February 18, 2013 – State v. Nieto, No. 30,806

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 18, 2013
NO. 	30,806
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
KRYSTAL NIETO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Robert M. Schwartz, District Judge
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	Defendant appeals the district court’s judgment and probated sentence, which
orders that Defendant’s 103-day-period of pre-sentence confinement be credited only
to a future sentence of incarceration arising from a violation of the terms and
conditions of her probation. Defendant contends that the district court misconstrued
NMSA 1978, Section 31-20-12 (1977) when it did not deduct pre-sentence
confinement credit from the length of probation imposed in lieu of an incarcerative
sentence it determined to be conditionally unwarranted. We hold that, under NMSA
1978, Section 31-20-5 (2003), the district court’s sentencing discretion included the
prerogative of imposing any duration of probation, up to five years, not subject to
mandatory diminution ascribed by the number of days Defendant was imprisoned
immediately following the commission of the offense for which she ultimately
accepted responsibility.
I. 	BACKGROUND
{2} 	After hitting a victim with her car, Defendant spent 103 days in custody while
her case was pending. Subsequently, Defendant entered into a plea agreement with
the State, pursuant to which she pled guilty to aggravated battery with a deadly
weapon. 	See NMSA 1978, § 30-3-5 (1969) (defining aggravated battery). 	Her

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ensuing sentence of three years’ imprisonment was discretionarily suspended by the
district court, and Defendant was ordered to successfully complete a three-year period
of supervised probation. Accordingly, she is subject to incarceration and any factually
applicable sentencing enhancements only in the event her probation is revoked. In its
judgment and sentence, the district court additionally ordered that “Defendant, if
imprisoned at any time pursuant to the . . . conviction, shall be given credit for pre-
sentence confinement of 103 days.” (Emphasis added.)
{3} 	Defendant objected to this language, arguing that it conflicted with Section 31-
20-12, which states that “[a] person held in official confinement on suspicion or
charges of the commission of a felony shall, upon conviction of that or a lesser
included offense, be given credit for the period spent in pre[-]sentence confinement
against any sentence finally imposed for that offense.” Defendant contended that in
the event she is never incarcerated for violating her probation, she will never receive
the pre-sentence confinement credit to which she asserts she is statutorily entitled.
Defendant argued that her term of probation constitutes the sentence imposed as a
result of her conviction, and thus is a “sentence finally imposed” to which her credit
must be applied. See § 31-20-12. The State countered that the time-served credit to
be deducted from a “sentence finally imposed” applies only to a sentence of
incarceration. The State added that when an incarcerative sentence is suspended or

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deferred, like Defendant’s, it is not yet “a sentence finally imposed” for purposes of
the statutorily commanded time-served credit. Following argument, the district court
declined to apply pre-sentence confinement credit to the probated sentence it imposed,
reasoning that it was within its discretion to determine the duration of probation
within the statutorily allowable range. Defendant now appeals this ruling, challenging
the length of her probation.
II. 	DISCUSSION
{4} 	At issue is whether, under the statutory framework that governs criminal
sentences in New Mexico, Defendant is entitled to reduce the length of her probation
by the sum of her pre-sentence confinement. Interpretation of a statute is a question
of law that we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379,
1382 (1995). 	“Our primary goal in interpreting a statute is to give effect to the
Legislature’s intent. 	We look first to the words chosen by the Legislature and the
plain meaning of the Legislature’s language.” State v. Martinez, 1998-NMSC-023,
¶ 8, 126 N.M. 39, 966 P.2d 747. “There are two sources of interpretative aid upon
which we can draw other than the language of the statute itself: 	(1) other statutes
containing similar language, and (2) case law applying the statute.” 	State v.
Fellhauer, 1997-NMCA-064, ¶ 5, 123 N.M. 476, 943 P.2d 123. “Statutes concerning

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the same subject matter must be read in connection with each other.” 	State v.
Marquez, 2008-NMSC-055, ¶ 7, 145 N.M. 1, 193 P.3d 548.
{5} 	In addressing this issue, we note that Section 31-20-12 and case law discussing
it shed minimal light on the issue of whether confinement credit is limited in
application to a sentence of confinement, or whether it must likewise be applied to a
probated sentence. Rather, we are aided by our examination of statutes that govern
the district court’s overall authority to suspend a sentence and instead order a period
of probation. Specifically, Section 31-20-5 affords the district court authority to order
probation upon deferral or suspension of the defendant’s sentence of imprisonment.
Section 31-20-5(A) expressly states that “the total period of probation for [the] district
court shall not exceed five years.” In contrast, that same statute states that “the total
period of probation for the magistrate or metropolitan courts shall be no longer than
the maximum allowable incarceration time for the offense or as otherwise provided
by law.” Id. Initially, it is noteworthy that both statutes make clear the Legislature’s
distinction between sentences of incarceration and of probation by the separation of
both punishments within the statutory language. 	We further reason that if the
Legislature intended for a district court defendant’s probation time to be reduced by
pre-sentence confinement credit, it would have likewise drafted the applicable statute
to limit probation periods for district courts to the maximum allowable incarceration

