         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: November 18, 2013

Docket No. 33,571

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

ANDREW JAMAL MILLER,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Kenneth H. Martinez, District Judge

Gary K. King, Attorney General
Ralph E. Trujillo, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Acting Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                       OPINION

VIGIL, Justice.

{1}      We issued a writ of certiorari to review the Court of Appeals’ decision that the
district court’s sentence of Defendant Andrew Miller violated the terms of a plea agreement
that the district court had accepted. We agree with the Court of Appeals that his sentence
violates the plea agreement. However, we disagree with the remedy that the Court of
Appeals ordered and clarify our case law on this account. Accordingly, we reverse the Court
of Appeals and remand to the district court for proceedings consistent with this opinion.


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I.     BACKGROUND

{2}     In 2008, Defendant faced sixty-one counts consisting mostly of fraud and
embezzlement charges between two indictments against him. He entered into a plea
agreement with the State covering both indictments, which the district court accepted.
Defendant pleaded Guilty or No Contest to four second-degree felonies and two third-degree
felonies. In exchange for Defendant’s pleas, the State dropped all but six charges against
him.

{3}     The plea agreement in this case contains three provisions relevant to sentencing.
First, the agreement states that the parties agree to run the sentence for each count
consecutively. Second, under the heading “SENTENCING AGREEMENT” it reads, in part:
“The parties agree that there shall be a minimum sentence of ten (10) years and a maximum
sentence of 40 years at initial sentencing.” There was also a handwritten clause below this
that stated: “The remaining two years of the 42 year exposure shall run concurrent with
parole of two years.” Finally, under the heading “POTENTIAL INCARCERATION” it
reads:

       If the court accepts this agreement, the defendant will be ordered to serve a
       minimum sentence of ten (10) years and a maximum sentence of 40 years in
       the Department of Corrections at initial sentencing. The Defendant may be
       given a period of probation. If the defendant later violates that probation or
       parole, the defendant may be incarcerated for the balance of the sentence.

{4}      Prior to sentencing, Defendant moved to withdraw his pleas, arguing that the State
was not fulfilling its promise regarding allowed visitations from his son. The State responded
that it would be highly prejudiced if Defendant were permitted to withdraw his pleas. The
district court denied Defendant’s motion and sentenced Defendant. The judgment and
sentence the district court ordered provided, in part:

       The sentences in [the first indictment] are to [run] consecutively to the
       sentences in [the second indictment] for a total incarceration of forty two
       [sic] (42) years, followed by two years of parole. The court further orders that
       nine (9) years is suspended for an actual sentence of imprisonment of thirty
       three (33) years.

Instead of signing the judgment and sentence, Defendant wrote by the signature line that he
objected to the length of the sentence, among other things.

{5}     Defendant then appealed to the Court of Appeals, arguing that the district court
imposed a longer sentence than contemplated by the plea agreement since the plea agreement
called for a maximum sentence of forty years and the court sentenced him to forty-two years.
State v. Miller, 2012-NMCA-051, ¶ 17, 278 P.3d 561. The State responded that the forty-
year maximum term in the plea agreement applied solely to “initial sentencing,” meaning

                                              2
it only applied to the cap on the initial period of incarceration. Id.

{6}     Initially, the Court of Appeals determined that the forty-two year sentence might be
a clerical error in the written judgment so it remanded the case to the district court to clarify
the sentence and enter findings or a corrected judgment. Id. ¶ 6. However, the district court
did not amend the sentence and instead entered a finding that “by its plain meaning the cap
on the term of incarceration applies only at, ‘initial sentencing.’” Such language does not
speak to the overall sentencing exposure for the required basic sentences which the court
must impose for each count.” The district court also entered several conclusions of law,
which discussed the district court’s authority to sentence and concluded that it was required
by law to impose a forty-two year sentence in the absence of aggravating or mitigating
factors. The district court determined that Defendant had “no grounds on which to be
allowed to withdraw his plea agreement” and denied Defendant’s motion to withdraw his
plea agreement.

{7}     The Court of Appeals “reverse[d] the denial of Defendant’s motion to withdraw his
plea.” Id. ¶ 27. However, the Court of Appeals then also concluded “that the district court
rejected the plea agreement by sentencing Defendant to two years more than the maximum
contemplated by the agreement” and held that Defendant must be given the opportunity to
withdraw his plea or, if both parties agreed, “the district court may also re-sentence
Defendant in accordance with the plea.” Id. ¶ 28.

