September 30, 2009 – State of New Mexico v. Clyde Woods, No. 28,289

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: September 30, 2009
NO. 28,289
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
CLYDE WOODS,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
Kevin R. Sweazea, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellant
Gary C. Mitchell, P.C.
Gary C. Mitchell
Ruidoso, NM
for Appellee

OPINION
VIGIL, Judge.
{1} 	The district court sentenced Defendant to house arrest by electronic monitor
with global positioning system (GPS) capability and work release at the direction and
approval of the Department of Corrections to satisfy the mandatory sentence of
imprisonment for one year required by the firearm enhancement statute, NMSA 1978,
§ 31-18-16(A) (1993). The State appeals, and we affirm.
BACKGROUND
{2} 	While on duty as a park ranger in Elephant Butte Lake State Park, Defendant
fatally shot Victim during a confrontation between Defendant and Victim. Defendant
pleaded guilty to voluntary manslaughter, NMSA 1978, Section 30-2-3(A) (1994), a
third degree felony resulting in the death of a human being, with a mandatory firearm
enhancement under Section 31-18-16(A). 	NMSA 1978, Section 31-18-15(A)(7)
(2007) provides that the basic sentence for a third degree felony resulting in the death
of a human being is “six years imprisonment.” The firearm enhancement statute at
Section 31-18-16(A) provides:
When a separate finding of fact by the court or jury shows that a firearm
was used in the commission of a noncapital felony, the basic sentence of
imprisonment prescribed for the offense in Section 31-18-15 NMSA
1978 shall be increased by one year, and the sentence imposed by this
subsection shall be the first year served and shall not be suspended or
deferred; provided, that when the offender is a serious youthful offender

2
or a youthful offender, the sentence imposed by this subsection may be
increased by one year.
{3} 	At Defendant’s sentencing hearing, much information was presented to the
district court on Defendant’s behalf. Defendant presented a clinical psychologist as
an expert witness who testified that Defendant was not a danger to himself or the
community so long as he was not involved in law enforcement. 	Various family
members, members of the community, including law enforcement, friends and
coworkers also spoke on behalf of Defendant about his background, contributions to
the community, his law enforcement work, and the circumstances of the offense.
Defendant also spoke and apologized to Victim’s family. Finally, the district court
was provided with a pre-sentence report prepared by Department of Corrections and
argument of counsel. Defense counsel asked the district court to allow Defendant to
serve the mandatory one-year sentence on an ankle bracelet, and the prosecutor asked
for prison time, arguing that the firearm enhancement statute required incarceration
because “prison means prison.”
{4} 	The district court judge heard and considered all the information presented,
including the circumstances of the offense. 	The district court judge concluded, “I
believe it’s the [c]ourt’s power in the circumstance to order that the mandatory one
year be served ankle bracelet, electronic monitoring, GPS monitoring, house arrest,

3
except for work and except for community service.” In pertinent part, the judgment
and partially suspended sentence provides:
IT IS THE SENTENCE OF THE COURT that . . . Defendant
be incarcerated in the New Mexico Department of Corrections for a
period of 6 years as to Count I and that the sentence be enhanced by one
(1) year for the mandatory firearm enhancement, pursuant to §31-18-16
for a total sentence of seven (7) years.
IT IS FURTHER SENTENCE OF THE COURT that all but
the firearm enhancement be suspended for a total period of incarceration
of one (1) year which [D]efendant shall serve under house arrest by
electronic monitor with GPS capability at the cost and expense of
[D]efendant, with work release authorized and that . . . Defendant shall
perform 120 hours of community service yearly during this period of
house arrest which community service shall be at the direction and
approval of the Department of Corrections.
IT IS THE FURTHER SENTENCE OF THE COURT that
following the one (1) year mandatory incarceration that [D]efendant be
placed on supervised probation for a period of five (5) years.
The State appeals.
DISCUSSION
{5} 	The issue presented by this appeal is whether the mandatory one-year sentence
set forth in Section 31-18-16(A) may be served under house arrest with electronic
monitoring by the Department of Corrections. Statutory interpretation is an issue of
law, which we review de novo. Our primary goal in interpreting a statute is to give
effect to the Legislature’s intent. We look first to the words chosen by the Legislature

