State v. Banghart-Portillo

Office of the
Director New Mexico
Compilation
2022.11.01 Commission
'00'06- 07:47:50
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2022-NMSC-021

Filing Date: September 19, 2022

No. S-1-SC-37389

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

CHRISTINA M. BANGHART-PORTILLO,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Daniel A. Bryant, District Judge

Bennett J. Baur, Chief Public Defender
David Henderson, Appellate Defender
Kimberly M. Chavez Cook, Appellate Defender
Santa Fe, NM

for Defendant-Petitioner

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Plaintiff-Respondent

OPINION

BACON, Chief Justice.

{1} Defendant Christina Banghart-Portillo pleaded guilty to tampering with evidence,
contrary to NMSA 1978, Section 30-22-5 (2003), and conspiracy to commit tampering
with evidence, contrary to NMSA 1978, Section 30-28-2 (1979) (Count 1 and Count 2,
respectively), each of which was a fourth-degree felony offense, under a written plea
agreement. Because Defendant had a prior felony conviction, each sentence was
enhanced at her initial sentencing by one year under New Mexico’s habitual offender
statute, NMSA 1978, Section 31-18-17(A) (2003). Defendant also admitted her identity
in a second prior felony at the time of her sentencing, yet the district court imposed no
additional enhancement at that time. The district court imposed consecutive sentences
on Defendant for a total of five years of incarceration with three years suspended,
leaving her with an initial sentence of two years of incarceration followed by three years
of probation. Defendant violated the terms of her probation over halfway through her
three-year probationary period, prompting the district court to apply a second habitual
offender enhancement, which added a total of three years to the sentence for each
count pursuant to Section 31-18-17(B).

{2} The central issue before this Court is whether Defendant had a reasonable
expectation of finality for Count 1 such that the district court no longer had jurisdiction
when it applied the habitual offender enhancement to that Count. Defendant argues on
appeal that the district court’s enhancement of the Count 1 sentence resulted in a
double jeopardy violation because the court had lost jurisdiction by the time of the
enhancement. The Court of Appeals held that the district court retained jurisdiction to
apply a habitual offender enhancement to Count 1. State v. Banghart-Portillo, A-1-CA-
36917, mem. op. ¶ 3 (N.M. Ct. App. Oct. 24, 2018) (nonprecedential). We originally
granted, then quashed, Defendant’s petition for writ of certiorari. We later granted
Defendant’s motion for rehearing on two narrow issues:

(1) Should this Court adopt State v. Yazzie, 2018-NMCA-001, 410
P.3d 220? If so, does Yazzie answer the question of whether Defendant
had an objectively reasonable expectation of finality in her sentence,
especially given the type of plea agreement?

(2) How does the holding of State v. Mares, 1994-NMSC-123, 119
N.M. 48, 888 P.2d 930, inform the inquiry whether Defendant had an
objectively reasonable expectation of finality in her sentence?

{3} We agree that the district court retained jurisdiction to enhance Defendant’s
sentence for Count 1, but we reach that conclusion guided by the issues on which we
granted rehearing. We further clarify that a defendant must be reasonably informed
when a sentence of probation is imposed on multiple counts in the aggregate such that
a habitual offender enhancement will apply to all counts throughout the entire
probationary period.

I. BACKGROUND

A. Factual Background

{4} According to the charging documents in Defendant’s case, Officer Steven Minner
pulled over Defendant and Anthony Banghart because their vehicle had a broken
taillight. Officer Minner arrested Defendant, and a fellow officer arrested Mr. Banghart
because both had outstanding warrants. After the two were booked, another officer
observed Mr. Banghart remove an object from his clothing near his abdomen area and
pass it to Defendant. Defendant then attempted to swallow the object but was unable to
and “coughed it up.” Defendant gave the object back to Mr. Banghart, and he put it back
in his clothing. The observing officer relayed this information to Officer Minner. The two
officers then searched Mr. Banghart and discovered two pieces of plastic that contained
heroin.

