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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.    31,340

 5 JOSEPH DAVID BACA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 James T. Martin, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 Jacqueline R. Medina, Assistant Attorney General
12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Acting Chief Public Defender
15 Karl Erich Martell, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION
 1 BUSTAMANTE, Judge.

 2        Defendant appeals from the district court’s May 13, 2011, order revoking his

 3 probation and sentencing him to a term of imprisonment and a new five-year term of

 4 probation. He contends that the district court improperly denied him credit for time

 5 he spent on probation before his probation was revoked. Defendant filed his notice

 6 of appeal on May 24, 2011, but on September 13, 2011, he admitted to violating

 7 certain conditions of his probation. On October 5, 2011, the district court revoked

 8 Defendant’s probation a second time and sentenced him to serve the remainder of his

 9 formerly suspended sentence incarcerated. The sentence imposed did not include a

10 term of probation, and Defendant finished serving his sentence on September 10,

11 2012. We dismiss this appeal as moot.

12 BACKGROUND

13        On June 15, 2007, Defendant pled guilty to aggravated driving while

14 intoxicated (fourth offense), resisting, evading or obstructing an officer, possession

15 of drug paraphernalia, and driving while license suspended or revoked. See NMSA

16 1978, § 66-8-102(D)(3) (2010); NMSA 1978, § 30-22-1(B) (1981); NMSA 1978, §

17 30-31-25.1(A) (2001); NMSA 1978, § 66-5-39 (1993). Pursuant to a second amended

18 judgment and sentence, the district court sentenced Defendant to two years, five

19 months, and twenty-nine days to be followed by a one-year period of parole. All but


                                             2
 1 ten months of Defendant’s sentence was suspended, which amounts to one year, seven

 2 months, and twenty-nine days, and the district court ordered Defendant to be placed

 3 on five years of supervised probation once released from incarceration with the

 4 probationary period running concurrent with Defendant’s one-year period of parole.

 5 Defendant’s probation began on September 16, 2008, and was to expire on September

 6 15, 2013.

 7        On July 13, 2010, the State filed a petition to revoke Defendant’s probation,

 8 with an amended petition to revoke probation filed on January 18, 2011. On February

 9 10, 2011, the district court held a hearing, and Defendant admitted to violating the

10 conditions of probation as alleged in the amended petition. On May 13, 2011, the

11 district court entered an order revoking Defendant’s probation and again sentencing

12 Defendant to two years and one hundred and eighty-one days followed by a one-year

13 period of parole. Defendant was ordered to serve one year and one hundred sixteen

14 days in the Doña Ana Detention Center, and one year and sixty-five days were

15 suspended. He was again placed on five years of supervised probation.

16        Defendant received credit for the time he was incarcerated but no credit for the

17 time served on probation. Defendant requested credit for the period of time he had

18 served on probation, but the district court refused.




                                              3
 1           Defendant filed a notice of appeal on May 24, 2011. On July 9, 2011,

 2 Defendant was arrested again for violating his probation, and a petition to revoke his

 3 probation was filed on July 29, 2011. At a hearing on September 13, 2011, Defendant

 4 admitted to violating his probation, and an order revoking his probation was entered

 5 on October 5, 2011. The district court again sentenced Defendant to an aggregate

 6 sentence of two years and one hundred eighty-one days, followed by one year of

 7 parole. He was awarded one year and one hundred ninety-seven days of confinement

 8 credit.     He was not awarded probation credit, but no probation was ordered.

 9 Defendant’s release date was September 10, 2012. Defendant has now served his

10 sentence in its entirety.

11           After additional briefing by the parties, including responses to an order to show

12 cause issued by this Court on December 12, 2011, this case was assigned to the

13 general calendar on May 15, 2012. In the general calendar assignment, the parties

14 were directed to address the issue of whether Defendant’s appeal is moot.

