State v. Miller

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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. 29,244
5 ANDREW MILLER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Kenneth H. Martinez, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 Ralph E. Trujillo, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender
15 Carlos Ruiz de la Torre, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
1 MEMORANDUM OPINION
2 BUSTAMANTE, Judge.
3 {1} Defendant appealed his sentence of forty-two years of imprisonment for fraud,
4 embezzlement, and forgery, arguing that the sentence violated his plea agreement, that
5 the State violated his right to be free from double jeopardy, and that the district court
6 erred in calculating the amount of restitution and pre-sentence confinement.
7 Defendant’s arguments as to the propriety of the forty-two year sentence were
8 considered by this Court and then the New Mexico Supreme Court, which ordered that
9 Defendant be re-sentenced and remanded to this Court for review of Defendant’s other
10 arguments. We conclude that there are insufficient facts in the record to consider
11 whether Defendant’s double jeopardy rights were violated and remand to the district
12 court for development of this issue. Because Defendant’s other arguments are either
13 not preserved or inadequately developed for appeal, we decline to review them.
14 BACKGROUND
15 {2} Since this is a memorandum opinion and the second from this Court pertaining
16 to this case, we summarize the facts only briefly. See State v. Miller, 2012-NMCA-
17 051, 278 P.3d 561, cert. granted, 2012-NMCERT-005, 294 P.3d 446 and aff’d in part,
18 rev’d in part, State v. Miller (Miller II), 2013-NMSC-048, 314 P.3d 655. The present
19 matter pertains to two consolidated cases in which Defendant was indicted on sixty-
20 six counts involving fraud, embezzlement, and forgery contrary to NMSA 1978, § 30-
1 42-1 to -6 (1980, as amended through 2009) (the Racketeering Act). See Miller, 2012-
2 NMCA-051, ¶ 2. Pursuant to a plea agreement, all but six of the counts were
3 dismissed. Id. ¶ 3.
4 {3} After the plea agreement was accepted but before sentencing, Defendant moved
5 to withdraw the plea. Id. ¶ 4. The district court denied the motion to withdraw the
6 plea and sentenced Defendant to forty-two years of imprisonment followed by two
7 years of parole and five years of probation. Id. ¶ 5. Defendant appealed, arguing that
8 the district court erred in denying the motion to withdraw because the sentence was
9 not in accordance with the plea agreement, among other arguments. Id. ¶ 8. This
10 Court agreed, vacated the sentence, and remanded for withdrawal of the plea or
11 resentencing. Id. ¶¶ 28, 31. We did not reach Defendant’s other issues. Id. ¶¶ 30, 31.
12 {4} On writ of certiorari, the Supreme Court reversed. See Miller II, 2013-NMSC-
13 048, ¶ 1. Although it agreed that the sentence violated the plea agreement, the
14 Supreme Court disagreed that Defendant should be permitted to withdraw the plea.
15 It “reverse[d] the Court of Appeals’ remand order that [gave] Defendant the option to
16 either withdraw his guilty and no contest pleas or to be sentenced according to his
17 understanding of the [plea agreement] terms if the State agrees.” Id. ¶ 31. Instead, it
18 ordered the district court to “inform Defendant that it will embody in the judgment
19 and sentence the disposition provided for in the . . . plea agreement [as it was
3
1 interpreted by the Supreme Court].” Id. It remanded the matter to this Court for
2 consideration of the remainder of Defendant’s arguments on appeal. Id. ¶ 40.
3 Additional facts are included as pertinent to our discussion of Defendant’s arguments.
4 DISCUSSION
5 {5} Defendant’s remaining arguments are that (1) his double jeopardy rights were
6 violated by the State’s sale of seized vehicles before he entered a plea and (2) the
7 district court erred in calculating restitution amounts and pre-sentence confinement
8 credit. We address these arguments in the order presented.
9 Double Jeopardy
10 {6} Defendant argues that the sale of one or more of his vehicles prior to sentencing
11 precludes the State from imposing any further punishment on him and that his
12 subsequent conviction therefore violated his right to be free from double jeopardy
13 under the New Mexico Constitution. See N.M. Const. art. II, § 15. The legal basis of
14 this argument is found in State v. Nunez, in which the Supreme Court held that “the
15 New Mexico [d]ouble [j]eopardy [c]lause forbids bringing criminal charges and civil
16 forfeiture petitions for the same crime in separate proceedings.” 2000-NMSC-013,
17 ¶ 117, 129 N.M. 63, 2 P.3d 264. We interpret Defendant’s argument to be that (1)
18 jeopardy attached upon the sale of the cars; and (2) because forfeiture of the cars was
19 punitive, any further punishment constituted double jeopardy for the same conduct.
4
1 See State v. Tijerino, 2004-NMCA-039, ¶¶ 12, 135 N.M. 313, 87 P.3d 1095 (stating
2 that jeopardy attached when “[t]he practical effect of [an] agreement [between the
3 state and a secured party] and the . . . dismissal was that [d]efendants’ property interest
4 in the vehicle was altered once [the secured party] took possession.”); Nunez, 2000-
5 NMSC-013, ¶¶ 55-57, 61, 94, 104 (applying a three-pronged test to determine whether
6 (1) the forfeiture action and criminal prosecution were conducted in the same
7 proceedings, (2) “the conduct at issue consists of one or more than one offense[,]” and
8 (3) “both proceedings impose punishment” and concluding that double jeopardy was
9 violated where the forfeiture action was punitive and did not occur in the same
10 proceeding as the criminal prosecution.” See State ex rel. Schwartz v. Kennedy, 1995-
11 NMSC-069, 120 N.M. 619, 904 P.2d 1044). Essentially, Defendant invites us to
12 conduct a Nunez-like analysis of these factors as they apply to him.
13 {7} But Defendant has provided no factual basis for his legal arguments. Although
14 Defendant agreed to forfeit “[a]ll vehicles purchased using money obtained using [the
15 victim’s] money[]” as well as real property and computers in the plea agreement, the
16 record is silent as to what property was seized and when, whether any property was
17 sold and when, and whether Defendant acquired the property with money fraudulently
18 obtained. Defendant admits that “the record with respect to this issue may need to be
19 further developed” and acknowledges that double jeopardy implications arise only
5
1 “[i]f the prosecutor did indeed subject [Defendant’s] property to forfeiture prior to
2 convicting [him]” (emphasis added). Although a double jeopardy claim may be raised
3 for the first time on appeal, Defendant bore the burden of providing an adequate
4 record for review. See State v. Sanchez, 1996-NMCA-089, ¶ 11, 122 N.M. 280, 923
5 P.2d 1165 (“We place the burden on the defendant, the party raising the double
6 jeopardy challenge, to provide a sufficient record for the court to . . . complete the
7 remainder of the double jeopardy analysis.”); State v. Wood, 1994-NMCA-060, ¶ 19,
8 117 N.M. 682, 875 P.2d 1113 (“Although . . . a double jeopardy defense can be raised
9 at any time, either before or after judgment, a factual basis must appear in the record
10 in order to support such claim.”). Since the facts regarding the disposition of the cars
11 are not in the record, any analysis of Defendant’s legal arguments would be akin to
12 an advisory opinion. We therefore decline to review this argument any further. See
13 Santa Fe S. Ry., Inc. v. Baucis Ltd. Liab. Co., 1998-NMCA-002, ¶ 24, 124 N.M. 430,
14 952 P.2d 31 (“Our concern with issuing advisory opinions stems from the waste of
15 judicial resources used to resolve hypothetical situations which may or may not
16 arise.”).
17 {8} Defendant may, however, raise this issue and accompanying evidence in the
18 district court on remand. In State v. Antillon, the defendant appealed his criminal
19 conviction on the ground that the forfeiture of his truck prior to conviction violated
6
1 his double jeopardy rights. See 2000-NMSC-014, ¶¶ 4-5, 129 N.M. 114, 2 P.3d 315.
2 His motion to perfect the record with the forfeiture complaint and forfeiture order was
3 denied by the district court based on its conclusion that the appeal was untimely. See
4 id. ¶ 8. On writ of certiorari from this Court, the Supreme Court declined to consider
5 the double jeopardy argument because there were insufficient facts in the record. See
6 id. ¶ 6. However, it remanded to the district court to permit the defendant to
7 supplement the record, concluding that, because double jeopardy claims may be raised
8 at any time, the district court erred in denying the defendant’s motion to perfect. See
9 id. ¶ 10; see NMSA 1978, § 30-1-10 (1963) (“The defense of double jeopardy may not
10 be waived and may be raised by the accused at any stage of a criminal prosecution,
11 either before or after judgment.”).
12 {9} Here, the issue of which cars were forfeitable first arose at the plea hearing.
