December 20, 2021- State of New Mexico v. Donald Wing, No. A-1-CA-38763

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: vet ed 127202021 9:37 AM
Filing Date: December 20, 2021 Lh
No. A-1-CA-38763 Mark yf
STATE OF NEW MEXICO,

Plaintiff-A ppellee,
V.
DONALD WING a/k/a
DONALD WING II,

Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY

Daylene A. Marsh, District Judge

Hector H. Balderas, Attomey General
Santa Fe, NM

Walter Hart, Assistant Attomey General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
ATTREP, Judge.	2
{1} 	Defendant 	Donald 	Wing 	III 	appeals 	his 	conviction 	and 	sentence 	for	3
possession of a controlled substance (methamphetamine), in violation of NMSA	4
1978, Section 30-31-23(A) (2011, amended 2021), following entry of a guilty plea	5
conditioned on his right to appeal the denial of his motion to suppress. Because we	6
conclude Defendant’s proximity to the scene of a recent crime, in conjunction with	7
all the surrounding circumstances, gave rise to reasonable suspicion in this case, we	8
affirm the district court’s denial of Defendant’s suppression motion. In this appeal,	9
Defendant also contends that we must remand for resentencing because the district	10
court did not afford him the opportunity to allocute prior to sentencing. The State	11
counters that, by entering into a plea and disposition agreement, Defendant waived	12
his right to raise the allocution violation on appeal. We do not agree with the State	13
on this point. We hold that the entry of a valid guilty plea and appellate waiver does	14
not operate to waive the right to appeal an allocution violation that occurred at	15
sentencing. Because the district court did not afford Defendant the right of	16
allocution, we reverse Defendant’s sentence and remand for resentencing.	17
MOTION TO SUPPRESS	18
{2} 	As for the district court’s suppression ruling, Defendant argues the court erred	19
in concluding that his encounter with law enforcement was consensual and in	20

2
alternatively concluding that the encounter, if nonconsensual, was supported by	1
reasonable suspicion. Assuming for purposes of this opinion that Defendant indeed	2
was seized at the inception of the encounter, we conclude that reasonable suspicion	3
supported the stop of Defendant, and we affirm the district court’s denial of his	4
suppression motion on this basis. Cf. State v. Ortiz, 2009-NMCA-092, ¶¶ 21, 49, 146	5
N.M. 873, 215 P.3d 811 (observing that this Court may uphold a district court’s	6
decision to dismiss charges on any of the grounds underlying its decision).	7
I. 	Background	8
{3} 	While on patrol in his marked vehicle, at around 1:15 a.m. on a cold January	9
day, Farmington Police Officer Matthew Burns observed at least two individuals in	10
an empty lot appearing to dump a large piece of trash from the back of a truck.	11
Officer Burns testified that there were numerous issues with this lot, including	12
unwanted subjects and people dumping trash there. Upon seeing the truck in the lot,	13
Officer Burns turned his vehicle around and drove in the direction of the street where	14
he believed he saw the truck traveling. By the time Officer Burns got to the street,	15
the truck was gone, but Defendant was there walking a bicycle. Without activating	16
his patrol lights or telling Defendant to stop, Officer Burns approached Defendant	17
and asked him about the activity in the lot. Defendant immediately admitted to	18
dumping trash there.	19

3
{4} 	Officer Burns estimated that between when he saw the truck on the lot and	1
when he came in contact with Defendant, only a minute or two had passed; he also	2
estimated that the distance between Defendant and the lot was “pretty close,”	3
roughly 100 yards. Defendant was the only person around at that time, and Officer	4
Burns testified that it was unusual for anyone to be out, given it was a cold, January	5
morning. When asked if he specifically saw Defendant or his bicycle, which had	6
distinctive lights through the spokes, on the lot, Officer Burns answered that it was	7
dark and he could see a couple subjects but he did not provide any description of the	8
subjects and could not say whether Defendant was one of them. Officer Burns further	9
stated that he did not recall seeing the bicycle on the lot because he was focused on	10
the truck at the time.	11
{5} 	After obtaining Defendant’s name and date of birth, Officer Burns learned of	12
an outstanding warrant for Defendant’s arrest, and he placed Defendant under arrest.	13
Prior to being booked at the local detention center, Defendant was searched and	14
methamphetamine and drug paraphernalia were found on Defendant’s person; this	15
discovery led to the charges in this case. Defendant moved to suppress both the	16
evidence found on his person and a statement he made when officers discovered the	17
methamphetamine. Defendant’s motion alleged that he “was seized . . . when Officer	18
. . . Burns saw [Defendant] walking his bicycle and began to question him about	19
what he was doing in the dirt lot” and that this seizure was unconstitutional because	20

4
Officer Burns lacked reasonable suspicion. The State’s written response to the	1
motion, as well as the parties’ presentations to the district court at the suppression	2
hearing, focused on whether reasonable suspicion existed to link Defendant to the	3
trash dumping.	4
{6} 	After taking the matter under advisement, the district court entered a written	5
order denying Defendant’s motion on alternative grounds. The court first ruled that	6
Defendant’s constitutional rights were not implicated because Officer Burns had not	7
seized 	Defendant 	prior 	to 	his 	admission 	that 	he 	dumped 	trash 	in 	the 	lot.	8
Alternatively, acknowledging the State effectively conceded that a seizure occurred,	9
the district court ruled that the seizure of Defendant, prior to his admission, was	10
supported by reasonable suspicion. Defendant appeals the district court’s denial of	11
his suppression motion, pursuant to his conditional plea.	12
II. 	Because Reasonable Suspicion Supported the Stop of Defendant, We	13
Affirm the Denial of Defendant’s Suppression Motion	14
{7} 	Defendant makes numerous contentions directed at explaining why the district	15
court erred in concluding that Defendant’s initial encounter with Officer Burns was	16
consensual and therefore not a seizure. Because we agree with the district court’s	17
alternative ruling—i.e., that the stop of Defendant was supported by reasonable	18
suspicion—we need not and do not address Defendant’s arguments about the	19
encounter being nonconsensual.	20

