October 27, 2011 – State of New Mexico v. Carlos Gomez, No. 30,000

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	October 27, 2011
NO. 30,000
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CARLOS GOMEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
McGarry Law Office
Kathleen McGarry
Glorieta, NM
for Appellant

OPINION
VIGIL, Judge.
{1} 	Carlos Gomez entered into three separate plea agreements. In each, the State
agreed that the total time Gomez could serve would be zero to nine years of
incarceration, supervised probation, or treatment, or a combination thereof. It was
also agreed that the sentences would be served concurrently with each other. 	The
district court accepted the agreements but misconstrued the plea agreements to permit
a sentence of twenty-one years in prison, with sixteen years suspended, for an actual
prison term of five years, plus five years of supervised probation. We reverse and
remand for entry of a judgment and sentence that conforms to the plea agreements.
BACKGROUND
{2} 	Over the course of several months in 2007 and 2008, Gomez was charged in six
different cases with nineteen criminal offenses. The offenses included possession of
marijuana, methamphetamine, and cocaine, trafficking in cocaine, trafficking in
heroin, tampering with evidence, bringing contraband into a jail, receiving stolen
property, and several motor vehicle violations, among others. Gomez entered into
three plea agreements with the State to resolve all six cases.
{3} 	The first plea agreement was presented to Judge Brown in September 2008, and
resolved three of the six cases. Gomez agreed to plead guilty to the crimes charged

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in one of the three separate indictments. These were: trafficking cocaine, possession
of methamphetamine, and receiving stolen property. In addition, Gomez agreed he
was a habitual offender. In exchange, the State agreed to dismiss all the remaining
charges contained in the indictments and not to file habitual offender proceedings. In
the sentencing agreement, the parties agreed “that [Gomez] will serve zero (0) to nine
(9) years of incarceration or supervised probation, program or combination of the
both.”
{4} 	At the guilty plea hearing, Judge Brown clarified that the sentencing agreement
was that the sentences were to be served concurrently with each other. Judge Brown
then advised Gomez, “[I]f you have the nine years, that’s the maximum because
everything else is smaller than that.” At the conclusion of the hearing, Judge Brown
formally approved the plea agreement. Judge Brown ordered a presentence report and
set a sentencing hearing for a later date.
{5} 	The second plea agreement was presented to Judge Sheppard in January 2009,
and resolved the fourth case. Gomez agreed to plead guilty to one count of trafficking
cocaine and again admitted he is a habitual offender. 	The State again agreed to
dismiss the remaining charge and not file a habitual offender proceeding. 	The
sentencing agreement was that “[Gomez] will serve zero (0) to nine (9) years of
incarceration or supervised probation, treatment program, or a combination of both”
and that the sentence would run concurrent with the sentence to be imposed in the first

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case. At the plea hearing on this case, the prosecutor stated that the parties had agreed
that “[Gomez] will serve a period of zero to nine years of incarceration or supervised
probation, treatment or a combination of both[.]” Judge Sheppard formally approved
the plea agreement. 	Judge Sheppard noted that a presentence report had been
prepared, and he agreed with the parties’ request for Judge Brown to impose sentence
in both cases.
{6} 	The third plea agreement, which resolved the remaining two cases, was
presented to Judge Butkus in February 2009. Gomez agreed to plead guilty to two
charges of possession of cocaine, and again admitted he is a habitual offender. 	In
exchange, the State again agreed to dismiss or not pursue any remaining charges and
to not file a habitual offender proceeding. 	The sentencing agreement was that
“[Gomez] will serve zero (0) to nine (9) years of incarceration, supervised probation,
in a treatment program, or some combination thereof” and that the sentence would run
concurrent with the sentence to be imposed in the first case and in the second case.
At the plea hearing, the prosecutor advised the court that “[t]he sentencing agreement
is that this case is ultimately going to be lumped into a series of other cases that are
pending before Judge Brown, as I understand it. The sentence will be zero to nine
years of incarceration, supervised probation or a treatment program or some
combination of those three.” Judge Butkus formally approved the plea agreement, and
also agreed to allow Judge Brown to impose sentences in all three cases. All three

