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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3                  Plaintiff-Appellee,


 4          v.                                                           No. 33,271


 5 REYES DURAN,

 6                  Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
 8 Edmund H. Kase, III, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee


14 Douglas E. Couleur
15 Santa Fe, NM

16 for Appellant
 1                             MEMORANDUM OPINION

 2 HANISEE, Judge.

 3   {1}   Defendant appeals the sentence imposed pursuant to a plea agreement under

 4 which he pled guilty to three separate charges. We issued a notice of proposed

 5 disposition proposing to affirm the sentence in part and to reverse it in part. In

 6 response, Defendant has filed a memorandum in opposition to the proposed

 7 affirmance and the State has filed a memorandum supporting the proposed affirmance

 8 and agreeing that a portion of the sentence must be reversed. We have carefully

 9 reviewed the arguments made in the memorandum in opposition, but for the reasons

10 stated herein and in the calendar notice, we affirm Defendant’s sentence to the extent

11 he challenges the number of years of incarceration included in that sentence. We

12 reverse the district court’s inclusion of a period of probation in the sentence.

13   {2}   Defendant maintains that the district court was required to sentence him to a

14 period of incarceration no greater than six years in length, which was the sentence the

15 State agreed to recommend to the district court. In the notice we proposed to disagree.

16 We pointed out that if a plea agreement “merely contains a recommended sentence”

17 the district court is not bound by that recommendation. State v. Miller,

18 2013-NMSC-048, ¶ 28, 314 P.3d 655. We also pointed out that the language of

19 Defendant’s plea agreement is clear, and establishes that the State’s recommendation

                                              2
 1 was just that—a recommendation, not binding on the district court. We supported this

 2 assertion by pointing to the agreement itself. The first sentence of the paragraph in

 3 question states that “[s]entencing will be at the discretion of the court.” [RP 117] The

 4 agreement adds that the “District Attorney’s Office agrees to recommend no more

 5 than six (6) years incarceration . . . .” [Id.] (emphasis added). Finally, the agreement

 6 states again that “[u]ltimate discretion will remain with the [c]ourt.” [Id.] After

 7 reviewing this language, we proposed to conclude that given the combination of the

 8 word “recommend” with the emphasis on the district court’s sentencing discretion,

 9 there is no reasonable way to construe the language as imposing a mandatory limit of

10 six years of incarceration.

11   {3}   In addition to challenging the merits of the district court’s sentencing decision,

12 Defendant’s docketing statement also raised a procedural issue, arguing that before

13 the district court could ignore the State’s sentencing recommendation, the court was

14 required to specifically inform Defendant that the court was not bound by the

15 recommendation. Our notice proposed to reject this argument as well, for two reasons.

16 First, we pointed out that the proper remedy, where a district court fails to adequately

17 inform a defendant of the non-binding nature of the State’s recommendation, is to

18 allow the defendant to withdraw his plea, a remedy Defendant explicitly rejected in

19 this case. Second, we proposed to hold that the district court had in fact informed


                                               3
 1 Defendant that the State’s recommendation did not bind the court; we pointed out that

 2 at the plea-acceptance hearing the district court emphasized the “discretion” language

 3 of the agreement several times, and Defendant indicated he understood. [DS 5, 7]

 4   {4}   In response to the proposal contained in our notice, Defendant primarily argues

 5 the alleged procedural deficiency discussed above. He contends the district court did

 6 not “properly advise [him] that the court would not be bound by [the State’s]

 7 recommendation.” [MIO 1] Defendant points out that both Rule 5-304(B) NMRA and

 8 the Supreme Court case of State v. Pieri, 2009-NMSC-019, ¶ 1, 146 N.M. 155, 207

 9 P.3d 1132, require a district court to so advise a defendant if the court does not plan

10 to adhere to the sentencing recommendation made by the State. Defendant vigorously

11 argues that the district court did not do so at the plea hearing. He contends that the

12 plea agreement’s references to “ultimate discretion” and “sentencing discretion”

13 remaining with the district court could be construed to mean that the court’s discretion

14 could have been limited to a sentence somewhere between zero years of incarceration

15 and the six years recommended by the State. [MIO 6] He then maintains that at the

16 plea hearing the district court did not clarify this claimed ambiguity.

