June 11, 2014 – State of New Mexico v. Jessie Paul Sosa, No. 32577

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	June 11, 2014
NO. 32,577
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JESSIE PAUL SOSA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
Angelica Hall
Albuquerque, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	The legal issue presented in this appeal is whether a district court can exercise
jurisdiction over a defendant after the expiration of a probationary term for the limited
purpose of determining fugitive status under NMSA 1978, Section 31-21-15(C)
(1989) when the defendant is returned to custody in New Mexico prior to the
expiration of the original probationary term. We hold that it can and that the district
court did not err in determining that Defendant Jessie Paul Sosa had been a fugitive
from justice for a portion of his probationary term, in denying credit for the time
Defendant was a fugitive, and thereby extending its jurisdiction over Defendant. We
also hold that the district court applied the appropriate test to determine fugitive status
in this case and that its finding concerning fugitive status was supported by sufficient
evidence. We affirm the district court’s revocation of probation.
BACKGROUND
{2} 	Defendant was sentenced on April 3, 2007 to twenty-four years of incarceration
with two years of parole. The court suspended the sentence and ordered Defendant
to be placed on five years of supervised probation with a credit of one hundred and
three days of pre-sentence confinement. 	On December 27, 2010, the State filed a
petition to revoke Defendant’s probation in which, among other violations, it alleged

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that Defendant failed to report to his probation officer on October 20, 2010 and that
Defendant was a “fugitive from justice because a warrant for his return cannot be
served.” A bench warrant was issued on December 28, 2010 and, on January 3, 2011,
the warrant was entered into the National Crime Information Center database. On July
16, 2011, Defendant was arrested in the state of Georgia and, on August 4, 2011, he
was returned to custody in New Mexico. A hearing on the State’s petition to revoke
Defendant’s probation was set for August 31, 2011. Ultimately, the hearing was not
held until almost one year later, on August 1, 2012. Among the reasons for the delay
were two motions to continue by Defendant, one of which included Defendant’s
waiver of time requirements to adjudicate the probation violation.
{3} 	On July 30, 2012, Defendant filed a motion to dismiss the State’s petition to
revoke probation. Defendant argued that the State’s petition to revoke probation must
be dismissed because the district court lost jurisdiction to revoke his probation on
December 23, 2011, when his original probation term of five years less one hundred
and three days expired. Defendant argued that under State v. Lara, 2000-NMCA-073,
¶ 11, 129 N.M. 391, 9 P.3d 74, the court could not revoke Defendant’s probation after
December 23, 2011, even for probation violations committed and revocation motions
filed prior to that date.

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{4} 	At the August 1, 2012 hearing, the State argued that the district court retained
jurisdiction because Defendant was a fugitive from October 20, 2010 to August 4,
2011 and, therefore, Defendant’s term of probation was tolled between those dates.
Defendant initially disputed the tolling dates offered by the State, asserting that he
could not be declared a fugitive prior to the December 28, 2010 warrant. Defendant
changed his position later in the hearing; he proffered to the court an arrest order
issued by the Department of Corrections Adult Probation and Parole on October 15,
2010 and conceded that this order provided a basis for finding that Defendant was a
fugitive from justice. The State offered to present evidence of its attempts to serve
Defendant, but Defendant stated that he would not dispute those efforts. The court
subsequently found that by stipulation of the parties the State was “due and diligent
in its efforts to prepare and serve an arrest warrant on . . . Defendant.” 	The court
further found that Defendant was a fugitive from October 20, 2010 to August 4, 2011,
tolled Defendant’s time served on probation for that period, and denied Defendant’s
motion to dismiss for lack of jurisdiction. 	It revoked Defendant’s probation and
sentenced him to ten years of incarceration to be followed by five years of supervised
probation.
{5} 	Defendant timely appealed. He argues that the district court committed error
when it exercised jurisdiction to toll his probation because he was back in custody

