Torres v. Santistevan

Office of the
Director New Mexico
Compilation
13:12:32 2023.10.11 Commission
'00'06-
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2023-NMSC-021

Filing Date: July 24, 2023

No. S-1-SC-38147

RUFINO TORRES,

Petitioner,

v.

DWAYNE SANTISTEVAN, Warden,

Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Angie K. Schneider, District Judge

Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Santa Fe, NM

Liane E. Kerr, LLC
Liane E. Kerr
Albuquerque, NM

for Petitioner

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

VIGIL, Justice.

{1} This case comes before us on a petition for writ of certiorari under Rule 12-501
NMRA to review Petitioner Rufino Torres’s district court habeas corpus proceedings.
Petitioner contends that the judgment and sentence which required him to serve
consecutive, i.e., “stacked,” five-year terms of probation was illegal. We agree.
Furthermore, we determine that consolidation of four separate cases resulted in a single
judgment and sentence, and when the district court determined that Petitioner had
completed serving his sentence and probation in one case, the legal effect was that the
determination applied to the entire judgment and sentence. We therefore conclude that
Petitioner is entitled to be released from custody of the New Mexico Department of
Corrections immediately upon the issuance of our mandate. We also determine that
Petitioner’s three conspiracy convictions violate double jeopardy.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Four different indictments were filed against Petitioner in the Twelfth Judicial
District Court in Otero County charging Petitioner with sixteen crimes which occurred
between June 1, 2010, and June 3, 2010. The indictment in cause number D-1215-CR-
2010-0270 (-270 case) charged four offenses: that on June 2, 2010, Petitioner
burglarized two storage units located at the same address; and that on the same day
Petitioner conspired to commit nonresidential burglary and received stolen property.
The indictment in cause number D-1215-CR-2010-0290 (-290 case) charged three
offenses: that on June 2, 2010, Petitioner committed larceny of property that was on
display at the Alamogordo Chamber of Commerce Museum; engaged in a conspiracy to
commit the larceny; and received the property that was stolen from the museum. The
indictment in cause number D-1215-CR-2010-0269 (-269 case) alleged six offenses:
that on June 2, 2010, Petitioner burglarized a storage unit and conspired to commit
nonresidential burglary; and that on June 3, 2010, Petitioner burglarized three other
storage units and received stolen property. Finally, the indictment in cause number D-
1215-CR-2010-0271 (-271 case) alleged that on June 1, 2010, Petitioner committed
three offenses: that he broke into and entered a self-storage business, burglarized the
business, and stole property from the business.

{3} The State then filed a motion to consolidate the four cases for plea and
disposition. The district court granted the motion and ordered the cases “consolidated
into [the -269 case] for plea and disposition.” Thereafter, unless we note otherwise,
every subsequent pleading was filed in all four cases. This did not in any way alter the
fact that the cases were consolidated. In the plea and disposition agreement Petitioner
agreed to plead guilty to all sixteen of the original charges “because he is in fact guilty of
the foregoing charges.” There was no agreement as to sentence, and Petitioner
understood he was exposed to a twenty-seven year term of imprisonment, a period of
mandatory parole for each offense, and mandatory fines and fees.

{4} Petitioner was sentenced on February 4, 2011. Petitioner received a twenty-
seven year term of imprisonment, and there is no issue about whether the term of
imprisonment imposed on each count was correct. The total term of twenty-seven years
resulted from the fact that the district court imposed a sentence of incarceration for
every crime charged in each case. Thus, in the -270 case Petitioner was sentenced to a
term of imprisonment of six years; in the -290 case he was sentenced to a term of
imprisonment of seven years and six months; in the -269 case he was sentenced to a
term of imprisonment of nine years; and in the -271 case he was sentenced to a term of
imprisonment of four years and six months, for a total of twenty-seven years.
{5} In addition, the district court ordered that the sentences in each case be served
consecutively. Specifically, the district court ordered that the sentence in the -290 case
run consecutively to the -270 case, that the sentence in the -269 case run consecutively
to the -290 case, and that the sentence in the -271 case run consecutively to the -269
case. In other words, Petitioner was ordered to serve the sentence in the -270 case in
full before beginning to serve the sentence in the -290 case, and to serve the sentence
in the -290 case in full before beginning to serve the sentence in the -269 case, and to
serve the sentence in the -269 case in full before beginning to serve the sentence in the
-271 case.

{6} The district court then ordered that all but 364 days of the sentence in the -270
case, apparently the time served, be suspended and that Petitioner be placed on
probation for a period of five years; that the sentence of incarceration in the -290 case
be suspended and that Petitioner be placed on probation for five years “after the
completion” of the -270 case; that the sentence of incarceration in the -269 case be
suspended and that Petitioner be placed on probation for thirty days “after the
completion” of the -290 case; and that the sentence in the -271 case be suspended and
that Petitioner be placed on probation for thirty days “after the completion” of the -269
case. It is this feature of consecutive probationary terms and Petitioner’s multiple
probation violations which give rise to the primary issue in this case.

{7} Petitioner violated probation multiple times over the years following his
sentencing. The original five-year period of probation was from February 8, 2011, to
February 7, 2016. On June 11, 2013, the district court revoked Petitioner’s probation,
reinstated probation, and imposed a new probation term of five years, beginning June
11, 2013. Subsequently, on September 27, 2013, the district court once again revoked
Petitioner’s probation, reinstated probation, and imposed a new five-year probationary
term from September 27, 2013, to September 26, 2018. On May 23, 2014, the district
court revoked Petitioner’s probation for the third time. This order was different than the
preceding orders because no new five-year term of probation was imposed. Instead, the
district court reinstated probation for the period of September 27, 2013, to September
26, 2018. On July 15, 2016, the district court revoked Petitioner’s probation a fourth
time. In this order, the district court continued Petitioner’s probation under the terms and
conditions set forth in the original judgment and sentence with the additional condition
that Petitioner serve a six-month sanction in the Otero County Detention Center. The
resulting order of probation states that Petitioner is “under probation supervision until
2/14/2017 or until further order of the [c]ourt” (emphasis added).

{8} On February 21, 2017, the district court filed its order of discharge on suspended
sentence. This order recites that the period of suspension expired on February 4, 2017.
The order of discharge changes the termination date from February 14, 2017, to
February 4, 2017, but is nevertheless consistent with the latter possibility in the order of
probation stating that Petitioner is “under probation supervision until 2/14/2017 or until
further order of the [c]ourt” (emphasis added). The order of discharge continues, stating
that “pursuant to [NMSA 1978,] Section 31-20-8 [(1963)], [Petitioner] is relieved of any
obligation imposed upon him[] by said order of the [c]ourt and has satisfied his[] criminal
liability for the crime charged herein.” The order of discharge was filed only in the -270
case.

{9} Following the order of discharge, the State filed yet another petition to revoke
probation on February 26, 2018. This petition was not filed in the -270 case because the
State said Petitioner’s sentence in the -270 case “was completed on February 4, 2017.”
The petition alleged that Petitioner’s then-current probation in the -290 case was from
February 4, 2017, to February 4, 2022. On May 9, 2018, the district court entered its
order revoking probation and committing Petitioner to the Department of Corrections.
After giving Petitioner credit for six years in the -270 case and credit for time served in
the -290 case, the district court calculated that the balance on Petitioner’s sentence was
7,220 days. The district court ordered Petitioner to serve 2,292 days of those days in
the custody of the Department of Corrections. The balance of 4,928 days was
suspended, and Petitioner was ordered to serve a new five-year term of probation. This
order was filed in the -269, -271, and -290 cases.

{10} Acting pro se, on October 17, 2018, Petitioner filed a habeas corpus petition in
the district court. Petitioner asserted he was illegally sentenced, did not receive the
proper credit calculations, and received ineffective assistance of counsel. The district
court appointed an attorney to review the illegal sentence and credit calculation claims,
but did not order the attorney to review the ineffective assistance of counsel claim. 1

{11} The district court entered a procedural order on Petitioner’s petition for habeas
corpus in which the district court recalculated Petitioner’s credit for presentence
confinement. The district court concluded that Petitioner had not been awarded 245
days of credit for presentence confinement in the -270 case, with the result that the
February 21, 2017, order of discharge on suspended sentence should have stated that
Petitioner’s sentence in the -270 case expired on June 4, 2016, not February 4, 2017.
The result of the correction was that the balance on Petitioner’s sentence was 6,975
days instead of 7,220 days. Petitioner was still ordered to serve 2,292 of those days in
the custody of the Department of Corrections, with the balance suspended under a new
five-year term of probation. The district court otherwise denied Petitioner’s requested
habeas corpus relief.

{12} On February 7, 2020, the district court entered an amended order revoking
probation and committing Petitioner to the Department of Corrections, reiterating that
Petitioner was discharged from the -270 case on June 4, 2016, setting forth the new
calculations, and ordering Petitioner’s incarceration in the Department of Corrections for
2,292 days, followed by the new five-year term of probation.

{13} Petitioner requested certiorari review pursuant to Rule 12-501, which we granted.
For the reasons stated herein, we reverse the district court, grant habeas corpus relief,
and order Petitioner’s immediate release from custody upon issuance of the mandate.

1In light of our disposition of this case, we do not address the ineffective assistance of counsel issue in
this opinion.
II. DISCUSSION

{14} We begin by addressing the consequence of consolidating Petitioner’s district
court cases. We then address the error in stacking consecutive five-year terms of
probation with the result that Petitioner’s custody is now illegal. Finally, we address
Petitioner’s argument that his three convictions for conspiracy violate double jeopardy.

A. Legality of Petitioner’s Sentence and Custody

{15} Petitioner maintains that he always believed he was facing a total of only five
years of probation, despite his total sentencing exposure equating to twenty-seven
years. Petitioner asserts that the total period of probation the district court could have
imposed was five years, and that the district court lacked authority to impose a new five-
year probation period following each probation violation. In response, the State argues
the district court properly placed Petitioner on new terms of probation following each
revocation. When, as here, a case “involves issues concerning the district court’s
interpretation and application of the sentencing law, it is subject to de novo review.”
State v. Brown, 1999-NMSC-004, ¶ 8, 126 N.M. 642, 974 P.2d 136.

{16} We first address the legal effect of consolidation on Petitioner’s four separate
cases. Since at least 1953, the rule has been that “if the separate informations were
properly consolidated they would thenceforth be considered as one information
containing separate counts.” State v. Compton, 1953-NMSC-036, ¶¶ 41-42, 57 N.M.
227, 257 P.2d 915 (considering the number of peremptory challenges a defendant is
allotted following consolidation of two cases). Subsequently, in State v. Paschall, 1965-
NMSC-008, ¶ 3, 74 N.M. 750, 398 P.2d 439, we considered the effect of consolidating
separate criminal informations for trial. We said consolidation “means trying the several
different criminal informations, charging separate offenses, at one time and before one
jury—a procedure which involves separate verdicts respecting each offense charged
and tried.” Id.

{17} The current rules of criminal procedure lack explicit provisions about the effect of
consolidation. However, the local rules of several districts, which we have approved,
give direction on the effect of consolidation. For example, when two or more cases are
consolidated, all the pleadings filed after consolidation are docketed and placed in the
file with the lowest case number. See LR1-108(B) NMRA; LR3-204(C) NMRA; LR5-
213(B) NMRA. Further, “[t]he case number of each case consolidated shall appear in
the caption of all pleadings, motions, and other papers filed after consolidation.” LR5-
213(C); see also LR3-204(D). Based on the procedural history of this case and lack of
explicit provisions outlining the effect of consolidation, we request that the appropriate
rules committees define the effect of consolidation within our Rules of Criminal
Procedure for the District, Metropolitan, and Magistrate Courts.

{18} Here, Petitioner’s four separate cases were “consolidated into [the -269 case] for
plea and disposition.” The legal effect was that upon consolidation, there was a single
case, the -269 case, with multiple underlying charges. The order of consolidation
ultimately resulted in a single judgment and sentence. However, despite consolidation,
the judgment and sentence sets forth a separate probation period for each original case
in which the probation terms were stacked. We now turn to whether this was
permissible.

