March 14, 2012 – State of New Mexico v. Andrew Miller, No. 29,244

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: __March 16, 2012

NO. 29,244

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ANDREW MILLER,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth H. Martinez, District Judge

Gary K. King, Attomey General
Santa Fe, NM

Ralph E. Trujillo, Assistant Attomey General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender

Carlos Ruiz dela Torre, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant Andrew Miller was indicted on sixty-one charges related to money
he was alleged to have obtained fraudulently from Roberta Beale (Victim). 	He
entered into a plea agreement pursuant to which both he and the State agreed to a
maximum sentence of forty years. The district court accepted the plea agreement but
sentenced Defendant to forty-two years imprisonment, nine of which were suspended,
for an initial incarceration of thirty-three years. Because the forty-two year sentence
violated his plea agreement, we reverse.
I. 	BACKGROUND
{2} 	This case comes to us from two district court cases against Defendant that were
consolidated below. In the first, CR 2006-3283, Defendant was indicted on thirty-five
counts involving fraud and embezzlement. 	In the second, CR 2007-3827, he was
indicted on twenty-six counts involving fraud and forgery. 	The combined basic
sentences for these two cases exceeded 250 years.
{3} 	Defendant entered into a plea agreement in which all but six of the counts
against him were dismissed. The “Sentencing Agreement” portion of the agreement
stipulated that “[t]he parties agree that there shall be a minimum sentence of
ten . . . years and a maximum sentence of [forty] years at initial sentencing. 	The

3
remaining two years of the [forty-two] year exposure shall run concurrent with parole
of two years.” Similarly, the “Potential Incarceration” portion of the agreement stated
that “[i]f the court accepts this agreement, the [D]efendant will be ordered to serve a
minimum sentence of ten . . . years and a maximum sentence of [forty] years in the
Department of Corrections at initial sentencing.” The agreement also incorporated a
forfeiture stipulation in which the parties agreed that all “vehicles purchased using
money obtained using [Victim’s] money” would be subject to forfeiture. The plea
agreement was accepted by the court on August 7, 2008.
{4} 	After the plea was accepted but before sentencing, Defendant moved to
withdraw his guilty plea. Pursuant to Santobello v. New York, 404 U.S. 257 (1971)
and State v. Sisneros, 98 N.M. 279, 648 P.2d 318 (Ct. App. 1981), rev’d on other
grounds, 98 N.M. 201, 647 P.2d 403 (1982), Defendant argued that he was entitled
to withdraw his plea because the State was not fulfilling its obligations under the plea
agreement. 	In particular, Defendant claimed that “the [S]tate promised th[at]
Defendant would be allowed visits with his son and the mother.” Defendant argued
that failure to allow visitation “provide[d] a fair and just reason to withdraw the plea
prior to sentencing.”
{5} 	At the sentencing hearing, the State requested a sentence of forty-two years.
The State contended that this was appropriate because despite the provision in his plea

4
agreement that he would not operate any businesses from jail, Defendant was
currently running a business called “Leisure Entertainment” from jail. 	Defendant
admitted to running the business. The district court sentenced Defendant to forty-two
years imprisonment followed by two years of parole and five years of probation. It
then suspended nine of the years. Defendant did not sign the judgment and sentence,
but instead wrote in that he “object[ed] as to pre-sentence confinement time[,] length
of 	sentence[,] 	and 	[the] 	ban 	on 	conducting 	business 	in 	[the 	department 	of
corrections].” Defendant did not file a post-sentence motion to withdraw his plea, but
instead filed a notice of appeal to this court.
{6} 	The case was initially assigned to the summary calendar. 	We expressed
concern that the “district court’s sentence [did] not appear to be in accordance with
the plea agreement.” 	However, our review of the record led us to believe that the
district court “may have simply made a clerical error in the written judgment.” We
therefore remanded “for clarification of the judgment and sentence,” ordering that “the
district court shall enter . . . findings and/or corrected judgment.”
{7} 	On February 12, 2010, the district court held a hearing devoted to the length of
the sentence, after which it filed supplemental findings of fact and conclusions of law
with this Court. The district court made it clear that it understood the plea agreement
to require a forty-two year sentence. The court interpreted the forty-year maximum

