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State v. Aslin

Court of Appeals of New Mexico

February 28, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JEFFREY ASLIN, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY T. Glenn Ellington, District Judge

          Hector H. Balderas, Attorney General Marko D. Hananel, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender C. David Henderson, Appellate Defender MJ Edge, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          LINDA M. VANZI, CHIEF JUDGE.

         {¶1} Defendant Jeffrey Aslin raises two issues on appeal challenging the district court's decision revoking his probation. First, he argues that there was insufficient evidence of willfulness to support the finding that he violated probation. Second, he argues that the district court abused its discretion in ruling that the violation was not a "technical violation" under the First Judicial District's technical violation program (TVP). We affirm on the first issue and reverse and remand on the second.

         BACKGROUND

         {¶2} In November 2013, Defendant was charged with trafficking of a controlled substance (methamphetamine), conspiracy to commit trafficking of a controlled substance, and possession of drug paraphernalia. Defendant subsequently pleaded guilty to one count of trafficking for which the district court imposed a suspended sentence of nine years imprisonment and a three-year term of probation. In September 2014, a month after entering his plea, Defendant signed an order of probation that, among other things, listed the conditions of Defendant's release and his understanding of them. Of particular relevance, condition five of the probation order required Defendant to "follow all orders and instructions of [his p]robation . . . [o]fficer including actively participating in and successfully completing any . . . treatment program ... as deemed appropriate by the [p]robation . .. [o]fficer."

         {¶3} Defendant admitted to violating his probation on December 15, 2014, after he tested positive for alcohol. The district court reinstated him to probation and Defendant opted into the TVP. As we explain in greater detail below, the TVP in effect at the time, was a program established at the First Judicial District Court for sanctioning adult probationers for "technical violations of their probation[.]"[1] The program provided progressive discipline, including days in jail, for certain "technical violations" up to and including removal from the TVP after a fourth violation.

         {¶4} Defendant tested positive for methamphetamine twice while under the TVP and received jail sanctions of three and seven days, respectively. In October 2015, two months after his second sanction, Defendant was arrested and charged with possession of a stolen motor vehicle and altering or changing engine or other numbers. Defendant's probation officer, Mary Ann Sarmiento, filed a probation violation report alleging that Defendant had committed new criminal offenses and that he had failed to enter a drug treatment program.

         {¶5} The district court held an evidentiary hearing on November 13, 2015, at which two witnesses testified. New Mexico State Police Officer Jessie Whittaker testified regarding the new criminal offenses, and Sarmiento testified regarding the probation violations. Sarmiento stated that she instructed Defendant "multiple times" that he had to find and complete an outpatient drug treatment program "as soon as possible" before Community Corrections would accept him. Defendant told Sarmiento that he would pursue treatment through the Los Alamos Family Council (LAFC), but Sarmiento later learned that LAFC would not be able to provide treatment for him. On September 10, 2015, Sarmiento advised Defendant that he could not get treatment from LAFC and provided him with alternatives, including Presbyterian Medical Services and Hoy Recovery, both located in Espanola, New Mexico. Defendant never enrolled or participated in those programs or any other outpatient drug treatment program between the time of his conversation with Sarmiento on September 10th and his arrest on October 6th.

         {¶6} At the conclusion of the hearing, the district court found that the State had not proven a violation based on new charges; however, the court found that Defendant had failed to "enter into, participate, and successfully complete drug treatment" in violation of his probation agreement. The district court rejected Defendant's argument that the infraction was a technical violation stating that "failing to find a program and enter is not the same thing as testing positive. It is more than a mere technical violation." The court revoked Defendant's probation and imposed a sentence of time served, plus two years, seven months, and seven days in prison, to be followed by four years, eight months, and twenty-seven days on probation. This appeal followed.

         DISCUSSION

         {¶7} Defendant makes two arguments on appeal. First, he argues that there was insufficient evidence to support the district court's finding that he violated probation. In particular, he contends that the evidence presented at the evidentiary hearing did not prove that he "willfully avoided treatment." Second, Defendant argues that his failure to enter and complete an outpatient drug treatment program was a technical violation that should have been sanctioned in accordance with the TVP, and the district court abused its discretion when it revoked his probation. Although we conclude that the district court did not err in finding that Defendant's failure to enter and complete treatment constituted a probation violation, we agree that Defendant should have been sentenced under the TVP for a third technical violation.

         {¶8} We review the district court's decision to revoke probation under an abuse of discretion standard. State v. Leon,2013-NMCA-011, ¶ 36, 292 P.3d 493. The state "bears the burden of establishing a probation violation with a reasonable certainty." Id. Moreover, "[t]o establish a violation of a probation agreement, the obligation is on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy ...


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