April 30, 2019- State of New Mexico v. Steven Teague, No. A-1-CA-35619

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-35619
5 	STEVEN TEAGUE,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Michael E. Martinez, District Judge
9 Hector H . Balderas, Attorney General
10 	Santa Fe, NM
11 	Walter M. Hart, III, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellant
14 Bennett J. Baur , Chief Public Defender
15 	Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellee
18 	MEMORANDUM OPINION
19 HANISEE, Judge.
20 	{I} 	The State appeals from the district court' s dismissal of the State's motion to
21 	revoke 	Defendant 	Steven Teague' s probation. 	Concluding that Rule 	5-203(A)
22 	NMRA , New Mexico's mandatory joinder rule for criminal proceedings, does not
Court of Appeals of New Mexico
Filed 4/30/2019 2:13 PM
Mark Reynolds

1 apply to probation revocation proceedings and that Defendant has failed to establish
2 	a due process violation in this case, we reverse and remand.
3 BACKGROUND
4 Defendant's Original Conviction and Probation Conditions
5 	{2} 	In 2007, Defendant was charged with fifteen counts of manufacturing child
6 pornography, fifteen counts of possession of child pornography, and five counts of
7 attempting to distribute child pornography. Defendant entered into a plea agreement
8 under which he pled guilty to two counts of possession of child pornography, and no
9 contest to two counts each of manufacturing of child pornography and attempting to
10 distribute child pornography. Under the agreement, the State agreed to dismiss all
11 	remaining charges and to limit Defendant' s total exposure of twenty-four years'
12 	incarceration to ten years at initial sentencing. Accepting the agreement in December
13 	2008, the district court sentenced Defendant to twenty-four years' incarceration,
14 	suspending seventeen years but imposing a mandatory, one-year habitual offender
15 	enhancement for a total of eight years' incarceration. The district court also imposed
16 an indefinite period of supervised probation to begin immediately upon Defendant' s
17 release from prison.
18 	{3} 	Defendant was paroled and released to probation in March 2012. His order of
19 probation included the following pertinent terms and conditions:
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1.
4.
I will not violate any of the laws or ordinances of the State of
N[ ew] M[ exico], or any other jurisdiction. 1
I 	will 	not 	associate 	with 	any 	person 	identified 	by 	my
Probation/Parole officer as being detrimental to my Probation
supervision[. ] 2
Special conditions.
10. 	Defendant is not to possess, access, or view any pornographic or
sexually explicit material and no computer access. 3
12 The order of probation pointedly warned Defendant, "[Y]our probation may be
13 	revoked if you violate any one of the conditions of this [o ]rder during the time of
14 your probation."
15 	The 2013 Search and Defendant's 2014 Probation Revocation
16 	{4} 	In 2013 , probation and other law enforcement officers received a tip from the
17 National 	Center 	for 	Missing 	and 	Exploited 	Children 	that 	Defendant 	was 	in
18 possession of child pornography. Officers questioned Defendant, searched his home,
19 	and seized his electronic devices. During the search, probation officers encountered
20 Defendant's eighteen-year-old boyfriend (Boyfriend) and found over one hundred
1Hereinafter referred to as Standard Condition Number 1.
2 Hereinafter referred to as Standard Condition Number 4.
3 Hereinafter referred to Special Condition Number 10.
3

1 pornographic items. They discovered approximately fifty pornographic photos that
2 appeared to feature "younger males in their younger teens" on Defendant's cellular
3 phones, as well as laptops and a bill for internet service. Based on this search,
4 Defendant' s probation officer filed a report of violation, alleging that Defendant
5 violated Standard Conditions Number 1 and 4, and Special Condition Number 10.
6 Defendant's parole was revoked in August 2013 "based on the possession of
7 pornography by a [s]ex [o]ffender," at which time he was returned to prison.
8 	{5} 	In 2014, the State formally moved to revoke Defendant's probation. At the
9 ensuing revocation hearing, the State informed the district court that it had reached
10 an agreement with Defendant in which he would "admit to a violation of Standard
11 	Condition Number 4, which 	is 	association with individuals detrimental to his
12 	probation, specifically, [Boyfriend,]" and the State would agree that Defendant
13 	would "serve a [ninety]-day sanction." The State additionally agreed that the ninety-
14 	day sanction for the probation violation would run concurrently with Defendant's
15 	"penalty 	for 	th[ e 	parole] 	violation." 	The 	district 	court 	accepted 	Defendant's
16 admission to the violation, sentenced Defendant to ninety days' incarceration to run
17 "concurrent with [his] parole sentence," and reinstated Defendant's probation with
18 	the 	additional 	condition that Defendant have "no contact or association with
19 	[Boyfriend]."
4

