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State v. Yazzie

Court of Appeals of New Mexico

June 7, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
FRANK YAZZIE, Defendant-Appellant.


          Hector H. Balderas, Attorney General Santa Fe, NM Jane A. Bernstein, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Sergio Viscoli, Appellate Defender David Henderson, Assistant Appellate Defender Santa Fe, NM for Appellant.


          TIMOTHY L. GARCIA, Judge.

         {1} On appeal, Defendant challenges the district court's imposition of a habitual offender enhancement to his sentence following a violation of his probation. Defendant raises two issues on appeal. First, Defendant argues that he was not subject to enhancement at the time of the probation violation because he had completed his sentence as to that particular conviction under his plea agreement. Second, Defendant argues that the district court erred in not applying the 2002 amendment to the habitual offender statute, NMSA 1978, § 31-18-17 (1993, amended 2002 and 2003), limiting the time period that the district court may consider prior felonies. We affirm the district court's ruling regarding Defendant's probation violation and its application of the habitual offender statute.


         {2} On April 2, 2002, Defendant Frank Yazzie, also known as Paul Throckmorton, entered into a repeat offender plea and disposition agreement (the plea agreement) by which he agreed to plead no contest to one count of third degree aggravated battery causing great bodily harm (Count 1), and one count of fourth degree aggravated assault with a deadly weapon (Count 2), for offenses occurring on or about September 19, 2001. Pursuant to the plea agreement, all other crimes for which he had been charged were dismissed.

         {3} In pertinent part, the terms of the plea agreement provided that, as to sentencing, Defendant would receive a three-year sentence on Count 1 and a one-and-one-half-year sentence on Count 2. These sentences were to be served consecutively. Under the terms of the plea agreement, the State also filed a supplemental information charging Defendant as the same person convicted of the following felony offenses, to which Defendant admitted his identity: (1) aggravated assault on September 7, 1977, in Coconino County Superior Court, Arizona (two counts); (2) interstate transportation of a stolen motor vehicle and interstate transportation of stolen property (traveler's checks) on May 6, 1983, in the United States District Court for the District of New Mexico (four counts); (3) assaulting, resisting, or impeding a Department of Veteran Affairs law enforcement officer on June 19, 1992, in the United States District Court of New Mexico (one count). As a result of Defendant's admission regarding his prior felonies, the sentence on Count 2 received a habitual offender enhancement of eight years of mandatory incarceration. The plea agreement further stipulated that three years of Defendant's underlying sentence for Counts 1 and 2 would be suspended but was silent as to which specific count the suspended sentence related. This gave Defendant an initial incarceration exposure of at least eight years and up to nine and one-half years.

         {4} Finally, the plea agreement stated that if the district court accepted the agreement, Defendant could also "be ordered to serve a period of probation." If Defendant later violated his probation, "he [could] be incarcerated for the balance of the sentence and have an [additional] eight . . . year habitual enhancement apply to Count 1; thus [as to] Count 1[, D]efendant could be incarcerated for up to eleven . . . years with two . . . years of parole if probation is violated."

         {5} The district court accepted the plea agreement and sentenced Defendant consistent with its terms on June 28, 2002. The district court entered a judgment, partially suspended sentence, and commitment (the judgment and sentence), which stipulated that Defendant was to be imprisoned for the term of:

three . . . years as to Count 1, one-and-one-half . . . years . . . as to Count 2, enhanced by eight . . . years pursuant to the habitual offender statute, all to run consecutive with each other for a total of twelve and one-half . . . years, of which three . . . years [were] suspended, for an actual sentence of imprisonment of nine and one-half . . . years.

         The district court further imposed three years of probation and two years of parole following Defendant's release from incarceration. At the sentencing hearing, the district court explained that Defendant would serve probation concurrent with parole. Defendant also received pre-sentence confinement credit. Similar to the plea agreement, neither the district court's remarks at the sentencing hearing nor the judgment and sentence is clear as to which count the three-year suspension of Defendant's sentence was intended to apply towards.

         {6} Defendant was released from prison and began serving his three-year term of probation on March 19, 2011-running concurrently during the first two years with his term of parole. Defendant had served the bulk of his probation when the State alleged that Defendant violated the conditions of his probation and filed a motion to revoke his probation on December 16, 2013. Defendant and the State appeared before the district court for a probation revocation hearing on February 4, 2014. At the probation revocation hearing, the State filed a supplemental information in open court charging Defendant as a habitual offender on the basis of his prior felony convictions. Prior to the hearing, Defendant filed a motion to preclude the State's proposed enhancement of Defendant's sentence, arguing that Defendant had completed his sentence as to Count 1, the un-enhanced third degree aggravated battery offense, and had already served an eight-year enhancement on Count 2 and therefore, the State was precluded from seeking enhancement of the aggravated battery offense.

         {7} Following the presentation of evidence, the district court found that the State had satisfied its burden of demonstrating that Defendant had violated his probation. The court then addressed Defendant's motion. Following argument by the parties, the district court ruled that Defendant had prior felony convictions that supported enhancement based upon the supplemental information filed by the State, as well as the plea agreement and the judgment and sentence. The court denied Defendant's motion to preclude enhancement of his sentence and enhanced Defendant's ...

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