 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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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. 29,841

10 JULIE STANFIL,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 Jerry H. Ritter, District Judge

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

16 for Appellee

17 Liane E. Kerr
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 WECHSLER, Judge.

22          Defendant appeals from the district court’s order denying her motion to modify
 1 her sentence. We proposed to affirm in a notice of proposed summary disposition,

 2 and pursuant to an extension, Defendant has filed a timely memorandum in

 3 opposition. Remaining unpersuaded by Defendant’s memorandum, we affirm.

 4 CREDIT FOR TIME SERVED PRIOR TO TRANSFER TO THE NM
 5 DEPARTMENT OF CORRECTIONS (DOC)

 6        Defendant claims that the district court erred in refusing to modify her sentence

 7 to correctly reflect the time served while in the Otero County Detention Center

 8 (OCDC) after she was sentenced on December 22, 2008, but before she was

 9 transferred to the DOC on February 9, 2009. [DS 1-2; MIO 2-3] We review

10 sentencing issues for abuse of discretion to determine if the sentence imposed is

11 authorized by law. See State v. Cumpton, 2000-NMCA-033, ¶ 10, 129 N.M. 47, 1

12 P.3d 429.

13        Under NMSA 1978, Section 31-20-12 (1977), a defendant held in “official

14 confinement” is entitled to presentence confinement credit. See State v. Clah,

15 1997-NMCA-091, ¶ 9, 124 N.M. 6, 946 P.2d 210. In the judgment and sentence, the

16 district court credited Defendant with the time spent in presentence confinement from

17 October 22, 2008 to December 22, 2008, but did not credit Defendant for time served

18 in the OCDC after December 22, 2008, until the judgment and sentence was filed

19 January 29, 2009, and she was transferred to the DOC on February 9, 2009. [RP 49]

20 Defendant filed a motion to amend the judgment and sentence to include

                                              2
 1 preconfinement credit for the time between December 22, 2008 until February 9, 2009

 2 and claims that the district court erred in refusing to amend her sentence to add this

 3 credit. [RP 54; MIO 3] We disagree.

 4        In our notice of proposed summary disposition, we agreed with Defendant that

 5 she is entitled to credit for the entire time she was in the OCDC before being

 6 transferred to the DOC. However, we proposed to hold that the sentence entered by

 7 the district court on December 22, 2008 does not deprive her of that credit because

 8 Defendant’s sentence “took effect” on December 22, 2008, meaning that each day

 9 served after December 22 counts toward satisfying the term of Defendant’s entire

10 sentence. See NMSA 1978, § 33-2-38 (1999) (stating that a defendant’s term of

11 incarceration “shall be computed from and include the day on which [the defendant’s]

12 sentence took effect” while noting that this section is not intended “to deprive a

13 prisoner of any reduction of time to which he may be entitled pursuant to the

14 provisions of [NMSA 1978, Sections 31-20-11 (1967), 31-20-12 (1967), and 33-2-34

15 (2006)]”).

16        In our notice, we directed Defendant’s attention to this Court’s opinion in Clah.

17 In Clah, the district court entered a commitment order on December 11, requiring the

18 defendant to begin serving his term of imprisonment on December 27 in the San Juan

19 County Detention Center, and the defendant appeared and started serving his sentence


                                              3
 1 on that day. 1997-NMCA-091, ¶ 3. The district court did not enter the formal

 2 judgment and sentence until February 6 when it sentenced the defendant to the DOC

 3 for a period of eighteen months, but suspended a portion and required the defendant

 4 to serve 364 days in the San Juan County Detention Center. Id. ¶¶ 3, 5. In discussing

 5 the credit to which the defendant was entitled, this Court noted that the defendant

 6 started serving his sentence on December 27, and thus any time after that date could

 7 not be considered “presentence credit.” Id. ¶ 17.

 8           Defendant claims that our proposed reliance on Clah is misplaced because in

 9 that case the defendant was never transported to the DOC so the issue of whether the

10 time between sentencing and arrival at the detention facility was not considered.

11 [MIO 3] We are unpersuaded that the factual differences in Clah warrant a different

12 result.

13           In this case, as in Clah, the time served by Defendant after sentencing should

14 not be considered presentence confinement but instead be considered time served on

15 her sentence. See § 33-2-38. Therefore, the district court did not need to modify

16 Defendant’s sentence to grant presentence confinement for the time period before she

17 was transferred to the DOC.

18 GOOD TIME CREDIT FOR TIME SERVED IN THE OCDC

19           Defendant also claims that the district court erred in refusing to award her good


                                                 4
 1 time credit for the time she served in the OCDC pending transfer to the DOC. [MIO

 2 3-6; DS 5] As more fully discussed in our notice of proposed summary disposition,

 3 good time credits for sentences served in the OCDC are governed by the Earned

 4 Meritorious Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2006). As Defendant

 5 concedes, the determination of the amount of good time credits earned by an inmate

 6 is an administrative matter that is not part of the judgment and sentence. See State v.

 7 Rudolfo, 2008-NMSC-036, ¶ 37, 144 N.M. 305, 187 P.3d 170. A sentencing court’s

 8 only role in administering the EMDA is making the initial determination of whether

 9 a given offense constitutes a serious violent offense such that good time credits are

10 limited. See id.; § 33-2-34(A)(1). The courts have no other role in administering the

11 EMDA or in determining the amount of good time that a defendant may earn as to any

12 offense. Rudolfo, 2008-NMSC-036, ¶ 37.

