March 17, 2021- State of New Mexico v. Justin Hansen, No. A-1-CA-37899

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _________________	2
Filing Date: March 17, 2021	3
NO. A-1-CA-37899	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JUSTIN HANSEN,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Cindy Leos, District Judge	11
Hector H. Balderas, Attorney General	12
Emily C. Tyson-Jorgenson, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Santa Fe, NM	17
Luz C. Valverde, Assistant Appellate Defender	18
Albuquerque, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 3/17/2021 2:50 PM

OPINION	1
IVES, Judge.	2
{1} 	Defendant Justin Hansen pleaded no contest to two second-degree felonies,	3
attempted first-degree murder contrary to NMSA 1978, Sections 30-28-1(A) (1963)	4
and 30-2-1(A)(2) (1994) and aggravated burglary with a deadly weapon contrary to	5
NMSA 1978, Section 30-16-4(A) (1963). On appeal, Defendant argues that his	6
convictions are barred by the statute of limitations and that, if his convictions stand,	7
he should receive presentence confinement credit for time spent on house arrest. We	8
affirm Defendant’s convictions because he waived his statute of limitations defense	9
by entering a no contest plea. We reverse Defendant’s sentence because the district	10
court erroneously denied him credit. We discuss Defendant’s arguments pertaining	11
to his convictions and sentence in turn, first describing the pertinent background and	12
then explaining our analysis.	13
I. 	Defendant Waived His Statute of Limitations Defense	14
A. 	Background	15
{2} 	The event underlying this case is a horrific attack inflicted on Victim, a high	16
school student at the time, with a shovel at her family’s home in the fall of 2008.	17
The police recovered DNA evidence from the scene of the crime. On December 28,	18
2010, the State filed a “John Doe” grand jury indictment describing the perpetrator’s	19
DNA profile and physical appearance. After the State obtained a sample of	20

2
Defendant’s DNA, which testing demonstrated matched the perpetrator’s DNA	1
profile described in the indictment, Defendant was arrested on July 6, 2017. The	2
State subsequently filed an amended indictment naming Defendant and charging him	3
with six crimes: kidnapping (physical injury) contrary to NMSA 1978, Section 30-	4
4-1(A)(4) (2003), a first-degree felony; attempted first-degree murder contrary to	5
Sections 30-28-1(A) and 30-2-1(A), a second-degree felony; aggravated burglary	6
(deadly weapon) or, in the alternative, aggravated burglary (battery) contrary to	7
Section 30-16-4, both second-degree felonies; aggravated battery with a deadly	8
weapon or, alternatively, resulting in great bodily harm contrary to NMSA 1978,	9
Section 30-3-5(A), (C) (1969), both third-degree felonies; aggravated assault	10
(deadly weapon)1 contrary to NMSA 1978, Section 30-3-2(A) (1963), a fourth-	11
degree felony; and child abuse contrary to NMSA 1978, Section 30-6-1(D)(1) (2005,	12
amended 2009) or, alternatively, Section 30-6-1(D)(2), both first-degree felonies	13
under Section 30-6-1(E).	14
{3} 	Defendant moved to dismiss all counts charging him with second-, third-, or	15
fourth-degree felonies, asserting that the statute of limitations had run on those	16
counts before the State filed an indictment that named him as the defendant. See	17
generally NMSA 1978, § 30-1-8(A), (B) (2005, amended 2009) (providing that	18
1 The charge of aggravated assault related to a crime committed against
Victim’s mother.

3
“[n]o person shall be prosecuted, tried or punished in any court of this state unless	1
the indictment is found or information or complaint is filed” within five years for	2
third- or fourth-degree felonies and six years for second-degree felonies). The parties	3
argued the motion in a hearing at which Defendant was present. The district court	4
denied the motion but granted leave to file an application for interlocutory appeal,	5
and Defendant petitioned this Court for interlocutory review or a writ of error. This	6
Court declined to review the district court’s order.	7
{4} 	Defendant and the State then entered an unconditional plea agreement in	8
which Defendant agreed to plead no contest to the attempted first-degree murder and	9
aggravated burglary with a deadly weapon charges, and the State agreed to dismiss	10
all other charges. Defendant also agreed to “give[] up all motions, defenses,	11
objections, or requests [that he] ha[d] made or could make concerning the [district	12
c]ourt’s entry of judgment . . . if that judgment [was] consistent with [the]	13
agreement.” The district court approved the agreement and entered a judgment and	14
sentence finding Defendant guilty of the two offenses to which he pleaded no	15
contest.	16
B. 	Discussion	17
{5} 	A valid guilty or no contest plea “ordinarily constitutes a waiver of the	18
defendant’s right to appeal [a] conviction on other than jurisdictional grounds.” State	19
v. Hodge, 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1. Before a trial court	20

4
may accept and enter judgment on a defendant’s plea, however, the court must, as a	1
matter of federal constitutional law, ensure that the plea is entered knowingly and	2
voluntarily and that this is affirmatively shown by the record. See State v. Garcia,	3
1996-NMSC-013, ¶ 9, 121 N.M. 544, 915 P.2d 300. Adopting the “waiver approach”	4
to statutes of limitations in State v. Kerby, 2007-NMSC-014, 141 N.M. 413, 156	5
P.3d 704, our Supreme Court held that criminal defendants may waive a statute of	6
limitations defense but, as a matter of state law, may do so only if the defendant’s	7
relinquishment of the defense comports with similar requirements: “[T]he statute of	8
limitations is a substantive right that may only be waived by a defendant after	9
consultation with counsel, and only if the waiver is knowing, intelligent, and	10
voluntary.” Id. ¶ 18; see also State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993)	11
(“[A] waiver of the statute of limitations will not be presumed where there is no	12
evidence in the record to indicate that the defendant was made aware of the issue.”),	13
cited approvingly by Kerby, 2007-NMSC-014, ¶ 17. Thus, the question here is	14
whether the record affirmatively shows that Defendant knowingly and voluntarily	15
waived the statute of limitations by entering his no contest pleas. We hold that it	16
does.	17
{6} 	Defendant’s challenge to the validity of his waiver is narrow. Defendant does	18
not contend that he was unaware of the statute of limitations governing the two	19
second-degree felonies to which he pleaded no contest or the legal effect of the	20

5
statute on the State’s ability to prosecute him for those offenses if the statute applied.	1
Nor does Defendant assert that he did not understand the statute of limitations to be	2
one of the “defenses” he expressly gave up in pleading no contest. The absence of	3
such arguments is understandable; after all, Defendant litigated the statute’s	4
applicability below, attended a hearing on the issue, and unsuccessfully sought	5
interlocutory review of the district court’s adverse ruling in this Court.	6
{7} 	Consequently, the sole basis for Defendant’s claim that he did not knowingly,	7
intelligently, and voluntarily waive the statute of limitations is the novel argument	8
that he could not do so because New Mexico’s appellate courts have yet to address	9
whether a “John Doe” DNA indictment qualifies as an “indictment” within the	10
meaning of New Mexico’s general criminal statute of limitations, Section 30-1-8. It	11
is tempting to dismiss this argument out of hand. Cf. Halsey v. Clarke, 821 F. Supp.	12
1319, 1321 (D. Neb. 1993) (“All decisions to waive a jury trial are based upon some	13
uncertainties of what the evidence will be at a future trial. A defendant simply cannot	14
insist that unless he knows what evidence will be received there can be no voluntary	15
waiver.”), aff’d on other grounds, 5 F.3d 531 (8th Cir. 1993). But because of the	16
importance of the substantive right involved and the dearth of New Mexico case law	17
addressing waiver of the statute of limitations, we provide a more fulsome	18
explanation of why Defendant’s argument fails.	19

6
{8} 	In adopting the waiver approach, our Supreme Court struck a balance between	1
the critical policies advanced by the statute of limitations and a recognition that the	2
jurisdictional approach—an unyielding enforcement of the limitations time bar—	3
may work to the detriment of the accused. See Kerby, 2007-NMSC-014, ¶ 15	4
(discussing the “jurisdictional approach,” under which the statute of limitations “is	5
a jurisdictional limit on the subject matter [jurisdiction] of a court that cannot be	6
waived or forfeited”); id. (noting that one reason for shifts toward a waiver approach	7
in other jurisdictions “appears to be [that] the primary policy of a criminal statute of	8
limitations, to protect the defendant, is not served by strict adherence to a	9
jurisdictional approach”); cf. Adams v. United States ex rel. McCann, 317 U.S. 269,	10
279 (1942) (“What were contrived as protections for the accused should not be	11
turned into fetters.”). The waiver approach guarantees that all defendants have an	12
opportunity to raise a statute of limitations defense if they wish to do so. Because	13
the approach requires the statute to be knowingly, intelligently, and voluntarily	14
waived, it operates as an absolute shield against the loss of that defense through	15
inadvertence. See Kerby, 2007-NMSC-014, ¶ 19 (“[T]he protection of the statute of	16
limitations is too important to be unintentionally lost.” (internal quotation marks and	17
citation omitted)). To further safeguard against unknowing loss of the statute’s	18
protection, our Supreme Court held in Kerby that waivers are valid only if they are	19
made after consultation with counsel. Id. ¶ 18.	20

7
{9} 	At the same time, the Kerby Court recognized that the ability to waive	1
objection to an untimely prosecution may enable a defendant to achieve an outcome	2
more favorable, from the defendant’s perspective, than that which could be obtained	3
if the statute’s bar was applied. See id. ¶ 15 (“[C]ourts have moved away from the	4
jurisdictional view and toward deciding that a defendant may waive the defense if it	5
is beneficial to him or her.”). For example, a defendant who is fearful that a jury will	6
convict may hope to avoid the harsher penalties associated with conviction on a	7
greater offense that is not time barred by giving the jury the option of finding guilt	8
on a lesser offense that is time barred. See generally People v. Lohnes, 351 N.Y.S.2d	9
279, 282 (Sup. Ct. 1973) (“Criminal defendants . . . would suffer marked injustice	10
from being denied this option. It would have the practical effect . . . of forcing	11
convictions in a higher degree where guilt [of an offense] is plain, but where . . . a	12
jury might convict for the lesser included degree of a given crime.”). 2 In truly	13
2 Our courts have yet to decide whether a defendant’s request for a lesser
included offense instruction is equivalent to the knowing, intelligent, and voluntary
waiver required under New Mexico’s waiver doctrine. Compare Tucker v. State, 459
So. 2d 306, 309 (Fla. 1984) (“[T]he mere request for instructions on time-barred
lesser-included offenses is not an effective waiver. . . . The statute of limitations
defense is an absolute protection against prosecution or conviction. Before allowing
a defendant to divest himself of this protection, the court must be satisfied that the
defendant himself, personally and not merely through his attorney, appreciates the
nature of the right he is renouncing and is aware of the potential consequences of his
decision.”), with State v. Leisure, 796 S.W.2d 875, 879 (Mo. 1990) (en banc) (“[I]t
would be jarringly inconsistent to allow [a] defendant the option of gambling on the
jury’s sense of mitigation or mercy by submitting a [lesser included offense]
instruction . . . and then having received such merciful consideration at the hands of

8
unusual cases, perhaps, a defendant might decide to forgive the state’s failure to	1
timely prosecute in order to “vindicate [the defendant’s] good name” in a trial on the	2
merits. Padie v. State, 594 P.2d 50, 56 n.16 (Alaska 1979), cited by Pearson, 858	3
S.W.2d at 887 n.8, cited in turn by Kerby, 2007-NMSC-014, ¶ 17. Finally, if the	4
state provides the option, a defendant may avoid prosecution for an offense or	5
offenses on which the statute of limitations has not run by pleading guilty or no	6
contest to a different, time-barred offense. In recognition of these and other potential	7
benefits, our Supreme Court rejected the jurisdictional approach under which a	8
defendant cannot waive the statute of limitations under any circumstance.	9
{10} 	Yet, in none of those situations is a defendant guaranteed that the decision to	10
waive will be a good one. A defendant who is convicted of a lesser offense after	11
requesting that the jury be instructed on it might learn in postverdict discussions with	12
jurors that the jury would have voted to acquit if convicting on the greater offense	13
was its only alternative. A defendant determined to demonstrate his or her innocence	14
in open court will be bitterly disappointed if the jury returns a guilty verdict. And a	15
defendant who believes after consultation with competent counsel that the state will	16
be able to prove charges that are not time barred may well regret the decision to	17
waive the statute of limitations and plead guilty or no contest to different offenses if	18
his peers, reverse his field, assert the bar and ask the [c]ourt on appeal to free him
from all accountability.”). And we do not resolve this issue today.

9
another attorney later advises the defendant that the prosecution’s case was deficient,	1
or if the defendant receives a harsher sentence than anticipated.	2
{11} 	At its core, Defendant’s argument amounts to nothing more than a complaint	3
that greater clarity as to whether the statute of limitations barred prosecution would	4
have affected his decision to waive the statute by entering a no contest plea. But	5
although the perceived strength or weakness of a statute of limitations defense may	6
be a factor in a defendant’s decision to waive or stand on that defense, it does not	7
follow that the defense can be knowingly, intelligently, and voluntarily waived only	8
if its merits are clear. In the first place, a defendant never has absolute assurance that	9
a statute of limitations defense will be successful until the last tribunal that addresses	10
the issue has weighed in. See McMann v. Richardson, 397 U.S. 759, 771 (1970)	11
(“[U]ncertainty is inherent in predicting court decisions[.]”); id. at 782 n.5 (Brennan,	12
J., dissenting) (“[T]he risk of error or adverse result is inherent in every criminal	13
proceeding[.]”); cf. Demers v. Gerety, 1978-NMCA-019, ¶ 2, 92 N.M. 749, 595 P.2d	14
387 (“Litigation is a slippery experience when appeals are reversed. Everything is	15
uncertain until the case is put to rest.”), rev’d on other grounds, 1978-NMSC-097,	16
92 N.M. 396, 589 P.2d 180. Preventing waiver of the statute until a defendant has a	17
conclusive determination on the merits would place a straightjacket on the waiver	18
doctrine to the detriment of defendants who fear they will end up with an adverse	19
determination on the issue. The state could hardly be blamed for refusing to engage	20

