January 16, 2013 – State v. Ryan Harris, No. 30,512

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	January 16, 2013
NO. 30,512
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
RYAN HARRIS,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Reed S. Sheppard, District Judge
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellant
Bennett J. Baur, Acting Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellee

OPINION
BUSTAMANTE, Judge.
{1} 	The joint and stipulated motion for publication filed by the State and Defendant
is granted. 	The Memorandum Opinion filed in this case on October 26, 2012, is
withdrawn and this Formal Opinion is substituted in its place.
{2} 	The State appeals the dismissal of a felon in possession charge against
Defendant. The district court dismissed the charge on the ground that Defendant’s
conditional discharge entered in 2006 had not been revoked, and therefore could not
serve as the predicate felony for the current felon in possession charge. On appeal,
the State argues that a conditional discharge is a “conviction” for purposes of
satisfying the definition of the felon in possession statute. 	Alternatively, the State
argues that the district court erred in dismissing the charge because the conditional
discharge order had been revoked. We affirm based on our case law holding that a
conditional discharge order is not a “conviction,” and the fact that the conditional
discharge order in this case was not revoked.
DISCUSSION
{3} 	The felon in possession statute defines a “felon” as “a person convicted of a
felony offense.” 	NMSA 1978, § 30-7-16(C)(2) (2001). 	Prior to 1993, when the
conditional discharge option was made available for first-time felons, Defendant’s
guilty plea would have been considered a conviction because a conviction was

2
considered a “finding of guilt, even before formal adjudication by the court, much less
before sentencing.” 	State v. Mondragon, 107 N.M. 421, 424, 759 P.2d 1003, 1006
(Ct. App. 1988). However, as discussed in State v. Herbstman, 1999-NMCA-014, ¶
20, 126 N.M. 683, 974 P.2d 177, the 1993 enactment of the conditional discharge
statute carved out an exception to that general rule such that a conditional discharge
order could not serve as a “conviction” unless a particular statute expressly so stated.
Cf. 	NMSA 	1978, 	§ 	31-18-17(A) 	(2003) 	(stating 	that 	for 	habitual 	offender
enhancement a conditional discharge is considered a prior felony conviction).
Subsequent case law has reaffirmed this principle. 	See, e.g., In re Treinen, 2006-
NMSC-013, ¶ 4, 139 N.M. 318, 131 P.3d 1282; State v. Fairbanks, 2004-NMCA-005,
¶ 8, 134 N.M. 783, 82 P.3d 954.
{4} 	The State argues that either Defendant’s conditional discharge was revoked by
operation of law or the failure to order it revoked was a ministerial oversight. In this
case, a conditional discharge order was entered in October 2006. 	Consistent with
NMSA 1978, Section 31-20-13 (1994), the order was entered without an adjudication
of guilt and with a sentencing term of two years and six months. 	The plea and
disposition agreement acknowledged Defendant’s potential incarceration. 	In June
2007, Defendant’s probation was revoked, and he was placed back on probation. In
February 2008, Defendant’s probation was revoked again, but this time the district

3
court ordered that Defendant be incarcerated for 182 days. The district court’s order
did not state that the conditional discharge was revoked; to the contrary, the box for
revoking conditional discharge was unchecked.
{5} 	The State argues that the failure to mark the box was a ministerial oversight.
The transcript of the sentencing hearing does not support the State’s contention. The
parties announced to the district court that they had reached an agreement on the
violation: 	Defendant would serve six months in jail. 	The court accepted this
agreement without any discussion concerning the revocation of the conditional
discharge order. In light of the complete absence of any discussion about exercising
the court’s discretion to revoke the conditional discharge, we reject the claim that the
unchecked box was a ministerial oversight.
{6} 	The State also argues that the conditional discharge order was revoked by
operation of law. First, the State maintains that a conditional discharge is a form of
a deferred sentence and, once Defendant was incarcerated, the conditional discharge
was revoked as a matter of law. The Legislature enacted the conditional discharge
statute as an alternative to a deferred sentence, however, in that there is no
adjudication of guilt unless the court exercises its discretion to revoke the conditional
discharge order under Section 31-20-13(B). See Herbstman, 1999-NMCA-014, ¶ 20.

