State v. Pelt

The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-
112 NMRA, authenticated and formally published. The slip opinion may contain
deviations from the formal authenticated opinion.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: July 3, 2025

4 NO. S-1-SC-38669

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellant,

7 v.

8 STEVEN MIKE PELT,

9 Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
11 Daylene A. Marsh, District Judge

12 Raúl Torrez, Attorney General
13 Michael J. Thomas, Assistant Solicitor General
14 Albuquerque, NM

15 for Appellant

16 Bennett J. Baur, Chief Public Defender
17 Tania Shahani, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellee
1 OPINION

2 THOMSON, Chief Justice.

3 {1} A sex offender whose sentence is deferred or suspended must “serve an

4 indeterminate period of supervised probation” ranging from five to twenty years.

5 NMSA 1978, § 31-20-5.2(A) (2003). After “the initial five years on supervised

6 probation,” and every two and one-half years thereafter, Section 31-20-5.2(B)

7 provides for a probation duration review hearing in which the state bears the burden

8 of proving to a reasonable certainty that probation should continue. This case

9 involves calculating the time a sex-offender probationer must serve in order to meet

10 the initial five-year requirement for a probation duration review hearing, pursuant to

11 Section 31-20-5.2(B).

12 {2} The State appeals from a district court order concluding that habeas petitioner

13 Steven Mike Pelt (Pelt) is entitled to a sex-offender probation duration review

14 hearing after having served more than the required five years of probation, pursuant

15 to Section 31-20-5.2(B). The State challenges the district court’s calculation of

16 probation time served for purposes of a probation duration review hearing,

17 specifically the court’s inclusion of two buckets of time during which Pelt served in-

18 house parole: (1) the time Pelt served on in-house parole after his sentence was

19 completed but before he was released into the community (Pre-Release Time) and
1 (2) the time Pelt served on in-house parole after his parole was revoked for parole

2 violations (Revocation Time). In essence, the State argues that only the time served

3 on probation in the community counts toward Pelt’s five-year probation duration

4 review hearing. Pelt asserts that the district court properly credited his Pre-Release

5 Time, but he neither contests nor concedes that the district court properly credited

6 his Revocation Time.

7 {3} To advance their positions, both parties rely primarily on the terms of our

8 general probation statute, NMSA 1978, § 31-20-5 (2003), arguing that its provisions

9 apply to sex offenders in addition to the sex-offender-specific statute, § 31-20-5.2.

10 This is for good reason; the terms of the general probation statute, if applicable,

11 provide a clear framework for calculating time served on probation for purposes of

12 a probation duration review hearing. The general probation statute provides that time

13 served on parole is credited toward time served on probation unless parole has been

14 revoked, in which case the time served on in-house parole—Revocation Time—does

15 not count toward probation. See § 31-20-5(B). However, this Court has never

16 analyzed whether both the general and the sex-offender-specific probation statutes

17 apply to sex offenders.

18 {4} We take this opportunity to answer that question in the affirmative. We hold

19 that both the general probation statute and the sex-offender-specific statute apply to

2
1 sex offenders. We further hold that, under the terms of the general probation statute,

2 § 31-20-5(B), Pre-Release Time counts toward a sex-offender probationer’s initial

3 five-year probation duration review hearing, but Revocation Time does not. Because

4 the district court included Revocation Time in its determination that Pelt is entitled

5 to a probation duration review hearing, we reverse and remand to the district court

6 with instructions to recalculate the time credited toward Pelt’s probation duration

7 review hearing in accordance with this opinion.

8 I. BACKGROUND

9 {5} On December 29, 2008, Pelt pleaded no contest to one charge of criminal

10 sexual contact with a minor under the age of thirteen, contrary to NMSA 1978,

11 Section 30-9-13(C) (2003). He was sentenced to six years in prison with three years

12 suspended and subject to an indeterminate period of mandatory supervised probation

13 pursuant to Section 31-20-5.2(A). Pelt’s three-year sentence in the New Mexico

14 Corrections Department (NMCD) ended on May 4, 2011, and his probation began

15 that same day per the order of probation, as did his parole. However, Pelt was not

16 released from NMCD to the community until May 28, 2013. Pelt remained in the

17 community until July 2, 2015, when he was arrested for violating the terms of his

18 probation. Although the State withdrew the motion and Pelt’s probation was never

19 revoked, his parole was revoked for the same underlying conduct. After serving a

3
1 period of in-house parole, Pelt was again released to the community on September

2 6, 2016. Then, on April 22, 2019, Pelt was returned to DOC pending a parole

3 violation hearing and a second parole revocation.

