February 15, 2021- State of New Mexico v. Chad Ian Williams, No. A-1-CA-37320

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: February 15, 2021	3
NO. A-1-CA-37320	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
CHAD IAN WILLIAMS,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	10
Gary L. Clingman, District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
Walter Hart, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Allison H. Jaramillo, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 2/15/2021 10:36 AM

OPINION	1
B. ZAMORA, Judge.	2
{1} 	Defendant 	Chad 	Williams 	appeals 	the 	district 	court’s 	order 	revoking	3
probation and ordering his commitment to the department of corrections. On appeal,	4
Defendant argues: (1) the district court abused its discretion in concluding his	5
probation violation was willful; (2) he was denied a right to allocution during the	6
probation violation hearing; (3) the district court illegally sentenced him to more	7
than five years of probation; (4) he was prohibited from presenting witness testimony	8
during the probation violation hearing; and (5) he was deprived effective assistance	9
of counsel. We hold Defendant had the right to allocution at his probation violation	10
hearing and that the district court did not afford him that right. Accordingly, we	11
reverse in part and remand for resentencing, but otherwise affirm.	12
BACKGROUND	13
{2} 	Defendant pled guilty to residential burglary, contrary to NMSA 1978,	14
Section 30-16-3(A) (1971), two counts of receiving stolen property (over $2,500),	15
contrary to NMSA 1978, Section 30-16-11(G) (2006), receiving or transferring a	16
stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A) (2009), battery	17
upon a peace officer, contrary to NMSA 1978, Section 30-22-24 (1971), and larceny,	18
contrary to NMSA 1978, Section 30-16-1 (2006). At the initial sentencing, the	19
district court suspended Defendant’s entire sentence and placed him on supervised	20

2
probation for a total of nine years. As part of his conditions of probation, Defendant	1
was required to get permission from his probation officer before leaving the county,	2
follow all orders and instructions of his probation officer, and not buy, sell, or	3
consume illegal drugs.	4
{3} 	During the six months prior to the probation violation at issue in this case,	5
Defendant had numerous violations of probation. Defendant tampered with his GPS	6
monitor in April 2017, and he tested positive for methamphetamine on June 27,	7
2017, and again on July 30, 2017. The probation violation hearing for these alleged	8
violations was held on August 24, 2017, and Defendant pled no contest to all the	9
violations. After the district court expressed concern about Defendant’s failure to	10
engage in substance abuse treatment, Defendant responded that treatment programs	11
were “a joke” and stated that rather than treatment he would “bareknuckle it.” At the	12
August 2017 hearing, the district court reinstated Defendant’s probation despite	13
Defendant’s reluctance to complete a substance abuse treatment program.	14
{4} 	Approximately a month later, on September 27, 2017, the State filed a petition	15
to revoke probation and alleged that Defendant failed to adhere to his curfew and	16
used illegal drugs, in violation of the conditions of his probation. The district court	17
held a probation violation hearing to determine whether Defendant violated the	18
conditions of his probation. The State presented the testimony of the probation	19
officer assigned to Defendant’s case, who testified that on September 9, 2017,	20

3
Defendant was outside of Lea County, his county of residence, after his 9:00 p.m.	1
curfew. The State also presented testimony from Defendant’s probation officer that	2
Defendant admitted to using methamphetamine. Defendant testified, admitting to his	3
use of methamphetamine during the same trip that led to the curfew violation.	4
Defendant also testified at length about his desire to address his substance abuse	5
issues. 	Defendant explained that he applied and was accepted to the Fourth	6
Dimension Oxford House in Austin, Texas, for substance abuse treatment. Further,	7
Defendant testified he “decided that [he] is going to get clean off of drugs, and that	8
[he does] want a life, and that [he does] want to make his family happy.” Before	9
Defendant had a chance to elaborate further on his desire to get clean, the district	10
court stated, “We are not to sentencing right now, let’s just move on to something	11
else.” After the defense rested, but prior to the district court’s ruling on whether	12
Defendant violated his conditions of probation, the district court allowed Defendant	13
to speak. The exchange was as follows:	14
Court: 	Mr. Williams do you have anything to say?	15
Defendant: 	As far as the, well I just want to admit. I have always	16
admitted that I used meth, every time I went in there	17
. . . and I turned myself in Mr. Clingman [district court	18
judge] the last two times knowing I was going to jail. I	19
went there because I am trying to handle this. I really	20
am. And I’m sorry that . . . I wanted to bare knuckle	21
everybody. The last time I was in here before you . . . I	22
was confident. And I did think that I could do it. But	23
the 	fact 	of 	the 	matter 	is 	Mr. 	Clingman, 	I 	failed	24
miserably.	25