{8}     The State petitioned for a writ of certiorari, which we granted. The State argues that
the district court sentenced Defendant in conformity with the explicit terms of the plea
agreement. We disagree with the State and agree with Defendant and the Court of Appeals
that the forty-two year sentence violates the plea agreement. However, we reverse the Court
of Appeals’ remand order for the reasons explained below. We remand to the district court
to sentence Defendant according to his reasonable understanding of the plea agreement,
requiring that his sentence contain a total period of incarceration between ten and forty
years.

II.     STANDARD OF REVIEW

{9}     Since the State maintains that Defendant was sentenced according to the terms in the
plea agreement, our task is to evaluate the terms in the plea agreement. “Upon review,
[appellate courts] construe the terms of the plea agreement according to what Defendant
reasonably understood when he entered the plea.” State v. Fairbanks, 2004-NMCA-005, ¶
15, 134 N.M. 783, 82 P.3d 954 (internal quotation marks and citation omitted); accord State
v. Mares, 1994-NMSC-123, ¶ 12, 119 N.M. 48, 888 P.2d 930. “A plea agreement is a unique
form of contract whose terms must be interpreted, understood, and approved by the district
court.” State v. Gomez, 2011-NMCA-120, ¶ 9, 267 P.3d 831. If the language in the written
agreement is ambiguous, it is the district court’s task to resolve that ambiguity with the
parties. Id. If the court resolved the ambiguity, the agreement can no longer be said to be
ambiguous as to that point. Id. But if the court failed to resolve the ambiguity and there is

                                               3
no presentation of extrinsic evidence that would resolve it, then we “may rely on the rules
of construction, construing any ambiguity in favor of the defendant. Under such
circumstances, we review the terms of the plea agreement de novo.” Id. (internal quotation
marks and citation omitted).

{10} The State argues that the Court of Appeals erred in holding that the district court
abused its discretion by denying Defendant’s motion to withdraw his guilty plea. However,
the Court of Appeals ultimately evaluated the plea agreement for ambiguity using a de novo
standard. Miller, 2012-NMCA-051, ¶¶ 25-27. The abuse of discretion standard of review is
inappropriate in this case because Defendant was entitled to appeal the sentence based upon
his claim that it did not conform to the agreed upon plea agreement regardless of whether
he had ever moved to withdraw his pleas. N.M. Const. art VI, § 2 (providing that aggrieved
parties have the absolute right of one appeal); see, e.g., Gomez, 2011-NMCA-120
(addressing the defendant’s appeal of the district court’s sentence, which he argued violated
the terms of his plea agreement).

III.   DISCUSSION

{11} As in this case, the interplay between our sentencing statutes is often the source of
confusion in disputes over whether a sentence complies with a plea agreement. The
Legislature has imposed basic sentencing requirements, but it has also granted courts broad
discretion over certain sentencing elements. NMSA 1978, Section 31-18-15(B) (2007)
requires that “[t]he appropriate basic sentence of imprisonment shall be imposed . . . unless
the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.”
(Emphasis added). The Criminal Sentencing Act provides the guidelines for altering the
basic sentence, permitting the court to consider mitigating and aggravating factors to reduce
or increase the basic sentence by up to one-third. See NMSA 1978, § 31-18-15.1(A), (G)
(1993, amended 2009), held unconstitutional by State v. Frawley, 2007-NMSC-057, ¶ 29,
143 N.M. 7, 172 P.3d 144 (unconstitutionality abrogated by the 2009 amendment–the court
now must find that aggravating factors exist beyond a reasonable doubt). A sentencing court
also has authority to defer the sentence or suspend the execution of a sentence. See NMSA
1978, § 31-20-3(A), (B) (1985). Also, “whether multiple sentences for multiple offenses run
concurrently or consecutively is a matter resting in the sound discretion of the trial court.”
State v. Allen, 2000-NMSC-002, ¶ 91, 128 N.M. 482, 994 P.2d 728 (internal quotation marks
and citation omitted). Finally, the court has control over whether the maximum period of
incarceration applies solely to initial sentencing or to post-sentencing aspects as well, such
as probation revocation consequences. See NMSA 1978, § 31-21-15(B) (1989) (giving the
court broad discretion when a probation violation is established to “continue the original
probation, revoke the probation and either order a new probation with any condition
provided for in Section 31-20-5 or 31-20-6 NMSA 1978, or require the probationer to serve
the balance of the sentence imposed or any lesser sentence” or for deferred sentences, “the
court may impose any sentence which might originally have been imposed”).