1 The 2015 Search Warrant and Defendant's New Charges ·
2 	{6} 	In 2015, a special agent with the New Mexico Attorney General's office
3 obtained and executed a search warrant for the cell phones seized during the 2013
4 search 	of 	Defendant's 	home. 	The 	search 	unearthed 	yet 	more 	pornographic
5 photographs, along with two videos on Defendant's two cellular phones depicting
6 children believed to be less than eighteen years of age engaged in sexual acts or on
7 lascivious display. The special agent also located an email that Defendant sent
8 himself that included an attachment of a boy the probation officer believed to be less
9 than fifteen years old in a sexually explicit position. Defendant admitted that he
10 purchased both cell phones, and, after the special agent showed him six sexually
11 	explicit images found on both of his phones, he also admitted the children depicted
12 therein were under eighteen years of age. Based on this evidence, in July 2015 the
13 	State 	filed 	two 	new 	felony 	charges 	against 	Defendant 	for 	possession 	and
14 	manufacturing of child pornography.
15 	{7} 	The next month, the State again moved to revoke Defendant's probation, this
16 time based exclusively on Defendant's having been charged anew criminally with a
17 second set of child pornography offenses (hereinafter referred to as the Second
18 	Motion). Prior to a hearing on the Second Motion-the dismissal of which is at issue
19 	in this appeal-Defendant pied guilty to both new criminal charges. Defendant
20 thereafter moved to dismiss the Second Motion because of either the State's failure
5

1 to timely prosecute the second revocation in accordance with Rule 5-805 NMRA or,
2 alternatively, his theory that the Second Motion constituted "piecemeal prosecution"
3 and violated Rule 5-203(A).
4 	{8} 	The district court denied Defendant's motion to dismiss under Rule 5-805 but
5 seemed to agree that the Second Motion constituted impermissible "piecemeal
6 prosecution" because it was improper for the State to "go back and bring up more
7 and more violations [occurring] prior to" the date of the initial probation revocation
8 motion based on the "same contraband" seized. The district court thus granted
9 Defendant's motion to dismiss. The State appeals.
10 	DISCUSSION
11 	{9} 	The issue we must resolve is whether the district court erred in dismissing the
12 	Second 	Motion. 	The 	State 	argues 	that Rule 	5-203(A) provides 	no 	basis 	for
13 	dismissing the Second Motion because it has no application to probation revocation
14 proceedings and makes various other arguments why the district court erred.
15 	Defendant seems to 	abandon his 	argument based on Rule 	5-203(A). 	Instead,
16 Defendant advances three alternative theories in support of the district court's ruling:
17 	(1) that the district court denied the Second Motion on the merits; (2) that dismissal
18 	was proper because the State failed to bring the Second Motion within the time limits
19 prescribed 	by 	Rule 	5-805; 	or 	(3) 	that 	the 	general 	policy 	against 	piecemeal
6

1 prosecution 	reqmres 	dismissal 	of the 	second probation revocation proceeding
2 pursuant to due process principles.
3 	{IO} 	We begin by addressing the State's argument that the district court misapplied
4 Rule 	5-203(A)'s 	mandatory 	joinder 	requirement 	to 	Defendant's 	probation
5 revocation proceeding. Cf State v. Harrison, 2010-NMSC-038, 116, 8, 15, 148
6 N.M. 500, 238 P.3d 869 (noting that appellate courts are not bound by a party's
7 concession and proceeding to examine the issue that the defendant had earlier raised
8 but was no longer pressing on appeal). We first conclude that, to the extent the
9 district court granted Defendant's motion to dismiss pursuant to Rule 5-203(A), such
10 reliance was error, and then proceed to consider each of Defendant's alternative
11 	arguments to determine whether dismissal was proper for a different reason.
12 	I.
13
14 A.
15 	{11}
Rule 5-203(A)'s Mandatory Joinder Requirement Does Not Apply to the
State's Second Motion
Standard of Review
We review a district court's probation revocation decision for an abuse of
16 discretion. State v. Leon, 2013-NMCA-Ol 1,136,292 P.3d 493. "[A district] court
17 abuses its discretion when it exercises its discretion based on a misunderstanding of
18 	the law." State v. Vigil, 2014-NMCA-096, 120, 336 P.3d 380. Thus, "[e]ven when
19 	we review for an abuse of discretion, ... we review the application of the law to the
20 facts de novo." State v. Hunter, 2005-NMCA-089, 120, 138 N.M. 96, 117 P.3d 254
21 	(internal quotation marks and citation omitted). Likewise, construction of statutes
7

