                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'05- 15:28:46 2012.11.29
Certiorari Granted, May 11, 2012, No. 33,571

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-051

Filing Date: March 16, 2012

Docket No. 29,244

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ANDREW MILLER,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth H. Martinez, District Judge

Gary K. King, Attorney General
Santa Fe, NM

Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

BUSTAMANTE, Judge.

{1}    Defendant Andrew Miller was indicted on sixty-one charges related to money he was
alleged to have obtained fraudulently from Roberta Beale (Victim). He entered into a plea
agreement pursuant to which both he and the State agreed to a maximum sentence of forty

                                           1
years. The district court accepted the plea agreement but sentenced Defendant to forty-two
years imprisonment, nine of which were suspended, for an initial incarceration of thirty-three
years. Because the forty-two year sentence violated his plea agreement, we reverse.

I.     BACKGROUND

{2}    This case comes to us from two district court cases against Defendant that were
consolidated below. In the first, CR 2006-3283, Defendant was indicted on thirty-five
counts involving fraud and embezzlement. In the second, CR 2007-3827, he was indicted
on twenty-six counts involving fraud and forgery. The combined basic sentences for these
two cases exceeded 250 years.

{3}     Defendant entered into a plea agreement in which all but six of the counts against
him were dismissed. The “Sentencing Agreement” portion of the agreement stipulated that
“[t]he parties agree that there shall be a minimum sentence of ten . . . years and a maximum
sentence of [forty] years at initial sentencing. The remaining two years of the [forty-two]
year exposure shall run concurrent with parole of two years.” Similarly, the “Potential
Incarceration” portion of the agreement stated that “[i]f the court accepts this agreement, the
[D]efendant will be ordered to serve a minimum sentence of ten . . . years and a maximum
sentence of [forty] years in the Department of Corrections at initial sentencing.” The
agreement also incorporated a forfeiture stipulation in which the parties agreed that all
“vehicles purchased using money obtained using [Victim’s] money” would be subject to
forfeiture. The plea agreement was accepted by the court on August 7, 2008.

{4}     After the plea was accepted but before sentencing, Defendant moved to withdraw his
guilty plea. Pursuant to Santobello v. New York, 404 U.S. 257 (1971) and State v. Sisneros,
98 N.M. 279, 648 P.2d 318 (Ct. App. 1981), rev’d on other grounds, 98 N.M. 201, 647 P.2d
403 (1982), Defendant argued that he was entitled to withdraw his plea because the State
was not fulfilling its obligations under the plea agreement. In particular, Defendant claimed
that “the [S]tate promised th[at] Defendant would be allowed visits with his son and the
mother.” Defendant argued that failure to allow visitation “provide[d] a fair and just reason
to withdraw the plea prior to sentencing.”

{5}     At the sentencing hearing, the State requested a sentence of forty-two years. The
State contended that this was appropriate because despite the provision in his plea agreement
that he would not operate any businesses from jail, Defendant was currently running a
business called “Leisure Entertainment” from jail. Defendant admitted to running the
business. The district court sentenced Defendant to forty-two years imprisonment followed
by two years of parole and five years of probation. It then suspended nine of the years.
Defendant did not sign the judgment and sentence, but instead wrote in that he “object[ed]
as to pre-sentence confinement time[,] length of sentence[,] and [the] ban on conducting
business in [the department of corrections].” Defendant did not file a post-sentence motion
to withdraw his plea, but instead filed a notice of appeal to this court.


                                              2
{6}     The case was initially assigned to the summary calendar. We expressed concern that
the “district court’s sentence [did] not appear to be in accordance with the plea agreement.”
However, our review of the record led us to believe that the district court “may have simply
made a clerical error in the written judgment.” We therefore remanded “for clarification of
the judgment and sentence,” ordering that “the district court shall enter . . . findings and/or
corrected judgment.”

{7}      On February 12, 2010, the district court held a hearing devoted to the length of the
sentence, after which it filed supplemental findings of fact and conclusions of law with this
Court. The district court made it clear that it understood the plea agreement to require a
forty-two year sentence. The court interpreted the forty-year maximum sentence to mean
that at least two years of Defendant’s sentence must be suspended. Importantly, the court
entered a finding setting forth its understanding of the sentence cap.