4
and the plain meaning of the Legislature’s language. “When the language in a statute
is clear and unambiguous, we give effect to that language and refrain from further
statutory interpretation.” State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122
P.3d 50. Two sources we may utilize to aid in our interpretation of a statute, other
than the language of the statute itself, are other statutes containing similar language
and case law applying the statute. 	State v. Fellhauer, 1997-NMCA-064, ¶ 5, 123
N.M. 476, 943 P.2d 123.
1. 	Statutory Designation of the Place of Imprisonment
{6} 	The State argues that under NMSA 1978, Section 31-20-2(A) (1993), and
NMSA 1978, Section 33-2-19 (1990), the only correct place of imprisonment for a
term of one year or more is the State Penitentiary. We disagree.
{7} 	Section 31-20-2(A) in its entirety states:
Persons sentenced to imprisonment for a term of one year or more shall
be imprisoned in a corrections facility designated by the corrections
department, unless a new trial is granted or a portion of the sentence is
suspended so as to provide for imprisonment for not more than eighteen
months; then the imprisonment may be in such place of incarceration,
other than a corrections facility under the jurisdiction of the corrections
department, as the sentencing judge, in his discretion, may prescribe;
provided that a sentence of imprisonment for one year or more but not
more than eighteen months shall be subject to the provisions of
Subsections D and E of this section and shall not be imposed unless the
requirements set forth in Subsection D of this section are satisfied.

5
{8} 	Pertinent to the issue in this case, one exception to the general requirement that
a person sentenced to imprisonment for a term of one year or more “shall be
imprisoned in a corrections facility designated by the corrections department” is when
“a portion of the sentence is suspended so as to provide for imprisonment for not more
than eighteen months.” 	Id. 	In this case, the exception applies because a portion of
Defendant’s sentence was suspended, and a total period of incarceration of one year
was imposed. Since the exception applies, “the imprisonment may be in such place
of incarceration, other than a corrections facility under the jurisdiction of the
corrections department, as the sentencing judge, in his discretion, may prescribe.”
The last phrase of the statute does not apply here. It references Subsections (D) and
(E), known as the local sentencing option, and they apply if the sentencing judge
designates the place of incarceration as one which is operated by a local governing
body such as a city or county.
{9} 	In a similar vein, Section 33-2-19 in pertinent part states:
All 	persons 	convicted 	of 	any 	crime 	where 	the 	punishment 	is
imprisonment for a term of one year or more, after accounting for any
period of the sentence being suspended or deferred and any credit for
presentence confinement, shall be imprisoned in a corrections facility,
unless otherwise provided by law, and judgments shall be issued
accordingly.
{10} 	The question presented in this case is whether the district court had legal

6
authority to sentence Defendant to the Department of Corrections and serve the
mandatory one-year period of incarceration under house arrest by electronic monitor
with GPS capability at the cost and expense of Defendant. If the district court had the
authority to do so, Sections 31-20-2(A) and 33-2-19 are not violated. We now turn
to the central question raised in this case.
2. 	Imprisonment Through House Arrest by Electronic Monitor
{11} 	The issue of whether a mandatory sentence of imprisonment may be served
under house arrest by an electronic monitor with GPS capability is an issue of first
impression. However, our existing statutory framework and precedent provide us with
considerable guidance in resolving the question before us in this case.
{12} 	Since 1963, the Legislature has included the concept of custody outside the four
walls of a penal institution in the Criminal Code definition of “lawful custody or
confinement.” Specifically, NMSA 1978, Section 30-1-12(H) (1963) defines “lawful
custody or confinement” to mean, “the holding of any person pursuant to lawful
authority, including, without limitation, actual or conseructive [constructive] custody
of prisoners temporarily outside a penal institution, reformatory, jail, prison farm or
ranch[.]” Thus, the use of a conventional jail to hold the person is not necessary for
there to be a “lawful custody or confinement” under the plain language of the statute.

7
A “lawful custody or confinement” simply consists of “the holding of any person
pursuant to lawful authority,” and the actual means used to accomplish holding the
person is “without limitation.” Id.
{13} 	We applied the foregoing concepts in Fellhauer, 1997-NMCA-064, ¶ 5, when
we considered whether the pretrial release of a defendant to the custody of a relative
with 	house 	arrest 	constitutes 	“official 	confinement” 	to 	warrant 	presentence
confinement credit under NMSA 1978, Section 31-20-12 (1977), which directs:
A person held in official confinement on suspicion or charges of
the commission of a felony shall, upon conviction of that or a lesser
included offense, be given credit for the period spent in presentence
confinement against any sentence finally imposed for that offense.
We recognized that while the terms used in the two statutes (“lawful custody or
confinement” and “official confinement”) are not identical, it is reasonable to treat
them as “closely related, if not functionally equivalent, concepts.” Fellhauer, 1997-
NMCA-064, ¶ 6. Furthermore, we concluded, since the statutory definition of “lawful
custody or confinement” includes constructive custody outside a penal institution,
reformatory, or jail, “a person can be in confinement outside the four walls of a prison
or jail or other institution in which inmates are controlled by the police or other
correctional officials.” Id. We then referred to other cases interpreting presentence
confinement credit under Section 31-20-12, and noted, “our cases teach that under the

8
statute actual jail time is not required to earn the [presentence confinement] credit.”
Fellhauer, 1997-NMCA-064, ¶ 7. However, we also concluded that the constructive
custody must be sufficiently restrictive or onerous to be considered as confinement,
and home confinement, by itself, is neither sufficiently restrictive nor onerous.
Id. ¶¶ 10-13.
{14} 	Finally, we concluded that whether an individual can be punished for escape for
an unexcused absence from the place of confinement, id. ¶¶ 12-13, and the identity of
the custodian are appropriate considerations bearing on whether an individual is in
“official confinement” to be entitled to presentence confinement credit under Section
31-20-12. Fellhauer, 1997-NMCA-064, ¶¶ 16-17.
{15} 	Applying the language of the statutes, precedent, and the foregoing factors,
Fellhauer held:
Section 31-20-12 applies to time spent outside a jail, prison or other
adult or juvenile correctional facility when (1) a court has entered an
order releasing the defendant from a facility but has imposed limitations
on the defendant’s freedom of movement, OR the defendant is in the
actual or constructive custody of state or local law enforcement or
correctional officers; and (2) the defendant is punishable for a crime of
escape 	if 	there 	is 	an 	unauthorized 	departure 	from 	the 	place 	of
confinement or other non-compliance with the court’s order.
Fellhauer, 1997-NMCA-064, ¶ 17.
{16} 	The defendant in Fellhauer was not in the actual or constructive custody of law

9
enforcement or correctional officers because he was released to the care of a relative,
and he was not subject to a charge of escape if he failed to abide by the terms of his
house arrest. Id. ¶ 19. Accordingly, the defendant’s house arrest did not qualify as
“official confinement” under Section 31-20-12. Fellhauer, 1997-NMCA-064, ¶ 20.
{17} 	In State v. Martinez, 1998-NMSC-023, ¶ 10, 126 N.M. 39, 966 P.2d 747, our
Supreme Court noted that fourth and subsequent convictions for driving while
intoxicated (DWI) constitute fourth degree felonies, and added that under Section 31-
20-12, the Legislature has directed that credit must be awarded against any sentence
finally imposed for the time a defendant is held in official confinement on suspicion
or charge of a felony offense. 	Martinez, 1998-NMSC-023, ¶ 10. 	Therefore, our
Supreme Court presumed, “based on Section 31-20-12 and the Legislature’s use of the
word ‘felony’ in Section 66-8-102, that the Legislature intended to require that trial
courts grant presentence credit, for official confinement, to defendants convicted of
a fourth or subsequent offense of DWI.” Martinez, 1998-NMSC-023, ¶ 10.
{18} 	We then considered the foregoing statutes and cases in the context of the
mandatory sentence for a fourth DWI conviction in State v. Guillen, 2001-NMCA-
079, 130 N.M. 803, 32 P.3d 812. In Guillen, the defendant was released from jail on
the condition that he participate in an electronic monitoring program, together with

