Habitual offenders may face additional prison time if they violate probation, NM rules

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Defendants must be informed about the possibility of facing additional prison time if their plea agreement involves multiple offenses and they violate probation, the New Mexico Supreme Court said.

The split ruling issued Monday came in the case of a woman who admitted to having prior felony convictions.

The court’s majority affirmed a district judge’s decision to lengthen the sentence of Christina Banghart-Portillo because of probation violations after her release from prison in 2016. She was a little over halfway through a three-year probationary period and had argued that the enhancement for being a habitual offender amounted to double jeopardy.

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The Supreme Court’s majority found that the district court had structured the defendant’s probation as a cumulative amount of time for her two felony convictions rather than individual back-to-back segments of 18 months of probation for each conviction.

The court suggested that language outlining the terms of how a sentence is to be carried out should be specified in plea agreements or risk creating ambiguity.

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The court’s majority wrote that Banghart-Portillo’s written plea agreement was silent about the possibility of enhancement of either count if she violated probation. However, the majority concluded that the district court during the defendant’s sentencing hearing had resolved any ambiguities by informing her of the potential consequences if she violated probation.

In a dissenting opinion, Justice David K. Thomson wrote that allowing the district court to enhance the sentence on the first count violated concepts of double jeopardy. Justice Briana H. Zamora joined in the dissent.

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Banghart-Portillo had pleaded no contest to counts of evidence tampering and conspiracy to commit evidence tampering. She and another man were arrested in 2014 on outstanding warrants. After being booked, a dispatcher saw her attempt to swallow a plastic bag of heroin handed to her by the man.

After multiple probation violations, the district court revoked Banghart-Portillo’s probation and imposed six years of habitual offender time on her sentence.

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