5
A. 	Standard of Review	1
{8} 	Defendant argues that under both the Fourth Amendment to the United States	2
Constitution and Article II, Section 10 of the New Mexico Constitution, his seizure	3
was unreasonable.1 See Yazzie, 2016-NMSC-026, ¶ 17 (“The United States and the	4
New Mexico Constitutions provide overlapping protections against unreasonable	5
searches and seizures.” (alteration, internal quotation marks, and citation omitted)).	6
It is well established that “a police officer may detain an individual in investigating	7
potential criminal activity where the officer has formed a reasonable suspicion the	8
individual 	is 	breaking, 	or 	has 	broken, 	the 	law”—such 	detention 	is 	not	9
constitutionally unreasonable. State v. Salazar, 2019-NMCA-021, ¶ 12, 458 P.3d	10
546 (internal quotation marks and citation omitted).	11
{9} 	“A reasonable suspicion is a particularized suspicion, based on all the	12
circumstances that a particular individual, the one detained, is breaking, or has	13
broken, the law.” State v. Hubble, 2009-NMSC-014, ¶ 8, 146 N.M. 70, 206 P.3d 579	14
(internal quotation marks and citation omitted). “We will find reasonable suspicion	15
if the officer is aware of specific articulable facts, together with rational inferences	16
1 Defendant, however, does not assert that the New Mexico Constitution
affords him greater protection than the United States Constitution. In light of this
and because our courts “have never interpreted the New Mexico Constitution to
require more than a reasonable suspicion that the law is being or has been broken to
conduct a temporary, investigatory traffic stop,” we apply the same reasonable
suspicion standard under both the state and federal constitutions. State v. Yazzie,
2016-NMSC-026, ¶ 38, 376 P.3d 858.

6
from those facts, that, when judged objectively, would lead a reasonable person to	1
believe criminal activity occurred or was occurring.” Id. (internal quotation marks	2
and citation omitted). “The level of suspicion required for an investigatory stop is	3
considerably less than proof of wrongdoing by a preponderance of the evidence.”	4
State v. Urioste, 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964 (internal	5
quotation marks and citation omitted).	6
{10} 	Because Defendant does not challenge the district court’s factual findings,	7
whether reasonable suspicion supported the stop is a legal question we review de	8
novo. See Yazzie, 2016-NMSC-026, ¶ 15. “On appeal, we must review the totality	9
of the circumstances and must avoid reweighing individual factors in isolation.”	10
State v. Martinez, 2018-NMSC-007, ¶ 12, 410 P.3d 186. In doing this, we view the	11
facts “in a manner most favorable to the prevailing party,” indulge “all reasonable	12
inferences in support of the court’s decision,” and disregard “all inferences or	13
evidence to the contrary[.]” State v. Werner, 1994-NMSC-025, ¶ 10, 117 N.M. 315,	14
871 P.2d 971 (internal quotation marks and citation omitted).	15
B. 	Defendant’s Proximity to the Scene of a Recent Crime, in Conjunction	16
With All the Surrounding Circumstances, Gave Rise to Reasonable	17
Suspicion	18
{11} 	Defendant does not contend Officer Burns lacked reasonable suspicion that	19
trash had been illegally dumped in the lot. Instead, Defendant contends the officer	20
lacked reasonable suspicion that Defendant, in particular, was involved in this	21

7
offense. Thus, our inquiry is limited to whether, based on the totality of the	1
circumstances, Officer Burns’ suspicion that Defendant was involved in the illegal	2
dumping was reasonable. The district court ruled that it was. Defendant on appeal	3
makes several arguments why this was error, chief among them that Officer Burns	4
relied exclusively on Defendant’s proximity to the scene of the crime, which	5
Defendant contends was insufficient to form a reasonable suspicion.	6
{12} 	In advancing this argument, Defendant does not contend proximity to the	7
scene of a recent crime is irrelevant when assessing the reasonableness of a stop.	8
Any such contention would be contrary to precedent. When viewed in conjunction	9
with all the circumstances known to an officer, proximity to the scene of a recent	10
crime may prove significant in determining the reasonableness of a suspicion. State	11
v. Watley, 1989-NMCA-112, 109 N.M. 619, 788 P.2d 375, illustrates this point. In	12
Watley, the officer received a report in the early morning hours of a rape in the	13
immediate area he was patrolling. Id. ¶ 15. The only additional facts known to the	14
officer were that the suspect was Hispanic and there was a person wearing a ski mask	15
running north on a nearby street. Id. The officer then stopped the defendant, who	16
was traveling north in a truck on the nearby street and was the only one around. Id.	17
Even though the defendant did not match the minimal description known to the	18
officer (i.e., the defendant was not Hispanic, was not wearing a ski mask, and was	19
not on foot), this Court concluded the circumstances supported the stop. Id. ¶¶ 17-18.	20

8
Watley considered it significant that “[the] defendant was stopped in the early	1
morning hours a short distance from the area where an alleged crime had been	2
committed and where a man had been seen running toward the vicinity where [the]	3
defendant was stopped” and that the defendant was the only person in the area. Id.	4
¶¶ 17-18. Based on these facts, this Court held the officer “could reasonably have	5
concluded that [the] defendant may have been involved in the commission of the	6
reported offense.”2 Id. ¶ 17.	7
{13} 	In other cases, this Court likewise has concluded that proximity to the scene	8
of a recent crime—in conjunction with appropriate circumstances—may support	9
reasonable suspicion. See, e.g., State v. Lovato, 1991-NMCA-083, ¶¶ 2-4, 11-14,	10
112 N.M. 517, 817 P.2d 251 (concluding there was reasonable suspicion supporting	11
a vehicular stop to investigate a reported drive-by shooting where “the incident . . .	12
occurred around midnight, the car . . . met the general description radioed by the	13
police dispatcher, and there was no other vehicular traffic in the area”); State v.	14
Jimmy R., 1997-NMCA-107, ¶¶ 2-3, 124 N.M. 45, 946 P.2d 648 (concluding the	15
officer had reasonable suspicion for an investigative stop because the subjects, who	16
2 After reaching this conclusion, the Court in Watley went on to discuss facts
the officer observed after the stop. See 1989-NMCA-112, ¶ 19. Such facts, however,
cannot be used to support the lawfulness of a stop, so we give them no consideration.
See State v. Jason L., 2000-NMSC-018, ¶ 20, 129 	N.M. 119, 2 	P.3d 	856
(“Reasonable suspicion must exist at the inception of the seizure. The officer cannot
rely on facts which arise as a result of the encounter.” (citation omitted)).

9
alone were in the vicinity of reported criminal activity, began walking away when	1
the officer drove up); State v. Ortiz, 2017-NMCA-006, ¶¶ 14-15, 387 P.3d 323	2
(concluding the officer had reasonable suspicion to stop the defendant where,	3
notwithstanding the lack of suspect’s description, the defendant was the only person	4
in the vicinity of a recent report of suspicious activity, at an hour “when it [was]	5
objectively reasonable to infer there were no other individuals present and that the	6
business was not open[,]” and the defendant’s behavior was suspicious given the	7
time of day and location).3
8
3 Commentators and numerous other courts have reached similar conclusions.
See, e.g., 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 9.5(h) (6th ed. 2021) (discussing, in the context of a stop related to
recent criminal activity in the area, what combination of facts and circumstances will
suffice to establish a “reasonable possibility” that the person stopped committed the
offense, and identifying as considerations “(1) the particularity of the description of
the offender or the vehicle in which he fled; (2) the size of the area in which the
offender might be found, as indicated by such facts as the elapsed time since the
crime occurred; (3) the number of persons about in that area; (4) the known or
probable direction of the offender’s flight; (5) observed activity by the particular
person stopped; and (6) knowledge or suspicion that the person or vehicle stopped
has been involved in other criminality of the type presently under investigation”);
United States v. Goodrich, 450 F.3d 552, 561-63 (3d Cir. 2006) (upholding the
validity of the stop, notwithstanding imprecise description of the suspect, because
other relevant factors, including (1) the reputation of the area for criminal activity of
the type suspected; (2) the time of day; (3) the geographical and temporal proximity
of the stop to the scene of the alleged crime; and (4) the number of persons in the
area, “tend[ed] to more narrowly define the universe of potential suspects and
thereby constrain police discretion”); People v. Brown, 353 P.3d 305, 316-19 (Cal.
2015) (concluding, notwithstanding lack of suspect description, that reasonable
suspicion existed where the deputy arrived at the scene of a fight within three
minutes of dispatch; it was 10:30 p.m.; the defendant was the only person, and in the
only vehicle, near the scene; and the defendant first drove away from, then drove

10
{14} 	In contrast to Watley, and similar cases cited above, State v. Garcia, 2009-	1
NMSC-046, 147 N.M. 134, 217 P.3d 1032, upon which Defendant principally	2
relies,4 illustrates the type of situation in which proximity to the scene of a recent	3
crime proves insufficient in light of the totality of the circumstances. In Garcia, our	4
Supreme Court determined that “seizing [the d]efendant because he was near the	5
address 	where 	the 	yet-uninvestigated 	‘possible 	domestic’ 	had 	occurred 	was	6
unreasonable because the officer had no articulable, particularized suspicion that	7
[the d]efendant was breaking or had broken the law.” 2009-NMSC-046, ¶ 44. The	8
Court reached this conclusion for two reasons. First, “the officer had no information	9
that a crime had been or was being committed[,]” id. ¶ 45—a situation not at issue	10
in this case, given Officer Burns’ direct observation of illegal dumping. Second,	11
back toward, the scene); State v. Johnson, 2011 SD 10, ¶¶ 2, 11, 13-14, 795 N.W.2d
924 (per curiam) (concluding that reasonable suspicion existed where it was early
morning; the officer knew that a casino had been robbed seconds beforehand; the
defendant was stopped four blocks from the casino; there were no other vehicles
moving away from the casino; and the location of the vehicle was on a logical escape
route).4 On appeal, Defendant additionally relies on State v. Eric K., 2010-NMCA-
040, 148 N.M. 469, 237 P.3d 771. Eric K. appears to be another example of a
situation where proximity to the scene of a recent crime proves insufficient in light
of the totality of the circumstances. Unfortunately, the opinion contains little
explanation why the circumstances of that case proved insufficient, so it is difficult
to glean much on this point from Eric K. We do, however, observe that Eric K.
involved numerous circumstances not at play in this case—e.g., the report was from
a 911 caller (the identity of whom was unknown); the specific location of the alleged
crime was unknown; it was mid-afternoon; and other people were in the vicinity at
the time of the stop. Id. ¶¶ 2-5. Given these circumstances, we can appreciate why
this Court concluded that reasonable suspicion did not exist. See id. ¶¶ 23-24.

11
“even had the officer known that a crime had been committed,” the Court in Garcia	1
observed, “the fact that [the d]efendant was merely walking in the vicinity was not	2
necessarily sufficient to support a reasonable suspicion that [the d]efendant was the	3
responsible party.” Id. ¶ 46 (emphasis added). The facts—or more aptly the absence	4
thereof—that made the defendant’s proximity to the scene of a crime insufficient in	5
Garcia included that the officer had no description of the suspect and the defendant	6
was merely on the same block as the supposed crime at 7:00 p.m., a time when it is	7
not unusual for people to be walking in the streets. Id. Given these circumstances,	8
the Court concluded, “[t]he connection between [the d]efendant and any crime that	9
may have been in progress was too attenuated to constitute reasonable suspicion.”	10
Id.	11
{15} 	With the foregoing precedents in mind, we turn to the totality of the	12
circumstances here. The specific articulable facts and rational inferences place this	13
case closer to the circumstances in Watley than those in Garcia, and we similarly	14
conclude that they gave rise to reasonable suspicion. In this case, around 1:15 a.m.	15
on a January day, Officer Burns witnessed at least two individuals appearing to dump	16
trash from the back of a truck in an empty lot that is known for exactly this type of	17
criminal activity. See State v. Martinez, 2020-NMSC-005, ¶ 36, 457 P.3d 254	18
(“[W]here an officer is patrolling an area known as a site where a particular type of	19
crime is prevalent and stops an individual on suspicion that he or she has potentially	20

12
committed the very crime that occurs with frequency in that area, then the assertion	1
that the area in question is a high-crime area is quite acceptable if not essential to	2
understanding and judging the merits of the officer’s suspicion.”). Although Officer	3
Burns drove in the direction he believed he saw the truck travel, by the time he	4
arrived there, only about one to two minutes later, the truck was gone, and Defendant	5
was the only individual in the vicinity. 5 The stop occurred in “pretty close	6
proximity” to the illegal dumping, about 100 yards from the lot. It was unusual for	7
anyone to be out given the time of day and the conditions. Considering all these	8
circumstances 	together—that 	Defendant 	was 	in 	close 	temporal 	and 	physical	9
proximity to the scene of a crime, known for exactly the same type of crime	10
suspected, that Defendant was found in the area where the truck involved in the	11
crime was seen leaving, that Defendant was the only individual in the vicinity, and	12
5The fact that Defendant, when stopped, was traveling on foot and not in the
truck, does not make Officer Burns’ suspicion unreasonable. See Watley, 1989-
NMCA-112, ¶¶ 17-18 (upholding stop of vehicle when suspect seen fleeing on foot);
Brown, 353 P.3d at 309, 318-19 (upholding stop of vehicle even though the officer
did not know if suspect was on foot or in vehicle). Officer Burns observed multiple
people engaged in illegal dumping; and while it was possible that all involved
departed together in the truck, as Defendant surmises, it also was possible that the
suspects departed separately or parted ways before Officer Burns reached the street
where the truck was seen traveling since, as the district court observed, “it would
only take one person to drive the truck away.” See Yazzie, 2016-NMSC-026, ¶ 33
(“The requirement 	of reasonable suspicion is not a requirement 	of absolute
certainty[.]” (alteration, internal quotation marks, and citation omitted)); Werner,
1994-NMSC-025, ¶ 10 (recognizing that all reasonable inferences in support of the
district court’s decision should be indulged).

13
that it was late at night and unusual for anyone to be out—Officer Burns reasonably	1
could have concluded that Defendant, in particular, was involved in the illegal	2
dumping he had just witnessed. See, e.g., Watley, 1989-NMCA-112, ¶¶ 17-18	3
(concluding that similar circumstances gave rise to reasonable suspicion); Goodrich,	4
450 F.3d at 561-63 (same). Given the circumstances in their totality, this is not the	5
type of situation, as Defendant suggests, where proximity to the scene of a recent	6
crime proves insufficient.	7
{16} 	Nor are Defendant’s remaining arguments in support of a contrary conclusion	8
persuasive. Defendant contends that Officer Burns did not see him or his distinctive-	9
looking bicycle on the lot and that there otherwise was nothing directly linking	10
Defendant to the illegal dumping. Relatedly, Defendant contends that it was entirely	11
possible that he just happened to be walking in the area at the time the illegal	12
dumping occurred. These arguments misapprehend the level of certainty necessary	13
to support an investigative detention. While “particularized suspicion,” based on all	14
the circumstances known to the officer, that the individual detained is breaking or	15
has broken the law is necessary to render the stop reasonable, officers “need not limit	16
themselves to their direct observations in developing suspicions, and they need not	17
exclude all possible innocent explanations of the facts and circumstances they	18
observe.” Salazar, 2019-NMCA-021, ¶ 16 (internal quotation marks and citation	19
omitted); see also Martinez, 2020-NMSC-005, ¶ 31 (“The possibility of an innocent	20

14
explanation does not deprive the officer of the capacity to entertain a reasonable	1
suspicion of criminal conduct.” (internal quotation marks and citation omitted)).	2
Indeed, “sufficient probability, not certainty, is the touchstone of reasonableness	3
under the Fourth Amendment.” Yazzie, 2016-NMSC-026, ¶ 33 (internal quotation	4
marks and citation omitted); see also id. ¶ 22 (providing that “where conduct	5
justifying the stop was ambiguous and susceptible of an innocent explanation,	6
officers could detain the individuals to resolve the ambiguity” (alteration, omission,	7
internal quotation marks, and citation omitted)); Salazar, 2019-NMCA-021, ¶¶ 3, 5-	8
6, 19 (concluding that a stop was reasonable notwithstanding that the officer lost	9
sight of the vehicle observed evading a DWI checkpoint and was uncertain whether	10
the vehicle stopped was the target vehicle).	11
{17} 	As we have discussed, there was a sufficient probability that Defendant was	12
involved in the illegal dumping, thereby making the stop of Defendant, if any,	13
reasonable. The district 	court’s 	denial of Defendant’s 	suppression 	motion is	14
affirmed.	15
ALLOCUTION	16
{18} 	Defendant’s second claim of error is that he was denied the right to allocution	17
at his sentencing hearing and, as a result, is entitled to resentencing. The State does	18
not disagree that Defendant’s right to allocution was violated. Instead, the State	19
contends that Defendant’s entry into a plea and disposition agreement bars all but	20

