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

 2 STATE OF NEW MEXICO,

 3         Plaintiff-Appellee,

 4 v.                                                                      NO. 28,925

 5 BYRON TODD,

 6         Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, 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   Hugh W. Dangler, Chief Public Defender
15   Santa Fe, NM
16   Christopher J. Knight, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellant



19                               MEMORANDUM OPINION

20 CASTILLO, Judge.

21         Defendant appeals from an order revoking his probation and imposing sentence

22 and commitment. We issued a notice proposing to reverse and, pursuant to an
 1 extension, the State has filed a timely memorandum in opposition. Having considered

 2 the arguments raised by the State and remaining unpersuaded, we reverse the order

 3 revoking Defendant’s probation.

 4        Initially, we note that there are three records in this case. Citations to the record

 5 proper are to district court case number CR-2000-02919. In his docketing statement,

 6 Defendant argued that there was insufficient evidence to revoke his probation on

 7 grounds that he had failed to pay restitution and probation costs. [DS 9] We proposed

 8 to agree in our notice of proposed summary disposition and the State has indicated

 9 that it does not oppose our proposed disposition on this issue. [MIO 1] Therefore, for

10 the reasons set forth in our notice of proposed summary disposition, we reverse the

11 district court’s decision to revoke Defendant’s probation on the ground that Defendant

12 failed to pay restitution and probation costs.

13        Turning to his second issue, Defendant contends that the district court erred in

14 finding that he willfully terminated himself from the counseling program. [DS 11]

15 He claims that there was insufficient evidence showing willful termination because

16 at the time Defendant rescinded his waiver of confidentiality, he had already been in

17 custody for nearly three months and therefore counseling was discontinued due to his

18 incarceration—not because he rescinded the confidentiality waiver. [DS 11]

19        In a probation revocation proceeding, the State bears the burden of establishing


                                                2
 1 a violation with reasonable certainty. State v. Sanchez, 2001-NMCA-060, ¶ 11, 130

 2 N.M. 602, 28 P.3d 1143. To satisfy this burden, the State is required to introduce

 3 proof which would incline “a reasonable and impartial mind to the belief that a

 4 defendant has violated the terms of probation.” State v. Martinez, 108 N.M. 604, 606,

 5 775 P.2d 1321, 1323 (Ct. App. 1989). On appeal, this Court reviews the decision to

 6 revoke probation for an abuse of discretion. See id.

 7        As a condition of probation, Defendant agreed to “participate in any mental

 8 health and sex offender counseling deemed appropriate by Probation Officer.” [RP

 9 41; DS 6-7] Defendant was directed to undergo sex offender counseling with Forensic

10 Health Behavioral Associates, LLC (FHBA). [DS 3] As a condition of counseling,

11 Defendant signed an FHBA Treatment Agreement (Agreement) which required him

12 to waive confidentiality in order to participate in the FHBA program. [DS 4-5] The

13 Agreement stated that violation of its requirements would result in notification to the

14 probation officer or district attorney and “may result in termination from FHBA

15 treatment program.” [DS 5] It also provided that Defendant had the right to cancel

16 a release of information by providing FHBA with a written notice. [DS 5] There was

17 nothing explicit in the Agreement stating that cancellation of release of information

18 would result in termination from the FHBA program. [DS 5-6]

19        Defendant was arrested and incarcerated on November 9, 2007, based on the


                                              3
 1 allegations contained in the State’s initial motion to revoke his probation. [DS 12; see

 2 RP 73] In its motion, the State claimed that Defendant allegedly violated State laws

 3 by having criminal sexual contact with a minor and because Defendant failed to pay

 4 restitution and probation costs. [RP 73, 75-79] On February 1, 2008, Defendant’s

 5 probation officer filed an addendum to the earlier motion, alleging that Defendant

 6 further violated his probation by violating his agreement to “enter, participate and

 7 successfully complete any mental health and sex offender counseling deemed

 8 appropriate by Probation Officer.” [RP 83-87; DS 6-7] Defendant claims that the

 9 district court wrongfully revoked his probation based upon its finding that Defendant

10 violated his probation by violating the agreement to enter, participate in, and

11 successfully complete, counseling. [DS 11; RP 84-85, 94-95] We thus turn to the

12 evidence in support of these findings.

13        In the addendum filed February 1, 2008, Defendant’s probation officer stated

14 that he was notified on January 31, 2008, that Defendant revoked his confidentiality

15 waiver regarding the FHBA Treatment Agreement. [RP 84, 87; DS 7] He stated that

16 it is the policy of FHBA to have offenders sign a release and Defendant’s revocation

17 of the waiver meant that he withdrew from FHBA’s counseling program. [RP 84; DS

18 7] The probation officer went on to state that it was common practice of the probation

19 unit to request that an offender’s probation be revoked if he is unsuccessfully


                                              4
 1 discharged from FHBA counseling because at that point the offender is no longer

 2 attending treatment and may pose a greater threat to the community and the only other

 3 treatment that could be imposed would be that of therapeutic communities in the

 4 Department of Corrections. [RP 84; DS 7-8]

 5        At the merits hearing, the probation officer’s testimony was in keeping with the

 6 statements he made in the addendum.            [MIO 5]     On cross-examination, he

 7 acknowledged that FHBA counseling did not take place in jail and that counseling was

 8 not ongoing once Defendant was taken into custody. [MIO 5] He testified that no

 9 attempt had been made to provide Defendant with any counseling after he was

10 incarcerated on the November 9, 2007, violations. [DS 13]

11        FHBA Agency Director Rodgers testified that all new clients are required to

12 sign a release and, if they fail to do so, they are not accepted into treatment. [MIO 3]

13 He further testified that Defendant’s counseling was terminated upon receipt of the

14 written notice of cancellation of the confidentiality waiver. [MIO 3; DS 12]

15        Rodgers acknowledged that FHBA does not provide any counseling to clients

16 who are in jail or in prison. [DS 12] He also acknowledged that he did not believe

17 there was any specific language in the Agreement stating that revocation of the

18 confidentiality waiver would result in termination from the program. [MIO 4; DS 12]

19        In our previous notice, we proposed to hold that there was insufficient evidence


                                              5
 1 to support a determination that Defendant willfully failed to undergo counseling as

 2 recommended by his probation officer. Although mindful that it is the trial court’s

 3 role to weigh the evidence and to make determinations as to credibility, see State v.

 4 Mantelli, 2002-NMCA-033, ¶ 57, 131 N.M. 692, 42 P.3d 272, we observed that the

 5 evidence indicated that counseling was stopped because Defendant was

 6 incarcerated—not because he rescinded the privacy waiver.            Furthermore, we

 7 proposed to hold that the evidence does not show that Defendant knew his decision

 8 to rescind the privacy waiver would result in termination of counseling. We proposed

 9 to conclude that the State’s evidence was insufficient under the applicable standard

10 of proof to find with reasonable certainty that Defendant violated the conditions of his

11 probation by willfully failing to participate in, and successfully complete, counseling.

12 See State v. Phillips, 2006-NMCA-001, ¶ 17, 138 N.M. 730, 126 P.3d 546 (stating that

13 the trial court’s finding of a probation violation must be based on verified facts); see

14 also In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339 (“To

15 establish a violation of a probation agreement, the obligation is on the State to prove

16 willful conduct on the part of the probationer so as to satisfy the applicable burden of

17 proof.”).

18        In its memorandum in opposition, the State claims the evidence was sufficient

19 to revoke Defendant’s probation based upon violation of the counseling requirement.


                                              6
 1 [MIO 7-11] It notes that the district court specifically stated that it did not believe

 2 Defendant did not know that waiving confidentiality was a condition of treatment.

 3 [MIO 7] Instead, the district court found that Defendant knew that by revoking his

 4 confidentiality waiver, treatment would terminate. [MIO 7] It further notes that

 5 Defendant never testified as to his lack of understanding of the FHBA agreement or

 6 that he was unaware that revocation of the Agreement would terminate his treatment.

 7 [MIO 7-8]

 8        We are unpersuaded that these findings warrant affirmance of the revocation

 9 given the lack of evidence introduced at the hearing showing that Defendant’s failure

10 to participate in and successfully complete counseling was due to the revocation of the

11 confidentiality agreement instead of Defendant’s incarceration. We are unpersuaded

12 of this given the uncontradicted testimony showing that Defendant’s treatment

13 terminated as soon as he was incarcerated. Moreover, we are unconvinced that

14 FHBA’s failure to formally terminate Defendant’s treatment when he was incarcerated

15 until after he rescinded the confidentiality waiver warrants a different result given that

16 it is undisputed that it was the incarceration itself that interrupted the counseling.

17 [MIO 9] It is not clear that counseling could not have continued once Defendant was

18 released from prison if he was presented with the choice at that point of either signing

19 the waiver or being in violation of the probation agreement.


                                               7
1 CONCLUSION

2        The State has conceded that there was insufficient evidence to establish that

3 Defendant failed to pay probation costs or restitution. Moreover, the record does not

4 support the district court’s finding that Defendant violated the conditions of probation

5 by willfully failing to complete counseling. Therefore, we reverse the district court’s

6 order revoking Defendant’s probation.

7        IT IS SO ORDERED.



8                                                ________________________________
9                                                CELIA FOY CASTILLO, Judge

10 WE CONCUR:



11 ________________________________
12 RODERICK T. KENNEDY, Judge



13 ________________________________
14 ROBERT E. ROBLES, Judge




                                             8
