FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen,
H. Balderas, Attorney General Santa Fe, NM Laurie Blevins,
Assistant Attorney General Albuquerque, NM for Appellee
E. Tangora Robert E. Tangora, LLC Santa Fe, NM for Appellant
M. BOHNHOFF, JUDGE
Defendant Wilbur M. Stejskal (Defendant) appeals an amended
judgment and sentence entered two years after the entry of
his original judgment and sentence. By changing the word
"concurrent" to the word "consecutive, "
the amended judgment has the practical effect of increasing
Defendant's term of incarceration from nine years to ten
years. On appeal, Defendant asserts that, pursuant to Rule
5-801 NMRA and State v. Torres, 2012-NMCA-026, 272
P.3d 689, the district court lacked jurisdiction to amend or
modify the original sentence. The State, on the other hand,
argues that the amended judgment in this case did not involve
a "modification of sentence" for purposes of Rule
5-801 and Torres; instead, the amended judgment
merely corrected a clerical mistake as permitted by Rule
5-113(B) NMRA. We conclude that Rule 5-113 authorized the
district court to enter the amended judgment and therefore
Defendant's convictions are based upon a plea agreement.
Pursuant to the terms of that agreement, Defendant pled no
contest to two separate crimes, one of which would result in
a nine-year sentence and the other of which would result in a
three-year sentence with two years unconditionally suspended.
The agreement recited that the sentences for both convictions
would "run consecutively for a total of ten (10) years
in the [d]epartment of [corrections."
At a plea hearing, the district court reviewed the terms of
the plea agreement with Defendant on the record and accepted
Defendant's plea. At various points during that hearing,
the parties and court each acknowledged that the plea
agreement called for a ten-year period of incarceration. At a
subsequent sentencing hearing, the district court pronounced
sentence, explaining that:
pursuant to the plea agreement on count one, you are hereby
sentenced to nine years in the department of corrections [and
on] count two, three years in the department of corrections
with two years unconditionally suspended, running
consecutively for a total of ten years in the department of
corrections, [and] running concurrently with any time that
you are currently facing on probation or parole.
Thus, based upon the record below, the parties and their
counsel understood that the plea agreement called for
consecutive sentences that would result in ten years of
incarceration and also that Defendant was, in fact, being
sentenced to a ten-year term of incarceration. Nonetheless,
the written judgment and sentence that was then entered
recited that the sentences for the two crimes would run
concurrently, with the result that Defendant effectively was
sentenced to nine years of incarceration.
Two years later, while reviewing Defendant's file, the
district court noticed that the written judgment provided for
the sentences to run concurrently instead of consecutively.
The court scheduled a presentment hearing sua sponte. At that
hearing, the court proposed to enter an amended judgment to
correct the error. Counsel for Defendant argued that the
district court was without jurisdiction to do so, relying
upon Rule 5-801 (A) and Torres. The court, however,
found that it had authority under Rule 5-113 to correct the
error in the judgment, and accordingly, entered the amended
judgment as proposed.
Rule 5-801 was amended in 2014 by Supreme Court Order No.
14-8300-014, effective for all cases filed on or after
December 31, 2014. The version in effect on March 28, 2013,
when the case at bar was filed, provided in pertinent part as
A. Correction of sentence. The court may
correct an illegal sentence at any time pursuant to Rule
5-802 NMRA and may correct a sentence imposed in an illegal
manner within the time provided ...