September 22, 2011 – State of New Mexico v. Devin Rapchack, No. 30,094

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	September 22, 2011
NO. 30,094
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DEVIN RAPCHACK,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa C. Schultz, District Judge
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Acting Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant

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OPINION
BUSTAMANTE, Judge.
{1} 	Defendant Devin Rapchack pleaded guilty to two separate sets of crimes in
separate criminal actions before two different judges. The sentence in the second case
was ordered to be served consecutive to the first sentence, though both were
suspended. Defendant was then arrested for a third crime, and both courts revoked
probation. The first court ordered that upon revocation the first sentence would be
served concurrently with the second sentence, but later amended its order “to reflect
that . . . Defendant’s sentence does not run concurrently.” 	At issue is whether the
court’s 	order 	removing 	the 	“concurrent” 	provision 	impermissibly 	lengthened
Defendant’s sentence. 	We hold that the language purporting to make the first
sentence run concurrent with the later consecutive sentence was illegal under NMSA
1978, Section 31-18-21(B) (1977), and affirm.
I. 	BACKGROUND
{2} 	Because the facts of this case are somewhat convoluted, we begin with an
overview of the three criminal actions relevant to this appeal.
{3} 	On the record before us, Defendant’s first encounter with the justice system
occurred in CR-2006-0211 (the 211 case), the case that is the subject of this appeal.

1The parties do not agree on the length of Defendant’s sentence in the 1383
case. The exact length of the sentence in the 1383 case is not material to this Opinion.
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On July 19, 2006, Defendant pleaded guilty to burglary of a vehicle, criminal damage
to property (over $1000), and larceny (over $250), all fourth-degree felonies. He was
sentenced to four and one-half years imprisonment followed by one year of parole.
For convenience, we will refer to this as “Sentence A.” The district court suspended
the entire sentence and ordered that Defendant be placed on supervised probation.
{4} 	Some months later, he was arrested on auto theft-related crimes which were
dealt with in CR-2006-1383 (the 1383 case). 	He pleaded guilty and received a
suspended sentence of between two and six years1 to be served consecutive to the
sentence entered in the 211 case. 	We refer to the sentence in the 1383 case as
“Sentence B.”
{5} 	As a result of his 1383 case troubles, the State petitioned to revoke Defendant’s
probation in the 211 case. 	The district court partially revoked his probation for
Sentence A, but gave him an equal amount of credit for time served on probation;
essentially, Defendant remained released on probation. 	Defendant ended up with
suspended sentences in both cases, although he did spend some time in jail while
awaiting sentencing.
{6} 	On November 10, 2008, Defendant was arrested for shoplifting ammunition.
The State filed petitions to revoke probation in both the 211 case and the 1383 case.

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On December 23, 2008, the 1383 case court partially revoked Defendant’s probation
in Sentence B and ordered Defendant to serve two years of his sentence in prison.
Subsequently, in an order dated April 17, 2009, (the April Order), the 211 case court
revoked his probation for Sentence A. 	The April Order indicated that Sentence A
would now run concurrently with Sentence B.
{7} 	The State filed a “motion to correct illegal sentence” in the 211 case, arguing
that the language running Sentences A and B concurrent, should be removed. In its
motion, the State observed that Defendant had received Sentence A prior to receiving
Sentence B. 	Furthermore, the 1383 case court had explicitly made Sentence B
consecutive to Sentence A. As a result, the State argued, the part of the April Order
stating that Sentence A would run concurrently with Sentence B was illegal. 	The
State requested that the April Order be modified to reflect that Sentence A would not
run concurrently with Sentence B. Defendant responded that Judge Martin, who had
entered the April Order revoking Defendant’s probation in the 211 case, was “the last
sentencing [j]udge” and that “the last sentencing determines if the cases are
concurrent/consecutive.” The 211 case court granted the State’s motion and entered
a 	new 	order 	simply 	directing 	that 	the 	April 	Order 	be 	“corrected 	to 	reflect
that . . . Defendant’s sentence does not run concurrently with” Sentence B. It is this
order, reflecting a removal of the “concurrent” requirement, that Defendant appeals.

