 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: _______________

 3 Filing Date: February 28, 2018

 4 NO. A-1-CA-35471

 5 STATE OF NEW MEXICO,

 6        Plaintiff-Appellee,

 7 v.

 8 JEFFREY ASLIN,

 9        Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY
11 T. Glenn Ellington, District Judge

12 Hector H. Balderas, Attorney General
13 Marko D. Hananel, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16   Bennett J. Baur, Chief Public Defender
17   C. David Henderson, Appellate Defender
18   MJ Edge, Assistant Appellate Defender
19   Santa Fe, NM

20 for Appellant
 1                                        OPINION

 2 VANZI, Chief Judge.

 3   {1}   Defendant Jeffrey Aslin raises two issues on appeal challenging the district

 4 court’s decision revoking his probation. First, he argues that there was insufficient

 5 evidence of willfulness to support the finding that he violated probation. Second, he

 6 argues that the district court abused its discretion in ruling that the violation was not

 7 a “technical violation” under the First Judicial District’s technical violation program

 8 (TVP). We affirm on the first issue and reverse and remand on the second.

 9 BACKGROUND

10   {2}   In November 2013, Defendant was charged with trafficking of a controlled

11 substance (methamphetamine), conspiracy to commit trafficking of a controlled

12 substance, and possession of drug paraphernalia. Defendant subsequently pleaded

13 guilty to one count of trafficking for which the district court imposed a suspended

14 sentence of nine years imprisonment and a three-year term of probation. In September

15 2014, a month after entering his plea, Defendant signed an order of probation that,

16 among other things, listed the conditions of Defendant’s release and his

17 understanding of them. Of particular relevance, condition five of the probation order

18 required Defendant to “follow all orders and instructions of [his p]robation . . .

19 [o]fficer including actively participating in and successfully completing any . . .

20 treatment program . . . as deemed appropriate by the [p]robation . . . [o]fficer.”
 1   {3}   Defendant admitted to violating his probation on December 15, 2014, after he

 2 tested positive for alcohol. The district court reinstated him to probation and

 3 Defendant opted into the TVP. As we explain in greater detail below, the TVP in

 4 effect at the time, was a program established at the First Judicial District Court for

 5 sanctioning adult probationers for “technical violations of their probation[.]”1 The

 6 program provided progressive discipline, including days in jail, for certain “technical

 7 violations” up to and including removal from the TVP after a fourth violation.

 8   {4}   Defendant tested positive for methamphetamine twice while under the TVP and

 9 received jail sanctions of three and seven days, respectively. In October 2015, two

10 months after his second sanction, Defendant was arrested and charged with

11 possession of a stolen motor vehicle and altering or changing engine or other

12 numbers. Defendant’s probation officer, Mary Ann Sarmiento, filed a probation

13 violation report alleging that Defendant had committed new criminal offenses and

14 that he had failed to enter a drug treatment program.




           1
15           Admininistrative Order, Case No. D-101-CS-2012-00010, In re Establishing
16   a Technical Violation Program for Adult Probationers. The later-enacted local rule
17   was not in effect at the time this case was under consideration. See LR1-306 NMRA
18   (adopted by Supreme Court Order No. 16-8300-015 and effective for all cases
19   pending or filed on or after December 31, 2016). The local rule varies from the
20   administrative order in some measurable respects particularly with regard to the
21   definition of “technical violations” and a probationer’s removal from the program.

                                              2
 1   {5}   The district court held an evidentiary hearing on November 13, 2015, at which

 2 two witnesses testified. New Mexico State Police Officer Jessie Whittaker testified

 3 regarding the new criminal offenses, and Sarmiento testified regarding the probation

 4 violations. Sarmiento stated that she instructed Defendant “multiple times” that he

 5 had to find and complete an outpatient drug treatment program “as soon as possible”

 6 before Community Corrections would accept him. Defendant told Sarmiento that he

 7 would pursue treatment through the Los Alamos Family Council (LAFC), but

 8 Sarmiento later learned that LAFC would not be able to provide treatment for him.

 9 On September 10, 2015, Sarmiento advised Defendant that he could not get treatment

10 from LAFC and provided him with alternatives, including Presbyterian Medical

11 Services and Hoy Recovery, both located in Española, New Mexico. Defendant never

12 enrolled or participated in those programs or any other outpatient drug treatment

13 program between the time of his conversation with Sarmiento on September 10th and

14 his arrest on October 6th.

