State v. Wing

                                                               Office of the Director      New Mexico
                                                                15:31:31 2022.03.14        Compilation
                                                                              '00'06-      Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 20, 2021

No. A-1-CA-38763

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

DONALD WING a/k/a
DONALD WING III,

      Defendant-Appellant.

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

Certiorari Denied, February 15, 2022, No. S-1-SC-39182. Released for Publication
March 22, 2022.

Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

ATTREP, Judge.

{1}    Defendant Donald Wing III appeals his conviction and sentence for possession of
a controlled substance (methamphetamine), in violation of NMSA 1978, Section 30-31-
23(A) (2011, amended 2021), following entry of a guilty plea conditioned on his right to
appeal the denial of his motion to suppress. Because we conclude Defendant’s
proximity to the scene of a recent crime, in conjunction with all the surrounding
circumstances, gave rise to reasonable suspicion in this case, we affirm the district
court’s denial of Defendant’s suppression motion. In this appeal, Defendant also
contends that we must remand for resentencing because the district court did not afford
him the opportunity to allocute prior to sentencing. The State counters that, by entering
into a plea and disposition agreement, Defendant waived his right to raise the allocution
violation on appeal. We do not agree with the State on this point. We hold that the entry
of a valid guilty plea and appellate waiver does not operate to waive the right to appeal
an allocution violation that occurred at sentencing. Because the district court did not
afford Defendant the right of allocution, we reverse Defendant’s sentence and remand
for resentencing.

MOTION TO SUPPRESS

{2}    As for the district court’s suppression ruling, Defendant argues the court erred in
concluding that his encounter with law enforcement was consensual and in alternatively
concluding that the encounter, if nonconsensual, was supported by reasonable
suspicion. Assuming for purposes of this opinion that Defendant indeed was seized at
the inception of the encounter, we conclude that reasonable suspicion supported the
stop of Defendant, and we affirm the district court’s denial of his suppression motion on
this basis. Cf. State v. Ortiz, 

, 

, 

(observing that this Court may uphold a district court’s decision to dismiss charges on
any of the grounds underlying its decision).

I.    Background

{3}     While on patrol in his marked vehicle, at around 1:15 a.m. on a cold January day,
Farmington Police Officer Matthew Burns observed at least two individuals in an empty
lot appearing to dump a large piece of trash from the back of a truck. Officer Burns
testified that there were numerous issues with this lot, including unwanted subjects and
people dumping trash there. Upon seeing the truck in the lot, Officer Burns turned his
vehicle around and drove in the direction of the street where he believed he saw the
truck traveling. By the time Officer Burns got to the street, the truck was gone, but
Defendant was there walking a bicycle. Without activating his patrol lights or telling
Defendant to stop, Officer Burns approached Defendant and asked him about the
activity in the lot. Defendant immediately admitted to dumping trash there.

{4}    Officer Burns estimated that between when he saw the truck on the lot and when
he came in contact with Defendant, only a minute or two had passed; he also estimated
that the distance between Defendant and the lot was “pretty close,” roughly 100 yards.
Defendant was the only person around at that time, and Officer Burns testified that it
was unusual for anyone to be out, given it was a cold, January morning. When asked if
he specifically saw Defendant or his bicycle, which had distinctive lights through the
spokes, on the lot, Officer Burns answered that it was dark and he could see a couple
subjects but he did not provide any description of the subjects and could not say
whether Defendant was one of them. Officer Burns further stated that he did not recall
seeing the bicycle on the lot because he was focused on the truck at the time.
{5}    After obtaining Defendant’s name and date of birth, Officer Burns learned of an
outstanding warrant for Defendant’s arrest, and he placed Defendant under arrest. Prior
to being booked at the local detention center, Defendant was searched and
methamphetamine and drug paraphernalia were found on Defendant’s person; this
discovery led to the charges in this case. Defendant moved to suppress both the
evidence found on his person and a statement he made when officers discovered the
methamphetamine. Defendant’s motion alleged that he “was seized . . . when Officer . .
. Burns saw [Defendant] walking his bicycle and began to question him about what he
was doing in the dirt lot” and that this seizure was unconstitutional because Officer
Burns lacked reasonable suspicion. The State’s written response to the motion, as well
as the parties’ presentations to the district court at the suppression hearing, focused on
whether reasonable suspicion existed to link Defendant to the trash dumping.

{6}    After taking the matter under advisement, the district court entered a written
order denying Defendant’s motion on alternative grounds. The court first ruled that
Defendant’s constitutional rights were not implicated because Officer Burns had not
seized Defendant prior to his admission that he dumped trash in the lot. Alternatively,
acknowledging the State effectively conceded that a seizure occurred, the district court
ruled that the seizure of Defendant, prior to his admission, was supported by reasonable
suspicion. Defendant appeals the district court’s denial of his suppression motion,
pursuant to his conditional plea.