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plea agreements contained an identical provision stating “[i]f the [c]ourt finds the
provisions of [the] agreement unacceptable, after reviewing it and any pre-sentence
report, the [c]ourt will allow the withdrawal of the plea, and [the] agreement will be
void.”
{7} 	The sentencing hearing for all three consolidated cases was held before Judge
Brown in February 2009. The parties informed Judge Brown that Gomez had been
accepted into an in-patient treatment program in Fort Stanton and that they agreed to
Gomez being sentenced to the program with the remainder of the sentence suspended.
Defense counsel also noted that the presentence report recommended that Gomez be
ordered to drug court and that the entire sentence be suspended. 	In response to
questions from Judge Brown, counsel stated that Gomez preferred the drug court
alternative with a deferred sentence. 	Judge Brown ruled, “I’m going to defer
sentencing in this matter.” Addressing Gomez, Judge Brown said:
I’m going to give you the benefit of the doubt here and sentence you.
One of your conditions of release while sentencing is pending is to sign
up for, enter, and successfully complete the Drug Court program. 	At
your successful completion of that program, you come back, and I will
suspend any balance of the time you have. That’s the big benefit to it.
The downside is, since I’m not sentencing you today, if you go
three years and then you blow it, I still got the full nine years hanging
over your head. 	You don’t get the credit while you’re pending
sentencing.
Here’s the deal: If I sentence you and put you on probation for
nine years, if you go through Drug Court for three, or whatever, and then

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you go crazy and start doing drugs and blow it and . . . violate your
probation, I can only sentence you to six more years in jail, because you
had already served three on probation. But since I’m not sentencing you
today, I’m not imposing any sentence. 	It’s just being held out there.
And if you go three years or whatever length of time, then you blow it,
I’ve got that full nine years I can still impose.
Orders were entered directing Gomez’s release with the condition that Gomez report
to, and complete, drug court.
{8} 	However, one month later, drug court reported a violation by Gomez, and a
bench warrant was issued for Gomez’s arrest. Gomez appeared before Judge Brown
in May 2009, a second time for sentencing. Judge Brown announced Gomez would
be sentenced to twenty-one years imprisonment, with sixteen years suspended,
resulting in an actual term of imprisonment of five years. In addition, Judge Brown
said Gomez would be ordered to serve five years of probation upon his release.
Gomez filed a motion to modify the sentence to bring it in conformity with the plea
agreements. At the hearing on Gomez’s motion, Judge Brown refused to reconsider
the sentence because he interpreted the plea agreements to permit a sentence of five
years of actual incarceration and five years of probation, as each was less than the
nine-year cap. 	Gomez’s counsel requested that the judge limit Gomez’s post-
incarceration probation to four years to comply with the plea agreements rather than
leaving open the possibility that Gomez could “keep coming back on probation
violations for [twenty-one] years.” Judge Brown said that if Gomez wanted to avoid

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this result, he should not violate probation. 	The judgment and sentence was filed
incorporating Judge Brown’s oral sentence. Gomez appeals.
DISCUSSION
Standard of Review
{9} 	A plea agreement is a unique form of contract whose terms must be interpreted,
understood, and approved by the district court. State v. Mares, 119 N.M. 48, 51, 888
P.2d 930, 933 (1994). 	When there is any ambiguity in a plea agreement and the
district court resolves the ambiguity with the parties at the time of the plea, the
agreement is no longer ambiguous on that point. Id. However, if an ambiguity is not
resolved by the district court and no extrinsic evidence is introduced that would
resolve it, “the reviewing court may rely on the rules of construction, construing any
ambiguity in favor of the defendant.” State v. Fairbanks, 2004-NMCA-005, ¶ 15, 134
N.M. 783, 82 P.3d 954. Under such circumstances, we review the terms of the plea
agreement de novo. Id. In reviewing and interpreting plea agreements, our task is to
construe their terms according to what a defendant reasonably understood when he
entered the plea. Mares, 119 N.M. at 51, 888 P.2d at 933; Fairbanks, 2004-NMCA-
005, ¶ 15 .
The Agreements Are That Gomez’s Sentence Will Not Exceed Nine Years
{10} 	Gomez asserts that the sentence imposed in this case exceeds the terms set by
his agreements. We agree. Gomez’s plea agreements are unambiguous in stating that