10
in a plea negotiation in which a plea to a possibly time-barred offense was used as a	1
bargaining chip if there is a risk that a defendant’s unconditional plea will be	2
transformed into a conditional one after the fact. See generally Hodge, 1994-NMSC-	3
087, ¶ 1 (“A conditional plea agreement is an agreement between the prosecutor and	4
the defendant in a criminal case, under which, subject to the trial court’s approval,	5
the defendant agrees to plead guilty [or no contest] to the offense charged but	6
reserves one or more specific issues for appellate review following conviction.”).	7
Similarly, trial courts would be forced to reject a defendant’s expressed willingness	8
to forego a limitations defense in order to have a jury instructed on a possibly time-	9
barred lesser included offense, leaving the defendant subject to the jury’s choice	10
between the two extremes of conviction on the greater offense and acquittal. This	11
cramped interpretation of the waiver doctrine cannot be squared with the reasons	12
given for its adoption by our Supreme Court in Kerby. See 2007-NMSC-014, ¶ 15.	13
{12} 	Moreover, Defendant’s argument necessarily rests on the premise that he	14
would not have pleaded no contest if the statute of limitations applied. As the waiver	15
examples discussed above demonstrate, however, the possibility that a defendant,	16
with the benefit of hindsight, would have chosen not to waive the statute of	17
limitations is no basis for concluding that a waiver is invalid. Whether a waiver is	18
knowing, intelligent, and voluntary depends on the defendant’s awareness of the	19
right that is being waived—the right not to be prosecuted or convicted for time-	20

11
barred offenses—and the potential costs and benefits of making the choice to waive;	1
the retrospective advisability of the defendant’s decision is irrelevant. Given the	2
critical and absolute protection afforded defendants by the statute of limitations, the	3
possibility that a defendant will live to regret waiving the statute inheres in the very	4
concept of a waiver.	5
{13} 	In entering his plea, Defendant avoided the risks of trial and an appeal with	6
an uncertain outcome on the charges that the State dismissed pursuant to the plea	7
agreement. That he did not know whether he stood to gain by taking this course is	8
immaterial; it is enough that Defendant was, as he does not dispute, advised of the	9
statute of limitations, the factual and legal basis for asserting it, and the range of	10
outcomes that could result from its assertion or waiver. Nothing in Kerby suggests	11
that the validity of a waiver turns on whether an accused had clarity about the merits	12
of a statute of limitations defense at the time the defendant made the decision to	13
waive. We decline to transform Defendant’s unconditional plea into a conditional	14
one after the fact. Cf. People v. Hester, 992 P.2d 569, 572 (Cal. 2000) (“[D]efendants	15
who have received the benefit of their bargain should not be allowed to trifle with	16
the courts by attempting to better the bargain through the appellate process.”). We	17
hold that Defendant waived the statute of limitations, and therefore affirm his	18
convictions for attempted first-degree murder and aggravated burglary with a deadly	19
weapon.	20

12
II. 	The 	District 	Court 	Erroneously 	Denied 	Defendant 	Presentence	1
Confinement Credit	2
A. 	Background	3
{14} 	Following Defendant’s arrest, the district court ordered Defendant released	4
from jail into the “[t]hird-party custody” of “persons to be approved by pretrial	5
services” on July 13, 2017. Under his conditions of release, Defendant was required	6
to “[b]e on [p]retrial [s]ervice supervision and abide by all conditions set by the	7
[c]ourt and by [p]retrial [s]ervices.” He could not “leave [his] residence . . . without	8
prior permission of” pretrial services and was required to submit to GPS monitoring	9
to ensure compliance. The district court later amended Defendant’s conditions of	10
release to provide that Defendant could leave his house to pick up his children from	11
school if accompanied by a preapproved third party.	12
{15} 	On June 2, 2018, Defendant was seen at a professional baseball game in	13
Albuquerque. Defendant had received permission from pretrial services to attend	14
this game, and it was undisputed that Defendant therefore did not violate his	15
conditions of release in doing so. The State nevertheless sought to have the district	16
court “clarify” its prior orders because it “believe[d] that allowing such a frivolous	17
outing [was] contrary to the spirit of the [orders] setting conditions of release[,] even	18
if technically within the letter of [those] orders.” In the State’s view, Defendant	19
should have been permitted to leave his house only for activities “reasonably	20

13
necessary to [the] life, health, employment[,] or schooling” of Defendant or his	1
family.	2
{16} 	The district court held a hearing on the State’s motion on June 13, 2018. At	3
the hearing, the prosecutor argued that the judge who had imposed the original	4
conditions of release had “set very strict conditions . . . and . . . authorized every	5
condition at the highest levels of supervision to be placed on [Defendant,]” noting	6
that the standard order imposing conditions, which would have prohibited Defendant	7
from leaving his home during specified hours, had been modified to provide that	8
Defendant could not leave his home without permission. See generally Rule 9-303	9
NMRA (form order setting conditions of release). Although he acknowledged that	10
the order granted pretrial services the discretion to make exceptions to this otherwise	11
strict house arrest, the prosecutor argued that the court’s intent had been to allow	12
only “very necessary exceptions,” listing emergencies, doctor’s appointments, and	13
court appearances as examples. On the basis of Defendant’s outing to the baseball	14
game and an assertion, unsupported by evidence, that Defendant had been permitted	15
to leave his home in order to go to restaurants, the prosecutor urged the district court	16
to enter an order to ensure that any future departures from Defendant’s residence	17
would be strictly limited. In response, defense counsel asked the district court to	18
leave the existing conditions of release in place, noting that Defendant had complied	19
with the terms of the court’s order and arguing that the baseball game could have	20

14
been part of a “carrot and . . . stick” approach to pretrial supervision because “being	1
given a little bit of lenienc[y] . . . [could] actually . . . make[] people more compliant	2
with their supervision.”	3
{17} 	The 	court 	then 	heard 	from 	a 	representative 	of 	pretrial 	services, 	who	4
acknowledged that he had allowed the visit to the baseball game and asserted that	5
“nothing . . . would allow [pretrial services] to disallow the movement.” At that	6
point, the presiding judge noted that a different judge had entered the original order	7
of release and that, other than the amendment explicitly permitting Defendant to take	8
his children to and from school, the court had not altered, or intended to alter, the	9
original order setting conditions of release. The court indicated that it would obtain	10
a record of the pretrial detention hearing to clarify the original written order. It	11
ultimately entered an order keeping the prior conditions in place and specifically	12
providing that pretrial services “continue[d] to have the discretion to determine if	13
and when Defendant [could] leave his home.”	14
{18} 	After Defendant entered his plea, defense counsel argued in an unfiled	15
sentencing memorandum that Defendant was entitled to presentence confinement	16
credit of 385 days: fourteen days in jail plus 371 days on pretrial release. In response,	17
the prosecutor contended that Defendant was entitled to credit only for the time spent	18
in jail because his liberty had not been sufficiently limited while under conditions of	19

15
release. The district court imposed a sentence awarding Defendant fourteen days of	1
credit and denied Defendant’s motion to reconsider.	2
B. 	Discussion	3
{19} 	The statute governing whether Defendant is entitled to credit for the time he	4
spent subject to conditions of release is NMSA 1978, Section 31-20-12 (1967),	5
which provides that “[a] person held in official confinement on suspicion or charges	6
of the commission of a felony shall, upon conviction of that or a lesser included	7
offense, be given credit for the period spent in presentence confinement against any	8
sentence finally imposed for that offense.” Because the answer to the question	9
presented hinges on the meaning of Section 31-20-12, our review is de novo. State	10
v. Romero, 2002-NMCA-106, ¶ 6, 132 N.M. 745, 55 P.3d 441.	11
{20} 	Under the test announced by this Court in Fellhauer, a defendant awaiting	12
trial or sentencing outside of the confines of a jail, prison, or other correctional	13
facility is in “official confinement” within the meaning of Section 31-20-12 when	14
two conditions are met:	15
(1) a court has entered an order releasing the defendant from a facility	16
but has imposed limitations on the defendant’s freedom of movement,	17
OR the defendant is in the actual or constructive[3] custody of state or	18
local law enforcement or correctional officers; and (2) the defendant is	19
punishable for a crime of escape if there is an unauthorized departure	20
3See generally State v. Guillen, 2001-NMCA-079, ¶ 8, 130 N.M. 803, 32 P.3d
812 (“We understand constructive custody to apply to situations in which a
defendant is temporarily outside a penal institution, but is expected to return to the
place of confinement.”).