5
sentence to mean that at least two years of Defendant’s sentence must be suspended.
Importantly, the court entered a finding setting forth its understanding of the sentence
cap.
It is the custom and practice of the Second Judicial District Court
in administering plea and disposition agreements in criminal matters to
interpret the language of a minimum sentence of “[ten] years and a
maximum of [forty] years at initial sentencing” to constitute a sentencing
floor and cap of actual incarceration to be served in the Department of
Corrections. 	However, by its plain meaning the cap on the term of
incarceration applies only at[] “initial sentencing.” Such language does
not speak to the overall sentencing exposure for the required basic
sentences which the court must impose for each count.
The court also entered several conclusions of law. 	Several of these discussed the
district court’s authority to sentence, essentially setting forth the provisions in NMSA
1978, Sections 31-18-13 (1993), -15 (2007), and -15.1 (2009) that require a district
court to sentence a defendant to the basic sentence unless there is an aggravating or
mitigating circumstance. One conclusion discussed this Court’s holding in State v.
Bencomo, 109 N.M. 724, 790 P.2d 521 (Ct. App. 1990), that a district court abuses its
discretion when it does not follow the sentence recommendation in a plea agreement.
However, the court concluded that it had followed the terms of the plea agreement
because, in its view, the parties had “agreed that all counts would run consecutively
for a total basic exposure of [forty-two] years and that [Defendant’s] exposure of

6
incarceration at initial sentencing would be no more than [forty] years.” The court
therefore again denied Defendant’s motion to withdraw his plea agreement.
II. 	DISCUSSION
{8} 	Defendant presents four arguments on appeal: (1) that the district court abused
its discretion by denying his motion to withdraw his plea after adopting a sentence
outside of the plea agreement, (2) that his trial on the criminal charges at issue here
violates his rights against double jeopardy because the State had already forfeited his
property, (3) that the district court incorrectly calculated the restitution he owed, and
(4) that the district court credited him with less pre-sentence confinement than he was
due. Because we reverse the denial of Defendant’s motion to withdraw his plea, we
do not reach his remaining arguments.
A. 	Motion to Withdraw Plea
{9} 	Defendant argues that the district court was required to allow him to withdraw
his plea due to several circumstances he alleges were outside the scope of the plea.
These include (1) that the court imposed a longer sentence than contemplated in the
plea agreement, (2) that the court did not include visitation rights for Defendant’s
girlfriend and son in its judgment and sentence, (3) that the court failed to order the
return of Defendant’s Mercedes, and (4) that the court’s order disqualifying
Defendant’s first attorney impacted his decision to enter into the plea. 	The State

7
contends that the forty-two year sentence with nine years suspended is consistent with
the plea agreement. Because we hold that the imposition of a forty-two year sentence
violated the sentence cap in the plea agreement, we do not address the additional
complaints Defendant has raised regarding the plea.
{10} 	We review the denial of a motion to withdraw a plea for abuse of discretion.
See State v. Hunter, 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d 168. 	“[T]he
[district] court abuses discretion when it applies an incorrect standard, incorrect
substantive law, or its discretionary decision is premised on a misapprehension of the
law.” Aragon v. Brown, 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913.
{11} 	“A plea agreement is a unique form of contract whose terms must be
interpreted, understood, and approved by the district court.” State v. Gomez, 2011-
NMCA-120, ¶ 9, 151 N.M. 67, 267 P.3d 831. 	Once a plea has been accepted, the
dictates of due process require the district court to honor the agreement. Sisneros, 98
N.M. at 281, 648 P.2d at 320; see also Rule 5-304(C) NMRA (stating that, if the plea
agreement is accepted, “the court shall inform the defendant that it will embody in the
judgment and sentence the disposition provided for in the plea agreement”). Failure
to do so is a breach of the plea agreement and is treated as a rejection of the plea. See
Gomez, 2011-NMCA-120, ¶ 11. “[I]f the defendant and the State have bargained for
a specific sentence and the court rejects the specific sentence, the court must give the