                It is the custom and practice of the Second Judicial District Court in
       administering plea and disposition agreements in criminal matters to interpret
       the language of a minimum sentence of “[ten] years and a maximum of
       [forty] years at initial sentencing” to constitute a sentencing floor and cap of
       actual incarceration to be served in the Department of Corrections. However,
       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 court also entered several conclusions of law. Several of these discussed the district
court’s authority to sentence, essentially setting forth the provisions in NMSA 1978,
Sections 31-18-13 (1993), -15 (2007), and -15.1 (2009) that require a district court to
sentence a defendant to the basic sentence unless there is an aggravating or mitigating
circumstance. One conclusion discussed this Court’s holding in State v. Bencomo, 109 N.M.
724, 790 P.2d 521 (Ct. App. 1990), that a district court abuses its discretion when it does not
follow the sentence recommendation in a plea agreement. However, the court concluded that
it had followed the terms of the plea agreement because, in its view, the parties had “agreed
that all counts would run consecutively for a total basic exposure of [forty-two] years and
that [Defendant’s] exposure of incarceration at initial sentencing would be no more than
[forty] years.” The court therefore again denied Defendant’s motion to withdraw his plea
agreement.

II.    DISCUSSION

{8}      Defendant presents four arguments on appeal: (1) that the district court abused its
discretion by denying his motion to withdraw his plea after adopting a sentence outside of
the plea agreement, (2) that his trial on the criminal charges at issue here violates his rights
against double jeopardy because the State had already forfeited his property, (3) that the
district court incorrectly calculated the restitution he owed, and (4) that the district court

                                               3
credited him with less pre-sentence confinement than he was due. Because we reverse the
denial of Defendant’s motion to withdraw his plea, we do not reach his remaining arguments.

A.     Motion to Withdraw Plea

{9}     Defendant argues that the district court was required to allow him to withdraw his
plea due to several circumstances he alleges were outside the scope of the plea. These
include (1) that the court imposed a longer sentence than contemplated in the plea
agreement, (2) that the court did not include visitation rights for Defendant’s girlfriend and
son in its judgment and sentence, (3) that the court failed to order the return of Defendant’s
Mercedes, and (4) that the court’s order disqualifying Defendant’s first attorney impacted
his decision to enter into the plea. The State contends that the forty-two year sentence with
nine years suspended is consistent with the plea agreement. Because we hold that the
imposition of a forty-two year sentence violated the sentence cap in the plea agreement, we
do not address the additional complaints Defendant has raised regarding the plea.

{10} We review the denial of a motion to withdraw a plea for abuse of discretion. See
State v. Hunter, 2006-NMSC-043, ¶ 11, 140 N.M. 406, 143 P.3d 168. “[T]he [district] court
abuses discretion when it applies an incorrect standard, incorrect substantive law, or its
discretionary decision is premised on a misapprehension of the law.” Aragon v. Brown,
2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913.

{11} “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, 151
N.M. 67, 267 P.3d 831. Once a plea has been accepted, the dictates of due process require
the district court to honor the agreement. Sisneros, 98 N.M. at 281, 648 P.2d at 320; see also
Rule 5-304(C) NMRA (stating that, if the plea agreement is accepted, “the court shall inform
the defendant that it will embody in the judgment and sentence the disposition provided for
in the plea agreement”). Failure to do so is a breach of the plea agreement and is treated as
a rejection of the plea. See Gomez, 2011-NMCA-120, ¶ 11. “[I]f the defendant and the State
have bargained for a specific sentence and the court rejects the specific sentence, the court
must give the defendant an opportunity to withdraw his or her plea agreement.” State v.
Pieri, 2009-NMSC-019, ¶ 1, 146 N.M. 155, 207 P.3d 1132.

1.     The Plea Agreement Was For A Specific Sentence

{12} In order to determine which law applies in this case, we must first determine whether
the plea agreement in this case called for a specific sentence or whether the State merely
promised to recommend a sentence. Where the parties agree to a specific sentence and the
district court accepts the plea, the court must enforce the terms of the plea or allow the plea
to be withdrawn. Santobello, 404 U.S. at 262; Pieri, 2009-NMSC-019, ¶¶ 30, 33. If the
parties agreed only that the State would recommend a sentence, the standard that applies
depends on the date of the agreement. For agreements entered into before April 23, 2009,
failure of the district court to follow the recommendation acts as a rejection of the plea. See

                                              4
Pieri, 2009-NMSC-019, ¶ 34; Eller v. State, 92 N.M. 52, 54, 582 P.2d 824, 826 (1978),
overruled by Pieri, 2009-NMSC-019, ¶ 36. For agreements entered into after that date, the
district court may ignore the recommendation so long as the defendant had been made aware
that the district court was not bound by it. Pieri, 2009-NMSC-019, ¶¶ 29, 33-34.