16
from the place of confinement or other non-compliance with the court’s	1
order.	2
1997-NMCA-064, ¶ 17, 123 N.M. 476, 943 P.2d 123.4 The parties disagree about	3
whether Defendant qualifies for credit under this standard, with both directing	4
arguments at each prong. Because we conclude that Defendant’s conditions of	5
release satisfy both prongs of Fellhauer, we hold that he is entitled to credit, reverse	6
the district court’s contrary ruling and reverse Defendant’s sentence, and remand for	7
sentencing in accordance with this opinion.	8
1. 	Defendant Was Subject to Limitations on Movement Within the Meaning	9
of the First Fellhauer Prong	10
{21} 	In the years since Fellhauer was decided, “a substantial body of precedent”	11
has developed in which this Court has applied the principles recognized in that case	12
to cases involving presentence confinement credit and other related issues. State v.	13
Woods, 2010-NMCA-017, ¶ 23, 148 N.M. 89, 230 P.3d 836. As to the first Fellhauer	14
prong, it is now settled that “conditions of house arrest that require the defendant to	15
4 We “[d]istill[ed],” 	id. 	¶ 17, this test from six considerations: (1) the
involuntariness of a defendant’s confinement when the defendant is chargeable with
escape for an unauthorized absence, “[o]ne of the distinguishing factors” under the
approach taken by the minority of courts that had concluded that time in home
confinement could qualify for credit, id. ¶ 13; (2) the expected impact of the identity
of the custodian on a defendant’s freedom, see id. ¶ 15; (3) the desirability of
“simplify[ing] the sentencing court’s inquiry to the extent possible[,]” id. ¶ 16; (4)
precedent permitting credit for time other than “actual jail time,” id. ¶ 7; (5)
indications in other provisions of the Criminal Code that “confinement” could “to
some degree [be] constructive rather than actual,” id. ¶ 16; and (6) a willingness to
permit sentencing courts to exercise “reasonable flexibility,” id. ¶ 16.

17
remain at home except to attend specified events such as treatment, work, or school”	1
constitute limitations on the defendant’s freedom of movement. Guillen, 2001-	2
NMCA-079, ¶ 11. And it is also settled that a defendant is not subjected to limitations	3
on the defendant’s freedom of movement where the defendant is placed on a	4
“conventional curfew” that leaves the defendant “answerable to no one for his [or	5
her] whereabouts” during non-curfew hours. State v. Figueroa, 2020-NMCA-007,	6
¶¶ 31, 33, 457 P.3d 983. The issue presented by this case, however, is an open one.	7
We must decide whether Defendant’s freedom of movement was restricted by the	8
condition that he remain in his home unless given permission to leave by pretrial	9
services. We hold that it was.5
10
{22} 	We conclude that the condition requiring Defendant to obtain permission from	11
pretrial services prior to leaving his home should be treated no differently than a	12
court order directing Defendant to remain at his home at all times with exceptions	13
for “specified events such as treatment, work, or school.” Guillen, 2001-NMCA-	14
079, ¶ 11. At no point while he was released pending trial or sentencing did	15
5 Defendant asserts, and the State does not dispute, that Defendant’s conditions
of release required him to be accompanied by a third person at all times, even while
he was within his residence. Because we base our holding on the discretion granted
pretrial services to decide whether and for what purposes Defendant could leave his
residence, we do not address this condition of Defendant’s release. But cf. State v.
Frost, 2003-NMCA-002, ¶¶ 1, 3, 133 N.M. 45, 60 P.3d 492 (holding that the
defendant could serve a mandatory jail sentence in an electronic monitoring program
that required him to “reside with his daughter . . . and be supervised by either of his
two daughters at all times”).

18
Defendant have the freedom to choose his own whereabouts. Although he could	1
express his desire to leave for a particular purpose, a governmental entity had the	2
authority to decide whether he could leave. Defendant would have been in breach of	3
his conditions of release if, for instance, he had been refused permission to attend	4
the baseball game and nonetheless done so. Under our holding in Guillen, Defendant	5
would have been entitled to credit had his conditions of release required him to stay	6
at home at all times or permitted him to leave his home only to take his children to	7
and from school. And the same would necessarily be true if, under the release orders	8
actually entered here, pretrial services had exercised its discretion to prohibit	9
Defendant from leaving his home at all, or to permit him to leave for similar	10
specified events. Since pretrial services, in deciding whether Defendant could leave	11
his home, was exercising discretion granted it by the court, it would make little sense	12
to deny credit on the basis of nice distinctions between the types of decision makers	13
directly responsible for restricting Defendant’s freedom of movement.	14
{23} 	That pretrial services took what we think was an unduly narrow view of the	15
discretion granted it under the district court’s pretrial release orders6 does not affect	16
6 The orders required Defendant to request “permission” before leaving his
residence, gave pretrial services “discretion to determine if and when” Defendant
could do so, and required Defendant to abide by “conditions” set by pretrial services.
We do not see how these orders can reasonably be interpreted to grant Defendant
carte blanche to roam forth at will upon giving pretrial services advance notice of
his intended whereabouts.

19
our conclusion. We acknowledge that attending a baseball game is an activity	1
different in kind from “treatment, work, or school.” Guillen, 2001-NMCA-079, ¶ 11.	2
However, we are unable to extract from that difference any general principle that	3
courts could apply evenhandedly to the myriad purposes and lengths of time for	4
which a defendant might be permitted to leave home. And we see no compelling	5
policy reason to deny Defendant credit on the basis of an outing that, as defense	6
counsel below recognized, could have been a rational exercise of pretrial services’	7
discretion 	intended 	to 	encourage 	continuing 	compliance 	with 	Defendant’s	8
conditions of release. Cf. State v. Duhon, 2005-NMCA-120, ¶ 12, 138 N.M. 466,	9
122 P.3d 50 (recognizing “[t]he societal interest in obtaining criminal defendants’	10
compliance with custodial restrictions”).	11
{24} 	Facially similar conditions of pretrial release are not always equal in practical	12
effect. The defendant who resides with extended family on a large ranch property	13
near Roswell is thought to be on house arrest no less than the defendant who lives	14
alone in a one-bedroom efficiency apartment in downtown Albuquerque. The	15
defendant on house arrest whose occupation requires the defendant to travel	16
throughout a locality is no less entitled to credit than the defendant who works at a	17
specific job site: both may leave home only to “attend . . . work.” Guillen, 2001-	18
NMCA-079, ¶ 11. Since it is well established under our case law that “confinement	19
[in]side the four walls” of an institution is not required for a defendant to qualify for	20