8
defendant an opportunity to withdraw his or her plea agreement.” State v. Pieri, 2009-
NMSC-019, ¶ 1, 146 N.M. 155, 207 P.3d 1132.
1. 	The Plea Agreement Was For A Specific Sentence
{12} 	In order to determine which law applies in this case, we must first determine
whether the plea agreement in this case called for a specific sentence or whether the
State merely promised to recommend a sentence. Where the parties agree to a specific
sentence and the district court accepts the plea, the court must enforce the terms of the
plea or allow the plea to be withdrawn. 	Santobello, 404 U.S. at 262; Pieri, 2009-
NMSC-019, ¶¶ 30, 33. If the parties agreed only that the State would recommend a
sentence, the standard that applies depends on the date of the agreement. 	For
agreements entered into before April 23, 2009, failure of the district court to follow
the recommendation acts as a rejection of the plea. See Pieri, 2009-NMSC-019, ¶ 34;
Eller v. State, 92 N.M. 52, 54, 582 P.2d 824, 826 (1978), overruled by Pieri, 2009-
NMSC-019, ¶ 36. For agreements entered into after that date, the district court may
ignore the recommendation so long as the defendant had been made aware that the
district court was not bound by it. Pieri, 2009-NMSC-019, ¶¶ 29, 33-34.
{13} 	The distinction between agreements for specific sentences and agreements to
recommend sentences was critical in Pieri. There, the State agreed not to oppose a
defendant’s request for a suspended sentence in exchange for her promise to testify

9
truthfully in a case against her husband. Id. ¶ 2. However, because the defendant was
sentenced prior to her husband’s trial, she did not have the chance to testify prior to
sentencing. Id. ¶ 3. The State requested that the defendant serve time in prison and
the defendant argued that she was entitled to specific performance of her plea bargain.
Id. The district court imposed the maximum possible sentence. Id. On appeal, this
Court reversed, concluding that the agreement not to oppose the defendant’s request
was an implicit promise to recommend a suspended sentence, and that under Eller, the
district court’s failure to follow the recommendation was a rejection of the plea and
required the court to allow the defendant the opportunity to withdraw the plea. See
Pieri, 2009-NMSC-019, ¶ 4.
{14} 	Our Supreme Court disagreed, concluding that this Court had incorrectly
characterized the State’s agreement not to oppose the defendant’s request for a
suspended sentence as an agreement to recommend that the defendant receive a
suspended sentence. 	See id. ¶¶ 9-12. 	Because the agreement called for a specific
action—namely, the State’s refraining from opposing the request for a suspended
sentence—the Court concluded that Santobello, not Eller, applied. See Pieri, 2009-
NMSC-019, ¶¶ 9-10. 	The Court noted that “‘when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled.’” 	Id. ¶ 15

10
(quoting Santobello, 404 U.S. at 262). Because the State, in violation of its promise,
had opposed the request for a suspended sentence, the defendant “should have either
been re[-]sentenced in front of a different judge or have been allowed to withdraw her
plea.” Id. ¶ 16.
{15} 	In this case, as in Pieri, the State made a specific promise that is enforceable not
under Eller, but under Santobello. Here, the State did not agree merely to recommend
a sentence of between ten and forty years—it agreed that Defendant’s actual sentence
would be in that range. Regardless of whether the sentencing cap could be read to
include the forty-two year sentence in this case, it is clear that the plea agreement
embodies a promise for a sentence within a particular range, not a promise to
recommend a sentence within a range. 	Pieri and Santobello therefore apply, and
Defendant should have the opportunity to withdraw his plea or to be sentenced under
the plea agreement by a different judge if this promise was not enforced.
{16} 	The fact that this is a Santobello case had implications beyond the remedy for
breach. Where a specific sentence is agreed upon, the district court must enforce it.
In its supplemental findings, the district court appeared to believe that it was
compelled by our sentencing laws to impose a basic sentence of forty-two years. The
parties do not raise, and we do not decide, whether the district court erred in
determining that our sentencing laws require the imposition of a basic sentence of