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the total time he will serve pursuant to each agreement is zero to nine years of some
combination of incarceration, supervised probation, or treatment. The agreements are
also clear that the zero- to nine-year periods to be served pursuant to the second and
third agreements are to be served concurrently with the sentence imposed under the
first agreement. Therefore, the sentence requiring Gomez to serve a five-year period
of incarceration, followed by a five-year period of supervised probation is not within
the terms of the agreements. 	Nine years of any combination of incarceration,
supervised probation, and treatment was the maximum that the district court could
order Gomez to serve.
{11} 	We reject the State’s argument that the use of the term “serve” in the first
agreement indicates an intent to allow for an actual sentence of something greater than
nine years, so long as any period above the nine-year cap is suspended or deferred.
When a suspended sentence is imposed, the court sentences the defendant and enters
an order “suspending in whole or in part the execution of the sentence[.]” NMSA
1978, § 31-20-3(B) (1985). 	Thus, a defendant is ordered to “serve” a period of
imprisonment, but actual imprisonment is delayed unless, and until, the court orders
otherwise. 	See Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005) (“A suspended
sentence differs from an executed sentence only in that the period of incarceration is
delayed unless, and until, a court orders the time served in prison.”). This is reflected
in the judgment and sentence actually filed in this case, wherein Judge Brown

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sentenced Gomez “to the custody of the Corrections Department of the State of New
Mexico to be imprisoned for the term [of] twenty-one (21) years for the basic
sentence.” (Emphasis added.) Thus, Gomez was clearly ordered by the judgment and
sentence to “serve” a prison term greater than nine years. Suspending execution of
sixteen years of actual incarceration unless, and until, Judge Brown orders otherwise,
does not change the fact that Gomez was sentenced to a prison term of twenty-one
years.
{12} 	The twenty-one year sentence of incarceration was not in accordance with the
plea agreements, despite the fact that sixteen years were suspended. In the event that
Gomez violates probation, he will be required to serve the full sentence (minus credit
for time served on probation), which is clearly in excess of the nine-year cap set forth
in the plea agreements.
{13} 	The second and third agreements contain a provision that “[a]ny ‘cap’ or other
limitation on incarceration shall be a limitation on imprisonment only at initial
sentencing” and state that if Gomez violates probation, the district court may sentence
him without considering the limitation. 	However, the first agreement does not.
Because the basic sentences for the offenses in the second and third agreements were
nine and three years, respectively, the district court had no authority to impose a
sentence higher than nine years under either the second or third agreements. 	The
State suggests that this means that the possible nine-year sentence under the second

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plea agreement and the possible three-year sentence under the third agreement could
be run consecutively to each other for a total of twelve years. 	The State cites no
authority to support this proposition, and where both the second and third agreements
state that the sentence in each is to run concurrently with the one imposed under the
first agreement, the most reasonable reading is that the sentences imposed under all
three agreements will begin to run at the same time—at the time that the sentence in
the first agreement begins. As it is only the first agreement that involves crimes for
which the basic sentences totaled more than nine years, we look only at that agreement
for any intent that the nine-year cap would be limited to the initial sentencing.
{14} 	We conclude that Gomez reasonably understood that the limit on the entire
sentence he could potentially be ordered to serve was nine years, in any combination
of prison, supervised probation, or treatment program. 	This understanding was
reasonable in light of the plain language of the plea agreements and as a result of the
hearing held before the three judges who accepted the plea agreements. Further, a
suspended sentence, which allows for the possibility that he could actually serve more
than nine years in prison, violates the plea agreements. Construing any ambiguity in
the agreements in the light most favorable to Gomez, we come to the same conclusion.
On Remand, the District Court Must Enforce the Agreements