20
credit, Fellhauer, 1997-NMCA-064, ¶ 6, difficult line-drawing is inevitable. Cf.	1
Reno v. Koray, 515 U.S. 50, 64 (1995) (acknowledging that the federal approach	2
“treat[s] defendants differently . . . when they are similarly situated in fact[,]” but	3
suggesting that the alternative framework considered by the Court would result in	4
“much the same kind of disparity in treatment for similarly situated defendants”).	5
On balance, we deem it manifestly fairer to award credit to some defendants who,	6
despite needing judicial or other governmental approval, are in fact permitted a wide	7
range of movement while on pretrial release than to deny credit to some defendants	8
on the basis of after-the-fact evaluations of whether a particular departure from the	9
place to which a defendant is otherwise confined is deserving of credit.	10
{25} 	The dissent asserts that we should affirm on the basis of the facts the dissent	11
concludes were found by the district court, observing that, under our reasoning in	12
Fellhauer, 1997-NMCA-064, ¶ 16, “fact-finding by sentencing courts may be	13
required in determining whether a defendant’s conditions of release are sufficiently	14
onerous such that the defendant is entitled to credit.” Dissenting Op. ¶ 39. Truth be	15
told, our prior presentence confinement credit decisions point in different directions	16
when it comes to the desirability of fact-finding in this context. See, e.g., Guillen,	17
2001-NMCA-079, ¶ 6 (“In Fellhauer, we noted that our analysis of the law of	18
presentence confinement credit is guided by a desire to simplify the sentencing	19
court’s inquiry to the extent possible by providing a clear guide that does not require	20

21
fact intensive inquiries into whether specific conditions of release subject a	1
defendant 	to 	jail-type 	confinement.” 	(internal 	quotation 	marks 	and 	citation	2
omitted)). And the dissent’s approach raises more questions than it answers by	3
urging reliance on fact-finding without providing any standard for sentencing courts	4
to apply in evaluating conditions of release that require a defendant to remain at	5
home unless given permission to leave.7 The dissenting opinion leaves unclear, for	6
example, whether the reason a defendant leaves the defendant’s home should be	7
determinative. If it should, the dissenting opinion never explains what purposes	8
should be disqualifying, the frequency with which a defendant must engage in	9
undeserving approved activities before losing credit entirely, or whether district	10
courts must conduct a day-by-day examination—of time periods that can exceed 600	11
days, see, e.g., Duhon, 2005-NMCA-120, ¶ 5—to decide which days qualify. If, on	12
the other hand, the purposes of particular outings are not to be controlling, then the	13
dissent never explains what circumstance or combination of circumstances should	14
be.8
15
7 The dissent does not contend that Defendant would fail to meet the first
Fellhauer prong if pretrial services had, in fact, forbidden Defendant from leaving
his home completely, or exercised its discretion to confine Defendant to certain
kinds of activities.
8 The dissent emphasizes a statement indicating that the pretrial services office
overseeing Defendant’s release did not “have the staff capable to follow every
person ordered to do electronic monitoring” and infers that this means “pretrial
services was [not] tracking all of Defendant’s movements.” Dissenting Op. ¶ 40. But
that statement indicates only that Defendant’s movements were not constantly

22
{26} 	Moreover, any test along those lines—a fact-intensive evaluation of the	1
judicially-delegated discretion exercised by a pretrial services office—would result	2
in case-specific line-drawing incapable of principled implementation. The more	3
lines get drawn, the more they will become blurry or so fine as to be arbitrary, and	4
the more difficult it will become for sentencing courts throughout our state and our	5
appellate courts to evenhandedly and uniformly apply our “mandatory” presentence	6
confinement credit statute. See State v. Ramzy, 1982-NMCA-113, ¶ 8, 98 N.M. 436,	7
649 P.2d 504; cf. State v. Byam, 2017 VT 47, ¶ 14, 205 Vt. 173, 172 A.3d 171 (“In	8
the context of sentencing, vague rules lead to unjust outcomes.”). Our approach has	9
the advantage of providing litigants and courts with a clear rule, one that avoids the	10
multiplicity of arbitrary distinctions we think would inevitably follow were we to	11
side with the dissent.	12
{27} 	Our more fundamental disagreement with the dissent, however, pertains to its	13
characterization of the burdens imposed by the conditions of release at issue here.	14
The dissent’s analysis mistakes the “freedom” of being confined at home unless	15
given permission to leave for purposes approved by pretrial services for the freedom	16
to choose one’s whereabouts. See Dissenting Op. ¶¶ 40, 42. On their face, the district	17
monitored by another person without saying anything about whether Defendant’s
movements were electronically recorded, as common sense suggests they were. And
the dissent does not say what role the presence or absence of constant monitoring or
supervision should play in our analysis.

23
court’s orders granted pretrial services the authority to give or withhold its	1
permission for any outing Defendant might take. To avoid running afoul of the limits	2
the district court had placed on his freedom of movement, Defendant was required	3
to ask whether he could leave his home and, the record shows, obtain approval of	4
the purpose for which he could do so. Absent approval to be elsewhere, Defendant	5
had to stay in his residence, and he would surely have been unsuccessful had he	6
argued in a hypothetical revocation hearing that he could comply with the orders	7
setting conditions of release by leaving his residence over the objections of pretrial	8
services. 	Notwithstanding 	the 	dissent’s 	charge 	that 	we 	are 	“inappropriately	9
elevat[ing] the text of the written order over Defendant’s actual conditions of	10
release[,]” Dissenting Op. ¶ 39, we think that text and the actual conditions of	11
Defendant’s release are inextricably intertwined. The district court’s orders gave	12
pretrial services discretion to deny Defendant’s requests to leave regardless of what	13
a particular employee of pretrial services believed.	14
2. 	Defendant Satisfies the Second Prong of Fellhauer Because He Could	15
Have Been Charged With Escape From a Community Custody Release	16
Program	17
{28} 	After 	adopting 	the 	standard—unchallenged 	by 	either 	party 	here—for	18
determining whether a defendant qualifies for credit, we held in Fellhauer that the	19
conditions on which the defendant in that case had been released did not meet its	20
second prong. 1997-NMCA-064, ¶ 19. The defendant had been released to the	21

24
custody of a relative on conditions that required him to be on house arrest and only	1
leave for medical treatment or to visit with his attorney. Id. ¶ 2. However, any “non-	2
compliance with house arrest would only have resulted in a revocation of [the] order	3
of release.” Id. ¶ 19. And, although the defendant would have been criminally liable	4
for failing to appear when the district court required his presence, we found “[t]his	5
potential legal hazard [to be] different from an escape charge[, ]which require[d]	6
custody of some kind[.]” Id. ¶ 20. We accordingly held that the defendant was not	7
entitled to presentence confinement credit because, as relevant, he could not have	8
been convicted of any escape offense for conduct engaged in during his time on	9
pretrial release. Id. ¶ 19.	10
{29} 	This Court reaffirmed what it termed an assumption in Fellhauer—that	11
“failure to abide by the terms of a house arrest would not constitute the crime of	12
escape”—in State v. Martinez, 1998-NMCA-047, ¶ 5, 125 N.M. 83, 957 P.2d 68.	13
The defendant in Martinez had been released from jail to complete her sentence in	14
her home in an electronic monitoring program, apparently administered by the jail.	15
Id. ¶ 2. She was charged with escaping from jail in violation of NMSA 1978, Section	16
30-22-8 (1963) after failing to return home following an appointment and not	17
reporting to the program thereafter. Martinez, 1998-NMCA-047, ¶ 2. In a series of	18
earlier cases, this Court had held that a person in jail could contravene Section 30-	19
22-8 “without breaking out from the confines of the jail itself.” Martinez, 1998-	20