II.     Because Reasonable Suspicion Supported the Stop of Defendant, We
        Affirm the Denial of Defendant’s Suppression Motion

{7}    Defendant makes numerous contentions directed at explaining why the district
court erred in concluding that Defendant’s initial encounter with Officer Burns was
consensual and therefore not a seizure. Because we agree with the district court’s
alternative ruling—i.e., that the stop of Defendant was supported by reasonable
suspicion—we need not and do not address Defendant’s arguments about the
encounter being nonconsensual.

A.      Standard of Review

{8}    Defendant argues that under both the Fourth Amendment to the United States
Constitution and Article II, Section 10 of the New Mexico Constitution, his seizure was
unreasonable. 1 See Yazzie, 

 (“The United States and the New
Mexico Constitutions provide overlapping protections against unreasonable searches
and seizures.” (alteration, internal quotation marks, and citation omitted)). It is well
established that “a police officer may detain an individual in investigating potential


1Defendant, however, does not assert that the New Mexico Constitution affords him greater protection
than the United States Constitution. In light of this and because our courts “have never interpreted the
New Mexico Constitution to require more than a reasonable suspicion that the law is being or has been
broken to conduct a temporary, investigatory traffic stop,” we apply the same reasonable suspicion
standard under both the state and federal constitutions. State v. Yazzie, 

, 

.
criminal activity where the officer has formed a reasonable suspicion the individual is
breaking, or has broken, the law”—such detention is not constitutionally unreasonable.
State v. Salazar, 

, ¶ 12, 

 (internal quotation marks and
citation omitted).

{9}     “A reasonable suspicion is a particularized suspicion, based on all the
circumstances that a particular individual, the one detained, is breaking, or has broken,
the law.” State v. Hubble, 

, 

, 

 (internal
quotation marks and citation omitted). “We will find reasonable suspicion if the officer is
aware of specific articulable facts, together with rational inferences from those facts,
that, when judged objectively, would lead a reasonable person to believe criminal
activity occurred or was occurring.” 

 (internal quotation marks and citation omitted).
“The level of suspicion required for an investigatory stop is considerably less than proof
of wrongdoing by a preponderance of the evidence.” State v. Urioste, 

, 

, 

 (internal quotation marks and citation omitted).

{10} Because Defendant does not challenge the district court’s factual findings,
whether reasonable suspicion supported the stop is a legal question we review de novo.
See Yazzie, 

. “On appeal, we must review the totality of the
circumstances and must avoid reweighing individual factors in isolation.” State v.
Martinez, 

, 

. In doing this, we view the facts “in a
manner most favorable to the prevailing party,” indulge “all reasonable inferences in
support of the court’s decision,” and disregard “all inferences or evidence to the
contrary[.]” State v. Werner, 

, ¶ 10, 

, 

(internal quotation marks and citation omitted).

B.     Defendant’s Proximity to the Scene of a Recent Crime, in Conjunction With
       All the Surrounding Circumstances, Gave Rise to Reasonable Suspicion

{11} Defendant does not contend Officer Burns lacked reasonable suspicion that trash
had been illegally dumped in the lot. Instead, Defendant contends the officer lacked
reasonable suspicion that Defendant, in particular, was involved in this offense. Thus,
our inquiry is limited to whether, based on the totality of the circumstances, Officer
Burns’ suspicion that Defendant was involved in the illegal dumping was reasonable.
The district court ruled that it was. Defendant on appeal makes several arguments why
this was error, chief among them that Officer Burns relied exclusively on Defendant’s
proximity to the scene of the crime, which Defendant contends was insufficient to form a
reasonable suspicion.

{12} In advancing this argument, Defendant does not contend proximity to the scene
of a recent crime is irrelevant when assessing the reasonableness of a stop. Any such
contention would be contrary to precedent. When viewed in conjunction with all the
circumstances known to an officer, proximity to the scene of a recent crime may prove
significant in determining the reasonableness of a suspicion. State v. Watley, 1989-
NMCA-112, 

, 

, illustrates this point. In Watley, the officer
received a report in the early morning hours of a rape in the immediate area he was
patrolling. Id. ¶ 15. The only additional facts known to the officer were that the suspect
was Hispanic and there was a person wearing a ski mask running north on a nearby
street. Id. The officer then stopped the defendant, who was traveling north in a truck on
the nearby street and was the only one around. Id. Even though the defendant did not
match the minimal description known to the officer (i.e., the defendant was not Hispanic,
was not wearing a ski mask, and was not on foot), this Court concluded the
circumstances supported the stop. Id. ¶¶ 17-18. Watley considered it significant that
“[the] defendant was stopped in the early morning hours a short distance from the area
where an alleged crime had been committed and where a man had been seen running
toward the vicinity where [the] defendant was stopped” and that the defendant was the
only person in the area. Id. ¶¶ 17-18. Based on these facts, this Court held the officer
“could reasonably have concluded that [the] defendant may have been involved in the
commission of the reported offense.”2 Id. ¶ 17.

