State v. Romero

                                                                      Office of the
                                                                          Director      New Mexico
                                                                                        Compilation
                                                              12:46:56 2023.05.15       Commission
                                                                            '00'06-
            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 13, 2023

No. S-1-SC-38452

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

DERRICK ROMERO,

      Defendant-Appellee

APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
Melissa A. Kennelly, District Judge

Hector H. Balderas, Attorney General
Van Snow, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
Charles D. Agoos, Assistant Appellate Defender
Santa Fe, NM

for Appellee

                                        OPINION

BACON, Chief Justice.

{1}    The primary issue in this case concerns a district court’s inherent common law
authority to correct a sentence that is illegal due to clear error. Defendant-Appellee
Derrick Romero (Appellee) pleaded guilty to second-degree criminal sexual penetration
(CSP), contrary to NMSA 1978, Section 30-9-11(E)(1) (2009). In the first judgment and
sentence (J&S), the district court erred in ordering that Appellee serve two years of
parole, resulting in an unlawfully short period of mandatory parole. Thirteen days later,
the district court ostensibly corrected the sentencing error by entering a second
amended J&S, which replaced Appellee’s parole period of two years with five-to-twenty
years. Both of these parole periods were illegal sentences, however, as NMSA 1978,
Section 31-21-10.1(A)(2) (2007), requires a sex offender convicted of CSP in the
second degree to serve an “indeterminate period of supervised parole for . . . not less
than five years and up to the natural life of the sex offender.”

{2}     Appellee challenged the revised parole period of five-to-twenty years in his
Amended Petition for Writ of Habeas Corpus. The district court relied on State v. Torres,

, 

, which acknowledged Rule 5-801(A) NMRA
(2009), a former rule applicable to the district courts both in Torres and here, as having
“abrogated the common law principle that a district court retained inherent jurisdiction to
correct illegal sentences.” Under this abrogation conclusion in Torres, the district court
here determined that it had had no jurisdiction to correct the illegal parole sentence in
the first J&S and accordingly granted Appellee’s habeas petition, thereby vacating the
second amended J&S and reinstating the original two-year parole period. Here, Plaintiff-Appellant State of New Mexico (State) appeals that grant.

{3}     The State argues that this Court should either remand for imposition of the
statutory five-years-to-life parole period, reverse the district court under a holding that
NMSA 1978, Section 39-1-1 (1917) provided a separate statutory basis from Rule 5-801
for the second amended J&S, or overrule Torres to hold that district courts retain their
common law authority to correct illegal sentences. In addition, the State argues that
none of these outcomes would create a basis for Appellee to withdraw his plea.

{4}     We hold that historical changes leading to Rule 5-801 (2009) (former Rule 5-
801) did not remove a district court’s common law jurisdictional authority to correct an
     1

illegal sentence. Thus, we overrule Torres in that regard. Under this holding, we reverse
the district court’s grant of the writ of habeas corpus and remand to the district court to
impose the statutorily required parole sentence. We further direct the Rules of Criminal
Procedure for State Courts Committee to clarify the length of time in which a district
court retains the relevant jurisdiction to correct an illegal sentence in accordance with
this opinion. Finally, under Boykin v. Alabama, 

 (1969), and Rule 5-303
NMRA, we hold that Appellee is entitled to an opportunity for plea withdrawal.

I.      FACTUAL AND PROCEDURAL BACKGROUND

{5}   Appellee was charged by criminal information in 2010, and he pleaded guilty to
CSP in the second degree (“use of force or coercion on a child thirteen to eighteen
years of age”), contrary to Section 30-9-11(E)(1). On May 17, 2011, the district court
conducted a hearing on the plea agreement. At the outset of the plea hearing, the
prosecutor at the judge’s prompting recited “[t]he agreement as to sentencing.” Notably,


1Subsection A of former Rule 5-801⸻and of its predecessor Rule 5-801 NMRA (1992)⸺allows that a
district court “may correct an illegal sentence at any time” pursuant to habeas corpus proceedings while
Subsection B of both rules specifies procedures for “motions to reduce a sentence.” But the title and text
of the two successor amendments, Rule 5-801 NMRA (2014) and the current Rule 5-801 NMRA (2016),
limit these more recent rules solely to procedures for “motions to reduce a sentence.” The committee
commentary on all four rule amendments identifies Rule 35 of the Federal Rules of Criminal Procedure as
the historic reference for a district court’s authority to “modify a sentence.”
the only mention of parole in this recitation consisted of the agreement that probation
would run concurrent with parole.

{6}    Subsequent to the recitation of plea terms, the district court conducted a colloquy
with Appellee which demonstrated the plea was knowing and voluntary, and the court
accepted the plea agreement. No mention was made as to the length of the parole
period until after the parties and court accepted the announced terms of the plea
agreement. The court’s oral pronouncement of the sentence specified an incorrect
parole period of two years, whereas the applicable statute required a parole period of
five years to life for the offense of CSP in the second degree. See § 31-21-10.1(A)(1)-
(2).