{19} “When a person has been convicted of a crime for which a sentence of
imprisonment is authorized and when the . . . district court has . . . suspended [the]
sentence, it shall order the defendant to be placed on probation for all or some portion
of the period of deferment or suspension . . . .” NMSA 1978, Section 31-20-5(A) (2003).
Critical to the case before us, the statute explicitly directs, “the total period of probation
for district court shall not exceed five years.” Id. Our Court of Appeals explained in State
v. Devigne, 1981-NMCA-088, ¶¶ 28-33, 96 N.M. 561, 632 P.2d 1199, that when a
period of probation is entered on a multiple count indictment at one trial, the district
court cannot impose a total term of probation longer than five years. The Court of
Appeals based its conclusion on the statutory text of Section 31-20-5 and the statute’s
legislative history. Id. ¶ 33. We agree with the Court of Appeals on this point, and hold
that when two or more cases are consolidated for a plea and sentencing, if the district
court in its discretion suspends all or part of the sentence only a single term of
probation, not to exceed five years, can be imposed.

{20} That is not to say that a probationer cannot be required to serve more than five
years on probation. When a probation violation “is established, the [district] court may
continue the original probation or revoke the probation and either order a new probation
with any condition provided for in Section 31-20-5 or [NMSA 1978, Section] 31-20-6
[(2007)] . . . or require the probationer to serve the balance of the sentence imposed or
any lesser sentence.” NMSA 1978, § 31-21-15(B) (2016). Thus, if all or a part of the
sentence is suspended under a five-year term of probation, the district court may
properly revoke probation and impose a new five-year period of probation if the
defendant violates the terms and conditions of probation during the original term of
probation. State v. Baca, 2005-NMCA-001, ¶¶ 13-15, 136 N.M. 667, 104 P.3d 533. This
case is an example of such a scenario. As explained subsequently herein, Petitioner
properly served six years of probation.

{21} We disagree with Petitioner’s argument that each of the district court’s
revocations and reinstatements of probation were illegal. The original probation term
was from February 8, 2011 to February 7, 2016. Within that term, on June 11, 2013, the
district court revoked and reinstated Petitioner’s probation and imposed a new five-year
term of probation from June 11, 2013 to June 10, 2018. Within this new term of
probation, on May 23, 2014, the district court revoked and reinstated Petitioner’s
probation. However, the district court did not impose a new probationary term and opted
to reinstate the existing term of probation which expired on September 26, 2018. Finally,
within the existing term of probation, on July 15, 2016, the district court revoked
Petitioner’s probation and reinstated the probation with an additional condition that
Petitioner serve six months in the Otero County Detention Center. Each of the foregoing
times the district court revoked and reinstated probation, the district court complied with
Section 31-20-5 and Baca, 2005-NMCA-001, ¶¶ 13-15. These were followed by the
district court’s order filed on February 21, 2017, that Petitioner’s five-year probation
ended on February 4, 2017. The illegality of Petitioner’s detention stems from what
happened next under the structure of the stacked probation terms set forth in the
judgment and sentence.

{22} The February 21, 2017 order, which determined that Petitioner’s five-year term of
probation had expired was only filed in the -270 case. Correctly understanding that the
judgment and sentence intended to impose stacked terms of probation, the State filed
another petition to revoke probation in the -290 case, contending that the period of
probation in this case started on February 4, 2017, and ended on February 4, 2022.
Upon finding that Petitioner violated probation during this time, on April 25, 2018, the
district court revoked probation and ordered Petitioner’s incarceration in the Department
of Corrections for 2,292 days, followed by another five-year term of probation. As noted
previously herein, the district court later recalculated Petitioner’s credit for presentence
confinement (which resulted in an earlier termination of probation in the -270 case), but
still ordered incarceration in the Department of Corrections for 2,292 days, followed by
five years of probation. When the district court subsequently revoked Petitioner’s
probation, sentenced Petitioner to the Department of Corrections, and imposed a new
five-year term of probation, those actions violated Section 31-20-5(A) as construed in
Devigne, 1981-NMCA-088, ¶¶ 28-33. In fact, while Section 31-20-5(A) limits a term of
probation to five years, the structure of the judgment and sentence here required
Petitioner to serve more than ten years of probation. The question remains: what relief
is Petitioner entitled to receive?

{23} For the answer to this question, we look to the district court’s February 21, 2017,
order of discharge filed in the -270 case. The order provides:

[Petitioner was] placed under the supervision of the Probation Division for
a period of 5 year(s), 0 month(s), 0 day(s), as evidenced by a copy of the
Judgment and Sentence entered [in] this case, and;

It further appearing to the [c]ourt that the period of suspension expired on
2/4/2017 . . . .

THEREFORE, IT IS ORDERED THAT pursuant to Section 31-20-8, . . .
[Petitioner] is relieved of any obligation imposed upon him[] by said order
of the [c]ourt and has satisfied his[] criminal liability for the crime charged
herein.

{24} The order says two things: (1) Petitioner’s five-year term of probation imposed by
the judgment and sentence has “expired”; and (2) Petitioner “is relieved of any
obligation imposed upon him[] by said order of the [c]ourt and has satisfied his[] criminal
liability for the crime charged herein.” As we already stated, the date that the probation
expired was later changed from February 4, 2017, to June 4, 2016 (after the district
court recalculated Petitioner’s presentence confinement credits), but the order was not
otherwise changed and remains in full force and effect. The fact that this order was only
filed in the -270 case cannot change the fact that the four separate cases were
“consolidated into [the -269 case] for plea and disposition.” The legal effect was that
upon consolidation, there was a single case, the -269 case, with multiple underlying
charges, which resulted in a single judgment and sentence.

{25} The first consequence of the order of discharge is that after February 4, 2017,
the district court had no jurisdiction to revoke Petitioner’s probation. Under New Mexico
case law, Section 31-20-8 combined with Section 31-21-15(B) deprives district courts of
jurisdiction to revoke probation once the probationary period has expired. See State v.
Ordunez, 2012-NMSC-024, ¶¶ 2, 9, 283 P.3d 282 (concluding the district court lacked
jurisdiction over the petition to revoke probation after the probationary term expired).
The second consequence is that the district court order declaring that Petitioner “has
satisfied his[] criminal liability for the crime charged herein” applies to the entire
judgment and sentence. After February 4, 2017, Petitioner was no longer subject to the
judgment and sentence. The core purpose of the writ of habeas corpus—to protect an
individual from illegal custody or restraint—goes to the heart of this case. Caristo v.
Sullivan, 1991-NMSC-088, ¶ 25, 112 N.M. 623, 818 P.2d 401 (“Because the writ of
habeas corpus protects our most basic right of freedom from illegal restraint on personal
liberty, the writ must be construed to afford a swift and imperative remedy in all cases of
illegal restraint or confinement.” (internal quotation marks and citations omitted)).
Petitioner shall be immediately released from custody upon the issuance of our
mandate in this case.

