State v. Carranza

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 30,133 10 PEDRO CARRANZA, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Lisa C. Schultz, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Liane E. Kerr 18 Albuquerque, NM 19 for Appellant 20 MEMORANDUM OPINION 21 FRY, Chief Judge. 22 Defendant appeals from the district court’s judgment and sentence, entered 23 pursuant to a guilty plea, convicting him for fourth offense DWI. Defendant 24 challenges the length of the period of his probation. We issued a notice of proposed 1 summary disposition, proposing summary affirmance. Defendant responded to our 2 notice with a memorandum in opposition. We have given his response due 3 consideration and remain unpersuaded. We therefore affirm. 4 Defendant argues that the district court imposed an illegal five-year term of 5 supervised probation, which should be reduced to two-and-a-half years. [MIO 3] 6 Defendant argues that the term of probation is illegal because it exceeds and is 7 disproportionate to the eighteen-month maximum term of incarceration permitted for 8 fourth offense DWI. [Id.] Defendant contends that because a violation of his 9 probation may result in serving the remainder of probation in custody, the five-year 10 period of his probation exposes him to a term of incarceration that far exceeds the 11 term of incarceration required for the offense. [Id.] 12 In the present case, Defendant was convicted, pursuant to a guilty plea, for 13 fourth offense DWI, in violation of NMSA 1978, Section 66-8-102(G) (2008). The 14 mandatory sentence is “a term of imprisonment of eighteen months, six months of 15 which shall not be suspended, deferred or taken under advisement.” Section 66-8- 16 102(G). The probation statute requires a term of probation where a sentence is 17 suspended, see State v. Leslie, 2004-NMCA-106, ¶ 7 , 136 N.M. 244 , 96 P.3d 805 , but 18 “the total period of probation for district court shall not exceed five years and the total 19 period of probation for the magistrate or metropolitan courts shall be no longer than [2] 1 the maximum allowable incarceration time for the offense or as otherwise provided 2 by law.” NMSA 1978, Section 31-20-5(A) (1985) (amended 2003) (emphasis added). 3 The district court sentenced Defendant to a term of eighteen months, ordered him to 4 serve six months in the Doña Ana County Detention Center, suspended the year-long 5 remainder of his sentence, and ordered five years of probation. [RP 90] As we stated 6 in our notice, we see no illegality in Defendant’s sentence. It is only in magistrate or 7 metropolitan court that probation is not permitted to exceed the maximum 8 incarceration time for the offense. See § 31-20-5(A). 9 Defendant’s response to our notice does not refer this Court to any authority 10 that suggests that the Legislature intended to restrict the period of probation a district 11 court may impose to reflect the term of incarceration permitted for the offense. Also, 12 Defendant does not refer us to, and we are not aware of, any authority that makes us 13 question the Legislature’s decision to expose Defendant or a defendant in his position 14 to a greater term of incarceration by way of authorizing a five-year term of probation. 15 We understand Defendant’s request, but we see no reason to reconsider our reading 16 of the statute or clarify that the statute permits the proportionally lengthy probation 17 in light of the shorter term of incarceration involved. 18 For these reasons and those stated in our notice, we affirm the sentence imposed 19 by the district court. [4] 1 IT IS SO ORDERED. [2] 3 CYNTHIA A. FRY, Chief Judge 4 WE CONCUR: [5] 6 MICHAEL D. BUSTAMANTE, Judge [7] 8 RODERICK T. KENNEDY, Judge