15 DISCUSSION

16           To properly analyze whether Defendant’s appeal is moot, we need to first

17 briefly discuss the law applicable to the merits of Defendant’s appeal. Defendant pled

18 guilty to crimes committed in 2006. Therefore, in determining whether Defendant

19 received the proper amount of credit after his probation was revoked, we look to the


                                                 4
 1 law in effect in 2006. See State v. Ordunez, 2012-NMSC-024, ¶¶ 16-20, 283 P.3d 282

 2 (concluding that the statutory provisions applicable at the time the defendant commits

 3 the offense apply, not the statute in effect at the time the defendant violates his

 4 probation).

 5          From 2005 until 2010, NMSA 1978, Section 66-8-102(S) (2008) (amended

 6 2010), provided in pertinent part:

 7                [N]otwithstanding any provision of law to the contrary, if
 8                [a DWI] offender’s sentence was suspended or deferred in
 9                whole or in part and the offender violates any condition of
10                probation, the court may impose any sentence that the court
11                could have originally imposed and credit shall not be
12                given for time served by the offender on probation.

13 (Emphasis added.)

14          In 2010, Section 66-8-102 was amended and the language previously set forth

15 in Section 66-8-102(S) was recompiled without any alteration as Section 66-8-102(T).

16 The district court relied on Section 66-8-102(T) in denying Defendant credit for time

17 served on probation.

18          In light of the fact that the district court relied on the correct language even

19 though it cited to the wrong portion of the statute, its erroneous citation is a harmless

20 error.     See State v. Barr, 2009-NMSC-024, ¶ 48, 146 N.M. 301, 210 P.3d 198

21 (recognizing that a lower court should be affirmed notwithstanding a technical error



                                                5
 1 that does not impact the rights of either party), overruled on other grounds by State

 2 v. Tollardo, 2012-NMSC-008, ¶ 37, 275 P.3d 110.

 3        After initially protesting the applicability of Section 66-8-102(S), Defendant

 4 concedes in his reply brief that the language set forth above is applicable to his

 5 convictions. See § 66-8-102(S). Thus, we consider whether the district court’s

 6 decision to impose a new five-year term of probation was authorized by Section 66-8-

 7 102(S) as it existed in 2006 when Defendant committed the crimes.

 8        Defendant contends that the district court erred in refusing to credit him with

 9 the time he spent on probation based in part upon the language of NMSA 1978,

10 Section 31-20-5(A) (2003), which provides in pertinent part that if a district court

11 defers or suspends a sentence and places the defendant on probation, “ the total period

12 of probation . . . shall not exceed five years.” Defendant contends that Section 66-8-

13 102(S) must be interpreted in light of the limitations set forth in Section 31-20-5(A),

14 and therefore it cannot authorize the district court to continuously order more

15 probation so that the total probationary period exceeds five years.

16        Defendant argues that, instead, Section 66-8-102(S) should be interpreted as

17 allowing the district court to require an unsuccessful DWI probationer to serve his or

18 her entire sentence incarcerated without allowing any credit for the time previously

19 served on probation. The State disagrees and contends that Defendant’s sentence was


                                              6
 1 not illegal because the five-year cap contained in Section 31-20-5(A) does not apply

 2 to post-revocation terms of probation imposed pursuant to Section 66-8-102(S).

 3 Mootness

 4        Before making a determination as to the meaning or applicability of Section 66-

 5 8-102(S), we consider the State’s contention that Defendant’s appeal must be

 6 dismissed because it is moot. We agree with the State.

 7        In general, this Court will not decide a moot appeal. See State v. Sergio B.,

 8 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764. “An appeal is moot when no

 9 actual controversy exists, and an appellate ruling will not grant the appellant any

10 actual relief.” Id.

11        In this case, no actual controversy exists because Defendant’s probation was

12 revoked for a second time, and Defendant was ordered to serve the remainder of his

13 sentence while incarcerated without any time to be served on probation. Therefore,

14 any ruling that the district court’s earlier order improperly failed to credit Defendant

15 with time served on probation would not grant Defendant any relief. See id.