B. Double Jeopardy Violations

{26} Next, we address whether Petitioner’s three convictions and sentences for
conspiracy violate double jeopardy. The sentence imposed under a plea agreement can
violate double jeopardy. State v. Jackson, 1993-NMCA-092, ¶¶ 10-11, 116 N.M. 130,
860 P.2d 772. Furthermore, the fact that we have determined Petitioner has served his
sentence is no bar to our review of this claim. See id. ¶ 12 (“In New Mexico, ‘double
jeopardy may not be waived and may be raised . . . at any stage of a criminal
prosecution, either before or after judgment.’” (quoting NMSA 1978, § 30-1-10 (1963))).

{27} Petitioner argues his three conspiracy convictions violate double jeopardy
because his conduct underlying the conspiracy convictions was unitary. The State
argues that the conduct was not unitary because the convictions either involved
different victims or occurred on different days. “This Court reviews claims involving
alleged violations of a defendant’s right to be free from double jeopardy de novo.” State
v. Loza, 2018-NMSC-034, ¶ 4, 426 P.3d 34.

{28} Both the United States Constitution and the New Mexico Constitution guarantee
that no person shall be “twice put in jeopardy” for the same offense. U.S. Const. amend.
V; N.M. Const. art. II, § 15. Double jeopardy protects against successive prosecutions
and multiple punishments for the same offense. See Swafford v. State, 1991-NMSC-
043, ¶ 6, 112 N.M. 3, 810 P.2d 1223. Multiple punishment cases are classified in one of
two ways: double description cases or unit of prosecution cases. State v. Gallegos,
2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655. In double description cases, “a
single act results in multiple charges under different criminal statutes”; unit of
prosecution cases arise when “an individual is convicted of multiple violations of the
same criminal statute.” Id. (internal quotation marks and citations omitted). Petitioner
pleaded guilty to three conspiracy crimes under NMSA 1978, Section 30-28-2 (1979),
so this is a multiple punishment case, and we therefore apply the unit of prosecution
analysis. In analyzing a unit of prosecution claim, the relevant inquiry is “whether the
[L]egislature intended punishment for the entire course of conduct or for each discrete
act.” Swafford, 1991-NMSC-043, ¶ 8.

{29} This Court originally applied the unit of prosecution analysis to the conspiracy
statute, § 30-28-2, in Gallegos, 2011-NMSC-027, ¶¶ 43-64. The Gallegos Court inferred
that based on the “text, history, and purpose of our conspiracy statute . . . the
Legislature established . . . a rebuttable presumption that multiple crimes are the object
of only one, overarching, conspiratorial agreement subject to one, severe punishment
set at the highest crime conspired to be committed.” Id. ¶ 55. The State may overcome
this presumption of singularity, “but doing so requires the state to carry a heavy burden.”
Id. To determine whether the presumption of singularity is overcome, Gallegos adopted
a totality of the circumstances test. Id. ¶ 56. Under this totality of the circumstances test,
we consider whether

“(a) the location of the two alleged conspiracies is the same; (b) there is a
significant degree of temporal overlap between the two conspiracies
charged; (c) there is an overlap of personnel between the two
conspiracies (including unindicted as well as indicted co-conspirators);
and (d) the overt acts charged and (e) the role played by the defendant in
the alleged conspiracies are similar.”

Id. ¶ 42 (alterations, ellipsis, and citation omitted). We continue to rely on these factors
from the Gallegos analysis in analyzing conspiracy double jeopardy cases. State v.
Comitz, 2019-NMSC-011, ¶¶ 33-34, 443 P.3d 1130; State v. Ortega, 2014-NMSC-017,
¶ 27, 327 P.3d 1076.

{30} Since there was no trial, we consider only the limited facts contained in the
statement of facts from Petitioner’s guilty plea. See Jackson, 1993-NMCA-092, ¶¶ 11,
18 (considering only the facts established at the guilty plea hearing to determine if the
sentence imposed under a plea agreement violated double jeopardy). The facts are as
follows:

On or about June 02 and 03, 2010, I did enter four separate locked
storage units, located at 2801 Indian Wells Rd., Alamogordo, NM, without
authorization or permission, with intent to commit a theft when I got inside
and I conspired by words and acts together with another person to break
into the units. . . .

On or about June 02, 2010, I did enter two different locked storage units,
located at 3110 North Florida, Alamogordo, NM, without authorization or
permission, with intent to commit a theft when I got inside and I conspired
by words and acts together with another person to break into the units. . . .
On or about June 02, 2010, I did take and carry away two metal dyes and
one Columbia Shuttle medallion, belonging to Tularosa Basin Historical
Society (Mrs. Dolores Rogers), which had a market value of over $2500,
and at the time the property was taken, intended to permanently deprive
the owner of it and . . . I conspired by words and acts together with
another person to take said property.

The two metal dyes and the medallion were stolen from the Alamogordo Chamber of
Commerce Museum. We apply the factors from the Gallegos analysis to these facts
from Petitioner’s guilty plea.

{31} First—as to whether the conspiracies occurred at the same location—the
statement of facts provides that the two conspiracies to commit nonresidential burglary
and the conspiracy to commit larceny occurred at three separate locations: (1) four
storage units at 2801 Indian Wells Road, (2) two storage units at 3110 North Florida,
and (3) the Alamogordo Chamber of Commerce Museum. This first factor weighs
towards finding separate conduct.

{32} Regarding the second factor—whether the conspiracies overlap in time—
because all of the alleged conspiracies occurred on the same day, June 2, 2010, and
because the State failed to introduce evidence of intervening conduct or distinct
conspiratorial agreements, the State failed to satisfy its burden by showing “how this
Court can meaningfully distinguish between the three charged conspiracies in a way
that would justify multiple punishment under the conspiracy statute.” Gallegos, 2011-
NMSC-027, ¶ 62; see id. ¶ 46 (“A single conspiracy can last for years, with many of its
substantive offenses being completed during that time. . . . Furthermore, a conspiracy
may mature and expand over time, adding more members and embracing additional
criminal objectives without changing the fundamental nature of the single agreement.”
(internal quotation marks and citations omitted)). Even if we were to attempt to
distinguish the discreet conspiracies temporally throughout that day, it does not follow
that Defendant entered into a new conspiracy each time he committed burglary and
larceny, and it “would be contrary to the plain language of our conspiracy statute, which
punishes the act of combining with another, not the objects that were to be committed”
to presume such a finding. Id. ¶ 62. Thus, the second factor weighs in favor of
singularity.

{33} As to the third factor—whether there was the same or overlapping personnel—
the record indicates Petitioner conspired with at least one other person. However, there
is no conclusive evidence before this Court as to whether there was more than one
other coconspirator. We conclude this third factor cannot be used to meaningfully weigh
towards a finding of separate conduct or towards a finding of singularity.

{34} Fourth, to determine whether defendant was charged with similar overt acts, we
look to the statutory definitions of the criminal acts underlying the conspiracy
convictions. NMSA 1978, Section 30-16-3(B) (1971), outlining the elements of
nonresidential burglary, states: “Any person who, without authorization, enters any
vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to
commit any felony or theft therein is guilty of a fourth degree felony.” “The crime of
burglary is complete when there is an unauthorized entry with the necessary intent; the
intent does not have to be carried out after entry.” State v. McAfee, 1967-NMSC-139, ¶
17, 78 N.M. 108, 428 P.2d 647. NMSA 1978, Section 30-16-1(A) (2006), outlines the
elements of larceny: “Larceny consists of the stealing of anything of value that belongs
to another.” Moreover, as established in McAfee, the elements of burglary and larceny
do not merge: “Since stealing is a necessary element of larceny but is not a necessary
element of burglary, larceny is not necessarily involved in a burglary. . . . [A d]efendant
could be convicted of and sentenced for both crimes.” McAfee, 1967-NMSC-139, ¶ 18.
Because the elements of nonresidential burglary and larceny do not have similar overt
acts, this fourth factor weighs towards finding separate conduct.

{35} Fifth, looking as to whether Petitioner played a similar role in each conspiracy,
the record establishes that Petitioner was the constant actor in each of the three
conspiracies. This fifth factor weighs towards a finding of singularity.

{36} Thus, of the five factors, two factors weigh towards a finding of singularity, two
factors weigh in favor of a finding of separate conduct, and one factor does not
meaningfully affect the analysis. It is therefore untenable to conclude that there were
three separate agreements in such a way that would justify multiple punishments under
the conspiracy statute based on the limited factual record before us. The evidence does
not demonstrate more than one agreement between two or more coconspirators nor
that two conspirators made multiple agreements on or about June 2, 2010.

{37} In addition to the lack of facts, the presumption of singularity is the strongest
barrier to concluding that there were three separate conspiracies. During the plea
hearing and sentencing hearings, the State did not present more evidence to prove
there were three separate agreements. Further, on appeal the State has not highlighted
specific evidence in the record to overcome the presumption of singularity. Therefore,
the presumption has not been rebutted and we hold that Petitioner’s conspiratorial
conduct was unitary.

{38} Thus, we turn to the proper remedy for violation of Petitioner’s double jeopardy
rights. In Jackson, the defendant appealed two consecutive sentences imposed for
conspiracy which were imposed as a result of his guilty plea. 1993-NMCA-092, ¶¶ 1, 4,
8. The Court of Appeals agreed with the defendant that there was only one conspiracy.
Id. ¶¶ 2, 21. Treating the appeal as a request to vacate the plea agreement, the Court of
Appeals determined that the defendant was entitled to have his plea vacated only if the
state agreed; alternatively, the state could agree to accept the sentence imposed, as
corrected by the determination that there was only one conspiracy. Id. ¶ 24. Importantly,
in Jackson, the defendant had not yet fully served his sentence. Id. ¶¶ 5, 8. In contrast,
in this case, Petitioner has already served his sentence, including the probation term for
one conspiracy conviction. Therefore, on remand, we direct the district court to enter an
amended judgment and sentence vacating Petitioner’s remaining two conspiracy
convictions.

III. CONCLUSION
{39} We grant habeas corpus relief. Petitioner shall be released from custody
immediately upon the issuance of our mandate. The district court’s order consolidating
the four cases resulted in a single judgment and sentence. We reverse the district court
because the subsequent February 21, 2017, order of discharge on suspended
sentence, as amended, not only terminated Petitioner’s probation but also determined
that Petitioner satisfied his criminal liability for the crimes charged, and discharged
Petitioner from any obligation imposed by the judgment and sentence as of June 4,
2016. In addition, upon remand, the district court shall enter an amended judgment and
sentence vacating two conspiracy convictions.

{40} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice, concurring in part, dissenting in part

ZAMORA, Justice (concurring in part and dissenting in part).

{41} I agree with the majority that orders of consolidation result in a single judgment
and sentence, that only a single term of probation can be imposed when two or more
cases are consolidated for plea and sentencing, and that Petitioner should be
immediately released from custody because he is no longer lawfully detained. Maj. op.
¶¶ 18-19, 25. But I cannot join the majority’s opinion for two reasons. First, the Court’s
conclusion that a district court may order a defendant to complete a new five-year
period of probation each and every time there is a probation violation, regardless of the
severity of the alleged violation and regardless of how many years of probation the
defendant has already served, is contrary to the plain language of NMSA 1978, Section
31-20-5(A) (2003). I also believe the Court should remand the double jeopardy issue to
the district court. Petitioner did not raise double jeopardy below so no record on the
issue was developed in the district court. Moreover, Petitioner’s counsel neglected to
sufficiently address double jeopardy in the brief in chief and at oral argument.
Accordingly, I respectfully concur in part and dissent in part.

I. ORDERING A NEW FIVE-YEAR PROBATIONARY PERIOD IS NOT
PERMITTED UNDER SECTION 31-20-5(A) EACH TIME A DEFENDANT
VIOLATES PROBATION

{42} In its analysis of the probation issue, the majority relies in part on State v. Baca,
2005-NMCA-001, 136 N.M. 667, 104 P.3d 533. This Court has yet to review the holding
in Baca, which the majority relies on to conclude that pursuant to NMSA 1978, Section
31-21-15(B) (2016), a district court can start a new five-year period of probation each
time a defendant commits a probation violation until the Court no longer has jurisdiction.
Maj. op. ¶¶ 20-21. Because I believe this result contravenes legislative intent and that
the Baca Court’s interpretation of Section 31-21-15(B) conflicts with the plain language
of Section 31-20-5(A), I would overrule Baca and hold that a district court may not start
a new five-year period of probation each time a defendant is found to have violated
probation.

{43} Here, the district court sentenced Petitioner in 2011 to a total term of twenty-
seven years based on his guilty plea to charges that were consolidated for purposes of
plea and disposition. Maj. op. ¶¶ 3-4. The court suspended part of Petitioner’s initial
sentence and he was ordered to a period of probation. Maj. op. ¶ 7. Petitioner violated
his probation three times prior to the expiration of this term. Maj. op. ¶ 7. In each
instance, the district court revoked and reinstated Petitioner’s probation pursuant to
Section 31-21-15(B). Maj. op. ¶ 7. However, following the first and second revocations,
the district court started an entirely new five-year period of probation, setting new
expiration dates of June 10, 2018, and September 26, 2018, respectively. Maj. op. ¶ 7.

{44} The majority concludes that each order starting a new five-year period of
probation was proper and that it was only when the district court revoked Petitioner’s
probation on May 9, 2018, that it acted outside its authority. Maj. op. ¶¶ 20-22. While I
agree that the district court did not have jurisdiction to issue its May 9, 2018, revocation
order, I disagree that its June 11, 2013, and September 27, 2013, orders extending
Petitioner’s probationary term beyond the five-year statutory limit established in Section
31-20-5(A) were lawful. The legality of Petitioner’s probation term depends upon the
interplay between two statutes bearing on the imposition of probation: Section 31-20-
5(A) (the probation statute) and Section 31-21-15(B) (the probation revocation statute).
Section 31-20-5(A) provides:

When a person has been convicted of a crime for which a sentence of
imprisonment is authorized and when the magistrate, metropolitan or
district court has deferred or suspended sentence, it shall order the
defendant to be placed on probation for all or some portion of the period of
deferment or suspension if the defendant is in need of supervision,
guidance or direction that is feasible for the corrections department to
furnish. Except for sex offenders as provided in [NMSA 1978,] Section 31-
20-5.2 [(2003)], the total period of probation for district court shall not
exceed five years . . . .

Id. (emphasis added). Section 31-21-15(B) states that, following a revocation
application:

The court shall then hold a hearing, which may be informal, on the
violation charged. If the violation is established, the court may continue the
original probation or revoke the probation and either order a new probation
with any condition provided for . . . or require the probationer to serve the
balance of the sentence imposed or any lesser sentence. If imposition of
sentence was deferred, the court may impose any sentence that might
originally have been imposed, but credit shall be given for time served on
probation.

Id. (emphasis added).

{45} The majority asserts that the district court’s orders restarting Petitioner’s
probation were lawful because “the district court complied with Section 31-20-5 and
Baca, 2005-NMCA-001, ¶¶ 13-15” in issuing them. Maj. op. ¶ 21. However, by its plain
language, Section 31-20-5(A) establishes that “[e]xcept for sex offenders as provided in
Section 31-20-5.2 NMSA 1978, the total period of probation for district court shall not
exceed five years.” (Emphasis added). Accordingly, the majority’s conclusion that the
district court’s orders restarting Petitioner’s probation term were lawful rests on the
Court of Appeals’ decision in Baca. Because I believe Baca was wrongly decided, I
cannot join the majority’s endorsement of that holding in this opinion.

{46} Our primary purpose in interpreting statutes is to give effect to the Legislature’s
intent. Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047. The primary indicator
of that intent is the plain language of the provision. Id. Therefore, where the language of
a statute is plain, our inquiry is at an end. State v. Trujillo, 2009-NMSC-012, ¶ 11, 146
N.M. 14, 206 P.3d 125. We “will not depart from the plain language of the statute unless
it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the
Legislature could not have intended, or . . . deal with an irreconcilable conflict among
statutory provisions.” Maestas v. Zager, 2007-NMSC-003, ¶ 9, 141 N.M. 154, 152 P.3d
141 (internal quotation marks and citation omitted).

{47} In my view, the language of Section 31-20-5(A) is unambiguous. The statute
mandates that a probationary period is not to exceed five years in total. See Marbob
Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 22, 146 N.M. 24,
206 P.3d 135 (“[W]hen construing statutes, ‘shall’ indicates that the provision is
mandatory.”).

{48} In Baca, the Court of Appeals nonetheless held that Section 31-20-5(A) could not
mean what it says because, in the Court’s estimation, the plain meaning of the provision
would contravene the legislative purpose behind the probation statutes. Baca, 2005-
NMCA-001, ¶¶ 16-17, 19. In that case, the defendants argued that Section 31-20-5(A)
prohibits imposition of more than five years of probation in the aggregate. Id. ¶¶ 8, 11.
The State asserted that the statute prohibits only the imposition of a probationary term
of greater than five years at initial sentencing, arguing that nothing in Section 31-20-5(A)
prevents a defendant from serving longer than five years overall if there are probation
violations. Id. ¶ 18. The Court agreed with the State. Id.

{49} According to the Baca Court, adherence to the plain language of Section 31-20-
5(A) would frustrate the purposes of the probation statutes in three ways. First, the
Court asserted that the word “total” in Section 31-20-5(A) could not be construed to
mean five years in the aggregate without rendering the option to “order a new probation
with any condition” in Section 31-21-15(B) a “nullity.” Id. ¶¶ 13, 18. Second, the Baca
Court concluded that the defendants’ proposed construction would permit a defendant
to violate probation multiple times without consequence. Id. ¶ 19. Finally, the Court
concluded that a new five-year period of probation furthered the legislative purpose of
enhancing the rehabilitation of probationers by offering additional flexibility to district
courts beyond either continuing the probation or revoking probation and sending the
defendant to jail. Id. ¶ 20.