1 and our Supreme Court's rules is subject to de novo review. See State v. Chakerian,
2 2018-NMSC-019, 1 10, _ 	P.3d _ 	("Statutory interpretation is a matter of law
3 and is reviewed de novo."); State v. Montoya, 2011-NMCA-009, 18, 149 N.M. 242,
4 247 P.3d 1127 ("We interpret a Supreme Court rule as a question of law subject to
5 de novo review.").
6 B.
7
8 {12}
Rule 5-203(A) Does Not Compel Dismissal of the Second Motion to
Revoke Defendant's Probation
To the extent the district court's dismissal of the Second Motion was based
9 on Rule 5-203(A), we conclude this was error. Rule 5-203(A) provides:
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15
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Two or more offenses shall be joined in one complaint, indictment or
information with each offense stated in a separate count, if the offenses,
whether felonies or misdemeanors or both:
( 1) are of the same or similar character, even if not part of a single
scheme or plan; or
(2) are based on the same conduct or on a series of acts either
connected together or constituting parts of a single scheme or plan.
17 	In interpreting procedural rules, "we apply the same canons of construction as
18 	applied to statutes and, therefore, interpret the rules in accordance with their plain
19 meaning." N.M Uninsured Emp'rs Fund v. Gallegos, 2017-NMCA-044, 115, 395
20 P.3d 533 (internal quotation marks and citation omitted). We look first to the
21 	language of the rule itself, id., and "give effect to the plain meaning of the rule if its
22 	language is clear and unambiguous." Montoya, 2011-NMCA-009, 18 (alteration,
23 	internal quotation marks, and citation omitted). We "will not read language into rules
24 which [our Supreme Court] did not see fit to add unless it is necessary to conform to
8

1 the obvious intent, or to prevent absurdity." State v. Elam, 1989-NMCA-006,, 16,
2 	108 N.M. 268, 771 P.2d 597.
3 	{13} 	By its plain language, Rule 5-203(A) does not apply to probation revocation
4 proceedings, 	which 	are 	brought 	not 	through 	a 	"complaint, 	indictment 	or
5 information" based on alleged criminal "offenses" but rather through a "motion to
6 revoke probation" based on a defendant's "alleged violations." See Rule 5-805(F)
7 (providing that "[w]ithin five (5) days of receiving the probation violation or a
8 summary report, the district attorney shall either file a motion to revoke probation
9 setting forth each of the alleged violations or file a notice of intent not to prosecute
10 the 	alleged 	violations"). 	As 	stated 	previously, 	Defendant-apparently 	now
11 	conceding that Rule 5-203(A) does not apply to probation revocation proceedings-
12 	neither argues that the rule is unclear or unambiguous, nor explains how or why the
13 	rule should be construed to apply in proceedings other than criminal prosecutions of
14 which probation revocation proceedings are not a part. See State v. Sanchez, 2001-
15 	NMCA-060,, 13, 130 N.M. 602, 28 P.3d 1143 (noting that "a probation revocation
16 	hearing 	is 	not part of a criminal prosecution" 	(emphasis added)). 	Moreover,
17 Defendant offers, and we see, no reason to read into Rule 5-203(A) a requirement
18 	that all probation violations be joined in one proceeding or risk forever being barred.
19 That is particularly so given that our Supreme Court has promulgated a separate rule
20 governing the process by which revocation may proceed. See Rule 5-805. Rule 5-
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1 805 establishes a complete procedure for revoking probation, comprising notice
2 requirements, arrest procedures, conditions of release, filing requirements, hearings
3 to be held, and time limits within which actions must be taken, including sanctions
4 for noncompliance with time limits. Id. Critically, Rule 5-805 contains no provision
5 similar to Rule 5-203(A)' s joinder-of-offenses requirement. We conclude Rule 5-
6 203(A) is inapplicable to probation revocation proceedings, and to the extent the
7 district court's dismissal was based on Rule 5-203(A), it was in error.
8 II. 	Defendant's Alternative Theories Supporting Affirmance
9 	{14} 	Having concluded that Rule 	5-203(A) 	does 	not 	apply 	in 	the 	probation
10 revocation context, we next consider Defendant's arguments that dismissal was
11 	proper for any of three other reasons.
12 A.
13
14 	{15}
The District Court's Ruling Was Neither a Denial of the Motion on the
Merits Nor a Sanction Under Rule 5-805
We briefly and summarily dispose of two arguments advanced by Defendant
15 	on appeal. Defendant' s first contention is that the district court's ruling "shows that
16 	[it] , in its discretion, did not believe that the new revocation filed by the State"
17 warranted revocation and imposition of the balance ofDefendant' s sentence. In other
18 	words, Defendant attempts to characterize the district court's ruling as a denial of
19 the Second Motion on the merits rather than a dismissal on procedural grounds based
20 on Defendant' s motion to dismiss, an argument we summarily reject as unsupported
10

