STATE OF NEW MEXICO v. THOMAS CHAVEZ
NO. A-1-CA-35994
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
July 29, 2019
2019-NMCA-068
HANISEE, Judge.
Opinion Number: 2019-NMCA-068. APPEAL FROM THE DISTRICT COURT OF BERNANLILLO COUNTY, Charles W. Brown, District Judge. Certiorari Denied, September 6, 2019, No. S-1-SC-37874. Released for Publication November 12, 2019.
Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
HANISEE, Judge.
{1} Defendant Thomas Chavez, a convicted sex offender, appeals the district court‘s order that his supervised probation be continued for an additional two and one-half years following his initial, mandatory five-year probationary term under
BACKGROUND
{2} In 2007, Defendant pled guilty to two counts of criminal sexual contact of a minor (CSCM) and contributing to the delinquency of a minor. Defendant was sentenced to twenty-two and one-half years’ imprisonment, all but five of which were suspended. In accordance with
{3} In April 2016, near the end of Defendant‘s initial five-year period of probation, the State filed a motion under
{4} Defendant argued that “the State has not presented sufficient evidence to prove to a reasonable certainty that [he] should remain on probation.” Defendant emphasized that his probation had never been revoked. Defendant acknowledged that his probation officer filed reports on two GPS violations and sanctioned him with fifty-two hours of community service, but argued that with respect to the first written-up GPS violation, Defendant did not know his GPS unit was out of contact with the larger monitoring system. Regarding the second written-up GPS violation, Defendant argued that, although his location was unknown for thirty-four minutes in the middle of the night because
{5} Defendant asserted that the State did not provide the district court with “behavioral type facts . . . for why [Defendant] is in need of more rehabilitative services.” Defendant also contested his probation officer‘s conclusion that he would benefit from continued probation, arguing, “[I] think the State can make that argument for every single person on probation. . . . [T]hat‘s not what the burden is here for the State and that‘s not what the purpose of probation is. The statute doesn‘t say the [district c]ourt should look and see if somebody could benefit from another two and one-half years of probation. [Defendant] has almost wholly complied with his term of probation, and he‘s done it pretty well.” Finally, Defendant discounted his statement during his PSR interview that if stressed he might recidivate, arguing that since then he has taken advantage of mental and physical health care to manage his stress, and that he has registered as a sex offender as required every quarter.
{6} At the conclusion of the hearings, the district court acknowledged that “[i]n some ways, the [d]efendant always gets hammered . . . [I]f the [d]efendant[ is] doing well on conditions of release, then [the State] argue[s,] ‘Hey, it‘s working, therefore we need to . . . keep him on it. If he‘s not doing well, it shows we need to keep him on it.’ So that‘s one of those things which carries . . . very little weight as far as what you look at.” Nonetheless, the district court found that “[t]here were two violations” and granted the State‘s motion although “Defendant has made progress[.]” The district court then ordered Defendant to remain on probation for another two and one-half years with the same terms and conditions as before, but eliminated GPS monitoring. Defendant‘s timely appeal followed.
DISCUSSION
I. Section 31-20-5.2(B) Is Not Void for Vagueness
{7}
A district court shall review the terms and conditions of a sex offender‘s supervised probation at two and one-half year intervals. When a sex offender has served the initial five years of supervised probation, the district court shall also review the duration of the sex offender‘s supervised probation at two and one-half year intervals. When a sex offender has served the initial five years of supervised probation, at each review hearing the state shall bear the burden of proving to a reasonable certainty that the sex offender should remain on probation.
Defendant challenges the last sentence of this provision as void for vagueness, arguing that it does not provide “guidance . . . as to the factors a court should rely upon” in deciding whether a defendant should remain on probation. Defendant elaborates that it is “unclear . . . what the State must prove to continue [Defendant] on probation[,]” and that “[t]he [L]egislature did not properly define the measure by which to [decide] extensions brought under
{8} The State responds that “a reasonable and practical construction of the language contained in
{9} A vagueness challenge to the constitutionality of a statute is grounded in the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. See
He can either demonstrate that the statute fails to allow individuals of ordinary intelligence a fair opportunity to determine whether their conduct is prohibited, or he can demonstrate that the statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement of the statute, which occurs because the statute has no standards or guidelines and therefore allows, if not encourages, subjective and ad hoc application.
Id. ¶ 18 (alteration, internal quotation marks, and citation omitted). Here, Defendant advances his challenge based only on the second prong of the vagueness analysis—that is, he contends that
{10} “Appellate courts have a duty to construe a statute in such a manner that it is not void for vagueness if a reasonable and practical construction can be given to its language.” State v. Duttle, 2017-NMCA-001, ¶ 13, 387 P.3d 885 (internal quotation marks and citation omitted). Determining whether
{11} Additionally, we review void-for-vagueness constitutional claims even when they are not preserved below. State v. Laguna, 1999-NMCA-152, ¶ 23, 128 N.M. 345, 992 P.2d 896. Defendant does not indicate how he preserved his vagueness challenge below nor does our review of the record so indicate, and thus we presume it was not preserved, although we nonetheless proceed to reviewing it.
B. Analysis
{12} To determine that
{13} Beginning with “reasonable certainty,” we first look to its plain meaning. “Reasonable” is defined as “[f]air, proper, or moderate under the circumstances; sensible.” Reasonable, Black‘s Law Dictionary (11th ed. 2019). “Certainty” is defined as “[t]he quality, state, or condition of being indubitable or certain, esp[ecially] upon a showing of hard evidence” or “[a]nything that is known or has been proven to be true.” Certainty, Black‘s Law Dictionary (11th ed. 2019). In case law, “reasonable certainty” is typically used in the context of a probation violation hearing, in which we have held the term to mean “the [s]tate must introduce evidence that a reasonable and impartial mind would be inclined to conclude that the defendant has violated the terms of probation.” State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. We are guided, if not bound by, Leon‘s definition of the term “reasonable certainty” despite our recognition that
{14} Next, looking to the intent of the Legislature, when the bill that was eventually codified as the amended
{15} Guided as we are first by the words chosen by the Legislature, and aided by the manner in which our case law defines “reasonable certainty” in a circumstance which we view to present a similar inquiry, we conclude the plain meaning of “reasonable certainty” is clear. In resolving whether a probationer should remain on probation for additional time under
{16} We next assess the meaning of the phrase “should remain on
(1) the nature and circumstances of the offense for which the sex offender was convicted or adjudicated;
(2) the nature and circumstances of a prior sex offense committed by the sex offender;
(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;
(4) the danger to the community posed by the sex offender; and
(5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate district court personnel.
While the provision at issue,
{17} Defendant argues that these factors “should no longer be relevant in deciding whether to continue probation” because two of the five are inapplicable to a post-incarceration probation-extension query. But beyond this bare-bones argument, Defendant advances no legal reason why the district court cannot, or should not, utilize the factors from
{18} Because “reasonable certainty” has a specific meaning that has been clearly defined by analogous case law, and “should remain on probation” has a clear plain meaning with applicable statutory standards, we decline to hold that
{19} Considered as part of the statute by which district courts make discretionary custodial or probationary determinations in the context of the uniquely pernicious offense of child sexual abuse,
{20} Lastly, we also agree with the State that
II. The District Court Did Not Abuse Its Discretion in Ordering Defendant to Remain on Probation
{21} Defendant contends that “there was not substantial evidence to support the [district] court‘s order of continued probation.” Specifically, Defendant argues that the “electronic monitoring mishaps” were ultimately dismissed by the district court as “unfounded” and that continuing Defendant on probation is not justified by his statement during his PSR interview that he might reoffend if he was under stress, given his completion of sex offender counseling. Defendant further argues that the State‘s argument that Defendant completed part of his probationary term while in custody and thus should continue on probation out of custody for a longer period of time “doubly punishe[s him] for having to wait for halfway house space to open up.” Additionally, Defendant maintains that the district court‘s order that Defendant remain on probation was “not based upon any articulated factual findings.”
{22} The State responds that the district court “relied primarily on Defendant‘s two [probation] violations” in ordering him to remain on probation, that sufficient evidence supports those two violations, and that the district court credited Defendant‘s overall compliance with counseling and made the “split ruling” that Defendant need not undergo GPS monitoring during his continued probation, and thus the district court appropriately considered the evidence presented at the hearing.
{23} We first decide the standard of review to apply when considering whether the district court erred in ordering Defendant to remain on probation pursuant to
{24} “To establish an abuse of discretion, it must appear the district court acted unfairly or arbitrarily, or committed manifest error.” Green, 2015-NMCA-007, ¶ 22 (alteration, internal quotation marks, and citation omitted). “[A] district court abuses its discretion when its decision is not supported by substantial evidence.” State v. Solano, 2009-NMCA-098, ¶ 7, 146 N.M. 831, 215 P.3d 769 (internal quotation marks and citation omitted). Here, the district court found that “[t]here were two violations,” and that although “Defendant has made progress,” the district court nonetheless concluded that Defendant should remain on probation for another two and one-half years, with the same terms and conditions as before but without GPS monitoring. It does not appear from the district court‘s ruling that it relied upon the State‘s arguments regarding Defendant‘s statement during his PSR interview that he could reoffend if under stress, or that because Defendant served part of his probation in custody, he should remain on probation longer.
{25} Substantial evidence supports the district court‘s finding of two violations of the terms and conditions of Defendant‘s probation. Defendant‘s probation officer filed reports on two GPS violations, and Defendant does not contest the district court‘s finding of two violations on appeal. Although with respect to one violation, Defendant argued during the hearing that he was not aware that
CONCLUSION
{26} For the foregoing reasons, we conclude that
{27} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
JACQUELINE R. MEDINA, Judge
CYNTHIA A. FRY, Judge Pro Tempore