State v. Juarez ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40366
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FELIPE JUAREZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Andrew Coffing, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HENDERSON, Judge.
{1} Defendant Felipe Juarez appeals the denial of his motion for satisfactory
discharge from probation and the subsequent revocation of his probation. He argues
that the district court erred in finding he was a fugitive, which allowed the district court to
extend the length of his probation by withholding credit for time served. On appeal, the
State concedes that it did not introduce evidence sufficient for the district court to
properly determine that Defendant was a fugitive. We agree and conclude that the State
did not present sufficient evidence to show it acted reasonably and diligently in
attempting to serve Defendant with bench warrants, and thus insufficient evidence
supports the district court’s finding that Defendant was a fugitive. Accordingly, we
reverse and remand.
BACKGROUND
{2} In February 2013, Defendant pleaded guilty to one count of child abuse. The
district court partially suspended his sentence and entered an order placing him on
probation for a period of three years, or 1,095 days. In May 2013, the State filed a
petition to revoke Defendant’s probation, asserting that Defendant committed various
technical violations. The probation violation report alleged that during a home visit,
Defendant’s probation officer was informed that Defendant had packed up and moved
out. On June 2, 2013, the district court issued a bench warrant, which the State entered
into the National Crime Information Center database (NCIC) two days later.
{3} In January 2015, Defendant was arrested in Arizona on unrelated charges and
remanded to the custody of the Arizona Department of Corrections. That same day, the
State removed the warrant from NCIC in order to extradite Defendant back to New
Mexico. In August 2017, Defendant was released from the custody of the Arizona
Department of Corrections, but Defendant was not extradited to New Mexico, nor did
the State serve the bench warrant on Defendant.
{4} On June 11, 2018, on the State’s motion, the district court reissued the bench
warrant, nunc pro tunc, to the date the warrant was originally issued. The State entered
the reissued warrant into NCIC on June 14, 2018. Defendant was arrested on this
warrant in Arizona in October 2018. At some point, Defendant was reincarcerated in
Arizona. On January 23, 2022, Defendant was served with both the original warrant and
the reissued warrant while in Arizona custody, and he was extradited back to New
Mexico.
{5} A couple of weeks later, Defendant filed a motion for a fugitive status hearing and
sought discharge from probation. At the evidentiary hearing on the motion, the State did
not introduce any documents or witness testimony. The district court denied
Defendant’s requested relief, finding the State had presented sufficient evidence to
establish that he was a “fugitive” under NMSA 1978, Section 31-21-15(B)(C) (2016) and
that he was therefore not entitled to credit for time spent on probation.
{6} In March 2022, the district court entered its order revoking Defendant’s probation
and resentenced him. The district court denied him credit against his probation from (1)
June 2, 2013, the day the bench warrant was initially issued, through January 27, 2015,
the day Defendant was arrested in Arizona, and (2) June 11, 2018, the date the bench
warrant was reissued nunc pro tunc, until January 23, 2022, the date Defendant was
taken into the State’s custody. Defendant appeals.
DISCUSSION
{7} Defendant argues that the district court erred in denying him probation credit
during the periods outlined above. On appeal, the State concedes that it did not provide
evidence that there had been any attempts to serve the warrants on Defendant or that
any such attempts would have been futile. While we are not bound by the State’s
concession, see State v. Tapia, 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree.
{8} We review the district court’s decision of whether a defendant is entitled to credit
or is instead a fugitive for substantial evidence. State v. Jimenez, 2004-NMSC-012, ¶
14, 135 N.M. 442, 90 P.3d 461. “Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotation marks and citation omitted). In reviewing the record for substantial evidence,
“we must resolve all disputed facts in favor of the [district] court’s decision, indulge all
reasonable inferences in support of that decision, and disregard all inferences to the
contrary.” Id. (internal quotation marks and citation omitted).
{9} On revocation of probation, a defendant shall be credited for any time served on
probation unless the district court determines that the defendant was a “fugitive.”
Section 31-21-15(B), (C); see State v. Neal, 2007-NMCA-086, ¶ 30, 142 N.M. 487, 167
P.3d 935 (“A fugitive is not entitled to probation credit from the date of the violation to
the date of arrest.”). A defendant is a “fugitive from justice” if “a warrant for the return of
a probationer cannot be served.” Section 31-21-15(C). “[A]n arrest warrant is served by
arresting the defendant, meaning by taking [them] into physical custody and bringing
[them] before the court.” State v. McDonald, 1991-NMCA-132, ¶ 15, 113 N.M. 305, 825
P.2d 238; see NMSA 1978, § 31-1-4(C) (2021). The state bears “the burden of proving
that a defendant [was] a fugitive.” State v. Thomas, 1991-NMCA-131, ¶ 9, 113 N.M.
298, 825 P.2d 231, overruled on other grounds by Jimenez, 2004-NMSC-012, ¶ 11.