15
claims of jurisdictional defects, which, the State contends, allocution errors are not.	1
In response, Defendant argues first that the scope of the appellate waiver in the plea	2
and disposition agreement did not encompass allocution errors and second that the	3
allocution violation is indeed a jurisdictional defect. Because we agree with	4
Defendant’s second argument, we address this point only. We conclude that the	5
denial of the right to allocution renders the ensuing sentence unauthorized by	6
statute—a jurisdictional defect that may be appealed notwithstanding the entry of a	7
valid guilty plea and appellate waiver. Because Defendant was denied the right of	8
allocution, we remand for resentencing in this case.	9
I. 	Background	10
{19} 	Defendant and the State entered into a plea and disposition agreement in	11
which Defendant agreed to plead guilty to possession of a controlled substance in	12
this case and another case. The State in turn agreed to dismiss the remaining charges	13
in both cases. The plea and disposition agreement contained “[n]o agreement as to	14
sentencing[,]” but the State did not oppose the sentences in the two cases being	15
suspended and run concurrently. In relevant part, the plea and disposition agreement	16
read:	17
[D]efendant gives up any and all motions, defenses, objections or	18
requests which [he] has made or raised, or could assert hereafter, to the	19
court’s entry of judgment and imposition of a sentence consistent with	20
this agreement. [D]efendant waives the right to appeal the conviction	21
that results from the entry of this plea agreement.	22

16
Excepted from this waiver was Defendant’s right to appeal the district court’s	1
suppression ruling in this case.	2
{20} 	The district court held a sentencing hearing in the two cases governed by the	3
plea and disposition agreement, as well as in a third case in which Defendant also	4
pleaded guilty to possession of a controlled substance. Only the State, defense	5
counsel, and an individual from treatment court were invited to speak at the hearing.	6
As the individual from treatment court was speaking, Defendant interjected,	7
expressing 	disagreement 	with 	one of the stated 	assertions. Aside from this,	8
Defendant neither spoke, nor was he ever invited to address the court prior to	9
imposition of the sentence. At the conclusion of the hearing, the district court	10
sentenced 	Defendant 	within 	the 	statutory 	maximum 	punishment. 	Defendant	11
appealed the judgment and sentence as to this case only; he did not appeal the	12
judgment and sentence as to the other two cases.	13
II. 	An Allocution Violation Can Be Raised on Appeal Notwithstanding the	14
Entry of a Valid Guilty Plea and Appellate Waiver	15
{21} 	The question we resolve today is one we consider de novo: whether the denial	16
of the right to allocution is a jurisdictional defect that may be raised on appeal,	17
notwithstanding the entry of a valid guilty plea and appellate waiver. See State v.	18
Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251, 208 P.3d 896 (providing that	19
“[q]uestions regarding subject matter jurisdiction are questions of law which are	20
subject to de novo review” (internal quotation marks and citation omitted)). We	21

17
begin by briefly reviewing the contours of the right to allocution in New Mexico.	1
We then discuss the usual effect of the waiver made in a valid guilty plea and	2
appellate waiver. Recognizing that our Supreme Court has deemed jurisdictional	3
defects—i.e., sentences not authorized by statute—as the only types of sentencing	4
claims that may be raised on appeal in this context, we examine whether allocution	5
violations constitute such defects, and ultimately determine that they do. Our	6
conclusion rests on longstanding principles that a court’s sentencing authority	7
derives exclusively from statute; that the Criminal Sentencing Act (the Act), NMSA	8
1978, §§ 31-18-12 to -26 (1977, as amended through 2020), plainly mandates that	9
the opportunity for allocution be provided at every felony sentencing proceeding;	10
and that a court’s failure to afford this right renders the sentence invalid.	11
A. 	The Right to Allocution in New Mexico	12
{22} 	The right to allocution in New Mexico has been expansively applied and	13
guardedly protected. “Allocution is defined as the formal inquiry or demand made	14
by the court or clerk to [the] accused at the time for pronouncing sentence as to	15
whether [the] accused has anything to say why sentence should not be pronounced	16
on him.” State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794, 932 P.2d 484	17
(internal quotation marks and citation omitted). The common law doctrine of	18
allocution, also known as allocutus, is codified in the Act and applies to all felony	19

