February 7, 2019- State of New Mexico v. Treneeshia McBride, No. A-1-CA-35306

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35306
5 TRENEESHIA MCBRIDE,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
· 8 Mark A. Macron, District Judge Pro Tempore
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	Walter M. Hart, III, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	Kathleen T. Baldridge, Assistant Appellate Defender
16 Tania Shahani, Assistant Appellate Defender
17 Santa Fe, NM
18 for Appellant
19 	MEMORANDUM OPINION
20 	VANZI, Judge.
21 	{t} 	Defendant Treneeshia McBride appeals the district court's enhancement of
22 	her sentence, arguing that, although it was consistent with her 2008 plea agreement,
'
23 	the enhancement was barred by a 2009 verbal agreement with the State. Defendant
24 also argues that the prior felony convictions did not fall within the statute providing
Court of Appeals of New Mexico
Filed 2/7/2019 11:39 AM
Mark Reynolds

'r
1 for habitual offender enhancements and that there was' insufficient evidence that she
2 violated the conditions of probation. We affirm.
C
3 BACKGROUND
4 	{2} 	Defendant's arguments are based on the following sequence of events.
5 I. 	The 2008 Plea Agreement
6 {3} 	In 	2008 	Defendant executed a "Repeat Offender Plea and Disposition
7 Agre.~ment" (the 2008 Plea Agreement) in which she agreed to plead guilty to two
8 counts of false imprisonment and two counts of aggravated battery resulting in great
9 bodily harm in exchange for basic sentences totaling nine years.
10 	{4} 	In addition, Defendant admitted that she had been convicted of four other
11 	felonies in 1999, 2000, and 2003, including shoplifting over $250, trafficking of
12 cocaine by distribution, tampering with evidence, and aggravated battery with a
13 	deadly 	weapon. 	Defendant's prior felonies 	exposed her to 	enhanced habitual
14 offender sentences pursuant to NMSA 1978, § 31-18-17(C) (2003), which provides
15 	that a "basic sentence shall be increased by eight years" when a defendant "has
16 	incurred three or more prior felony convictions." Hence, Defendant faced potential
17 habitual offender enhancements of eight years for each charge to which she pied
18 	guilty, i.e., thirty-two years. See State v. Howard, 1989-NMCA-029,, 17, 108 N.M.
19 	560, 775 P.2d 762 ("If a person with a prior felony conviction is convicted of
20 multiple felonies, then there are several basic sentences. Thus, there may be multiple
2

1 enhancements."). Despite this exposure, the State agreed to an enhancement of only
2 one year based on Defendant's admission that she was convicted of aggravated
3 battery with a deadly weapon in 2003. This one-year habitual offender enhancement
4 brought Defendant's total prison sentence under the 2008 Plea Agreement to ten
5 years.
6 {5} 	Although 	the 	2008 	Plea 	Agreement 	provided 	for 	a 	habitual 	offender
7 enhancement of only one year, it also provided that Defendant could be subject to
8 additional habitual offender enhancements if Defendant violated the conditions of
9 probation or any other law. Specifically, it provided that "[i]f ... Defendant later
10 violates [her] probation, she could do the balance of the sentence and the State may
11 	bring additional [h]abitual [o]ffender enhancements as [to] each felony [c]ount."
12 Additionally, it provided that:
13 	[D]efendant understands that if she violates any law after she enters this
14 	plea and before she completes her sentence in this case, she will be
15 	subject to 	additional 	habitual 	offender proceedings based on the
16 	convictions listed [in the 2008 Plea Agreement]. The State also may
17 	bring additional habitual offender proceedings if the defendant violates
18 	any condition of probation or parole. The State may bring additional
19 	habitual offender proceedings if the violation is admitted or proven,
20 	even 	if probation or parole 	is 	not revoked or [D]efendant is not
21 	convicted of the new crime.
22 	{6} 	After a hearing in June 2008, Defendant was sentenced in accordance ~ith the
23 	2008 Plea Agreement to a term of ten years, of which eight were suspended, with
24 two years to be spent incarcerated. The district court ordered four years of supervised
3