4
Court: 	Be that as it may, you violated your probation. You got a	1
travel permit; you didn’t go where you said you were	2
going to go. You didn’t come back on time. And you	3
smoked meth while you were at it. That violates your	4
probation. We are not debating this, that is the rule of the	5
court.	6
Defendant: 	Alright.	7
Court: 	Set this matter for disposition, we are ready to go right	8
now.	9
{5} 	After hearing argument from the prosecutor and Defendant’s attorney, the	10
district court proceeded to disposition, revoked Defendant’s probation for all six	11
convictions, and sentenced Defendant to approximately eight years of confinement	12
in the department of corrections. After the district court announced its disposition,	13
the following exchange occurred:	14
Defendant: 	May I say something?	15
Court: 	No, get him out of here right now.	16
Defendant: 	Do I go to prison on all the cases or just . . . [inaudible] . . .?	17
Court: 	All of them, every one of them.	18
The district court entered orders revoking Defendant’s probation in all of his cases.	19
This appeal followed.	20
DISCUSSION	21
I. 	Sufficient 	Evidence 	Supports 	the 	District 	Court’s 	Finding 	That	22
Defendant Willfully Violated the Condition of His Probation Prohibiting	23
Drug Use	24

5
{6} 	Defendant argues the district court abused its discretion in concluding that he	1
violated the conditions of his probation because his failure to comply with his curfew	2
was not willful. “We review a district court’s decision to revoke probation under an	3
abuse of discretion standard. To establish an abuse of discretion, it must appear that	4
the district court acted unfairly or arbitrarily or committed manifest error.” State v.	5
Green, 2015-NMCA-007, ¶ 22, 341 P.3d 10 (alterations, internal quotation marks,	6
and citation omitted). We view “the evidence in a light most favorable to the [s]tate	7
and indulg[e] all reasonable inferences in favor of the [district] court’s judgment.”	8
State v. Erickson K., 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258. In a	9
probation violation hearing, “the [s]tate bears the burden of establishing a probation	10
violation with a reasonable certainty.” State v. Leon, 2013-NMCA-011, ¶ 36, 292	11
P.3d 493, “The proof necessary is that which inclines a reasonable and impartial	12
mind to the belief that the defendant has violated the terms of probation.” State v.	13
Martinez, 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 1321. The violation must	14
entail “willful conduct on the part of the probationer[.]” In re Bruno R., 2003-	15
NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339. When a “violation of probation is not	16
willful, but resulted from factors beyond a probationer’s control, probation may not	17
be revoked.” Id. ¶ 13.	18
{7} 	Here, the district court found that Defendant violated his probation by failing	19
to adhere to his probation officer’s prescribed curfew, and because Defendant used	20

6
methamphetamine. While Defendant contends there was insufficient evidence that	1
he willfully violated his curfew, he does not challenge the sufficiency of the evidence	2
to support the drug use violation. Based on our review of the record, there was	3
sufficient evidence supporting the district court’s finding of illicit drug use.	4
Defendant signed a written admission form stating that he used methamphetamine	5
on September 9, 2017, the day of the trip that led to the alleged curfew violation.	6
Defendant 	further 	admitted 	to 	using 	methamphetamine 	when 	he 	testified	7
unequivocally, “Yes sir I did. I admit it every time when I showed up and I was	8
dirty.” The State’s presentation of his signed admission form as well as his own	9
admittance to using methamphetamine support the district court’s finding that	10
Defendant 	possessed 	and 	consumed 	methamphetamine. 	Because 	substantial	11
evidence supports the finding that Defendant violated the conditions of his probation	12
by using methamphetamine, we need not address the district court’s finding with	13
respect to the curfew violation. See Leon, 2013-NMCA-011, ¶ 37 (“[A]lthough [a	14
d]efendant challenges the sufficiency of the evidence supporting each of his	15
violations, if there is sufficient evidence to support just one violation, we will find	16
the district court’s order was proper.”). We hold that the district court did not abuse	17
its discretion by finding that Defendant willfully violated the condition of his	18
probation.	19