Thus, “[a] defendant is entitled to credit for any time on probation, unless the [s]tate can
show either (1) it unsuccessfully attempted to serve [a] warrant on the defendant or (2)
any attempt to serve the defendant would have been futile.” Jimenez, 2004-NMSC-012,
¶ 8. Additionally, “[t]he state must ordinarily prove that it issued a warrant for the
[defendant]’s arrest and entered it in [NCIC] in order to support a finding of fugitive
status.” Neal, 2007-NMCA-086, ¶ 31. “At a minimum, the state must present some
evidence that raises a reasonable inference that the warrant could not be served with
reasonable diligence.” Id. ¶ 34 (internal quotation marks and citation omitted).
{10} Although the State entered both the initial warrant and the reissued warrant into
NCIC, the State never argued below that it made efforts to serve Defendant with the
warrant, and on appeal concedes that it did not present any evidence of its efforts to
serve the warrant. See Neal, 2007-NMCA-086, ¶¶ 32-34 (holding that the defendant
was not a fugitive when the state entered the arrest warrant into NCIC but failed to
present evidence “that the warrant could not be served with reasonable diligence.”
(internal quotation marks and citation omitted)). Accordingly, we are left to decide a
single issue: whether substantial evidence supports the district court’s finding that any
effort to serve the warrants on Defendant would have been futile.
{11} The State may meet its burden to show a defendant was a fugitive by introducing
evidence that any effort to serve the defendant with an arrest warrant would have been
futile. See Jimenez, 2004-NMSC-012, ¶ 15. Service attempts are futile when a
defendant cannot be taken into custody under the authority of the warrant. See
McDonald, 1991-NMCA-132, ¶¶ 14-18 (upholding a finding of fugitive status when the
defendant could not have been served with a warrant while incarcerated in a foreign
jurisdiction). However, a defendant’s presence in another state, absent any evidence of
“any reasonable efforts taken on the part of the [s]tate to locate [a d]efendant and issue
such a warrant,” is not sufficient evidence to support a finding of fugitive status. State v.
Hinojos, 2014-NMCA-067, ¶ 12, 327 P.3d 1120. For example, in Hinojos, this Court
held that “[e]ven if service of a warrant would have been futile due to his out of state
incarceration, [the d]efendant could not be found to be a fugitive when no reasonable
efforts were made to discover his location before or after a warrant was issued.” Id.{12} Like in Hinojos, in this case, the State did not introduce any evidence of its efforts
to discover Defendant’s location before or after the warrants were issued. See id.Defendant cannot be considered a fugitive when the State made no effort, before or
after the warrants were issued, to locate and serve him. See id. Defendant’s probation
officer went to Defendant’s last known address before the initial warrant was issued and
learned that he “had packed up all of his belongings and left without any explanation,”
but the State did not make any assertions or introduce any evidence that it tried to
locate him before the warrants were issued. Moreover, the State presented no evidence
suggesting it attempted to serve him with the warrants after they were issued. It is the
State’s burden to prove that it made reasonable efforts to locate and serve Defendant
with either warrant. See Thomas, 1991-NMCA-131, ¶ 9. Presenting no evidence of any
attempt to have an arrest warrant served cannot be considered a reasonable effort. See
Neal, 2007-NMCA-086, ¶¶ 33-34. Therefore, substantial evidence does not support the
district court’s finding that he was a fugitive during the periods of time identified by
Defendant because the State made no reasonable efforts to discover his location and
serve him with the warrant.
{13} Having determined that the district court erred in finding Defendant was a fugitive
within the meaning of Section 31-21-15(C), we now turn to the remedy. Defendant was
originally given a suspended sentence of 1,095 days. The parties agree that the district
court correctly credited the following periods of time toward Defendant’s probation: (1)
February 6, 2013, through June 1, 2013 (116 days); (2) August 16, 2017, through June
10, 2018 (299 days); and (3) January 23, 2022, through March 10, 2022 (47 days).
Additionally, the district court credited Defendant with twenty (20) days of presentence
confinement credit.
{14} In concluding that the district court erred in finding Defendant was a fugitive, we
also hold that the district court improperly withheld probationary credit from his
sentence. As considered above, Defendant should have been credited for June 2, 2013,
until January 27, 2015 (605 days), and June 11, 2018, until January 22, 2022 (1,322
days). Altogether, these credits amount to 2,409 days—far more than the suspended
sentence imposed on Defendant. Thus, Defendant’s term of probation was completed
before March 31, 2022, when the district court entered its order revoking Defendant’s
probation and resentencing him. It was beyond the power of the district court to revoke
or otherwise alter the term of his probation when Defendant already completed the term
of his probation. See State v. Ordunez, 2012-NMSC-024, ¶ 9, 283 P.3d 282 (stating that
courts lose the “jurisdiction to revoke probation or to impose any sanctions for violation
of probation conditions once the probationary period has expired, even for violations
occurring and revocation motions filed before expiration of probation”). Because the
district court revoked Defendant’s probation after it was completed, it acted without
jurisdiction. See id. We therefore reverse the district court’s denial of Defendant’s
motion for satisfactory discharge from probation and remand to the district court with
instructions to immediately vacate the order revoking probation, grant Defendant a
satisfactory discharge from probation, and recognize the completion of his underlying
suspended sentence.
CONCLUSION
{15} For the foregoing reasons, we reverse and remand to the district court for
proceedings in accordance with this opinion.
{16} IT IS SO ORDERED.
SHAMMARA H. HENDERSON, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
KRISTINA BOGARDUS, Judge