1 probation following incarceration. However, due to pre-sentence confinement credit,
2 Defendant's probation began shortly after the 2008 hearing.
3 II. 	The 2009 Probation Revocation and Second Enhancement of Sentence
4 {7} 	In 2009, the State moved to revoke Defendant's probation. At the hearing on
5 the motion, the State informed the district court that Defendant faced the immediate
6 potential for thirty-one additional years of habitual offender enhancements, and that
7 Defendant had rejected the State's offer of an eight-year enhancement for the
8 probation violations at issue. As the State was describing Defendant's probation
9 violations, counsel for Defendant interjected to ask for a recess. After the recess, the
10 parties informed the district court of their agreement that Defendant would admit to
11 	the probation violation and the State would seek a habitual offender enhancement of
12 	eight years for one of the 2008 false imprisonment counts. The substance of this
13 	verbal agreement (the 2009 Verbal Agreement) between the State and Defendant is
14 the crux of Defendant's arguments.
15 	{8} 	The district court sentenced Defendant to eighteen years, stating in a written
16 order, "Defendant was originally sentenced to ten (10) years on June 10, 2008.
17 Defendant's sentence for false imprisonment, as charged [in] 	... the original
18 	indictment in this matter, was enhanced by eight years of mandatory incarceration
19 pursuant to [Section] 31-18-1 7." After calculating Defendant's confinement credits,
20 the district court committed Defendant to the Department of Corrections for a
4

1 confinement of2630 days and sentenced her to three years of probation and one year
2 of parole. Defendant began her probationary term in March 2014.
3 III. 	The 2015 Probation Revocation and Third Enhancement
4 	{9} 	In 2015, the State moved to revoke Defendant's probation for battery against
5 Karim Cunningham and Janelle Martinez. An evidentiary hearing on the State's
6 motion was held over four days and the district court found that the State had met its
7 burden to 	show that 	Defendant had violated the 	terms 	of her probation 	by
8 committing battery against Cunningham and Martinez. Additional facts related to
9 the sufficiency of the evidence are included in our discussion of Defendant's
10 arguments below.
11 	{10} 	The 	day 	after 	the 	district 	court 	stated 	its 	findings, 	the 	State 	filed 	a
12 	supplemental information in which it sought an additional eight-year habitual
13 	offender enhancement of Defendant's sentence. At a hearing on the supplemental
14 information, Defendant argued that any additional enhancement was contrary to the
15 	2009 Verbal Agreement and moved to dismiss the supplemental information.
16 	{11} 	The district court denied Defendant's motion and concluded that "Defendant's
17 exposure at sentencing is the remaining underlying time ... (three years less
18 probation credit from March 21, 2014) and one eight[-]year habitual offender
19 enhancement on the remaining 	[f]alse 	[i]mprisonment conviction." It revoked
5

1 Defendant's probation and sentenced her to eight years of incarceration. Defendant
2 appeals the eight-year habitual offender enhancement.
3 DISCUSSION
4 	{12} 	Defendant makes three arguments. First, she argues that the evidence was
5 insufficient to 	support the 	district court's 2015 	finding 	that she violated her
6 probation. Second, she maintains that the district court's decision to enhance the
7 2015 sentence was contrary to the 2009 Verbal Agreement. Finally, she argues that
8 the 	2015 	enhancement 	of her sentence was 	illegal 	because the prior 	felony
9 convictions on which the enhancement was based were more than ten years old.
10 IV. 	There Was Sufficient Evidence to Support the Probation Violation
11 	{13} 	"A violation of the conditions of probation must be established with such
12 reasonable certainty as to satisfy the conscience of the court of the truth of the
13 	violation. It does not have to be established beyond a reasonable doubt." State v.
14 	Guthrie, 2011-NMSC-014, 1 14, 150 N.M. 84, 257 P.3d 904 (alteration, internal
15 	quotation marks, and citation omitted). "To meet this burden, the [s]tate must
16 introduce evidence that a reasonable and impartial mind would be inclined to
17 conclude that the defendant has violated the terms of probation." State v. Leon, 2013-
18 NMCA-011, 1 36, 292 P.3d 493. "Once the state offers proof of a breach of a
19 material condition of probation, the defendant must come forward with evidence to
20 excuse non-compliance." Id. (internal quotation marks and citation omitted). The
6

1 Rules of Evidence do not apply to hearings related to revocation of probation. Rule
2 	11-1101(D)(3)(d) NMRA.
3 	{14} 	Although Defendant "challenges the sufficiency of the evidence supporting
4 each of his [or her] probation violations, if there is sufficient evidence to support just
5 one violation, we will find the district court's order was proper." Leon, 2013-
6 NMCA-011,, 37. We conclude that the district court did not abuse its discretion in
7 finding that the State met its burden as to the battery against Cunningham and that
' 	'
8 Defendant did not present evidence to excuse her behavior. Id., 36. This conclusion
9 obviates the need to address the sufficiency of the evidence related to battery against
10 Martinez and Defendant's argument that the district court improperly admitted
11 	Martinez's testimony.
12 	{15} 	The 	district 	court 	heard the 	following 	evidence. 	Defendant began her
13 	probation in October 2014. While on probatiop., Defendant stayed with Karim
14 Cunningham in his apartment for a short period. Cunningham testified that in
15 	November 2014, as a result of a verbal disagreement between the two, Defendant
16 	struck him "eight or nine times" in the face with a closed fist, scratched him, and
17 caused a knot on his forehead, and that the battery occurred near the back door of
18 his apartment. Cunningham testified that a "light, skinny guy, a brown skinny guy"',
19 	stood ~earby while Defendant was hitting him and that two other women were
20 standing in the back doorway. After Defendant left with the other unidentified
7

I people, Cunningham called the Albuquerque Police Department and officers arrived
2 shortly thereafter.
3 	{16} 	One of the officers responding to Cunningham's call testified that, when he
4 arrived, Cunningham had dried blood around his nose and a laceration on his chest.
5 The officer testified that Cunningham told the officer that Defendant had punched
6 Cunningham ·in the head while he was near the back door of his apartment. The
7 officer testified that Cunningham had also reported to the officer that Defendant and
8 a "light-skinned Black male" had both beaten him, and that two other unidentified
9 women stood in the back doorway during the affray. The officer's lapel video from
IO his interview with Cunningham was admitted without objection during the hearing.
11 	{17} 	The 	district 	court 	found 	that 	Defendant 	committed 	a 	battery 	upon
12 Cunningham and that there was "no indication of self-defense or other defenses"
13 justifying her conduct. It acknowledged that there were "some inconsistencies in
14 	[Cunningham's] 	testimony, 	but 	not 	regarding 	[Defendant]'s · participation.
15 	[Cunningham] clearly testified that she participated in a battery." It went on, "[t]here
16 was physical evidence of a battery upon [Cunningham] to his nose and head. He was
17 able to identify [Defendant], based on the fact he knew her, and that she had ~esided
18 	at his residence." It reiterated that "there was no indication of self-defense or other
19 	defenses that would mitigate or eliminate those allegations."
8

1 {18} 	Defendant argues that the inconsistencies between Cunningham's testimony
2 and what he told the officer at the scene "render[ Cunningham's] entire version of
3 events untrustworthy" and that Cunningham had a motive to lie to "get [Defendant]
4 in trouble with the law." Some of the things that Cunningham told the officer were
5 inconsistent with Cunningham's testimony. For instapce, the officer testified that
6 Cunningham stated that the dispute began when he told Defendant she had to leave
7 his apartment because he did not want her using the phone to threaten people,
8 whereas Cunningham testified that it began when he told Defendant that her friend
9 could not also stay in the apartment. However, as Defendant also recognizes,
10 resolution of conflicts in the testimony and credibility determinations are for the trier
11 	of fact. We do not reweigh the evidence and instead "defer to the district court when
12 	i~ weighs the credibility of witnesses and resolves conflicts in witness testimony."
13 	State v. Salas, 1999-NMCA-099,, 13, 127 N.M. 686, 986 P.2d 482.
14 	{19} 	Moreover, Defendant does not point to any other evidence in the record to
15 	overcome the 	reasonable 	inference 	from 	the 	above 	testimony that 	Defendant
16 committed battery in violation of the conditions of her probation. Nor does she point
17 us to any evidence that she had an excuse for this non-compliance. Accordingly, we
18 	conclude that the evidence was sufficient for a reasonable mind to conclude that
19 Defendant violated her probation. 	Hence, the district court did not 	abuse 	its
9

1 discretion 	in 	finding 	that Defendant had violated her probation by 	battering
2 Cunningham.
3 V. 	The 2008 Plea Agreement Governed the 2015 Enhancement
4 	{20} 	Defendant also argues that the district court's imposition 	of a habitual
5 offender enhancement in 2015 was improper because the 2009 Verbal Agreement
6 "reflected an agreement with the State that her sentence was no longer subject to
7 habitual offender enhancements." "A plea agreement is a unique form of contract
8 the terms of which must be interpreted, understood, and approved by the [district]
9 court." State v. Fairbanks, 2004-NMCA-005, , 	15, 134 N.M. 783, 82 P.3d 954
10 (internal 	quotation 	marks 	and 	citation 	omitted); see Rule 	5-304(B) 	Nl\1RA
11 	(providing that the district court "may accept or reject the [plea] agreement"). When
12 reviewing plea agreements, "we construe the terms of the plea agreement according
13 	to what 	[the d]efendant reasonably understood when he 	[or she] 	entered the
14 plea." Fairbanks, 2004-NMCA-005, , 	15 (internal quotation marks and citation
15 	omitted). "If the [district] court resolves alleged ambiguities with the parties at the
16 time of the plea, and no further objection is made, the agreement is no longer
17 ambiguous on those points addressed by the court." Id. (alteration, internal quotation
18 marks, and citation omitted). "However, if the ambiguities are not addressed:by the
19 district court and there is no other relevant extrinsic evidence to resolve the
20 ambiguity, the reviewing court may rely on the rules of construction, construing any
10

1 ambiguity in favor of the defendant." Id. In doing so, we apply a de novo standard
2 ofreview. Jd.
3 	{21} 	Defendant first argues that she reasonably understood the State's statements
4 at the 2009 hearing to offer (1) a single enhancement of eight years, and (2)
5 forbearance of future habitual offender enhancements in exchange for her admission
6 of the alleged 2009 probation violations. 	In a variation of this argument, she
7 contends that the 2009 Verbal Agreement replaced or modified the 2008 Plea
8 Agreement. We disagree with both contentions.
9 	{22} 	Although Defendant focuses her arguments on the 2009 Verbal Agreement,
10 that agreement does not exist in a vacuum. Rather, it must be considered in light of
11 	the 2008 Plea Agreement, in which the State unequivocally reserved its broad
12 authority to seek habitual offender enhancements should Defendant violate the terms
13 	of her probation. See State v. Leyba, 2009-NMCA-030, 1 21, 145 N.M. 712, 204
14 P.3d 37 (stating that "the [s]tate [has] broad discretion to seek habitual offender
15 	enhancement[s]"). The State appeared to acknowledge the 2008 Plea Agreement at
16 the 2009 hearing by observing that Defendant was subject to thirty-one years of
17 habitual offender enhancements. This calculation is consistent with the possible
18 	habitual offender enhancements (eight years for each of the four counts to: which
19 Defendant 	pled 	guilty 	in 	the 	2008 	Plea 	Agreement), 	less 	one 	year 	for 	the
20 enhancement already imposed at the initial sentencing. See § 31-18-17(C) (providing
11

1 for habitual offender enhancements of eight years when the defendant has been
2 convicted of three or more prior felonies); Howard, 1989-NMCA-029, 117 (stating
3 that each "basic sentence" imposed may be enhanced). In addition to the State's
4 reference to the potential enhancements, the district court conducted a colloquy with
5 Defendant as to each of the four admitted prior convictions listed in the State's
6 supplemental information and noted that they were the same four prior convictions
7 listed in the 2008 Plea Agreement. The 2008 Plea Agreement thus was invoked
8 multiple times at the 2009 hearing.
9 	{23} 	Here, Defendant argues that her interpretation of the 2009 Verbal Agreement
10 was reasonable because "nothing in the 2009 hearing ... indicated that [Defendant]
11 	would ever be subjected to any part of the remaining habitual offender time."
12 However, this argument ignores the existence of the 2008 Plea Agreement. Leyba is
13 	instructive on this point. There, the defendant "agreed to plead guilty ... , and the
14 	State agreed to dismiss the remaining three charges and not bring habitual offender
15 	proceedings ... "IF AND ONLY IF [the d]efendant complete[ d] at least one year of
16 inpatient 	alcohol 	treatment, 	and 	successfully 	complete[ d] 	probation 	without
17 violation." 2009-NMCA-030, 12 (alterations, internal quotation marks, and citation
18 	omitted). One month after he was sentenced, the defendant was terminated from the
19 	inpatient treatment program he had entered as a special condition of his probation.
20 See id. 1 4. The defendant admitted the violation in an agreement with the [s]tate. Id.
12

1 The defendant's prior felony convictions were listed in the probation violation
2 agreement, but had been crossed out. Id. , 21. After a series of events not relevant
3 to our discussion, the [s]tate filed a supplemental information and argued that the
4 defendant's initial sentence "should be enhanced[,] pursuant to ... [Section] 31-18-
5 17(C)." Id., 7. In pertinent part, the defendant argued that the probation violation
6 agreement should be interpreted to prohibit the State from seeking a habitual
7 offender enhancement, even though such enhancements were permitted in the initial
8 plea agreement. Id., 19.
9 {24} 	The Court rejected this argument. The Court observed that "there [wa]s no
10 express language in the ... probation violation agreement binding the [s]tate from
11 	subsequently seeking an enhanced sentence" and the fact that the prior felony
12 convictions had been crossed out "d[id] not control whether the [s]tate had authority
13 	to seek a habitual offender enhancement ... under the terms of the original ... plea
14 and disposition agreement." Id. , 	21. It concluded that, "[g]iven the terms of the
15 	original plea and disposition agreement, coupled with the [s]tate's broad discretion
16 to seek habitual offender enhancement, the absence of any express language limiting
17 this discretion demonstrates that no such agreement between the [s]tate and [the
18 	d]efendant was reached." Id.
19 	{25} 	Like in Leyba, the 2009 Verbal Agreement was silent as to its effect· on the
20 State's broad authority to enhance as set out in the 2008 Plea Agreement. Hence,
13

\
1 given the explicit and repeated references in the 2008 Plea Agreement to the State's
2 ability 	to 	seek 	future 	enhancements 	and 	the 	absolute 	silence 	as 	to 	future
3 enhancements in the 2009 Verbal Agreement, it was unreasonable for Defendant to
4 understand the 2009 Verbal Agreement as precluding all future enhancements.
5 {26} 	For the same reasons, the 2009 Verbal Agreement did not modify or supplant
6 the 2008 Plea Agreement. "The parties to a written contract may modify that contract
7 by express or implied agreement as shown by their words and conduct." Medina v.
8 Sunstate Realty, 	Inc., 	1995-NMSC-002, ,r 	14, 	119 N.M. 	136, 	889 P.2d 	171.
9 However, silence on habitual offender enhancements is not evidence of intent by the
10 parties to alter the provisions of the 2008 Plea Agreement explicitly providing for
11 	such enhancements. See State v. Trujillo, 2007-NMSC-017, ,r 12, 141 N.M. 451, 157
12 P.3d 16 (stating that "the plea agreement's silence on the subject ofhabitual-offender
13 	charges cannot inure to [the defendant]'s benefit"); cf. Leyba, 2009-NMCA-030, ,r
14 22 (stating that the defendant "may not rely on the absence of' certain language in a
15 	"probation violation agreement to [bar] the subsequent filing of the habitual offender
16 	supplemental information"); Valley Bank of Commerce v. Hilburn, 2005-NMCA-
17 004, ,r 25, 136 N.M. 741, 105 P.3d 294 ("[T]he law requires that an oral modification
18 to a written contract be proved by clear and convincing evidence[.]").
19 	{27} 	Finally, Defendant argues that, because "the district court did not address [at
20 the 2009 hearing] any potential future enhancements with [Defendant] nor did it
14

1 discuss the continuing applicability of the 2008 [P]lea [A]greement," the 2009
2 Verbal Agreement was ambiguous and should be construed in her favor. As noted
3 above, however, given the explicit provisions in the 2008 Plea Agreement and the
4 lack of evidence that both parties intended to modify that agreement, silence in the
5 2009 proceedings does not, by itself, create an ambiguity in the 2009 Verbal
6 Agreement.
7 {28} 	To the extent Defendant argues that the district court's failure to specifically
8 advise her in the 2009 hearing that she remained exposed to future enhancements
9 rendered the 2009 Verbal Agreement otherwise improper, we disagree. Cf Marquez
10 v. Hatch, 2009-NMSC-040, 11 7-11, 146 N.M. 556, 212 P.3d 1110 (stating that
11 	"when a defendant's plea will most certainly result in an immediate sentence
12 enhancement because of the defendant's prior convictions, the district court must
13 	advise the defendant of such likelihood before accepting the plea"). The 2008 Plea
14 Agreement provided, among other references to habitual offender enhancements,
15 	that "[i]f ... Defendant later violates ... probation, she could do the balance of the
16 sentence and the State may bring additional [h]abitual [o ]ffender enhancements as
17 	[to] each felony [c]ount" for which Defendant was charged. Thus, both the 2009
18 probation 	violation 	proceeding 	and 	the 	imposition 	of 	a 	habitual 	offender
19 enhancement were contemplated by the parties in the 2008 Plea Agreement' Given
20 our conclusion that the 2009 Verbal Agreement did not supplant or alter the 2008
15

1 Plea Agreement, the district court was not required to reiterate the terms of the 2008
2 Plea Agreement at the 2009 hearing. Cf State v. Garcia, 1996-NMSC-O 13, 1 17, 121
3 N.M. 544,915 P.2d 300 (stating that "provided the record shows the defendant had
4 the requisite information, the court need not be the only source of ... information"
5 about the charges to which the defendant is pleading guilty). But see Rule 5-
6 303(F)(2) NMRA (providing that "[t]he [district] court shall not accept a plea of
7 guilty or no contest without first, . . . informing the defendant of and determining
8 that the defendant understands ... the mandatory minimum penalty provided by law,
9 if any, and the maximum possible penalty provided by law for the offense to which
10 the plea is offered, including any possible sentence enhancements"). 1
11 	VI. 	The 2015 Enhancement Was Not Barred by Section 31-18-17(D)(l)
12 {29} 	Section 31-18-17(D )(2) provides that a prior felony may be the basis of an
13 	enhancement "when less than ten years have passed" between "the instant felony
14 conviction" and the date "the person completed serving his sentence or period of
1Rule 5-303(F)(2) was amended after the New Mexico Supreme Court issued
its decision in Marquez to include the phrase "including any possible sentence
enhancements," See Rule 5-303 Comm. cmt. The March 2009 hearing at issue here
predated both Marquez and the effective date of the amendment (December 3,2010).
Hence, the amended rule did not apply here. See Howell v. Heim, 1994-NMSC-103,
1 17, 118 N.M. 500, 882 P.2d 541 ("New Mexico law presumes that statutes and
rules apply prospectively absent a clear intention to the contrary."); see also NMSA
1978, § 12-2A-8 (1997) ("A statute or rule operates prospectively only unless the
statute or rule expressly provides otherwise or its context requires that it operate
retrospectively.").
16