25
NMCA-047, ¶ 4. In each of those cases, however, the defendant had “failed to return	1
to jail when [the defendant] was required to be there”; “the dispositive issue” had	2
been whether the defendant was “lawfully committed to jail and thereafter failed to	3
return to jail, even though [the defendant] was given permission to be outside its	4
confines for a specific period of time.” Id. (internal quotation marks and citation	5
omitted). The Martinez defendant, in contrast, “was under no obligation to report to	6
jail at any future time.” Id. ¶ 5. Unable to understand how “one can escape from jail	7
when one is never obliged to be in jail[,]” the Court applied the principle that a	8
criminal statute should be interpreted in accordance with its plain meaning, id. ¶ 5,	9
and held that the defendant could not be charged with escape. Id. ¶¶ 9, 11. Although	10
the Court felt this was an “undesirable result,” id. ¶ 9, in light of the criminal	11
penalties imposed on defendants who fail to return after receiving “permission to be	12
outside [a jail’s] confines for a specific period of time[,]” id. ¶ 4 (internal quotation	13
marks and citation omitted), the Court believed that it was compelled by “a gap in a	14
1963 statute that did not contemplate home detention.” Id. ¶ 9. And this Court could	15
not remedy this gap; “[t]hat task rest[ed] with the [L]egislature.” Id.	16
{30} 	The year after Martinez was decided, our Legislature enacted NMSA 1978,	17
Section 30-22-8.1 (1999), the focus of the parties’ disagreement about Fellhauer’s	18
second prong. That statute, titled “Escape from a community custody release	19
program[,]” provides:	20

26
Escape from a community custody release program consists of a person,	1
excluding a person on probation or parole, who has been lawfully	2
committed 	to 	a 	judicially 	approved 	community 	custody 	release	3
program, including a day reporting program, an electronic monitoring	4
program, a day detention program or a community tracking program,	5
escaping or attempting to escape from the community custody release	6
program.	7
Section 30-22-8.1(A) (emphasis added).9
8
{31} 	In 	Duhon, this Court considered the meaning of the words “judicially	9
approved community custody release program” in determining that a defendant	10
would have been subject to a charge of escape while she was on house arrest. 2005-	11
NMCA-120, ¶¶ 11-13. The defendant there had been granted pretrial release	12
pursuant to a court order requiring her to be on “strict house arrest”; “wear an ankle	13
bracelet provided and monitored twenty-four . . . hours a day”; submit to random	14
urinalysis by and check in daily with the adult probation office; and “travel . . . only	15
to meet with her attorney, for medical emergencies, to church, and to mental health	16
counseling[,]” and then only “while accompanied by her parents.” Id. ¶ 3 (internal	17
quotation marks omitted). The district court awarded her credit for only half the time	18
she had spent on house arrest, id. ¶ 5, apparently because it believed that Section 30-	19
9 In explaining the backdrop against which Section 30-22-8.1 was enacted, we
in no way imply that the Legislature intended the statute to precisely plug the gap in
the statutory scheme governing the various crimes of escape we identified in
Martinez. The Legislature has no obligation to react to this Court’s notions of the
desirability of such gaps, let alone to ensure that legislation it enacts to address any
gap there may be fits as neatly as the missing piece of a puzzle.

27
22-8.1 applied only during time spent in a “formally adopted, county-wide, pre-	1
existing uniform system of release.”10 Duhon, 2005-NMCA-120, ¶ 9. This Court	2
reversed, reasoning that, because the defendant’s “release to house arrest was a form	3
of ‘community custody release’ that was ‘judicially approved[,]’ ” the case turned	4
on “whether that release was pursuant to a ‘program[,]’ ” and held that it was. Id.	5
¶ 11. Applying the plain meaning rule in light of the dictionary definition of that	6
word, the Court noted that “program” suggested only “that any release [would] be	7
subject to defined procedures and conditions[.]” Id. In contrast, “[n]othing about the	8
terminology in the statute suggest[ed] that . . . a formalized, universally applicable	9
methodology [was] contemplated or required.” Id. Thus, for instance, the statute	10
generically referenced “electronic monitoring programs” without mentioning the	11
formalized, county-approved programs the district court had cited in support of its	12
ruling. Id. And, the Court reasoned, policy supported following the clear signals sent	13
by the unadorned text because doing so served “[t]he societal interest in obtaining	14
criminal defendants’ compliance with custodial restrictions” while simultaneously	15
giving district courts desirable flexibility. 	Id. 	¶ 12. The Court consequently	16
concluded that “the release of a criminal defendant may be ‘judicially approved’ ”—	17
10See generally NMSA 1978, § 33-3-24 (1981) (enabling “[t]he sheriff of any
county or the jail administrator of any jail with the approval of the board of county
commissioners and the governing body of the municipality, as applicable,” to
“establish a prisoner-release program in accordance with [NMSA 1978, Sections 33-
2-43 (1969) and 33-2-44 (1971)]”).

28
and therefore within the scope of Section 30-22-8.1—“subject to defined procedures	1
and conditions on a case-by-case basis.” Duhon, 2005-NMCA-120, ¶ 11. Because	2
the defendant could have been prosecuted for escape throughout her time on house	3
arrest, she was entitled to full credit. Id. ¶ 13.	4
{32} 	The State concedes that Defendant’s confinement meets the second Fellhauer	5
prong under our decision in Duhon because Defendant was in an “electronic	6
monitoring 	program,” 	which, 	Defendant 	reminds 	us, 	is 	“a 	form 	of 	release	7
enumerated in Section 30-22-8.1[(A).]” While we are not bound by the State’s	8
concession, State v. Comitz, 2019-NMSC-011, ¶ 25, 443 P.3d 1130, we agree with	9
it. Duhon held that a defendant satisfies the second prong of Fellhauer if the	10
defendant is subject to a charge of escape under Section 30-22-8.1. A defendant is	11
subject to a charge of escape under that statute if the defendant is “lawfully	12
committed” 11 to a “judicially approved” “electronic monitoring program,” as	13
Defendant was here. The conditions of Defendant’s release thus satisfy the second	14
Fellhauer prong under Duhon.12
15
11See generally State v. Alderette, 1990-NMCA-132, ¶ 1, 111 N.M. 297, 804
P.2d 1116 (holding “that the escape from jail statute does not require commitment
on a criminal charge” and overruling precedent to the contrary in light of the statute’s
evolution).
12 Without reaching a conclusion under Fellhauer’s second prong, the dissent
asserts that our holding renders “unclear[,]” Dissenting Op. ¶ 42 n.17, the distinction
between amenability to escape charges and the ordinary potential for the revocation
of pretrial release. We think this criticism is unwarranted. Our opinion says only that
a defendant who is released into an electronic monitoring program administered by

29
{33} 	Undeterred, the State contends that Defendant does not qualify for credit	1
nonetheless, essentially arguing that we should overrule Duhon because, in reaching	2
its holding in that case, this Court took insufficient account of “the identity of the	3
custodian” in pretrial release programs not administered by correctional institutions	4
and thus went “against the . . . direction” pointed to by our previous holdings in	5
Fellhauer and Guillen. But cf. Guillen, 2001-NMCA-079, ¶¶ 8-9 (holding that	6
conditions requiring the defendant to “ ‘remain at his home at all times except to	7
attend alcohol counseling, work, or religious services’ ” and to submit to electronic	8
monitoring 	“by 	correctional 	officers” 	sufficiently 	restricted 	the 	defendant’s	9
movement to satisfy the first prong of Fellhauer). We are not persuaded that we	10
should depart from the doctrine of stare decisis—our duty to follow precedent—“a	11
foundation stone of the rule of law,” Michigan v. Bay Mills Indian Cmty., 572 U.S.	12
782, 798 (2014), that “lies at the very core of the judicial process.” Herrera v.	13
pretrial services personnel may be subject to a charge of escape if the defendant
escapes from that program—i.e., that such electronic monitoring programs constitute
“electronic monitoring program[s]” within the scope of Section 30-8-22.1. In our
view—and, as noted, the State’s—that holding is nothing more than a simple
application of our previous decision in Duhon, where we held that a defendant who
was released pursuant to an order requiring her to “wear an ankle bracelet provided
and monitored twenty-four . . . hours a day” would have been subject to an escape
charge. 2005-NMCA-120, ¶¶ 3, 10-13 (internal quotation marks omitted); see also
Woods, 2010-NMCA-017, ¶ 20 	(“The defendant [in 	Duhon] was subject to
prosecution under [Section 30-22-8.1] because her release to house arrest constituted
a judicially approved form of community custody release that was subject to defined
procedures and conditions established by the court.” (internal quotation marks and
citation omitted)).

30
Quality Pontiac, 2003-NMSC-018, ¶ 15, 134 N.M. 43, 73 P.3d 181 (citation	1
omitted).	2
{34} 	The State has not persuaded us that Duhon was mistakenly decided. We	3
perceive no flaw in Duhon’s reasoning and, to the extent our holding in that case can	4
even be said to be inconsistent with what might be characterized as mixed signals in	5
Fellhauer,13 that inconsistency can readily be explained by the fact that the issue	6
before this Court in Duhon involved the interplay between the statute we interpreted	7
in Fellhauer and a statute that did not exist when that case was decided. Duhon was	8
the first case in which this Court addressed the impact of the then-recently-enacted	9
community custody release program escape statute on the second prong of the	10
Fellhauer test. Fellhauer stands for the proposition that conditions of release satisfy	11
the second prong if a defendant could be subject to an escape charge for particular	12
conduct that would be inconsistent with an order of release. And Section 30-22-8.1	13
does not limit the kinds of “electronic monitoring program[s]” that can be the basis	14
of an escape charge it makes it a crime to escape from. Our holding in Duhon flowed	15
directly from the confluence of these two principles. And, although Section 30-22-	16
8.1 changed the statutory scheme governing crimes of escape without directly	17
13 Compare Fellhauer, 1997-NMCA-064, ¶ 17 (holding that a defendant
satisfies the second prong if “non-compliance” with an order of release could lead
to a conviction for a crime of escape), with id. ¶ 16 (indicating that “[t]he identity of
the custodian is a common sense marker” of official confinement that “recommends
itself” as part of the inquiry).

31
addressing presentence confinement credit, there is every reason to think that the	1
Legislature intended the statute to address both subjects. We presume the Legislature	2
“to know existing law and judicial pronouncements[,]” Alderette, 1990-NMCA-132,	3
¶ 8, and “underst[and] the full impact of its legislation.” First Fin. Tr. Co. v. Scott,	4
1996-NMSC-065, ¶ 18, 122 N.M. 572, 929 P.2d 263. Since Fellhauer had already	5
established a defendant’s amenability to an escape charge as one prong of the test	6
under the presentence confinement credit statute, it was entirely reasonable for the	7
Duhon Court to conclude that Section 30-22-8.1 broadened the circumstances under	8
which a defendant would qualify for credit under Section 31-20-12. Because we are	9
not aware of any basis for overruling Duhon, we decline to do so.14
10
14 Even if the State had persuaded us that Duhon was incorrectly decided, we
would not have a basis for overruling it. Absent an obvious error in a prior decision,
our appellate courts demand “special justification [before they will] depart from
precedent.” Herrera, 2003-NMSC-018, ¶ 15. See generally State v. Radosevich,
2018-NMSC-028, ¶ 21, 419 P.3d 176 (“We do not overturn precedent lightly, but
where our analysis convincingly demonstrates that a past decision is wrong, the
Court has not hesitated to overrule even recent precedent.” (internal quotation marks
and citation omitted)); Territory ex rel. Klock v. Mann, 1911-NMSC-027, ¶ 1, 16
N.M. 211, 114 P. 362 (stating that one justification for overruling precedent may
exist where the precedent is “palpably contrary to reason and right”). A party asking
this Court to overrule one of our prior decisions must ordinarily demonstrate that (1)
the decision “is so unworkable as to be intolerable”; (2) reversing the decision would
not “create an undue hardship” as a result of justifiable reliance on our earlier,
erroneous pronouncement of the law; (3) the law surrounding the prior decision has
“developed to such an extent as to leave the old rule no more than a remnant of
abandoned doctrine”; or (4) “the facts have changed in the interval from the old rule
to reconsideration so as to have robbed the old rule of justification.” Herrera, 2003-
NMSC-018, ¶ 15 (internal quotation marks and citation omitted). The State has not
addressed any of these factors.

32
CONCLUSION	1
{35} 	We affirm Defendant’s convictions, reverse his sentence, and remand with	2
instructions to credit Defendant for the time he spent on pretrial release.	3
{36} 	IT IS SO ORDERED.	4
______________________________	5
ZACHARY A. IVES, Judge	6
I CONCUR:	7
_____________________________	8
JENNIFER L. ATTREP, Judge	9
BRIANA H. ZAMORA, Judge (dissenting, in part).	10

33
B. ZAMORA, Judge (dissenting, in part).	1
{37} 	I respectfully dissent from the majority’s conclusion that Defendant was	2
entitled to presentence confinement credit. In my view, the district court properly	3
denied 	Defendant’s 	request 	for 	credit 	because 	the 	record 	demonstrates 	that	4
Defendant’s freedom of movement was not “sufficiently onerous to be deemed	5
official confinement” and I would affirm the district court’s ruling. Fellhauer, 1997-	6
NMCA-064, ¶ 8.	7
{38} 	Only a defendant who is “held in 	official confinement” is entitled to	8
presentence confinement credit. Section 31-20-12 (emphasis added).15 In Fellhauer,	9
we clarified that “actual incarceration in a jail facility is not an absolute prerequisite	10
to a finding that a person has been in official confinement under Section 31-20-12,”	11
Fellhauer, 1997-NMCA-064, ¶ 7, however, we also clarified that a defendant whose	12
presentence period is not spent at a jail or other correctional facility is only entitled	13
to presentence confinement credit if the conditions of release are “sufficiently	14
onerous to be deemed official confinement.” Id. ¶ 8.	15
15 “[L]awful custody or confinement” is defined as “the holding of any person
pursuant 	to 	lawful 	authority, 	including, 	without 	limitation, 	actual 	or
constructive custody of prisoners temporarily outside a . . . jail[.]” NMSA 1978,
§ 30-1-12(H) (1963) (emphasis added); see Fellhauer, 1997-NMCA-064 ¶ 6 (stating
“[t]he terms used in [Section 31-20-12 and Section 30-1-12(H)] are not identical, but
it is reasonable to treat ‘lawful custody or confinement’ and ‘official confinement’
as closely related, if not functionally equivalent, concepts”).

34
{39} 	In my view, the majority ignores the record that clearly demonstrates	1
Defendant’s conditions of release were not onerous. As we noted in Fellhauer, fact-	2
finding by sentencing courts may be required in determining whether a defendant’s	3
conditions of release are sufficiently onerous such that the defendant is entitled to	4
credit. See 1997-NMCA-064, ¶ 16 (stating that “our cases have demonstrated some	5
willingness to engage in fact[-]finding in [determining presentence confinement	6
credit and w]e are not inclined to foreclose the exercise of reasonable flexibility by	7
sentencing courts through the adoption of too bright a line”). Because our sentencing	8
courts are intimately familiar with the pretrial services programs in their respective	9
jurisdiction and consequently, with a defendant’s particular conditions of release,	10
common sense dictates that to the extent such factual findings are necessary, the	11
responsibility of said findings should rest with the sentencing courts. See State v.	12
Juan, 2010-NMSC-041, ¶ 33, 148 N.M. 747, 242 P.3d 314 (stating “[w]ith respect	13
to the factual review, we do not sit as a trier of fact, recognizing that the trial court	14
has the best vantage from which to resolve questions of fact” (internal quotation	15
marks and citation omitted)). In this case, the majority eschews the statements of	16
pretrial services and relies exclusively on the written order setting conditions of	17
release in coming to its determination that Defendant was entitled to credit. This	18
approach inappropriately elevates the text of the written order over Defendant’s	19
actual conditions of release.	20

35
{40} 	The majority writes, “[a]t no point while [Defendant] was released pending	1
trial or sentencing did Defendant have the freedom to choose his own whereabouts.”	2
Maj. Op. ¶ 22. The undisputed record points to the contrary. Nowhere in Defendant’s	3
original conditions of release order did it specify that Defendant was on house arrest	4
or was restricted from leaving his home at certain times and only permitted to attend	5
specified 	places. 	In 	addition, 	Marshall 	Dixon, 	the 	pretrial 	services 	officer	6
supervising Defendant, explicitly stated that he was not supervising Defendant on	7
house arrest because the order setting conditions of release did not require house	8
arrest. Dixon stated that he approved any “movement[s]” requested by Defendant,	9
including permitting Defendant to go to an Isotopes baseball game, so long as he	10
was accompanied by an approved third party. According to Dixon, there is nothing	11
contained within the order setting conditions of release that would “allow [him] to	12
disallow movement.” Thus, Defendant had no curfew, nor did Dixon restrict	13
Defendant from leaving his home. Finally, Dixon explained that neither he nor	14
pretrial services was tracking all of Defendant’s movements (like a correctional	15
community custody program), because pretrial services does not “have the staff	16
capable to follow every person ordered to electronic monitoring.”16
17
16 After learning that Defendant was free to attend any and all recreational
activities he requested (i.e. movies, swimming or baseball games), the district court
entered an amended order setting conditions of release briefly restricting Defendant
from attending recreational activities. However, later that same day, after reviewing
the recording of the detention hearing (the detention hearing was held by a different

36
{41} 	Defendant’s conditions of release are far more permissive than conditions we	1
have previously held were sufficiently onerous to support presentence confinement	2
credit. In Duhon, the defendant was released on conditions of “strict house arrest”	3
requiring her to (1) “wear an ankle bracelet provided and monitored twenty-four . . .	4
hours a day” (2) “submit to random urinalysis by the adult probation office” (3) have	5
daily appointments with the probation office; and (4) she was only permitted to leave	6
her home “while accompanied by her parents [and] only to meet with her attorney,	7
for medical emergencies, to church, and to mental health counseling.” 2005-NMCA-	8
120, ¶ 3. Similarly, in Guillen, the defendant’s terms of release required him to	9
remain at home except to attend treatment, work, or school. 2001-NMCA-079, ¶ 11.	10
Here, unlike Duhon and Guillen, Defendant was not placed on house arrest, was not	11
subject to a curfew, and the restrictions on his freedom of movement were not	12
sufficiently onerous to support a finding that Defendant was held in official	13
confinement under Section 31-20-12. See Guillen, 2001-NMCA-079, ¶ 9 (stating “a	14
curfew, without more, is an insufficient restriction on movement to entitle a	15
defendant to presentence credit”); see id. (stating “house arrest is substantially more	16
onerous than a curfew”).	17
judge), the district court removed the restriction on recreational activities and
reinstated the original, more permissive conditions of release.

37
{42} 	In sum, throughout the pendency of the case, Defendant was free to leave	1
without restriction (1) with approval of pretrial services, and (2) if he was	2
accompanied by an approved third party. In my view, these two conditions of release	3
were not sufficiently restrictive of Defendant’s freedom of movement as required by	4
Fellhauer and Duhon to support the majority’s holding that Defendant was entitled	5
to presentence confinement credit. Because I would conclude that the first prong of	6
the Fellhauer test was not satisfied, I would not analyze whether Defendant was	7
subject to potential punishment for a crime of escape.17
8
17 I note that in analyzing the second Fellhauer prong, the crucial inquiry is
whether a defendant is in “official confinement” and consequently, subject to
prosecution for escape or if a defendant is not confined and only subject to a violation
of conditions of release. 1997-NMCA-064, ¶¶ 16-20. Under the majority’s analysis,
this distinction is unclear. “In writing and construing the criminal law, both our state
[L]egislature and [the appellate courts] owe [individuals] a duty of clarity. We
cannot ask our citizens to guess at the meaning of a criminal statute.” State v. Chavez,
2009-NMSC-035, ¶ 18, 146 N.M. 434, 211 P.3d 891 (omission, internal quotation
marks, and citation omitted). “To satisfy the constitutional requirements of due
process, a criminal statute must, with sufficient certainty, alert a person of ordinary
intelligence that his conduct is prohibited.” Id.; see also State v. Ogden, 1994-
NMSC-029, ¶ 25, 118 N.M. 234, 880 P.2d 845 (stating that we strictly construe
“[s]tatutes defining criminal conduct . . . and doubts about construction of criminal
statutes are resolved in favor of lenity”). Interpreting our escape statute broadly will
necessarily lead to less uniformity in application of Section 31-20-12 and will
provide the public (and the defendants who may or may not be in official
confinement) with little notice as to what constitutes escape from a community
custody release program.

38
{43} 	For the foregoing reasons, I respectfully dissent and would affirm the district	1
court’s order denying Defendant’s request for presentence confinement credit.	2
________________________________	3
BRIANA H. ZAMORA, Judge	4