State v. Herrera

554 P.3d 743

2024-NMCA-063

STATE of New Mexico, Plaintiff-Appellee,

v.Marcos F. HERRERA a/k/a Marcos Florentino Herrera, Defendant-Appellant.

No. A-1-CA-41362

Court of Appeals of New Mexico.

Filing Date: June 20, 2024

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, Karen L. Townsend, District Court Judge

Raúl Torrez, Attorney General, Lee Green, Assistant Solicitor General, Santa Fe, NM, for Appellee

Wadsworth Law, LLC, Mathew R. Wadsworth, Rio Rancho, NM, for Appellant

OPINION

BOGARDUS, Judge.

{1} Defendant Marcos F. Herrera appeals from the district court’s order revoking his probation. On appeal Defendant raises several issues: (1) Defendant argues for the first time that the action to revoke his probation was barred by NMSA 1978, Section 30-31-27.1(B)(3) (2007, amended 2019), providing for limited immunity in cases of alcohol and drug overdoses, "based on evidence obtained due to calling for medical assistance for a drug-related overdose" so he is entitled to limited immunity; (2) Defendant also argues that his previous counsel’s failure to move to dismiss, pursuant to Section 30-31-27.1(B), constitutes ineffective assistance of counsel.¹ Because we agree that the limited immunity provided for by Section 30-31-27.1(B)(3) applies to both of Defendant’s probation violations, we reverse.

BACKGROUND

{2} This case comes before us in a unique procedural posture.² Defendant committed multiple offenses and was sentenced to multiple term-of-years sentences in the district court, to be served consecutively. At the time Defendant was sentenced for these offenses in district court, he was incarcerated in a federal penitentiary in Colorado. In light of the circumstances, the district court decided to run Defendant’s sentence concurrently to his "federal sentence in U.S. District Court (District of Colorado)." The district court then suspended his sentence and placed him on unsupervised probation for a period of five years "on the condition that [he] shall observe all federal, state, county and city laws and ordinances, so long as … [D]efendant resides out of State." The district court further ordered that

[i]f at any time … [D]efendant is present in the State of New Mexico, [he] is ordered to be placed on supervised probation for a period of five (5) years, under the terms and conditions of the standard order of supervised probation in effect in this district and on the further condition that [he] obey all rules, regulations and orders of the Department of Corrections and Adult Parole and Probation authorities and observe all federal, state, county and city laws and ordinances.

{3} Some years after Defendant was placed on unsupervised probation, police officers were dispatched to a hotel room to respond to a possible overdose. The responding police officers found Defendant lying on his back in the comer of the hotel room, near a chair. According to the responding officers, it looked like Defendant had fallen out of that chair and onto the floor. One of the responding officers testified at the probation revocation hearing that, at this point, the officers entered the room to assess the situation. The officer further testified that they tried to ask Defendant what he had taken but Defendant was unresponsive. A woman in Defendant’s hotel room told the officers that Defendant had taken a substance called "White China," which the officer testified that he understood to be slang for a narcotics containing Fentanyl. According to the officer, Defendant looked like he was overdosing based on his experience witnessing overdoses in the past.

{4} As emergency medical services arrived on scene and began rendering aid to Defendant, the responding officers spoke to the woman in Defendant’s hotel room. At some point, the responding officers noticed a firearm along with a debit card under Defendant’s name on the table, near where they had initially found Defendant. The officer testified that he observed "a tom grocery bag with a white, powdery, crystalline substance in it" that the officer thought appeared to be some combination of "Methamphetamine and Fentanyl." "Due to the items found in the room … the room was sealed and secured for a search warrant." Several items were seized from the room—including a firearm.

{5} On February 22, 2022, the State filed a motion to revoke Defendant’s probation and to commit him to the New Mexico Corrections Department (NMCD) for the remainder of his sentence. The State moved to revoke Defendant’s probations on grounds that he violated (1) state or federal law, (2) failed to report to probation, (3) possessed a controlled substance, and (4) failed to report an arrest. An evidentiary hearing was held on the State’s motion. Following the hearing, the district court found that Defendant "had violated the terms and conditions of his probation … by violating [s]tate [l]aws (picking up new charges) and by failing to report to NMCD Probation and Parole." In its oral ruling, the district court stated, "There has been a willful violation proven, and I’m going to find it on two bases, (1) the violation of state laws for having a firearm; and (2) … for failing to report when he arrive[d] back in the State."

{6} After allowing for presentence confinement and other applicable credit, the district court sentenced Defendant to the custody of the NMCD for a period of nineteen years, four months, and twenty-one days. Defendant now appeals.

DISCUSSION

[1] {7} Defendant argues that the action to revoke his probation was statutorily barred by Section 30-31-27.1(B)(3). As such, we begin by interpreting Section 30-31-27.1(B)(3). As Defendant acknowledges, he failed to preserve this argument below, so we review for fundamental error. We then address the State’s contention that we ought to go beyond the plain language of the statute to discern legislative intent. Because we conclude that the district court’s revocation of Defendant’s probation constitutes fundamental error, we reverse.

I. The Revocation of Defendant’s Probation Constitutes Fundamental Error

{8} Defendant argues that the district court’s revocation of his probation constitutes fundamental error because the action to revoke his probation in the first place was barred by Section 30-31-27.1(B)(3). According to Defendant, the plain language of Section 30-31-27.1(B)(3) is "explicit and unambiguous regarding probation violations" because it states that evidence obtained as a result of an overdose cannot be used to revoke probation. Therefore, according to Defendant, the district court erred in finding that he violated the conditions of his probation based on the evidence arising from his overdose. Moreover, Defendant asserts that this error is fundamental because he was denied substantial justice as "the entire prosecution of [his] probation violation was explicitly and unambiguously statutorily barred." The State responds that despite its plain language, Section 30-31-27.1(B)(3) should not be interpreted so broadly as to reach nondrug related probation violations. We agree with Defendant.

[2] {9} Ordinarily we review the district court’s decision to revoke probation under an abuse of discretion standard. State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. However, as Defendant concedes, he failed to raise this issue to the district court so he requests that we review for fundamental error. The State agrees that this issue is, in fact, unpreserved and that fundamental error review is normally appropriate under these circumstances. Accordingly, we review for fundamental error. See State v. Salas, 2017-NMCA-057, ¶ 42, 400 P.3d 251 (stating appellate courts review unpreserved questions for fundamental error); see also Rule 12-321(B)(2)(c), (d) NMRA (providing that appellate courts have discretion to review unpreserved questions involving fundamental error or fundamental rights).

[3–5] {10} When engaging in fundamental error analysis we begin by asking whether an error occurred—if we determine that it has, we then ask whether the error was fundamental. See State v. Ocon, 2021-NMCA-032, ¶¶ 7-8, 493 P.3d 448. We apply the fundamental error doctrine "only under exceptional circumstances and only to prevent a miscarriage of justice." State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. "The error must shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked." State v. Castillo, 2011-NMCA-046, ¶ 29, 149 N.M. 536, 252 P.3d 760 (internal quotation marks and citation omitted). To the extent that our review involves statutory interpretation, we review de novo. See State v. Rivera, 2004-NMSC-001, ¶ 9, 134 N.M. 768, 82 P.3d 939.

[6–9] {11} In order to determine whether the district court erred in revoking Defendant’s probation we must determine whether, as Defendant argues, Section 30-31-27.1(B)(3) barred the probation revocation action in the first place. Both parties acknowledge that there is an absence of case law interpreting Section 30-31-27.1(B)(3). Thus, we must engage in statutory interpretation. "Interpretation of a statute is a matter of law, as is the determination of whether the language of a statute is ambiguous." State v. Rael, 2024-NMSC-010, ¶ 38, 548 P.3d 66 (internal quotation marks and citation omitted). "Our primary goal when interpreting statutory language is to give effect to the intent of the Legislature." State v. Warford, 2022-NMCA-034, ¶ 22, 514 P.3d 31 (alteration, internal quotation marks, and citation omitted). "The plain language of the statute is the primary indicator of legislative intent, so we look first to the words the Legislature used and their ordinary meaning." State v. Gutierrez, 2007-NMSC-033, ¶ 30, 142 N.M. 1, 162 P.3d 156. "Under the plain meaning rule, when a statute’s language is clear and unambiguous, we will give effect to the language and refrain from further interpretation." State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (...