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State v. Lindsey

Court of Appeals of New Mexico

March 20, 2017

STATE OF NEW MEXICO, Plaintiff-Appellant,
ZACHERY E. LINDSEY, Defendant-Appellee.

         APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM M. Anne Kelly, Assistant Attorney General Albuquerque, NM for Appellant

          Bennett J. Baur, Chief Public Defender Santa Fe, NM Sergio J. Viscoli, Appellate Defender Albuquerque, NM for Appellee


          J. MILES HANISEE, Judge

         {1} Defendant Zachery Lindsey was convicted of two fourth-degree felonies-shoplifting and conspiracy to commit shoplifting-and sentenced as a habitual offender under NMSA 1978, Section 31-18-17(A) (2003), based on his prior conviction for residential burglary. The district court imposed a five-year sentence of imprisonment, which included two mandatory one-year habitual offender enhancements. The court then suspended the sentence in its entirety, finding substantial and compelling reasons to do so, and placed Defendant on probation.

         {2} The State's appeal requires that we address a statute that has yet to be exactingly scrutinized by our appellate courts. To do so, and to ascertain whether the district court erred in suspending the portion of Defendant's sentence earned by virtue of his status as a habitual offender, we must interpret the phrase "substantial and compelling reasons" as contained in Section 31-18-17(A). We affirm Defendant's sentence.


         {3} In October 2013 Defendant pled no contest to residential burglary, a third- degree felony, and larceny, a fourth-degree felony, offenses committed in November 2012 when Defendant was nineteen years old. For those offenses, Defendant received a conditional discharge, contingent upon his successful completion of five years' probation and repayment of up to $1, 417 in restitution.

         {4} In November 2014 while still on probation, Defendant was apprehended as he ran from a Wal-Mart store in Alamogordo, New Mexico. He was indicted for (1) shoplifting (over $500) and (2) conspiracy to commit shoplifting (over $500), both of which are fourth-degree felonies. Defendant again pled no contest to the charges.

         {5} At sentencing, the prosecutor stated that he was "at a loss as to what to do" regarding Defendant, acknowledging Defendant's youth but also stating that Defendant "has done poorly on probation" and "is a young person that appears to be on the road to not a good position in life." The prosecutor suggested that the court "send [Defendant] to [a] diagnostic [center], perhaps as a stop-gap measure, an in-between measure." Defense counsel asked that Defendant's sentence be suspended for "compelling reasons, " including Defendant's youth and that Defendant was by then performing well on probation, paying restitution for his prior offense, gainfully employed, and expecting a child. Undecided, the district judge continued the sentencing proceedings in order to hear from Defendant's probation officer, Wolf Fielenbach.

         {6} At the follow-up hearing, the State reiterated its request for a sixty-day diagnostic commitment. Defense counsel continued to argue for a suspended sentence. Mr. Fielenbach testified that Defendant had done "very well on probation until" he re-offended, but that after spending a couple of weeks in prison Defendant's probation was reinstated, "mainly for the reason that he can pay off his restitution." Mr. Fielenbach explained that Defendant had been "on and off of jobs, " making restitution payments difficult, but that Defendant was employed and "doing well" since being back on probation. He also elevated Defendant's probationary status to "high risk, " meaning that he checked on Defendant once or twice a month and that he usually found Defendant "working in his dad's shop in the evenings." Mr. Fielenbach concluded: "I think he's on the right track." Defendant's father and wife also testified on Defendant's behalf, describing Defendant's demonstrated commitment to his new employment and family and requesting an outcome that would allow Defendant to "continue on the path that he's on."

         {7} In final remarks, the prosecutor argued that Section 31-18-17(A) does not permit a mandatory habitual offender sentence to be suspended "merely" because (1) Defendant resumed restitution payments, (2) Defendant was a married father-to-be, and (3) Defendant was employed. He argued that those attributes are "not defined" as substantial and could not justify imposition of a suspended sentence "in the interest of justice." The prosecutor added that "restitution was the order of another court" and therefore "not something that we can consider now because it's not substantial and compelling." He stated that he was "not necessarily disagreeing with any of it. It's just not substantial and compelling."

         {8} The district court-in accordance with NMSA 1978, Section 31-18-15(A)(13) (2007) and Section 31-18-17(A)-sentenced Defendant to eighteen months for each of the counts on which he was found guilty, adding the one-year enhancements for each of the counts because of his habitual offender status. But the district court found that justice would not be served by Defendant's imprisonment, observing that Defendant had already served fifty-three days of pre-sentence confinement. Therefore, the district court suspended Defendant's entire sentence-including the habitual offender time-and instead placed him on probation "based on the fact that [Defendant is] doing well" and "complying with [the] terms and conditions of probation." Acknowledging the State's argument that Defendant was already required to comply with the terms and conditions of his probation for past violations, the district court nonetheless ruled that "justice is better served by getting [Defendant] on probation and having [Defendant] do what [he's] supposed to do as a requirement of [his] probation" in both the present and past cases. In addition to imposing terms of probation such as random urinalysis, drug and alcohol screening, and prohibiting alcohol consumption, the district court ordered that Defendant attend a "circle of security class" at Children in Need of Services (CHINS), which the court described as "not just a parenting class" but a "wonderful program, " a "life-skills course" that could "really benefit [Defendant]." In its written judgment, the district court stated that "[j]ustice will not be served by [requiring that Defendant serve] the [h]abitual [o]ffender enhancement[s] for the prior nonviolent felony conviction. Defendant is capable of supervision at this time and is doing well on probation in CR-2013-15 as reported by his probation officer, Wolf Fielenbac[h]."

         {9} From this judgment, ...

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