13        In our notice of proposed summary disposition, we proposed to hold that the

14 district court did not err in refusing to modify Defendant’s sentence in order to grant

15 her good time credit for the time served in the OCDC because it is not the sentencing

16 court’s function to determine the amount of good time credits to be awarded. Cf. id.

17 ¶¶ 38-39 (striking in its entirety the portion of the defendant’s sentence regarding

18 eligibility for good time credits because none of the convictions required the court to

19 determine if they were serious violent offenses, and, thus, “there was no role for the


                                              5
 1 court to perform in this case with respect to good time eligibility”). In our proposed

 2 notice, we also recognized that a defendant sentenced to a county jail such as the

 3 OCDC may also be entitled to good time credit. See NMSA 1978, § 33-3-9(A) (1995)

 4 (stating that the jail administrator “with the approval of the committing judge or

 5 presiding judge,” grants credit against a prisoner’s sentence for good behavior and

 6 establishes the rules for accrual of good time credits); cf. State v. Wyman, 2008-

 7 NMCA-113, ¶ 7, 144 N.M. 701, 191 P.3d 559 (recognizing that although the

 8 sentencing judge must permit the opportunity to earn good time credit, the procedures

 9 established by the jail administrator govern the award and revocation of the inmate’s

10 credit), cert. granted, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267. However,

11 we proposed to hold that because Defendant was sentenced to serve her time in the

12 DOC, she was not entitled to good time credit for her time in the OCDC. Cf. State v.

13 Aqui, 104 N.M. 345, 349-50, 721 P.2d 771, 775-76 (1986) (recognizing that New

14 Mexico’s statutory scheme does not allow good time credit for presentence

15 confinement and that district courts do not have the jurisdiction to award good time

16 credit for presentence confinement), limited in part on other grounds by Brooks v.

17 Shanks, 118 N.M. 716, 719-20, 885 P.2d 637, 640-41 (1994).

18        Defendant seeks to distinguish Aqui because that case only concerns whether

19 a defendant is entitled to good time credits for time served before sentencing. [MIO


                                             6
 1 5-6] See generally Aqui, 104 N.M. at 346-50, 721 P.2d at 772-76. She argues that she

 2 is being deprived of good time credit for the “limbo time” between sentencing on

 3 December 22 and her arrival at the DOC on February 6. [MIO 4] She notes that

 4 Section 33-2-34 does not address this “limbo time” while a defendant awaits transport

 5 or entry of the judgment and sentence and claims she is being unfairly deprived of this

 6 time, which she earned during this interim period. [MIO 4] She further notes that the

 7 OCDC administrator, Captain Jenkins, made a determination that Defendant was

 8 entitled to good time credits against her sentence commencing on December 22, based

 9 upon her good behavior while incarcerated in the OCDC. [MIO 4; RP 62, 71] She

10 then argues that the district court erred in refusing to award good time credits by

11 failing to recognize Captain Jenkins’ determination in its judgment and sentence and

12 in assuming that the DOC would properly allot the good time. [MIO 4]

13        Assuming without deciding that Defendant could be entitled to good time credit

14 for the time spent in the OCDC after sentencing but before transport, we nonetheless

15 are not persuaded that the district court erred in refusing to amend Defendant’s

16 sentence to award good time credits for this time period. We agree that Aqui does not

17 control in this case because the defendants in Aqui were not in a limbo situation but

18 instead seeking good time credits for presentence confinement. [MIO 5-6] However,

19 unless and until the DOC determines the amount of good time credits to which


                                              7
 1 Defendant is entitled, we are of the opinion Defendant has stated no grounds for relief

 2 based on her contentions that the district court should have awarded the good time

 3 credit. See Rudolfo, 2008-NMSC-036, ¶¶ 38-39.

 4        If Defendant is entitled to any relief, it must come pursuant to a habeas corpus

 5 petition that Defendant may file after DOC officials have denied her good time credits.

 6 [MIO 1; RP 62] Cf. Lopez v. LeMaster, 2003-NMSC-003, ¶ 23, 133 N.M. 59, 61 P.3d

 7 185 (filed 2002) (stating that habeas corpus relief extends to prison disciplinary

 8 proceedings based on an inmate’s liberty interest in good-time credits); Brooks, 118

 9 N.M. at 717-18, 885 P.2d at 638-39 (reversing the dismissal of a petition for habeas

10 corpus in recognition that the defendant had a right to judicial review of the DOC’s

11 decision to deprive him of good time credits because deprivation of good time credits

12 must be accomplished in compliance with statutory and regulatory requirements);

13 Wyman, 2008-NMCA-113, ¶ 6 (recognizing that Brooks pertains to the forfeiture of

14 earned good time credits and whether prison officials complied with procedural due

15 process in depriving an inmate of credit earned, not the discretion of a sentencing

16 judge to award or deny the opportunity to earn good time credits). To summarize, at

17 this juncture we need not decide whether Defendant is entitled to good time credits for

18 the time served in the OCDC after sentencing but before transport. [MIO 5]

19        For the foregoing reasons as well as those set forth in our notice of proposed


                                              8
1 disposition, we affirm the district court’s denial of Defendant’s motion to modify her

2 sentence.

3        IT IS SO ORDERED.



4                                               _______________________________
5                                               JAMES J. WECHSLER, Judge
6
7 WE CONCUR:



8 ___________________________________
9 JONATHAN B. SUTIN, Judge



10 ___________________________________
11 TIMOTHY L. GARCIA, Judge




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