1. Defendant’s plea and sentencing

{5} Defendant pleaded guilty to one count of tampering with evidence, contrary to
Section 30-22-5, and one count of conspiracy to commit tampering with evidence,
contrary to Section 30-28-2. The plea agreement provided that “[t]he State may bring
habitual offender proceedings, as provided by law, based on any convictions not
admitted in this plea. The State may also choose to withdraw this plea agreement if it
discovers any such convictions.” At the plea hearing, the State informed the district
court that it had reason to believe Defendant may have prior convictions under a
different name and needed time to investigate. The district court then instructed
Defendant that if she had

two prior felony convictions, then [the court] could add four years to each
of [her underlying offenses], and if that is the case, none of that time is
able to be deferred by [the court] or suspended, you understand? So
[Defendant] would have to serve a minimum of four years [per offense] in
the state penitentiary.

Defendant indicated that she understood.

{6} Approximately one month later, the State filed a supplemental criminal
information, alleging that Defendant had committed two prior felonies. At the sentencing
hearing, defense counsel informed the court that Defendant would admit her identity in
both prior felonies. Defense counsel further explained that the State had agreed to seek
enhancement for only one prior felony and to hold the other in abeyance. The district
court reminded Defendant that she did not need to admit to the two prior felony
convictions and that the State had the burden of proving its allegations in the
supplemental information. Defendant and the district court then had the following
exchange:

Judge: If you make that admission [to the two prior felony offenses] today,
you are making it very easy for the court in the future to give you four
additional years and that would be per count, so that could be eight years,
because I’m running these consecutive to each other. You understand that
it could be an eight-year sentence for you if you violate probation.

Defendant: Yes Ma’am.

{7} The district court sentenced Defendant to eighteen months in prison for Count 1
and eighteen months in prison for Count 2 and added a one-year habitual offender
enhancement to each, for a total of five years of incarceration. The district court
suspended three years of Defendant’s incarceration relating to Counts 1 and 2 and
instead imposed three years of probation to begin after her release from her two-year
prison sentence relating to her habitual offender enhancements. 1 Finally, the district
court provided that Defendant would serve a mandatory parole term of one year
following her incarceration to run concurrent with her term of probation.

2. Defendant’s release from prison and probation violations

{8} Defendant began her probationary period after being released from prison.
Defendant violated probation multiple times, prompting the State to file a petition to
revoke Defendant’s probation on three occasions. The district court revoked then
reinstated Defendant’s probation on the first two occasions. The district court then
revoked Defendant’s probation following the State’s third petition, just over halfway into
Defendant’s probation term, and enhanced her sentences for Counts 1 and 2 by three
years each, pursuant to Section 31-18-17(B).

B. Procedural Background

{9} Defendant filed pleadings opposing the district court’s habitual offender
enhancements for both counts. Defendant argued, among other things, that the written
plea agreement imposed a maximum term of three years of incarceration and that she
completed her sentence as to Count 1 after serving over half of her three-year
probationary period, such that the district court lost jurisdiction to enhance it. This
argument was based on Defendant’s assertion that the first eighteen months of her
probation corresponded to Count 1, and the second eighteen months of her probation
corresponded to Count 2. The district court rejected Defendant’s arguments, finding that
her three-year probationary period was unitary and, as a result, that she was still on
probation for and subject to enhancement on both Count 1 and Count 2 throughout the
entire three-year term.

{10} Defendant appealed to our Court of Appeals, which held that the district court
retained jurisdiction to enhance Defendant’s sentence on both counts. Banghart-Portillo,
A-1-CA-36917, mem. op. ¶¶ 1, 3. It reasoned that “it did not appear that Defendant’s
judgment and sentence was structured for time served on probation to correspond with
any particular conviction.” Id. ¶ 3. As such, Defendant “had no reasonable expectation
of finality as to [C]ount [1] or any limitation on the enhancement prior to the completion
of her entire probationary period.” Id. (citing Yazzie, 2018-NMCA-001, ¶ 14). Defendant
then timely petitioned this Court for a writ of certiorari under Rule 12-502 NMRA. We
granted, then quashed certiorari. We subsequently granted Defendant’s motion for
rehearing to determine whether Yazzie is controlling in this matter and to consider the
impact Mares has on our analysis.