10
other special conditions that included that he “remain at his home at all times except
to attend alcohol counseling, work, or religious services.” Id. ¶¶ 2, 8. The defendant
successfully participated in the electronic monitoring program and alcohol treatment
for seven and one-half months and then entered a guilty plea to felony DWI (fourth
offense). Id. ¶ 4. At sentencing, the defendant asked the district court to award him
presentence confinement credit for the time he was released on electronic monitoring.
Id. However, because of mandatory sentencing for a fourth offense felony DWI, the
district court ruled that it lacked the authority to grant presentence confinement credit.
Id. ¶ 1. See NMSA 1978, § 66-8-102(G) (2008) (stating that a fourth DWI conviction
constitutes a fourth degree felony, and “notwithstanding the provisions of Section
31-18-15 NMSA 1978, [an offender] shall be sentenced to a term of imprisonment of
eighteen months, six months of which shall not be suspended, deferred or taken under
advisement”). 	The defendant appealed. 	The defendant had been monitored by
correctional officers, and his place of confinement was his home, not a penal
institution. Guillen, 2001-NMCA-079, ¶ 8. We concluded that under the first part of
the Fellhauer test, the critical question before us was whether participation in the
electronic monitoring program coupled with the special conditions constituted a
sufficient limitation on the defendant’s freedom of movement to entitle him to

11
presentence confinement credit under Section 30-1-12. Guillen, 2001-NMCA-079,
¶ 8. We concluded they were sufficient, and the first prong of Fellhauer was satisfied.
Guillen, 2001-NMCA-079, ¶¶ 9-10. 	The State conceded that the electronic
monitoring program satisfied the second prong of the Fellhauer test. Guillen, 2001-
NMCA-079, ¶ 7. We therefore held:
[A]ny defendant charged with a felony who is released (1) under
conditions of house arrest that require the defendant to remain at home
except to attend specified events such as treatment, work, or school and
(2) pursuant to a community custody release program that holds the
defendant liable to a charge of escape under Section 30-22-8.1, is
entitled to presentence confinement credit for the time spent in the
program.
Guillen, 2001-NMCA-079, ¶ 11. We reversed the defendant’s sentence and remanded
the case to the district court with instructions to grant to the defendant the presentence
credit he was entitled to receive. Id. ¶ 12.
{19} 	In Duhon, the defendant was released pending trial on a $20,000 appearance
bond with the additional conditions: “(1) that she be placed on strict house arrest; (2)
that she wear an ankle bracelet provided and monitored twenty-four (24) hours a day;
(3) that she submit to random urinalysis by the adult probation office; (4) that she
check in daily with the adult probation office; and (5) that she be allowed to travel
while accompanied by her parents only to meet with her attorney, for medical

12
emergencies, to church, and to mental health counseling.” 	2005-NMCA-120, ¶ 3
(internal quotation marks omitted). 	The State conceded that these conditions of
release satisfied the first Fellhauer prong. Duhon, 2005-NMCA-120, ¶ 7. The issue
on appeal was whether the defendant was subject to punishment for a crime of escape
under the second prong of Fellhauer. Duhon, 2005-NMCA-120, ¶ 8. We concluded
that the defendant was subject to prosecution for escape from a community custody
release program under NMSA 1978, Section 30-22-8.1(A) (1999). 	Duhon, 2005-
NMCA-120, ¶ 11. This statute provides:
Escape from a community custody release program consists of a person,
excluding a person on probation or parole, who has been lawfully
committed to a judicially approved community custody release program,
including a day reporting program, an electronic monitoring program, a
day detention program or a community tracking program, escaping or
attempting to escape from the community custody release program.
Section 30-22-8.1(A).
{20} 	The defendant was subject to prosecution under the statute because her release
to house arrest constituted a “judicially approved” form of “community custody
release” that was subject to defined procedures and conditions established by the
court. 	Duhon, 	2005-NMCA-120, 	¶ 	11 	(internal 	quotation 	marks 	omitted).
Furthermore, we noted, an “electronic monitoring program” is specifically included
as one type of a community custody program in the statute. 	Id. 	We therefore