{7}     The district court filed the Plea and Disposition Agreement on May 18, 2011.
Under the “TERMS” heading, the agreement states, “This agreement is made subject to
the following [six] conditions.” As in the oral recitation of the plea terms, the six written
conditions only mention parole in the context of the agreement for probation to run
concurrent with parole. Appellee’s signature appears below those conditions. A
subsequent page of the agreement under “DISTRICT COURT APPROVAL” specifies “a
mandatory TWO (2) YEARS on parole on the second degree felony count.”

{8}    Also on May 18, 2011, the district court entered its order of Judgment, Partially
Suspended Sentence and Commitment (original J&S). The original J&S included that
Appellee had “been convicted by a plea and disposition agreement” and that Appellee’s
nine-year sentence of incarceration would “be followed by a TWO (2) YEAR parole
period.”

{9}    Thirteen days later, on May 31, 2011, the district court entered the second
amended J&S, 2 which included the ostensible correction that Appellee’s nine-year
sentence of incarceration would “be followed by a FIVE (5) to TWENTY (20) YEAR
parole period.”

{10} In 2018, 3 Appellee filed a petition for writ of habeas corpus followed by two
amended petitions. The district court held a hearing on the second amended habeas
petition on December 3, 2019.

{11} On June 22, 2020, the district court granted Appellee’s petition. As discussed
further subsequently herein, the court’s decision and order relied on the abrogation
conclusion in Torres, 

, in determining that “the district court had no
jurisdiction under former Rule 5-801(A) to amend the [original J&S] for the purpose of
increasing the parole period to conform with the law.” In support of its decision, the
district court quoted Torres, 

, ¶ 17: “‘[I]t is apparent that the Rules
Committee intended to strictly limit the district court’s jurisdiction to correct illegal
sentences to only habeas corpus-based motions [filed by the person in custody or under
restraint] under Rule 5-802 [NMRA].’” The district court concluded that it “must grant the

2A first amended J&S was entered on May 24, 2011, to correct the date of transport to the Department of
Corrections.
3We omit intervening procedural history that is not relevant to this proceeding.
[p]etition and reinstate the original illegal sentence,” relying on Torres, 

,
¶ 39, and State v. Tafoya, A-1-CA-34599, mem. op. ¶ 19 (N.M. Ct. App. July 23, 2019)
(nonprecedential)⸺cases remanded to the district courts for reinstatement of illegal
sentences. Under that conclusion, the district court order granted the petition,
invalidated and voided the second amended J&S, and reinstated the original J&S.

{12} The State timely appealed pursuant to Rule 5-802(N)(1) and Rule 12-102(A)(3)
NMRA.

II.    DISCUSSION

{13} We begin by analyzing the holding in Torres that former “Rule 5-801(A) . . .
abrogated the common law principle that a district court has inherent and unlimited
jurisdiction to correct illegal sentences.” 

, ¶ 37. We then apply our
conclusion therein to the district court’s grant of Appellee’s petition for writ of habeas
corpus. Finally, we analyze whether changes to his parole sentence entitle Appellee to
an opportunity to withdraw his plea.

A.     Torres is overruled regarding abrogation of a district court’s jurisdiction to
       correct an illegal sentence

{14} Because the district court relied heavily on Torres in granting Appellee’s petition,
we first address whether the jurisdictional holding in Torres was correctly decided.
“[T]he question of whether a [district] court has jurisdiction in a particular case is a
question of law that we review de novo.” Smith v. City of Santa Fe, 

, 

, 

. “We have the ultimate authority to fashion, adopt, and
amend rules of procedure by virtue of the authority granted to this Court in Article III,
Section 1 and Article VI, Section 3 of the New Mexico Constitution.” State v. Pieri, 2009-
NMSC-019, ¶ 19, 

, 

. Therefore, because Torres had the
effect of modifying a district court’s jurisdiction under former Rule 5-801, we may
properly address its continued validity.

{15} The State makes two arguments that the Torres Court erred in concluding that a
district court’s common law jurisdiction to correct illegal sentences was abrogated by
historic changes to Rule 5-801. See Torres, 

. First, the State
argues that Torres “minimized important developments in [federal] Rule 35,” Fed. R.
Crim. P. 35 (Rule 35), supporting the proposition that “New Mexico courts retained at
least a limited authority to fix obvious errors until the time for taking an appeal expired.”
Second, the State argues that Torres “improperly held that Rule [5-]801 abolished a
well-established provision of the common law by implication,” violating the express
abrogation requirement established in Sims v. Sims, 

, ¶ 23, 

, 

.

{16} In opposition, Appellee makes two arguments that Torres need not be overruled.
First, erroneously claiming that the State’s argument focuses on “changes in the federal
clerical error rule,” Appellee argues that Torres is inapplicable to that issue “because the
illegal sentence [here] was not clerical.” We note that this mischaracterization conflates
the State’s clear error argument with a clerical error argument that has not been made.
A clerical error argument would fall under the purview of Rule 5-113(B) NMRA, not Rule
5-801. Because Appellee’s first argument does not address the State’s position, we do
not consider it further. State v. Guerra, 

, 

 (“[T]he
appellate court does not review unclear or undeveloped arguments.”). Second, Appellee
implicitly argues under stare decisis that the relevant holding in Torres abides with this
Court’s intent in promulgating Rule 5-801 and that the State’s claim under Sims does
not meet the State’s burden to overturn the settled precedent of Torres.