II. DISCUSSION

{11} “[W]hether a trial court has jurisdiction in a particular case is a question of law
that we review de novo.” Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M.
786, 171 P.3d 300. “We generally apply a de novo standard of review to the

1Section 31-18-17(A) provides that a sentence under the habitual offender statute “shall not be
suspended or deferred” absent circumstances not present in the instant matter.
constitutional question of whether there has been a double jeopardy violation.” State v.
Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d 745. Additionally, to the extent that this
Court is required to interpret a plea agreement, the terms of the plea agreement are
also reviewed de novo. State v. Gomez, 2011-NMCA-120, ¶ 9, 267 P.3d 831.

{12} “In New Mexico, the jurisdiction of a trial court to enhance a felony sentence
under the habitual offender statute expires once a defendant has completed service of
that sentence.” State v. Lovato, 2007-NMCA-049, ¶ 6, 141 N.M. 508, 157 P.3d 73. “This
jurisdictional limitation is founded upon principles of double jeopardy: once a sentence
has been served, a defendant’s punishment for the crime has come to an end.” Id.
(internal quotation marks and citation omitted). “Such double jeopardy concerns are
only implicated if the defendant has an objectively reasonable expectation of finality in
the sentence.” Yazzie, 2018-NMCA-001, ¶ 11. “[A d]efendant must establish that the
district court did not have jurisdiction to impose the additional enhancement by proving
two things: (1) that [the d]efendant had an expectation of finality in [the defendant’s]
original sentence, and (2) that the expectation was reasonable.” Id.

{13} We use the two questions on which we granted rehearing to guide our analysis.
First, we determine whether Yazzie is controlling in this matter. Second, we determine
what the holding in Mares adds to our analysis.

A. Yazzie Does Not Answer Whether Defendant Had an Objectively
Reasonable Expectation of Finality for Count 1

{14} To determine whether Defendant had a reasonable expectation of finality in her
sentence relating to Count 1, we analyze the written terms of the plea agreement and
the circumstances surrounding the plea agreement. “A plea agreement is a unique form
of contract whose terms must be interpreted, understood, and approved by the district
court.” Yazzie, 2018-NMCA-001, ¶ 9 (internal quotation marks and citation omitted).
When interpreting a plea agreement, appellate courts construe the agreement’s terms
according to “what [the d]efendant reasonably understood when [the defendant] entered
the plea.” Id. (first alteration in original) (internal quotation marks and citation omitted).
“If the language in the written agreement is ambiguous, it is the district court’s task to
resolve that ambiguity with the parties.” Id. In this case, the Court of Appeals relied on
Yazzie to hold that Defendant had no reasonable expectation of finality in her sentence.
Banghart-Portillo, A-1-CA-36917, mem. op. ¶ 3. The State similarly argues that Yazzie
is analogous to this case and that we should affirm the Court of Appeals’ analysis. For
the reasons that follow, we disagree that Yazzie is dispositive in this case.

{15} In Yazzie, the terms of the written plea agreement provided that the defendant
“would receive a three-year sentence on Count 1 and a one-and-one-half-year sentence
on Count 2.” Yazzie, 2018-NMCA-001, ¶ 3. Under the terms of the plea agreement, the
State filed a supplemental information charging the defendant as the same person
convicted of three other felony offenses. Id. The defendant admitted his identity in the
three additional charges and received a habitual offender enhancement of eight
additional years on Count 2. Id. Similar to this case, three years of the defendant’s
sentence in Yazzie were suspended, and the district court ordered his placement on
supervised probation for three years following his incarceration. Id. ¶¶ 13-14. The
defendant also agreed that if he “later violate[d] that probation, he may be incarcerated
for the balance of the sentence and have an eight[-]year habitual enhancement apply to
Count 1.” Id. ¶ 14 (first alteration in original) (emphasis added) (internal quotation marks
omitted).

{16} The district court in Yazzie later concluded that the defendant had violated his
probation, and the court imposed a habitual offender enhancement on Count 1. Id. ¶ 7.
The defendant argued on appeal that he had completed his sentence for Count 1 at the
time the district court enhanced his sentence. Id. ¶ 8. The Court of Appeals held that,
under the express terms of the plea agreement, “[the d]efendant would have expected
to serve a three-year period of probation and be subject to additional enhancement of
the sentence imposed for Count 1 during the entire period of his probation.” Id. ¶ 14.
Accordingly,

[b]ecause neither the plea agreement nor the judgment and sentence
structured [the d]efendant’s sentence such that the time served on
probation corresponded with a particular conviction, [the d]efendant had
no reasonable expectation of finality as to Count 1 or any limitation on the
enhancement of Count 1 prior to the completion of his entire three-year
period of probation.