16 Furthermore, in light of the district court’s decision to incarcerate Defendant while he

17 completed his sentence, Defendant has failed to allege, much less make any showing,

18 that potentially adverse collateral consequences could arise from allowing the district

19 court’s earlier ruling to stand. See State v. Wilson, 2005-NMCA-130, ¶ 14, 138 N.M.


                                              7
 1 551, 123 P.3d 784 (agreeing that the appeal was moot because the defendant had

 2 served his full sentence and could not prove the existence of collateral consequences),

 3 aff’d, 2006-NMSC-037, 140 N.M. 218, 141 P.3d 1272; cf. Sergio B., 2002-NMCA-

 4 070, ¶ 10 (recognizing that an appellate court will review a criminal conviction even

 5 after the defendant has completed his term of incarceration “because of the continuing

 6 collateral consequences of a conviction”).

 7        As Defendant has no probation to serve, no actual controversy exists, and there

 8 is no ruling from this Court that will grant Defendant any actual relief. Accordingly,

 9 we agree with the State that this appeal is moot. See Sergio B., 2002-NMCA-070,

10 ¶¶ 9-10; see also Ordunez, 2012-NMSC-024, ¶ 22 (recognizing that an appellate court

11 will not “decide abstract, hypothetical or moot questions in cases wherein no actual

12 relief can be afforded” (internal quotation marks and citation omitted)).

13        Finally, we recognize that, notwithstanding the “general rule [that] appellate

14 courts should not decide moot cases[,]” Sergio B., 2002-NMCA-070, ¶ 9, we “may

15 review moot cases that present issues of substantial public interest or which are

16 capable of repetition yet evade review.” Gunaji v. Macias, 2001-NMSC-028, ¶ 10,

17 130 N.M. 734, 31 P.3d 1008. However, Defendant has not suggested that his appeal

18 presents an issue of substantial public interest. Cf. Republican Party of N.M. v. N.M.

19 Taxation & Revenue Dep’t, 2012-NMSC-026, ¶ 10, 283 P.3d 853 (stating that “[a]


                                              8
 1 case presents an issue of substantial public interest if it involves a constitutional

 2 question or affects a fundamental right such as voting”).

 3        To the contrary, after recognizing that his appeal is moot, Defendant merely

 4 urges this Court to consider the merits of his contentions without providing any

 5 argument as to why the general rule barring review should not apply in his case.

 6 Therefore, Defendant has failed to convince us that we should consider the merits of

 7 his appeal as an issue of substantial public interest. Cf. id. ¶ 11 (concluding “that the

 8 scope of the Governor’s executive privilege is an issue of substantial public interest

 9 [but not the] issue of withholding information under the Privacy Acts” and therefore

10 only addressing the former issue pursuant to an exception to the mootness doctrine).

11        Nor are we convinced that this case presents an issue that is capable of

12 repetition yet evading review. But for Defendant’s second violation of the conditions

13 of his probation, we would have had ample time to consider the merits of his argument

14 because he would still be on probation. Thus, we need not decide Defendant’s appeal

15 on the basis that other similarly situated defendants are likely to find their appeals to

16 be mooted before this Court has time to consider the issues presented. See Wilson,

17 2005-NMCA-130, ¶¶ 14-15 (agreeing to consider the defendant’s appeal arising from

18 a metropolitan court decision even though moot because any defendant raising the




                                               9
 1 same issue is likely to have completed his or her sentence before the case could be

 2 heard on appeal and thus the issue is capable of repetition yet evading review).

 3 CONCLUSION

 4        Because this appeal is moot and does not present an issue of substantial public

 5 interest or an issue which is capable of repetition yet evading review, we decline to

 6 exercise our discretion to decide it. See Republican Party of N.M., 2012-NMSC-026,

 7 ¶ 10 (noting our review of moot cases “is discretionary”). Therefore, we dismiss

 8 Defendant’s appeal as moot.

 9        IT IS SO ORDERED.




10
11                                               MICHAEL D. BUSTAMANTE, Judge

12 WE CONCUR:


13 _________________________________
14 RODERICK T. KENNEDY, Chief Judge


15 _________________________________
16 TIMOTHY L. GARCIA, Judge




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