{17} Holding “that the district court did not have jurisdiction to correct [the d]efendant’s
illegal sentence,” our Court of Appeals in Torres “therefore remand[ed] to the district
court to reinstate [the d]efendant’s sentence as originally imposed.” 

, ¶
1. In support of its holding, the Torres Court provided a jurisdictional analysis of Rule 5-
801(A) that included “the context of its history and background.” Torres, 2012-NMCA-
026, ¶ 17. That jurisdictional analysis resulted in the following erroneous conclusion in
Torres: “Since the amendments of 1984, federal case law and legislation have made
clear that it was Congress’s specific intent to remove any historical common law
jurisdiction the federal district courts once enjoyed with respect to correction of illegal
sentences” pursuant to Rule 35. Torres, 

. The Torres Court
compounded its error by further concluding that, because our Rule 5-801(A) “has
closely tracked” Rule 35(a), the New Mexico rule “reflects a clear intent to strictly limit
the district court’s jurisdiction to habeas corpus proceedings to correct an illegal
sentence.” Torres, 

, ¶ 27. We now summarize the Torres Court’s
historical analysis and explain the errors in both conclusions.

{18} The Torres Court traced the relationship of Rule 5-801 and its predecessor Rule
57.1 SCRA (1986) to Rule 35, focusing on four significant historical rules changes. First,
Torres noted the 1944 adoption of federal Rule 35, which codified existing common law
regarding a district court’s authority to set aside or alter its final judgment. 2012-NMCA-
026, ¶ 18 (citing Duggins v. United States, 

 (6th Cir. 1957); Gilmore v.
United States, 

 (8th Cir. 1942)). The Court stated that this authority
included “indefinite jurisdiction . . . ‘to correct sentences when the judgment was void,
because these sentences were invalid and not final dispositions.’” 

 (quoting United
States v. Rico, 

 (2d Cir. 1990)).

{19} Second, Torres noted this Court’s 1980 adoption of Rule 57.1 “to be virtually
identical to federal Rule 35, thereby codifying existing New Mexico common law.” 2012-
NMCA-026, ¶ 20. The Court recognized that, like federal law, our common law had
been interpreted “as including an inherent jurisdiction to correct illegal sentences.” 

{20} Third, Torres noted the federal adoption of the Sentencing Reform Act of 1984
(SRA), which included “repeal[ of] the indefinite jurisdiction principle embodied in Rule
35(a) altogether.” Torres, 

, ¶ 21. The Court stated that “the underlying
purpose of the [SRA] ‘was to impose on the new sentencing system a requirement that
the sentence imposed . . . would remain constant, immune from later modification.’” 

(quoting United States v. Cook, 

 (4th Cir. 1989)). Importantly, the
Torres Court quoted and relied on United States v. Jordan, 

 (11th
Cir. 1990), for the proposition that the SRA, rather than merely limiting the relevant
jurisdiction of a district court, “‘explicitly foreclosed [the Rule 35(a)] route for obtaining
judicial review of an allegedly illegal sentence’ at any time.” 

, ¶ 22
(alteration in original) (emphasis added). Importantly, as we discuss subsequently
herein, the advisory committee commentary on the 1991 amendments to Rule 35
implicitly rejected this interpretation in Jordan.

{21} Fourth, Torres noted this Court’s 1986 “adopt[ion of] the recommendation of the
Rules Committee to repeal [Rule] 57.1(a), which had previously allowed for indefinite
jurisdiction over illegal sentences.” Torres, 

, ¶ 23. Torres correctly
recognized that our relevant order also constituted a “comprehensive overhaul of Rule
57 [SCRA (1986)],” which included “explicitly open[ing habeas corpus as an] avenue for
review of ‘illegal’ sentences under the scope of the rule.” Torres, 

.
However, our order did not expressly limit correction of clearly illegal sentences to
habeas proceedings, nor did it expressly remove a district court’s jurisdiction for such
correction.

{22} We conclude that the erroneous conclusions in Torres discussed previously—
that Congress specifically intended to remove a federal district court’s common law
jurisdiction to correct an illegal sentence and that this Court followed suit for state
district courts—stem from three main errors. First, the Torres Court did not properly
consider either the 1991 amendments to Rule 35 or the circuit court cases on which
those amendments relied. See Torres, 

, ¶¶ 18, 21-22. Second, the
Torres Court misread United States v. Washington, 

 (3d Cir. 2008),
regarding congressional abrogation of a district court’s common law jurisdiction. See

, ¶ 24. Third, the Torres Court recognized but then improperly ignored
the express abrogation rule in Sims, 

, ¶ 23. Torres, 

,
¶¶ 29-30. We discuss these errors in turn.

