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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                     NO. 34,625

 5 CHRISTOPHER CALLOWAY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
 8 J.C. Robinson, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Kimberly Chavez Cook, Assistant Appellant Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.

18   {1}    Defendant Christopher Calloway appeals from the denial of his motion for

19 presentence confinement credit following his no contest plea convictions for child

20 abuse and negligent use of a deadly weapon. [RP Vol.II/357, 328; DS 2-3] In this
 1 Court’s notice of proposed disposition, we proposed to affirm the denial of

 2 Defendant’s motion. [CN 1, 5] Defendant filed a memorandum in opposition, which

 3 we have given due consideration. Remaining unpersuaded, we affirm.

 4   {2}   Defendant continues to argue in his memorandum in opposition that he was out

 5 of custody for 655 days, the restrictions on his liberty and his conditions of release

 6 during that time were so severe as to subject him to the charge of escape for a

 7 violation and that, thus, he should be awarded presentence confinement credit for that

 8 time. [RP Vol.II/339-40, 353; MIO 1] Defendant asserts he was subject to the charge

 9 of escape, because the possibility of being prosecuted for escape “would create

10 incentives for compliance” with his conditions of release. [MIO 10] We note that

11 under NMSA 1978, Section 31-20-12 (1977),

12         [a] person held in official confinement on suspicion or charges of the
13         commission of a felony shall, upon conviction of that or a lesser included
14         offense, be given credit for the period spent in presentence confinement
15         against any sentence finally imposed for that offense.

16   {3}   In State v. Fellhauer, 1997-NMCA-064, ¶ 17, 123 N.M. 476, 943 P.2d 123, this

17 Court held,

18         Section 31-20-12 applies to time spent outside a jail, prison or other
19         adult or juvenile correctional facility when (1) a court has entered an
20         order releasing the defendant from a facility but has imposed limitations
21         on the defendant’s freedom of movement, OR the defendant is in the
22         actual or constructive custody of state or local law enforcement or
23         correctional officers; and (2) the defendant is punishable for a crime of



                                               2
 1         escape if there is an unauthorized departure from the place of
 2         confinement or other non-compliance with the court’s order.

 3 As we pointed out in our notice of proposed disposition, facts indicating a defendant

 4 was subject to an escape charge could include the identity of the custodian and the

 5 existence of a detention contract or stipulation in which the defendant acknowledged

 6 he could be prosecuted for escape for a violation. Id. ¶¶ 16, 13, 19. In State v. Guillen,

 7 2001-NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812, we discussed the Fellhauer

 8 requirements and held,

 9         [A]ny defendant charged with a felony who is released (1) under
10         conditions of house arrest that require the defendant to remain at home
11         except to attend specified events such as treatment, work, or school and
12         (2) pursuant to a community custody release program that holds the
13         defendant liable to a charge of escape under [NMSA 1978, Section 30-
14         22-8.1 (1999) ], is entitled to presentence confinement credit for the time
15         spent in the program.

16   {4}   In State v. Duhon, 2005-NMCA-120, 138 N.M. 466, 122 P.3d 50, our most

17 recent discussion of Fellhauer, we further refined the requirement of a community

18 custody release program to require only that the release of a defendant be “ ‘judicially

19 approved’ subject to defined procedures and conditions on a case-by-case basis.”

20 Duhon, 2005-NMCA-120, ¶ 11.

21   {5}   Defendant argues that while he was not subject to a “judicially approved”

22 program, the conditions imposed upon him amounted to an “ad hoc” supervision

23 program. [MIO 14] Defendant points out the following restrictions on his liberty: he


                                               3
 1 was subject to conditions of release for two years; he was released to the custody of

 2 his parents, who were implicitly charged with his supervision and the duty to report

 3 any violations; he was subject to random urinalysis; he was required to maintain

 4 employment; he was not allowed to leave the house between six o’clock in the

 5 evening and six o’clock in the morning; he was to be transported by his employer to

 6 and from work at eight o’clock in the morning and five o’clock in the evening. [MIO

 7 13-16; RP Vol.I/41, 150] As in his docketing statement, beyond making bare

 8 assertions that he was subject to an escape charge for a violation of these conditions

 9 of release, rather than some other sanction imposed by the district court, Defendant

10 cites no authority supporting his contention and no citation to evidence in the record

11 indicating Defendant was subject to an escape charge. [MIO 6-17; DS 3] As we noted

12 in our proposed disposition, “[i]t is not our practice to rely on assertions of counsel

13 unaccompanied by support in the record. The mere assertions and arguments of

14 counsel are not evidence.” Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256

15 P.3d 987 (internal quotation marks and citation omitted). [CN 4]

16   {6}   As we pointed out in our proposed disposition, Defendant was released to the

17 custody of his parents and, significantly, not to any type of community custody, day

18 reporting, electronic monitoring, day detention, or community tracking program. [CN

19 4; RP Vol.I/41] Nor does Defendant assert that he either entered into a detention



                                              4
 1 contract or stipulated that he could be subject to escape charges if he violated his

 2 conditions of release. [CN 4] Thus, Defendant's release to his parents was not a

 3 judicially approved program and was not subject to defined procedures and

 4 conditions. We therefore conclude that Defendant’s argument is unavailing and

 5 decline to expand our case law to award presentence confinement credit based on the

 6 circumstances and conditions of Defendant’s pretrial release. Accordingly, for the

 7 reasons provided above and in our notice, we affirm the district court’s denial of

 8 Defendant’s motion for presentence confinement credit for the time he spent out of

 9 custody.

10   {7}   IT IS SO ORDERED.


11
12                                        M. MONICA ZAMORA, Judge

13 WE CONCUR:


14
15 JONATHAN B. SUTIN, Judge


16
17 TIMOTHY L. GARCIA, Judge




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