)(3). See
    Rivera, 
    2004-NMSC-001
    , ¶ 10 (stating “[t]he starting point in every case involving
    the construction of a statute is an examination of the language utilized by the
    Legislature in drafting the pertinent statutory provisions.” (alteration, internal
    quotation marks, and citation omitted)). According to the statute, “[a] person who
    experiences an alcohol- or drug-related overdose and is in need of medical assistance
    shall not be arrested, charged, prosecuted or otherwise penalized . . . for violating
    7
    . . . the conditions of probation or parole” “if the evidence for the alleged violation
    was obtained as a result of the overdose and the need for seeking medical assistance.”
    Section 30-31-27.1(B)(3). The State agrees with Defendant that the plain language
    of Section 30-31-27.1(B)(3) “appears to provide immunity for any probation
    violation—whether drug related or not.” We agree. The language of Section 30-31-
    27.1 clearly and unambiguously states that persons who overdose shall not be
    penalized for probation or parole violations so long as two conditions are met—the
    evidence for the alleged probation or parole violation must have arisen from both
    the overdose and the need to seek medical assistance. See § 30-31-27.1(B)(3). There
    is simply no language within Section 30-31-27.1(B)(3) to indicate that the
    Legislature intended for the immunity provided by the statute to be confined to
    probation or parole violations involving only drugs or alcohol. See Rivera, 2004-
    NMSC-001, ¶ 10 (stating where “a statute contains language which is clear and
    unambiguous, we must give effect to that language and refrain from further statutory
    interpretation” (internal quotation marks and citation omitted)); see also Rael, 2024-
    NMSC-010, ¶ 41 (stating where statutory language is unambiguous the “judicial
    inquiry is complete” (internal quotation marks and citation omitted)). The State does
    not argue that the statutory language is either unclear or ambiguous. We see no
    ambiguity in the plain language of Section 30-31-27.1(B)(3) regarding limited
    immunity for probation and parole violations in cases of drug and alcohol overdoses.
    8
    Thus, our “analysis need go no further.” See State v. Vest, 
    2021-NMSC-020
    , ¶ 20,
    
    488 P.3d 626
    .
    {13}   “However, as a matter of thoroughness, we review the purpose, background,
    and history of the statute to ensure that our plain language interpretation” neither
    conflicts with the legislative history of the statute nor leads to absurd results as the
    State suggests it might. See 
    id.
     Specifically, the State argues that both the legislative
    history and the possibility of absurd results arising from a plain language
    interpretation of Section 30-31-27.1(B)(3) are grounds for rejecting the
    interpretation supported by the plain meaning of the statutory language—we
    disagree.
    {14}   First, regarding legislative history—contrary to the State’s assertion, the
    legislative history of Section 30-31-27.1(B)(3) supports Defendant’s contention that
    the Legislature intended to extend limited immunity to all probation and parole
    violations arising from an alcohol or drug overdose. In ascertaining legislative intent
    we rely not on fiscal impact reports—as the State does in its briefing or even on “the
    language of bills that died in committee and never became law or bills that were
    vetoed by the Governor.” Vest, 
    2021-NMSC-020
    , ¶ 34. Rather, “[w]e instead rely
    on the language of the statute as passed and the history of the statute insofar as any
    amendments may have been made.” 
    Id.
     We therefore “consider the history and
    background of” Section 30-31-27.1(B)(3). See Vest, 
    2021-NMSC-020
    , ¶ 51
    9
    (Thomson, J. dissenting) (internal quotation marks and citation omitted); see also
    Unite N.M. v. Oliver, 
    2019-NMSC-009
    , ¶ 26, 
    438 P.3d 343
     (analyzing the history of
    a statute by considering the various enacted versions of that statute and similar
    statutes through time). In 2019, the Legislature amended Section 30-31-27.1(B)—
    the previous version of Section 30-31-27.1(B)(3) (2007)—in part, to expand limited
    immunity for persons who seek medical assistance and are experiencing an alcohol
    or drug-related overdose. See § 30-31-27.1(B)(3). Previously, the statute read,
    [a] person who experiences a drug-related overdose and is in need of
    medical assistance shall not be charged or prosecuted for possession of
    a controlled substance pursuant to the provisions of [NMSA 1978,]
    Section 30-31-23 [(2005)] if the evidence for the charge of possession
    of a controlled substance was gained as a result of the overdose and the
    need for medical assistance.
    Section 30-31-27.1(B) (2007). As evident by the plain language, the Legislature
    initially limited immunity to apply only to charges and prosecutions for possession
    of a controlled substance, pursuant to Section 30-31-23 (2007). However, as the
    State acknowledges, the current version adds specific language providing immunity
    for all probation and parole violations—so long as such violations meet the two
    criteria mentioned above. If the current version of the statute was intended to
    continue to restrict limited immunity to only drug and alcohol related violations, the
    Legislature would not have broadened the scope of the statute in this way. See State
    v. Nick R., 
    2009-NMSC-050
    , ¶ 28, 
    147 N.M. 182
    , 
    218 P.3d 868
     (stating we have
    “long held that we must avoid constructions of statutory amendments that would
    10
    render the change unnecessary and meaningless” (internal quotation marks and
    citation omitted)). Moreover, the Legislature could have easily clarified, in the
    amended version of the statute, that limited immunity applied only to drug and
    alcohol related probation violations—the Legislature did not do so. See Rael, 2024-
    NMSC-010, ¶ 41 (stating “a legislature is presumed to say what it means and mean
    what it says”). Therefore, we conclude that a plain language interpretation of Section
    30-31-27.1(B)(3) is consistent with its legislative history. See State ex rel. Stratton
    v. Serna, 
    1989-NMSC-062
    , ¶ 6, 
    109 N.M. 1
    , 
    780 P.2d 1148
     (stating that when a
    statute is amended “[t]he amended language must be read within the context of the
    previously existing statute”).
    {15}   Because the relevant statute does not expressly state its purpose, we next
    consider whether there is reason to depart from the plain meaning of Section 30-31-
    27.1(B)(3) based on the goals or purpose of the act itself. See, e.g., Gurule v.
    Dicaperl Mins. Corp., 
    2006-NMCA-054
    , ¶ 7, 
    139 N.M. 521
    , 
    134 P.3d 808
    (examining the legislative goals and purposes of an act after discerning its clear
    meaning from the plain language). Here, the statutory section is aimed at those who
    may be particularly hesitant to seek medical attention for fear of violating conditions
    of probation or parole. Section 30-31-27.1(B)(3) is not intended to provide blanket
    immunity for all probation and parole violations—it is specifically circumscribed to
    apply only where “evidence for the alleged violation was obtained as a result of the
    11
    overdose and the need for seeking medical assistance.” We discern that the purpose
    of Section 30-31-27.1(B)(3) is clearly to encourage those experiencing an overdose,
    as well as those witnessing another person overdose, to seek medical attention
    without fear of a probation or parole revocation action. Therefore, we cannot say
    that this perceived purpose of the statute is contrary to our plain language
    interpretation.
    {16}   Finally, the State has not convinced us that the plain language interpretation
    of Section 30-31-27.1(B)(3) leads to absurd results. The State argues “the most
    extreme example of the absurdity of providing blanket immunity from all probation
    violation prosecution[s] in the manner advanced by Defendant is if a dead body with
    a gunshot wound were discovered at the scene when EMT personnel showed up to
    revive an overdosing probationer who had a smoking gun in his hand.” According
    to the State, “[f]ailing to prosecute the appropriate probation violation connected to
    the dead body would violate judicial policy, leave the public open to additional risk,
    and fail to deter the probation’s future misconduct.” We disagree. As the State
    acknowledges, probation violations are separate and distinct from the prosecution
    for original offenses. See State v. Katrina G., 
    2007-NMCA-048
    , ¶ 11, 
    141 N.M. 501
    ,
    
    157 P.3d 66
     (stating “a probation revocation proceeding does not implicate double
    jeopardy because it is not a new criminal trial to impose new punishment, but instead
    is a hearing to determine whether, during the probationary period, the defendant has
    12
    conformed to or breached the course of conduct outline in the probation order”
    (omissions, internal quotation marks, and citation omitted)). There is no indication
    that a plain language interpretation of Section 30-31-27.1(B)(3) would result in
    either a lack of punishment to those who violate the conditions of their probation
    while also committing new violations of law nor an increased risk to the public. See
    Chan v. Montoya, 
    2011-NMCA-072
    , ¶ 9, 
    150 N.M. 44
    , 
    256 P.3d 987
     (“It is not our
    practice to rely on assertions of counsel unaccompanied by support in the record.
    The mere assertions and arguments of counsel are not evidence.” (internal quotation
    marks and citation omitted)). We decline to depart from our plain language
    interpretation of Section 30-31-27.1(B)(3). See State v. Anaya, 
    1997-NMSC-010
    ,
    ¶ 30, 
    123 N.M. 14
    , 
    933 P.3d 223
     (“Statutes that define criminal conduct should be
    strictly construed and doubts regarding their interpretation or construction should be
    resolved in favor of lenity.”).
    {17}   Here, it is undisputed that the two probation violations supporting the district
    court’s revocation of Defendant’s probation were discovered as a result of
    Defendant’s overdose and the need to seek medical assistance. Specifically, the State
    does not dispute that Defendant’s violation of state law (picking up new charges)
    nor his failing to report to NMCD Probation and Parole were discovered as a result
    of the responding officers being called to the hotel room on the day of the overdose.
    In other words, there is no indication that either of these violations were discovered
    13
    due to evidence not resulting from Defendant’s overdose. Thus, it is clear that both
    of Defendant’s probation violations fall within the umbrella of limited immunity
    provided by Section 30-31-27.1(B)(3).
    {18}   In light of our plain language interpretation of Section 30-31-27.1(B)(3) and
    the undisputed underlying facts, we conclude that the district court erred in revoking
    Defendant’s probation. Moreover, because the action to revoke Defendant’s
    probation was statutorily barred, we conclude that such error is fundamental. See
    State v. Cabezuela, 
    2011-NMSC-041
    , ¶ 49, 
    150 N.M. 654
    , 
    265 P.3d 705
     (stating
    “fundamental error occurs where there has been a miscarriage of justice, the
    conviction shocks the conscience, or substantial justice has been denied” (internal
    quotation marks and citation omitted)). Thus the action to revoke Defendant’s
    probation was barred in the first place. Because this issue is dispositive, we need not
    reach Defendant’s claim of ineffective assistance of counsel. State v. Mascareñas,
    
    2000-NMSC-017
    , ¶ 1, 
    129 N.M. 230
    , 
    4 P.3d 1221
     (declining to reach other issues
    brought before the Court when the first issue supports reversal and remand).
    CONCLUSION
    {19}   For the foregoing reasons, we reverse the revocation of Defendant’s
    probation.
    {20}   IT IS SO ORDERED.
    ______________________________
    14
    KRISTINA BOGARDUS, Judge
    WE CONCUR:
    __________________________
    MEGAN P. DUFFY, Judge
    __________________________
    ZACHARY A. IVES, Judge
    15
    

Document Info

Filed Date: 6/20/2024

Precedential Status: Non-Precedential

Modified Date: 6/24/2024