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{15} 	Since Gomez’s sentence was not in conformity with the plea agreements, the
question is what remedy is appropriate. Gomez does not want to withdraw his plea,
and he asserts that he should be permitted to enforce the agreements as written. We
agree.
{16} 	New Mexico jurisprudence is clear that when a defendant pleads guilty or no
contest in exchange for a specific, guaranteed sentence, he is entitled to specific
performance of the plea agreement or be given the opportunity to withdraw the plea.
State v. Pieri, 2009-NMSC-019, ¶¶ 5, 30, 33, 146 N.M. 155, 207 P.3d 1132. Once the
plea is accepted, the court is bound by the dictates of due process to honor the
agreement and is barred from imposing a sentence that is outside the parameters set
by the plea agreement. State v. Sisneros, 98 N.M. 279, 281, 648 P.2d 318, 320 (Ct.
App. 1981), aff’d in part, rev’d in part on other grounds, 98 N.M. 201, 202, 647 P.2d
403, 404 (1982). Our Supreme Court has expressly recognized that such is the case
when a plea agreement contains a maximum incarceration potential after a probation
violation, such as the case now before us. In Mares, 119 N.M. at 51, 888 P.2d at 933,
the Court said:
[T]he parties should be able to negotiate the terms of a plea agreement
to the full extent allowed by law. If the prosecution wishes to offer a
maximum potential incarceration provision in exchange for a guilty plea,
it should be allowed to do so. The fact that such a plea may prevent the
trial court from ordering that a defendant be incarcerated after a
probation violation is something that the prosecution must weigh before
it decides to offer the plea agreement. When all parties agree, however,

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that a plea agreement will include a maximum potential incarceration
provision that governs both sentencing and post-sentencing procedures,
and the trial court approves the agreement, this Court will enforce that
provision and require the trial court to suspend the agreed-upon period
of incarceration.
Id.
{17} 	We do not hesitate to conclude that each district court judge approved the plea
agreement presented him. At Gomez’s three plea hearings, the judges orally approved
the agreements and signed them, indicating that the agreements were accepted.
Although each judge postponed sentencing and each agreement provided that “[i]f the
[c]ourt finds the provisions of this agreement unacceptable, after reviewing it and any
pre-sentence report, the [c]ourt will allow the withdrawal of the plea, and this
agreement will be void,” no judge stated he intended to reserve his decision to accept
or reject the plea until he was able to review the presentence report. Importantly, even
after the presentence report was prepared and presented to Judge Brown, he did not
reject the plea agreements. In fact, all the indications are that Judge Brown accepted
the plea agreements and intended to comply with them. Most telling is Judge Brown’s
statement at the hearing on Gomez’s motion to reconsider, in which Judge Brown
stated he believed that the sentence complied with the terms of the agreements. We
therefore conclude that the plea agreements were approved and accepted. However,
this record reflects that Judge Brown also misunderstood the terms of the plea
agreements.

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{18} 	The question before us is whether, notwithstanding the misunderstanding, the
plea agreements must be enforced under Pieri, Sisneros, and Mares. Our conclusion
is in the affirmative. See Elmore v. Commonwealth, 236 S.W.3d 623, 628-29 (Ky. Ct.
App. 2007) (holding that where the district court misconstrued the plea agreement, on
remand the defendant should be permitted to choose whether to enforce the agreement
as written 	or withdraw his guilty plea); State v. Reaves, 2008 SD 105, ¶ 11, 757
N.W.2d 580 (holding that where the district court misconstrued the plea agreement to
permit it to sentence the defendant to any legal sentence, so long as it suspended any
portion above the fifteen-year cap, enforcement of the agreement as written was the
proper remedy). A defendant who has pled guilty in exchange for a specific sentence
is entitled to have the agreement enforced as a matter of due process. 	Sisneros, 98
N.M. at 281, 648 P.2d at 320. Similarly, when the prosecution has acted in reliance
on the agreement by dismissing charges or allowing potential witnesses to be excused
from testifying, it too has an interest in having the agreement enforced. 	When an
agreement is capable of different interpretations, the district court has authority to
clear up any ambiguity before it approves and accepts the plea agreement, and the
agreement is no longer ambiguous as to that matter. However, when the district court
imposes a sentence that does not conform to the agreement, the interests of justice are
better served by enforcing the agreement instead of forcing a defendant to either

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accept a sentence that does not conform to the agreement, or alternatively, by forcing
the defendant to withdraw the guilty plea.
CONCLUSION
{19} 	The judgment and sentence is vacated and the case is remanded to the district
court to enter a judgment and sentence that conforms to the plea agreements.
{20} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
____________________________
JONATHAN B. SUTIN, Judge
____________________________
TIMOTHY L. GARCIA, Judge