 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                          NO. 31,341

10 DONALD POWERS,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Reed S. Sheppard, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Victoria Wilson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Jacqueline L. Cooper, Acting Chief Public Defender
20 Eleanor Brogan, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 WECHSLER, Judge.
 1        Defendant appeals from the district court order revoking his probation,

 2 enhancing his sentence, and ordering him to serve 2190 days of actual imprisonment.

 3 [RP 258-59] This Court issued a calendar notice proposing to summarily reverse (1)

 4 the district court’s order revoking probation on Defendant’s conviction for receiving

 5 or transferring a stolen vehicle, and (2) the district court’s order enhancing the same

 6 conviction under the habitual offender statute. We further proposed to affirm the

 7 revocation of Defendant’s probation and enhancement of his conviction for escape

 8 from a community custody release program, because Defendant did not appear to

 9 challenge the district court’s order in that regard. Defendant has filed a memorandum

10 in support of this Court’s proposed disposition, and the State has filed a memorandum

11 in opposition. Having given due consideration to the arguments submitted by the

12 parties, and being unpersuaded by the State’s arguments in opposition to our proposal,

13 we now proceed with summary reversal, in part, and summary affirmance, in part.

14        The details of Defendant’s plea agreement and original sentence are set out

15 more fully in this Court’s notice of proposed disposition. Defendant pleaded guilty

16 to one count of receiving or transferring a stolen vehicle, and one count of escape

17 from a community custody release program. [RP 118-19] These charges were

18 brought separately but consolidated for the purpose of Defendant’s plea. [MIO 1]

19 Defendant was sentenced to twelve months on the stolen vehicle charge and eighteen

                                              2
 1 months on the escape charge. [RP 134] Each conviction was then enhanced by one

 2 year pursuant to the habitual offender statute. [RP 134-35] Defendant’s plea

 3 agreement provided that the State would only enhance Defendant’s convictions with

 4 one prior felony, but the plea agreement included Defendant’s admission to four prior

 5 felony convictions that the State informed Defendant it would use if Defendant violate

 6 the terms of his probation or parole. [RP120] The district court ordered that

 7 Defendant’s sentences be served consecutively. [Id.] The judgment and sentence of

 8 the Court required that Defendant serve two years’ imprisonment for the habitual

 9 offender enhancements, but suspended the two-and-a-half year basic sentence and

10 ordered supervised probation in its place. [RP 134-35] Furthermore, Defendant was

11 ordered to serve one year of parole concurrent with his probation and commencing on

12 his release. [RP 137]

13        In this Court’s calendar notice, we proposed to conclude that the district court

14 improperly enhanced Defendant’s stolen vehicle conviction, where it appeared that

15 both the probationary and parole period had been served with respect to that sentence.

16 We cited to State v. Lovato, 2007-NMCA-049, 141 N.M. 508, 157 P.3d 73, in support

17 of our conclusion. We pointed out that, in Lovato, the state had advanced a similar

18 argument, contending that the district court had jurisdiction to enhance the defendant’s

19 first of two consecutive felony convictions, even once served, because the defendant’s


                                              3
 1 “reasonable expectation of finality attached to his aggregate sentence, rather than each

 2 separate sentence.” Id. ¶ 7. We directed the State to our holding in Lovato, which

 3 rejected that argument on double jeopardy grounds stating, “[w]e can discern no

 4 reason why [the d]efendant’s expectation of finality in his first felony sentence was

 5 unreasonable, or was in any way diminished, simply because he remained incarcerated

 6 for a second, separate felony offense.” Id. ¶¶ 9-10.

 7        The State has directed this Court to cases interpreting NMSA 1978, Section 33-

 8 2-39 (1953). Section 33-2-39 deals with the term of a prisoner’s commitment and

 9 provides:    “Whenever any convict shall have been committed under several

10 convictions with separate sentences, they shall be construed as one continuous

11 sentence for the full length of all the sentences combined.” The State also points to

12 cases interpreting this statutory provision, in support of its argument that Defendant’s

13 consecutive sentences, including the term of probation, constitute a single sentence,

14 and enhancement is therefore permitted until the aggregate sentence has been served.

15 [MIO 7] To the extent the State argues that this statutory provision governing

16 commitment, and not this Court’s decision in Lovato, should control the outcome in

17 this case, the State’s argument is unavailing. Lovato addresses the specific double

18 jeopardy concerns presented by the circumstances of this case and therefore controls.

19        To the extent the State attempts to distinguish Lovato by arguing that


                                              4
 1 Defendant’s plea agreement defeats any expectation of finality that he might have had

 2 in the first of his two sentences, we are unpersuaded. The State relies on State v.

 3 Villalobos, 1998-NMSC-036, 126 N.M. 255, 968 P.2d 766, to argue that Defendant

 4 waived any time limitations under which the State could seek enhancement—i.e.,

 5 Defendant waived his protection against double jeopardy. We note, however, that

 6 Villalobos, contained an express waiver. Id. ¶ 3 (quoting the language from the

 7 defendant’s plea agreement that “[t]he Defendant expressly waives any and all time

 8 limits for filing habitual offender proceedings”). We conclude that, in the present

 9 case, Defendant’s plea agreement contains no express language waiving the time

10 limitations for the State to seek habitual offender enhancement. [RP 118-23] To the

11 extent the State argues that the plea agreements uses “sentence” in its singular form

12 and that such usage demonstrates Defendant’s understanding that his sentences would

13 be treated as unit, we conclude that this does not constitute an express waiver as

14 present in Villalobos and is unpersuasive.

15        For the reasons stated above, and in this Court’s notice of proposed disposition,

16 we summarily reverse the enhancement of Defendant’s conviction for receiving or

17 transferring a stolen vehicle. We summarily affirm the revocation and enhancement

18 of Defendant’s sentence for escape from a community custody program.




                                              5
1           IT IS SO ORDERED.



2                                      ______________________________
3                                      JAMES J. WECHSLER, Judge
4 WE CONCUR:



5 ______________________________
6 JONATHAN B. SUTIN, Judge



7 ______________________________
8 TIMOTHY L. GARCIA, Judge




                                   6