{23} Contrary to the relevant erroneous conclusion in Torres, the 1991 amendments
recognized that the SRA did not foreclose “the ability of the sentencing court to correct a
sentence imposed as a result of an obvious . . . clear error, if the error is discovered
shortly after the sentence is imposed.” Fed. R. Crim. P. 35 advisory comm. notes
(1991). The 1991 amendments “effect[ively] codifie[d]” the holdings of Cook, 

, and Rico, 

, that the district court retained “the inherent
authority . . . to correct a sentence,” notwithstanding the SRA’s repeal of a district
court’s indefinite jurisdiction to correct a sentence. Fed. R. Crim. P. 35 advisory comm.
notes (1991).

{24} In Cook, the Fourth Circuit “recognize[d] the inherent power in a [district] court to
correct an acknowledged and obvious mistake,” distinguishing the SRA’s focus on
“appellate review of sentences.” 

 (emphasis added). Similarly in
Rico, the Second Circuit found “no mention in the legislative history [of the SRA] of any
diminution in the district court’s inherent power to correct sentences . . . [and] no
indication that [Congress] intended to repudiate this long-standing authority of district
courts.” 

. In affirming Cook and Rico, the 1991 amendments implicitly
rejected the contrary 1990 holding of the Eleventh Circuit on which Torres relied. See
Torres, 

 (quoting Jordan, 

).

{25} By not properly considering the 1991 amendments to Rule 35, the Torres Court
reached its erroneous conclusion regarding the scope of the SRA’s repeal of the federal
rule. See Torres, 

. In turn, the Torres Court misinterpreted the
scope of this Court’s 1986 order. See id. ¶ 23. To the extent that this Court’s 1986 order
followed the SRA’s lead, our repeal of Rule 57.1(a) similarly did not remove a district
court’s inherent authority to correct a sentence.

{26} The Torres Court also erred in reading Washington as supporting the proposition
that Congress abrogated the relevant power of a district court. See 

, ¶¶
24, 29 (citing Washington, 

). Washington did not involve a district
court’s power to correct a sentence that would constitute clear error but rather
concerned a district court’s power to correct a sentence that was procured by fraud. See

. The Third Circuit in Washington reversed the district court’s
finding, upon discovery of the defendant’s true identity, that the court “had the inherent
power to vacate judgments procured by fraud.” 

 (internal quotation marks and
citation omitted). The Washington Court concluded that any such inherent power to
correct a sentence resulting from fraud had been abrogated by Congress, whereas the
1991 amendments to Rule 35 recognized the narrow corrective power of a district court
in “cases in which an obvious error or mistake has occurred in the sentence.”
Washington, 

. The foregoing makes clear that the inherent power
of a district court considered in Washington is distinct from the inherent power
considered by Torres and by this Court, and thus Washington does not support the
holding in Torres.

{27} The Torres Court ultimately erred in not following “our long-standing rule that
‘only if a statute so provides with express language or necessary implication will New
Mexico courts be deprived of their inherent equitable powers.’” 

, ¶ 29
(emphasis added) (quoting Sims, 

, ¶ 30). In Sims, we explained:

      The comprehensiveness of [a New Mexico court’s] equitable jurisdiction is
      not to be denied or limited in the absence of a clear and valid legislative
      command. Unless a statute in so many words, or by a necessary and
      inescapable inference, restricts the court’s jurisdiction in equity, the full
      scope of that jurisdiction is to be recognized and applied. “The great
      principles of equity, securing complete justice, should not be yielded to
      light inferences, or doubtful construction.”

, ¶ 30 (citation omitted).

{28} The Torres Court acknowledged that the purported abrogation of a district court’s
“inherent common law jurisdiction . . . over correction of illegal sentences” was “not
expressly stated” in changes to the rule. Torres, 

. Despite the
absence of express abrogation language, the Torres Court nonetheless held “that the
Rules Committee meant to defeat the broad jurisdiction embodied in the common law
by repeatedly narrowing Rule 5-801(A).” Torres, 

. To the extent
that the Torres Court concluded from such narrowing that the relevant inherent authority
of sentence correction was abrogated by necessary implication under Sims, we clarify
that our changes to Rule 5-801(A), as we have discussed, did not foreclose that
authority. See Torres, 

. Accordingly, there was no such
necessary implication of abrogation. Under Sims, the Torres Court erred in concluding
that our changes to Rule 5-801 implicated abrogation of the relevant common law
jurisdiction where such a principle appeared neither in our express language nor as a
necessary implication of those changes. See Torres, 

.