{12}   Parties have discretion in negotiating these sentencing and incarceration terms when

                                              4
forming a plea agreement. See Mares, 1994-NMSC-123, ¶ 11 (“[T]he parties should be able
to negotiate the terms of a plea agreement to the full extent allowed by law.”). A defendant
can negotiate for the actual sentence ordered at initial sentencing–within the limits of Section
31-18-15.1–by negotiating for the consideration of mitigating factors or for the State not to
consider aggravating factors, as well as the amount of that sentence that the court actually
executes either through suspension or deferment, and even whether any of that suspended
time can be executed in post-sentencing procedures. See id. (rejecting the State’s argument
that a plea agreement promising a maximum period of incarceration deprives the court from
incarcerating a defendant for a probation violation and holding that this Court will enforce
such an agreed-upon provision). However, Rule 5-304(A)(1) NMRA commands that the
district court judge not be a participant in any plea negotiations between the State and a
defendant. “The judge’s role is explicitly limited to acceptance or rejection of the bargain
agreed to by counsel for the state, defense counsel, and defendant.” Rule 5-304, comm.
commentary.

{13} Consequently, it is vital that the language in a plea agreement unambiguously explain
which sentencing element has been bargained-for in order to avoid any misunderstandings
between the parties or between the parties and the court over whether a term applies to the
sentence to be ordered, the term of years that must be suspended, the initial period of
incarceration, or the maximum period of incarceration. If the language in a plea agreement
is unclear as to which sentencing element it contemplates, it is the court’s responsibility to
clarify the ambiguity so that the parties are truly in agreement and the court understands
exactly what sentence it is agreeing to order if it chooses to ratify the agreement. See Gomez,
2011-NMCA-120, ¶ 9.

A.      Defendant’s Plea Agreement Is Ambiguous

{14} In this case, since the parties agreed to run the sentences for each count
consecutively, the court and the State are correct that the required starting point was a basic
sentence of forty-two years since Defendant pleaded to four second-degree felonies and two
third-degree felonies. See NMSA 1978, § 31-18-15(A)(6), (9) (stating the basic sentence for
a second degree felony is nine years imprisonment and the basic sentence for a third degree
felony is three years imprisonment). However, the district court was not bound by that
figure. The court could have reduced the basic sentence for mitigating factors per Section
31-18-15.1(A)(1) by up to one-third, or fourteen years in this case. Further, the court also
had discretion to determine what part of the ordered sentence must actually be served in
prison.

{15} The State and the district court disagreed with Defendant over whether the ten-year
minimum and forty-year maximum required by the plea agreement applied to the initial
period of incarceration that the court would order Defendant to serve in prison or to the total
incarceration time to which Defendant was agreeing to be exposed. Defendant maintains
that, as he understood it, he would face no more than forty years of incarceration under any
circumstance, while the State maintains that the agreement made clear he was exposing

                                               5
himself to forty-two years of total incarceration if he violated probation conditions after
serving the initial executed sentence.

{16} We examine the language in the plea agreement to evaluate the reasonableness of
Defendant’s understanding. We first note that the “maximum sentence of 40 years” language
in the plea agreement indicates that the actual sentence imposed by the court could be no
more than forty years. We agree with the Court of Appeals that the “at initial sentencing”
language does not transform the forty-year maximum sentence into a forty-year cap for the
initial period of incarceration. See Miller, 2012-NMCA-051, ¶¶ 21-22. The language simply
does not reflect the State’s intent for the period to apply to the initial period of incarceration.

{17} The State argues that other portions of the agreement made it clear to Defendant that
the court would be imposing a sentence of forty-two years, all of which he could potentially
serve. We observe that nowhere in the agreement does it state that the court was required to
or that it would be imposing a basic sentence of forty-two years. Under the heading
“PENALTIES” the plea agreement states, “[t]he maximum penalty for these charges are” and
then provides the basic sentence for each count to which Defendant pleaded guilty or no
contest. (Emphasis added). The “maximum” language indicates that the sentence could total
forty-two years if one did the math, not that it must.