{13} In other cases, this Court likewise has concluded that proximity to the scene of a
recent crime—in conjunction with appropriate circumstances—may support reasonable
suspicion. See, e.g., State v. Lovato, 

, ¶¶ 2-4, 11-14, 

,

 (concluding there was reasonable suspicion supporting a vehicular stop to
investigate a reported drive-by shooting where “the incident . . . occurred around
midnight, the car . . . met the general description radioed by the police dispatcher, and
there was no other vehicular traffic in the area”); State v. Jimmy R., 

, 

, 

 (concluding the officer had reasonable suspicion for
an investigative stop because the subjects, who alone were in the vicinity of reported
criminal activity, began walking away when the officer drove up); State v. Ortiz, 2017-
NMCA-006, ¶¶ 14-15, 

 (concluding the officer had reasonable suspicion to
stop the defendant where, notwithstanding the lack of suspect’s description, the
defendant was the only person in the vicinity of a recent report of suspicious activity, at
an hour “when it [was] objectively reasonable to infer there were no other individuals
present and that the business was not open[,]” and the defendant’s behavior was
suspicious given the time of day and location). 3



2After reaching this conclusion, the Court in Watley went on to discuss facts the officer observed after the
stop. See 

, ¶ 19. Such facts, however, cannot be used to support the lawfulness of a
stop, so we give them no consideration. See State v. Jason L., 

, ¶ 20, 

, 

 (“Reasonable suspicion must exist at the inception of the seizure. The officer cannot rely on
facts which arise as a result of the encounter.” (citation omitted)).
3Commentators and numerous other courts have reached similar conclusions. See, e.g., 4 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(h) (6th ed. 2021) (discussing, in
the context of a stop related to recent criminal activity in the area, what combination of facts and
circumstances will suffice to establish a “reasonable possibility” that the person stopped committed the
offense, and identifying as considerations “(1) the particularity of the description of the offender or the
vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by
such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4)
the known or probable direction of the offender’s flight; (5) observed activity by the particular person
stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other
criminality of the type presently under investigation”); United States v. Goodrich, 

(3d Cir. 2006) (upholding the validity of the stop, notwithstanding imprecise description of the suspect,
because other relevant factors, including (1) the reputation of the area for criminal activity of the type
{14} In contrast to Watley, and similar cases cited above, State v. Garcia, 2009-
NMSC-046, 

, 

, upon which Defendant principally relies, 4
illustrates the type of situation in which proximity to the scene of a recent crime proves
insufficient in light of the totality of the circumstances. In Garcia, our Supreme Court
determined that “seizing [the d]efendant because he was near the address where the
yet-uninvestigated ‘possible domestic’ had occurred was unreasonable because the
officer had no articulable, particularized suspicion that [the d]efendant was breaking or
had broken the law.” 

. The Court reached this conclusion for two
reasons. First, “the officer had no information that a crime had been or was being
committed[,]” 

 ¶ 45—a situation not at issue in this case, given Officer Burns’ direct
observation of illegal dumping. Second, “even had the officer known that a crime had
been committed,” the Court in Garcia observed, “the fact that [the d]efendant was
merely walking in the vicinity was not necessarily sufficient to support a reasonable
suspicion that [the d]efendant was the responsible party.” Id. ¶ 46 (emphasis added).
The facts—or more aptly the absence thereof—that made the defendant’s proximity to
the scene of a crime insufficient in Garcia included that the officer had no description of
the suspect and the defendant was merely on the same block as the supposed crime at
7:00 p.m., a time when it is not unusual for people to be walking in the streets. Id. Given
these circumstances, the Court concluded, “[t]he connection between [the d]efendant
and any crime that may have been in progress was too attenuated to constitute
reasonable suspicion.” Id.

{15} With the foregoing precedents in mind, we turn to the totality of the
circumstances here. The specific articulable facts and rational inferences place this
case closer to the circumstances in Watley than those in Garcia, and we similarly
conclude that they gave rise to reasonable suspicion. In this case, around 1:15 a.m. on
a January day, Officer Burns witnessed at least two individuals appearing to dump trash
from the back of a truck in an empty lot that is known for exactly this type of criminal
activity. See State v. Martinez, 

, 

 (“[W]here an

suspected; (2) the time of day; (3) the geographical and temporal proximity of the stop to the scene of the
alleged crime; and (4) the number of persons in the area, “tend[ed] to more narrowly define the universe
of potential suspects and thereby constrain police discretion”); People v. Brown, 

(Cal. 2015) (concluding, notwithstanding lack of suspect description, that reasonable suspicion existed
where the deputy arrived at the scene of a fight within three minutes of dispatch; it was 10:30 p.m.; the
defendant was the only person, and in the only vehicle, near the scene; and the defendant first drove
away from, then drove back toward, the scene); State v. Johnson, 

, 

 (per curiam) (concluding that reasonable suspicion existed where it was early morning; the
officer knew that a casino had been robbed seconds beforehand; the defendant was stopped four blocks
from the casino; there were no other vehicles moving away from the casino; and the location of the
vehicle was on a logical escape route).
4On appeal, Defendant additionally relies on State v. Eric K., 

, 

, 

. Eric K. appears to be another example of a situation where proximity to the scene of a recent crime
proves insufficient in light of the totality of the circumstances. Unfortunately, the opinion contains little
explanation why the circumstances of that case proved insufficient, so it is difficult to glean much on this
point from Eric K. We do, however, observe that Eric K. involved numerous circumstances not at play in
this case—e.g., the report was from a 911 caller (the identity of whom was unknown); the specific location
of the alleged crime was unknown; it was mid-afternoon; and other people were in the vicinity at the time
of the stop. Id. ¶¶ 2-5. Given these circumstances, we can appreciate why this Court concluded that
reasonable suspicion did not exist. See id. ¶¶ 23-24.
officer is patrolling an area known as a site where a particular type of crime is prevalent
and stops an individual on suspicion that he or she has potentially committed the very
crime that occurs with frequency in that area, then the assertion that the area in
question is a high-crime area is quite acceptable if not essential to understanding and
judging the merits of the officer’s suspicion.”). Although Officer Burns drove in the
direction he believed he saw the truck travel, by the time he arrived there, only about
one to two minutes later, the truck was gone, and Defendant was the only individual in
the vicinity. 5 The stop occurred in “pretty close proximity” to the illegal dumping, about
100 yards from the lot. It was unusual for anyone to be out given the time of day and the
conditions. Considering all these circumstances together—that Defendant was in close
temporal and physical proximity to the scene of a crime, known for exactly the same
type of crime suspected, that Defendant was found in the area where the truck involved
in the crime was seen leaving, that Defendant was the only individual in the vicinity, and
that it was late at night and unusual for anyone to be out—Officer Burns reasonably
could have concluded that Defendant, in particular, was involved in the illegal dumping
he had just witnessed. See, e.g., Watley, 

, ¶¶ 17-18 (concluding that
similar circumstances gave rise to reasonable suspicion); Goodrich, 

(same). Given the circumstances in their totality, this is not the type of situation, as
Defendant suggests, where proximity to the scene of a recent crime proves insufficient.

{16} Nor are Defendant’s remaining arguments in support of a contrary conclusion
persuasive. Defendant contends that Officer Burns did not see him or his distinctivelooking bicycle on the lot and that there otherwise was nothing directly linking Defendant
to the illegal dumping. Relatedly, Defendant contends that it was entirely possible that
he just happened to be walking in the area at the time the illegal dumping occurred.
These arguments misapprehend the level of certainty necessary to support an
investigative detention. While “particularized suspicion,” based on all the circumstances
known to the officer, that the individual detained is breaking or has broken the law is
necessary to render the stop reasonable, officers “need not limit themselves to their
direct observations in developing suspicions, and they need not exclude all possible
innocent explanations of the facts and circumstances they observe.” Salazar, 2019-
NMCA-021, ¶ 16 (internal quotation marks and citation omitted); see also Martinez,

 (“The possibility of an innocent explanation does not deprive the
officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (internal
quotation marks and citation omitted)). Indeed, “sufficient probability, not certainty, is the
touchstone of reasonableness under the Fourth Amendment.” Yazzie, 

,


5The fact that Defendant, when stopped, was traveling on foot and not in the truck, does not make Officer
Burns’ suspicion unreasonable. See Watley, 

, ¶¶ 17-18 (upholding stop of vehicle when
suspect seen fleeing on foot); Brown, 

 (upholding stop of vehicle even though the
officer did not know if suspect was on foot or in vehicle). Officer Burns observed multiple people engaged
in illegal dumping; and while it was possible that all involved departed together in the truck, as Defendant
surmises, it also was possible that the suspects departed separately or parted ways before Officer Burns
reached the street where the truck was seen traveling since, as the district court observed, “it would only
take one person to drive the truck away.” See Yazzie, 

 (“The requirement of
reasonable suspicion is not a requirement of absolute certainty[.]” (alteration, internal quotation marks,
and citation omitted)); Werner, 

, ¶ 10 (recognizing that all reasonable inferences in
support of the district court’s decision should be indulged).
¶ 33 (internal quotation marks and citation omitted); see also id. ¶ 22 (providing that
“where conduct justifying the stop was ambiguous and susceptible of an innocent
explanation, officers could detain the individuals to resolve the ambiguity” (alteration,
omission, internal quotation marks, and citation omitted)); Salazar, 

, ¶¶
3, 5-6, 19 (concluding that a stop was reasonable notwithstanding that the officer lost
sight of the vehicle observed evading a DWI checkpoint and was uncertain whether the
vehicle stopped was the target vehicle).