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when the original period of his probation expired and, on the date of expiration, the
court had yet to revoke his probation. Defendant also argues that the court failed to
apply the appropriate test to determine whether he was a fugitive and that the finding
that he was a fugitive was not supported by substantial evidence.
STANDARD OF REVIEW
{6} 	In relevant part, Section 31-21-15(C) states that a probationer is a fugitive “[i]f
it is found that a warrant for the return of a probationer cannot be served[.]”
Defendant’s jurisdictional challenge requires that we determine whether the district
court properly applied Section 31-21-15(C) to the facts of this case. 	Defendant
thereby raises a question of law that we review de novo. 	See State v. Neal, 2007-
NMCA-086, ¶ 16, 142 N.M. 487, 167 P.3d 935 (holding that review of the
construction of a sentencing statute is de novo). A jurisdictional challenge may be
raised “at any time, even after judgment and for the first time on appeal.” 	N.M.
Livestock Bd. v. Dose, 1980-NMSC-022, ¶ 5, 94 N.M. 68, 607 P.2d 606.
{7} 	A district court’s determination of whether a probationer is a fugitive must be
supported by substantial evidence. 	State v. Jimenez, 2004-NMSC-012, ¶ 14, 135
N.M. 442, 90 P.3d 461. “Substantial evidence is relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.” State v. Rojo, 1999-NMSC-
001, ¶ 19, 126 N.M. 438, 971 P.2d 829. When we review for substantial evidence, we

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“resolve all disputed facts in favor of the [district] court’s decision, indulge all
reasonable inferences in support of that decision, and disregard all inferences to the
contrary.” 	Jimenez, 2004-NMSC-012, ¶ 14 (internal quotation marks and citation
omitted).
TOLLING WAS APPROPRIATE UNDER SECTION 31-21-15
{8} 	A court generally loses jurisdiction to revoke probation when the term of
probation expires, even when the probation violation took place during the term of
probation and a motion to revoke probation was filed prior to the expiration of the
probationary term. See State v. Ordunez, 2012-NMSC-024, ¶ 9, 283 P.3d 282 (stating
that our statutes have for decades been interpreted by our courts “as depriving courts
of jurisdiction to revoke probation or to impose any sanctions for violation of
probation conditions once the probationary period has expired, even for violations
occurring and revocation motions filed before expiration of probation”). Accordingly,
a motion to revoke probation must be heard and ruled upon prior to the end of a
defendant’s term of probation. See Lara, 2000-NMCA-073, ¶ 12 (“If the [s]tate seeks
a certificate of unsatisfactory completion, it must obtain an order of the court prior to
the end of the defendant’s probation term.”). However, our Legislature has provided
an exception. 	Under Section 31-21-15(C), a court may effectively toll the
probationary term for the time a probationer is found to be a fugitive from justice. A

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probationer is a fugitive when the State can prove either that it unsuccessfully
attempted to serve a warrant on the probationer, or any such attempt would have been
futile. Jimenez, 2004-NMSC-012, ¶ 8.
{9} 	Under our case law, a district court retains jurisdiction for the purpose of
applying Section 31-21-15(C) when a fugitive probationer is arrested and brought
before the court after the expiration of the original term of probation. 	See State v.
Apache, 1986-NMCA-051, ¶ 12, 104 N.M. 290, 720 P.2d 709 (holding that a court
retains jurisdiction to determine fugitive status “regardless of whether this occurs
before or after the date on which probation was originally to have expired”). This
case presents a related question. 	Defendant argues as a matter of law that when a
probationer who was a fugitive is returned to the jurisdiction of the court prior to the
end of the term of probation, the court loses jurisdiction even to determine fugitive
status under Section 31-21-15(C) upon the expiration of the probationary period.
Under this theory, Defendant argues that because he was returned to the jurisdiction
prior to the December 23, 2011 expiration of his original probationary term, and the
court did not issue a ruling determining that he had been a fugitive by the date his
probationary period ended, the court’s jurisdiction over Defendant ended when his
probationary term ended—on December 23, 2011.