18
offenses.6 See Tomlinson v. State, 1982-NMSC-074, ¶¶ 9-12, 98 N.M. 213, 647 P.2d	1
415 (holding that “Section 31-18-15.1 extends the common law doctrine of allocutus	2
to non-capital felonies as enumerated in Section 31-18-15 and that the trial judge	3
must give the defendant an opportunity to speak before he pronounces sentence”).	4
In 	modern-day 	sentencing, 	allocution 	serves 	many 	important 	functions.	5
Predominantly, allocution “provid[es] an avenue through which a defendant may ask	6
for mercy based on factors that might not otherwise be brought to the court’s	7
attention, and promot[es] safety, certainty and equity in sentencing and the judicial	8
process overall.” Williams, 2021-NMCA-021, ¶ 9 (internal quotation marks and	9
citation omitted). Even where a defendant’s statements can have little or no practical	10
impact on the sentencer—such as where the court must apply habitual offender	11
enhancements—allocution still is required and serves a meaningful purpose. See	12
Leyba, 2009-NMCA-030, ¶ 27 (providing that “the opportunity to personally	13
address the sentencer retains both symbolic and practical significance . . . [and] may	14
increase for some defendants the perceived equity of the process” (internal quotation	15
6 This Court has extended the right to allocution to a variety of other types of
proceedings. See State v. Williams, 2021-NMCA-021, ¶ 12, 489 P.3d 949 (probation
revocation proceedings), cert. denied, 2021-NMCERT-___ (No. S-1-SC-38732,
Mar. 31, 2021); State v. Leyba, 2009-NMCA-030, ¶ 27, 145 N.M. 712, 204 P.3d 37
(habitual offender proceedings); State v. Ricky G., 1990-NMCA-101, ¶ 13, 110 N.M.
646, 798 P.2d 596 (children’s court proceedings). But see State v. Stenz, 1990-
NMCA-005, ¶¶ 15-21, 109 N.M. 536, 787 P.2d 455 (declining to extend the right to
allocution to misdemeanor sentencing proceedings in the absence of a statute or rule
establishing the same).

19
marks and citation omitted)). An allocution violation in New Mexico renders the	1
sentence invalid, resulting in the remedy of reversal and resentencing without	2
inquiry into the harm the violation may have caused. See Tomlinson, 1982-NMSC-	3
074, ¶¶ 11-12 (rejecting the argument that an allocution violation is “harmless error”	4
and reasoning that “[t]here is no substitute for the impact on sentencing which a	5
defendant’s own words might have if he chooses to make a statement” (internal	6
quotation marks and citation omitted)).	7
B. 	A Valid Guilty Plea and Appellate Waiver Waives a Defendant’s Right	8
to Appeal All Non-Jurisdictional Defects and Errors Not Otherwise	9
Reserved	10
{23} 	We turn next to the effect of a valid guilty plea and appellate waiver on a	11
defendant’s right to appeal. As an initial matter, we note that our discussion here	12
applies only when the defendant does not explicitly reserve the matter he or she seeks	13
to raise on appeal. While the New Mexico Constitution confers to an aggrieved party	14
an absolute right to one appeal, see N.M. Const. art. VI, § 2, our Supreme Court has	15
determined this right may be waived. In particular, “ ‘a plea of guilty or nolo	16
contendere, 	when 	voluntarily 	made 	after 	advice 	of 	counsel 	and 	with 	full	17
understanding of the consequences, waives objections to prior defects in the	18
proceedings’ ” and, according to the Court, “ ‘also operates as a waiver of statutory	19

20
or constitutional rights, including the right to appeal’ ” a conviction and sentence.7
1
Chavarria, 2009-NMSC-020, ¶¶ 9, 16 (quoting Hodge, 1994-NMSC-087, ¶ 14).	2
However, “a plea agreement may not waive the right to challenge on appeal whether	3
a sentence was imposed without jurisdiction.” State v. Tafoya, 2010-NMSC-019,	4
¶ 6, 148 N.M. 391, 237 P.3d 693; see also Chavarria, 2009-NMSC-020, ¶ 9	5
(providing that a voluntary guilty plea ordinarily waives a defendant’s right to appeal	6
on “other than jurisdictional grounds” (internal quotation marks and citation	7
omitted)); State v. Trujillo, 2007-NMSC-017, ¶ 8, 141 N.M. 451, 157 P.3d 16 (“[A]	8
plea of guilty does not waive jurisdictional errors.”); Rule 12-321(B)(1) NMRA	9
(providing that the “[s]ubject matter jurisdiction of the trial or appellate court may	10
be raised at any time”).	11
7 This language in Chavarria could be read as stating that a defendant’s plea
of guilty or nolo contendere in and of itself, in the absence of an appellate waiver,
has the effect of waiving a defendant’s right to appeal the deprivation of all statutory
and constitutional rights, even those occurring after entry of the defendant’s plea.
See 2009-NMSC-020, ¶ 9. If such were the case, we might question its accuracy.
See, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred prior to the entry of the guilty
plea.” (emphasis added)), cited with approval in State v. Hodge, 1994-NMSC-087,
¶ 14, 118 N.M. 410, 882 P.2d 1. We, however, have no occasion to consider this
matter today. Like Chavarria, Defendant’s plea and disposition agreement contained
an appellate waiver, see 2009-NMSC-020, ¶ 3, and we assume for purposes of our
analysis that this waiver would have been effective in waiving all non-jurisdictional
defects at Defendant’s sentencing hearing.

21
{24} 	In this case, Defendant does not challenge the validity of his plea and only	1
specifically reserved the right to appeal the district court’s suppression ruling.	2
Accordingly, whether Defendant may raise the allocution violation on appeal turns	3
on whether that claim is jurisdictional. See Chavarria, 2009-NMSC-020, ¶¶ 9-10.	4
We must therefore examine the meaning of “jurisdictional” in this context, a subject	5
our Supreme Court addressed in Chavarria. The Court there explained that “[t]he	6
only relevant inquiry in determining whether the court has subject matter jurisdiction	7
is to ask whether the matter before the court falls within the general scope of	8
authority conferred upon such court by the constitution or statute.” Id. ¶ 11	9
(alteration, internal quotation marks, and citation omitted). Further, “a court’s	10
sentencing power properly is considered part of its subject matter jurisdiction[,]”	11
Tafoya, 	2010-NMSC-019, 	¶ 	7, 	and 	“is 	derived 	exclusively 	from 	statute[,]”	12
Chavarria, 2009-NMSC-020, ¶ 12 (internal quotation marks and citation omitted).	13
See also State v. Frawley, 2007-NMSC-057, ¶ 6, 143 N.M. 7, 172 P.3d 144 (“No	14
point of law has longer been established in New Mexico than the rule that the	15
prescription of the mode of punishment is pre-eminently a rightful subject of	16
legislation.” 	(alterations, 	internal 	quotation 	marks, 	and 	citation 	omitted)),	17
superseded by statute on other grounds as recognized by State v. Quintana, 2021-	18
NMSC-013, ¶ 34, 485 P.3d 215. In particular, the Act “confers authority on the trial	19
court to impose a criminal sentence in accordance with its provisions.” Chavarria,	20