11
forty-two years. Instead, our review is limited to whether the district court’s sentence
conformed to the language of the plea agreement. 	Here, however, it was the plea
agreement, not the sentencing statutes, which the district court was bound to enforce.
See Gomez, 2011-NMCA-120, ¶ 16 (“Once the plea is accepted, the court is bound by
the dictates of due process to honor the agreement and is barred from imposing a
sentence that is outside the parameters set by the plea agreement.”). 	If the district
court was unhappy with the State’s choice, it should not have accepted the agreement.
See State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994). Because it did accept
the agreement, it was bound to enforce the agreement’s terms.
2. 	The Maximum Permissible Sentence Was Forty Years
{17} 	We proceed to the question of whether the forty-two year sentence with nine
years suspended was inconsistent with the language in the plea agreement limiting the
initial sentence to forty years. Defendant has consistently argued that the forty-two
year sentence exceeds the forty-year maximum contemplated in the plea agreement.
The State contends that the forty-two year sentence was in accordance with the forty-
year maximum because the “at initial sentencing” language signaled that the limitation
was not on the sentence, but on the initial period of incarceration.
{18} 	Appellate courts “construe the terms of the plea agreement according to what
[the d]efendant reasonably understood when he entered the plea.” State v. Fairbanks,

12
2004-NMCA-005, ¶ 15, 134 N.M. 783, 82 P.3d 954 (internal quotation marks and
citation omitted).
When there is any ambiguity in a plea agreement and the district court
resolves the ambiguity with the parties at the time of the plea, the
agreement is no longer ambiguous on that point. 	However, if an
ambiguity is not resolved by the district court and no extrinsic evidence
is introduced that would resolve it, the reviewing court may rely on the
rules of construction, construing any ambiguity in favor of the defendant.
Under such circumstances, we review the terms of the plea agreement de
novo.
Gomez, 2011-NMCA-120, ¶ 9 (internal quotation marks and citations omitted).
However, courts “should turn to rules of construction only after it has used all other
methods of resolving the ambiguity, and plea agreements should be construed in favor
of the non-drafting party only when an ambiguity cannot be resolved by a review of
the relevant direct and extrinsic evidence.” Mares, 119 N.M. at 52, 999 P.2d at 934.
{19} 	We recently rejected the argument that the portion of a sentence that is initially
suspended does not count as part of the sentence. In Gomez, a defendant entered into
three plea agreements covering six cases against him. 2011-NMCA-120, ¶ 2. Each
agreement specified that Gomez would serve between zero and nine years of
incarceration, probation, treatment, or some combination thereof. Id. ¶¶ 3, 5, 6. The
second and third agreements specified that the sentences in those agreements would
run concurrent with the sentence in the first agreement. 	Id. ¶¶ 5, 6. 	Initially, the
district court deferred sentencing and ordered Gomez to attended a drug treatment

13
program. Id. ¶ 7. However, Gomez violated one of the conditions of his release, and
the district court imposed a sentence of twenty-one years, with sixteen suspended,
resulting in an initial incarceration of five years. 	Id. ¶ 8. 	Gomez argued that the
sentence was not in conformance with his plea, but the district court disagreed, stating
that a sentence of five years incarceration and five years probation was within the plea
since each was less than the nine-year cap. Id.
{20} 	On appeal, this Court reversed, stating that the agreements were “unambiguous
in stating that the total time [Gomez would] serve pursuant to each agreement [was]
zero to nine years.” Id. ¶ 10. “We reject[ed] the State’s argument that the use of the
term ‘serve’ in the first agreement indicate[d] an intent to allow for an actual sentence
of something greater than nine years, so long as any period above the nine-year cap
[was] suspended or deferred.” Id. ¶ 11. In doing so, we reasoned that the judgment
and sentence actually filed ordered Gomez to serve twenty-one years. Id. The fact
that the court had ordered sixteen years of the sentence to be suspended did not change
the length of the sentence. 	Id. (“Suspending execution of sixteen years of actual
incarceration unless, and until, [the district court] orders otherwise, does not change
the fact that Gomez was sentenced to a prison term of twenty-one years.”).
{21} 	Our 	analysis 	in 	the 	present 	case 	begins 	with 	the 	language 	from 	the
“SENTENCING AGREEMENT” portion of Defendant’s plea specifying that “[t]he

