State v. CooleyState v. Cooley
- Reporters:
- ,
- Before:
- Michael D. Bustamante
HENDERSON, Judge.
{1} A sex offender whose sentence is deferred or suspended is required to serve “an indeterminate period of supervised probation” between five and twenty years.
{2} In this consolidated opinion,2 we must determine the remedy if a duration review hearing is missed, but probation is later continued based on evidence that was unavailable at the time the hearing should have been held. We hold, based on the plain language of
BACKGROUND
I. Defendant Jeffrey Cooley
{3} In September 2013, Cooley pleaded guilty to criminal sexual penetration in the third degree, contrary to
{4} Cooley‘s probation began sometime between July and November 2014. In July 2016, the State sought to revoke his probation after discovering that an adult woman had been inside Cooley‘s home without his probation officer‘s knowledge or permission. However, the State could not demonstrate at the revocation hearing that Cooley violated the conditions of his probation. Cooley successfully completed
{5} Four months later, Cooley crashed his vehicle after driving while intoxicated. Cooley had been grieving the death of his fiancé at the time, according to his probation officer. The State requested that probation be revoked, but this time, Cooley filed a motion to dismiss in response. He noted that he had been on probation for more than five years, and, according to Cooley, the district court‘s failure to hold a duration review hearing mandated by
{6}
{7} Before the district court had acted on the State‘s request, the State once again asked that Cooley‘s probation be revoked, this time because he had driven with a revoked license. The State later voluntarily withdrew its motion to revoke probation in exchange for Cooley‘s guilty plea to driving while under the influence. The State made two more requests for a duration review hearing before the district court finally held the hearing on October 7, 2021—approximately six years and eleven months after Cooley began probation, at least.
{8}
II. Defendant Allen Antonio
{9} In July 2015, Antonio pleaded no contest to criminal sexual penetration in the third degree, contrary to
{10} Five years elapsed without any evidence of probation violations or attempts by the State to revoke Antonio‘s probation. On December 30, 2020, five years and
{11} The district court finally held a hearing on the State‘s motion to continue Antonio‘s probation in May 2021. But at this point Antonio was in custody, and for some reason was not given notice of the hearing, so the New Mexico Department of Corrections did not make him available. Moreover, his defense counsel asked that the hearing be reset so that Antonio could file a response to the State‘s motion to continue. The hearing was rescheduled, and soon after Antonio filed his response. He argued that
{12} Yet more delay plagued the district court‘s efforts to hold a duration review hearing. The hearing had to again be rescheduled, three times, because defense counsel once failed to appear and Antonio continued to be unavailable due to his incarceration. Finally, in September 2021—five years and eight months after Antonio‘s probation began—the district court held a duration review hearing.
{13} The district court began by taking testimony concerning Antonio‘s conduct while on probation. That testimony consisted entirely of Antonio‘s probation officer reiterating the probation violations that were subject to the State‘s motion to revoke. Based on this testimony, the district court concluded that the State met its burden of proving to a reasonable certainty that probation should be continued. Of particular concern was the fact that Antonio‘s probation violation related to sexual activity, a core component of his underlying conviction. Regarding Antonio‘s arguments about
DISCUSSION
{14} Defendants make the following arguments in favor of reversal: (1)
I. Void for Vagueness
{15} As a threshold issue, we must address whether
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.
Antonio asserts that the section, as a whole, is void for vagueness because it fails to clarify for a probationer whether they must continue to comply with the terms of their probation after five years absent a timely duration review hearing, and it provides no procedures for the district courts to hold duration review hearings, encouraging subjective and ad hoc application. The State responds by arguing that we have already rejected a vagueness challenge to this statute in State v. Chavez, 2019-NMCA-068, 451 P.3d 115, and that the language of the statute makes it clear whether a probationer must still comply and how it should operate.
{16} Although neither Defendant made a vagueness challenge to the district court, we still review the issue on appeal. See id. ¶ 11. A vagueness challenge to a statute is “based on the principle of fair notice in that no one may be held criminally
{17} We must construe
{18} We reject the State‘s assertion that we have already addressed this issue before. Chavez indeed involved a vagueness challenge to
{19} While the defendant in Chavez challenged particular language in the statute, the challenge here is more about what is missing. Rather than any term in
{20} While
{21} Antonio‘s second argument is similarly unavailing. He asserts that
{22}
{23} The foregoing demonstrates that a reasonable construction is possible based on the plain language of
II. Section 31-20-5.2(B) Deadlines
{24} Defendants both contend that duration review hearings under
A. Mandatory Deadlines
{25} Not all statutory deadlines are mandatory. See, e.g., Rodarte v. N.M. Tax‘n & Revenue Dep‘t, 1995-NMCA-078, ¶¶ 5, 9, 120 N.M. 229, 900 P.2d 978 (holding that the thirty-day deadline to hold driver‘s license revocation hearings under
{26} Moreover,
{27} The next question is whether the failure to meet the deadline in
{28} Defendants contend that whether a statute is jurisdictional “depends on if the [L]egislature has provided for waiver or extension for good cause.” For support they rely on both Compton opinions and other cases where waiver was a relevant consideration. See State v. Kerby, 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704; Lopez v. N.M. Bd. of Med. Exam‘rs, 1988-NMSC-039, 107 N.M. 145, 754 P.2d 522; N.M. Tax‘n & Revenue Dep‘t v. Bargas, 2000-NMCA-103, 129 N.M. 800, 14 P.3d 538; Stephens v. N.M. Transp. Dep‘t, 1987-NMCA-095, 106 N.M. 198, 740 P.2d 1182; Redman v. Bd. of Regents оf N.M. Sch. for Visually Handicapped, 1984-NMCA-117, 102 N.M. 234, 693 P.2d 1266. We agree with Defendants that
{29} This is a case where the statute at issue does not create a threshold or prerequisite to a district court‘s jurisdiction over the defendant. As we have
III. Procedural Due Process
{30} Even though the deadlines to hold duration review hearings are not jurisdictional, a probationer cannot be forced to endure twenty years of probation without the state ever meeting its burden. We have recognized in this opinion that
{31} The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
A. Defendants’ Liberty Interest
{32} All parties before us agree that, in general, probationers only enjoy conditional liberty subject to the terms and conditions of their probation. See State v. Guthrie, 2011-NMSC-014, ¶ 10, 150 N.M. 84, 257 P.3d 904. However, during oral argument the parties split on whether the precise interest in these cases is being free from the conditions of probation or simply having a duration review hearing in the first place. If the latter were correct, then Defendants could not demonstrate that they were deprived of any protected interest since they both received duration review hearings,
{33} Probation is an alternative to incarceration. See, e.g.,
{34} New Mexico has provided sex offender probationers like Defendants an opportunity by statute to have the restrictions on their liberty removed.
{35} Although this distinction is subtle, we have made it before in the context of involuntary civil commitment. In Garcia the plaintiff claimed that his right to due process was violated after being involuntarily detained in a hospital without a timely hearing. See 1991-NMCA-053, ¶¶ 3-5, 19. This Court recognized that the statute governing involuntary commitments of adults at the time created a right to a hearing within seven days of commitment unless otherwise waived. See id. ¶ 4;
B. Risk of Erroneous Deprivation and Benefit of Additional Procedures
{36} With respect to the second Mathews factor, a probationer‘s liberty interest is protected under
1. Risk Posed by the Procedures Used
{37} Neither Defendant had a duration review hearing on time. We note that, in practice, there is no doubt the reality of our justice system will lead to delays and a probationer may not receive a duration review hearing precisely when required—such was the case with Antonio, for instance, whose review hearing was consistently delayed for reasons beyond his control. Delays may also be more common in this context because a probationer is typically without counsel until the district court sets the duration review hearing. See
{38} Defendants suggest that this should be the end of our inquiry. However, the fact that a probationer does not receive a duration review hearing exactly on the expiration of the first five years—the deadline in
{39} Both Defendants were on probation significantly longer than contemplated by
{40} Furthermore, neither Antonio nor Cooley asked for the delay, and they garnered no apparеnt benefit from it. To the contrary, when violations occurred after the five-year mark, both Defendants were faced with having their probation revoked, which could have led to sanctions like prison time or additional conditions for their release. See
{41} Defendants’ post-five-year violations were also central to both district courts’ determinations that their probation should continue when they finally did have their review hearings. It is undisputed that there would be no evidence of probation violations had the district courts held timely duration review hearings. The only evidence of misbehavior during probation existed after Defendants had been on probation for over five years, but the district courts relied almost exclusively on that evidence in concluding that their probation needed to continue beyond five years. If
{42} Taken together, the late duration review hearings increased the risk that Defendants were erroneously continued on probation. The delay increased the likelihood that Defendants would violate probation, permitted reliance on evidence of violations that would have been unavailable at a timely duration review hearing, and undercut the very real possibility that Defendants would have been released after five years of probation.
2. Benefit of Additional Procedures in Duration Review Hearings
{43} All parties before us have stuck with their preferred extremes when addressing the benefit of additional procedures under these circumstances. Defendants maintain that no hearing except one by the statutory deadline can satisfy due process. The State, for its part, suggests that a late duration review hearing cannot cause or result in any prejudice, because in the State‘s words, Defendants were “merely continued on probation.” Defendants’ position lends too little credence tо the Legislature‘s preference for an indeterminate period of probation, and the State‘s argument affords too little weight to Defendants’ liberty interest.
{45} Based on our discussion, the risk of erroneously continuing probation at a late review hearing stems from at least three circumstances. First is the delay. Delay increases the time a probationer must abide by the terms and conditions of their probation, allowing the state to impose strict requirements over the probationer that may no longer be warranted. This may lead to probation violations, which would otherwise have been legal activity. Second is the reason for the delay. A probationer may have legitimate reasons for delaying a duration review hearing to their benefit, such as needing additional time to prepare a defense or secure witnesses. In those instances the risk of erroneously continuing probation at a late review hearing is significantly diminished. However, absent delays sought by a probationer, there are
{46} These circumstances are relevant factors for the district courts to consider when determining whether the state has met its burden of proving that probation should continue. Essentially, each of them relate to a probatiоner‘s likelihood of being released from probation but for the delay. That likelihood directly relates to the state‘s burden at a duration review hearing, and so the circumstances affecting that likelihood are appropriate considerations for the district courts under
{47} We recognize that inherent in assessing the probable value of additional procedural safeguards is the degree of prejudice that arises from their absence. Cf. State v. Neal, 2007-NMCA-086, ¶ 42, 142 N.M. 487, 167 P.3d 935 (requiring a
{48} The State argues neither Antonio nor Cooley can demonstrate that they would have been successful even at a timely duration review hearing or any particularized prejudice resulting from the delay. In other words, the district courts may have required Defendants to continue on probation after a timely duration review hearing, so the delay in their hearings made no difference. In light of Defendants’ liberty interest and the mandatory statutory language, we are unpersuaded. Neither record presents any evidence that the district courts considered the delay in the hearing in any fashion when evaluating whether the State met its burden to demonstrate that Defendants should remain on probation. Moreover, in assessing the Mathews factors we do not require absolute certainty; instead, we ask whеther “there is a reasonable
{49} We similarly reject Defendants’ contention that we should presume prejudice in the event that a timely duration review hearing is not held. Defendants have provided no authority expressly permitting such a presumption or provided any principled reason for creating a presumрtion of prejudice in all such cases.
{50} Lastly, we examine the State‘s interest under the third Mathews factor. This factor is “a consideration of ‘the public interest’ which includes ‘the administrative burden and other societal costs’ associated with providing the proposed additional procedural safeguards.” Garduño, 2016-NMSC-002, ¶ 38 (quoting Mathews, 424 U.S. at 347). Cooley and Antonio argue that “there is no legitimate governmental interest served by failing to hold a timely duration review hearing.” However, the state certainly has an interest in rehabilitating convicted sex offenders through probation and keeping the community safe. See State v. Baca, 2004-NMCA-049, ¶ 36, 135 N.M. 490, 90 P.3d 509.
{51} We therefore move on to consider whether the additional proceedings laid out above would burden the State and to what extent.
{52} Defendants have a significant liberty interest in release from probation unless the State meets its burden of proving at a duration review hearing, to a reasonable certainty, that their probation should continue. The late duration review hearing they both were given increased the likelihood that interest was erroneously deprived by taking into consideration evidence that would have been unavailable at a timely hearing and failing to account for the delay in providing the late hearing and its cause. Although the state has an interest in keeping probationers on probation, a hearing which permits the district court to consider the likelihood of release but for the delay does not impose any additional financial or administrative burdens. Accordingly, each of the Mathews factors weighs in favor of concluding that Defendants were continued on probation without being afforded procedural due process.
{53} “[R]emedies for constitutional violations should be narrowly tailored.” Lopez v. Lemaster, 2003-NMSC-003, ¶ 21, 133 N.M. 59, 61 P.3d 185. As we have recognized, the Legislature, although creating a liberty interest in release beginning at five years, conditioned that release on the state failing to meet its burden at a review hearing. The additional safeguards that require a district court to consider circumstances such as the delay, cause, and missed opportunity when determining whether probation should continue would adequately protect that interest, even if the
CONCLUSION
{54}
{55} IT IS SO ORDERED.
SHAMMARA H. HENDERSON, Judge
WE CONCUR:
KATHERINE A. WRAY, Judge
MICHAEL D. BUSTAMANTE, Judge, retired,
Sitting by designation (specially concurring)
{56} I concur in the analysis and the conclusion reached in the majority that Defendants experienced due process violations. I write separately to provide another perspective regarding the hearing we require on remand.
{57} I start by noting that the State bears the burden of proof at the duration review hearings. See
{59} I recommend two starting points. First, I would make clear that it is the State‘s responsibility to initiate the duration review hearing process. It is reasonable to put that burden on the State given that it is the entity that has the closest contact with probationers and has the primary institutional responsibility to follow probationers’ compliance with and progress under their probationary program. The duty to seek a timely setting for duration review hearings also follows naturally from the fact that the State bears the burden of proof at the hearing. See
{61} Given that the State has the responsibility to “get the ball rolling” in this context, my suggestions are intended to focus the district courts’ attention on the State‘s actions, first as it reviews the delay and missed opportunity factors suggested in the majority. The exclusionary rule I suggest would provide a familiar and powerful tool to the district courts as they design late duration review hearings.
MICHAEL D. BUSTAMANTE, Judge,
retired, Sitting by designation