4
To equate a conditional discharge with a deferred sentence would render the statute
meaningless, a point emphasized in Herbstman. Id.
{7} 	The State is correct that the conditional discharge statute contemplates that a
defendant will be subject to probation during his sentence. 	See § 31-20-13(A).
However, we are not limited to a consideration of Section 31-20-13(A). The statute
provides the district court with broad sentencing discretion upon a probation violation.
See § 31-20-13(B) (“If the person violates any of the conditions of probation, the court
may enter an adjudication of guilt and proceed as otherwise provided by law.”). It is
a basic rule of statutory construction that the use of the word “may,” as opposed to
“shall,” confers discretion with the court. See State v. Donahoo, 2006-NMCA-147,
¶ 7, 140 N.M. 788, 149 P.3d 104.
{8} 	In this case, the record indicates that the district court did not choose to enter
an adjudication of guilt. As we have stated, we are not inclined to speculate that this
was an oversight given the lack of any discussion on the matter at the sentencing
hearing and the absence of any indication to do so in the court’s order revoking
probation. Cf. State v. Lohberger, 2008-NMSC-033, ¶ 22, 144 N.M. 297, 187 P.3d
162 (noting that a lack of certainty in court orders should not be at the expense of
important rights). Oral comments by a judge may be used to clarify a written ruling
by the court, and in this case the judge’s silence reaffirms the written order and its

5
inaction on the revocation issue. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d
874, 881 (1985) (stating that a district court’s verbal comments can be used to clarify
written findings).
{9} 	The State refers us to Vives v. Verzino, 2009-NMCA-083, ¶ 15, 146 N.M. 673,
213 P.3d 823, where we examined a Florida sentencing procedure and concluded that
it was not analogous to a conditional discharge because the defendant had been
sentenced to jail as part of his punishment. We observed that under Section 31-20-
13(A), a defendant is placed on probation. 	Vives, 2009-NMCA-083, ¶ 15. 	In the
current case, however, we are guided by the language of Section 31-20-13(B), which
gives a sentencing court broad discretion after probation has been revoked.
Defendant’s plea specifically authorized the district court to impose a period of
incarceration in the event of a probation violation. Therefore, even if Section 30-20-
13 does not itself contemplate incarceration, the district court, in its broad sentencing
discretion, could conclude that the conditional discharge would not be revoked, but
Defendant would nevertheless be punished according to the terms of the plea
agreement he had with the State, which permitted incarceration upon a probation
violation. See State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994) (observing
the sentencing court’s broad discretion to apply the unique terms of a plea agreement,
which may deviate from the statutory punishment that would otherwise occur).

6
Finally, the State relies on State v. Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33
(Ct. App. 1995), where the defendant had included a conditional discharge as a prior
felony in his plea agreement. Handa does not support the State’s argument, because
it is an “invit[ed] error” case. We held that the defendant could not complain about
the erroneous inclusion of the conditional discharge because he himself had suggested
it. Id.
{10} 	We acknowledge that Defendant did not successfully complete the term of his
probation. 	See Fairbanks, 2004-NMCA-005, ¶ 10 (noting that “the successful
completion of probation under the terms of a conditional discharge results in the
eradication of the guilty plea or verdict and there is no conviction”). 	However,
Section 31-20-13(B) gives the district court the discretion to revoke or not revoke the
conditional discharge after a finding of non-compliance. In the absence of any oral
or written indication that the district court intended to revoke the conditional discharge
order, the record in this case supports the view that the conditional discharge order
was not revoked. Instead, the court crafted a punishment permitted by the underlying
plea agreement.
CONCLUSION
{11} 	For the reasons stated above, we affirm the district court’s dismissal of the felon
in possession charge.

7
{12} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
MICHAEL E. VIGIL, Judge
LINDA M. VANZI, Judge