{18} The State further argues that Defendant also knew he was exposing himself to a total
of forty-two years of potential incarceration based on the handwritten “42 year exposure”
clause in the agreement. However, according to Defendant, the State was not aware that the
sentences totaled forty-two years rather than forty and that he “did the math” himself. When
he discovered that the basic sentences could total forty-two years instead of forty, he insisted
that the district attorney “do something with that two years before [he] went in front of the
judge” because he “would not take” the additional two years. He told the State to “make [the
sentence] equal 40,” and the State responded by offering to “run it two years with parole.”
The confusing handwritten “42 year exposure” clause in the plea agreement was thus the
result of Defendant’s insistence to make the maximum time he could ever serve in prison be
forty years. Therefore, at least from Defendant’s perspective, the handwritten clause
certainly could not have been intended to represent his agreement to face up to forty-two
years incarceration total if he were to ever violate probation.

{19} The State claimed at oral argument that the “42 year exposure” clause was only
intended to indicate that at least two years of the forty-two year sentence would be
suspended, and that Defendant got an even better deal by getting nine years suspended.
However, even if that was the State’s intent, the language does not reflect that intent, as it
refers to concurrence, not suspension.

{20} It is unclear to us exactly what the handwritten clause explicitly required the court
to do, since the court does not have the authority to run a sentence concurrently with parole.
See § 31-18-15(D) (requiring that when a court suspends or defers a sentence, “the period
of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978

                                                6
for the degree of felony for the basic sentence for which the inmate was convicted”); NMSA
1978, § 31-21-10(D) (2009) (requiring a two-year period of parole for second and third-
degree felony convictions).

{21} This confusing handwritten clause that contains a promise that could not be fulfilled,
coupled with the promise of a ten to forty year “sentence,” render the language in the plea
agreement ambiguous. Defendant’s understanding that the language promised he would
receive a sentence between ten and forty years is not unreasonable since he cannot be
expected to understand the sentencing laws unless their repercussions were clear in the
agreement. Both the ten to forty year maximum “sentence” and the handwritten clause
demanded clarification that did not occur anywhere in the language of the plea agreement.
Thus, we next turn to whether the district court clarified these issues prior to sentencing
Defendant.

B.     Since the District Court Failed to Resolve the Ambiguity Prior to Sentencing,
       We Construe the Plea Agreement in Favor of Defendant’s Reasonable
       Interpretation

{22} The State concedes that the plea agreement was not “artfully crafted.” However, it
argues that even if the plea agreement was ambiguous, the district court resolved the
ambiguity prior to sentencing by making its interpretation known to Defendant. The State
compares this case to our decision in Mares to support its conclusion that the district court
in this case resolved any ambiguity in the sentencing terms of the plea agreement. Mares
involved a similar dispute over a plea agreement that contained a sentencing provision of
nine years imprisonment with the requirement that the sentence “be suspended such that
there shall be no more than 24 months of potential actual incarceration ordered.” 1994-
NMSC-123, ¶ 2. This Court determined that the language in the agreement was ambiguous
as to whether the maximum of twenty-four months incarceration was limited to the initial
sentencing or if it covered post-sentencing procedures as well. Id. ¶ 13. However, this Court
observed that the district court resolved this facial ambiguity several times when it expressly
warned Mares that the cap applied only to the initial period of incarceration and that he
would face nine years incarceration total if he ever violated any conditions of probation. Id.
Mares appealed his sentence when the court subsequently sentenced him to the full nine-year
term of incarceration for violating his probation, arguing that his sentence should have been
capped at twenty-four months. This Court rejected his argument since the district court’s
warnings rendered Mares’ understanding unreasonable. Id. ¶ 19.

{23} The State’s reliance on Mares is misplaced. In this case, Defendant’s plea agreement
contained similarly ambiguous language as in Mares regarding the period of incarceration.
However, unlike in Mares, here the district court never clarified the actual number of years
Defendant faced if he violated probation. The State argues that the agreement’s warning that
Defendant could be incarcerated for the balance of the sentence if he ever violated probation
and the court’s warning that he could “face additional consequences in the future” resolved
the ambiguity. We disagree. These warnings lack the specificity that was present in Mares.