{13} The distinction between agreements for specific sentences and agreements to
recommend sentences was critical in Pieri. There, the State agreed not to oppose a
defendant’s request for a suspended sentence in exchange for her promise to testify truthfully
in a case against her husband. Id. ¶ 2. However, because the defendant was sentenced prior
to her husband’s trial, she did not have the chance to testify prior to sentencing. Id. ¶ 3. The
State requested that the defendant serve time in prison and the defendant argued that she was
entitled to specific performance of her plea bargain. Id. The district court imposed the
maximum possible sentence. Id. On appeal, this Court reversed, concluding that the
agreement not to oppose the defendant’s request was an implicit promise to recommend a
suspended sentence, and that under Eller, the district court’s failure to follow the
recommendation was a rejection of the plea and required the court to allow the defendant the
opportunity to withdraw the plea. See Pieri, 2009-NMSC-019, ¶ 4.

{14} Our Supreme Court disagreed, concluding that this Court had incorrectly
characterized the State’s agreement not to oppose the defendant’s request for a suspended
sentence as an agreement to recommend that the defendant receive a suspended sentence.
See id. ¶¶ 9-12. Because the agreement called for a specific action—namely, the State’s
refraining from opposing the request for a suspended sentence—the Court concluded that
Santobello, not Eller, applied. See Pieri, 2009-NMSC-019, ¶¶ 9-10. The Court noted that
“‘when a plea rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such promise must be
fulfilled.’” Id. ¶ 15 (quoting Santobello, 404 U.S. at 262). Because the State, in violation
of its promise, had opposed the request for a suspended sentence, the defendant “should have
either been re[-]sentenced in front of a different judge or have been allowed to withdraw her
plea.” Id. ¶ 16.

{15} In this case, as in Pieri, the State made a specific promise that is enforceable not
under Eller, but under Santobello. Here, the State did not agree merely to recommend a
sentence of between ten and forty years—it agreed that Defendant’s actual sentence would
be in that range. Regardless of whether the sentencing cap could be read to include the
forty-two year sentence in this case, it is clear that the plea agreement embodies a promise
for a sentence within a particular range, not a promise to recommend a sentence within a
range. Pieri and Santobello therefore apply, and Defendant should have the opportunity to
withdraw his plea or to be sentenced under the plea agreement by a different judge if this
promise was not enforced.

{16} The fact that this is a Santobello case had implications beyond the remedy for breach.
Where a specific sentence is agreed upon, the district court must enforce it. In its
supplemental findings, the district court appeared to believe that it was compelled by our

                                               5
sentencing laws to impose a basic sentence of forty-two years. The parties do not raise, and
we do not decide, whether the district court erred in determining that our sentencing laws
require the imposition of a basic sentence of forty-two years. Instead, our review is limited
to whether the district court’s sentence conformed to the language of the plea agreement.
Here, however, it was the plea agreement, not the sentencing statutes, which the district court
was bound to enforce. See Gomez, 2011-NMCA-120, ¶ 16 (“Once 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.”). If the
district court was unhappy with the State’s choice, it should not have accepted the
agreement. See State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994). Because it did
accept the agreement, it was bound to enforce the agreement’s terms.

2.     The Maximum Permissible Sentence Was Forty Years

{17} We proceed to the question of whether the forty-two year sentence with nine years
suspended was inconsistent with the language in the plea agreement limiting the initial
sentence to forty years. Defendant has consistently argued that the forty-two year sentence
exceeds the forty-year maximum contemplated in the plea agreement. The State contends
that the forty-two year sentence was in accordance with the forty-year maximum because the
“at initial sentencing” language signaled that the limitation was not on the sentence, but on
the initial period of incarceration.

{18} Appellate courts “construe the terms of the plea agreement according to what [the
d]efendant 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).

       When there is any ambiguity in a plea agreement and the district court
       resolves the ambiguity with the parties at the time of the plea, the agreement
       is no longer ambiguous on that point. However, if an ambiguity is not
       resolved by the district court and no extrinsic evidence is introduced that
       would resolve it, the reviewing court 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.

Gomez, 2011-NMCA-120, ¶ 9 (internal quotation marks and citations omitted). However,
courts “should turn to rules of construction only after it has used all other methods of
resolving the ambiguity, and plea agreements should be construed in favor of the non-
drafting party only when an ambiguity cannot be resolved by a review of the relevant direct
and extrinsic evidence.” Mares, 119 N.M. at 52, 999 P.2d at 934.