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{10} 	As we have noted, Section 31-21-15(C) provides that if a warrant for the return
of a probationer cannot be served, the probationer is a fugitive. Defendant argues for
a narrow construction of Section 31-21-15(C), under which a court could never retain
jurisdiction to determine fugitive status after the end of the probationary period when
a warrant can be served at the time the original probationary period ends. Defendant
grounds his interpretation in (1) the plain language of Section 31-21-15(C), which ties
fugitive status to the State’s inability to serve a warrant, and (2) a sentence from our
unpublished memorandum opinion in State v. Torres, in which this Court stated that
“[o]nce the [s]tate failed to prove that [the defendant] had been a fugitive during the
final portion of his probation, it effectively conceded that jurisdiction to revoke
probation was lost.” No. 29,067, mem. op. *4 (N.M. Ct. App. Sept. 8, 2010) (non-
precedential). Defendant further argues that this case is controlled by Lara, Ordunez,
and other cases that articulate the general rule that a court loses jurisdiction to issue
an order revoking probation upon expiration of the probationary period. Defendant’s
view that this case is within the ambit of the Lara line of cases follows from
Defendant’s proposed reading of Section 31-21-15(C). 	But, for the reasons that
follow, we cannot agree with Defendant’s narrow construction.
{11} 	The touchstone of our interpretation of Section 31-21-15(C) is to give effect to
the intent of the Legislature. Griego v. Oliver, 2014-NMSC-003, ¶ 20, 316 P.3d 865.

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The purpose of Section 31-21-15(C) is to “ensure that probationers could not defeat
the 	[district] 	court’s 	authority 	to 	revoke 	probation 	by 	absconding 	from 	the
jurisdiction.” Apache, 1986-NMCA-051, ¶ 10. Defendant’s proposed construction
of Section 31-21-15(C) would undermine this legislative purpose in at least three
ways. First, under Defendant’s proposed construction, a probationer who absconded
from the court’s jurisdiction such that a warrant could not be served, but purposely
returned to custody without sufficient time for court to hold a hearing and issue an
order on the probationer’s fugitive status—a return, such as, the day before the
expiration of probation—would defeat the trial court’s authority to revoke probation
by absconding. We are confident that our Legislature did not intend to condone or
authorize such behavior or results. 	See State v. Davis, 2003-NMSC-022, ¶ 13, 134
N.M. 172, 74 P.3d 1064 (stating that we do not construe statutes in a manner leading
to absurd results). Second, Defendant’s proposed construction would lead to arbitrary
results, and such constructions are disfavored. 	Under Defendant’s construction of
Section 31-21-15(C), a fugitive who is returned to custody in New Mexico just prior
to the end of a probationary term is likely to escape the consequence of absconding,
whereas one who returned to the jurisdiction well before or just after the end of a
probationary term would not. Cf. State v. Frazier, 2007-NMSC-032, ¶ 10, 142 N.M.
120, 164 P.3d 1 (declining to interpret our felony murder statute to lead to arbitrary

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outcomes without language from the Legislature indicating that it intended such a
result). Third, Defendant’s construction of Section 31-21-15(C) runs counter to the
deeply-rooted maxim that one should not benefit from one’s own wrongdoing. See
Proper v. Mowry, 1977-NMCA-080, ¶ 69, 90 N.M. 710, 568 P.2d 236 (stating that
“[w]e have consistently followed the ethical maxim that no party can profit by his own
wrong” (internal quotation marks and citation omitted)).
{12} 	Defendant’s reliance on Torres is misplaced. The facts in Torres are different
from the facts in this case. In Torres, the probationer became an absconder toward the
end of his probationary period and remained so until well after his original
probationary term ended. No. 29,067, mem. op. *1. Because the State was unable to
prove sufficient effort on its part to serve a warrant or the futility of such efforts, the
probationer in Torres was held not to be a fugitive. 	Id. *3. 	The State asked for a
remand to determine the appropriate amount of credit due the probationer, given the
fact that he was not a fugitive and, therefore, tolling was disallowed. 	Id. *4. This
Court refused because, without tolling, there was nothing to calculate and no basis for
further 	jurisdiction. 	Id. 	The 	language 	from 	Torres 	on 	which 	Defendant
relies—“[o]nce the [s]tate failed to prove that [the defendant] had been a fugitive
during the final portion of his probation, it effectively conceded that jurisdiction to
revoke probation was lost”—does not support Defendant’s reading of Section 31-21-