                                              7
They did not resolve the ambiguity regarding whether the sentence cap was forty or forty-
two years. Since Defendant reasonably understood that he faced no more than forty years
even if he violated probation, to him the “additional consequences” were limited to the
amount of time suspended between ten and forty years.

{24} The State also implies that the district court made Defendant aware he faced a forty-
two year basic sentence when it advised Defendant of the basic sentences for each count,
arguing that the district court advised Defendant “of all the direct sentencing consequences.”
However, the record reflects that when the court discussed the sentence for each count, it
stated that for the second-degree felony offenses: “each of those counts carry with them a
basic sentence of up to [9] years in prison” and that “the third-degree felony offenses carry
basic sentences of up to three years in prison.” (Emphasis added). Informing Defendant that
he could face “up to” the basic sentence does not equate to informing him that he would be
receiving the basic sentence.

{25} Similarly, the district court never clarified the forty-two year exposure language.
Defendant thought that the language was assuring that he would not be sentenced to the basic
sentence. The court never explained its contrary interpretation of this language; it merely
read it aloud. Later, at the presentment hearing on February 10, 2010, the district court
ultimately determined after reviewing the plea agreement that it contemplated that Defendant
would be sentenced to “40 years and two years parole” but that the court actually had given
Defendant a better deal by suspending nine years. However, since the court never explained
these contrary interpretations of this facially ambiguous clause prior to sentencing
Defendant, the court failed to resolve the ambiguity in the agreement.

{26} It remains unclear to us exactly what the parties intended the ambiguous handwritten
language in the plea agreement to require. After all, the parties and the court were still in
disagreement over the intended meaning of the language even at the February 10th
presentment hearing ordered by the Court of Appeals. It is clear, however, that the parties’
conflicting interpretations were not resolved before Defendant was sentenced. The State
asserted at oral argument that the “at initial sentencing” language in the plea agreement is
“a term of art” and “everyone basically agrees” that it refers to the initial period of
incarceration that would be ordered on an imposed sentence. However, Defendant clearly
was not in agreement with this purported understanding, and we will not impute this
understanding onto Defendant unless it was explained to him. Having never received a
contrary explanation, it was reasonable for him to conclude that the maximum forty-year
“sentence” indicated that the most time he could ever spend incarcerated for the pleaded
charges was forty years. Consequently, we resolve the ambiguity in favor of Defendant’s
reasonable interpretation.

{27} As the sentence stands, the court suspended nine years of a forty-two year sentence.
The suspended years are conditioned on Defendant not violating any part of the judgment.
Although it is speculative whether he will violate any conditions, it is conceivable that a
court could impose the entire nine years suspended portion of his sentence, resulting in a

                                              8
total prison term of forty-two years. This is two years more than Defendant reasonably
believed he was accepting. Accordingly, we affirm the Court of Appeals’ decision that this
sentence must be vacated.

C.     The Appropriate Remedy in This Case Is for Defendant to Be Resentenced by
       the District Court According to His Understanding of the Plea Agreement

{28} Having determined that Defendant’s sentence was not in conformity with the plea
agreement, we now determine the appropriate remedy. “[T]he type of plea agreement
dictates whether the court is bound to impose the sentence disposition contained in the plea.”
State v. Pieri, 2009-NMSC-019, ¶ 30, 146 N.M. 155, 207 P.3d 1132. When a district court
accepts a plea agreement that merely contains a recommended sentence, “the court is not
bound by the sentencing recommendations or requests of the parties” and it is the court’s
responsibility to determine and impose the proper sentence. Id. If, however, the district court
has accepted a plea agreement for a guaranteed specific sentence, “the court is bound to
impose the sentence disposition contained in the plea.” Id. These principles are codified in
our Rule 5-304(C) NMRA, which provides that:

       If the court accepts a plea agreement that was made in exchange for a
       guaranteed, specific sentence, the court shall inform the defendant that it will
       embody in the judgment and sentence the disposition provided for in the plea
       agreement. If the court accepts a plea agreement that was not made in
       exchange for a guaranteed, specific sentence, the court may inform the
       defendant that it will embody in the judgment and sentence the disposition
       recommended or requested in the plea agreement or that the court's judgment
       and sentence will embody a different disposition as authorized by law.

