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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. 32,910

 5 RAYMOND CERVANTES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Law Office of Meredith Baker LLC
14 Meredith M. Baker
15 Albuquerque, NM

16 L. Helen Bennett
17 Albuquerque, NM

18 for Appellant

19                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant Raymond Cervantes appeals from the district court’s judgment,

 3 sentence, partially suspended sentence, and commitment to the New Mexico

 4 Corrections Department. The district court sentenced Defendant pursuant to an

 5 habitual offender enhancement for failure to abide by conditions of release adopted

 6 under a plea agreement. Defendant argues on appeal that: (1) the district court erred

 7 by taking new evidence of additional guilt based on probable cause contrary to the

 8 plea agreement; (2) the charges against him must be dismissed based on his

 9 intellectual disability and mental incompetency; and (3) the State is estopped to deny

10 his mental incompetence as a result of the State’s stipulation to dismissals of other

11 criminal actions against him. We remand to the district court for a determination as

12 to Defendant’s competency to stand trial in this case. Should the district court

13 determine that Defendant was competent to stand trial, we affirm the district court’s

14 sentencing for the reasons discussed herein.

15 BACKGROUND

16   {2}   Defendant pleaded guilty to trafficking cocaine, entering into a repeat offender

17 plea and disposition agreement. Before he was sentenced, Defendant filed a motion

18 to withdraw his plea. The district court denied the motion, finding that Defendant

19 “knowingly and voluntarily” entered the plea. Defendant filed a motion for


                                               2
 1 reconsideration, which the district court also denied. Defendant sought an

 2 interlocutory appeal of the denial of the motion, and this Court denied the request.

 3   {3}   After this case was resolved by plea agreement, Defendant was charged with

 4 additional crimes in another case assigned to another district judge. In the proceedings

 5 resulting from the new charges, the other judge held a hearing concerning Defendant’s

 6 mental competence. At that hearing, an expert witness testified that Defendant had an

 7 IQ of 70 and was not competent to stand trial. That judge ordered that Defendant was

 8 not competent to stand trial. Thereafter, in two other consolidated cases, relying on

 9 this order of lack of competence, a third district judge ordered that Defendant was not

10 competent to stand trial.

11 COMPETENCY

12   {4}   Defendant contends in this appeal that, even though the determination

13 concerning his competency was made in another, subsequent proceeding, because of

14 his incapacity, he was not able to understand the proceedings or have the ability to

15 make a rational defense in this case. Defendant thus contends that he should not be

16 subject to incarceration. Defendant requests that the charges be dismissed, or,

17 alternatively, that this proceeding be remanded to the district court to determine

18 Defendant’s competency as a factual matter.




                                              3
 1   {5}   The State agrees with Defendant that this case should be remanded for a factual

 2 determination of Defendant’s competency. We also agree. See NMSA 1978, § 31-9-1

 3 (1993) (“Whenever it appears that there is a question as to the defendant’s competency

 4 to proceed in a criminal case, any further proceeding in the cause shall be suspended

 5 until the issue is determined.”). In light of the previous determination of lack of

 6 competency by the district judge in the subsequent case, and because the district judge

 7 in this case is not bound by that determination, we remand so that a factual record can

 8 be made in this case for a competency determination.

 9 SENTENCING

10   {6}   Should Defendant’s competency evaluation result in a ruling that Defendant

11 was competent to stand trial, we affirm the district court’s sentencing for the reasons

12 discussed herein. The plea and disposition agreement limited Defendant’s habitual

13 offender enhancement to four years. The State filed a supplemental motion to increase

14 Defendant’s habitual offender incarceration because Defendant failed to abide by the

15 conditions of release.

16   {7}   The plea and disposition agreement provides in part that

17         if [D]efendant violates any law after entering this plea and before
18         completing the sentence in this case, [D]efendant will be subject to
19         habitual offender proceedings[.] . . . The State may bring habitual
20         offender proceedings if the violation is admitted or proven, even if
21         probation or parole is not revoked or . . . [D]efendant is not convicted of
22         the new crime.

                                               4
 1 Defendant argues on appeal, on the basis of this provision, that there was not adequate

 2 proof to support the enhanced sentence because the district court found that Defendant

 3 possessed stolen property, a violation of law and conditions of release based only on

 4 the probable cause provided to the district court for the issuance of the warrants for

 5 Defendant’s arrests. Defendant points to the language of the plea and disposition

 6 agreement that permits the State to “bring habitual offender proceedings if the

 7 violation is admitted or proven[.]”

 8   {8}   Defendant’s argument, however, focuses only upon the aspect of the plea and

 9 disposition agreement that allows habitual offender enhancement for a violation of law

10 without addressing the aspect that allows enhancement for a violation of the condition

11 of release, even without a violation of law. The plea and disposition agreement also

12 provides:

13               I agree that the State may void any sentencing agreement,
14         including any cap on incarceration, OR the [S]tate may withdraw this
15         plea agreement if I:

16                1)   violate any laws while pending sentencing; OR

17                2)   violate any condition of release; OR

18         ....

19                3)   fail to appear for a scheduled court hearing, including but
20                     not limited to a sentencing hearing[.]



                                              5
 1   {9}    In his motion for reconsideration, Defendant raised arguments concerning the

 2 level of proof required for a violation of the plea and disposition agreement; and the

 3 prosecutor and the district court addressed the arguments at the hearing on the motion

 4 for reconsideration. As conditions of release, Defendant was prohibited from leaving

 5 Bernalillo County “without prior written permission” from the district court and was

 6 required to appear at all scheduled court hearings, including sentencing hearings. At

 7 the hearing on the motion for reconsideration, notwithstanding any argument

 8 concerning the burden of proof as to a finding of a violation of law, the district court

 9 found that the court records indicated that Defendant was arrested in Santa Fe County

10 and that Defendant admitted that he was in Santa Fe County when he was arrested. In

11 addition, the State argued that Defendant “failed to appear, multiple times, at his

12 sentencing hearing.” The district court found that Defendant “[f]ailed to appear for a

13 scheduled [c]ourt hearing” and that such a failure was a violation that allowed the

14 State to “nullify the agreement.” Defendant’s arguments on appeal concerning the

15 adequacy of proof do not pertain to these findings.

16 CONCLUSION

17   {10}   We remand to the district court for a determination as to Defendant’s

18 competency to stand trial in this case as well as any other necessary proceedings




                                              6
1 consistent with that determination. Should the district court determine that Defendant

2 was competent to stand trial in this case, we affirm Defendant’s sentencing.

3   {11}   IT IS SO ORDERED.


4                                               ________________________________
5                                               JAMES J. WECHSLER, Judge


6 WE CONCUR:


7 ________________________________
8 MICHAEL D. BUSTAMANTE, Judge


 9 ________________________________
10 M. MONICA ZAMORA, Judge




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