4 {6} While serving in-house parole following that second parole revocation, Pelt

5 petitioned for a writ of habeas corpus asserting that he was overdue for his five-year

6 parole duration review hearing and his five-year probation duration review hearing

7 and was entitled to immediate release. The district court, implicitly relying on the

8 general probation statute, § 31-20-5, and explicitly referencing the sex-offender-

9 specific probation statute, § 31-20-5.2(B), agreed that Pelt was entitled to both a

10 probation duration review hearing and a parole duration review hearing.1 The district

11 court also concluded that Pelt had served nine years and seven months on probation,

12 which accounts for both Pre-Release Time and Revocation Time. This appeal

13 followed.

1
The district court did not specify whether the probation or parole hearing
should occur first, nor do we opine on that issue, as it is not before us. We take this
opportunity to highlight the statute’s instruction that “the period of probation shall
be served subsequent to any required period of parole.” Section 31-20-5(B)(1). It is
unclear, and the parties have not addressed, what effect this provision might have on
a district court’s jurisdiction to act with respect to a probationer’s term while that
probationer is still serving parole and, accordingly, still subject to the Parole Board’s
jurisdiction.

4
1 II. DISCUSSION

2 {7} “In appeals pertaining to habeas corpus proceedings, we defer to the district

3 court’s findings of fact if supported by substantial evidence. . . . However, we review

4 questions of law or mixed fact and law de novo.” Miller v. Tafoya, 2003-NMSC-

5 025, ¶ 9, 134 N.M. 335, 76 P.3d 1092. At its core, however, this case presents a

6 question of statutory interpretation, which the Court reviews de novo. State v. Sena,

7 2023-NMSC-007, ¶ 15, 528 P.3d 631.

8 {8} As we explain, there are key differences between the general and sex-

9 offender-specific probation statutes. Where sex offenders are subject to an

10 indeterminate period of probation not to exceed twenty years, the period of probation

11 for other offenses is capped at five years. See § 31-20-5(A); § 31-20-5.2. Also, unlike

12 the general statute, the sex-offender-specific statute does not provide for dual credit

13 for time served on parole. See § 31-20-5(B); § 31-20-5.2. Reading those differences

14 harmoniously, however, evinces a coherent scheme of sex-offender probation that

15 provides for an extended period of supervision that is integrable with the process

16 used for other probationers.

17 A. Both the General and Sex-Offender-Specific Statutes Apply to Sex
18 Offenders

19 {9} Whether both the general and sex-offender-specific probation statutes apply

20 to sex offenders is a question of statutory interpretation. “The main purpose of

5
1 statutory interpretation is to give effect to the intent of the Legislature” by looking

2 “only to the plain language of the statute unless the meaning of the language is

3 ambiguous.” Sena, 2023-NMSC-007, ¶ 15. “As a court, our task is to construe

4 statutes in harmony whenever possible.” State v. Smith, 2004-NMSC-032, ¶ 13, 136

5 N.M. 372, 98 P.3d 1022. The plain language of the general and sex-offender-specific

6 probation statutes reveals that there is no conflict between them and that they, in

7 fact, act in harmony to create a coherent statutory scheme.

8 {10} The general probation statute, § 31-20-5(A), requires a judge to impose

9 probation post-conviction if the judge suspends or defers any or all of the authorized

10 sentence of imprisonment and if the judge determines that “the defendant is in need

11 of supervision . . . that is feasible for the corrections department to furnish.” That

12 same provision limits the period of probation to five years for felonies “[e]xcept for

13 sex offenders as provided in Section 31-20-5.2.” Section 31-20-5(A). The general

14 probation statute’s only other subsection, Subsection (B), provides that where a

15 defendant is required to serve probation following incarceration, “the period of

16 probation shall be served subsequent to any required period of parole, with the time

17 served on parole credited as time served on the period of probation.” Section 31-20-

18 5(B)(1). There is a critical caveat to this dual-credit system: “[I]f parole is revoked,

19 the period of parole served in the custody of a correctional facility shall not be

6
1 credited as time served on probation.” Section 31-20-5(B)(2) (emphasis added).

2 Unlike Subsection (A), Subsection (B) does not exempt sex offenders from any of

3 its terms. See § 31-20-5(B). That is, sex offenders are not exempt from the dual-

4 credit and revocation provisions of Section 31-20-5(B).

5 {11} Turning to the sex-offender-specific probation statute, Section 31-20-5.2(A)

6 provides:

7 When a district court defers imposition of a sentence for a sex offender,
8 or suspends all or any portion of a sentence for a sex offender, the
9 district court shall include a provision in the judgment and sentence that
10 specifically requires the sex offender to serve an indeterminate period
11 of supervised probation for a period of not less than five years and not
12 in excess of twenty years. A sex offender’s period of supervised
13 probation may be for a period of less than twenty years if, at a review
14 hearing provided for in Subsection B of this section, the state is unable
15 to prove that the sex offender should remain on probation.

16 Id. (emphasis added). This provision differs from the general probation statute by

17 (1) requiring the judge to impose probation where the judge opts to suspend or defer

18 any portion of a sex offender’s sentence without exception and (2) imposing an

19 indeterminate period of supervised probation up to twenty years, which is

20 substantially longer than the five-year period allowed under the general statute, §

21 31-20-5(A). See § 31-20-5.2(A).

22 {12} The remainder of the sex-offender-specific statute provides for probation

7
1 revocation 2 and sets parameters for the terms and conditions of probation as well as

2 the probation duration review processes. Relevant to this appeal, Section 31-20-

3 5.2(B) requires the district court to review the duration of a sex offender’s probation

4 after the individual “has served the initial five years of supervised probation.” At

5 that five-year mark, and thereafter at two- and one-half-year intervals, the burden is

6 on the state to “prov[e] to a reasonable certainty that the sex offender should remain

7 on probation.” Id. The need for those provisions only arises because of the

8 indeterminate nature of probation for sex offenders—a feature that is absent in the

9 general probation context.

10 {13} There is one key aspect of the general probation statute that is glaringly absent

11 from the sex-offender-specific statute: dual credit for time served on parole. The sex-

12 offender-specific statute does not state that the probationer earns credit toward

13 probation for time the offender served on parole. See § 31-20-5.2. Indeed, the statute

2
Although not at issue in this appeal, we note that the provision addressing
probation revocation does not conflict with the terms of NMSA 1978, § 31-21-15
(2016), which provides more substantial detail on the process for probation
revocation and, importantly, does not distinguish between sex-offenders and
probationers. Like the parole provisions in the general probation statute, Section 31-
21-15 fills what would otherwise be substantial gaps in the sex-offender probation
revocation process. See, e.g., § 31-21-15(A)(1)-(3) (articulating the process required
for issuing a warrant, serving the probationer, and arresting “the probationer who
has violated the conditions of release”).

8
1 does not describe the relationship between probation and parole for sex offenders at

2 all. See id. The parties do not provide caselaw finding a dual-credit system specific

3 to sex offender probation and parole, nor have we located any. Simply put, if the

4 Court were to conclude that the general probation statute does not apply to sex

5 offenders, then there would be no basis for providing dual credit to sex-offender

6 probationers for time served on parole, including credit for any portion of time that

7 a probationer serves on in-house parole.

8 {14} There is no suggestion in the text of either the general probation statute or the

9 sex-offender-specific statute that the Legislature intended such a result. See State v.

10 Rael, 2024-NMSC-010, ¶ 40, 548 P.3d 66 (“[W]e presume that a legislature says in

11 a statute what it means and means in a statute what it says.” (internal quotation marks

12 and citation omitted)). The only provisions that differ between the two statutes are

13 those addressing the term of probation imposed. That, alone, does not create a

14 conflict between the statutes. Indeed, reading the statutes in harmony leads to a

15 logical and fair result that comports with our cannons of statutory construction. See

16 Smith, 2004-NMSC-032, ¶ 13. Rather than creating a wholly separate scheme, the

17 sex-offender-specific probation statute merely establishes a system of indeterminate

18 probation imposed on sex offenders, where probation for other offenses is limited to

19 five years under the general probation statute. Aside from that indeterminate period

9
1 distinction, the terms of the general statute—including the system of dual credit—

2 apply to sex offenders.

3 B. The Limits of Dual Credit and Time Counted Toward a Probation
4 Duration Review Hearing

5 {15} The general statute plainly provides that “[i]f a defendant is required to serve

6 a period of probation subsequent to a period of incarceration[,] . . . the period of

7 probation shall be served subsequent to any required period of parole, with the time

8 served on parole credited as time served on the period of probation.” Section 31-

9 20-5(B)(1) (emphasis added). It also provides that conditions of probation are

10 “deemed as additional conditions of parole.” Id. The statute then limits the time on

11 parole credited toward probation, stating that where parole is violated and revoked,

12 “the period of parole served in the custody of a correctional facility shall not be

13 credited as time served on probation.” Section 31-20-5(B)(2). Per the latter

14 provision, it is clear that the district court erred in crediting Pelt’s Revocation Time

15 toward his probation duration review hearing. As for the district court’s inclusion of

16 Pelt’s Pre-Release Time, the general statute clearly dictates that Pre-Release Time

17 on parole counts toward probation.

18 {16} The State argues, nonetheless, that the Pre-Release Time does not count

19 toward the five years of supervised probation necessary for a probation duration

20 review hearing. This argument is unclear and underdeveloped, limited to an assertion

10
1 that, “[g]enerally, probation is that time period of supervision served outside of a

2 correctional institution, in regards to a sentence (or that portion of a sentence) which

3 is deferred or suspended.” The State then cites Section 31-20-5(A) and NMSA 1978,

4 Section 31-21-5(A) (1991, amended 2023), the latter of which defines probation in

5 terms of a defendant being “released.” In essence, the State asserts that only the time

6 a probationer serves in the community should count toward entitlement to a

7 probation duration review hearing.

8 {17} That reasoning mirrors the state’s argument in State v. Thompson, which

9 exclusively addressed whether time served on in-house parole counts toward the

10 required parole time served for purposes of a parole duration review hearing. 2022-

11 NMSC-023, ¶¶ 20, 25, 521 P.3d 64. In Thompson, the state argued that the statutory

12 definition of parole required “‘release to the community’” in order for the time

13 served to be credited toward a parole duration review hearing. Id. ¶ 19.

14 {18} In the context of probation, the State’s definitional argument is weaker than it

15 was in Thompson. Unlike parole, probation is not defined with reference to the

16 community. Compare § 31-21-5(A) (1991), with § 31-21-5(B) (1991). Instead,

17 probation is defined as “the procedure under which an adult defendant, found guilty

18 of a crime upon verdict or plea, is released by the court without imprisonment under

19 a suspended or deferred sentence and subject to conditions.” Section 31-21-5(A)

11
1 (1991). That definition does not reference release to the community, and reading in

2 such a requirement would create a conflict between the definition and Section 31-

3 20-5. Section 31-20-5 plainly contemplates a term of probation after a period of

4 imprisonment, providing for how probation and parole are ordered following a

5 period of incarceration. See § 31-20-5(B)(1) (“If a defendant is required to serve a

6 period of probation subsequent to a period of incarceration[,] . . . the period of

7 probation shall be served subsequent to any required period of parole.” (emphasis

8 added)). That section also provides that Pre-Release Time on parole, which is served

9 in a correctional facility, counts towards probation. See Section 31-20-5(B)(1). We

10 decline to read language into the probation statute, particularly language that would

11 contradict other statutory provisions.

12 {19} Further, the provision of the sex-offender-specific statute requiring a

13 probation duration review hearing after the initial five years of supervised probation

14 does not state that the probationer must serve that time outside of a correctional

15 facility in order to warrant the probation duration review hearing. See § 31-20-5.2(B)

16 (“When a sex offender has served the initial five years of supervised probation, at

17 each review hearing the state shall bear the burden of proving to a reasonable

18 certainty that the sex offender should remain on probation.”). Reading that

19 requirement into the statute would result in two clocks running simultaneously: one

12
1 clock that tallies all time on probation, including Pre-Release Time, but which does

2 not count toward a probation duration review hearing, and a second clock that only

3 tracks time served on probation outside a correctional facility solely for purposes of

4 a probation duration review hearing. The State does not provide any justification for

5 that system, let alone a well-reasoned, principled one.

6 {20} Finally, Section 31-20-5(B) ensures that a probationer will serve their term of

7 probation in the community save any Pre-Release Time. That section expressly

8 provides that a sex-offender probationer cannot earn credit for probation while

9 serving parole in a correctional facility following a parole violation. Section 31-20-

10 5(B)(2). And with the conditions of probation serving as additional conditions of

11 parole, a probationer will not earn credit toward their probation duration review

12 hearing while incarcerated for a violation of either set of conditions. See Section 31-

13 20-5(B). Under such a scheme, any concerns about time served in a facility rather

14 than in the community, while salient in the parole context, ring hollow under the

15 probation statutes.

16 III. CONCLUSION

17 {21} The Legislature excepted Revocation Time from the time that counts toward

18 probation but expressly stated that, otherwise, time served on parole counts toward

19 probation. Section 31-20-5(B). The State provides neither authority nor reason to

13
1 discount Pre-Release Time when calculating the time properly credited for a

2 probation duration review hearing. Accordingly, we hold that, under the terms of the

3 general probation statute, § 31-20-5(B), Pre-Release Time counts toward a sex-

4 offender probationer’s five-year probation duration review hearing, but Revocation

5 Time does not. Because the district court included both buckets of time in its order

6 concluding that Pelt is entitled to a probation duration review hearing, we reverse

7 and remand to the district court with instructions to recalculate the time credited

8 toward Pelt’s probation duration review hearing in accordance with this opinion.

9 {22} IT IS SO ORDERED.

10
11 DAVID K. THOMSON, Chief Justice

12 WE CONCUR:

13
14 MICHAEL E. VIGIL, Justice

15
16 C. SHANNON BACON, Justice

17
18 JULIE J. VARGAS, Justice

19
20 BRIANA H. ZAMORA, Justice

14