{19} We recently rejected the argument that the portion of a sentence that is initially
suspended does not count as part of the sentence. In Gomez, a defendant entered into three
plea agreements covering six cases against him. 2011-NMCA-120, ¶ 2. Each agreement

                                              6
specified that Gomez would serve between zero and nine years of incarceration, probation,
treatment, or some combination thereof. Id. ¶¶ 3, 5, 6. The second and third agreements
specified that the sentences in those agreements would run concurrent with the sentence in
the first agreement. Id. ¶¶ 5, 6. Initially, the district court deferred sentencing and ordered
Gomez to attend a drug treatment program. Id. ¶ 7. However, Gomez violated one of the
conditions of his release, and the district court imposed a sentence of twenty-one years, with
sixteen suspended, resulting in an initial incarceration of five years. Id. ¶ 8. Gomez argued
that the sentence was not in conformance with his plea, but the district court disagreed,
stating that a sentence of five years incarceration and five years probation was within the
plea since each was less than the nine-year cap. Id.

{20} On appeal, this Court reversed, stating that the agreements were “unambiguous in
stating that the total time [Gomez would] serve pursuant to each agreement [was] zero to
nine years.” Id. ¶ 10. “We reject[ed] the State’s argument that the use of the term ‘serve’
in the first agreement indicate[d] an intent to allow for an actual sentence of something
greater than nine years, so long as any period above the nine-year cap [was] suspended or
deferred.” Id. ¶ 11. In doing so, we reasoned that the judgment and sentence actually filed
ordered Gomez to serve twenty-one years. Id. The fact that the court had ordered sixteen
years of the sentence to be suspended did not change the length of the sentence. Id.
(“Suspending execution of sixteen years of actual incarceration unless, and until, [the district
court] orders otherwise, does not change the fact that Gomez was sentenced to a prison term
of twenty-one years.”).

{21} Our analysis in the present case begins with the language from the “SENTENCING
AGREEMENT” portion of Defendant’s plea specifying that “[t]he parties agree that there
shall be a minimum sentence of ten . . . years and a maximum sentence of [forty] years at
initial sentencing.” By itself, this language is unambiguous, and requires that the maximum
sentence be no longer than forty years. It refers not to the initial period of incarceration, but
to the “maximum sentence.” Nevertheless, the State argues that the phrase “at initial
sentencing” transforms this from a limit on the sentence into a limit on the initial period of
incarceration.

{22} Our holding in Gomez dispenses with the State’s argument that the “at initial
sentencing” language allows for a sentence longer than forty years. Gomez held that the
suspended portion subtracts not from the overall length of the sentence, but from the initial
period of incarceration. “It is well established that a district court generally cannot increase
a valid sentence once a defendant begins serving that sentence.” State v. Redhouse, 2011-
NMCA-118, ¶ 7, 269 P.3d 8 (alteration, internal quotation marks and citation omitted). The
phrase “at initial sentencing” is therefore of no effect when applied to a sentence, because
the sentence cannot later be increased. It could only have meaning when applied to
incarceration. But the State in this case chose to apply the phrase to a limitation on the
sentence. We do not believe that Defendant would have reasonably understood that this
phrase could transform the clear and unambiguous word “sentence” into “initial period of
incarceration.”

                                               7
{23} The most problematic part of the agreement is the poorly drafted, hand-written
language immediately following the sentence cap. It states: “The remaining two years of
the [forty-two] year exposure shall run concurrent with parole of two years.” The meaning
of this language is unclear. It could, as the State contends, call for a forty-two year sentence
with two years suspended. Alternatively, as Defendant appears to argue, it could mean that
two years of the forty-year sentence would be suspended, or that a separate two-year
sentence would run concurrently with the forty years.

{24} The only thing clear about this language is that its meaning cannot be interpreted
without additional evidence or resort to rules of construction. We find no indication in the
record that the district court resolved the ambiguity in this language prior to accepting the
plea. At the plea hearing, the district court read the language but did not comment on or
otherwise interpret its meaning. The ambiguity was therefore unresolved when the plea was
accepted. Subsequently, at the sentencing hearing, Defendant indicated his understanding
that the “agreement was that the two [years] was going to run concurrent with the [forty],”
thereby showing that he still did not understand the language of the plea to allow for a forty-
two year sentence.

{25} Because the district court did not resolve the ambiguity, we address the meaning of
the sentence cap de novo. Defendant’s statements at the sentencing hearing indicate that his
subjective belief was that a sentence of forty-two years was inconsistent with the agreement.
Given the clear language of the sentencing cap, we conclude that his understanding was
reasonable. Furthermore, to the extent that the sentence was ambiguous, we construe it
against the State. The portion of the agreement that was concisely written clearly and
unambiguously imposed a forty-year maximum sentence. The handwritten portion was
drafted in such a way that it could mean anything, and the district court did nothing to clarify
its meaning prior to accepting the agreement.

{26} Finally, nothing else in the agreement would have alerted Defendant that a sentence
in excess of forty years was contemplated. The agreement sets forth the maximum penalties
for the charges to which Defendant pleaded guilty. These amount to forty-two years, with
the potential for a one-third modification. However, this section informs Defendant of the
possible sentences for the counts to which he has pleaded guilty; it does not purport to
embody a sentencing agreement between Defendant and the State. The agreement also
provides: “The Defendant m[a]y be given a period of probation. If the [D]efendant later
violates that probation or parole, the [D]efendant may be incarcerated for the balance of the
sentence.” This language explains the mechanics of probation, which gives the district court
the discretion to suspend part of Defendant’s sentence. This statement of the well
established principles of probation cannot reasonably be read to modify the forty-year cap
on Defendant’s sentence. It also makes it absolutely clear that the Defendant may ultimately
be incarcerated for the initially suspended portion of his sentence (if any).

{27} We conclude that absent some explanation from the State or the district court, no
defendant would reasonably understand that the “at initial sentencing” language could

                                               8
transform such a clear maximum sentence limitation into what amounts to a minimum period
of suspension. Under the State and the district court’s reading of the sentence cap, a 1000
year sentence, with 960 years suspended, would have complied with the forty-year cap. The
district court entered a finding that the use of this language represents the “custom and
practice” in the Second Judicial District. We now hold that that practice is inadequate. The
meaning of the agreement is determined not by the understanding of prosecutors and judges,
but by what the defendant reasonably understood when entering the plea. Had the State
desired an agreement that imposed the maximum sentence—even if it also wanted to impose
a minimum period of incarceration—we have no doubt that it could have easily done so in
a clear, unambiguous fashion. We therefore reverse the denial of Defendant’s motion to
withdraw his plea.

3.     Remedy

{28} Having concluded that the district court rejected the plea agreement by sentencing
Defendant to two years more than the maximum contemplated by the agreement, we turn our
attention to what remedy is appropriate. The rejection of the plea entitles Defendant to the
relief he has requested: an opportunity to withdraw his plea. See Pieri, 2009-NMSC-019,
¶¶ 14-18. However, we recognize that both Defendant and the State have an interest in
enforcing the agreement. See Gomez, 2011-NMCA-120, ¶ 18. Should both parties so desire,
the district court may also re-sentence Defendant in accordance with the plea. See
Santobello, 404 U.S. at 263; Pieri, 2009-NMSC-019, ¶ 5.

B.     Remaining Issues

{29} Because we have reversed, the judgment and sentence setting forth the amounts of
restitution and pre-sentence confinement is of no effect. We therefore do not reach
Defendant’s arguments on these issues.

{30} Defendant also argues that the forfeiture of one of his vehicles prior to his conviction
precludes the State from imposing any further punishment on him, and that his subsequent
conviction therefore violated his right against double jeopardy. However, as he candidly
admits, “the record with respect to this issue may need to be further developed.” In fact,
there was no evidence taken nor findings made regarding this issue. The record is silent as
to which cars were seized, whether any cars have yet been sold, and which if any of these
vehicles were purchased using money fraudulently obtained from Victim. Additionally, the
stipulated order to forfeit was part of the plea, which we have held that Defendant may
withdraw on remand. For these reasons, we believe that any attempt to undertake an analysis
at this point would result in an advisory opinion, which we decline to give. See Santa Fe S.
Ry., Inc. v. Baucis Ltd. Liab. Co., 1998-NMCA-002, ¶ 24, 124 N.M. 430, 952 P.2d 31 (“Our
concern with issuing advisory opinions stems from the waste of judicial resources used to
resolve hypothetical situations which may or may not arise.”). Defendant is free to develop
a record on this issue, to reach a new agreement that addresses his concerns, or to raise these
issues at trial.

                                              9
III.    CONCLUSION

{31} For the foregoing reasons, we reverse the order denying Defendant’s motion to
withdraw his plea, vacate the judgment and sentence, and remand for further proceedings
consistent with this Opinion.

{32}    IT IS SO ORDERED.

                                           ____________________________________
                                           MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for State v. Miller, Docket No. 29,244

AE            APPEAL AND ERROR
AE-SR         Standard of Review

CT            CONSTITUTIONAL LAW
CT-DJ         Double Jeopardy
CT-DP         Due Process

CL            CRIMINAL LAW
CL-FR         Fraud

CA            CRIMINAL PROCEDURE
CA-DJ         Double Jeopardy
CA-DU         Due Process
CA-PP         Plea and Plea Bargaining
CA-SN         Sentencing




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