7
II. 	The District Court Failed to Afford Defendant a Right to Allocution	1
During the Probation Violation Hearing	2
{8} 	At the crux of this case is whether a defendant has a right to allocution in a	3
probation violation hearing. Defendant argues that he was entitled to this right during	4
the hearing and that the district court deprived him of that right. The State contends	5
that New Mexico does not extend the right to allocution to probation violations	6
involving imposition of a suspended sentence, that Defendant failed to preserve his	7
argument, and that there is no due process right to allocution. We are persuaded by	8
Defendant’s argument and hold that Defendant had a right to allocution during the	9
probation violation hearing and that the district court did not afford him that right.	10
{9} 	Allocution, also known as the doctrine of allocutus, is “the formal inquiry or	11
demand made by the court . . . to [the] accused at the time of pronouncing a sentence	12
as to whether [the] accused has anything to say why sentence should not be	13
pronounced[.]” State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794, 932 P.2d 484	14
(internal quotation marks and citation omitted). “Allocution is a peculiar right. In a	15
sense, it is the right to be advised of another right.” Id. (internal quotation marks and	16
citation omitted). Allocution originated in the common law and afforded “a	17
defendant who did not have the benefit of counsel and who could not present	18
evidence . . . the opportunity to state why the court should not impose the death	19
penalty.” State v. Stenz, 1990-NMCA-005, ¶ 18, 109 N.M. 536, 787 P.2d 455 (citing	20
Tomlinson v. State, 1982-NMSC-074, ¶ 5, 98 N.M. 213, 647 P.2d 415). The practice	21

8
has continued in modern day with a “focus on tailoring punishment to individual	1
circumstances, providing an avenue through which a defendant may ask for mercy	2
based on factors that might not otherwise be brought to the court’s attention, and	3
promoting safety, certainty and equity in sentencing and the judicial process	4
overall.” State v. Strickland, 703 A.2d 109, 112 (1997). “Allocution ensures that	5
sentencing reflects individualized circumstances, while maximizing the perceived	6
equity of the process.” 24 C.J.S. Criminal Procedure and Rights of Accused § 2256	7
(2021); see also Strickland, 703 A.2d at 113 (stating “[a]llocution provides a	8
defendant the opportunity to meaningfully participate in the sentencing process and	9
to show that he or she is a complex individual and not merely an object to be acted	10
upon.” (internal quotation marks and citation omitted)).	11
{10} 	Our Supreme Court first determined that a defendant has a right to allocution	12
in its interpretation of NMSA 1978, Section 31-18-15.1 (2009). See Tomlinson,	13
1982-NMSC-074, ¶¶ 9, 11-13. Section 31-18-15.1 states the district court “shall hold	14
a sentencing hearing to determine if mitigating or aggravating circumstances exist	15
and take whatever evidence or statements it deems will aide it in reaching a	16
decision[.]” In Tomlinson, our Supreme Court presumed “that the Legislature was	17
aware of the common law doctrine of allocutus when it enacted Section 31-18-15.1”	18
and as such, held a defendant has a right to allocution, even though the right is not	19
specifically set forth by the plain language of Section 31-18-15.1. Tomlinson, 1982-	20

9
NMSC-074, ¶¶ 9-12. The Court reasoned, “There is no substitute for the impact on	1
sentencing which a defendant’s own words might have if he [or she] chooses to make	2
a statement.” Id. ¶ 11 (alteration, internal quotation marks, and citation omitted). The	3
Court thus recognized that the right of allocution extended to sentencing for all non-	4
capital felonies. Id. ¶ 12. In Tomlinson, although the district court allowed the	5
defendant to speak after it imposed a sentence, our Supreme Court concluded that it	6
was “no more than an empty gesture.” Id. ¶ 11. The Court reversed the defendant’s	7
conviction and remanded for resentencing to afford the defendant a right to	8
allocution. Id. ¶¶ 12-13.	9
{11} 	We further recognized the “symbolic and practical significance” of the right	10
by extending it to habitual offender proceedings in State v. Leyba, 2009-NMCA-	11
030, ¶ 27, 145 N.M. 712, 204 P.3d 37 (internal quotation marks and citation	12
omitted); see id. ¶ 27 (rejecting the state’s argument that the right to allocution did	13
not apply because a district court had no sentencing discretion in habitual offender	14
proceedings); see also NMSA 1978, § 31-18-17 (2003) (requiring a court to enhance	15
a sentence when a person convicted of a non-capital felony qualified as a “habitual	16
offender”). Furthermore, we reaffirmed the importance of the right to allocution by	17
concluding that the “children’s court should offer a child the opportunity to address	18
the court before pronouncing [a] sentence.” State v. Ricky G., 1990-NMCA-101,	19
¶ 13, 110 N.M. 646, 798 P.2d 596.	20

10
{12} 	Here, as in Leyba and Ricky G., Defendant claims the right to allocution	1
extends beyond the initial sentencing phase, because allegations that Defendant	2
violated the conditions of his probation subjected him to the possibility that his	3
probation would be revoked and his original sentence imposed. A probation	4
violation hearing contains aspects of sentencing similar to an original sentencing	5
hearing at issue in Tomlinson as well as a habitual offender proceeding at issue in	6
Leyba. In a probation violation hearing, the district court has a multitude of options	7
in sentencing, all of which have the potential to impact a defendant’s liberty interests.	8
See NMSA 1978, § 31-21-15(B) (2016) (“If the [probation] violation is established,	9
the court may continue the original probation or revoke the probation . . . or require	10
the probationer to serve the balance of the sentence imposed or any lesser	11
sentence.”); accord State v. Mares, 1994-NMSC-123, ¶ 11, 119 N.M. 48, 888 P.2d	12
930 (recognizing that Section 31-20-5 does not require “the trial court to impose	13
incarceration if the defendant violates the conditions of his [or her] probation”). In	14
this regard, the opportunity for a defendant to address the judge retains the same	15
practical significance as it would in the original sentencing hearing. Indeed, “[t]he	16
most persuasive counsel may not be able to speak for a defendant as the defendant	17
might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S.	18
301, 304, (1961) (plurality opinion). Allowing a defendant to address the district	19
court prior to sentencing in a probation violation hearing also achieves the symbolic	20

11
purposes of allocution described above. See Tomlinson, 1982-NMSC-074, ¶ 11; see	1
also Leyba, 2009-NMCA-030, ¶ 27 (holding the right to allocution applies in a	2
habitual offender proceeding despite the limited sentencing discretion of the district	3
court). We therefore hold that a defendant has a right to allocution in a probation	4
violation hearing.1
5
{13} 	Having concluded Defendant had the right to allocution, we now determine	6
whether the district court afforded him that right. Almost immediately after finding	7
that Defendant violated the conditions of his probation and without advising	8
Defendant he had the right to speak, the district court proceeded to disposition. The	9
court 	exercised 	its 	discretion 	to 	revoke Defendant’s 	probation 	and 	executed	10
1 Our holding is consistent with other jurisdictions that have extended the right
to allocution to situations in which a court executes or imposes an original sentence
following a probation revocation. See, e.g., Strickland, 703 A.2d at 117 (recognizing
a right to allocution at probation violation hearings and noting the right promotes
“fair standards of procedure, individualized and equitable sentencing, and the
perception of fairness in the judicial system overall”); Sellman v. State, 423 A.2d
974 (Md. Ct. Spec. App. 1981) (extending the right to allocution to probation
violation hearings where an original sentence is executed). Some states do not afford
a defendant a right to allocution when there is an execution of an original sentence
and only afford that right when the sentence is new or deferred. See State v. Nez, 950
P.2d 1289, 1298 (Idaho Ct. App. 1997) (concluding that a right to allocution exists
when a sentence is new or deferred, but not when a trial court reinstates a previous
sentence); see also Vicory v. State, 802 N.E. 2d 426, 430, (Ind. 2004) (holding that
a defendant has a right to allocution prior to a new sentence). Given the importance
of providing defendants equitable procedures in all aspects of sentencing and the
practical and symbolic significance of allocution under New Mexico law, we adopt
the view that the right to allocution applies even when an original sentence is
executed.

12
Defendant’s original sentence in full, stating, “Your probation will be revoked in all	1
cases; you’ll do your time in the department of corrections.” By failing to advise	2
Defendant that he had the right to personally address the court before the court	3
proceeded to disposition, the court denied Defendant his right of allocution.2
4
{14} 	The State argues that Defendant did nothing to indicate that he wished to	5
speak before the disposition and that his request to say something after the court	6
announced its disposition was only an expression of desire “to ask a question[.]”	7
Nevertheless, whether a defendant’s right of allocution is violated is not contingent	8
on whether he or she asks for permission to speak or otherwise makes clear that he	9
or she wishes to speak. It is the duty of the court to inform a defendant of his or her	10
right to allocution, and when, as in this case, the district court does not fulfill this	11
duty, the sentence is invalid. See Tomlinson, 1982-NMSC-074, ¶¶ 11-12 (rejecting	12
2 We note that Defendant filed a motion for reconsideration of the sentence on
March 19, 2018. The district court held a hearing on Defendant’s motion, wherein
Defendant requested that he be allowed to enter a treatment program for substance
abuse; the district court denied Defendant’s motion. In its answer brief, the State
argues that during the hearing, “Defendant had and exercised ample opportunities to
express any and all arguments and reasons for mitigation in the [d]istrict [c]ourt’s
disposition.” Aside from this one statement, the State failed to further develop an
argument and altogether failed to cite any authority supporting its contention that the
hearing on Defendant’s motion for reconsideration potentially cured the error at the
probation violation hearing. Accordingly, we decline to address this argument
further. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court
has no duty to review an argument that is not adequately developed.”); see also In
re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (explaining
that issues raised in appellate briefs which are unsupported by authority will not be
reviewed on appeal).

13
the state’s argument that “failure to permit the defendant to speak before sentence is	1
imposed is harmless error” because a failure to offer the right to allocution “renders	2
the sentence invalid”); Ricky G., 1990-NMCA-101, ¶ 7 (“[We have] explicitly	3
interpreted Tomlinson to require that a defendant be invited to address the court	4
directly.”); Setser, 1997-NMSC-004, ¶ 20 (“[I]n cases involving felony convictions,	5
the trial judge must give the defendant an opportunity to speak before he pronounces	6
sentence.” (internal quotation marks and citation omitted)). In this case, the district	7
court only invited Defendant to speak during the phase of the proceedings that	8
pertained to whether Defendant had committed the alleged probation violations and	9
never advised him of his right to address the court during the disposition. We hold	10
that this violated Defendant’s right to allocution, and we accordingly reverse and	11
remand for the district court to hold a new hearing to determine an appropriate	12
disposition for the probation violation.3
13
3 Defendant additionally argues that the district court abused its discretion at
his initial sentencing by sentencing him to more than five years of probation,
contrary to NMSA 1978, Section 31-20-5(A) (2003) (providing that “the total period
of probation for the district court shall not exceed five years”). While the State agrees
Defendant’s initial sentence to more than five years of probation was error, the State
argues that the legality of Defendant’s initial probationary sentence is moot because
Defendant is no longer on probation. Because we are remanding for a new hearing
on the appropriate disposition for the probation violation, we do not decide the issue
of whether Defendant’s initial sentence was in error. See State v. Favela, 2013-
NMCA-102, ¶ 13, 311 P.3d 1213 (“[A] reviewing court generally does not decide
academic or moot questions[.]” (internal quotation marks and citation omitted)). We
do, however, share the parties’ concerns about Defendant’s initial sentence and trust
the district court to proceed with caution on remand.

14
III. 	Witness Testimony at the Probation Violation Hearing	1
{15} 	Defendant argues his constitutional right to due process was violated by the	2
district court’s refusal to allow him to present his mother as a witness during the	3
probation violation hearing. The State contends that Defendant failed to preserve his	4
due process argument during the disposition phase of the probation violation	5
hearing. We agree with the State.	6
{16} 	Defendant claims he preserved his argument when he attempted to call his	7
mother as a witness at the end of the evidentiary phase of the probation violation	8
hearing. Defendant wished to have his mother testify that she could provide financial	9
assistance for him to enter a residential treatment program. Based on our review of	10
the record, the district court did not allow his mother to testify as to whether	11
Defendant violated his probation because his mother’s testimony did not have	12
“anything to do with the violation.” The district court concluded that the proffered	13
testimony 	had 	no 	bearing 	on 	whether 	Defendant 	violated 	curfew 	or 	used	14
methamphetamine. When the district court proceeded to the disposition phase—	15
sentencing Defendant on the probation violation—Defendant did not request that his	16
mother be permitted to provide a statement. And Defendant did not object on due	17
process grounds at any time during the probation violation hearing.4 Rule 12-321(A)	18
4 In addition, Defendant does not argue fundamental error on appeal and fails
to develop an argument on that basis, thus we decline to address it. Rule 12-

15
(“To preserve a question for review it must appear that a ruling or decision by the	1
[district] court was fairly invoked.”); see State v. Riley, 2010-NMSC-005, ¶ 24, 147	2
N.M. 557, 226 P.3d 656 (“[A]n objection must be made with sufficient specificity	3
to alert the mind of the trial court to the claimed error[.]” (internal quotation marks	4
and citation omitted)). Defendant failed to preserve his due process argument below,	5
and hence, we will not address it on appeal. See State v. Sandoval, 2003-NMSC-027,	6
¶ 16, 134 N.M. 453, 78 P.3d 907 (declining to address an unpreserved argument on	7
appeal).	8
IV. 	Ineffective Assistance of Counsel Claim	9
{17} 	Lastly, Defendant argues he was deprived effective assistance of counsel	10
when his attorney did not move to withdraw his plea after the district court imposed	11
a sentence of probation during the initial sentencing. Defendant also argues he was	12
prejudiced by entering into the plea agreement because “his lawyer told him that he	13
would be able to go to a treatment program of his choice.” “For a successful	14
ineffective assistance of counsel claim, a defendant must first demonstrate error on	15
the part of counsel, and then show that the error resulted in prejudice.” State v.	16
Crocco, 2014-NMSC-016, ¶ 12, 327 P.3d 1068 (internal quotation marks and	17
citation omitted). “If facts necessary to a full determination are not part of the record,	18
321(B)(2)(c) NMRA (recognizing that appellate courts have discretion in addressing
issues involving fundamental error).

16
an ineffective assistance claim is more properly brought through a habeas corpus	1
petition, although an appellate court may remand a case for an evidentiary hearing	2
if the defendant makes a prima facie case of ineffective assistance.” Id. ¶ 14 (internal	3
quotation marks and citation omitted). The burden of establishing a prima facie case	4
of ineffective assistance of counsel rests with the defendant. Id.	5
{18} 	In this case, Defendant’s arguments are sparse, and he does not adequately	6
cite the record to support his arguments. As such, Defendant has failed to establish	7
a prima facie case of ineffective assistance and we decline to address his arguments	8
further. See Rule 12-318(A)(4) NMRA (describing that an argument must contain	9
proper citations to “authorities, record proper, transcript of proceedings, or exhibits	10
relied on”). However, Defendant may file a habeas petition where he can seek to	11
develop an adequate record. See State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278	12
P.3d 517 (noting appellate courts prefer ineffective assistance of counsel claims to	13
“be brought up under a habeas corpus proceeding so that the defendant may actually	14
develop the record”).	15
CONCLUSION	16
{19} 	We affirm the district court’s finding that Defendant violated his probation,	17
but we reverse the disposition of the probation violation and remand for a new	18
disposition hearing during which Defendant may exercise his right to allocution.	19

17
{20} 	IT IS SO ORDERED.	1
_____________________________	2
BRIANA H. ZAMORA, Judge	3
WE CONCUR:	4
_________________________________	5
JENNIFER L. ATTREP, Judge	6
_________________________________	7
ZACHARY A. IVES, Judge	8