State v. AslinState v. Aslin
VIGIL, Justice.
{1}
I. BACKGROUND
{2}
{3} Under the TVP, a probationer who was in the program and committed a technical violation of probation waived thе procedural rights provided for in
(1) having a positive urine or breath test or other scientific means of detection for drugs or alcohol;
. . . ;
(2) possessing alcohol;
(3) missing a counseling appointment;
(4) missing a community service appointment;
(5) missing an educational appointment; or
(6) the failure to comply with any term of, or to complete, any treatment program or any other program required by the court or probation.
{4} Pursuant to a plea and disposition agreement, Defendant had pleaded guilty to trafficking a controlled substance (methamphetamine) by distribution. On September 3, 2014, Defendant was sentenced to nine years of incarceration, all of which was suspended with three years of supervised probation. Defendant then signed a standard order setting conditions of probation, and he agreed to comply with its terms. Three
{5} While in the TVP, Defendant committed first and second technical violations when he tested positive for methamphetamine in June and again in August 2015. In accordance with the TVP, Defendant served three days and then seven days in jail for these violations. Upon his release from the seven-day jail sentence, Defendant‘s probation officer instructed Defendant to enter, participate in, and successfully complete the Community Corrections Program.
{6} On October 6, 2015, Defendant was arrestеd on new criminal charges of possessing a stolen vehicle,
{7} Defendant appealed to the Court of Appeals, raising two issues: (1) There was insufficient evidence to support a finding that Defendant willfully violated his probation, and (2) the district court erred in ruling that the violation was not a technical violation under the TVP. Aslin, 2018-NMCA-043, ¶¶ 1, 7. On the first issue, the Court of Appeals affirmed the district court. Id. ¶¶ 1, 10-11. However, the Court of Appeals did not address the second issue as Defendant had presented it. Instead, the Court of Appeals determined that the definition of a “technical violation” in the TVP impermissibly conflicted with the definition of a “technical violation” in
{8} We granted the State‘s petition for certiorari to review the opinion of the Court of Appeals. Our review is limited to the question presented by the State‘s petition. See
II. DISCUSSION
A. Standard of Review
{9} This case requires us to interpret
B. Analysis
{10}
A judicial district may by local rule approved by the Supreme Court in the manner provided by
Rule 5-102 NMRA , establish a program for sanctions for probationers who agree to automatic sanctions for a technical violation of the conditions of probation. Under the program a probationer may agree:
(1) not to contest the alleged violation of probation;
(2) to submit to sanctions in accordancе with the local rule; and
(3) to waive the provisions of Paragraphs D through L of this rule. For purposes of this rule, a “technical violation” means any violation that does not involve new criminal charges.
(Emphasis added.)
{11} The language at issue is the last sentence of
{12} A sentencing court in New Mexico historically has had the discretion to “suspend any sentence imposed upon such terms and conditions as it shall deem prоper, and such sentence shall go into effect upon order of the court upon a breach of any of such terms or conditions by the person convicted.” Ex parte Bates, 1915-NMSC-060, ¶ 2, 20 N.M. 542, 151 P. 698 (internal quotation marks and citation omitted). In dealing with probation violations, the sentencing court has three available options when a defendant violates tеrms or conditions of probation. State v. Martinez, 1982-NMCA-185, ¶ 5, 99 N.M. 248, 656 P.2d 911 (stating that the sentencing court “may (1) continue probation, (2) revoke probation and require the defendant to serve the balance of the previously imposed sentence, or (3) revoke probation and require the defendant to serve a sentence less than the balance of the previously imposed sentence“). The Legislature has retained these options in the current sentencing scheme. “If [a probation] violation is established, the court may continue the original probation or revoke the probation and either order a new probation with any condition provided for in [
{13} The discretion provided under
{14} Under the Court of Appeals reasoning, “technical violations” are “all violations that dо not involve new criminal charges.” See Aslin, 2018-NMCA-043, ¶ 17. Based on the foregoing reasons, we hold that the Court of Appeals erred in its interpretation of
C. Issue That Remains to Be Decided
{15} In the Court of Appeals Defendant argued that the district court erred in ruling that Defendant‘s probation violation was not a technical violation under the TVP. Aslin, 2018-NMCA-043, ¶ 1. Relying on an argument not preserved or еven made, the Court of Appeals instead concluded that Defendant‘s probation violation did not involve new criminal charges and consequently was a technical violation under its interpretation of
{16} Defendant continues to make the argument before us that the district court should be reversed because it erred in ruling that Defendant‘s probation violation wаs not a technical violation under the TVP. The State in turn correctly points out that this argument is not properly before us. Specifically, on a writ of certiorari, we “will consider only the questions set forth in [a] petition.”
{17} Whether Defendant‘s probation violation is or is not a technical violation under the TVP has serious consequences. If the violation is a technical violation under the TVP, Defendant‘s probation is not revoked, he has a third tеchnical violation, and he is subject to no more than fourteen days in jail. On the other hand, if the violation is not a technical violation under the TVP, the district court order revoking Defendant‘s probation
{18} Under the TVP, one of the definitions of a technical violation is “the failure to comply with any term of, or to complete, any treatment program or any other program required by the court or probation.” Under Defendant‘s order of probation, one of the standard conditions of probation is, “I will follow all orders and instructions of my Probation/Parole Officer including actively participating in and successfully completing any level of supervision and/or treatment program, which may include Community Corrections, ISP, Elec Monitoring or other supervision/treatment program, as deemed appropriate by the Probation/Parole Officеr.”
{19} Whether Defendant‘s violation falls under the TVP or under the order of probation or neither must still be determined. We therefore remand the case to the Court of Appeals to answer this question, which Defendant first raised on direct appeal.
III. CONCLUSION
{20} We reverse the Court of Appeals, and we remand this case to the Court of Appeals for further proceedings consistent with this opinion.
{21} IT IS SO ORDERED.
MICHAEL E. VIGIL, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
BARBARA J. VIGIL, Justice
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice