probation revocation hearing in New Mexico

2024But we disavow the Court of Appeals’ bright-line rule and clarify that due process in a probation revocation hearing requires a case-by-case analysis of “the need for, and the utility of, confrontation of a live witness in the context of a particular case.” Guthrie, 2011-NMSC-014, ¶ 2 .

2018Id. ¶¶ 24-25. {91} In Guthrie , we addressed what process is due to a defendant in a probation revocation hearing. 2011-NMSC-014 , ¶¶ 1-2, 150 N.M. 84 , 257 P.3d 904 .

2012See State v. Montoya, 93 N.M. 84, 85 , 596 P.2d 527, 528 (Ct. App. 1979) (appealing the validity of a defendant’s probation revocation hearing); State v. Brusenhan, 78 N.M. 764, 765 , 438 P.2d 174, 175 (Ct. App. 1968) (recognizing the defendant’s right to appeal the revocation of his probation under the rules and statutory provisions in existence at that time).

2012See State v. Montoya, 93 N.M. 84, 85 , 596 P.2d 527, 528 (Ct. App. 1979) (appealing the validity of a defendant’s probation revocation hearing); State v. Brusenhan, 78 N.M. 764, 765 , 438 P.2d 174, 175 (Ct. App. 1968) (recognizing the defendant’s right to appeal the revocation of his probation under the rules and statutory provisions in existence at that time).

2009We stated, quoting State v. Vigil, 97 N.M. 749, 753 , 643 P.2d 618, 622 (Ct.App. 1982), “[wjhile some hearsay is permissible in a probation revocation hearing, when that hearsay is ‘untested for accuracy or reliability, [it] lacks probative value; the result is that the revocation of probation does not rest on a verified fact.’ ” Phillips, 2006-NMCA-001, ¶ 17 , 138 N.M. 730 , 126 P.3d 546 (second alteration in original). {19} In Vigil, we held that the hearsay statement of a confidential informant, as testified to by a detective and as contained in a probation officer’s report, was insufficien

2009We stated, quoting State v. Vigil, 97 N.M. 749, 753 , 643 P.2d 618, 622 (Ct.App. 1982), “[wjhile some hearsay is permissible in a probation revocation hearing, when that hearsay is ‘untested for accuracy or reliability, [it] lacks probative value; the result is that the revocation of probation does not rest on a verified fact.’ ” Phillips, 2006-NMCA-001, ¶ 17 , 138 N.M. 730 , 126 P.3d 546 (second alteration in original). {19} In Vigil, we held that the hearsay statement of a confidential informant, as testified to by a detective and as contained in a probation officer’s report, was insufficien

2019See State v. Sanchez, 2001-NMCA-060, ¶ 13 , 130 N.M. 602 , 28 P.3d 1143 (noting that “a probation revocation hearing is not part of a criminal prosecution” (emphasis added)).

2019See State v. Sanchez, 2001-NMCA-060, ¶ 13 , 130 N.M. 602 , 28 P.3d 1143 (noting that “a probation revocation hearing is not part of a criminal prosecution” (emphasis added)).

2022“Once the state offers proof of a breach of a material condition of probation, the defendant must come forward with evidence to excuse non[]compliance.” Leon, 2013-NMCA-011, ¶ 36 (internal quotation marks and citation omitted). {5} At the probation revocation hearing, the following testimony was given by Davina Garcia, the clerk at the Allsup’s where Defendant was accused of purchasing alcohol and committing attempted robbery.1 Ms. Garcia testified that Defendant was a regular customer at the Allsup’s and purchased a bottle of Crystal Palace vodka with cash. [CD 10/30/20 8:35:40-8:36:29, 8:39:

2017Id. ¶ 26. 3 {18} Despite his reliance on Lucero, it does not support Defendant’s assertion that 4 “[a] defendant has a due process right to contest his termination from the [drug court] 5 program,” which includes a hearing similar to that of a probation revocation hearing. 6 We agree with Defendant that probation revocation hearings are intended to afford a 7 defendant “minimum due process rights to ensure that [the defendant] is heard and 8 that the facts underlying the alleged probation violation are evaluated.” State v. Leon, 9 2013-NMCA-011, ¶ 17 , 292 P.3d 493 (internal quotation marks an

2010On appeal, we review the 12 district court’s decision to revoke probation for an abuse of discretion. [MIO 6] Id. 13 As discussed in our previous notice, among other conditions, Defendant’s 14 probation order required him to register as a sex offender, to notify his probation 15 officer if he moved, and to wear an ankle bracelet. [RP 71-72, 74-76; see generally 16 MIO 2-4] Testimony was introduced at the probation revocation hearing that 17 Defendant: (1) failed to register as a sex offender because he failed to submit an 18 address change; (2) moved without notifying his probation officer; an

2003DISCUSSION A. Identity {7} Defendant argues that the State “failed to prove that the man who appeared in court with defense counsel at the probation revocation hearing was the same person who pled guilty and was named in the probation violation report.” “We review the trial court’s decision to revoke probation under an abuse of discretion standard.” State v. Martinez, 108 N.M. 604, 606 , 775 P.2d 1321, 1323 (Ct.App.1989).

2010Sanchez clarified 19 that a probation revocation hearing “is not a trial on a criminal charge,” but rather “a 20 hearing to determine whether, during the probation or any parole period, the defendant 5 1 has conformed to or breached the course of conduct outlined in the probation or parole 2 order.” Id. at 523 , 612 P.2d at 1334 .

2010Sanchez clarified 19 that a probation revocation hearing “is not a trial on a criminal charge,” but rather “a 20 hearing to determine whether, during the probation or any parole period, the defendant 5 1 has conformed to or breached the course of conduct outlined in the probation or parole 2 order.” Id. at 523 , 612 P.2d at 1334 .

2020Although Defendant is entitled to due process in a probation violation hearing, see id. ¶ 12, “[w]e review [the district] court’s decision to revoke probation under an abuse of discretion standard,” under which, “it must appear the district court acted unfairly or arbitrarily, or committed manifest error.” Green, 2015-NMCA-007, ¶ 22 (alteration, internal quotation marks, and citation omitted). {5} Although there does not appear to have been any evidence at the probation revocation hearing that Defendant in fact received the voicemail left by his probation officer on his private telephone five

2016See Rule 11-1101(D)(3)(d) 14 NMRA (stating that the rules of evidence do not apply to proceedings “revoking 15 probation or supervised release”); see also State v. Green, 2015-NMCA-007, ¶ 30 , 16 341 P.3d 10 (recognizing that the rules of evidence do not apply to probation 17 revocation proceedings).

2016See State v. Orquiz, 2003-NMCA-089, ¶ 4 , 134 11 N.M. 157 , 74 P.3d 91 . 12 {8} We first note, however, that the rules of evidence do not apply to bar the 13 admission of hearsay at a probation revocation hearing.

2016See State v. Orquiz, 2003-NMCA-089, ¶ 4 , 134 11 N.M. 157 , 74 P.3d 91 . 12 {8} We first note, however, that the rules of evidence do not apply to bar the 13 admission of hearsay at a probation revocation hearing.

2014See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”); Guthrie, 2011-NMSC-014, ¶ 10 .

2014See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”); 7 Guthrie, 2011-NMSC-014, ¶ 10 .

2012See State v. Montoya, 93 N.M. 84, 85 , 596 P.2d 527, 528 (Ct. App. 1979) (appealing the validity of a defendant’s probation revocation hearing); State v. Brusenhan, 78 N.M. 764, 765 , 438 P.2d 174, 175 (Ct. App. 1968) (recognizing the defendant’s right to appeal the revocation of his probation under the rules and statutory provisions in existence at that time).

2012See State v. Montoya, 93 N.M. 84, 85 , 596 P.2d 527, 528 (Ct. App. 1979) (appealing the validity of a defendant’s probation revocation hearing); State v. Brusenhan, 78 N.M. 764, 765 , 438 P.2d 174, 175 (Ct. App. 1968) (recognizing the defendant’s right to appeal the revocation of his probation under the rules and statutory provisions in existence at that time).

2010Id. (internal quotation marks and citation omitted). 7 In State v. Chavez (Chavez II), 102 N.M. 279, 282 , 694 P.2d 927, 930 (Ct. App. 8 1985), this Court articulated more defined factors to be considered in determining 9 whether a probation revocation hearing satisfied the less than complete due process 10 rights afforded probationers.

2010Id. (internal quotation marks and citation omitted). 7 In State v. Chavez (Chavez II), 102 N.M. 279, 282 , 694 P.2d 927, 930 (Ct. App. 8 1985), this Court articulated more defined factors to be considered in determining 9 whether a probation revocation hearing satisfied the less than complete due process 10 rights afforded probationers.

2009Consequently, the Sixth Amendment’s Confrontation Clause, which grants to criminal defendants the right to confront adverse witnesses, does not apply to probationers.” (citations omitted)); see also State v. Sanchez, 109 N.M. 718, 719 , 790 P.2d 515, 516 (Ct.App.1990) (stating that a probation revocation hearing is not a criminal prosecution).

2009Consequently, the Sixth Amendment’s Confrontation Clause, which grants to criminal defendants the right to confront adverse witnesses, does not apply to probationers.” (citations omitted)); see also State v. Sanchez, 109 N.M. 718, 719 , 790 P.2d 515, 516 (Ct.App.1990) (stating that a probation revocation hearing is not a criminal prosecution).

2025See State v. Neal, 2007-NMCA-086, ¶ 36 , 142 N.M. 487 , 167 P.3d 935 (reviewing the admission of evidence at a probation revocation hearing for an abuse of discretion).

2025See State v. Neal, 2007-NMCA-086, ¶ 36 , 142 N.M. 487 , 167 P.3d 935 (reviewing the admission of evidence at a probation revocation hearing for an abuse of discretion).

2014State v. Martinez, 17 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 . 18 COURT FAILURE TO REVERSE PLEA AGREEMENT 11 1 {20} Citing State v. Franklin, 1967-NMSC-151 , 78 N.M. 127 , 428 P.2d 982 and 2 State v. Boyer, 1985-NMCA-029 , 103 N.M. 655 , 712 P.2d 1 , Defendant argues that 3 the judge at the probation revocation hearing erred by failing to order the underlying 4 plea withdrawn.

2014State v. Martinez, 17 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 . 18 COURT FAILURE TO REVERSE PLEA AGREEMENT 11 1 {20} Citing State v. Franklin, 1967-NMSC-151 , 78 N.M. 127 , 428 P.2d 982 and 2 State v. Boyer, 1985-NMCA-029 , 103 N.M. 655 , 712 P.2d 1 , Defendant argues that 3 the judge at the probation revocation hearing erred by failing to order the underlying 4 plea withdrawn.

2014State v. Martinez, 17 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 . 18 COURT FAILURE TO REVERSE PLEA AGREEMENT 11 1 {20} Citing State v. Franklin, 1967-NMSC-151 , 78 N.M. 127 , 428 P.2d 982 and 2 State v. Boyer, 1985-NMCA-029 , 103 N.M. 655 , 712 P.2d 1 , Defendant argues that 3 the judge at the probation revocation hearing erred by failing to order the underlying 4 plea withdrawn.

2014State v. Martinez, 17 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 . 18 COURT FAILURE TO REVERSE PLEA AGREEMENT 11 1 {20} Citing State v. Franklin, 1967-NMSC-151 , 78 N.M. 127 , 428 P.2d 982 and 2 State v. Boyer, 1985-NMCA-029 , 103 N.M. 655 , 712 P.2d 1 , Defendant argues that 3 the judge at the probation revocation hearing erred by failing to order the underlying 4 plea withdrawn.

2026See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris,

2025See State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (holding that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3 , 297 P.3d 374 .

2026See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris,

2026See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris,

2009We stated, quoting State v. Vigil, 97 N.M. 749, 753 , 643 P.2d 618, 622 (Ct.App. 1982), “[wjhile some hearsay is permissible in a probation revocation hearing, when that hearsay is ‘untested for accuracy or reliability, [it] lacks probative value; the result is that the revocation of probation does not rest on a verified fact.’ ” Phillips, 2006-NMCA-001, ¶ 17 , 138 N.M. 730 , 126 P.3d 546 (second alteration in original). {19} In Vigil, we held that the hearsay statement of a confidential informant, as testified to by a detective and as contained in a probation officer’s report, was insufficien

2009We stated, quoting State v. Vigil, 97 N.M. 749, 753 , 643 P.2d 618, 622 (Ct.App. 1982), “[wjhile some hearsay is permissible in a probation revocation hearing, when that hearsay is ‘untested for accuracy or reliability, [it] lacks probative value; the result is that the revocation of probation does not rest on a verified fact.’ ” Phillips, 2006-NMCA-001, ¶ 17 , 138 N.M. 730 , 126 P.3d 546 (second alteration in original). {19} In Vigil, we held that the hearsay statement of a confidential informant, as testified to by a detective and as contained in a probation officer’s report, was insufficien

2026See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris,

2026See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”); State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (stating that “[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact,” and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris,

2026See State v. Orosco, 1991-NMCA-084 , ¶¶ 34-36, 113 N.M. 789 , 833 P.2d 1155 (stating that a court “will not attempt to second-guess tactics and strategy of trial counsel,” and noting that calling a witness was a “risky proposition”).

2026See State v. Orosco, 1991-NMCA-084 , ¶¶ 34-36, 113 N.M. 789 , 833 P.2d 1155 (stating that a court “will not attempt to second-guess tactics and strategy of trial counsel,” and noting that calling a witness was a “risky proposition”).