14
parties agree that there shall be a minimum sentence of ten . . . years and a maximum
sentence 	of 	[forty] 	years 	at 	initial 	sentencing.” 	By 	itself, 	this 	language 	is
unambiguous, and requires that the maximum sentence be no longer than forty years.
It refers not to the initial period of incarceration, but to the “maximum sentence.”
Nevertheless, the State argues that the phrase “at initial sentencing” transforms this
from a limit on the sentence into a limit on the initial period of incarceration.
{22} 	Our holding in Gomez dispenses with the State’s argument that the “at initial
sentencing” language allows for a sentence longer than forty years. Gomez held that
the suspended portion subtracts not from the overall length of the sentence, but from
the initial period of incarceration. “It is well established that a district court generally
cannot increase a valid sentence once a defendant begins serving that sentence.” State
v. Redhouse, 2011-NMCA-118, ¶ 7, ___ N.M. ___, 269 P.3d 8 (alteration, internal
quotation marks and citation omitted). The phrase “at initial sentencing” is therefore
of no effect when applied to a sentence, because the sentence cannot later be
increased. It could only have meaning when applied to incarceration. But the State
in this case chose to apply the phrase to a limitation on the sentence. 	We do not
believe that Defendant would have reasonably understood that this phrase could
transform the clear and unambiguous word “sentence” into “initial period of
incarceration.”

15
{23} 	The most problematic part of the agreement is the poorly drafted, hand-written
language immediately following the sentence cap. 	It states: 	“The remaining two
years of the [forty-two] year exposure shall run concurrent with parole of two years.”
The meaning of this language is unclear. It could, as the State contends, call for a
forty-two year sentence with two years suspended. 	Alternatively, as Defendant
appears to argue, it could mean that two years of the forty-year sentence would be
suspended, or that a separate two-year sentence would run concurrently with the forty
years.
{24} 	The only thing clear about this language is that its meaning cannot be
interpreted without additional evidence or resort to rules of construction. We find no
indication in the record that the district court resolved the ambiguity in this language
prior to accepting the plea. At the plea hearing, the district court read the language but
did not comment on or otherwise interpret its meaning. The ambiguity was therefore
unresolved when the plea was accepted. 	Subsequently, at the sentencing hearing,
Defendant indicated his understanding that the “agreement was that the two [years]
was going to run concurrent with the [forty],” thereby showing that he still did not
understand the language of the plea to allow for a forty-two year sentence.
{25} 	Because the district court did not resolve the ambiguity, we address the meaning
of the sentence cap de novo. 	Defendant’s statements at the sentencing hearing

16
indicate that his subjective belief was that a sentence of forty-two years was
inconsistent with the agreement. Given the clear language of the sentencing cap, we
conclude that his understanding was reasonable. Furthermore, to the extent that the
sentence was ambiguous, we construe it against the State. 	The portion of the
agreement that was concisely written clearly and unambiguously imposed a forty-year
maximum sentence. The handwritten portion was drafted in such a way that it could
mean anything, and the district court did nothing to clarify its meaning prior to
accepting the agreement.
{26} 	Finally, nothing else in the agreement would have alerted Defendant that a
sentence in excess of forty years was contemplated. 	The agreement sets forth the
maximum penalties for the charges to which Defendant pleaded guilty. These amount
to forty-two years, with the potential for a one-third modification. 	However, this
section informs Defendant of the possible sentences for the counts to which he has
pleaded guilty; it does not purport to embody a sentencing agreement between
Defendant and the State. 	The agreement also provides: “The Defendant m[a]y be
given a period of probation. If the [D]efendant later violates that probation or parole,
the [D]efendant may be incarcerated for the balance of the sentence.” This language
explains the mechanics of probation, which gives the district court the discretion to
suspend part of Defendant’s sentence. 	This statement of the well established