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II. 	DISCUSSION
{8} 	“A trial court’s power to sentence is derived exclusively from statute.” State
v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. The meaning of these
statutes is a question of statutory interpretation which we review de novo. Id. Our
primary goal in interpreting statutes is to give effect to the intent of the Legislature.
Id. 	“We do this by giving effect to the plain meaning of the words of [the] statute,
unless this leads to an absurd or unreasonable result.” 	State v. Marshall, 2004-
NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.
A. 	The Original Sentences
{9} 	Sentencing is governed by the Criminal Sentencing Act, NMSA 1978, §§ 31-
18-12 to -26 (1977, as amended through 2009) (the Act). Section 31-18-13(A). The
Act calls for a one and one-half year sentence for fourth-degree felonies such as those
at issue here. 	Section 31-18-15(A)(10). 	However, for crimes other than capital
offenses and first-degree felonies, the court has discretion to suspend the sentence and
assign conditions of probation. NMSA 1978, § 31-20-3 (1985).
{10} 	Although the goal of probation is rehabilitation, see State v. Grossetete, 2008-
NMCA-088, ¶ 10, 144 N.M. 346, 187 P.3d 692, not all probationers are successfully
rehabilitated. In recognition of this potential, the Act provides additional sentencing
guidelines for crimes committed by probationers:

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B. 	Any person, who commits a crime while at large under a
suspended or deferred sentence or probation or parole, and who is
convicted and sentenced therefor, shall serve the sentence consecutive
to the remainder of the term, including remaining parole time, under
which he was released unless otherwise ordered by the court in
sentencing for the new crime.
Section 31-18-21(B); see also Davis, 2003-NMSC-022, ¶ 9.
{11} 	Under the plain language of Section 31-18-21(B), a sentence can only be made
consecutive or concurrent to a previous sentence which has not yet been completed.
See § 31-18-21(B) (providing sentencing guidance for crimes committed by persons
“while at large under a suspended or deferred sentence or probation or parole”). The
statute requires that the new sentence be served consecutively to the pending sentence
unless the court orders otherwise “in sentencing for the new crime.” 	Id. (emphasis
added). Thus, Section 31-18-21(B) only applies to the sentence for the new crime,
and a sentence can only be made concurrent or consecutive when a defendant is
already subject to a prior sentence which he has not yet completed.
{12} 	Here, Sentences A and B were originally imposed correctly. 	Because
Defendant was not “at large under a suspended or deferred sentence or probation or
parole” when he received Sentence A, Sentence A could not have been concurrent or
consecutive to anything. Before his arrest and conviction in the 211 case, Defendant
was a free man. 	His conviction and sentencing deprived him of that freedom.

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Sentence A could not be concurrent or consecutive with any other sentence, because
no other sentence existed at that time.
{13} 	When Defendant was convicted in the 1383 case, the court had discretion to
make Sentence B either concurrent or consecutive to Sentence A. 	Defendant
committed the crimes in the 1383 case while on probation for his conviction in the 211
case. Accordingly, Section 31-18-21 required Sentence B to be consecutive unless the
court ordered otherwise. It is undisputed that the court in the 1383 case explicitly
made Sentence B consecutive to Sentence A. Thus, after his sentencing in the 1383
case, Defendant was subject to two sentences: Sentence A, which was suspended, and
Sentence B, which was consecutive to Sentence A, but also suspended. 	Both
sentences were lawfully imposed.
B. 	The Parole Revocations
{14} 	The confusion in this case arose after Defendant was arrested for a third crime
and the State moved to revoke his probation for Sentences A and B. The 1383 case
court acted first, revoking Defendant’s probation and ordering him to begin serving
two years of Sentence B in prison. Several months later, the 211 case court revoked
Defendant’s probation for Sentence A, restoring the four and one-half year sentence
but giving Defendant credit for three years and seventy-three days. In doing so, it
included language purporting to make Sentence A run concurrent with Sentence B.

