FROM THE DISTRICT COURT OF BERNALILLO COUNTY Benjamin Chavez,
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.
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.
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.
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.
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
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
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.
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.
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
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