15   {6}   At the conclusion of the hearing, the district court found that the State had not

16 proven a violation based on new charges; however, the court found that Defendant

17 had failed to “enter into, participate, and successfully complete drug treatment” in

18 violation of his probation agreement. The district court rejected Defendant’s argument

19 that the infraction was a technical violation stating that “failing to find a program and



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 1 enter is not the same thing as testing positive. It is more than a mere technical

 2 violation.” The court revoked Defendant’s probation and imposed a sentence of time

 3 served, plus two years, seven months, and seven days in prison, to be followed by

 4 four years, eight months, and twenty-seven days on probation. This appeal followed.

 5 DISCUSSION

 6   {7}   Defendant makes two arguments on appeal. First, he argues that there was

 7 insufficient evidence to support the district court’s finding that he violated probation.

 8 In particular, he contends that the evidence presented at the evidentiary hearing did

 9 not prove that he “willfully avoided treatment.” Second, Defendant argues that his

10 failure to enter and complete an outpatient drug treatment program was a technical

11 violation that should have been sanctioned in accordance with the TVP, and the

12 district court abused its discretion when it revoked his probation. Although we

13 conclude that the district court did not err in finding that Defendant’s failure to enter

14 and complete treatment constituted a probation violation, we agree that Defendant

15 should have been sentenced under the TVP for a third technical violation.

16   {8}   We review the district court’s decision to revoke probation under an abuse of

17 discretion standard. State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. The state

18 “bears the burden of establishing a probation violation with a reasonable certainty.”

19 Id. Moreover, “[t]o establish a violation of a probation agreement, the obligation is



                                               4
 1 on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy

 2 the applicable burden of proof.” In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M.

 3 566, 66 P.3d 339.

 4   {9}   We pause to address the State’s request for clarification of the law governing

 5 the willfulness analysis in probation revocation hearings. Citing to a plethora of

 6 mostly unpublished opinions, the State contends that our case law “spans several

 7 decades and while not contradictory, is at times inconsistent.” Although we see no

 8 consequential split or inconsistency in our authority, we nevertheless reiterate

 9 that,“[o]nce the state offers proof of a breach of a material condition of probation, the

10 defendant must come forward with evidence to excuse non-compliance.” Leon, 2013-

11 NMCA-011, ¶ 36 (internal quotation marks and citation omitted). Thus, while the

12 burden of proving a willful violation always remains on the state, after the state

13 presents a prima facie case of a violation, the burden shifts to the defendant to come

14 forward with evidence that the failure to comply was through no fault of his own.

15 State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321; see also

16 State v. Parsons, 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99 (noting that it

17 was the state’s burden to prove that the defendant violated probation by not paying

18 probation fees and costs, and once the state did so, it was the defendant’s

19 responsibility to demonstrate that non-compliance was not willful). As we explained



                                               5
 1 in Leon, there is no shifting of the burden of proof, but a shifting of the burden of

 2 going forward with evidence to meet or rebut a presumption that has been established

 3 by the evidence. 2013-NMCA-011, ¶ 36. In other words, once the state establishes

 4 to a reasonable certainty that the defendant violated probation, a reasonable inference

 5 arises that the defendant did so willfully, and it is then the defendant’s burden to

 6 show that failure to comply was either not willful or that he or she had a lawful

 7 excuse. See id. ¶¶ 36, 39 (noting that the defendant did not present any evidence to

 8 rebut the reasonable inference that he willfully violated his probation); see also In re

 9 Bruno R., 2003-NMCA-057, ¶ 9 (stating that we indulge all reasonable inferences to

10 uphold a finding that there was sufficient evidence of a probation violation). Having

11 reiterated the law, we now turn to the issues in this case. We begin with whether

12 Defendant’s conduct constituted a “willful violation.”

13   {10}   At the November 13, 2015 evidentiary hearing, the State presented evidence

14 that Defendant had failed to enter into, participate in, and complete outpatient drug

15 treatment.     The   probation    order—which      Defendant     acknowledged       and

16 signed—required him, among other things, to follow his probation officer’s orders,

17 including “actively participating in and successfully completing” a drug treatment

18 program. Defendant’s probation officer, Sarmiento, testified that she told Defendant

19 “multiple times” that he had to find and complete an outpatient drug treatment



                                              6
 1 program but he failed to do so. Although Defendant told Sarmiento that he would

 2 pursue treatment through LAFC, Sarmiento later found out that Defendant was unable

 3 to obtain treatment at that facility. Sarmiento then provided Defendant with two

 4 outpatient drug treatment alternatives to LAFC, but he never entered those or any

 5 other programs. We agree with the district court that through Sarmiento’s testimony

 6 the State established a prima facie case that Defendant willfully violated a term of his

 7 probation agreement. Accordingly, to rebut this presumption Defendant was required

 8 to come forward with evidence showing that his non-compliance was not willful.

 9   {11}   On appeal, Defendant contends that his “failure to get treatment resulted from

10 factors beyond his control.” However, Defendant does not direct us to anything in the

11 record that provides evidence to support this statement. Indeed, Defendant did not

12 present any evidence at the hearing to rebut the reasonable inference set forth by

13 Sarmiento’s testimony that his non-compliance was willful. Accordingly, we

14 conclude that the district court did not abuse its discretion in determining that the

15 State met its burden of establishing that, to a reasonable certainty, Defendant willfully

16 violated a term of his probation. Cf. Leon, 2013-NMCA-011, ¶¶ 38-39 (concluding

17 that “the evidence was sufficient for a reasonable mind to conclude that [the

18 d]efendant had violated [a] condition of his probation” when the probation officer




                                               7
 1 testified that the defendant did so and the defendant did not come forward with any

 2 evidence to rebut this presumption).

 3   {12}   Although we hold that the district court did not abuse its discretion in finding

 4 that Defendant violated probation, we nonetheless conclude that the court erred in

 5 revoking Defendant’s probation on the basis that the violation was “not a mere

 6 technical violation.” As we have noted, we review a district court’s revocation of

 7 probation under the abuse of discretion standard. Id. ¶ 36. However, “our review of

 8 the application of the law to the facts is conducted de novo. Accordingly, we may

 9 characterize as an abuse of discretion a discretionary decision that is premised on a

10 misapprehension of the law.” Harrison v. Bd. of Regents of Univ. of N.M., 2013-

11 NMCA-105, ¶ 14, 311 P.3d 1236 (internal quotation marks and citations omitted).

12 We begin with the provisions of the TVP.

13   {13}   In August 2012, the First Judicial District established the TVP by

14 administrative order (Order) pursuant to Rule 5-805(C) NMRA. Rule 5-805(C) allows

15 a district court to “establish a program for sanctions for probationers who agree to

16 automatic sanctions for a technical violation of the conditions of probation.” The

17 Order, which was subsequently replaced by LR1-306, was the version that was in

18 effect at the time the district court entered its judgment revoking Defendant’s




                                                8
 1 probation. We therefore analyze Defendant’s argument under the provisions of the

 2 Order.

 3   {14}   Pursuant to the Order, a probationer who was placed into the TVP and who

 4 committed a technical violation of his or her order of probation, waived the right to

 5 due process procedures as provided by Rule 5-805 and would instead be sanctioned

 6 based on a progressive disciplinary scheme. For example, the probationer would

 7 receive up to three (3) days in jail for the first technical violation, up to seven (7) days

 8 in jail for a second violation, and up to fourteen (14) days for the third technical

 9 violation. Section E of the Order provided that “[a]fter a fourth technical violation,

10 a probationer may be subject to removal from the TVP and subsequent violations may

11 be prosecuted pursuant to Rule 5-805.”2 Technical violations included:

12          (1) having a positive urine or breath test or other scientific means of
13          detection for drugs or alcohol;
14                 ....
15          (2) possessing alcohol;
16          (3) missing a counseling appointment;
17          (4) missing a community service appointment;
18          (5) missing an educational appointment; or




            2
19           This provision differs materially from LR1-306(E) which provides that “[o]n
20   a fourth technical violation, a probationer shall be removed from the TVP, and
21   subsequent violations that would constitute technical violations under this rule may
22   be prosecuted under Rule 5-805 . . . . The court may also remove a probationer from
23   the TVP at any time on a probation violation that is not defined as a technical
24   violation by this rule.”

                                                9
 1          (6) the failure to comply with any term of, or to complete, any
 2          treatment program or any other program required by the court or
 3          probation.

 4   {15}   In this case, the district court found that Defendant “violated his conditions of

 5 probation by failing to enroll in treatment as ordered by probation.” The court further

 6 found that the violation was “not a mere technical violation” and granted the motion

 7 to revoke probation on that basis. Defendant contends that contrary to the district

 8 court’s finding, his probation violation came within the ambit of either technical

 9 violation number three or six, above, and because this would be his third violation,

10 the court could only impose a fourteen-day jail sanction. We agree.

11   {16}   As an initial matter, we acknowledge that judicial districts have the authority

12 to promulgate local rules and, pursuant to Rule 5-805(C), the First Judicial District

13 had the authority to enact the TVP at issue here. However, it is well-established that

14 local rules may not conflict with statewide rules. Rule 5-102(A) NMRA (“Local rules

15 and forms shall not conflict with, duplicate, or paraphrase statewide rules or

16 statutes.”); Rule 5-805(C) (stating that a judicial district may establish a TVP in

17 accordance with Rule 5-102). As Defendant points out, Rule 5-805(C)(3) clearly and

18 unambiguously defines a “technical violation” as “any violation that does not involve

19 new criminal charges.” The State does not respond to Defendant’s argument nor does

20 it address the plain language of Rule 5-805(C).



                                               10
 1   {17}   Notwithstanding the general rule that “it is not the function of a reviewing

 2 court to substitute its own interpretation of a local rule for that of the court which

 3 promulgated the rule[,]” State v. Cardenas, 2003-NMCA-051, ¶ 10, 133 N.M. 516,

 4 64 P.3d 543 (alteration, internal quotation marks, and citation omitted), the plain

 5 language of Rule 5-805(C) provides that a technical violation is limited to violations

 6 that do not involve new criminal charges. The district court in this case specifically

 7 found that there was “insufficient evidence that . . . Defendant violated the conditions

 8 of probation by committing new offenses.” Without a finding that he committed a

 9 “new violation of state law,” Defendant’s failure to enter and complete outpatient

10 drug treatment must therefore be construed as a “technical violation” under Rule 5-

11 805(C). See Fogelson v. Wallace, 2017-NMCA-089, ¶ 75, 406 P.3d 1012 (noting that

12 we give effect to the plain meaning language of a statute when its language is clear

13 and unambiguous); see also Frederick v. Sun 1031, LLC, 2012-NMCA-118, ¶ 17, 293

14 P.3d 934 (“When construing our procedural rules, we use the same rules of

15 construction applicable to the interpretation of statutes.” (internal quotation marks

16 and citation omitted)). In sum, because local rules should not conflict with statewide

17 rules, Rule 5-102(A), the district court erred in finding that Defendant’s probation

18 violation was “not a mere technical violation” under the TVP and by granting the

19 State’s motion to revoke probation on that basis. Instead, the district court should



                                              11
 1 have imposed the sanction for a third violation of the Order and imposed a fourteen-

 2 day jail sentence for the violation. We vacate the court’s order revoking probation and

 3 remand with instructions to reinstate probation.

 4 CONCLUSION

 5   {18}   We affirm the district court’s finding that Defendant violated probation. We

 6 reverse the district court’s finding that Defendant’s violation was not a technical

 7 violation and remand for sentencing consistent with the automatic sanctions of the

 8 TVP.

 9   {19}   IT IS SO ORDERED.

10                                         _______________________________
11                                         LINDA M. VANZI, Chief Judge

12 WE CONCUR:



13 _________________________________
14 JULIE J. VARGAS, Judge



15 _________________________________
16 STEPHEN G. FRENCH, Judge




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