State v. Scott ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40465
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LAMARCUS SCOTT,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven Blankinship, District Court Judge
Raúl Torrez, Attorney General
Lindsay Stuart, Assistant Attorney General
Santa Fe, NM
for Appellee
Patrick J. Martinez & Associates
Patrick J. Martinez
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
YOHALEM, Judge.
{1} This matter was submitted to this Court on Defendant’s brief in chief, pursuant to
the Administrative Order for Appeals in Criminal Cases from the Second, Eleventh, and
Twelfth Judicial District Courts in In re Pilot Project for Criminal Appeals, No. 2022-002,
effective November 1, 2022. Following consideration of the brief in chief, this Court
assigned this matter to Track 2 for additional briefing. Now having considered the brief
in chief, answer brief, and reply brief, we affirm in part and remand in part for the
following reasons.
{2} Defendant argues that the district court erred in imposing four-year habitual
offender enhancements to each of his two prior felony convictions and then running the
enhancements consecutively. Defendant first argues that the sentence enhancements
were in contravention of the parties’ plea agreement. Defendant also argues that the
district court erroneously believed that it lacked discretion to order the sentence
enhancements to run concurrently. [BIC 5-8; RB 3-7] Before addressing Defendant’s
arguments, we briefly set out the relevant facts and procedural history.
{3} Defendant was originally indicted on May 28, 2019, on five felony counts. [RP 1-
2] On August 18, 2021, Defendant entered into a plea agreement with the State in
which the State agreed to reduce three of the charges to misdemeanors, leaving only
two felony charges, and Defendant agreed to plead guilty to all offenses. [RP 65-66]
Defendant also agreed to admit that he was previously convicted of two prior felonies
and agreed not to contest the validity of those prior convictions if habitual offender
proceedings were brought against him. [RP 69] The State in turn agreed not to bring
habitual offender proceedings unless Defendant violated any law or violated any
conditions of probation or parole. [RP 66]
{4} The district court sentenced Defendant to eighteen months on each felony
conviction, 364 days on two of the misdemeanor convictions, and fifteen days on the
remaining misdemeanor, with all sentences to be served consecutively for a total of five
years and thirteen days incarceration. [RP 75-76] The district court then suspended the
entire sentence and placed Defendant on probation for five years. [RP 77] Defendant
was later arrested on new charges, and the district court revoked his probation. [RP
166] On revocation, the district court enhanced Defendant’s sentence by four years on
each of his two prior felony convictions and ran the enhancements consecutively for a
total enhancement period of eight years. [RP 169] Defendant now appeals. Additional
facts are set forth below.
{5} Defendant first argues that the district court’s imposition of eight years of habitual
offender enhancement time contravened the terms of the plea agreement. Defendant
notes that the plea agreement stated that he would be subject to “a four year
enhancement,” and there was no language in the plea agreement regarding whether the
four year enhancement went to each of the two prior felony convictions or whether the
time would be imposed consecutively or concurrently. [BIC 5-7] Defendant argues that
the plea agreement is therefore ambiguous, and any ambiguity must be construed in
Defendant’s favor. [BIC 7]
{6} There is no question that Defendant failed to raise this argument in the district
court and only argues for the first time on appeal that the plea agreement was
ambiguous regarding the imposition of habitual offender enhancements. However,
Defendant asks that we review this issue for fundamental error despite the lack of
preservation because it implicates the integrity of the judicial system.1 [BIC 4-5; RB 2-3]
See State v. Castillo, 2011-NMCA-046, ¶ 28, 149 N.M. 536, 252 P.3d 760 (reviewing an
unpreserved sentencing claim for fundamental error); see also Rule 12-321(B)(2)(c), (d)
1 Defendant also asks that we review this issue for plain error. We decline, however, as the plain error
rule only applies to evidentiary matters, and “only if we have grave doubts about the validity of the verdict,
due to an error that infects the fairness or integrity of the judicial proceeding.” State v. Torres, 2005-
NMCA-070, ¶ 9, 137 N.M. 607, 113 P.3d 877 (internal quotation marks and citation omitted); State v.
Gutierrez, 2003-NMCA-077, ¶ 19, 133 N.M. 797, 70 P.3d 787 (“Plain error applies only to errors in
evidentiary matters.).
NMRA (providing appellate court discretion to review unpreserved issues involving
fundamental error or fundamental rights). In the context of claimed error in sentencing,
we apply the fundamental error doctrine “‘only under exceptional circumstances and
only to prevent a miscarriage of justice.’” Castillo, 2011-NMCA-046, ¶ 29 (quoting 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.” Id. (internal quotation marks and citation
omitted). We review Defendant’s claim of fundamental error under this standard.
{7} “A plea agreement is a unique form of contract[,] the terms of which must be
interpreted, understood, and approved by the trial court.” State v. Orquiz, 2003-NMCA-
089, ¶ 7, 134 N.M. 157, 74 P.3d 91 (internal quotation marks and citation omitted).
“Upon review, we construe the terms of the plea agreement according to what [the
d]efendant reasonably understood when he [or she] entered the plea.” Id. “If the
language in the [plea] agreement is ambiguous, it is the district court’s task to resolve
that ambiguity with the parties,” if it does so, “the agreement can no longer be said to be
ambiguous.” State v. Miller, 2013-NMSC-048, ¶ 9, 314 P.3d 655.
{8} To the extent there was any ambiguity in the plea agreement regarding habitual
offender enhancements, the ambiguity was resolved by the district court at the plea
colloquy. While Defendant is correct that the plea agreement did not state whether the
four-year enhancement applied to each felony conviction, during the plea colloquy the
district court specifically informed Defendant that if he were to later violate the terms of
conditions of his sentence, he would be facing an additional four years “per offense.”
Defendant responded that he understood and stated that he had been advised
regarding the enhancements by his lawyer. [8/17/2021: 1:09:36] The district court
further advised Defendant that, should he violate his probation, he faced thirteen years
and three days incarceration, which represented his original five-year suspended
sentence, plus eight years of total habitual offender time. [8/17/2021: 1:09:59] Thus,
Defendant was informed when he entered the plea that the four-year enhancements
applied to both of his prior felony convictions and that they could be run consecutively.
The district court therefore cured any ambiguity in the plea agreement regarding the
potential sentence should Defendant violate probation. See State v. Banghart-Portillo,
2022-NMSC-021, ¶¶ 20-22, 519 P.3d 58 (holding that the district court cured any
ambiguity in the plea agreement regarding the potential consequences of a probation
violation when it informed the defendant that she faced an additional eight years of
incarceration if she violated probation and that each count was subject to a habitual
offender enhancement); see also State v. Mares, 1994-NMSC-123, ¶¶ 13-14, 119 N.M.
48, 888 P.2d 930 (holding that the district court resolved any ambiguity in the plea
agreement when it informed the defendant that he faced a potential of nine years of
incarceration if he violated probation). As there was no ambiguity in the plea agreement
regarding the habitual offender enhancements, Defendant cannot establish error on this
issue, fundamental or otherwise.
{9} We nevertheless remand this case for resentencing. Defendant also argues that
the district court erred in imposing the sentence enhancements consecutively based on
its mistaken belief that because the underlying sentences were run consecutive it was
required to run the enhancements consecutively as well. [BIC 5, 7; RB 5-6]
{10} We agree. In State v. Triggs, 2012-NMCA-068, ¶¶ 18-23, 281 P.3d 1256, we
held that in the absence of a provision in a plea agreement stating that habitual offender
enhancements for multiple offenses must be run consecutively, the district court retains
discretion to run any or all of the enhancements concurrently. Because the district court
in Triggs erroneously believed that, as a matter of law, it lacked discretion to order the
habitual offender enhancements to be served concurrently, we reversed the sentencing
order and remanded for the district court to exercise discretion. Id. ¶ 23.
{11} The record in this case is clear that the district court believed that it lacked
discretion to run the habitual offender enhancements concurrently because the
underlying felony offenses had been run consecutively. [3/1/2022: 11:03:22] However,
as in Triggs, the plea agreement in this case contained no provision requiring the district
court to run the habitual offender enhancements consecutively. [RP 65-72] The district
court thus retained its discretion to impose concurrent sentences. Id. ¶¶ 19-22.
{12} The State does not dispute Defendant’s argument that the district court erred in
concluding that it lacked discretion to order the habitual offender enhancements to run
concurrently. [AB 1-11] Rather, the State argues again that Defendant failed to preserve
this objection below. [AB 8] However, in Triggs we found it significant that the State had
led the district court into its ruling that it had no discretion to run the enhancements
concurrently. Id. ¶ 16. Accordingly, we determined that the issue implicated both “equity
and the integrity of the criminal justice system.” Id. We also noted that “this Court may in
its discretion ensure fundamental fairness to a criminal defendant when his or her
substantial rights are affected, ‘even though he [or she] may be precluded by the terms
of a statute or rules of appellate procedure.’” Id. (quoting State v. Traeger, 2001-NMSC-
022, ¶ 18, 130 N.M. 618, 29 P.3d 518 (alteration in original)). We therefore chose to
address the issue, even though the defendant had not initially raised the issue in his
brief in chief. See id.{13} In this case, the State misinformed the district court that it was required to
impose consecutive habitual offender enhancements because the sentences on the
underlying felonies had been run consecutively. [3/1/2022: 10:47:08] Therefore, in the
interests of equity and the integrity of the judicial system, as in Triggs, we remand this
case to the district court to exercise its discretion and determine whether the habitual
offender enhancements should be run concurrently or consecutively.
{14} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
KRISTINA BOGARDUS, Judge