{29} Applying the foregoing analysis, we hold that historical changes to Rule 5-801(A)
did not remove a district court’s common law jurisdictional authority to correct a
sentence that is illegal due to clear error. Torres is overruled to the extent that it holds
otherwise. Under our holding, we do not reach the State’s argument that Section 39-1-1
provided a separate statutory basis from Rule 5-801 for the district court to amend its
sentence. Additionally, we direct the Rules of Criminal Procedure for State Courts
Committee to clarify the time period during which a district court retains such jurisdiction
in accordance with this opinion. 4

B.      The district court had jurisdiction thirteen days after the original J&S to
        correct the illegal sentence of parole, but the district court on remand must
        impose the parole sentence required by Section 31-21-10.1(A)(2)

{30} We next apply our holding above to the district court’s grant of the writ of habeas
corpus. This Court reviews the legal conclusions of a district court in a habeas
proceeding de novo. Lukens v. Franco, 

, 

.

{31} Under our holding, we reverse the district court’s grant of the writ of habeas
corpus, as the district court had jurisdiction thirteen days after the original J&S to correct
the clearly illegal parole sentence of two years. However, while reversal here would
otherwise reinstate the second amended J&S, we cannot reinstate the parole sentence
therein of five-to-twenty years as it also constitutes a clearly illegal sentence. See § 31-
21-10.1(A)(2) (requiring that a sentence for second-degree CSP “shall include . . . an
indeterminate period of supervised parole for a period of . . . not less than five years and
up to the natural life of the sex offender”).

{32} An illegal sentence is void and a nullity. See State v. Peters, 

, ¶
5, 

, 

 (“The . . . sentence . . . being unauthorized by law . . .
was null and void, and [the district court] was warranted in disregarding it as mere
surplusage.”); see also Rico, 

 (“[U]nder common law a district court
was free at any time to correct sentences when the judgment was void, because these

4We note the principle adopted by the 1991 amendments to Rule 35
that the time for correcting [obvious arithmetical, technical, or other clear errors] should be [restricted to]
the time for appealing the sentence to reduce the likelihood of jurisdictional questions in the event of an
appeal and to provide the parties with an opportunity to address the court’s correction of the sentence, or
lack thereof, in any appeal of the sentence.
Fed. R. Crim. P. 35 advisory comm. notes (1991).
sentences were invalid and not final dispositions.” (internal quotation marks omitted)). In
State v. Miller, 

, 

, we explained in the plea context
that a “court must . . . be mindful of our sentencing statutes and cannot impose an
illegal sentence. If the sentence in an accepted plea is illegal, [it] cannot be imposed by
a court.” Id.; see State v. Mares, 

, ¶ 10, 

, 

(“This Court has long held that the [district] court may impose only sentences which are
authorized by law.”); State v. Lucero, 

, ¶ 17, 

, 

 (“[W]e conclude that the sentence . . . was in excess of punishment warranted by
law . . . and is therefore void.”); see also Sneed v. Cox, 

, ¶ 8, 

, 

 (“[S]entences which are unauthorized by law are null and void.”),
abrogated on other grounds as recognized by State v. Sublett, 

, ¶ 22,

, 

.

{33} Under these precedents, we are unauthorized to reinstate the clearly illegal
sentence of parole in the second amended J&S. Instead, we remand to the district court
for imposition of the parole period required by Section 31-21-10.1(A)(2).

{34} We note that the district court order cited two cases in support of the proposition
that reinstatement of an illegal sentence can be proper, neither of which is persuasive
here. The order first cites Torres, 

, wherein the Court of Appeals
remanded for reinstatement of the defendant’s illegal prior sentence under the very
abrogation principle which we overrule in this opinion. The order also cites Tafoya, A-1-
CA-34599, mem. op. ¶ 19, which is an unpublished memorandum opinion. This Court
subsequently quashed the State’s petition for writ of certiorari in Tafoya based on
mootness and specifically “ordered that the Court of Appeals [m]emorandum [o]pinion
. . . SHALL NOT be cited as persuasive authority.” State v. Tafoya, S-1-SC-37872,
Dispositional Order to Quash ¶ 16 (N.M. Sept. 2, 2021). In sum, these cases do not
provide compelling support for a court’s reinstatement of an illegal sentence.

{35} Citing Lopez v. LeMaster, 

, 

, 

,
Appellee argues that while “New Mexico courts have broad authority to order
discretionary relief through . . . writs of habeas corpus . . . , an order increasing a
criminal sentence is not among the remedies available in a collateral habeas corpus
proceeding.” As Lopez states explicitly, however, “[a] court may not ignore statutes,
rules, and precedents when fashioning such a remedy.” 

 Under this foundational
principle, we are not at liberty to ignore the parole sentence required by Section 31-21-
10.1(A)(2). Contrary to Appellee’s characterization, imposition of the statutorily required
parole period constitutes replacing the nullity of the illegal parole sentence in the second
amended J&S, not increasing an otherwise valid sentence.

