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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 9 v. 10 DUSTY BAKER, 11 Defendant-Appellant. Plaintiff-Appellee, NO. 29,698

12 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 13 Karen Parsons, District Judge 14 Gary K. King, Attorney General 15 Ann M. Harvey, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Mary Barket, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant

22 23 BUSTAMANTE, Judge.

MEMORANDUM OPINION

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Defendant appeals from the judgment and order revoking his probation. The

2 district court determined that Defendant was "an absconder" from June 27, 2006 to 3 December 23, 2008, and therefore he was not entitled to credit for time served on 4 probation during that time. Defendant contends the State presented insufficient 5 evidence to support the district court's finding that he was "a fugitive," because the 6 State did not meet its burden of showing reasonable diligence in serving a bench 7 warrant on Defendant. We agree with Defendant and reverse. 8 Procedural and Factual Background 9 On July 1, 2005, Defendant was charged with one count of burglary of a vehicle

10 and one count of possession of drug paraphernalia. Defendant entered a no contest 11 plea on October 22, 2005. On December 8, 2005, the district court entered a 12 conditional discharge order placing Defendant on probation for a period of two and 13 a half years. The order of probation filed on January 24, 2006, provided that 14 Defendant was to remain under probation supervision until April 20, 2008. As 15 conditions of probation, among others, Defendant was prohibited from possessing a 16 firearm and using illegal substances. On May 4, 2006, the State filed a petition to 17 revoke Defendant's probation, asserting that Defendant was in possession of a firearm, 18 possessed a marijuana pipe and other drug paraphernalia, had tested positive for 19 marijuana, and had admitted to using marijuana. On May 8, 2006, a bench warrant

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1 was issued for Defendant's arrest, with 108 Chelsea, Ruidoso, New Mexico, listed as 2 Defendant's address. Defendant was arrested on May 9, 2006. A teletype printout 3 copy shows that this arrest warrant was entered into the National Crime Information 4 Center (NCIC) database. 5 At the hearing on May 17, 2006, Defendant pled no contest to violating his

6 parole. On June 5, 2006, the district court filed the judgment and order, vacating the 7 conditional discharge and continuing Defendant's probation, which was, as mentioned 8 above, to expire on April 20, 2008. As one of the conditions of probation, the district 9 court ordered Defendant to enter an in-patient drug treatment program called Villa De 10 Esperanza in Carlsbad, New Mexico. Defendant testified that on June 8, 2006, prior 11 to traveling to Carlsbad, he reported to Lincoln County Probation Officer John Lund 12 in Ruidoso and gave him an address where he planned to stay after completing 13 rehabilitation, his future mother-in-law's address at 912 Sandia Street, Carlsbad, New 14 Mexico. Ms. Katie Cuellar, another probation officer in Ruidoso, testified that the 15 inter-office computer system showed that prior to going to Villa De Esperanza on June 16 8, 2006, Defendant checked in with the Carlsbad probation office. Defendant testified 17 that he gave the Carlsbad office the 912 Sandia, Carlsbad, New Mexico address. That 18 same day at about 2 p.m., Defendant checked into the Villa De Esperanza program in

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1 Carlsbad. Later that same day, at about 7 p.m., Defendant checked himself out of 2 Villa De Esperanza, leaving a handwritten note: 3 4 5 6 7 8 9 10 11 12 13 I apologize for wasting your valuable time checking me in. I appreciate you trying to help me. I just feel that the reason I haven't gotten stoned since I got out of jail is because of my family, the people who love me and care about me. I think this is a great place. I think you are doing wonderful jobs by helping people get there [sic] lives straightened out[,] but it is not for me. I have all the support I need with my daughter and fiancee and [G]od. I am on my way back to Ruidoso to check back in with my probation officer. Thank you again. [Signature of Defendant] P.S. Everything that was yours is still here thanks again wish me luck. The next day, June 9, 2006, Defendant called the Villa De Esperanza program

14 and asked to be readmitted, but he was told he had forfeited his place. Defendant also 15 indicated that he was waiting to hear back from his attorney. On June 12, 2006, an 16 employee of Villa De Esperanza faxed a copy of Defendant's letter and a summary 17 of his contact with the program to the probation department in Ruidoso, attention 18 Katie Cuellar and John Lund. The cover page of the fax contains a handwritten 19 address and telephone number at the upper right corner: 912 Sandia Street, 885-6617. 20 On June 13, 2006, Ms. Cuellar and Mr. Lund went to Defendant's listed address

21 in Ruidoso: 108 Chelsea, Ruidoso, New Mexico. The residence was vacant and Ms. 22 Cuellar requested a bench warrant. On June 22, 2006, the State filed a petition to 23 revoke Defendant's probation. The petition attaches Ms. Cuellar's probation violation 24 report, which shows Defendant's listed address as 108 Chelsea, Ruidoso, New 4

1 Mexico, and states that Defendant had left the court-ordered treatment program at 2 Villa De Esperanza. Ms. Cuellar also reported her impressions that: 3 4 5 6 The Defendant is clearly unconcerned regarding the status of his probation. The Defendant violated conditions of his probation with no regard. He clearly is not a good candidate for probation as he refuses to comply with court orders.

7 On June 26, 2006, a bench warrant for Defendant's arrest was issued. The return page 8 is blank. After leaving the court-ordered treatment program, Defendant did not check 9 in with the probation office in Ruidoso or Carlsbad. 10 The next entry in the record proper after the bench warrant dated June 26, 2006,

11 is Defendant's letter filed pro se in this case on December 22, 2008, requesting 12 discovery. In the letter, Defendant lists his address as P.O. Box 339, Carrizozo, New 13 Mexico 88301. On December 23, 2008, Defendant was arrested for violating his 14 probation. At the initial hearing on December 31, 2008, Defendant denied violating 15 his probation. At the hearing on the petition to revoke on February 13, 2009, 16 Defendant admitted that he left the treatment program, and he pled no contest to 17 violating his probation, reserving for a later hearing the issue of whether Defendant 18 had been a fugitive and whether the State had made reasonable efforts to locate 19 Defendant and serve the second bench warrant on him during the period from June 27, 20 2006 to December 23, 2008. On March 20, 2009, these issues were addressed. On 21 May 8, 2009, a sentencing hearing was held. On June 8, 2009, the district court filed 5

1 a judgment and order imposing sentence, but suspending incarceration and placing 2 Defendant back on probation with the additional term of "Zero Tolerance." The 3 district court expressly found that Defendant "was an absconder from June 27, 2006 4 to December 23, 2008[.]" Defendant received no probation credit for that period and 5 he received incarceration credit of one day. [Id.] Defendant appeals. 6 The Parties' Arguments 7 Defendant argues there was insufficient evidence for the district court to

8 determine that he was a fugitive, that the State did not make reasonable efforts to serve 9 the bench warrant on him or show that any attempt to serve the warrant would have 10 been futile, and therefore the district court erred in denying him credit for time served 11 on probation from June 27, 2006 to December 23, 2008. In addition, Defendant 12 contends that the district court erred in focusing on Defendant's failure to report and 13 in concluding that the State had shown reasonable efforts at service when the record 14 before it established that the State had contact information that it ignored and there 15 was no evidence that the warrant was entered into the NCIC database. The State 16 contends that sufficient evidence was presented for the district court to determine that 17 Defendant had absconded, because he had not fulfilled his probation requirements and 18 therefore he had not earned probation credit for the time from June 27, 2006 to 19 December 23, 2008.

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1 Standard of Review and Applicable Law 2 3 4 5 6 7 8 NMSA 1978, Section 31-21-15(C) (1989) provides as follows: If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that he has violated the provisions of his release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation.

9 "[T]he district court's decision regarding whether the defendant is entitled to credit 10 or is instead a fugitive will be affirmed only if the decision is supported by substantial 11 evidence." State v. Jimenez, 2004-NMSC-012,

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