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{15} 	The question thus becomes whether this circumstance—that probation was
revoked first as to Sentence B—makes Sentence A the subsequent crime for purposes
of Section 31-18-21(B), thus allowing the 211 case court to run Sentence A concurrent
with Sentence B. 	We hold that it does not. 	Section 31-18-21(B) applies to the
sentences as originally imposed. The order of probation revocation does not change
their character or original order.
{16} 	When a probationer violates the conditions of his probation, a probation
revocation hearing is held. 	NMSA 1978, § 31-21-15(B) (1989); State v. Guthrie,
2011-NMSC-014, ¶¶ 10-12, ___ N.M. ___, 257 P.3d 904. 	Courts have wide
discretion to deal with probation violations. “If a [probation] violation is established,
the court may continue the original probation, revoke the probation and either order
a new probation . . . or require the probationer to serve the balance of the sentence
imposed or any lesser sentence.” Section 31-21-15(B). However, a court may not
increase a valid sentence once a defendant begins serving that sentence. 	State v.
Porras, 1999-NMCA-016, ¶ 7, 126 N.M. 628, 973 P.2d 880.
{17} 	A probation revocation hearing is different than a sentencing hearing. 	In a
sentencing hearing, the court may impose any sentence consistent with the Act. As
discussed above, the court may make the sentence concurrent or consecutive, pursuant
to Section 31-18-21(B), so long as there is a previous sentence. 	In a parole

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revocation, on the other hand, the court may only modify an existing sentence. See
Section 31-21-15(B). 	When the existing sentence is consecutive to a previous
sentence, the court may make the existing sentence concurrent, because doing so does
not increase the sentence. However, it may not change a sentence that was originally
concurrent to be consecutive as this would increase the sentence.
{18} 	The analysis is different when probation is revoked for a first sentence, such as
the sentence imposed in the 211 case. In a first sentence, Section 31-18-21(B) is never
applicable, and the sentence cannot be made concurrent or consecutive to anything.
A first sentence cannot be made concurrent or consecutive with later sentences as a
result of a probation revocation. 	To hold otherwise would allow probation
revocations for previous convictions to undermine later decisions making sentences
concurrent or consecutive. Section 31-18-21(B) requires these decisions to be made
at the later sentencings, and Section 31-21-15 allows these decisions to be modified,
if at all, by subsequent probation revocations regarding the later sentences. But, for
a first sentence, there is no concurrent or consecutive status to be modified. Instead,
when the State moves to revoke parole, the sentence may either be suspended,
partially suspended, or served.
{19} 	Here, the 211 case court lacked the authority to make Sentence A concurrent
with Sentence B. The April Order was not a sentencing; instead, it was a probation

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revocation made pursuant to Section 31-21-15. Under Section 31-21-15(B), the 211
case court was authorized to continue or modify the probation, or to “require the
probationer to serve the balance of the sentence imposed or any lesser sentence.”
Section 31-21-15(B). 	Because Sentence A was the first sentence, it could not
originally have been concurrent with or consecutive to anything. As a result, it could
not be modified to become concurrent or consecutive. Only the 1383 case court, in
revoking probation for Sentence B, was at liberty to decide whether the second
sentence would be modified to become concurrent. Had the 211 case court desired to
achieve a concurrent effect, it was free to leave Defendant on probation in Sentence
A.
III. 	CONCLUSION
{20} 	The portion of the April Order purporting to make Sentence A concurrent with
Sentence B was contrary to law. The district court therefore had the power to correct
it. See Porras, 1999-NMCA-016, ¶ 7. For the foregoing reasons, we affirm the order
granting the motion to correct the error in the April Order and remand for further
proceedings consistent with this Opinion.

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{21} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
RODERICK T. KENNEDY, Judge
TIMOTHY L. GARCIA, Judge