1 by the record. The district court granted Defendant's motion to dismiss; it did not
2 deny the Second Motion on the merits.
3 	{16} 	Anticipating this result, Defendant next contends that dismissal was proper
4 because the State failed to bring the Second Motion within the time limits prescribed
5 by Rule 5-805. This argument also fails because dismissal of a motion to revoke
6 probation for failing to comply with the time limits imposed by the Rule rests within
7 the sound discretion of the district court. See Rule 5-805(L) ("In addition to any
8 release of the probationer that may be required by Paragraphs G or H of this rule,
9 the court may dismiss the motion to revoke probation for violating any of the time
10 	limits in this rule." (emphasis added)). Defendant ignores that the district court
11 	expressly declined to exercise that discretion, explaining that the time-limit violation
12 about which Defendant complained was not "so egregious" and Defendant was not
13 	prejudiced in any way by the delay. 4 Defendant's contention that "the [district] court
14 	exercised its discretion [to dismiss the Second Motion] ... on grounds of timeliness"
15 	is 	not 	an 	accurate 	representation 	of the 	district 	court's 	ruling. 	We 	decline
16 Defendant's invitation to affirm the district court's dismissal on a ground that the
17 district court expressly, and in its discretion, rejected.
4 The record reflects that at the time of the second probation revocation
proceeding, Defendant was already "serving about a decade" of time for something
unrelated to the alleged probation violation.
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1 B. 	Due Process Does Not Require Dismissal of the Second Motion
2 	{17} 	Defendant' s final argument is that he "has the right to due process" in a
3 probation revocation proceeding and that the district court "likely . . . intended to
4 extend due process protections"-by which Defendant appears to mean a mandatory
5 joinder 	requirement- 	to 	Defendant's 	second 	probation 	revocation 	proceeding.
6 According to Defendant, "[t]he [district] court properly denied the State's motion to
7 revoke because it was fundamentally unfair to allow the second probation revocation
8 to proceed."
9 	{18} 	Though not entirely clear, Defendant' s due process argument essentially
10 proceeds as follows: The State alleged in its 2014 motion that Defendant violated
11 	his probation by, among other things, (1) possessing pornographic or sexually
12 explicit material 	and 	(2) 	failing to 	obey all 	laws, an 	allegation premised on
13 	Defendant' s possession of pornographic materials containing images that "appear to
14 	be of younger males in their younger teens." Defendant's probation was revoked as
15 	a result of the 2014 motion, albeit based on his admission of the unrelated violation
16 premised 	on 	Defendant' s association 	with Boyfriend, not the 	aforementioned
17 allegations. Because Defendant received a sanction for a probation violation based
18 	on the 2014 motion, and because the 2014 motion contained allegations premised
19 upon 	possession 	of 	pornography 	and 	new 	violations 	of 	law, 	it 	would 	be
20 fundamentally unfair-i.e., a violation of due process- 	to allow the State to again
12

1 seek revocation of Defendant's probation based on the fruits of the same search that
2 formed the basis of the State's prior revocation motion.
3 	{19} 	We review claimed due process violations de novo. See State ex rel. Children,
4 	Youth & Families Dep 't v. Maria C., 2004-NMCA-083,, 17 , 136 N.M. 53, 94 P.3d
5 796. "Root principles of fairness dictate that procedural due process be afforded
6 whenever a government decision threatens to deprive an individual of a fundamental
7 liberty or property interest." Id. , 24. "[D]ue process is a rather malleable principle
8 which must be molded to the particular situation, considering both the rights of the
9 parties and governmental interests involved." State ex rel. Torrez v. Whitaker, 2018-
10 NMSC-005,, 87,410 P.3d 201 (internal quotation marks and citation omitted). "The
11 	amount of process due depends on the particular circumstances of each case." Id.
12 (internal quotation marks and citation omitted). "[N]ot all situations calling for
13 	procedural safeguards call for the same kind of procedure." State v. Guthrie, 2011-
14 NMSC-014,, 11, 150 N.M. 84,257 P.3d 904 (emphasis, internal quotation marks,
15 	and citation omitted).
16 	{20} 	Probation revocation proceedings implicate the possible deprivation of a
17 	defendant's conditional liberty. See State v. Castillo, 2012-NMCA-l 16, , 9, 290
18 	P.3d 727 (explaining that "loss of probation is loss of only conditional liberty"
19 (internal quotation marks and citation omitted)). Consequently, "the full panoply of
20 rights due a defendant in a criminal trial do not apply." Id. 	(alterations, internal
13