1 probation or parole for the prior felony[.]" Defendant argues that under State v.
2 	Triggs, 2012-NMCA-068, ,r,r 17-19, 281 P.3d 1256, the prior felony convictions in
3 the 2008 Plea Agreement could not be used in 2015 to enhance her sentence because
4 "they had since expired under Section 31-18-17(D)(l)." Whether Defendant's
5 "previous 	felony 	conviction[ s] 	can 	be 	used 	for 	the 	purposes 	of 	sentence
6 enhancement under Section 31-18-17 is a question of law that we review de novo."
7 Leon, 2013-NMCA-011, ,r 43.
8 	{30} 	As a preliminary matter, we note that the date contemplated in Section 31-18-
9 	17(D)(l) is the date "the person completed serving his sentence or period of
10 probation or parole for the prior felony[.]" Both parties base their arguments on the
11 	dates that Defendant was convicted of the prior felonies and- there is no indication in
12 the record of the dates on which Defendant completed her sentences for the prior
13 	felony convictions. Because the dates of the completion of Defendant's sentences
14 perforce fall after the dates of conviction, we likewise rely on the dates of conviction
15 	in our analysis.
16 	{31} 	In 	Triggs, 	the question before the Court was whether the district court
17 correctly concluded that it lacked discretion to order habitual offender enhancements
18 to run concurrently. 2012-NMCA-068, ,r 13. The district court had imposed habitual
19 	offender enhancements to "each of the seven [underlying] offenses [of] four years,
20 and ordered the sentences to be served consecutively, resulting in a total sentence of
17

1 twenty-eight additional years in prison." Id., l. The district court apparently agreed
2 with the State that "where a parole violation triggers habitual offender enhancements
3 to a sentence, the enhanced sentence is not a new sentence and must run consecutive
4 if the underlying crimes being enhanced run consecutive." Id. , 	17. This Court
5 disagreed and held that "the original judgment does not bind the judge who revokes
6 parole." Id. It went on, "[t]his principle is consistent with case law stating that
7 enhanced sentences are new sentences and that in imposing the new enhanced
8 sentences, the [district] court's arrangement of the manner in which the new
9 enhanced sentences were to be served was not limited by the arrangement for serving
10 the 	regular 	sentences." 	Id. 	(alteration, 	internal 	quotation marks, 	and 	citation
11 	omitted). The matter was remanded to the district court to exercise its discretion as
12 to whether the enhancement periods should run concurrently or consec~tively. Id.
13 	, 23.
14 	{32} 	Defendant extrapolates from the Court's statement that "enhanced sentences
15 	are new sentences" the proposition that an enhancement may be based only on a ·
16 prior felony convictions that occurred within ten years of the date of the probation
17 revocation. But the issue in Triggs was the scope of the district court's discretion
18 	and whether it was limited by the way the original sentence was structured. The
'
19 phrase relied on by Defendant must be understood in that context.
18

1 {33} 	This Court recently recognized the limits of the Triggs holding in State v.
2 	Yazzie. 2 2018-NMCA-001, ,-r 20,410 P.3d 220, cert. denied,_ P.3d _ 	(No. S-1-
3 SC-36544, Aug. 30, 2017). Before the Court was the apparent tension between
4 	Triggs and State v. Ortega, in which this Court stated that "[a] probation violation is
5 not a crime and does not trigger an enhancement as a habitual offender" and,
6 consequently, "enhancement at the time of the probation violation relates to the
7 district court's sentence for the underlying crimes." 2004-NMCA-080, ,-r 8, 135 N.M.
8 737, 93 P.3d 758. The Yazzie Court held that there was "no conflict" between Ortega
9 and Triggs because "Triggs [merely] reaffirms the discretion of the district court in
10 determining the manner in which a defendant will serve multiple sentences." Yazzie,
11 	2018-NMCA-001, ,-r 20. Thus, "[e]nhanced sentences may be new-in that they are
12 newly imposed after the original sentence for a probation violation-but this does
13 	not strip a newly imposed sentence of its relationship to the original sentence, the
14 grounds for which the sentence is being enhanced." Id.
15 	{34} 	Defendant does not dispute that the prior felony convictions listed in the 2008
16 Plea Agreement were entered within ten years of the 2008 conviction. Hence,
17 consistent with Yazzie and Ortega, the 2015 enhancement was valid because the
2Defendant properly alerted this Court to Yazzie, which was pending before
this Court when she filed the brief in chief.
19

1 prior felony convictions on which the district court relied occurred within ten years
2 	of the 2008 convictions.
3 	CONCLUSION
4 	{35} 	For the foregoing reasons, we affirm.
5 	{36}
6
7
IT IS SO ORDERED.
8 WE CONCUR:
9 ~ti~ ~---ck.>-
10 	~INA BoiRDUS, Judge
UELINE R. MEDINA, Judge
20
. VANzI, Judge 	'