13 The State agreed that a car Defendant owned prior to obtaining the victim’s money
14 would not be forfeited, and defense counsel agreed to provide documentation of
15 ownership of that car to the State. There is no record of any further transaction
16 regarding that vehicle. At the sentencing hearing on Defendant’s motion to withdraw
17 the plea three months later, Defendant argued that the State had sold the
18 vehicles—including one that was not forfeitable. The district court denied the motion
19 to withdraw the plea, but told Defendant that he would have to file a motion as to
7
1 disposition of the cars and that “certainly if a motion is filed [the district court would]
2 entertain it.” Defendant did so, but not until after the sentence had already been
3 appealed to this Court and then remanded to the district court for findings of fact as
4 to the calculation of the sentence.
5 {10} At the hearing on remand, Defendant argued that sale of his vehicles before he
6 was sentenced violated his right to be free from double jeopardy and also that the
7 funds from the sale of the cars was “not accounted for.” The district court declined
8 to consider these arguments, stating that “that’s something you have to handle on a
9 habeas or something.” The motion is not in the record. We interpret Defendant’s
10 motion as an effort to introduce facts regarding the vehicles into the record and
11 conclude that, like in Antillon, Defendant’s efforts to raise his double jeopardy
12 arguments before the district court were thwarted. “Because it is in the interest of
13 justice to allow the parties to properly present their claims on appeal,” Defendant may
14 raise and seek to introduce evidence pertinent to this claim on remand. Antillon,
15 2000-NMSC-014, ¶ 12.
16 {11} Defendant also argues that “the record does not contain a complaint of
17 forfeiture[] as required by [law], and the parties apparently did not follow the
18 provisions of the Racketeering Act when they stipulated to forfeiture of [the property
19 obtained using the victim’s money].” See NMSA 1978, §§ 31-27-1 to -8 (2002) (the
8
1 Forfeiture Act) (stating that “[w]ithin thirty days of making a seizure, the state shall
2 file a complaint of forfeiture”); § 31-27-5(A); §§ 30-42-1 to -6. Although he styles
3 this failure as implicating double jeopardy principles, Defendant does not cite to any
4 cases or make any argument as to how his right to be free from double jeopardy was
5 violated by the State’s failure to comply with the procedural requirements of the
6 Forfeiture or Racketeering Acts. Furthermore, although we are troubled by the fact
7 that there is no evidence of a complaint for forfeiture and no findings of forfeitability
8 by the district court as required by the Forfeiture Act, see Albin v. Bakas, 2007-
9 NMCA-076, ¶ 29, 141 N.M. 742, 160 P.3d 923 (holding that “when property is seized
10 by state police officers for forfeiture, compliance with the Forfeiture Act is required”),
11 Defendant’s agreement to forfeit precludes this argument on appeal. Defendant
12 negotiated the terms of the plea agreement—including forfeiture of real property,
13 vehicles, and computers gained through or used in his fraudulent activities. In fact,
14 Defendant stated that he accepted the stipulated forfeiture and signed a stipulated
15 order to forfeit. In addition, he agreed that he would “give[] up all motions, defenses,
16 objections, or requests which [he] has made or could make concerning the [c]ourt’s
17 entry of judgment against [him] if that judgment is consistent with [the plea]
18 agreement.” He “specifically waive[d] [his] right to appeal [a sentence consistent with
19 the plea].” Having received the benefit of the bargain in the plea agreement,
9
1 Defendant cannot now argue that the forfeiture term is infirm. See State v. Trujillo,
2 1994-NMSC-066, ¶ 14, 117 N.M. 769, 877 P.2d 575 (“[B]oth parties to a plea bargain
3 make various concessions and gain certain advantages during plea negotiations.
4 Consequently, a criminal defendant, having availed himself of the advantages of a
5 plea agreement, cannot welch on his part of the bargain.” (internal quotation marks
6 and citations omitted)); State v. Santillanes, 1982-NMCA-118, ¶ 14, 98 N.M. 448, 649
7 P.2d 516 (“Plea agreements, absent constitutional or statutory invalidity, are binding
8 upon both parties, and [a] defendant may not accept parts of the agreement and reject
9 others.”).
10 {12} We conclude that Defendant’s double jeopardy argument is not reviewable
11 because there are insufficient facts in the record, but that Defendant may raise and
12 seek to introduce evidence on this issue on remand to the district court. We are
13 unpersuaded that the State’s alleged failure to comply with the procedures of the
14 Forfeiture Act violates Defendant’s double jeopardy rights or otherwise requires
15 reversal because Defendant negotiated for and agreed to the terms of the plea
16 agreement, including the forfeiture term.
10
1 Restitution
2 {13} Defendant argues that the district court improperly calculated the amount of
3 restitution. The district court ordered restitution in the amount of $733,570.
4 Defendant maintains that “[t]he restitution imposed in the judgment and sentence was
5 [(1)] contrary to the amount testified to by the State’s expert at sentencing[] and [(2)]
6 failed to account for property disposed of by the district attorney.” We review the
7 order for restitution for an abuse of discretion. See State v. Steele, 1983-NMCA-078,
8 ¶ 6, 100 N.M. 492, 672 P.2d 665 (“The restitution statute, NMSA 1978, § 31-17-1
9 [(2005)] . . . provides that restitution ordered should be in the amount defendant is
10 “reasonably able” to pay; that denotes discretion to be exercised by the [district]
11 court.”).
12 {14} First, Defendant contends that the State’s expert testified that the amount of
13 restitution should have been $605,836.07 and that, therefore, the district court erred
14 in ordering restitution of $733,570. Because Defendant did not raise this issue below,
15 however, it is not preserved for appeal. “At time of sentencing, where restitution is
16 ordered it is incumbent upon [a] defendant to specify whether he contests any amount
17 of actual damages claimed by a victim and to advise the court whether he believes he
18 will be able to make restitution.” State v. Lack, 1982-NMCA-111, ¶ 14, 98 N.M. 500,
19 650 P.2d 22. The State presented testimony from detectives and a certified public
11
1 accountant and fraud examiner as to the amount of damages, among other evidence.
2 Defendant did not cross-examine these witnesses, argue that their calculations were
3 incorrect, or present testimony to the contrary. See id. ¶ 16 (stating that, “in [hearings
4 on the amount of restitution] a defendant is free to cross-examine witnesses and
5 contradict them with other evidence.” (internal quotation marks and citation omitted)).
6 On appeal, the reviewing court will not consider issues not raised in the trial court
7 unless the issues involve matters of jurisdictional or fundamental error. See In re
8 Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431.
9 {15} Although Defendant did not contest the amount of restitution below, he did
10 preserve his second contention, i.e., that the district court “failed to apply the proceeds
11 of [his] forfeited property to the amount of restitution.” Defendant argued in the
12 sentencing hearing that his vehicles had been sold by the State before he was
13 convicted and that their value was not applied to the restitution amount. The factual
14 basis of this argument is the same as that underpinning Defendant’s double jeopardy
15 argument: whether the seized vehicles were sold. Like that issue, therefore, we are
16 unable to review this contention on appeal. See State v. Gutierrez, 2012-NMCA-013,
17 ¶ 33, 269 P.3d 905 (“[The d]efendant fails to cite to any facts in the record or other
18 authority in support of this contention, and we decline to review [the d]efendant’s
19 undeveloped argument on appeal.”).
12
1 Pre-Sentence Confinement
2 {16} Defendant argues that the district court erred in granting him pre-sentence
3 confinement credit for the period between his arrest in this matter and his sentence in
4 an unrelated case, rather than between his arrest and sentence in this matter. We
5 understand Defendant’s argument to be that “although [Defendant’s] confinement
6 after [he was sentenced in the unrelated case] was not related exclusively to the
7 charges in this case, he should still receive pre-[sentence] confinement credit [for that
8 period]” because he “may have been subject to a more severe level of confinement .
9 . . due to the continuing hold on these charges than he would otherwise have been[.]”
10 But Defendant points to no facts indicating that he was subject to differential
11 treatment as a result of the charges in this matter and in fact acknowledges the
12 speculative nature of his argument by stating that he “may” have been subject to a
13 “more severe level of confinement” and that “both cases taken together potentially
14 exposed him to a more severe level of confinement” (emphasis added). He cites the
15 Department of Corrections’ inmate risk assessment and central office classification
16 policies but does not explain how the Department’s policies relate specifically to his
17 confinement. See generally New Mexico Corrections Department, Institutional
18 Classification, Inmate Risk Assessment and Central Office Classification (revised
19 12/09/13) http://corrections.state.nm.us/policies/docs/CD-080100.pdf. “[T]his Court
13
1 has no duty to review an argument that is not adequately developed.” State v.
2 Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226, 247 P.3d 1111.
3 CONCLUSION
4 {17} We remand to the district court for re-sentencing consistent with the Supreme
5 Court’s decision in Miller II, 2013-NMSC-048, ¶ 38. On remand, Defendant may
6 raise and introduce evidence pertaining to whether his right to be free from double
7 jeopardy was violated by sale of the seized vehicles. We affirm the district court as
8 to the restitution amount and credit for pre-sentence confinement.
9 {18} IT IS SO ORDERED.
10
11 MICHAEL D. BUSTAMANTE, Judge
12 WE CONCUR:
13
14 JAMES J. WECHSLER, Judge
15
16 J. MILES HANISEE, Judge
14