State v. Leon, 3 N.M. 249

Defendant Mario Leon appeals a district court order revoking his probation and imposing an enhanced sentence under the Habitual Offender Statute.
Leon was convicted after a no-contest plea of contributing to the delinquency of a minor and selling or giving alcohol to a minor, with an original sentence of 3 years’ imprisonment and 1 year of parole, partially suspended for supervised probation with conditions.
Because of prior sex offense conviction, Leon was placed under the New Mexico Corrections Department’s SOSBC and supervised by the sex offender unit, with restrictions including no contact with minors without written permission and requiring counseling.
Probation violations were alleged for alcohol in the home, failure to re-register as a sex offender, and missed counseling sessions; a later arrest for unsupervised contact with minors was added as a violation.
The State petitioned to revoke probation and sought habitual offender enhancement; the district court revoked probation and sentenced Leon to five years with supervised probation.
Leon filed a late notice of appeal, and the court ultimately concluded it could hear the untimely appeal and affirmed the district court’s rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal to probation revocation	Leon asserts ineffective assistance due to untimely filing under Duran principles.	State argues untimely filing deprives jurisdiction and merits should be dismissed.	Court can hear untimely appeal; presumption of ineffective assistance applies.
Lawfulness of SOSBC conditions	SOSBC conditions were not stated in the district court order, so unlawful.	SOSBC terms were authorized by Probation/Parole Division and implied in the order.	Probation conditions, including SOSBC, were lawful and imposed by the order.
Reasonableness of probation conditions	Sex offender conditions not reasonably related to current offenses.	Conditions reasonably related to rehabilitation and public safety.	Conditions were reasonably related to the offenses, rehabilitation, and public safety.
Sufficiency of evidence for revocation	State proved violations (alcohol in home, counseling missed, registration, contact with minors).	Insufficient evidence for some or all asserted violations.	Evidence supported revocation on at least one violation; district court did not abuse discretion.
Habitual offender enhancement	Enhancement proper based on prior felony conviction for purposes of habit.	Enhancement cannot be based on juvenile-adjudicated offense treated as a felony.	Habitual Offender Statute applicable; court had authority to enhance.

Blea v. Cox, 75 N.M. 265, 403 P.2d 701 (1965) (right to counsel at revocation hearings; due process)
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (case-by-case determination whether counsel is required in probation revocation)
Barnett v. Malley, 90 N.M. 633, 567 P.2d 482 (1977) (adopts Gagnon approach in parole revocation; right to counsel in certain contexts)
Duran, 105 N.M. 231, 731 P.2d 374 (Ct. App. 1986) (conclusive presumption of ineffective assistance for untimely appeal when counsel fails to file timely notice)
State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670, 974 P.2d 164 (1999) (extension of Duran presumption to non-criminal contexts; fundamental liberty interests at stake)
Amanda M., 2006-NMCA-133, 140 N.M. 578, 144 P.3d 137 (2006) (expanded presumption to abuse/neglect context when counsel fails to timely file)
State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904 (2011) (probation revocation involves substantial liberty interests; due process considerations)
State v. Ordunez, 2012-NMSC-024, 283 P.3d 282 (2012) (ex post facto considerations and probation context)
State v. Eger, 2007-NMCA-039, 141 N.M. 379, 155 P.3d 784 (2007) (extension of presumption when counsel fails to timely file in magistrate contexts)