       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ________________

Filing Date: February 18, 2013

Docket No. 30,806

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

KRYSTAL NIETO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Robert M. Schwartz, District Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

HANISEE, Judge.

{1}    Defendant appeals the district court’s judgment and probated sentence, which orders
that Defendant’s 103-day-period of pre-sentence confinement be credited only to a future
sentence of incarceration arising from a violation of the terms and conditions of her
probation. Defendant contends that the district court misconstrued NMSA 1978, Section
31-20-12 (1977) when it did not deduct pre-sentence confinement credit from the length of
probation imposed in lieu of an incarcerative sentence it determined to be conditionally
unwarranted. We hold that, under NMSA 1978, Section 31-20-5 (2003), the district court’s

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sentencing discretion included the prerogative of imposing any duration of probation, up to
five years, not subject to mandatory diminution ascribed by the number of days Defendant
was imprisoned immediately following the commission of the offense for which she
ultimately accepted responsibility.

I.     BACKGROUND

{2}     After hitting a victim with her car, Defendant spent 103 days in custody while her
case was pending. Subsequently, Defendant entered into a plea agreement with the State,
pursuant to which she pled guilty to aggravated battery with a deadly weapon. See NMSA
1978, § 30-3-5 (1969) (defining aggravated battery). Her ensuing sentence of three years’
imprisonment was discretionarily suspended by the district court, and Defendant was ordered
to successfully complete a three-year period of supervised probation. Accordingly, she is
subject to incarceration and any factually applicable sentencing enhancements only in the
event her probation is revoked. In its judgment and sentence, the district court additionally
ordered that “Defendant, if imprisoned at any time pursuant to the . . . conviction, shall be
given credit for pre-sentence confinement of 103 days.” (Emphasis added.)

{3}     Defendant objected to this language, arguing that it conflicted with Section 31-20-12,
which states that “[a] person held in official confinement on suspicion or charges of the
commission of a felony shall, upon conviction of that or a lesser included offense, be given
credit for the period spent in pre[-]sentence confinement against any sentence finally
imposed for that offense.” Defendant contended that in the event she is never incarcerated
for violating her probation, she will never receive the pre-sentence confinement credit to
which she asserts she is statutorily entitled. Defendant argued that her term of probation
constitutes the sentence imposed as a result of her conviction, and thus is a “sentence finally
imposed” to which her credit must be applied. See § 31-20-12. The State countered that the
time-served credit to be deducted from a “sentence finally imposed” applies only to a
sentence of incarceration. The State added that when an incarcerative sentence is suspended
or deferred, like Defendant’s, it is not yet “a sentence finally imposed” for purposes of the
statutorily commanded time-served credit. Following argument, the district court declined
to apply pre-sentence confinement credit to the probated sentence it imposed, reasoning that
it was within its discretion to determine the duration of probation within the statutorily
allowable range. Defendant now appeals this ruling, challenging the length of her probation.

II.    DISCUSSION

{4}     At issue is whether, under the statutory framework that governs criminal sentences
in New Mexico, Defendant is entitled to reduce the length of her probation by the sum of her
pre-sentence confinement. Interpretation of a statute is a question of law that we review de
novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). “Our primary goal
in interpreting a statute is to give effect to the Legislature’s intent. We look first to the
words chosen by the Legislature and the plain meaning of the Legislature’s language.” State
v. Martinez, 1998-NMSC-023, ¶ 8, 126 N.M. 39, 966 P.2d 747. “There are two sources of

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interpretative aid upon which we can draw other than the language of the statute itself: (1)
other statutes containing similar language, and (2) case law applying the statute.” State v.
Fellhauer, 1997-NMCA-064, ¶ 5, 123 N.M. 476, 943 P.2d 123. “Statutes concerning the
same subject matter must be read in connection with each other.” State v. Marquez,
2008-NMSC-055, ¶ 7, 145 N.M. 1, 193 P.3d 548.