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concluded that the second prong of Fellhauer was satisfied, and the defendant was
entitled to presentence confinement credit for the entire time she was under house
arrest pursuant to the electronic monitoring and reporting program requirements of her
pretrial release. Duhon, 2005-NMCA-120, ¶ 13.
{21} 	Finally, 	State v. Frost, 2003-NMCA-002, 133 N.M. 45, 60 P.3d 492,
specifically considered whether, in light of Guillen, Martinez, and Fellhauer, the
mandatory jail term of six months required by Section 66-8-102(G) (prior to 2004
amendment) for a fourth or subsequent DWI conviction may be served in an electronic
monitoring program administered by a county detention center. Frost, 2003-NMCA-
002, ¶¶ 1, 12-13. The statute at issue in Frost stated:
Upon a fourth or subsequent conviction [for DWI] under this section, an
offender is guilty of a fourth degree felony, as provided in Section
31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less
than six months, which shall not be suspended or deferred or taken under
advisement.
Id. ¶ 5 (emphasis omitted) (internal quotation marks and citation omitted). 	We
followed Guillen, Martinez, and Fellhauer and held that time served in the county jail
administered electronic monitoring program “falls within the scope of what the
[L]egislature has intended by requiring a mandatory six-month ‘jail term’ imposed by
Section 66-8-102(G).” Frost, 2003-NMCA-002, ¶ 20. Since presentence confinement

14
in an electronic monitoring program qualifies under Section 31-20-12 for credit
toward the mandatory six-month jail term imposed by Section 66-8-102(G), it follows
that postsentence confinement in the same electronic monitoring program can be
credited toward the same mandatory jail term for repeat DWI offenders.
{22} 	A defendant is also entitled to postconviction credit for time spent in
confinement pending appeal under NMSA 1978, Section 31-20-11 (1977), which
provides:
A person convicted of a felony in the district court and held in
official confinement while awaiting the outcome of an appeal, writ of
error to, or writ of certiorari from, a state or federal appellate court or
prior to his release as a result of postconviction proceedings or habeas
corpus, shall be given credit for the period spent in confinement against
any sentence finally imposed for that offense.
This statute also uses the phrase “official confinement” to describe what is required
to entitle a defendant to postconviction confinement credit. Noting that the phrase
used to describe the entitlement to presentence confinement credit and the entitlement
to postconviction confinement credit are identical, we concluded in Frost that post-
sentence confinement under a county jail administered electronic monitoring program
may be credited toward the mandatory sixth-month jail term. 	Frost, 2003-NMCA-
002, ¶ 12.
{23} 	The existing statutory framework and precedent thus compels us to conclude

15
that there is no prohibition against serving a mandatory sentence of imprisonment
under house arrest by an electronic monitor. 	In fact, we would have to reverse a
substantial body of precedent to come to a different conclusion.
3. 	Public Policy
{24} 	The State argues that the legislative intent of the firearm enhancement statue is
to impose a one-year term of actual incarceration in a prison or jail following a
conviction for the purpose of deterring the use of firearms in crimes. The State asserts
that allowing house arrest by an electronic monitor contravenes this public policy
established by the Legislature. Again, we disagree.
{25} 	First, the Legislature requires that a defendant receive presentence confinement
credit against any sentence that is ultimately imposed. Our cases hold that the credit
may be earned under house arrest with an electronic monitor because such conditions
constitute official confinement. 	It is not inconceivable for a defendant to be on
pretrial release under these conditions for one year or more and thereby satisfy the
mandatory one-year sentence of Section 31-18-16(A). For example, the defendant in
Duhon was on pretrial release with a condition of “strict house arrest” with an
electronic monitor for over twenty months. Duhon, 2005-NMCA-120, ¶¶ 3, 5.
{26} 	Second, following conviction, a defendant is entitled to credit for any time