Id.

{17} The Court of Appeals here relied on Yazzie in large part for its conclusion that
Defendant’s “probation term was not assigned to run in accordance with either of the
counts, but rather in total time.” Banghart-Portillo, A-1-CA-36917, mem. op. ¶ 3. Thus,
Defendant “was . . . still subject to the district court’s jurisdiction for enhancement of
both counts.” Id. Defendant argues that the factual distinctions in Yazzie render it
inapplicable to this case. While we acknowledge that the facts of Yazzie are distinct
from this case, we agree with Yazzie’s holding that a unitary probationary term
encompassing more than one count is permissible, so long as the defendant is
reasonably informed of what to expect under the terms of the plea agreement and
sentence. Yazzie, 2018-NMCA-001, ¶ 14. However, for the reasons that follow, we look
beyond Yazzie to decide whether the district court in this case retained jurisdiction to
enhance Defendant’s sentence for Count 1.

{18} First, the express terms of the plea agreement in Yazzie were clear that the
defendant would receive a habitual offender enhancement of up to eight years on Count
1 if he violated probation. Yazzie, 2018-NMCA-001, ¶ 4. Here, no such language
existed in Defendant’s written plea agreement. In fact, Defendant’s written plea
agreement only specifies that she faced zero to three years of incarceration. Second,
the plea agreement in Yazzie further specified that an enhancement of eight years
already attached to Count 2 at the time of the defendant’s sentencing. Id. ¶ 3. As such,
when the defendant in Yazzie violated the terms of his probation, the only count that the
district court had not yet enhanced was Count 1. In this case, Defendant’s written plea
agreement was silent about the possibility of enhancement of either count if she violated
probation. Based on these distinctions, it follows that the defendant in Yazzie could
have reasonably expected to receive an eight-year enhancement on Count 1 according
to the express terms of his plea agreement and the structure of his sentence. Here, in
contrast, the express terms of the plea agreement and structure of the sentence did not
create such a clear and reasonable expectation for Defendant. Thus, Defendant’s
written plea agreement was ambiguous in the sense that it did not specify the
consequences she faced if she violated probation following her admission of the two
prior felonies.

{19} Accordingly, we must look beyond Defendant’s written plea agreement and
determine whether the district court resolved the ambiguities about the consequences of
a probation violation. See Yazzie, 2018-NMCA-001, ¶ 9.

B. Any Ambiguities in the Plea Agreement Were Cured Pursuant to Mares

{20} Following our determination that Defendant’s written plea agreement was
ambiguous, we now must analyze whether the district court resolved the ambiguity and
thus reasonably informed Defendant of what she could expect if she violated probation.
Id. This Court held in Mares that “[i]f the [district] court resolves alleged ambiguities [in
the plea agreement] and no further objection is made, the agreement is no longer
ambiguous on those points addressed by the court.” 1994-NMSC-123, ¶ 12. In Mares,
the defendant “entered into a plea agreement under which he . . . plead[ed] nolo
contendere to one count of trafficking cocaine.” Id. ¶ 2. The plea agreement provided
that the defendant would be sentenced to nine years of imprisonment. Id. ¶ 3. The
district court suspended all but seventy days of the defendant’s sentence and imposed
forty-eight months of probation. Id. During the sentencing hearing, defense counsel
inquired about the period of incarceration the defendant faced if he violated probation.
Id. ¶ 4. The district court responded that the defendant faced a potential of nine years of
incarceration if he violated probation. Id. Consequently, this Court held that “the [district]
court resolved any ambiguity regarding the period of incarceration facing [the defendant]
in the event he violated the conditions of his probation.” Id. ¶ 13.