C.     Appellee is entitled to an opportunity for plea withdrawal

{36} Finally, we analyze whether a change to his parole sentence entitles Appellee to
an opportunity to withdraw his plea under his constitutional right to due process. We
analyze this issue under the Fourteenth Amendment to the United States Constitution,
which Appellee argues under federal due process cases without specifying additional
due process rights under the New Mexico Constitution.
{37} The parties disagree as to whether Appellee accepted the plea knowingly and
voluntarily. The State points to the district court “confirm[ing] that [Appellee] understood
the range of possible penalties associated with his plea.” Relatedly, the State argues
that Appellee has not shown prejudice, that “the district court established that he
entered the agreement knowingly and voluntarily,” and that, under United States v.
Timmreck, 

 (1979), “habeas relief is unavailable when ‘all that is
shown is a failure to comply with the formal requirements’ of the federal counterpart to
Rule 5-303.” In response, Appellee argues that “[p]rejudice from an increased sentence
is self-evident” and that “[t]he record in this case does not reflect any affirmative,
voluntary, knowing, and intelligent waiver by [Appellee] of his fundamental due process
rights.” We infer from his waiver argument that Appellee contends that imposition of the
more onerous sentence constituted a violation of fundamental due process. To the
extent that the State suggests Appellee abandoned this issue on appeal, we invoke our
right to review an issue involving the fundamental rights of a party. See Rule 12-
321(B)(2)(d) NMRA.

{38} The parties also dispute whether the two-year parole sentence was among the
terms of the negotiated plea agreement and thus would constitute part of the benefit of
Appellee’s bargain. The State argues that “[t]he plea agreement unambiguously did not
address the length of parole” and that the two-year parole sentence was a finding made
by the district court separate from and subsequent to the parties’ negotiated plea
agreement. The State further argues that correction of Appellee’s parole sentence did
not violate due process where parole periods are statutorily mandated and “cannot be
the subject of bargaining.” In response, Appellee asserts that “the terms of the written
plea agreement expressly included a two-year parole sentence” and argues that “the
imposition of an enhanced parole sentence violates the binding plea agreement
between the State and [Appellee].” Appellee also argues that the “parole sentence was
clearly part of the bargain in light of the disproportionate impact the [five- to twenty-year
parole] sentence had on the overall agreement.”

{39}   The parties’ foregoing due process arguments fall under the

       two separate, though closely related, constitutional challenges that may be
       made [when seeking relief from a guilty plea]: (1) that the plea of guilty
       was not made voluntarily and with full knowledge of the consequences,
       and (2) that [the] defendant did not receive the benefit of the bargain [the
       defendant] made with the [s]tate when [the defendant] pled guilty.

People v. Whitfield, 

 (Ill. 2005) (holding that the defendant’s
“constitutional right to due process and fundamental fairness was violated” where he
was never advised at the plea hearing that mandatory parole would be imposed and
where subsequent imposition thereof resulted in a more onerous sentence). A due
process challenge to the plea being knowing and voluntary “derives from Boykin, . . .
395 U.S. [at 242-43 & n.5],” whereas a due process “‘benefit of the bargain’ claim finds
its roots in Santobello v. New York, 

, 262 . . . (1971).” Whitfield, 

 (“Boykin and Santobello deal with two different aspects of a plea—its
acceptance and its implementation.”). Because Boykin and Santobello govern the
parties’ arguments, we provide the applicable principles of both cases despite the
parties’ failure in this appeal to apply Boykin.

{40} In Boykin, the United States Supreme Court held that the record for acceptance
of a guilty plea must affirmatively show that the plea was “intelligent and voluntary.” 5

, 243 n.5 (identifying “a defendant’s guilty plea [that] is not equally
voluntary and knowing” as a “violation of due process and . . . therefore void”). The
Boykin Court noted that a defendant’s “waiver of . . . three important federal
[constitutional] rights”—the privilege against self-incrimination, the right to trial by jury,
and the right to confront one’s accusers—cannot be presumed from a silent record. 

. “What is at stake for an accused facing death or imprisonment demands the
utmost solicitude of which courts are capable in canvassing the matter with the accused
to make sure [the accused] has a full understanding of what the plea connotes and of its
consequence.” 

. In New Mexico, “Rule 5-303 NMRA essentially codified
Boykin . . . and requires an affirmative showing on the record that a guilty plea was
voluntary and intelligent.” State v. Yancey, 

, 

(brackets, internal quotation marks, and citations omitted).

{41} In Santobello, the United States Supreme Court noted that “‘plea bargaining[]’ is
an essential component of the administration of justice” but one which “presuppose[s]
fairness in securing agreement between an accused and a prosecutor.” 

. The Santobello Court stated that as a “safeguard[] to insure the defendant what
is reasonably due” under a plea agreement, a “constant factor is that when a plea rests
in any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled.” 

. We note that this Court has quoted the latter language in Santobello in multiple
cases. See, e.g., State v. King, 

, 

; Pieri, 2009-
NMSC-019, ¶¶ 15, 33.

{42} The parties’ arguments “require[] us to evaluate constitutional principles, statutes,
and the rules of criminal procedure. Our review of these matters is de novo.” Yancey,

, ¶ 11. Whether a plea is knowing and voluntary under these
authorities “must be assessed from the totality of the circumstances.” 

 ¶ 1 (citing
United States v. Rollings, 

 (10th Cir. 2014)); accord Garcia v. State,

, 

, 

.