{5}      In addressing this issue, we note that Section 31-20-12 and case law discussing it
shed minimal light on the issue of whether confinement credit is limited in application to a
sentence of confinement, or whether it must likewise be applied to a probated sentence.
Rather, we are aided by our examination of statutes that govern the district court’s overall
authority to suspend a sentence and instead order a period of probation. Specifically, Section
31-20-5 affords the district court authority to order probation upon deferral or suspension
of the defendant’s sentence of imprisonment. Section 31-20-5(A) expressly states that “the
total period of probation for [the] district court shall not exceed five years.” In contrast, that
same statute states that “the total period of probation for the magistrate or metropolitan
courts shall be no longer than the maximum allowable incarceration time for the offense or
as otherwise provided by law.” Id. Initially, it is noteworthy that both statutes make clear
the Legislature’s distinction between sentences of incarceration and of probation by the
separation of both punishments within the statutory language. We further reason that if the
Legislature intended for a district court defendant’s probation time to be reduced by pre-
sentence confinement credit, it would have likewise drafted the applicable statute to limit
probation periods for district courts to the maximum allowable incarceration time, as it did
for magistrate and metropolitan courts. Notably, the Legislature expressly limited the
district court to a total of five probation years, without reference to maximum incarceration
periods.

{6}     In State v. Encinias, 104 N.M. 740, 726 P.2d 1174 (Ct. App. 1986), we analyzed a
similar issue, where a defendant’s sentence of probation exceeded the potential length of
imprisonment. There, the defendant argued that the district court erred when it placed him
on five years of supervised probation following his conviction of a fourth degree felony,
which carried only a basic sentence of eighteen months’ imprisonment. Id. at 742, 726 P.2d
at 1176. We first noted that previously repealed legislation “expressly provided that
supervised probation [ordered by the district court] could not exceed the maximum term of
incarceration for the offense committed.” Id. We highlighted the fact that the amended
version of NMSA 1978, Section 31-20-6 (1987, as amended through 2007)1 “expressly


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         We note that this Court analyzed Section 31-20-6 rather than Section 31-20-5 in
Encinias. The difference is of no consequence to our analysis. Section 31-20-6 expressly
provides that courts can “place[ a defendant] on probation under the supervision, guidance[,]
or direction of the adult probation and parole division for a term not to exceed five years[.]”
(Emphasis added.) The statute merely does not distinguish between district courts and other
courts within the state. Thus, it can be assumed that the five-year limit on probation time
is applicable to all courts in New Mexico.

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provides for a term of supervised probation for a period of up to five years.” Encinias, 104
N.M. at 742, 726 P.2d at 1176. We concluded that since the latest expression of legislative
intent gave the district court discretion to award up to five years of probation, we could not
limit the probation period to the potential term of incarceration. Id. “[S]imply because a
court may lose the authority to incarcerate a probationer upon the expiration of the
underlying term of the suspended sentence, does not render amended Section 31-20-6[(C)]
meaningless.” Encinias, 104 N.M. at 742, 726 P.2d at 1176 (citation omitted). Because one
of the purposes of probation is to aid in rehabilitation of the convicted felon, “a defendant
may benefit from complying with a supervised term of probation even where the underlying
term of incarceration has expired.” Id.; see State v. Donaldson, 100 N.M. 111, 119, 666 P.2d
1258, 1266 (Ct. App. 1983) (“The broad general purposes of probation are education and
rehabilitation[.]”). We also explained that “a defendant may benefit by complying with the
terms of probation for the entire probationary period by demonstrating to the sentencing
court that he is a good candidate for a second term of probation should he subsequently be
convicted of a criminal offense.” Encinias, 104 N.M. at 742, 726 P.2d at 1176.

{7}     We underscore that “[t]he suspension . . . of a sentence is not a matter of right but is
an act of clemency within the [district] court’s discretion.” State v. Follis, 81 N.M. 690, 692,
472 P.2d 655, 657 (Ct. App. 1970). Under Section 31-20-6, the district court clearly has the
discretion to order up to five years of probation, regardless of whether the potential period
of incarceration is less than the probation term. Because we read Sections 31-20-6 and 31-
20-12 in harmony, we cannot construe Section 31-20-12 to mean that pre-sentence
confinement credit must reduce sentences of probation, as proposed by Defendant. See State
v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489 (“We must read statutes
harmoniously instead of as contradicting one another when possible.”). Such a construction
ultimately seeks to limit the probation time ordered by the district court to the period of
potential incarceration, which was clearly not the intention of the Legislature. As we
explained in Encinias, probation serves a rehabilitative purpose that can be achieved even
after the district court loses its authority to incarcerate Defendant for a probation violation.
Such periods of probation are fundamentally distinct from sentences of imprisonment.

{8}     Therefore, we conclude that it was within the discretion of the district court to choose
to suspend Defendant’s sentence and to decide the parameters of probation most suitable
(within the five-year limit). The pre-sentence confinement credit need not be credited
against the probation time ordered by the district court.

III.   CONCLUSION

{9}    For the reasons stated above, we affirm the district court.

{10}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

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WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
CYNTHIA A. FRY, Judge




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