 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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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. 29,646

10 TIMOTHY PARKMAN,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.
 1        Defendant is appealing from a district court order revoking his probation. We

 2 issued a second calendar notice proposing to affirm, and Defendant responded with

 3 a memorandum in opposition. We affirm.

 4        Defendant continues to challenge the district court’s determination that he was

 5 a fugitive for purposes of calculating his sentencing credit for time served on

 6 probation. In State v. Neal, 2007-NMCA-086, ¶ 30, 142 N.M. 487, 167 P.3d 935, this

 7 Court set forth the analytical framework for addressing this issue:

 8        Under NMSA 1978, Section 31-21-15© (1989), [i]f it is found that a
 9        warrant for the return of a probationer cannot be served, the probationer
10        is a fugitive from justice. The [s]tate bears the burden of proving that the
11        defendant is a fugitive. A fugitive is not entitled to probation credit from
12        the date of the violation to the date of arrest. Sections 31-21-15(B) and
13        ©, read together, require that all time served on probation shall be
14        credited unless the defendant is a fugitive. A defendant is entitled to
15        credit for any time on probation, unless the [s]tate can show either (1) it
16        unsuccessfully attempted to serve the warrant on the defendant or (2) any
17        attempt to serve the defendant would have been futile. This test attempts
18        to balance the competing policies of preventing defendants from
19        benefitting from absconding, and requiring the state to diligently
20        prosecute defendants who have violated probation. We review the
21        district court’s finding on this issue to determine if it is supported by
22        substantial evidence. (emphasis omitted) (internal quotation marks and
23        citation omitted).

24        In this case, as in Neal, there was a bench warrant issued on June 2, 2006 and

25 entered into the National Crime Information Center (NCIC) database on June 6, 2006.

26 [MIO 4] See Neal, 2007-NMCA-086, ¶ 32. [RP 173] In Neal, we observed that “the

27 record is silent on the question of whether the probation officer was aware of [the

                                               2
 1 d]efendant’s location, or made any attempt to determine [the d]efendant’s location,

 2 during the period in question.” Id. ¶ 33. The relevant period commenced when the

 3 warrant was issued. Id. ¶¶ 11, 33. In this case, the New Mexico probation officer who

 4 requested the warrant did not make any efforts to locate Defendant after the warrant

 5 was issued on June 6, 2006. [MIO 4-5] Although efforts to locate Defendant by a

 6 Texas official had been made prior to the date the warrant was issued, there is no

 7 indication that such efforts were made by agents during the relevant period. Based on

 8 this, Defendant continues to argue that this case requires reversal under Neal.

 9        We disagree with Defendant’s argument [MIO 8] that the State had the burden

10 to show that agents attempted to locate him after the bench warrant was issued and

11 that the district court could not rely on other indications of futility. The relevant

12 inquiry is broader than the one Defendant is advocating. See id. ¶ 34 (noting that there

13 must be a basis to create the reasonable inference that attempting to serve a warrant

14 would have been futile). Here, there were unsuccessful efforts to locate Defendant

15 after the June 6, 2006 warrant was issued. On August 25, 2006, a motion to withdraw

16 was filed on defense counsel’s behalf, indicating that efforts to locate Defendant were

17 unsuccessful despite the use of various methods. [RP 181] It stands to reason that if

18 those acting on behalf of Defendant are unable to locate him, similar efforts made by

19 the State would have been futile. In addition, although the pre-June 6 efforts may not


                                              3
1 have formed the sole basis for a futility finding under Neal, they may be used as

2 further evidence to support the futility finding once the post-June 6 indications of

3 fugitive status have been shown. Accordingly, we affirm.

4       IT IS SO ORDERED.



5                                               ______________________________
6                                               JAMES J. WECHSLER, Judge

7 WE CONCUR:



8 _______________________________
9 CELIA FOY CASTILLO, Judge



10 _______________________________
11 LINDA M. VANZI, Judge




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