{17} As we have discussed, there was a sufficient probability that Defendant was
involved in the illegal dumping, thereby making the stop of Defendant, if any,
reasonable. The district court’s denial of Defendant’s suppression motion is affirmed.

ALLOCUTION

{18} Defendant’s second claim of error is that he was denied the right to allocution at
his sentencing hearing and, as a result, is entitled to resentencing. The State does not
disagree that Defendant’s right to allocution was violated. Instead, the State contends
that Defendant’s entry into a plea and disposition agreement bars all but claims of
jurisdictional defects, which, the State contends, allocution errors are not. In response,
Defendant argues first that the scope of the appellate waiver in the plea and disposition
agreement did not encompass allocution errors and second that the allocution violation
is indeed a jurisdictional defect. Because we agree with Defendant’s second argument,
we address this point only. We conclude that the denial of the right to allocution renders
the ensuing sentence unauthorized by statute—a jurisdictional defect that may be
appealed notwithstanding the entry of a valid guilty plea and appellate waiver. Because
Defendant was denied the right of allocution, we remand for resentencing in this case.

I.    Background

{19} Defendant and the State entered into a plea and disposition agreement in which
Defendant agreed to plead guilty to possession of a controlled substance in this case
and another case. The State in turn agreed to dismiss the remaining charges in both
cases. The plea and disposition agreement contained “[n]o agreement as to
sentencing[,]” but the State did not oppose the sentences in the two cases being
suspended and run concurrently. In relevant part, the plea and disposition agreement
read:

      [D]efendant gives up any and all motions, defenses, objections or
      requests which [he] has made or raised, or could assert hereafter, to the
      court’s entry of judgment and imposition of a sentence consistent with this
      agreement. [D]efendant waives the right to appeal the conviction that
      results from the entry of this plea agreement.

Excepted from this waiver was Defendant’s right to appeal the district court’s
suppression ruling in this case.
{20} The district court held a sentencing hearing in the two cases governed by the
plea and disposition agreement, as well as in a third case in which Defendant also
pleaded guilty to possession of a controlled substance. Only the State, defense counsel,
and an individual from treatment court were invited to speak at the hearing. As the
individual from treatment court was speaking, Defendant interjected, expressing
disagreement with one of the stated assertions. Aside from this, Defendant neither
spoke, nor was he ever invited to address the court prior to imposition of the sentence.
At the conclusion of the hearing, the district court sentenced Defendant within the
statutory maximum punishment. Defendant appealed the judgment and sentence as to
this case only; he did not appeal the judgment and sentence as to the other two cases.

II.     An Allocution Violation Can Be Raised on Appeal Notwithstanding the
        Entry of a Valid Guilty Plea and Appellate Waiver

{21} The question we resolve today is one we consider de novo: whether the denial of
the right to allocution is a jurisdictional defect that may be raised on appeal,
notwithstanding the entry of a valid guilty plea and appellate waiver. See State v.
Chavarria, 

, 

, 

 (providing that
“[q]uestions regarding subject matter jurisdiction are questions of law which are subject
to de novo review” (internal quotation marks and citation omitted)). We begin by briefly
reviewing the contours of the right to allocution in New Mexico. We then discuss the
usual effect of the waiver made in a valid guilty plea and appellate waiver. Recognizing
that our Supreme Court has deemed jurisdictional defects—i.e., sentences not
authorized by statute—as the only types of sentencing claims that may be raised on
appeal in this context, we examine whether allocution violations constitute such defects,
and ultimately determine that they do. Our conclusion rests on longstanding principles
that a court’s sentencing authority derives exclusively from statute; that the Criminal
Sentencing Act (the Act), NMSA 1978, §§ 31-18-12 to -26 (1977, as amended through
2020), plainly mandates that the opportunity for allocution be provided at every felony
sentencing proceeding; and that a court’s failure to afford this right renders the sentence
invalid.

A.      The Right to Allocution in New Mexico

{22} The right to allocution in New Mexico has been expansively applied and
guardedly protected. “Allocution is defined as the formal inquiry or demand made by the
court or clerk to [the] accused at the time for pronouncing sentence as to whether [the]
accused has anything to say why sentence should not be pronounced on him.” State v.
Setser, 

, 

, 

 (internal quotation marks
and citation omitted). The common law doctrine of allocution, also known as allocutus,
is codified in the Act and applies to all felony offenses. 6 See Tomlinson v. State, 1982-

6This Court has extended the right to allocution to a variety of other types of proceedings. See State v.
Williams, 

, 

 (probation revocation proceedings), cert. denied, 2021-
NMCERT-___ (No. S-1-SC-38732, Mar. 31, 2021); State v. Leyba, 

, 

,

 (habitual offender proceedings); State v. Ricky G., 

, ¶ 13, 

,

 (children’s court proceedings). But see State v. Stenz, 

, ¶¶ 15-21, 109
NMSC-074, ¶¶ 9-12, 

, 

 (holding that “Section 31-18-15.1
extends the common law doctrine of allocutus to non-capital felonies as enumerated in
Section 31-18-15 and that the trial judge must give the defendant an opportunity to
speak before he pronounces sentence”). In modern-day sentencing, allocution serves
many important functions. Predominantly, allocution “provid[es] an avenue through
which a defendant may ask for mercy based on factors that might not otherwise be
brought to the court’s attention, and promot[es] safety, certainty and equity in
sentencing and the judicial process overall.” Williams, 

 (internal
quotation marks and citation omitted). Even where a defendant’s statements can have
little or no practical impact on the sentencer—such as where the court must apply
habitual offender enhancements—allocution still is required and serves a meaningful
purpose. See Leyba, 

 (providing that “the opportunity to
personally address the sentencer retains both symbolic and practical significance . . .
[and] may increase for some defendants the perceived equity of the process” (internal
quotation marks and citation omitted)). An allocution violation in New Mexico renders
the sentence invalid, resulting in the remedy of reversal and resentencing without
inquiry into the harm the violation may have caused. See Tomlinson, 

,
¶¶ 11-12 (rejecting the argument that an allocution violation is “harmless error” and
reasoning that “[t]here is no substitute for the impact on sentencing which a defendant’s
own words might have if he chooses to make a statement” (internal quotation marks
and citation omitted)).

B.      A Valid Guilty Plea and Appellate Waiver Waives a Defendant’s Right to
        Appeal All Non-Jurisdictional Defects and Errors Not Otherwise Reserved

{23} We turn next to the effect of a valid guilty plea and appellate waiver on a
defendant’s right to appeal. As an initial matter, we note that our discussion here applies
only when the defendant does not explicitly reserve the matter he or she seeks to raise
on appeal. While the New Mexico Constitution confers to an aggrieved party an
absolute right to one appeal, see N.M. Const. art. VI, § 2, our Supreme Court has
determined this right may be waived. In particular, “ ‘a plea of guilty or nolo contendere,
when voluntarily made after advice of counsel and with full understanding of the
consequences, waives objections to prior defects in the proceedings’ ” and, according to
the Court, “ ‘also operates as a waiver of statutory or constitutional rights, including the
right to appeal’ ” a conviction and sentence. 7 Chavarria, 

, 

, 

 (declining to extend the right to allocution to misdemeanor sentencing
proceedings in the absence of a statute or rule establishing the same).
7This language in Chavarria could be read as stating that a defendant’s plea of guilty or nolo contendere
in and of itself, in the absence of an appellate waiver, has the effect of waiving a defendant’s right to
appeal the deprivation of all statutory and constitutional rights, even those occurring after entry of the
defendant’s plea. See 

, ¶ 9. If such were the case, we might question its accuracy. See,
e.g., Tollett v. Henderson, 

 (1973) (“When a criminal defendant has solemnly admitted
in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea.” (emphasis added)), cited with approval in State v. Hodge, 

, ¶ 14, 

, 

. We, however, have no occasion to consider this matter today. Like Chavarria,
Defendant’s plea and disposition agreement contained an appellate waiver, see 

,
(quoting Hodge, 

, ¶ 14). However, “a plea agreement may not waive
the right to challenge on appeal whether a sentence was imposed without jurisdiction.”
State v. Tafoya, 

, 

, 

; see also Chavarria,

 (providing that a voluntary guilty plea ordinarily waives a
defendant’s right to appeal on “other than jurisdictional grounds” (internal quotation
marks and citation omitted)); State v. Trujillo, 

, 

, 

 (“[A] plea of guilty does not waive jurisdictional errors.”); Rule 12-321(B)(1)
NMRA (providing that the “[s]ubject matter jurisdiction of the trial or appellate court may
be raised at any time”).

{24} In this case, Defendant does not challenge the validity of his plea and only
specifically reserved the right to appeal the district court’s suppression ruling.
Accordingly, whether Defendant may raise the allocution violation on appeal turns on
whether that claim is jurisdictional. See Chavarria, 

. We must
therefore examine the meaning of “jurisdictional” in this context, a subject our Supreme
Court addressed in Chavarria. The Court there explained that “[t]he only relevant inquiry
in determining whether the court has subject matter jurisdiction is to ask whether the
matter before the court falls within the general scope of authority conferred upon such
court by the constitution or statute.” Id. ¶ 11 (alteration, internal quotation marks, and
citation omitted). Further, “a court’s sentencing power properly is considered part of its
subject matter jurisdiction[,]” Tafoya, 

, and “is derived exclusively
from statute[,]” Chavarria, 

 (internal quotation marks and citation
omitted). See also State v. Frawley, 

, 

, 

(“No point of law has longer been established in New Mexico than the rule that the
prescription of the mode of punishment is pre-eminently a rightful subject of legislation.”
(alterations, internal quotation marks, and citation omitted)), superseded by statute on
other grounds as recognized by State v. Quintana, 

, 

. In particular, the Act “confers authority on the trial court to impose a criminal
sentence in accordance with its provisions.” Chavarria, 

(emphasis added); accord § 31-18-13(A) (“[A]ll persons convicted of a crime under the
laws of New Mexico shall be sentenced in accordance with the provisions of the [Act.]”).
Thus, our Supreme Court explained, whether a sentencing court acts within its
jurisdiction in this context hinges on whether the defendant’s sentence was authorized
by the Act. Chavarria, 

; see also State v. Sinyard, 1983-
NMCA-150, ¶ 1, 

, 

 (providing that the defendant’s “claim that
the sentence is unauthorized by statute is jurisdictional”); cf. State v. Wyman, 2008-
NMCA-113, ¶ 2, 

, 

 (“A claim that a sentence is illegal and
unauthorized by statute is jurisdictional and may be raised for the first time on appeal.”).

{25} Applying these principles in Chavarria, the Court determined that the defendant’s
claim of unconstitutional cruel and unusual punishment did not implicate the sentencing
court’s jurisdiction. 

. Observing that the defendant’s life
sentence was explicitly authorized by certain provisions of the Act, the Court concluded
that the trial court did not exceed its sentencing jurisdiction and that the defendant’s

and we assume for purposes of our analysis that this waiver would have been effective in waiving all non-jurisdictional defects at Defendant’s sentencing hearing.
claim could not be raised on appeal in light of his guilty plea and appellate waiver. Id. ¶¶
10, 13-14. In contrast, the Court observed, a claim that a sentence was not authorized
by the Act—such as, for example, a claim that probation could not be imposed after a
sentence was partially suspended, see Sinyard, 

, ¶ 1—was
jurisdictional and accordingly could be raised on appeal, notwithstanding the entry of a
guilty plea and appellate waiver. See Chavarria, 

; see also, e.g.,
Tafoya, 

 (affirming that the defendant, by pleading no
contest, did not waive the right to appeal a claim that the district court erroneously
applied the Earned Meritorious Deductions Act in fashioning his sentence); Trujillo,

 (treating as a jurisdictional matter the issue of whether a
district court could adjudicate habitual offender proceedings, where the original plea and
disposition agreement was silent on the question); State v. Shay, 

, 

, 

 (reversing imposition of habitual offender enhancements,
notwithstanding that the defendant agreed in his plea to the enhancement, because the
issue involved “an illegal sentence, which is a jurisdictional issue”).

C.      The Violation of a Defendant’s Right to Allocution Renders the Ensuing
        Sentence Unauthorized by the Act

{26} To determine whether a sentence rendered without affording a defendant the
right to allocution is unauthorized by the Act—and thus presents a jurisdictional defect
that may be raised on appeal notwithstanding the entry of a valid guilty plea and
appellate waiver—we examine the source and nature of the right in New Mexico. 8
Because the common law doctrine of allocution was extended to all felonies as part of
the Act’s mandatory sentencing procedures for felony offenses, see Tomlinson, 1982-
NMSC-074, ¶ 12, we turn first to the Act. Again, the Act provides that “all persons
convicted of a crime under the laws of New Mexico shall be sentenced in accordance
with the provisions of the [Act.]” Section 31-18-13(A) (emphasis added). Beyond
dictating the terms of imprisonment and maximum fines for given offenses, see § 31-18-
15(A), (E), the Act also mandates certain procedures a judge must follow at sentencing.
As relevant here, under Section 31-18-15.1(A), “[a] district court must hold a sentencing
hearing to determine the existence of mitigating or aggravating circumstances that
justify a departure of up to one-third from the basic sentence applicable to the crime.”
State v. Ayala, 

, 

, 

 (internal quotation
marks and citation omitted). 9 This Court has construed Section 31-18-15.1(A) as
imposing a mandatory duty on the district court to hold such a sentencing hearing,
regardless of whether the defendant sought to present mitigating evidence at the
hearing or even affirmatively waived the issue below. See State v. Sotelo, 2013-NMCA-

8Relying on an opinion from the United States Supreme Court, the State contends that the denial of the
right to allocution does not represent a jurisdictional defect. The State’s reliance on United States
Supreme Court precedent in this context is not persuasive, given that the right to allocution and the
jurisdictional question we examine here are matters of state law.
9Since Ayala, Section 31-18-15.1 has been amended to conform with the conclusion that a sentencing
enhancement based on a judicial finding of aggravating circumstances violates the constitutional right to
trial by jury. See Frawley, 

; compare § 31-18-15.1 (1993, amended 2009), with
§ 31-18-15.1. The existence of mitigating circumstances, however, continues to be a matter for the judge.
See § 31-18-15.1(A)(1).
028, ¶¶ 39, 41, 

 (“The plain language of the statute imposes a duty on the
court. . . . The statute does not prescribe any prerequisites to the district court’s
exercise of this duty.”).