22
2009-NMSC-020, ¶ 12 (emphasis added); accord § 31-18-13(A) (“[A]ll persons	1
convicted of a crime under the laws of New Mexico shall be sentenced in accordance	2
with the provisions of the [Act.]”). Thus, our Supreme Court explained, whether a	3
sentencing court acts within its jurisdiction in this context hinges on whether the	4
defendant’s sentence was authorized by the Act. Chavarria, 2009-NMSC-020,	5
¶¶ 11-12; see also State v. Sinyard, 1983-NMCA-150, ¶ 1, 100 N.M. 694, 675 P.2d	6
426 (providing that the defendant’s “claim that the sentence is unauthorized by	7
statute is jurisdictional”); cf. State v. Wyman, 2008-NMCA-113, ¶ 2, 144 N.M. 701,	8
191 P.3d 559 (“A claim that a sentence is illegal and unauthorized by statute is	9
jurisdictional and may be raised for the first time on appeal.”).	10
{25} 	Applying these principles in 	Chavarria, the Court determined that the	11
defendant’s 	claim of 	unconstitutional 	cruel 	and 	unusual 	punishment 	did 	not	12
implicate the sentencing court’s jurisdiction. 2009-NMSC-020, ¶¶ 13-14. Observing	13
that the defendant’s life sentence was explicitly authorized by certain provisions of	14
the Act, the Court concluded that the trial court did not exceed its sentencing	15
jurisdiction and that the defendant’s claim could not be raised on appeal in light of	16
his guilty plea and appellate waiver. Id. ¶¶ 10, 13-14. In contrast, the Court observed,	17
a claim that a sentence was not authorized by the Act—such as, for example, a claim	18
that probation could not be imposed after a sentence was partially suspended, see	19
Sinyard, 1983-NMCA-150, ¶ 1—was jurisdictional and accordingly could be raised	20

23
on appeal, notwithstanding the entry of a guilty plea and appellate waiver. See	1
Chavarria, 2009-NMSC-020, ¶ 14; see also, e.g., Tafoya, 2010-NMSC-019, ¶¶ 1, 3,	2
6-8 (affirming that the defendant, by pleading no contest, did not waive the right to	3
appeal a claim that the district court erroneously applied the Earned Meritorious	4
Deductions Act in fashioning his sentence); Trujillo, 2007-NMSC-017, ¶¶ 7-9	5
(treating as a jurisdictional matter the issue of whether a district court could	6
adjudicate habitual offender proceedings, where the original plea and disposition	7
agreement was silent on the question); State v. Shay, 2004-NMCA-077, ¶¶ 1, 5-6,	8
136 N.M. 8, 94 P.3d 8 (reversing imposition of habitual offender enhancements,	9
notwithstanding that the defendant agreed in his plea to the enhancement, because	10
the issue involved “an illegal sentence, which is a jurisdictional issue”).	11
C. 	The Violation of a Defendant’s Right to Allocution Renders the Ensuing	12
Sentence Unauthorized by the Act	13
{26} 	To determine whether a sentence rendered without affording a defendant the	14
right to allocution is unauthorized by the Act—and thus presents a jurisdictional	15
defect that may be raised on appeal notwithstanding the entry of a valid guilty plea	16
and appellate waiver—we examine the source and nature of the right in New	17
Mexico. 8 Because the common law doctrine of allocution was extended to all	18
8 Relying on an opinion from the United States Supreme Court, the State
contends that the denial of the right to allocution does not represent a jurisdictional
defect. The State’s reliance on United States Supreme Court precedent in this context

24
felonies as part of the Act’s mandatory sentencing procedures for felony offenses,	1
see Tomlinson, 1982-NMSC-074, ¶ 12, we turn first to the Act. Again, the Act	2
provides that “all persons convicted of a crime under the laws of New Mexico shall	3
be sentenced in accordance with the provisions of the [Act.]” Section 31-18-13(A)	4
(emphasis added). Beyond dictating the terms of imprisonment and maximum fines	5
for given offenses, see § 31-18-15(A), (E), the Act also mandates certain procedures	6
a judge must follow at sentencing. As relevant here, under Section 31-18-15.1(A),	7
“[a] district court must hold a sentencing hearing to determine the existence of	8
mitigating or aggravating circumstances that justify a departure of up to one-third	9
from the basic sentence applicable to the crime.” State v. Ayala, 2006-NMCA-088,	10
¶ 6, 140 N.M. 126, 140 P.3d 547 (internal quotation marks and citation omitted).9
11
This Court has construed Section 31-18-15.1(A) as imposing a mandatory duty on	12
the district court to hold such a sentencing hearing, regardless of whether the	13
defendant sought to present mitigating evidence at the hearing or even affirmatively	14
waived the issue below. See State v. Sotelo, 2013-NMCA-028, ¶¶ 39, 41, 296 P.3d	15
is not persuasive, given that the right to allocution and the jurisdictional question we
examine here are matters of state law.
9 Since Ayala, Section 31-18-15.1 has been amended to conform with the
conclusion that a sentencing enhancement based on a judicial finding of aggravating
circumstances violates the constitutional right to trial by jury. See Frawley, 2007-
NMSC-057, ¶¶ 1, 22; compare § 31-18-15.1 (1993, amended 2009), with § 31-18-
15.1. The existence of mitigating circumstances, however, continues to be a matter
for the judge. See § 31-18-15.1(A)(1).

