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                                                                integrity of this document
                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 16:48:49 2018.01.10

Certiorari Denied, August 30, 2017, No. S-1-SC-36544

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMCA-001

Filing Date: June 7, 2017

Docket No. A-1-CA-33623

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

FRANK YAZZIE,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Benjamin Chavez, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Sergio Viscoli, Appellate Defender
David Henderson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

GARCIA, Judge.

{1}     On appeal, Defendant challenges the district court’s imposition of a habitual offender
enhancement to his sentence following a violation of his probation. Defendant raises two
issues on appeal. First, Defendant argues that he was not subject to enhancement at the time

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of the probation violation because he had completed his sentence as to that particular
conviction under his plea agreement. Second, Defendant argues that the district court erred
in not applying the 2002 amendment to the habitual offender statute, NMSA 1978, §
31-18-17 (1993, amended 2002 and 2003), limiting the time period that the district court
may consider prior felonies. We affirm the district court’s ruling regarding Defendant’s
probation violation and its application of the habitual offender statute.

BACKGROUND

{2}    On April 2, 2002, Defendant Frank Yazzie, also known as Paul Throckmorton,
entered into a repeat offender plea and disposition agreement (the plea agreement) by which
he agreed to plead no contest to one count of third degree aggravated battery causing great
bodily harm (Count 1), and one count of fourth degree aggravated assault with a deadly
weapon (Count 2), for offenses occurring on or about September 19, 2001. Pursuant to the
plea agreement, all other crimes for which he had been charged were dismissed.

{3}     In pertinent part, the terms of the plea agreement provided that, as to sentencing,
Defendant would receive a three-year sentence on Count 1 and a one-and-one-half-year
sentence on Count 2. These sentences were to be served consecutively. Under the terms of
the plea agreement, the State also filed a supplemental information charging Defendant as
the same person convicted of the following felony offenses, to which Defendant admitted
his identity: (1) aggravated assault on September 7, 1977, in Coconino County Superior
Court, Arizona (two counts); (2) interstate transportation of a stolen motor vehicle and
interstate transportation of stolen property (traveler’s checks) on May 6, 1983, in the United
States District Court for the District of New Mexico (four counts); (3) assaulting, resisting,
or impeding a Department of Veteran Affairs law enforcement officer on June 19, 1992, in
the United States District Court of New Mexico (one count). As a result of Defendant’s
admission regarding his prior felonies, the sentence on Count 2 received a habitual offender
enhancement of eight years of mandatory incarceration. The plea agreement further
stipulated that three years of Defendant’s underlying sentence for Counts 1 and 2 would be
suspended but was silent as to which specific count the suspended sentence related. This
gave Defendant an initial incarceration exposure of at least eight years and up to nine and
one-half years.

{4}     Finally, the plea agreement stated that if the district court accepted the agreement,
Defendant could also “be ordered to serve a period of probation.” If Defendant later violated
his probation, “he [could] be incarcerated for the balance of the sentence and have an
[additional] eight . . . year habitual enhancement apply to Count 1; thus [as to] Count 1[,
D]efendant could be incarcerated for up to eleven . . . years with two . . . years of parole if
probation is violated.”

{5}     The district court accepted the plea agreement and sentenced Defendant consistent
with its terms on June 28, 2002. The district court entered a judgment, partially suspended
sentence, and commitment (the judgment and sentence), which stipulated that Defendant was

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to be imprisoned for the term of:

       three . . . years as to Count 1, one-and-one-half . . . years . . . as to Count 2,
       enhanced by eight . . . years pursuant to the habitual offender statute, all to
       run consecutive with each other for a total of twelve and one-half . . . years,
       of which three . . . years [were] suspended, for an actual sentence of
       imprisonment of nine and one-half . . . years.

The district court further imposed three years of probation and two years of parole following
Defendant’s release from incarceration. At the sentencing hearing, the district court
explained that Defendant would serve probation concurrent with parole. Defendant also
received pre-sentence confinement credit. Similar to the plea agreement, neither the district
court’s remarks at the sentencing hearing nor the judgment and sentence is clear as to which
count the three-year suspension of Defendant’s sentence was intended to apply towards.

{6}     Defendant was released from prison and began serving his three-year term of
probation on March 19, 2011—running concurrently during the first two years with his term
of parole. Defendant had served the bulk of his probation when the State alleged that
Defendant violated the conditions of his probation and filed a motion to revoke his probation
on December 16, 2013. Defendant and the State appeared before the district court for a
probation revocation hearing on February 4, 2014. At the probation revocation hearing, the
State filed a supplemental information in open court charging Defendant as a habitual
offender on the basis of his prior felony convictions. Prior to the hearing, Defendant filed
a motion to preclude the State’s proposed enhancement of Defendant’s sentence, arguing that
Defendant had completed his sentence as to Count 1, the un-enhanced third degree
aggravated battery offense, and had already served an eight-year enhancement on Count 2
and therefore, the State was precluded from seeking enhancement of the aggravated battery
offense.