1We note that this Court analyzed Section 31-20-6 rather than Section 31-20-5
in Encinias. The difference is of no consequence to our analysis. Section 31-20-6
expressly provides that courts can “place[ a defendant] on probation under the
supervision, guidance[,] or direction of the adult probation and parole division for a
term not to exceed five years[.]” 	(Emphasis added.) 	The statute merely does not
distinguish between district courts and other courts within the state. Thus, it can be
assumed that the five-year limit on probation time is applicable to all courts in New
Mexico.
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time, as it did for magistrate and metropolitan courts. 	Notably, the Legislature
expressly limited the district court to a total of five probation years, without reference
to maximum incarceration periods.
{6} 	In State v. Encinias, 104 N.M. 740, 726 P.2d 1174 (Ct. App. 1986), we
analyzed a similar issue, where a defendant’s sentence of probation exceeded the
potential length of imprisonment. There, the defendant argued that the district court
erred when it placed him on five years of supervised probation following his
conviction of a fourth degree felony, which carried only a basic sentence of eighteen
months’ imprisonment. Id. at 742, 726 P.2d at 1176. We first noted that previously
repealed legislation “expressly provided that supervised probation [ordered by the
district court] could not exceed the maximum term of incarceration for the offense
committed.” Id. We highlighted the fact that the amended version of NMSA 1978,
Section 31-20-6 (1987, as amended through 2007) 1 “expressly provides for a term of
supervised probation for a period of up to five years.” Encinias, 104 N.M. at 742, 726
P.2d at 1176. We concluded that since the latest expression of legislative intent gave

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the district court discretion to award up to five years of probation, we could not limit
the probation period to the potential term of incarceration. Id. “[S]imply because a
court may lose the authority to incarcerate a probationer upon the expiration of the
underlying term of the suspended sentence, does not render amended Section
31-20-6[(C)] meaningless.” 	Encinias, 104 N.M. at 742, 726 P.2d at 1176 (citation
omitted). Because one of the purposes of probation is to aid in rehabilitation of the
convicted felon, “a defendant may benefit from complying with a supervised term of
probation even where the underlying term of incarceration has expired.” Id.; see State
v. Donaldson, 100 N.M. 111, 119, 666 P.2d 1258, 1266 (Ct. App. 1983) (“The broad
general purposes of probation are education and rehabilitation[.]”). We also explained
that “a defendant may benefit by complying with the terms of probation for the entire
probationary period by demonstrating to the sentencing court that he is a good
candidate for a second term of probation should he subsequently be convicted of a
criminal offense.” Encinias, 104 N.M. at 742, 726 P.2d at 1176.
{7} 	We underscore that “[t]he suspension . . . of a sentence is not a matter of right
but is an act of clemency within the [district] court’s discretion.” State v. Follis, 81
N.M. 690, 692, 472 P.2d 655, 657 (Ct. App. 1970). 	Under Section 31-20-6, the
district court clearly has the discretion to order up to five years of probation,
regardless of whether the potential period of incarceration is less than the probation

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term. 	Because we read Sections 31-20-6 and 31-20-12 in harmony, we cannot
construe Section 31-20-12 to mean that pre-sentence confinement credit must reduce
sentences of probation, as proposed by Defendant. See State v. Lucero, 2007-NMSC-
041, ¶ 8, 142 N.M. 102, 163 P.3d 489 (“We must read statutes harmoniously instead
of as contradicting one another when possible.”). Such a construction ultimately seeks
to limit the probation time ordered by the district court to the period of potential
incarceration, which was clearly not the intention of the Legislature. As we explained
in Encinias, probation serves a rehabilitative purpose that can be achieved even after
the district court loses its authority to incarcerate Defendant for a probation violation.
Such periods of probation are fundamentally distinct from sentences of imprisonment.
{8} 	Therefore, we conclude that it was within the discretion of the district court to
choose to suspend Defendant’s sentence and to decide the parameters of probation
most suitable (within the five-year limit). The pre-sentence confinement credit need
not be credited against the probation time ordered by the district court.
III. 	CONCLUSION
{9} 	For the reasons stated above, we affirm the district court.

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{10} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
JONATHAN B. SUTIN, Judge
_________________________________
CYNTHIA A. FRY, Judge