1 quotation marks, and citation omitted). Due process in the probation revocation
2 	context requires, at a minimum:
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(a) written notice of the claimed violations ( of probation) . . . ; (b)
disclosure 	to 	the 	(probationer) 	... 	of evidence 	against 	him; 	( c)
opportunity 	to 	be 	heard 	in 	person 	and 	to 	present 	witnesses 	and
documentary evidence; (d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically finds good
cause 	for 	not 	allowing confrontation); 	(e) 	a neutral 	and 	detached
hearing body . . . ; and ( f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking (probation)[.]
12 	Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (internal quotation marks and citation
13 	omitted); see also Guthrie, 2011-NMSC-014,, 12 (quoting Gagnon's due process
14 requirements for a probation revocation proceeding).
15 	{21} 	Defendant does not claim that he was deprived of any of these established
16 procedural protections. 	He then fails to explain with any clarity or principled
17 analysis how allowing the Second Motion to proceed to a hearing on the merits
18 	would constitute a violation of Defendant's due process rights under the particular
19 facts and circumstances of this case. He posits, without citation to relevant authority,
20 that "[i]f due process extends some of the interests behind compulsory joinder to the
21 	probation context, it should require that the prosecution complete its investigation
22 	with some measure of due diligence prior to filing a motion to revoke so that it may
23 	identify all possible violations committed by the defendant thus far in his probation
24 term." 	While 	true 	that "delay 	in the 	institution 	and prosecution 	of probation
25 	revocation proceedings along with a showing of prejudice to the probationer, may
14

1 constitute a denial of due process, thereby requiring the state to waive any right to
2 revoke defendant's probation[,]" it is also well established that the state, in its
3 discretion, "may press for revocation of a probationer's probation before or after his
4 trial on related charges[,]" so long as the state does not unreasonably delay the
5 revocation proceedings. State v. Chavez, 1985-NMCA-003, ,r,r 9-10, 102 N.M. 279,
6 694 P.2d 927. Defendant has neither shown prejudice nor demonstrated that the
7 State's 	election to 	bring a second probation revocation proceeding based on
8 Defendant's new charges was constitutionally unreasonable. Given the lack of
9 clarity regarding both the basis for and law supporting Defendant's due process
10 argument, we are under no obligation to consider Defendant's due process claim
11 	further. See State v. Guerra, 2012-NMSC-014, ,r 21,278 P.3d 1031 (explaining that
12 	appellate 	courts 	are 	under 	no 	obligation 	to 	review 	unclear 	or 	undeveloped
13 	arguments); State v. Duttle, 2017-NMCA-001, ,r 15, 387 P.3d 885 ("For this Court
14 to rule on an inadequately briefed constitutional issue would essentially require it to
15 	do the work on behalf of [the d]efendant.").
16 	{22} 	U_nder the facts and circumstances of this case, Defendant has not established
17 a due process violation in permitting the State to proceed with seeking to revoke
18 	Defendant's probation via the Second Motion. To the extent the district court's
19 dismissal was based on a violation of due process, it was in error.
15

1 CONCLUSION
2 	{23} 	The district court erred in granting Defendant's motion to dismiss the State's
3 Second Motion to revoke Defendant's probation. Because Rule 5-203(A) does not
4 apply to probation revocation proceedings, the district court did not deny the State's
5 Second Motion on the merits, and due process does not compel dismissal of the
6 Second Motion 	in this 	case, 	we 	reverse 	and remand 	for 	further 	proceedings
7 consistent with this opinion.
8 	{24}
9
10
IT IS SO ORDERED.
11 	WE CONCUR:
14 	~/1415 	JEN~ATTREP,Judge
J. MILES HANISEE, Judge
16