25
1232 (“The plain language of the statute imposes a duty on the court. . . . The statute	1
does not prescribe any prerequisites to the district court’s exercise of this duty.”).	2
{27} 	Allocution in turn is a form of mitigation, id. ¶ 42, and likewise is mandated	3
by the Act. Nearly forty years ago, our Supreme Court in Tomlinson addressed the	4
source and scope of the right to allocution in New Mexico. The Court observed that	5
allocution is a common law doctrine, originally limited to capital offenses. See	6
Tomlinson, 1982-NMSC-074, ¶ 5. It further observed that other jurisdictions had	7
both explicitly codified the doctrine in statute or rule and expanded the right to non-	8
capital offenses. Id. ¶ 7. And despite the fact that “the right is not specifically set	9
forth by the plain language of Section 31-18-15.1[,]” Williams, 2021-NMCA-021,	10
¶ 10, our Supreme Court similarly concluded that the Legislature intended to	11
incorporate and expand on the right to allocution with its adoption of Section 31-18-	12
15.1. Tomlinson, 1982-NMSC-074, ¶ 12. To this end, the Court determined that	13
Section 31-18-15.1(A) “extends the common law doctrine of allocutus to non-capital	14
felonies as enumerated in Section 31-18-15[.]” Tomlinson, 1982-NMSC-074, ¶ 12.	15
As a result, Section 31-18-15.1(A), which, as discussed, requires “a sentencing	16
hearing to determine whether aggravating or mitigating circumstances exist, also	17
require[s] the trial court to give a defendant an opportunity to speak before the trial	18
court pronounces sentence.” Ricky G., 1990-NMCA-101, ¶ 7 (emphasis added).	19

26
{28} 	Just as the district court judge has a duty to hold a sentencing hearing to	1
determine the existence of mitigating or aggravating circumstances, see Sotelo,	2
2013-NMCA-028, ¶ 45; § 31-18-15.1(A), so too does the judge have a duty to afford	3
the defendant the right to allocution prior to sentencing, see Williams, 2021-NMCA-	4
021, ¶ 14 (“It is the duty of the court to inform a defendant of his or her right to	5
allocution, and when . . . the district court does not fulfill this duty, the sentence is	6
invalid.”). See also Ricky G., 1990-NMCA-101, ¶ 7 (same). Failure of the district	7
court to fulfill this duty renders the sentence invalid and mandates reversal and	8
resentencing without any inquiry into harm or the like. See id.; see also Tomlinson,	9
1982-NMSC-074, ¶¶ 11-12; cf. State v. Jones, 2010-NMSC-012, ¶ 48, 148 N.M. 1,	10
229 P.3d 474 (providing that since “the trial court lacks the statutory authority to	11
impose an adult sentence on any youthful offender without complying with [NMSA	12
1978,] Section 32A-2-20 [(2009)]” of the Delinquency Act, “[i]t follows that the	13
parties lack the ability to bargain away the court’s own responsibility” (emphasis	14
omitted)).	15
{29} 	In sum, in prescribing a trial court’s sentencing authority under the Act, the	16
Legislature 	requires 	courts 	to 	afford 	defendants 	the 	right 	of 	allocution. 	See	17
Tomlinson, 1982-NMSC-074, ¶ 12. The district court has an affirmative duty to	18
adhere to the Act’s prescriptions in this regard. See Williams, 2021-NMCA-021,	19
¶ 14; Ricky G., 1990-NMCA-101, ¶ 7. And failure of the district court to afford a	20

27
defendant the right of allocution under Section 31-18-15.1 renders the ensuing	1
sentence invalid. See Tomlinson, 1982-NMSC-074, ¶¶ 11-12. From all this, we	2
conclude that a sentence imposed without affording the defendant the right of	3
allocution renders the sentence unauthorized by statute—a jurisdictional defect that	4
may be raised on appeal notwithstanding the entry of a valid guilty plea and appellate	5
waiver. See Chavarria, 2009-NMSC-020, ¶ 9.	6
{30} 	Defendant thus is not precluded from raising the allocution violation on	7
appeal. As stated, the parties do not dispute that Defendant’s right to allocution was	8
violated, and our review of the record confirms this. Defendant’s sentence in this	9
case is therefore invalid. We accordingly reverse that sentence and remand for a new	10
sentencing hearing, at which Defendant is to be advised of his right to address the	11
district court and given the opportunity to do so.10 See Tomlinson, 1982-NMSC-074,	12
¶¶ 12-13.	13
CONCLUSION	14
{31} 	For the foregoing reasons, we affirm the district court’s denial of Defendant’s	15
motion to suppress but reverse Defendant’s sentence and remand for resentencing.	16
{32} 	IT IS SO ORDERED.	17
___________________________	18
JENNIFER L. ATTREP, Judge	19
10 Defendant is entitled to resentencing only in the case before us on appeal.
As noted, Defendant did not appeal the other two cases in his judgment and sentence,
and we, therefore, do not address the allocution error as it relates to those two cases.

1
WE CONCUR:
Megan P Duffy
MEGAN P. DUFFV, Judge
ZACHARY A. IVES, Judge
28
2 3 4 5