{50} I disagree. The Court of Appeals’ conclusions in Baca are predicated on a
mistaken premise. The Court appeared to believe that the option to “revoke the
probation and . . . order a new probation with any [authorized] condition” under Section
31-21-15(B) must mean “revoke the existing probation and restart the probationary
term” because, if it did not, then it would be indistinguishable from the first option
(continue the probation). See Baca, 2005-NMCA-001, ¶ 18. However, “revoke the
probation and . . . order a new probation with any [authorized] condition” is readily
susceptible to a different interpretation that would distinguish it from continuing
probation. See § 31-21-15(B). A court could order a “new probation with any condition
provided for” under Sections 31-20-5 and -6 even if it did not extend the probation term
if the court attached new or different conditions. Moreover, if the original probationary
term were for a period shorter than five years, “order[ing] a new probation term” could
mean imposing a longer probationary term, so long as it did not exceed five years in
total when combined with the prior probation term. In other words, Section 31-21-15(B)
could be construed to authorize a district court to: (1) continue the probation as is for the
balance of the existing probation term, which cannot be longer than five years; (2)
revoke the probation and order a new probation for the balance of the term with different
and/or additional conditions or for a longer term, so long as the total probation period
does not exceed five years; or (3) revoke the probation and incarcerate the defendant
for the balance of the sentence or some lesser term.

{51} This is a more harmonious reading of Sections 31-21-15(B) and 31-20-5(A) than
that adopted by the majority and Baca because it gives effect to the plain language of
both statutes. See State v. Farish, 2021-NMSC-030, ¶ 11, 499 P.3d 622 (stating that
the Court reads statutes as a whole and that the Legislature “is presumed not to have
used any surplus words in a statute; each word must be given meaning”). Recall that
Section 31-20-5(A) provides, in part, that “[e]xcept for sex offenders as provided in
Section 31-20-5.2 NMSA 1978, the total period of probation for district court shall not
exceed five years . . . .” (Emphasis added.) The dictionary definition of the word “total”
indicates it most commonly signifies an entire amount, including an amount produced by
adding or summing constituent parts. Total, Merriam-Webster’s Collegiate Dictionary
(11th ed. 2004) (defining “total” as “a product of addition: sum,” “an entire quantity”); see
State v. Vest, 2021-NMSC-020, ¶ 14, 488 P.3d 626 (noting that this Court “consult[s]
common dictionary definitions” when giving words “their ordinary meaning”). Thus, a
plain reading of Section 31-20-5(A) indicates that a defendant’s entire probationary
term—including any and all partial probationary periods—must not exceed five years.
By contrast, the Baca Court’s interpretation of the probation statutes renders the word
“total” superfluous to this provision. Such a construction is disfavored by New Mexico
law. State v. Juan, 2010-NMSC-041, ¶ 39, 148 N.M. 747, 242 P.3d 314 (“A statute must
be construed so that no part of the statute is rendered surplusage or superfluous.”
(internal quotation marks, brackets, and citations omitted)).

{52} The interpretation of Section 31-21-15(B) that I propose would also resolve the
Baca Court’s second concern: that a probationer could repeatedly violate probation and
simply run out the clock on the original probation term without consequence. Baca,
2005-NMCA-001, ¶¶ 19-20. On my reading of the statute, a defendant who continued to
violate probationary conditions would always be subject to incarceration or to the
imposition of new or more restrictive conditions until his or her probation term ran out.
Or, if the probationary term imposed at sentencing were for a period of less than five
years, the district court could extend it so long as the overall term did not exceed five
years. In other words, the district court would not be without options to address a
probationer who committed repeat violations.

{53} In sum, each of the Court of Appeals’ concerns in Baca may be addressed by
construing the option to “start a new probation” under Section 31-21-15(B) to mean that
a district court may revoke a defendant’s probation and order a new probation for the
balance of the existing probationary period with new or different conditions, or order a
longer probation period so long as the total period of probation does not exceed five
years. Each of these options provides a clear mechanism by which a district court may
reconsider and recalibrate a defendant’s probation to enhance its rehabilitative
potential. See State v. Rivera, 2004-NMSC-001, ¶ 21, 134 N.M. 768, 82 P.3d 939
(“Sections 31-20-5 and 31-21-15 [are] indicative of the Legislature's intent to give trial
courts broad discretion to sentence defendants to probationary terms and strictly
monitor their compliance with an eye toward the goal of prompt and effective
rehabilitation”). By contrast, it is not at all clear how the Baca Court’s reading of the
statute—which authorizes a district court to simply extend its jurisdiction over a
defendant rather than reconsider the rehabilitative purposes of the probation
conditions—does anything to advance the legislative purpose of our probation statutes.
“The broad general purposes to be served by probation are education and
rehabilitation. . . . The conditions of probation are directed to that end.” State v. Baca,
1977-NMCA-030, ¶ 10, 90 N.M. 280, 562 P.2d 841.

{54} Even if there were an ambiguity in the probation statutes, I do not believe that the
Baca Court’s interpretation of the interplay between Sections 31-20-5 and 31-21-15 is
either necessary or desirable to give effect to the Legislature’s intent in enacting them.
To the contrary, the interpretation advanced by Baca and endorsed by the majority in
this opinion could result in several absurd sentencing outcomes. For example, a
defendant (like Petitioner) charged with multiple counts in a consolidated case could
serve decades of probation if a district court is permitted to start a new five-year period
of probation each time a defendant violates probation, as occurred in this case. And of
course a new five-year period of probation could start again and again upon a finding of
a violation, rendering the five-year limit stated in Section 31-20-5(A) barely a
suggestion, much less a requirement. Moreover, while all agree that Petitioner could not
be sentenced to more than five years’ probation at initial sentencing, regardless of the
court’s overall jurisdiction, maj. op. ¶ 19, the Baca Court’s interpretation of Section 31-
21-15 allows for an actual probation period spanning many times that length. Surely,
this cannot be what the Legislature intended.