17   {5}   We continue to believe that the district court complied with Rule 5-304(B) and

18 properly informed Defendant that the court was not bound by the State’s

19 recommendation. During the plea colloquy the district court stated that “sentencing


                                              4
 1 will be in the discretion of the court.” [DS 5] The court then informed Defendant that

 2 in reaching a decision as to sentencing, the court would “take[] into consideration”

 3 the recommendations contained in the diagnostic evaluation as well as the

 4 recommendations from counsel. [Id.] (emphasis added). The district court then pointed

 5 out that the district attorney’s office had agreed to recommend to the court that

 6 Defendant serve no more than six years of incarceration. [DS 6] The court finally

 7 reiterated that “ultimate discretion will remain with the court.” [DS 7] Coupled with

 8 the plain language of the plea agreement, these statements from the district court

 9 clearly convey the court’s belief that it had ultimate discretion in sentencing, that it

10 would merely take into consideration the State’s recommendation, and that the State’s

11 recommendation was therefore not binding on the court. The district court thus

12 sufficiently complied with Rule 5-304(B) as well as the requirements established by

13 Pieri.

14   {6}    In addition, even if it could be said the district court’s statements during the

15 colloquy did not sufficiently warn Defendant that the court would not be bound by the

16 State’s recommendation, Defendant below explicitly rejected the remedy our Supreme

17 Court has provided for such situations. In Pieri, our Supreme Court held that “the

18 trial court is not required to afford a defendant the opportunity to withdraw his or her

19 plea when it rejects a sentencing recommendation . . . as long as the defendant has


                                                5
 1 been informed that the sentencing recommendation . . . is not binding upon the court.”

 2 2009-NMSC-019, ¶ 21. The corollary to this holding is that if the district court does

 3 refuse to follow the State’s sentencing recommendation, the court must allow the

 4 defendant an opportunity to withdraw his plea. As we noted in the calendar notice,

 5 however, Defendant specifically rejected this relief in his motion for reconsideration,

 6 in which he stated that he “is not moving to withdraw this plea, but rather seeking to

 7 have the six (6) year recommendation imposed by the [c]ourt.” [RP 163] On appeal

 8 Defendant continues to argue that he is entitled to be sentenced to no more than six

 9 years of incarceration, pursuant to the plea agreement, rather than to an opportunity

10 to withdraw his plea. [MIO 9] Defendant has therefore expressly waived the option

11 of withdrawing his plea, which is the proper remedy if Defendant is correct and the

12 district court did not adequately inform him of the non-binding nature of the State’s

13 sentencing recommendation. See, e.g., State v. Musgrave, 1984-NMCA-127, ¶¶ 9-11,

14 102 N.M. 148, 692 P.2d 534 (holding that defendant who expressly rejected trial

15 court’s implied offer of a mistrial could not obtain a new trial on appeal, because he

16 had waived that relief in the trial court).

17   {7}   Defendant attempts to avoid the above result by arguing that the district court’s

18 failure to inform him that the court did not consider the State’s recommendation to be

19 binding rendered the plea agreement ambiguous. [MIO 5-6, 9] According to


                                                 6
 1 Defendant, this ambiguous plea agreement must be construed according to his

 2 reasonable understanding of the agreement, which was that the district court’s

 3 sentencing discretion was limited by the State’s six-year recommendation. [MIO 3,

 4 9] The end result of this line of argument is that according to Defendant, the district

 5 court had no choice but to sentence him to no more than six years of incarceration,

 6 despite the fact that the district court clearly viewed the State’s recommendation as

 7 non-binding. For the reasons discussed below, we reject this argument.

 8   {8}   Defendant’s argument is based on a prior case decided by this Court, State v.

 9 Gomez, 2011-NMCA-120, 267 P.3d 831. In Gomez, we determined that where a

10 district court accepts a plea knowing that the plea agreement calls for a specific,

11 guaranteed sentence, the court is required to impose that sentence. Id. ¶ 16. If the

12 district court fails to do so, on appeal this Court will determine what the guaranteed

13 specific sentence was, and will remand the case with instructions to impose that

14 sentence. Id. ¶¶ 10-14, 18-19. In making that determination, we will construe any

15 ambiguities in the plea agreement in favor of the defendant. Id. ¶ 9.

16   {9}   The differences between this case and Gomez are obvious and dispositive. In

17 Gomez, the district court knew that it was accepting a plea agreement calling for a

18 specific, guaranteed sentence, but was simply mistaken about what that sentence was.

19 Id. ¶ 17. Under those circumstances the district court was required by due process


                                              7
 1 principles to impose the correct sentence to which the parties had agreed. Id. ¶ 18. In

 2 this case, on the other hand, the district court clearly and reasonably assumed that the

 3 plea agreement contained no binding, guaranteed sentence, and accepted the

 4 agreement under that assumption. It is black-letter law that a district court has the

 5 authority to reject a plea agreement if it does not agree with the terms of that

 6 agreement. See generally Rule 5-304(D) (discussing district court’s responsibilities

 7 when a plea agreement is rejected). Here, to the extent the plea agreement might be

 8 said to contain a binding sentencing recommendation, the district court did not accept

 9 it, and due process does not require that the non-accepted portion of the agreement be

10 enforced. This case is instead governed by the law that is applicable to situations in

11 which a district court rejects a sentencing recommendation made by the State. As Pieri

12 discusses, there are two possibilities in such cases: if the court has adequately

13 informed the defendant that the recommendation is not binding, the court may

14 sentence the defendant without offering an opportunity to withdraw the plea; on the

15 other hand, if that warning has not been provided, the court must offer the defendant

16 the opportunity to withdraw the plea. 2009-NMSC-019 at ¶ 21. The court is not

17 required, however, to comply with the sentencing recommendation that it has rejected.

18




                                              8
 1   {10}   We note also that Defendant’s argument depends solely upon his unilateral

 2 understanding of the terms of the plea agreement with respect to the State’s

 3 recommendation. The language of the plea agreement itself is non-binding, speaking

 4 in terms of a recommendation rather than an agreement as to sentencing, and

 5 emphasizing the district court’s ultimate discretion. This language calls into play the

 6 principle that when a district court accepts a plea agreement that merely contains a

 7 recommended sentence, the recommendation is not binding on the court. Miller,

 8 2013-NMSC-048, ¶ 28. Furthermore, the district attorney did not agree that the

 9 recommendation was binding. [MIO 4] Finally, there was no testimony concerning

10 any conversations that were had during the plea-negotiation process and no testimony

11 from the assistant district attorney who had negotiated the plea. Therefore, there was

12 no extrinsic evidence that might have supported Defendant’s contention that the

13 State’s recommendation was binding. See id. ¶ 9 (noting that extrinsic evidence may

14 be used to clear up an ambiguity in a plea agreement). This case is therefore unlike

15 Gomez because in Gomez all parties involved agreed that the plea agreement called

16 for a specific, guaranteed sentence. For that reason also, we hold that Gomez is

17 inapplicable to this case—Gomez applies to situations in which it is clear that a plea

18 was entered in exchange for a specific sentence, but the nature of that sentence is




                                              9
 1 ambiguous. Gomez does not apply where there appears to be no agreement between

 2 the parties for the imposition of a specific sentence.

 3   {11}   As we pointed out in the notice of proposed disposition, it is possible that the

 4 State and Defendant did intend to enter into a plea agreement under which the State’s

 5 recommendation would be binding on the district court, but failed to draft a document

 6 reflecting that agreement. It is also possible that Defendant may be able to prove the

 7 existence of such an agreement, through testimony from the assistant district attorney

 8 who participated in the negotiations, or from Defendant’s attorney or Defendant

 9 himself. At this point, however, the only matters of record are the agreement itself,

10 which contains no language at all supporting Defendant’s proposed interpretation of

11 the agreement, and the argument of Defendant’s counsel, which as we stated in the

12 notice does not constitute evidence. On this record Defendant has not established a

13 right to have the State’s sentencing recommendation enforced. Defendant remains free

14 to attempt to establish such a right in any post-conviction proceeding he may wish to

15 file.

16   {12}   As we pointed out above, the State has conceded that the district court should

17 not have included a period of probation in the sentence that was imposed. Therefore,

18 for the reasons stated in the notice of proposed disposition, that portion of the sentence

19 should be reversed.


                                               10
 1   {13}   Based on the foregoing, we hold that the district court adequately informed

 2 Defendant at the plea hearing that the district court was not bound by the State’s

 3 sentencing recommendation. Alternatively, we hold that even if the district court did

 4 not do so, Defendant affirmatively waived the only remedy to which he would have

 5 been entitled, which was the opportunity to withdraw his plea. We therefore affirm the

 6 sentence imposed by the district court, with the exception of the period of probation

 7 that was included in that sentence.

 8   {14}   IT IS SO ORDERED.


 9
10                                         J. MILES HANISEE, Judge

11 WE CONCUR:



12
13 RODERICK T. KENNEDY, Chief Judge



14
15 MICHAEL D. BUSTAMANTE, Judge




                                             11