1.      The two-year parole sentence was not a term of the plea agreement, and
        correction of that sentence does not deprive Appellee of the benefit of his
        bargain

{43} We begin our discussion by clarifying the critical distinction between a plea
agreement and an accepted plea. “A plea agreement is a unique form of contract the
terms of which must be interpreted, understood, and approved by the [district] court.”

5We recognize “knowing” and “intelligent” as synonymous and interchangeable for purposes of pleas.
See United States v. Dominguez, 

, 1102 n.5 (10th Cir. 2021) (“In . . . our precedent, the
two terms ‘knowing’ and ‘intelligent’ frequently have traveled together, even though we have not made a
meaningful effort to attribute distinct meanings to them.”), cert. denied, 

 (2022).
Mares, 

, ¶ 12. A plea agreement is negotiated between the defendant
and the prosecution, and the parties may “negotiate the terms of a plea agreement to
the full extent allowed by law.” Id. ¶ 11; see id. ¶ 17 (“[A] plea agreement may be the
product of negotiation between the prosecutor and the defense.”); see State v. Taylor,

, ¶ 23, 

, 

 (“A defendant may enter into an
agreement with the state to plead guilty to any proper condition and the state may
recommend a particular sentence to the court.”), overruled on other grounds by
Gallegos v. Citizens Ins. Agency, 

, ¶ 28, 

, 

.
“[T]he district court judge [shall] not be a participant in any plea negotiations[, and] ‘[t]he
judge’s role is explicitly limited to acceptance or rejection of the bargain agreed to by
counsel for the state, defense counsel, and [the] defendant.’” Miller, 

 (quoting Rule 5-304 NMRA (2010), comm. cmt.). 6

{44} While “a [district] court has broad discretion to accept or reject a plea
agreement,” Mares, 

, ¶ 10, the court cannot accept the agreement until
additional process under Rule 5-303 ensures that the defendant has entered into the
plea knowingly and voluntarily. The requirements of Rule 5-303(F) include that the court
“address[] the defendant personally in open court, informing the defendant of and
determining that the defendant understands . . . the nature of the charge to which the
plea is offered . . . and the maximum possible penalty provided by law for the offense to
which the plea is offered.” Rule 5-303(F)(1)-(2). Under Rule 5-303(G), “The court shall
not accept a plea of guilty . . . without first, by addressing the defendant personally in
open court, determining that the plea is voluntary and not the result of force or threats or
of promises apart from a plea agreement.”

{45} Under these authorities, several principles emerge that are relevant to the
parties’ arguments here. First, the parties’ broad latitude to negotiate the terms of a plea
agreement cannot result in a term that is contrary to law. See Mares, 

,
¶ 11. Accordingly, even if the parties here had negotiated a two-year parole sentence,
their authority to negotiate would not have rendered that illegal sentence lawful or
enforceable. Second, the applicable rule in this case required the district court to play
no role in determining the negotiated terms of a plea agreement, notwithstanding the
court’s broad latitude to accept or reject those terms. Rule 5-304 (2010), comm. cmt.
Thus, a term that is established in the first instance by the court is presumptively not a
term of the plea agreement. Third, the negotiated terms of a plea agreement do not
necessarily include all components of the accepted plea. For example, parties could
solely negotiate the term of incarceration and leave all other sentencing determinations
to the district court, subject to the court assuring the defendant’s understanding of the
terms and consequences of the plea where a defendant pleads guilty. See Rule 5-
303(F). Finally, the knowing and voluntary requirement under Rule 5-303(F)-(G) cannot
be circumvented or waived for a plea of guilty. Cf. Rule 5-303(J). Where the advisement
requirements of Rule 5-303 are not satisfied, such a lack of due process “presumptively

6Consistent with committee commentary on the 2010 amendment, the body of the 2022 amendment
further provides that the “judge who presides over any phase of a criminal proceeding shall not participate
in plea discussions” while allowing that a judge not so presiding “may be assigned to participate in plea
discussions to assist the parties in resolving a criminal case in a manner that serves the interests of
justice.” Rule 5-304(A)(1) NMRA (2022).
affects [the] defendant’s substantial rights and renders the plea unknowing and
involuntary.” State v. Garcia, 

, ¶¶ 22-23, 

, 

(“[T]he defendant must understand the consequences of his plea at the time the plea is
taken.” (emphasis omitted)).

{46} The record in this case is clear that, contrary to Appellee’s representation, the
negotiated terms of the plea agreement did not include the length of the parole period
and that the two-year parole period was established in the first instance by the district
court. At the plea hearing, the length of the parole period was not included in the terms
of the plea agreement as read by the prosecution, and the two-year parole period was
announced initially by the court during the subsequent Rule 5-303 colloquy. Similarly in
the Plea and Disposition Agreement, the length of the parole period is not listed in the
six terms of the plea agreement signed by Appellee. The two-year parole sentence
appears for the first time in the district court’s subsequent findings supporting that the
accepted plea was knowing and voluntary.

{47} Because the two-year parole sentence was not a term of the plea agreement,
correction of that illegal sentence does not constitute a change to the plea agreement. It
follows logically that imposition of a more onerous indeterminate parole sentence does
not deprive Appellee of the benefit of his bargain, as he did not bargain concerning the
length of parole. Accordingly, neither the district court’s purported parole sentence
correction of five-to-twenty years nor imposition on remand of the five-years-to-life
parole period can be construed as a broken promise of the prosecution. Because
Santobello governs such broken promises of a plea agreement, the parties’ arguments
under Santobello are inapposite.

{48} Appellee attempts nonetheless to bring the district court’s sentencing error within
that scope, quoting United States v. Walker, 

 (7th Cir. 1996), for the
proposition that “‘Santobello itself involved a breach of a plea agreement by the
prosecutor rather than by the judge, but the remedial implications are similar.’”
Appellee’s argument does not avail, first and foremost because, as just discussed, the
district court’s purported sentence correction did not involve a breach of the plea
agreement. Further, we decline any implicit invitation to extend Santobello to
encompass errors by a sentencing court at a plea hearing. See Pieri, 

 (“It is now clear that Santobello only requires that the State fulfill the promises it
makes in plea agreements.”).

2.     Appellee is entitled to an opportunity to withdraw his plea under Boykin
       and Rule 5-303

{49} The record is clear that the accepted plea in this case involved Appellee’s
knowing and voluntary plea to a maximum possible penalty that included a parole
sentence of two years. Under this record, imposition by the district court of either
indeterminate parole period—whether of five-to-twenty years in the second amended
J&S or of five years to life on remand—has not occurred under a knowing and voluntary
plea. Stated differently, the record does not affirmatively show that Appellee understood
that the range of possible penalties associated with his plea included either of the
indeterminate parole sentences.

{50} Based on the foregoing, we agree with Appellee that he was denied due process,
but for reasons other than those offered by the parties. The fundamental flaw with the
process that Appellee received is that he was completely deprived of his right to a
knowing and voluntary plea when his sentence was changed in the second amended
J&S to include more onerous consequences than those explained at the plea hearing.
Under Boykin and Rule 5-303, due process required an additional hearing at which
Appellee would have been advised of the increased consequence, a five- to twenty-year
parole sentence, with an opportunity for Appellee to withdraw his plea. See State v.
Jones, 

, 

, 

 (“A plea bargain stands or
falls as a unit.” (brackets, internal quotation marks, and citation omitted)); see also
Garcia, 

, ¶¶ 23-24 (granting plea withdrawal as a proper remedy where
the record did not clearly demonstrate substantial compliance with Rule 5-303).

{51} On remand, due process similarly requires imposition of the statutorily mandated
parole sentence to occur in an additional Rule 5-303 hearing, wherein the district court
shall advise Appellee as to his increased maximum possible penalty and Appellee shall
have an opportunity to withdraw his plea. Without such additional process, Appellee’s
plea under our ruling herein cannot be knowing and voluntary.

{52} We reject the State’s argument that the district court’s colloquy established that
Appellee “understood the range of possible penalties associated with his plea.” The
record here demonstrates that the maximum possible penalty was never explained to
Appellee, and thus the district court’s finding that Appellee’s plea was knowing cannot
satisfy the requirements of Rule 5-303. We also agree with Appellee that prejudice here
is “self-evident” where Appellee’s plea consequences increase under either
indeterminate parole period.

{53} In addition we reject the State’s argument under Timmreck, 

, as
the constitutional considerations implicated here constitute much more than merely “‘a
failure to comply with the formal requirements’” of due process. In Timmreck, the United
States Supreme Court found only a technical violation of Rule 11 of the Federal Rules
of Criminal Procedure where the district court at the plea hearing “failed to describe the
mandatory special parole [period] of at least [three] years” because the defendant’s
ultimate sentence of ten years of imprisonment plus five years of parole was still “within
the maximum [fifteen years of imprisonment] described to him” at the plea hearing. 

. Where the changed sentence did not involve more onerous consequences, the
Timmreck Court found no error which “resulted in a complete miscarriage of justice or in
a proceeding inconsistent with the rudimentary demands of fair procedure.” 

(internal quotation marks and citation omitted). In contrast here, the five- to twenty-year
parole period implicated more onerous consequences than the maximum possible
penalty in the district court’s plea advisement and in its Plea and Disposition
Agreement, and thus the due process violation was substantive and not merely
technical.
III.   CONCLUSION

{54} We hold that Torres is overruled regarding abrogation of a district court’s
common law jurisdictional authority to correct an illegal sentence. Under this holding, we
reverse the district court and remand for imposition of the statutorily required parole
sentence. We direct the Rules of Criminal Procedure for State Courts Committee to
clarify the length of time that a district court retains jurisdiction to correct an illegal
sentence in accordance with this opinion. Finally we hold, consistent with the additional
Rule 5-303 hearing required by due process, that Appellee is entitled to an opportunity
for plea withdrawal.

{55}   IT IS SO ORDERED.

C. SHANNON BACON, Chief Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice