June 30, 2020- State of New Mexico v. Matthew Springer, No. A-1-CA-37253

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed wrs0i2020 9:51 AM

Plaintiff-Appellee, A. ~fe4
Mark Reynolds
V. NO. A-1-CA-37253
MATTHEW SPRINGER,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A Dean, Jr., District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VARGAS, Judge.
443 Defendant appeals from the district court’s orders revoking his probation and
deferred sentence and denying his motion to reconsider. In this Court’s notice of
proposed disposition, we proposed to summarily affirm. Defendant filed a

memorandum in opposition and motion to amend the docketing statement, which we

have duly considered. Unpersuaded, we affirm.

2
{2} 	In our notice of proposed disposition, we proposed to conclude the district	1
court did not abuse its discretion in revoking Defendant’s probation based on well-	2
established authority holding that “the imposition of sex offender supervision	3
requirements falls within the scope of standard provisions within the judgments and	4
sentences requiring defendants to comply with conditions specified by probation	5
authorities.” [CN 3] See State v. Green, 2015-NMCA-007, ¶¶ 10-14, 341 P.3d 10;	6
State v. Leon, 2013-NMCA-011, ¶ 24, 292 P.3d 493. We also proposed to conclude	7
that there was a probation order entered, contrary to Defendant’s assertion in his	8
docketing statement, and that there was sufficient evidence to establish that	9
Defendant had violated the terms of his probation. [CN 4] Defendant has included	10
no argument in his memorandum in opposition refuting our proposed conclusions	11
regarding whether a probation order was entered and whether evidence was	12
sufficient to establish that he violated the terms of his probation, so we deem those	13
issues abandoned and conclude that the district court did not err on those grounds.	14
See 	State 	v. 	Johnson, 	1988-NMCA-029, 	¶ 8, 	107 	N.M. 	356, 	758 	P.2d 	306	15
(explaining that when a case is decided on the summary calendar, an issue is deemed	16
abandoned when a party fails to respond to the proposed disposition of that issue).	17
{3} 	Defendant continues to argue in his memorandum in opposition that the	18
district court erred in denying his motion to dismiss probation violation and motion	19
to reconsider because the probation officer did not have the authority to impose the	20

3
sex offender behavioral contract since the district court “failed to hold a proper	1
sentencing 	hearing under 	NMSA 	1978, 	Section 	31-20-5.2 	[(2003)],” 	thereby	2
depriving Defendant due process of law. [MIO 1] Defendant specifically argues that	3
the district court failed to follow the required procedures in imposing his sentence	4
because the district court “did not itself decide” that the conditions in Defendant’s	5
sex offender contract should be imposed [MIO 7], and instead the terms of the	6
behavior contract were determined by Defendant’s probation officer without a	7
hearing. [MIO 3] Defendant cites New Mexico cases where the lower courts were	8
reversed and remanded “because of the trial court’s failure to follow required	9
procedures when it imposed sentence.” [MIO 8] However, the cases cited by	10
Defendant are inapposite because none of them involve probation revocation due to	11
a violation of a behavior contract. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,	12
124 N.M. 754, 955 P.2d 683 (“[I]n summary calendar cases, the burden is on the	13
party opposing the proposed disposition to clearly point out errors in fact or law.”).	14
{4} 	Moreover, as we explained in our calendar notice, it is well settled that the	15
imposition of sex offender supervision requirements falls within the scope of	16
standard provisions within the judgments and sentences requiring defendants to	17
comply with conditions specified by probation authorities. [CN 3] See Green, 2015-	18
NMCA-007, ¶¶ 10-14 (rejecting the defendant’s challenge to the authority of the	19
department of corrections and determining that “[t]he behavioral contract [the	20

4
d]efendant was required to sign upon his release from prison and commencement of	1
probation was a proper exercise of probationary authority pursuant to the judgment	2
and sentence that followed and was based upon the plea agreement [the d]efendant	3
also signed”); Leon, 2013-NMCA-011, ¶¶ 24, 26 (holding that a district court’s	4
enumeration of a special probationary condition requiring the defendant to comply	5
with reasonable conditions set by the probation and parole division was sufficient to	6
support the placement of a defendant on sex offender supervision; stating that the	7
“conditions of probation were sufficiently stated in the order” because “the language	8
of the district court’s order incorporated any reasonable conditions as specified by	9
the probation office”; and noting that the fact that “the terms and conditions set by	10
the probation office were not spelled out in the order itself did not establish that those	11
terms and conditions were not imposed by the court”). We therefore conclude that	12
Defendant has failed to show that the district court erred or deprived Defendant of	13
due process by denying his motion to dismiss probation violation and motion to	14
reconsider. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d	15
1211 (stating that there is a presumption of correctness in the rulings or decisions of	16
the trial court); Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100,	17
¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that the burden is on the appellant to clearly	18
demonstrate that the trial court erred).	19

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{5} 	Defendant additionally seeks to raise a new argument by virtue of his motion	1
to amend, that the probation officer did not have authority to implement the	2
restrictions under the sex offender behavior contract because the district court “was	3
forbidden by the separation of powers doctrine to delegate . . . the authority to an	4
officer of the executive branch of government.” [MIO 1] In order for this Court to	5
grant a motion to amend the docketing statement, the movant must meet certain	6
criteria that establishes good cause for our allowance of such amendment. See State	7
v. Moore, 1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91, overruled on	8
other grounds by State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d	9
730; State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309.	10
The essential requirements to show good cause for our allowance of an	11
amendment to an appellant’s docketing statement are that (1) the	12
motion be timely, (2) the new issue sought to be raised was either (a)	13
properly preserved below or (b) allowed to be raised for the first time	14
on appeal, and (3) the issues raised are viable.	15
Moore, 1989-NMCA-073, ¶ 42.	16
{6} 	Defendant argues that, “[w]hile the power to authorize criminal sentences lies	17
with the Legislature, the power to impose them is a judicial power,” and “the	18
probation officer’s determination of [Defendant’s] conditions of probation in an	19
extra-judicial setting violated his right to a judicial determination of the nature and	20
extent of his punishment.” [MIO 10, 11] Defendant also argues that the district court	21
“cannot delegate its authority to perform ‘a purely judicial function.’ ” [MIO 11]	22

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Defendant concedes that his separation of powers argument was not preserved below	1
[MIO 12], and argues that he “suffered prejudice to the liberty interests protected by	2
Section 31-20-5.2 and by the State and Federal Constitutions when the [d]istrict	3
[c]ourt ruled that an illegal portion of his sentence could be used as a basis to revoke	4
his probation,” thereby “implicat[ing] a fundamental unfairness within the system.”	5
[MIO 12-13] We therefore evaluate the issue for fundamental error. See State v.	6
Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (“Parties alleging	7
fundamental error must demonstrate the existence of circumstances that ‘shock the	8
conscience’ or implicate a fundamental unfairness within the system that would	9
undermine judicial integrity if left unchecked.”).	10
{7} 	Defendant cites New Mexico authority and cases from other jurisdictions to	11
support his argument that the separation of powers doctrine was violated in this case.	12
[MIO 10-12] The cases cited by Defendant assert general statements of law	13
regarding separation of powers, with which we do not disagree; however, they do	14
not require reversal in the present case. Here, the district court imposed a sentence	15
upon Defendant, and then delegated the specification of the terms of Defendant’s	16
probation to the probation officer. [MIO 3] The probation officer did not “impose”	17
a criminal sentence upon Defendant, as argued in Defendant’s MIO. [MIO 10]	18
Indeed, the fact that “the terms and conditions set by the probation officer were not	19
spelled out in the order itself did not establish that those terms and conditions were	20

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not imposed by the court.” Green, 2015-NMCA-007, ¶ 12 (citing Leon, 2013-	1
NMCA-011, ¶ 26); see State v. Martinez, 1972-NMCA-135, ¶ 7, 84 N.M. 295, 502	2
P.2d 320 (stating that the fact that the defendant’s probation terms “were not spelled	3
out in the deferred sentence, does not show that such times and terms were not	4
conditions of probation imposed by the trial court”). Although Defendant has cited	5
other authority for this Court’s consideration, we decline to look for guidance from	6
non-authoritative case law when New Mexico authority squarely answers the	7
question presented. See Wills v. Bd. of Regents of Univ. of N.M., 2015-NMCA-105,	8
¶ 19, 357 P.3d 453 (“When New Mexico cases do not directly answer the question	9
presented, we look for guidance in analogous law in other states or the federal	10
system.” (internal quotation marks and citation omitted)).	11
{8} 	Defendant nonetheless argues that the separation of powers doctrine requires	12
that Green and Leon be overruled according to the analysis set forth in State v.	13
Montoya, 2013-NMSC-020, ¶ 40, 306 P.3d 426 (“When deciding whether to	14
overrule our own precedents, this Court considers such common-sense factors as	15
whether the precedent is a remnant of abandoned doctrine, whether the precedent	16
has 	proved 	unworkable, 	whether 	changing 	circumstances 	have 	deprived 	the	17
precedent of its original justification, and the extent to which parties relying on	18
precedent would suffer hardship from its overruling.” (internal quotation marks and	19
citation omitted)), and that Green and Leon are inconsistent with New Mexico case	20

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law and cases from other jurisdictions regarding the delegation of judicial authority,	1
rendering them “unworkable and confusing as precedent” because they permit an	2
unlawful delegation of power to the executive branch. [MIO 9-10] However, we	3
reiterate that it is well settled that “probationary discretion . . . extends from the	4
district court to probation authorities,” as long as it is explicitly stated in the district	5
court’s order. See Green, 2015-NMCA-007, ¶ 14. As the district court’s order in the	6
present case expressly established probationary discretion with the probation	7
authorities, Defendant has not convincingly demonstrated that his case requires a	8
conclusion that Green and Leon are wrong or that they must be overruled. See	9
Montoya, 2013-NMSC-020, ¶ 40. Consequently, we conclude that Defendant has	10
not shown that a separation of powers violation exists or that it was fundamental	11
error for the probation officer to set forth the terms of Defendant’s probation through	12
his behavior contract. See Aragon, 1999-NMCA-060, ¶ 10. We therefore conclude	13
that the issue sought to be raised pursuant to Defendant’s motion to amend is not	14
viable, and the motion is denied. See Cunningham, 2000-NMSC-009, ¶ 21; Moore,	15
1989-NMCA-073, ¶¶ 36-51.	16
{9} 	For the reasons stated in our notice of proposed disposition and herein, we	17
affirm.	18
{10} 	IT IS SO ORDERED.	19
_________________________________	20
JULIE J. VARGAS, Judge	21

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WE CONCUR:

2 MMe

J. MILES HANISEE, Chief Judge

TECOSELINE R. MEDINA, Judge