{21} Mares, unaddressed by the dissent, informs the outcome of this case. The district
court here resolved any ambiguities present in the plea agreement by informing
Defendant of the potential consequences if she violated probation. The dissent
maintains that “defendants have the right to be clearly informed by the words of a plea
agreement and by the district court regarding the consequences of these types of pleas,
particularly when they stipulate to prior felonies.” Dissent, ¶ 37. However, Mares
instructs that when a plea agreement is ambiguous, the district court may clarify the
terms of the agreement and cure the ambiguities. Mares, 1994-NMSC-123, ¶ 12. That is
what occurred in this case. The district court specifically informed Defendant that if she
admitted to both prior felonies, a probation violation would result in a four-year habitual
offender enhancement on each of her counts, totaling eight additional years of
incarceration. This clarification occurred on more than one occasion. First, the district
court informed Defendant of the consequences of having two prior felonies at her plea
hearing, before the State filed the supplemental information. Second, the district court
ensured that Defendant understood the consequences of admitting to the two prior
felonies at her sentencing hearing after the State filed the supplemental information.
Defendant had the opportunity to object or withdraw the plea at this time, but she did
not.

{22} Thus, like in Mares, the district court here cured any ambiguities present in the
plea agreement about the potential consequences of a probation violation. Based on
that clarification, Defendant should have reasonably expected that she faced an
additional eight years of incarceration if she violated probation and that each Count was
subject to a habitual offender enhancement throughout her entire probationary period.
As a result, Defendant has failed to prove that she had a reasonable expectation of
finality as to Count 1. See Yazzie, 2018-NMCA-001, ¶¶ 10-11 (holding that a defendant
must prove that his or her expectation of finality was reasonable in order to establish
that the district court did not have jurisdiction to impose an additional enhancement).

C. Defendant’s Remaining Arguments Do Not Alter Our Analysis

{23} Defendant and the dissent rely on Lovato, 2007-NMCA-049, to argue that
because Defendant had served over half of her probation, the district court lost
jurisdiction to enhance Count 1. Lovato is inapplicable here. In Lovato, similar to this
case, the defendant was convicted of multiple felony counts. Id. ¶ 2. The defendant
argued that because he already served his incarceration period and parole for the first
count, the district court lost jurisdiction to enhance that sentence. Id. ¶ 4. However,
crucially, the defendant in Lovato had not been adjudicated as a habitual offender prior
to the completion of his sentence for the first count. Id. ¶ 3. Accordingly, the Court of
Appeals held that the defendant could not have reasonably expected that count to be
enhanced. Id. ¶ 10; see also State v. Gaddy, 1990-NMCA-055, ¶ 8, 110 N.M. 120, 792
P.2d 1163 (“An unenhanced sentence remains a valid sentence until it is determined
that [a] defendant is a habitual offender and that the underlying sentence is subject to
enhancement.”). Here, when Defendant entered her plea, she admitted her identity for
two prior felonies and acknowledged that her sentence could be enhanced up to eight
additional years if she violated probation. Lovato therefore is inapposite.

{24} Defendant further contends that structuring her probation as one unitary block for
both Counts is impermissible under Brock v. Sullivan, 1987-NMSC-013, 105 N.M. 412,
733 P.2d 860. In Brock, we examined an instance where the defendant was convicted
of four fourth-degree felony offenses and was sentenced to eighteen months of
incarceration for each offense. Id. ¶ 1. Each of the defendant’s sentences also included
a term of parole. Id. ¶ 3. An unusual issue arose in Brock when the Parole Board
“separated each parole period from the underlying sentence and period of imprisonment
imposed thereon and, in effect, tolled commencement of the parole periods until the
sentence on the last consecutive offense was served.” Id. ¶ 4. We held that this
instance of “stacking of multiple parole periods” is impermissible under New Mexico law.
Id. ¶ 6 (footnote, internal quotation marks, and citation omitted). Accordingly, we held
that the defendant must serve each of his parole sentences immediately after
completing the period of incarceration for the corresponding sentence and concurrently
with any consecutive sentence of incarceration. Id. ¶ 13.
{25} Defendant’s arguments under Brock must fail. Nothing in Brock suggests that its
holding or principles apply in parallel to both parole and probation. In fact, our analysis
in Brock centered explicitly around statutes relating to parole only. See generally Brock,
1987-NMSC-013. Defendant makes no argument as to why our holding prohibiting
fragmenting of parole periods similarly applies to probation. Moreover, a unitary block of
probation would not result in the type of “stacking” prohibited by Brock. See id. ¶¶ 6-7.
Brock recognized an exception where parole may be served in prison to prevent
fragmenting. Id. ¶ 13. Probation, by its nature, cannot be served in prison. 2 As a result,
a term of probation is necessarily separate from the corresponding sentence of
incarceration when, as in this case, a defendant is sentenced to periods of incarceration
and probation on multiple counts. Therefore, Brock does not change our rejection of
Defendant’s challenge to probation imposed as a unitary block in this case.

D. Plea Agreements Should Specify When a Probationary Period Is to Be
Served in the Aggregate

{26} While holding that the district court cured any apparent ambiguities in
Defendant’s plea agreement pursuant to Mares, we also emphasize the importance of
clarity in plea agreements. We note that the result in this case may very well have been
different if the district court had not made it clear that Defendant faced up to eight
additional years of incarceration if she violated probation. We caution the sentencing
court and counsel for the parties to ensure that it is clear to a defendant accepting a
plea whether probation is to be served in a unitary block. This will provide the defendant
notice that a habitual offender enhancement may apply to all counts for the duration of
the probationary period if a violation occurs. We further clarify that there can be no
presumption that a probationary term will be served in the aggregate absent explicit
language in the plea agreement or clarification by the district court. Failing to make this
specification would create an ambiguity in the plea and undermine a defendant’s
reasonable expectation of finality.

III. CONCLUSION

{27} We conclude that Defendant did not have a reasonable expectation of finality in
Count 1 at the time that the district court enhanced Defendant’s sentence because the
district court had previously informed her of the consequences she faced if she violated
probation. Therefore, we affirm the Court of Appeals and hold that the district court
properly retained jurisdiction to apply a habitual offender enhancement to Count 1.

{28} IT IS SO ORDERED.

C. SHANNON BACON, Chief Justice

2NMSA 1978, Section 31-21-5(B) (1978), the definitions section of the Probation and Parole Act, defines
probation as “the procedure under which an adult defendant, found guilty of a crime upon verdict or plea,
is released by the court without imprisonment under a suspended or deferred sentence and subject to
conditions.” (Emphasis added.)
WE CONCUR:

JULIE J. VARGAS, Justice

CINDY LEOS, Judge, sitting by designation

DAVID K. THOMSON, Justice, dissenting

BRIANA H. ZAMORA, Justice, concurring in dissent

THOMSON, Justice (dissenting).

{29} The majority, maj. op. ¶ 12, rightly acknowledges that “[i]n New Mexico, the
jurisdiction of a trial court to enhance a felony sentence under the habitual offender
statute expires once a defendant has completed service of that sentence.” Lovato,
2007-NMCA-049, ¶ 6 (citing Gaddy, 1990-NMCA-055, ¶ 8) (“[T]he trial court was
deprived of jurisdiction to impose a habitual offender enhancement after the defendant
had completely served the underlying sentence.”); March v. State, 1989-NMSC-065, ¶¶
5, 7, 13, 109 N.M. 110, 782 P.2d 82 (holding that the trial court had no jurisdiction to
enhance the defendant’s sentence because the earning of meritorious deductions had
brought the defendant’s service of his sentence to an end). After quashing its writ of
certiorari in this case, this Court granted Defendant’s motion to reconsider the appeal,
accepting Defendant’s request to “rehear its quash order as to Count 1 only.” I
appreciate the Court’s willingness to rehear its order to quash, but I disagree with the
majority’s conclusions. I am not convinced that it is lawful to extend a district court’s
jurisdiction by applying the aggregate three-year term of probation to each count in this
case when the sentence provides that each count shall run consecutively and that each
count be enhanced separately. Put simply, whereas here there is no part of the
sentence for count one to be served, there is no part of a defendant’s sentence to be
enhanced. “Once a defendant has completely served his or her underlying sentence,
the district court loses jurisdiction to enhance that sentence, even if the state filed the
supplemental information before the defendant finished serving the underlying
sentence.” State v. Godkin, 2015-NMCA-114, ¶ 20, 362 P.3d 161, 167 (text only)
(quoting State v. Roybal, 1995-NMCA-097, ¶ 4, 120 N.M. 507, 903 P.2d 249). 3 Here it is
indisputable that Defendant completely served her underlying sentence with regard to
Count 1 before the district court’s exercise of jurisdiction to enhance that sentence.

{30} I appreciate the considered guidance the majority provides regarding how a
defendant could be better informed about the structure, term, and finality of a sentence
when faced with the facts of this case. See maj. op. ¶ 26. I also agree with the majority’s
conclusion that reliance on Yazzie, 2018-NMCA-001, ¶ 9, to quash certiorari in this case
was misguided. Maj op. ¶ 14. Respectfully, however, I believe that the majority’s opinion
does little to resolve the issue in this case, which is the propriety of an enhancement of

3The “text only” parenthetical used herein indicates the omission of any of the following⸻internal
quotation marks, ellipses, and brackets⸻that are present in the text of the quoted source, leaving the
quoted text itself otherwise unchanged.
the underlying sentence on a count where that sentence is completed. Despite the
needed guidance it provides, the majority opinion’s ultimate holding essentially reaffirms
the original decision to quash certiorari. Because I conclude, guided by Lovato, that the
trial court has no authority to enhance Defendant’s sentence for Count 1 as that
sentence has been completely served, I respectfully dissent. 4

{31} Defendant like all defendants “should be able to negotiate the terms of a plea
agreement to the full extent allowed by law[, including] . . . a maximum potential
incarceration provision in exchange for a guilty plea . . . that governs both sentencing
and post-sentencing procedures.” Mares, 1994-NMSC-123, ¶ 11. The instant felony
charges Defendant was resolving at the plea hearing were tampering with evidence and
conspiracy to tamper with evidence. At Defendant’s sentencing hearing, the State
presented two prior felony convictions, one for forgery and one for worthless checks.
The State agreed to pursue only one of the prior felonies and hold the others in
abeyance. This resulted in a one-year enhancement on the instant felony charge.

{32} Concerning the State’s ability to seek sentencing enhancements based on prior
convictions, the written plea agreement in this case simply provided, “The State may
bring habitual offender proceedings, as provided by law, based on any convictions not
admitted in this plea.” At the plea hearing, the State advised the district court that it
needed an opportunity to investigate possible prior convictions to determine whether it
would bring habitual offender proceedings. The district court then informed Defendant
that, under the agreement, if she had one prior felony conviction her sentence could be
enhanced by one year for Count 1 and one year for Count 2, and Defendant indicated
that she understood.

{33} Defendant’s written plea agreement acknowledged that “[s]entencing remains in
the discretion of the court” and that “Defendant may be ordered to serve a term of
incarceration of between zero (0) and three (3) years” based on running the “maximum
basic sentence of eighteen (18) months” for tampering with evidence (Count 1) and the
“maximum basic sentence of eighteen (18) month for conspiracy” (Count 2)
consecutively. Defendant received the maximum sentence for the two instant felonies.
The Judgment, Sentence, and Order Partially Suspending Sentence imposed an
eighteen (18) month sentence on Count 1 and an eighteen (18) month sentence on
Count 2, noting that the sentence for Count 2 was to run consecutively, after Count 1.
Consecutive sentences is defined as “two or more sentences of jail time to be served in
sequence.” Black’s Law Dictionary (11th ed. 2019) at 1636. The sentence for each
count was enhanced by one year, based on a finding that Defendant was a habitual
offender, and on her admission to one previous offense, with an oral acknowledgement
that a second admission was held in abeyance. Running the sentences consecutively—
and attaching a one-year enhancement to the basic sentence of each—the district court
reached a five-year total sentence. The district court also suspended three years of the

4The majority focuses most of its analysis on ambiguity created in the plea agreement and maintains that,
because the district court resolved those ambiguities post plea, Defendant’s argument fails. Because
Defendant asks us to review only the enhancement of the Count 1 sentence, and because I would decide
that the district court lacks jurisdiction to enhance Count 1, I do not address the plea-agreement-
ambiguity portion of the majority opinion. See maj. op. ¶ 20.
five-year sentence, leaving two years as the actual term of imprisonment. Thus the
actual sequence of the sentence is as follows: Defendant is sentenced for two-and-one-
half years on Count 1 (18 months for the crime and one year for being a habitual
offender), Defendant serves that sentence for Count 1, and then Defendant starts to
serve the same amount of time for Count 2. This applies the credit for time served to
Count 1 first as that is its sequence in Defendant’s sentence. As discussed below,
regardless of how the majority wants to interpret the probationary terms or whether the
plea was amended after the fact, under a consecutive sentence the sentence for Count
1 must be served before the sentence for Count 2 can begin. In this case the sentence
for Count 1 was served, and when that happened the trial court lost jurisdiction to
enhance the sentence for Count 1.