{7}     Following the presentation of evidence, the district court found that the State had
satisfied its burden of demonstrating that Defendant had violated his probation. The court
then addressed Defendant’s motion. Following argument by the parties, the district court
ruled that Defendant had prior felony convictions that supported enhancement based upon
the supplemental information filed by the State, as well as the plea agreement and the
judgment and sentence. The court denied Defendant’s motion to preclude enhancement of
his sentence and enhanced Defendant’s aggravated battery conviction on Count 1 by eight
years but suspended any remaining time on the underlying charge that was still being served.
This appeal followed.

DISCUSSION

{8}     Defendant makes two arguments on appeal. First, Defendant argues that at the time
he violated probation, he had completed his sentence, as well as any parole or probation
time, as to Count 1 and was not subject to enhancement as a habitual offender as to Count

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1. Second, Defendant argues that when the State filed its supplemental information in
February 2014, it could not rely on prior convictions more than ten years old because the
2002 amendment to the habitual offender statute limited the time frame for prior felony
convictions to ten years. See § 31-18-17(D)(1) (2002).

{9}     To the extent our analysis requires interpretation of the plea agreement, “[appellate
courts] construe the terms of [a] 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). “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 district court failed to resolve the ambiguity and no
extrinsic evidence is introduced 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 [a] plea agreement de novo.” Id. (internal quotation marks and
citation omitted). To the extent that our analysis requires interpretation of the judgment and
sentence, we review de novo “the district court’s interpretation and application of the
sentencing law[.]” State v. Brown, 1999-NMSC-004, ¶ 8, 126 N.M. 642, 974 P.2d 136.

I.     Defendant Was Subject to an Additional Eight-Year Habitual Offender
       Enhancement at the Time He Violated Probation

{10} New Mexico provides for increasing the basic sentence for those who have been
determined to be habitual offenders. See § 31-18-17. “[T]he jurisdiction of a [district] court
to enhance a felony sentence under the habitual offender statute expires once a defendant has
completed service of that sentence.” State v. Lovato, 2007-NMCA-049, ¶ 6, 141 N.M. 508,
157 P.3d 73. “This jurisdictional limitation is founded upon principles of double jeopardy:
once a sentence has been served, a defendant’s punishment for the crime has come to an end
. . . and further punishment for that crime under any enhancement provision would violate
the prohibition on double jeopardy.” Id. ¶ 6 (alteration, internal quotation marks, and citation
omitted).

{11} Such double jeopardy concerns are only implicated if the defendant has an
objectively reasonable expectation of finality in the sentence. See State v. Redhouse,
2011-NMCA-118, ¶ 10, 269 P.3d 8 (“Increasing a defendant’s sentence after a defendant
begins serving the sentence implicates double jeopardy concerns if a defendant’s objectively
reasonable expectations of finality in the original sentencing proceedings are violated.”).
Defendant must establish that the district court did not have jurisdiction to impose the
additional enhancement by proving two things: (1) that Defendant had an expectation of
finality in his original sentence, and (2) that the expectation was reasonable. See State v.
Trujilllo, 2007-NMSC-017, ¶ 11, 141 N.M. 451, 157 P.3d 16.

{12}   A defendant’s service of a sentence may include the period of incarceration and any

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parole or probation that follows. State v. Freed, 1996-NMCA-044, ¶ 8, 121 N.M. 569, 915
P.2d 325. As such, a defendant does not have a reasonable expectation of finality in a
sentence while serving probation or parole for the underlying conviction. See State v.
Villalobos, 1998-NMSC-036, ¶ 12, 126 N.M. 255, 968 P.2d 766 (“We think the law and
policy underlying the probation process prevent a reasonable expectation of finality in a
probation sentence, even after the suspended sentence period.”).

{13} Defendant argues that because he had served his nine and one-half years of
incarceration and two years of parole, he had a reasonable expectation of finality in the
original judgment and sentence unless he violated his sentence as to Count 1, which he did
not do because he had completed his probation on Count 1 at the time of the violation.
Defendant’s argument is based in part on his reading of NMSA 1978, Section 31-21-10(D)
(1997) (imposing a two-year parole period for a third degree felony), and State v. Utley,
2008-NMCA-080, ¶ 10, 144 N.M. 275, 186 P.3d 904 (holding that when the district court
did not direct the order in which consecutive sentences were to be served, this Court would
construe the third degree felony sentence to be served last, prior to the imposed two-year
parole period). Defendant argues that under Section 31-21-10(D) (1997) and Utley, a portion
of Defendant’s incarceration must have been served as to Count 1 as the district court
imposed a two-year parole period, which can only be logically imposed as to Count 1, the
third degree felony. He further argues that given the absence in the plea agreement and the
judgment and sentence as to how much of Count 1 would be served in prison, “the most
natural reading is . . . he would serve half his sentence on Count 1 in prison, and . . . all of
the sentence on Count 2 would be suspended.” We agree that under Utley and Section 31-21-
10(D) (1997), Defendant was required to have served a period of incarceration on Count 1
in conjunction with his two years of parole following release. However, if we were to adopt
Defendant’s interpretation of the judgment and sentence—that he served half of Count 1 in
prison and the district court suspended all of Count 2—the result would be a fragmented
probationary period, and such fragmentation was not provided for in either the plea
agreement or the judgment and sentence.

{14} Instead, with regard to probation, the plea agreement stated that if the district court
accepted the agreement, “[Defendant] may also be ordered to serve a period of probation.”
Defendant further agreed that if he “later violate[d] that probation, he may be incarcerated
for the balance of the sentence and have an eight . . . year habitual enhancement apply to
Count 1[.]” Under the judgment and sentence, three years of Defendant’s total sentence was
suspended and “Defendant [was] ordered to be placed on supervised probation for three . .
. years following release from custody[.]” It follows that Defendant would have expected to
serve a three-year period of probation and be subject to additional enhancement of the
sentence imposed for Count 1 during the entire period of his probation. See Freed,
1996-NMCA-044, ¶ 11 (rejecting the defendant’s argument that he had an objectively
reasonable expectation of finality where “[h]e signed a plea agreement that specifically and
clearly informed him that if he violated the conditions of his probation, he would be subject
to an additional enhancement and an additional three years of incarceration”). Because
neither the plea agreement nor the judgment and sentence structured Defendant’s sentence

                                               5
such that the time served on probation corresponded with a particular conviction, Defendant
had no reasonable expectation of finality as to Count 1 or any limitation on the enhancement
of Count 1 prior to the completion of his entire three-year period of probation.

{15} Finally, we reject Defendant’s argument that the rule of lenity should apply. “The
rule of lenity applies when insurmountable ambiguity persists about the statute’s scope after
statutory interpretation or when we are unable to discern legislative intent.” State v.
Contreras, 2002-NMCA-031, ¶ 14, 131 N.M. 651, 41 P.3d 919 (internal quotation marks
and citations omitted). However, Defendant does not argue that any statute in particular is
ambiguous, and we will not guess as to Defendant’s meaning. See State v. Fuentes,
2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that this Court will “not
review unclear or undeveloped arguments [that] require us to guess at what [a] part[y’s]
arguments might be”).

{16} For the foregoing reasons, we hold that the district court’s interpretation and
application of sentencing law was without error and that the district court retained
jurisdiction to enhance Count 1 when Defendant violated his probation. See Villalobos,
1998-NMSC-036, ¶ 12 (recognizing that a defendant does not have a reasonable expectation
of finality in a sentence while serving probation for the underlying conviction); State v.
Sanchez, 2001-NMCA-060, ¶ 23, 130 N.M. 602, 28 P.3d 1143 (stating that where the
language of the plea agreement is clear and provides for additional enhancement of a
defendant’s sentence, the district court is without discretion in imposing that sentence).

II.    The 2002 Amendment to the Habitual Offender Enhancement Statute Does Not
       Apply to Defendant

{17} Prior to 2002, the imposition of the habitual offender statute was mandatory in all
cases in which there was a prior felony conviction, regardless of the date of the prior
conviction. See § 31-18-17 (1993). In 2002, the Legislature amended the habitual offender
statute (the 2002 amendment) to exclude prior felonies from consideration for habitual
offender enhancement when the sentence and any period of probation or parole in the prior
felony was completed ten or more years before the current conviction. Section 31-18-17(D)
(2002). To determine whether the 2002 amendment is applicable to a case, we look to the
date the amendment took effect, July 1, 2002. See State v. Shay, 2004-NMCA-077, ¶ 1, 136
N.M. 8, 94 P.3d 8. In Shay, this Court held that the amendment applies when the district
court sentences a defendant for the underlying crime after July 1, 2002, if the supplemental
information charging the habitual offender status is also filed on or after July 1, 2002. Id. ¶
23. Although Defendant argues that Shay supports his position regarding whether the 2002
amendment should apply to the supplemental information filed on February 5, 2014, we are
unpersuaded. Instead, State v. Ortega controls the present case. 2004-NMCA-080, 135 N.M.
737, 93 P.3d 758.

{18} In Ortega, the defendant was convicted and sentenced for the underlying crime prior
to the effective date of July 1, 2002. Id. ¶¶ 3-5. Prior to July 1, 2002, the defendant

                                              6
negotiated a plea agreement to drop certain charges in exchange for a partially suspended
sentence that included a period of probation. Id. ¶¶ 3-4. The defendant later violated the
terms of his probation and was sentenced to a term that included the habitual offender
enhancement that had been held in abeyance during the original sentencing. Id. ¶¶ 5, 7. This
Court rejected the defendant’s argument that the 2002 amendment should apply for two
reasons. First, because a probation violation, standing alone, is not a crime that can trigger
an independent sentence, any “additional enhancement at the time of the probation violation
relates to the district court’s [original] sentence for the underlying crimes before the 2002
amendment to the habitual offender statute took effect.” Id. ¶ 8. Second, the defendant and
the state reached a bargained-for agreement under which the defendant waived any existing
or future objection, and the subsequent change to the existing statute would upset the parties’
expectations. Id. ¶ 9. Like the defendant in Ortega, Defendant entered into the plea
agreement, under which he waived his rights to objection and appeal, and was sentenced
prior to July 1, 2002. Defendant then violated probation and, under Ortega, is subject to
enhancement under the habitual offender statute as it existed at the time of his original
judgment and sentence. See id. ¶ 16 (specifying that the 2002 amendment did not apply to
sentencing for a probation violation where the defendant’s original sentence was imposed
prior to the date of the 2002 amendment).

{19} Finally, Defendant argues that Ortega conflicts with this Court’s more recent opinion
in State v. Triggs, 2012-NMCA-068, ¶ 9, 281 P.3d 1256. In Triggs, the defendant violated
parole and pursuant to the terms of a plea agreement, the district court enhanced the
defendant’s sentence for seven offenses not previously enhanced and ordered them to be
served consecutively. Id. ¶ 1. This Court held that the district court had the discretion to run
habitual offender sentences concurrently. Id. ¶ 17. This Court reasoned that this discretion
stems from the principle that the original judgment does not bind the judge who revokes
parole, stating, “enhanced sentences are new sentences and . . . in imposing the new
enhanced sentences, the [district] court’s arrangement of the manner in which the new
enhanced sentences were to be served was not limited by the arrangement for serving the
regular sentences.” Id. (alteration, internal quotation marks, and citation omitted). This Court
further relied on the basic principle that district courts have the discretion, where there are
multiple sentences, to impose sentences concurrently or consecutively. Id. ¶ 20.

{20} We see no conflict between Ortega and Triggs. Triggs reaffirms the discretion of the
district court in determining the manner in which a defendant will serve multiple sentences.
2012-NMCA-068, ¶ 20. Enhanced sentences may be new—in that they are newly imposed
after the original sentence for a probation violation—but this does not strip a newly imposed
sentence of its relationship to the original sentence, the grounds for which the sentence is
being enhanced. See Ortega, 2004-NMCA-080, ¶ 8 (noting that “the additional enhancement
at the time of the probation violation relates to the district court’s [original] sentence for the
underlying crimes”). We therefore see no conflict in the application of the principles
established in Ortega and Triggs.

{21}    In this case, Defendant’s original 2002 sentence as to Count 1 held the specific eight-

                                                7
year habitual offender enhancement in abeyance, only to be imposed upon a subsequent
violation of probation. The district court therefore had continuing jurisdiction to impose the
enhancement under the habitual offender statute until Defendant had an objectively
reasonable expectation of finality of his sentence as to Count 1, including his subsequent
three-year term of probation. Per Ortega, the district court did not err in considering all of
Defendant’s prior felonies in enhancing Defendant’s sentence as a habitual offender. 2004-
NMCA-080, ¶ 8.

CONCLUSION

{22} For the foregoing reasons, we affirm the district court’s enhancement of Defendant’s
sentence after he violated his conditions of probation.

{23}   IT IS SO ORDERED.

                                              ____________________________________
                                              TIMOTHY L. GARCIA, Judge

WE CONCUR:

___________________________________
MICHAEL E. VIGIL, Judge

___________________________________
J. MILES HANISEE, Judge




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