{29} In Pieri we adopted the approach taken by the United States Supreme Court in
Santobello v. New York, 404 U.S. 257 (1971), when an accepted plea agreement has been
violated. 2009-NMSC-019, ¶¶ 14-18. In Santobello, the state and the defendant entered into
a plea agreement that required the state to refrain from recommending a sentence. 404 U.S.
at 258. The state subsequently recommended the maximum sentence at the sentencing
hearing. Id. at 259. Over the defendant’s objection to the state’s violation, the court
sentenced the defendant to the maximum sentence. Id. at 259-60. In doing so, the court stated
that it was uninfluenced by the state’s recommendation. Id. at 259. The Supreme Court
nonetheless reversed the sentence due to the state’s violation. Id. at 263. While Santobello’s
requested relief was the withdrawal of his guilty plea, the Court determined that the state
district court was “in a better position to decide whether the circumstances” of the case
required specific performance of the plea, which would require the defendant to be sentenced
by a different judge, or whether the defendant should be given the opportunity to withdraw
his plea. Id.

{30} In Pieri, the State and Pieri entered into a plea agreement in which the State promised
not to oppose Pieri’s request for a suspended sentence. 2009-NMSC-019, ¶ 2. The State then

                                              9
subsequently opposed such a request at the sentencing hearing. Id. ¶ 3. This Court held “that
under Santobello Defendant should have been given the opportunity to withdraw her plea
or receive specific performance of the plea agreement” and “remand[ed] to the district court
to afford Defendant this opportunity.” Id. ¶ 5.

{31} The primary distinction between those cases and this case is that they involved
recommended sentences, whereas in this case, the sentence was specific and guaranteed.
Moreover, the ambiguity in the instant plea agreement, which we resolve in favor of
Defendant’s reasonable understanding, led the district court to incorrectly impose a sentence
that it mistakenly believed had been agreed to by the parties. In fact, it was actually
sentencing beyond the forty year maximum period of incarceration that the Defendant
understood he bargained for. We hold that because the district court thought it was imposing
a guaranteed, specific sentence, when in fact the plea agreement was ambiguous on that
point, specific performance of the now unambiguous agreement is the appropriate remedy.
Accordingly, we reverse the Court of Appeals’ remand order that gives Defendant the option
to either withdraw his guilty and no contest pleas or to be sentenced according to his
understanding of the terms if the State agrees. See Miller, 2012-NMCA-051, ¶ 28. We
remand to the district court and order that it shall inform Defendant that it will embody in
the judgment and sentence the disposition provided for in the now unambiguous plea
agreement.

D.     We Disavow Any Language in Pieri That Is Inconsistent With This Opinion

{32} At oral argument, Defendant argued that denying him the opportunity to withdraw
his pleas would conflict with our holding in Pieri. The State also conceded that under its
understanding of Pieri Defendant had that right unless this Court changed the law. The Court
of Appeals likewise interpreted Pieri to entitle Defendant to withdraw his pleas. Miller,
2012-NMCA-051, ¶ 28. Thus, we now explain why Pieri does not afford Defendant the
automatic right to withdraw his pleas.

{33} In Pieri, we held “that a court is not required to afford a defendant the opportunity
to withdraw his or her plea when it rejects a sentencing recommendation or a defendant’s
unopposed sentencing request, so long as the defendant has been informed that the
sentencing recommendation or request is not binding upon the court.” 2009-NMSC-019, ¶
1, overruling Eller v. State, 1978-NMSC-064, 92 N.M. 52, 582 P.2d 824.

{34} Defendant’s argument that he is entitled to withdraw his guilty plea because the
district court did not impose the sentence contained in the plea agreement relies on dicta in
Pieri that we hereby disavow. In Pieri, we intended to compare our holding regarding when
a defendant does not get to withdraw his or her plea to when a defendant does get the
opportunity to withdraw a plea under Rule 5-304(D). See Pieri, 2009-NMSC-019, ¶ 33 (“We
adhere to the requirement of Rule 5-304(D) that if the court accepts a defendant’s plea in
exchange for a guaranteed, specific sentence and that sentence is not imposed, the court must
give the defendant an opportunity to withdraw his or her plea.”). However, since it was

                                             10
unnecessary to explain when a defendant does have the automatic right to withdraw a plea,
the reference to Rule 5-304(D) is dicta and cannot therefore be presently relied upon by
Defendant. As we have explained, once a court has accepted a plea agreement, it is bound
by the dictates of due process to enforce the agreement. It has no authority to later reject the
agreement. Because the misstatement regarding Rule 5-304(D) is an inaccurate reflection
of the requirement in the rule, it should not be relied upon in this or any future case.

