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State v. Chavez

Court of Appeals of New Mexico

July 29, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
THOMAS CHAVEZ, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNANLILLO COUNTY Charles W. Brown, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant.

          OPINION

          J. MILES HANISEE, JUDGE.

         {¶1} 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.

         BACKGROUND

         {¶2} 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.

         {¶3} 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 recidivate.

         {¶4} 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 was offline.

         {¶5} 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.

         {¶6} 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.

         DISCUSSION

         I. Section 31-20-5.2(B) Is Not Void for Vagueness

         {¶7} Section ...


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