{55} Further, to the extent that there remains “insurmountable ambiguity” about the
Legislature’s intent, such doubts should be resolved in favor of lenity toward the
defendant. State v. Tafoya, 2010-NMSC-019, ¶ 23, 148 N.M. 391, 237 P.3d 693
(internal quotation marks and citation omitted); see United States v. Bass, 404 U.S. 336,
347 (1971) (“[A]mbiguity concerning the ambit of criminal statutes should be resolved in
favor of lenity.” (internal quotation marks and citation omitted)). Applying the rule of
lenity is important for two reasons, both of which are of significance in this case. First,
the law must provide a fair warning “in language that the common world will understand,
of what the law intends to do if a certain line is passed.” Bass, 404 U.S. at 348 (internal
quotation marks and citation omitted). Next, “because of the seriousness of criminal
penalties, and because criminal punishment usually represents the moral condemnation
of the community, legislatures and not courts should define criminal activity.” Id.; see
also United States v. Simpson, 319 F.3d 81, 86 (2nd Cir. 2002) (applying the rule of
lenity to sentencing guidelines because one of the purposes of the rule of lenity is “to
maintain the proper balance between Congress, prosecutors, and courts” (internal
quotation marks and citation omitted)).

{56} Finally, in my view, the Court of Appeals’ reading of the probation statutes in
Baca relied in part on an insupportable reading of State v. Devigne, 1981-NMCA-088,
96 N.M. 561, 632 P.2d 1199. According to the Baca Court, Devigne offered no support
for the proposition that Section 31-20-5(A) imposes a five-year cap on the total
probation that may be served because Devigne “stands for the principle that the
maximum period of probation that a district court may impose at sentencing is a total of
five years, . . . not that five years is the total amount of time a defendant can serve on
probation, regardless of the number of violations.” Baca, 2005-NMCA-001, ¶ 18
(emphasis added).

{57} In Devigne, the defendant “was sentenced to three years imprisonment on each
of five counts.” 1981-NMCA-088, ¶ 22. The court suspended the sentence and ordered
six years of probation. Id. The defendant argued that Section 31-20-5 2 prohibited the
imposition of a probation term in excess of five years. Id. ¶ 23. Based on the plain
language of the statute, the Devigne Court agreed with the defendant that “the
maximum length of his probation cannot exceed five years,” id. (emphasis added), and
held that Section 31-20-5 establishes “that the maximum probation for the five
sentences imposed upon defendant, for convictions that occurred at one trial, [is] five
years.” Id. ¶ 33 (emphasis added).

2Devigne concerned an earlier version of Section 31-20-5, but the two provisions are nearly identical and
there is nothing in the legislative history of Section 31-20-5 that suggests the change enacted in 2003
was intended to modify the effect of the five-year limitation on probation. Compare § 31-20-5(A) (1977),
with § 31-20-5(A) (2003). The provision was almost certainly amended to account for the enactment of
the sex offender parole statute, Section 31-20-5.2, which was enacted in the same legislative session.
See 2003 N.M. Laws, 1st Spec. Sess., ch. 1, § 7.
{58} The Court of Appeals in Baca read Devigne as holding only that the five-year
limitation period applied to the probation term imposed at initial sentencing, not that a
probation term could not be restarted and therefore lengthened during the probationary
period. Baca, 2005-NMCA-001, ¶ 18. The Baca Court adopted this interpretation of
Devigne based on the concerns already identified. Id. ¶¶ 18-20. However, there is
nothing in the Devigne opinion—including its holding—that suggests the Court intended
to distinguish between a probationary term imposed at sentencing and the period of
probation actually served by a defendant. See Devigne, 1981-NMCA-088, ¶¶ 23, 33.
Nor is there anything in the plain language of Section 31-20-5 that suggests the five-
year limitation applies only to the probation imposed at sentencing. Section 31-20-5
(referring to “the total period of probation.”). Contrary to the Baca Court’s strained
reading of the decision, in my opinion the Devigne Court properly held that “the
maximum probation for the five sentences imposed upon defendant, for convictions that
occurred at one trial, was five years.” Devigne, 1981-NMCA-088, ¶ 33.

{59} I would apply that principle here. Petitioner’s probationary period should have
ended after five years, thereafter depriving the district court of authority to revoke his
probation. I concur in the majority’s conclusion that Petitioner should be immediately
released from custody.

II. THE DOUBLE JEOPARDY CLAIM WAS NOT ADEQUATELY DEVELOPED

{60} Petitioner did not raise the issue of double jeopardy in his pro se Petition for Writ
of Certiorari. Instead, this Court sua sponte raised the issue in the Order granting the
petition. Despite our raising the issue, Petitioner neglected to adequately develop an
argument in his brief in chief or at oral argument. Where a conviction arises from a guilty
plea and there is no factual record developed at trial, “[w]e place the burden on the
defendant, the party raising the double jeopardy challenge, to provide a sufficient record
for the court to determine unitary conduct and complete the remainder of the double
jeopardy analysis.” State v. Sanchez, 1996-NMCA-089, ¶ 11, 122 N.M. 280, 923 P.2d
1165. This higher burden provides fundamental fairness to the State, which “must have
the opportunity to contest [the d]efendant’s version of the facts.” Id. Here, the majority
faults the State for failing to “highlight[] specific evidence in the record to overcome the
presumption of singularity,” maj. op. ¶ 37, but in my opinion, the State was deprived of
an opportunity to develop a record below because the issue was not raised in the
district court.

{61} “Courts risk overlooking important facts or legal considerations when they take it
upon themselves to raise, argue, and decide legal questions overlooked by the lawyers
who tailored the case to fit within their legal theories.” N. M. Dep’t of Hum. Servs.,
Income Support Div. v. Tapia, 1982-NMSC-033, ¶ 11, 97 N.M. 632, 642 P.2d 1091.
Because the issue was not adequately developed on appeal and the State was
deprived of its opportunity to present evidence showing that the conduct at issue may
not have been unitary, I believe the matter should have been remanded to the district
court to determine in the first instance whether a double jeopardy violation exists.
Accordingly, I respectfully dissent from the majority’s conclusion that Petitioner’s three
conspiracy convictions violate the prohibition on double jeopardy. Maj. op. ¶¶ 1, 37-38.
BRIANA H. ZAMORA, Justice