17
principles of probation cannot reasonably be read to modify the forty-year cap on
Defendant’s sentence. 	It also makes it absolutely clear that the Defendant may
ultimately be incarcerated for the initially suspended portion of his sentence (if any).
{27} 	We conclude that absent some explanation from the State or the district court,
no defendant would reasonably understand that the “at initial sentencing” language
could transform such a clear maximum sentence limitation into what amounts to a
minimum period of suspension. Under the State and the district court’s reading of the
sentence cap, a 1000 year sentence, with 960 years suspended, would have complied
with the forty-year cap. The district court entered a finding that the use of this
language represents the “custom and practice” in the Second Judicial District. We
now hold that that practice is inadequate. 	The meaning of the agreement is
determined not by the understanding of prosecutors and judges, but by what the
defendant reasonably understood when entering the plea. Had the State desired an
agreement that imposed the maximum sentence—even if it also wanted to impose a
minimum period of incarceration—we have no doubt that it could have easily done
so in a clear, unambiguous fashion. We therefore reverse the denial of Defendant’s
motion to withdraw his plea.
3. 	Remedy

18
{28} 	Having concluded that the district court rejected the plea agreement by
sentencing Defendant to two years more than the maximum contemplated by the
agreement, we turn our attention to what remedy is appropriate. The rejection of the
plea entitles Defendant to the relief he has requested: an opportunity to withdraw his
plea. 	See Pieri, 2009-NMSC-019, ¶¶ 14-18. 	However, we recognize that both
Defendant and the State have an interest in enforcing the agreement. 	See Gomez,
2011-NMCA-120, ¶ 18. Should both parties so desire, the district court may also re-
sentence Defendant in accordance with the plea. 	See Santobello, 404 U.S. at 263;
Pieri, 2009-NMSC-019, ¶ 5.
B. 	Remaining Issues
{29} 	Because we have reversed, the judgment and sentence setting forth the amounts
of restitution and pre-sentence confinement is of no effect. We therefore do not reach
Defendant’s arguments on these issues.
{30} 	Defendant also argues that the forfeiture of one of his vehicles prior to his
conviction precludes the State from imposing any further punishment on him, and that
his subsequent conviction therefore violated his right against double jeopardy.
However, as he candidly admits, “the record with respect to this issue may need to be
further developed.” In fact, there was no evidence taken nor findings made regarding
this issue. The record is silent as to which cars were seized, whether any cars have yet

19
been sold, and which if any of these vehicles were purchased using money
fraudulently obtained from Victim. Additionally, the stipulated order to forfeit was
part of the plea, which we have held that Defendant may withdraw on remand. For
these reasons, we believe that any attempt to undertake an analysis at this point would
result in an advisory opinion, which we decline to give. See Santa Fe S. Ry., Inc. v.
Baucis Ltd. Liab. Co., 1998-NMCA-002, ¶ 24, 124 N.M. 430, 952 P.2d 31 (“Our
concern with issuing advisory opinions stems from the waste of judicial resources
used to resolve hypothetical situations which may or may not arise.”). Defendant is
free to develop a record on this issue, to reach a new agreement that addresses his
concerns, or to raise these issues at trial.
III. 	CONCLUSION
{31} 	For the foregoing reasons, we reverse the order denying Defendant’s motion to
withdraw his plea, vacate the judgment and sentence, and remand for further
proceedings consistent with this Opinion.
{32} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

J. MILES HANISEE, Judge

20