{34} This conclusion is not only what a plain reading of “consecutive” requires but is
also what the statute governing the use of prior felonies requires. Each “prior felony
conviction” must apply to the “basic sentence” of the “instant felony.” Section 31-18-
17(A) (providing that the basic sentence for the instant felony “shall be increased by one
year” for “one prior felony conviction”); § 31-18-17(B) (providing that the basic sentence
for the instant felony “shall be increased by four years” for “two prior felony
convictions”); § 31-18-17(C) (providing that the basic sentence for the instant felony
“shall be increased by eight years” for “three or more prior felony convictions”). State
law also requires that Defendant receive credit on her suspended sentence for time
served on probation. NMSA 1978, § 31-21-15(A)-(B) (2016) (stating that if imposition of
sentence was deferred and a probationer has violated any condition of release, “the
court may impose any sentence that might originally have been imposed, but credit
shall be given for time served on probation”).

{35} In February 2016 Defendant was released from a two-year term of incarceration
and began probation. Following Defendant’s arrest in October 2017 for a probation
violation, the district court revoked probation and enhanced the sentence for Count 1 by
three years. Between the time when her probationary period began and when it was
revoked Defendant had completed 612 days of probation. Combined with presentence
credit of 164 days—for a total of 2.1 years—and with one year of the period of
incarceration applicable to Count 1, Defendant’s total sentence served was well over
the two-and-one-half years she was obligated to serve on Count 1. Thus, based on its
own explanation, the district court could not effectively sentence Defendant to serve any
period of incarceration on Count 1 as of when she had successfully served 1.5 years on
probation.

{36} “Whenever the period of suspension expires without revocation of the order, the
defendant is relieved of any obligations imposed on him by the order of the court and
has satisfied his criminal liability for the crime.” NMSA 1978, § 31-20-8 (1977). If the
district court could not revoke Defendant’s probation and incarcerate Defendant for any
portion of the suspended sentence on Count 1, the district court lacked jurisdiction to
enhance Defendant’s sentence on Count 1. See Lovato, 2007-NMCA-049, ¶ 6 (“In New
Mexico, the jurisdiction of a trial court to enhance a felony sentence under the habitual
offender statute expires once a defendant has completed service of that sentence.”).
The district court’s minimal explanation to Defendant at a subsequent sentencing
hearing—that admitting a second prior at that time would make it “very easy for a court
in the future to give [Defendant] four additional years, and that would be per count and
could be for eight years”—cannot persuade this Court to determine that Defendant
agreed to amend her initial plea agreement by an illegal extension of the sentence in
Count 1 beyond two and one half years.

{37} Finally, the holding of the majority along with, in my view, the misguided holding
of Yazzie should serve a note of caution for defendants who agree to consolidate
charges into one plea agreement, especially when it is likely they will be sentenced
consecutively. In my view, defendants have the right to be clearly informed by the words
of a plea agreement and by the district court regarding the consequences of these types
of pleas, particularly when they stipulate to prior felonies.

{38} Therefore, I would reverse the Court of Appeals in part and hold that allowing the
district court to enhance Defendant’s sentence on Count 1 violates concepts of double
jeopardy. At the time Defendant entered into the plea agreement, she had an objectively
reasonable expectation of finality in her sentence as to Count 1, and she had served in
excess of her basic sentence and enhancement before her arrest for probation violation.
The district court lacked jurisdiction to impose further periods of incarceration on Count
1 at that point. See March, 1989-NMSC-065, ¶ 5 (“A defendant’s objectively reasonable
expectation of finality in sentencing for double jeopardy purposes turns upon NMSA
1978, Section 31-18-19 ([1977]), which declares it is the duty of the district attorney to
bring the habitual offender charge ‘at any time, either after sentence or conviction,’ [but ]
the statute does not say ‘after serving of sentence.’”); see also § 31-20-8 (relieving a
defendant “of any obligations imposed on him by the order of the court” when the
defendant “has satisfied his criminal liability for the crime” and “the period of suspension
expires without revocation of the order” of suspension).

DAVID K. THOMSON, Justice

I CONCUR:

BRIANA H. ZAMORA, Justice