16
served in official confinement while awaiting the outcome of his appeal. Our case law
concludes that house arrest with an electronic monitor constitutes such official
confinement for the entitlement. 	If a defendant is allowed release pending appeal
under house arrest with an electronic monitor, and the appeal takes one year or more
to be resolved, the mandatory one-year sentence of Section 31-18-16(A) will have
been served at the conclusion of the appeal.
{27} 	Third, the Legislature has not altered the existing judicial construction of its
mandatory imprisonment statutes. For example, in 2004, the Legislature amended
Section 66-8-102(G). As amended in 2004, Section 66-8-102(G) now states:
Upon a fourth conviction pursuant to this section, an offender is guilty
of a fourth degree felony and, notwithstanding the provisions of Section
31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of
eighteen months, six months of which shall not be suspended, deferred
or taken under advisement.
2004 N.M. Laws, ch. 42, § 1. The Legislature then added Subsections (H) to (J) to
Section 66-8-102, relating, respectively, to fifth, sixth, and seventh DWI convictions.
2004 N.M. Laws, ch. 42, § 1. In language identical to Subsection (G) as amended, the
new sections prescribe that a fifth DWI conviction constitutes a fourth degree felony,
with a mandatory sentence of one year, “which shall not be suspended, deferred or
taken under advisement”; a sixth DWI conviction constitutes a third degree felony,

17
with a mandatory sentence of eighteen months, “which shall not be suspended,
deferred or taken under advisement”; and a seventh or subsequent DWI constitutes
a third degree felony, with a mandatory sentence of two years, “which shall not be
suspended, deferred or taken under advisement.” Section 66-8-102(H)-(J). We deem
it highly significant that these amendments did not alter Guillen, Martinez, and
Fellhauer, and our holding in Frost was left intact. 	We fully acknowledge that the
Legislature may require a sentence to be served in a traditional prison setting.
However, it has not done so.
{28} 	Fourth, we note that a defendant is not entitled to electronic monitoring. In fact,
in the context of pretrial release under electronic monitoring, in Duhon we specifically
said that “the release of a criminal defendant may be ‘judicially approved’ subject to
defined procedures and conditions on a case-by-case basis.” Duhon, 2005-NMCA-
120, ¶ 11. We added that “[t]he societal interest in obtaining criminal defendants’
compliance with custodial restrictions applies to formalized systems and ad hoc
procedures equally. 	Furthermore, the authorization of court-approved, ad hoc
procedures would permit a degree of flexibility that would appear to be desirable in
this context.” Id. ¶ 12. Our existing sentencing scheme therefore provides sentencing
courts the discretion, on a case-by-case basis, to impose appropriate restrictions

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coupled with house arrest and electronic monitoring to satisfy a mandatory sentence.
Societal protection does not require, in all cases, that prison sentences be served
within the confines of a traditional prison setting. 	Having heard all the evidence
concerning the circumstances of the offense, and having been provided with
information pertinent to the sentencing decision from or on behalf of the victim, the
victim’s family, the defendant, the impact of the crime on the community, the public
safety, the goals of punishment, retribution and rehabilitation, our trial courts are well
equipped and suited to determine, in their discretion, when the exception to a
traditional prison sentence is appropriate.
{29} 	We therefore conclude that public policy does not prohibit the mandatory
firearm enhancement of a one-year sentence of imprisonment set forth in Section 31-
18-16(A) from being served under house arrest with electronic monitoring.
CONCLUSION
{30} 	We hold that the mandatory one-year prison term required by Section 31-18-
16(A), of our firearm enhancement statute may be served under house arrest by an
electronic monitor under the supervision of state or local law enforcement or
correctional officers if the defendant is subject to being punished for a crime of escape
for an unauthorized departure from the place of confinement or other non-compliance

19
with the sentencing court’s order.
{31} 	The judgment and sentence of the district court is affirmed.
{32} 	IT IS SO ORDERED.
__________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Chief Judge
_________________________________
LINDA M. VANZI, Judge