E.     Sentences Must Comply With Both Our Sentencing Laws and an Accepted Plea
       Agreement

{35} Finally, the State argues that the Court of Appeals erred in declining to consider
whether the court that approves a plea agreement must honor the plea agreement even if it
contains an illegal sentence. The Court of Appeals refused to decide “whether the district
court erred in determining that our sentencing laws require the imposition of a basic sentence
of forty two years” because the parties did not raise the issue. Miller, 2012-NMCA-051, ¶
16. Rather, it determined that “it was the plea agreement, not the sentencing statutes, which
the district court was bound to enforce.” Id. We agree with the State that a sentencing court
must ensure that a sentence complies with both the terms of an accepted plea agreement and
our sentencing laws.

{36} The Court of Appeals correctly considered the ruling in Gomez that “[o]nce the plea
is accepted, the court is bound by the dictates of due process to honor the agreement and is
barred from imposing a sentence that is outside the parameters set by the plea agreement.”
See id. (quoting Gomez, 2011-NMCA-120, ¶ 16). However, as the State argues, the court
must also be mindful of our sentencing statutes and cannot impose an illegal sentence. See
§ 31-18-15(B) (“The appropriate basic sentence of imprisonment shall be imposed . . . unless
the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.”
(emphasis added)); Mares, 1994-NMSC-123, ¶ 10 (holding that a district court can only
impose sentences authorized by law); see also Sneed v. Cox, 1964-NMSC-250, ¶ 8, 74 N.M.
659, 397 P.2d 308 (“[S]entences which are unauthorized by law are null and void.”); State
v. Lucero, 1944-NMSC-036, ¶¶ 17-18, 48 N.M. 294, 150 P.2d 119 (determining that legal
sentences must be supported by statutory authority; illegal sentences are void). If the
sentence in an accepted plea agreement is illegal, and therefore cannot be imposed by a
court, then the court must give the defendant the opportunity to withdraw the plea. Sisneros,
1982-NMSC-068, ¶ 8 (reversing the Court of Appeals’ reinstatement of an illegal sentence
and ordering that the correct remedy was to permit the defendant to withdraw his plea).

{37} Thus, when Defendant is re-sentenced upon remand, the sentence must honor both
Defendant’s understanding of the plea agreement and our sentencing laws. Although
Defendant’s understanding that two years of the forty-two year sentence be run concurrent
with parole cannot be honored, there are several ways to ensure that the sentence adheres to
his understanding that he would face no more than forty years of incarceration for the
pleaded charges. Accordingly, we offer two sentencing options to the district court.


                                              11
{38} First, the court can consider running concurrently any one of the sentences it must
impose. We recognize that the plea agreement dictates that the sentences be run
consecutively, but this requirement conflicts with the handwritten language that
contemplates running part of the sentence concurrent with parole. Since we are presented
with two conflicting provisions, we conclude that to harmonize both provisions, the forty
year cap must be seen as a cap on what can be run consecutively. Alternatively, the court
could adjust the statutorily required basic sentence by up to one-third upon the finding of
mitigating factors justifying the reduction—perhaps Defendant’s willingness to plead guilty.

IV.    CONCLUSION

{39} This case demonstrates why it is essential that a district court clarify any ambiguity
in a plea agreement, including those related to sentencing provisions, before it decides
whether to accept or reject the plea agreement. If the district court does not resolve the
ambiguity, the language in the plea agreement will be construed in favor of a defendant’s
reasonable understanding. Once a court has accepted a plea agreement, it must ensure that
the promises contained in the agreement are fulfilled. If the agreement contains a guaranteed,
specific sentence, the court is bound by the dictates of due process to impose that sentence.

{40} Since the district court in this case failed to resolve the ambiguity in the plea
agreement that it accepted, we construe the agreement in favor of Defendant’s reasonable
understanding that he would spend no more than forty years incarcerated. We therefore
affirm the Court of Appeals’ conclusion that Defendant’s sentence violates his plea
agreement, but we reverse its remand order and order specific performance of the plea
agreement in accordance with this opinion.

{41}   IT IS SO ORDERED.

                                              ____________________________________
                                              BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

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