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15(C). 	Id. 	Instead, the language from Torres means that because the facts did not
support a finding that the probationer was a fugitive during the final time period of his
probation when he was an absconder, there was no basis to deny him probationary
credit for that time, and the district court, therefore, lost jurisdiction for anything but
the already-decided hearing on his fugitive status.
{13} 	We recognize the merit of Defendant’s concern that the district court cannot
maintain jurisdiction “for an indefinite duration” after the end of a probationer’s term
of probation for the purpose of determining whether fugitive status allows for tolling.
But this concern is equally present when a probationer is returned to the jurisdiction
after the end of a probationary term. Defendant does not challenge that a court can
determine fugitive status under that circumstance. 	See Apache, 1986-NMCA-051,
¶ 12 (holding that a court retains jurisdiction to determine fugitive status “regardless
of whether this occurs before or after the date on which probation was originally to
have expired”). Similar due process concerns exist whether a probationer is returned
to the jurisdiction before or after the end of the probationary period and, given the
purpose of Section 31-21-15(C), there is no reason to treat the former differently from
the latter. Of course, we agree with Defendant that a court does not retain indefinite
jurisdiction even for the limited purpose of determining fugitive status, but this

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constraint does not mean that we must adopt Defendant’s narrow construction of
Section 31-21-15(C).
{14} 	Section 31-21-15(C) allows a court to exercise jurisdiction over a probationer
after the expiration of the probationary term for the limited purpose of determining
fugitive status even when a fugitive defendant is returned to custody in New Mexico
prior to the expiration of the original probationary term.
THE DISTRICT COURT UTILIZED THE APPLICABLE TEST TO RULE
THAT TOLLING WAS APPROPRIATE
{15} 	Defendant also asserts that the district court committed error when it determined
that Defendant was a fugitive because the court failed to apply the appropriate test.
A probationer is a fugitive only when the State can prove either that: (1) it attempted
to serve a warrant but was unsuccessful, or (2) any such attempt would have been
futile. Jimenez, 2004-NMSC-012, ¶ 8; State v. Thomas, 1991-NMCA-131, ¶ 10, 113
N.M. 298, 825 P.2d 231, overruled on other grounds by Jimenez, 2004-NMSC-012.
Under this test, the State must demonstrate that it was diligent in attempting to bring
the probationer before the court. 	See Jimenez, 2004-NMSC-012, ¶ 8 (“This
test . . . requir[es] the [s]tate to act with due diligence in prosecuting defendants who
violate the terms of their probation[.]”); Neal, 2007-NMCA-086, ¶ 34 (“At a
minimum, the state must present some evidence that ‘raises a reasonable inference that

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the warrant could not be served with reasonable diligence.’” (quoting Thomas, 1991-
NMCA-131, ¶ 16)).
{16} 	The district court explicitly found that the State was “due and diligent” in its
efforts to serve a warrant on Defendant. And although an explicit or formal finding
that a probationer is a fugitive is not required, Thomas, 1991-NMCA-131, ¶ 12, in this
case, the court made such a finding. Defendant has not demonstrated that the court
failed to apply the correct test to determine that Defendant was a fugitive.
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING
{17} 	Defendant lastly contends that the State did not present sufficient evidence for
the court to find that Defendant was a fugitive from justice and not merely an
absconder. 	Defendant’s contention, however, is undermined by the fact that he
forestalled the State’s offer to put on this evidence. The State notified the court that
it had officers present to testify to their efforts to carry out the warrant and was
prepared to offer evidence of its efforts to serve Defendant, but Defendant interrupted,
explicitly conceding the State’s efforts. Additionally, Defendant verbally renounced
his position that tolling applied no sooner than December 2010 while presenting the
arrest order dated October 15, 2010 to the court. The court relied on the stipulation
of the parties to find that the State was due and diligent in its efforts to serve

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Defendant to find that he was a fugitive from October 20, 2010. We therefore decline
to hold that the district court’s finding was unsupported by substantial evidence.
CONCLUSION
{18} 	We affirm the district court’s revocation of Defendant’s probation.
{19} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
LINDA M. VANZI, Judge
________________________________
TIMOTHY L. GARCIA, Judge