{27} Allocution in turn is a form of mitigation, id. ¶ 42, and likewise is mandated by the
Act. Nearly forty years ago, our Supreme Court in Tomlinson addressed the source and
scope of the right to allocution in New Mexico. The Court observed that allocution is a
common law doctrine, originally limited to capital offenses. See Tomlinson, 1982-
NMSC-074, ¶ 5. It further observed that other jurisdictions had both explicitly codified
the doctrine in statute or rule and expanded the right to non-capital offenses. Id. ¶ 7.
And despite the fact that “the right is not specifically set forth by the plain language of
Section 31-18-15.1[,]” Williams, 

, our Supreme Court similarly
concluded that the Legislature intended to incorporate and expand on the right to
allocution with its adoption of Section 31-18-15.1. Tomlinson, 

, ¶ 12. To
this end, the Court determined that Section 31-18-15.1(A) “extends the common law
doctrine of allocutus to non-capital felonies as enumerated in Section 31-18-15[.]”
Tomlinson, 

, ¶ 12. As a result, Section 31-18-15.1(A), which, as
discussed, requires “a sentencing hearing to determine whether aggravating or
mitigating circumstances exist, also require[s] the trial court to give a defendant an
opportunity to speak before the trial court pronounces sentence.” Ricky G., 1990-
NMCA-101, ¶ 7 (emphasis added).

{28} Just as the district court judge has a duty to hold a sentencing hearing to
determine the existence of mitigating or aggravating circumstances, see Sotelo, 2013-
NMCA-028, ¶ 45; § 31-18-15.1(A), so too does the judge have a duty to afford the
defendant the right to allocution prior to sentencing, see Williams, 

 (“It is the duty of the court to inform a defendant of his or her right to allocution, and
when . . . the district court does not fulfill this duty, the sentence is invalid.”). See also
Ricky G., 

, ¶ 7 (same). Failure of the district court to fulfill this duty
renders the sentence invalid and mandates reversal and resentencing without any
inquiry into harm or the like. See id.; see also Tomlinson, 

, ¶¶ 11-12; cf.
State v. Jones, 

, 

, 

 (providing that since
“the trial court lacks the statutory authority to impose an adult sentence on any youthful
offender without complying with [NMSA 1978,] Section 32A-2-20 [(2009)]” of the
Delinquency Act, “[i]t follows that the parties lack the ability to bargain away the court’s
own responsibility” (emphasis omitted)).

{29} In sum, in prescribing a trial court’s sentencing authority under the Act, the
Legislature requires courts to afford defendants the right of allocution. See Tomlinson,

, ¶ 12. The district court has an affirmative duty to adhere to the Act’s
prescriptions in this regard. See Williams, 

; Ricky G., 1990-
NMCA-101, ¶ 7. And failure of the district court to afford a defendant the right of
allocution under Section 31-18-15.1 renders the ensuing sentence invalid. See
Tomlinson, 

, ¶¶ 11-12. From all this, we conclude that a sentence
imposed without affording the defendant the right of allocution renders the sentence
unauthorized by statute—a jurisdictional defect that may be raised on appeal
notwithstanding the entry of a valid guilty plea and appellate waiver. See Chavarria,

.

{30} Defendant thus is not precluded from raising the allocution violation on appeal.
As stated, the parties do not dispute that Defendant’s right to allocution was violated,
and our review of the record confirms this. Defendant’s sentence in this case is
therefore invalid. We accordingly reverse that sentence and remand for a new
sentencing hearing, at which Defendant is to be advised of his right to address the
district court and given the opportunity to do so. 10 See Tomlinson, 

, ¶¶
12-13.

CONCLUSION

{31} For the foregoing reasons, we affirm the district court’s denial of Defendant’s
motion to suppress but reverse Defendant’s sentence and remand for resentencing.

{32}    IT IS SO ORDERED.

JENNIFER L. ATTREP, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

ZACHARY A. IVES, Judge




10Defendant is entitled to resentencing only in the case before us on appeal. As noted, Defendant did not
appeal the other two cases in his judgment and sentence, and we, therefore, do not address the
allocution error as it relates to those two cases.