FROM THE DISTRICT COURT OF BERNANLILLO COUNTY Charles W.
Brown, District Judge.
H. Balderas, Attorney General Santa Fe, NM Charles J.
Gutierrez, Assistant Attorney General Albuquerque, NM for
Bennett J. Baur, Chief Public Defender Nina Lalevic,
Assistant Appellate Defender Santa Fe, NM for Appellant.
MILES HANISEE, JUDGE.
Defendant Thomas Chavez, a convicted sex offender, appeals
the district court's order that his supervised probation
be continued for an additional two and one-half years
following his initial, mandatory five-year probationary term
under NMSA 1978, Section 31-20-5.2(B) (2003). Defendant
argues that the district court's order should be reversed
because (1) the statute is void for vagueness, or (2) the
State failed to meet its burden under the statute of proving
to a reasonable certainty that Defendant should remain on
probation for an additional period of time. We conclude that,
as a matter of first impression, Section 31-20-5.2(B) is not
void for vagueness. We also conclude that the appropriate
standard of review for whether the State met its burden is
abuse of discretion. The district court did not abuse its
discretion in concluding that the State proved to a
reasonable certainty that Defendant should remain on
probation, and we affirm.
In 2007, Defendant pled guilty to two counts of criminal
sexual contact of a minor (CSCM) and contributing to the
delinquency of a minor. Defendant was sentenced to twenty-two
and one-half years' imprisonment, all but five of which
were suspended. In accordance with Section 31-20-5.2(A),
Defendant was also sentenced to an indeterminate period of
supervised probation of not less than five and not more than
twenty years. See id. ("When a district court
defers imposition of a sentence for a sex offender, or
suspends all or any portion of a sentence for a sex offender,
the district court shall include a provision in the judgment
and sentence that specifically requires the sex offender to
serve an indeterminate period of supervised probation for a
period of not less than five years and not in excess of
twenty years."). Defendant was placed on probation
beginning on September 6, 2011, but was not released from
prison until the end of 2013 because he did not have a place
to reside upon being paroled, and a bed was not available at
a halfway house until then.
In April 2016, near the end of Defendant's initial
five-year period of probation, the State filed a motion under
Section 31-20-5.2(B) requesting that Defendant remain on
probation for an additional two and one-half years. The
district court held hearings on the State's motion in
August and September 2016. The State highlighted that
Defendant accumulated "over a hundred offenses"
related to his Global Positioning System (GPS) electronic
monitoring that occurred while he was on probation, as well
as the fact that Defendant served two years of parole in
custody, which reduced the period of time Defendant served on
probation within the community. The State also pointed out
that during his interview for his pre-sentence report (PSR),
Defendant stated that if he was stressed, he could
Defendant argued that "the State has not presented
sufficient evidence to prove to a reasonable certainty that
[he] should remain on probation." Defendant emphasized
that his probation had never been revoked. Defendant
acknowledged that his probation officer filed reports on two
GPS violations and sanctioned him with fifty-two hours of
community service, but argued that with respect to the first
written-up GPS violation, Defendant did not know his GPS unit
was out of contact with the larger monitoring system.
Regarding the second written-up GPS violation, Defendant
argued that, although his location was unknown for
thirty-four minutes in the middle of the night because his
GPS unit's battery had died, he plugged it in as soon as
he realized it was dead, and, lacking his own transportation,
he could not have gone anywhere during the time his GPS unit
Defendant asserted that the State did not provide the
district court with "behavioral type facts ... for why
[Defendant] is in need of more rehabilitative services."
Defendant also contested his probation officer's
conclusion that he would benefit from continued probation,
arguing, "[I] think the State can make that argument for
every single person on probation. . . . [T]hat's not what
the burden is here for the State and that's not what the
purpose of probation is. The statute doesn't say the
[district c]ourt should look and see if somebody could
benefit from another two and one-half years of probation.
[Defendant] has almost wholly complied with his term of
probation, and he's done it pretty well." Finally,
Defendant discounted his statement during his PSR interview
that if stressed he might recidivate, arguing that since then
he has taken advantage of mental and physical health care to
manage his stress, and that he has registered as a sex
offender as required every quarter.
At the conclusion of the hearings, the district court
acknowledged that "[i]n some ways, the [d]efendant
always gets hammered ... [I]f the [d]efendant[ is] doing well
on conditions of release, then [the State] argue[s, ]
'Hey, it's working, therefore we need to . . . keep
him on it. If he's not doing well, it shows we need to
keep him on it.' So that's one of those things which
carries ... very little weight as far as what you look
at." Nonetheless, the district court found that
"[t]here were two violations" and granted the
State's motion although "Defendant has made
progress[.]" The district court then ordered Defendant
to remain on probation for another two and one-half years
with the same terms and conditions as before, but eliminated
GPS monitoring. Defendant's timely appeal followed.
Section 31-20-5.2(B) Is Not Void for Vagueness