This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 33,810 4 TANYA PACHECO and 5 SONNIE PACHECO, 6 Defendants-Appellants. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Ross C. Sanchez, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Tonya Noonan Herring, Assi stant Attorney General 12 Albuquerque, NM 13 for Appellee 14 Jorge A. Alvarado, Chief Public Defender 15 Santa Fe, NM 16 Sergio J. Viscoli, Appellate Defender 17 Albuquerque, NM 18 for Appellants 19 MEMORANDUM OPINION 202 SUTIN, Judge. 1 {1} In joined district court cases, Tanya Pacheco and Sonnie Pacheco each pleaded 2 guilty to one count of larceny over $500 but not more th an $2500, contrary to NMSA 3 1978, Section 30-16-1 (2006), for having stolena number of items from Dale Perkins 4 (Victim). Pursuant to the sentencing agreements in Defendants’ respective, but nearly 5 identical pleas, the State ag reed to a conditional discharge on the condition, among 6 others, that Defendants “pay restitution to [V ]ictim . . . in an amount to be determined 7 by probation authorities.” After a restitution hearing, the district court ordered 8 Defendants “jointly or severally” to pay a total of $10,628.41 in restitution to Victim. 9 {2} On appeal, Defendants seek reversal of the district court’s restitution order, 10 arguing that the maximum sum of restitu tion that the court could order was $2500 11 each in accord with the larceny charges to which they pleaded guilty. We hold that the 12 district court properly exercised its disc retion in issuing its order. We affirm. 13 BACKGROUND 14 {3} In this memorandum opinion we assume that the parties are familiar with the 15 relevant facts and background. Accordingly, we provide background and factual 16 details only in our discussion and only to the extent that they are necessary to that 17 discussion. 18 DISCUSSION 193 {4} At the restitution hearing, the districtcourt concluded that pursuant to NMSA 1 1978, Section 31-17-1(A)(2) (2005), governing victim restitution, the court had 2 authority to award “all damages which a vi ctim could recover against the defendant 3 in a civil action arising out of the same facts or event[.]” See § 31-17-1(A)(4) 4 (“ ‘[R]estitution’ means full or partial payment of actual damages to a victim.”). On 5 appeal, Defendants do not challenge the district court’s interpretation of Section 31- 6 17-1, nor do they directly attack the district court’s application of the restitution 7 statute to the facts of this case. Instead, Defendants argue that the court was required 8 to limit the restitution amount to $2500 each to comport with Defendants’ “reasonable 9 understanding” of the terms of their plea ag reements. They arguefurther that the 10 district court was bound by “the law of the case” doctrine to limit the amount of 11 restitution to $2500 each. For the reasons th at follow, Defendants’ arguments do not 12 demonstrate grounds for reversal. 13 {5} Defendants argue that, based upon the written plea agreements and the plea 14 colloquies, they reasonably understood that they would pay no more than $2500 in 15 restitution because they pleaded guilty tolarceny in an amount between $500 and 16 $2500. They argue further that, to the ex tent the plea agreement was ambiguous in 17 regard to the amount of restitution they c ould be ordered to pay, it was incumbent on 18 the district court to clarify the ambiguitybefore accepting their pleas, but that the 191 We note, however, that where a defendant demonstrates on appeal that the 17 sentence in an accepted plea agreement is illegal or cannot be imposed, the issue is 18 remedied by allowing the defendant to withdraw the plea. State v. Miller , 2013- 19 NMSC-048, ¶ 36, 314 P.3d 655. 20 4 court failed to do so. On appeal, they seek remand with instructions to the district 1 court to modify its restitution order to re flect an amount of restitution no greater than 2 $2500 each. Since we affirm, we need not consider the remand issue. 1 3 {6} A reviewing court “construe[s] the terms of the plea agreement according to 4 what [the d]efendant reasonably understood when he entered the plea.” Miller , 2013- 5 NMSC-048, ¶ 9 (internal quotation marks and citation omitted). “A plea agreement 6 is a unique form of contract whose term s must be interpre ted, understood, and 7 approved by the district court.” Id. (internal quotation marks and citation omitted). “If 8 the language in the [plea] agreement is ambiguous, it is the district court’s task to 9 resolve that ambiguity with the parties[,] ” if it does so, “the agreement can no longer 10 be said to be ambiguous[.]” Id. 11 {7} Unless the district court ratifies a plea agreement that contains a guaranteed, 12 specific sentence, sentencing determinations are within the court’s discretion and are 13 reviewed for an abuse of discretion. See id. ¶¶ 11, 28 (recognizing that “[i]f . . . the 14 district court has accepted a plea agreement for a guaranteed [,] specific sentence, the 15 court is bound to impose the sentence disposition contained in the plea” and also 165 recognizing that if the plea agreement does not contain a guaranteed, specific 1 sentence, the district court’s sentence may “embody a . . . disposition as authorized by 2 law” (internal quotation mark s and citations omitted)); State v. Bonilla , 2000-NMSC3 037, ¶ 6, 130 N.M. 1, 15 P.3d 491 (“A trial court’s sentencing is reviewed for abuse 4 of discretion.”). Ordering restitution is part of the sentencing process. State v. Lack , 5 1982-NMCA-111, ¶ 23, 98 N.M. 500, 650 P.2d 22. 6 {8} The terms of the respective plea agreements signed by Defendants provide, 7 under the sentencing agreement heading thateach Defendant “shall pay restitution to 8 [V]ictim . . . in an amount to be determined by probation authorities.” Ms. Pacheco’s 9 plea agreement also contains a handwritten provision regarding restitution stating, “no 10 agreement as to amount owed shall result in a restitution hearing.” 11 {9} The district court accepted Defendants’ pleas at a hearing attended by both 12 Defendants and their respective attorneys. At that hearing, before the district court 13 engaged in a colloquy withDefendants regarding their plea agreements, Ms. 14 Pacheco’s attorney advised the court that the amount of restitution was yet to be 15 determined and that in the event that th e amount of restitution could not be agreed 16 upon, Ms. Pacheco had reserved the right to have a hearing on that matter. In response 17 to that argument, the district court inquired as to what had been taken from Victim. 18 The prosecutor responded to the court’s inquiryas follows, “there was a steel base to 196 an air compressor. . . . [V]ictim has estim ated $6,000 in the metal from shell casings. 1 He’s itemized all the shooting stands valuedat over . . . $1,000, steel targets valued 2 at $735, targets made from steel additionally listed here, and a Nordictrack 3 machine[.]” Thus, prior to th e plea colloquies, the State enumerated at least five stolen 4 items, estimating the combined value of only three of them at $7735. 5 {10} Owing to the lack of specificity regard ing the value of the stolen items, the 6 district court stated that it would like to continue the matter “f or about a month” to 7 allow the attorneys to go over the items th at were allegedly taken and to agree upon 8 a “maximum amount of restitution” or a “reasonable amount of restitution that may 9 be owed.” Ms. Pacheco’s atto rney agreed with the pros ecutor that the plea hearing 10 should proceed as planned, with the matter of the amount of restitution to be resolved 11 at a later-held restitution hearing. Mr . Pacheco’s attorney did not object. 12 {11} In the district court’s colloquy with Ms. Pacheco, the court confirmed her 13 understanding that the amount of restitution was yet to be determined. And in the 14 district court’s colloquy with Mr. Pacheco, th e district court requested the prosecutor 15 to recite, for a second time, what the ite ms were that Defendants had stolen from 16 Victim and the estimated value of those items. The prosecutor recited a list of items 17 and the respective estimated values th at, combined, exceeded $5000. The $5000 sum 18 did not include the earlier-mentioned estim ated $6000 value of the metal from shell 197 casings. In response to the prosecutor’s recitation, and as part of its colloquy with Mr. 1 Pacheco, the district court recommended that the State and Defendants’ attorneys meet 2 with an expert to resolve the matter of the value of the stolen items before the 3 restitution hearing. 4 {12} Following the district court’s colloquy w ith each Defendant, the district court 5 accepted their pleas. The plea hearing concluded with the district court and the 6 attorneys scheduling the restitution hearing and the district court agreeing with the 7 prosecutor’s statement that Defendants should be present at the restitution hearing “so 8 they know what kind of money they need to come up with.” 9 {13} Based upon the foregoing, we conclude that Defendants’ belief, purportedly 10 derived from their written plea agreements and their plea colloquies, that they would 11 be ordered to pay a maximum of $2500 each in restitution was not a reasonable belief. 12 Defendants’ respective plea agreements do not contain any provision limiting the 13 amount of restitution that Defendants would be required to pay as part of their 14 sentencing agreements. Instead, the written ag reements provide that Defendants “shall 15 pay restitution . . . in an amount to be determined by probation authorities.” Nor was 16 there any indication during the plea heari ng that Defendants’ restitution would not 17 exceed $2500 each. To the contrary, the ques tion of the sum of restitution was, by 18 agreement of the parties, le ft open to be resolved at a later-held restitution hearing. 198 Further, the estimated value of the stolen items discusse d at the plea hearing ranged 1 from $7735 to around $11,000. Thus, if any reasonable inference regarding the sum 2 of restitution could be drawn from the plea hearing, it was that the amount of 3 restitution would be between $7735 and $11,000. 4 {14} The foregoing facts and circumstances l ead us to conclude that Defendants’ 5 belief that they would be ordered to pay restitution in an amount not more than $2500 6 each was not a reasonable belief. The same facts and circumstances also lead us to 7 conclude that the plea agreement was not ambiguous as to whether Defendants’ 8 restitution would be limited to $2500 each. Ambiguity arises where a provision in a 9 contract is “reasonably and fairly su sceptible to different constructions.” 10 ConocoPhillips Co. v. Lyons , 2013-NMSC-009, ¶ 23, 299 P.3d 844 (alteration, 11 internal quotation marks, and citation omitte d). As noted earlier, Defendants’ written 12 plea agreements stated that the restitution amount was yet “to be determined” with no 13 stated limit. In our view, it is not reasonabl e to construe that provision as limiting the 14 amount of restitution to $2500 or for that matter to any sum. 15 {15} Even were we to assume that the written plea agreements could reasonably be 16 construed as to the amount of restitution to accord with the larceny charge of over 17 $500 but not more than $2500, the ambiguity was resolved at the plea hearing when 18 the district court and the parties expressly agreed that the amount of restitution, which 199 had been estimated to exceed $5000 ($2500 each) and in fact exceeded $7000, would 1 be determined at a restitution hearing. See Miller , 2013-NMSC-048, ¶ 9 (stating that 2 if the district court resolves an ambi guous provision of a plea agreement with the 3 parties, the agreement ceases to be ambiguous ). Defendants’ assertion that the district 4 court should have questioned th em as to whether they wished to plead guilty in light 5 of the fact that the amount of restitution wa s yet to be determined is contradicted by 6 the record. When the district court stated that it would like to continue the matter of 7 accepting Defendants’ plea agreements for one month during which time the matter 8 of restitution could get resolv ed, and the State presented its argument to move forward 9 with the pleas and hold a separate res titution hearing, Defendants did not object. 10 {16} Because Defendants’ plea agreements did not specify or limit the amount of 11 restitution, the matter of how much restitu tion Defendants should pay was within the 12 district court’s discretion. See id. ¶ 11. Based on evidence presented by the State at the 13 restitution hearing demonstrating that the total value of the items that Defendants stole 14 from Victim was $10,628.41, the district court ordered Defendants to pay that sum in 15 restitution to Victim. Given that the ruli ng was tenable and justified by reason, we 16 cannot say that the district court abused its discretion in that regard. See State v. Rojo , 17 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829; see also § 31-17-1(A)(4) 18 (“ ‘[R]estitution’ means full or partial payment of actual damages to a victim.”); § 31- 1910 17-1(A)(2) (“ ‘[A]ctual damages’ means all damages which a victim could recover 1 against the defendant in a civil action aris ing out of the same facts or event[.]”). 2 {17} Defendants argue that, pursuant to State v. Ellis , 1995-NMCA-124, ¶ 10, 120 3 N.M. 709, 905 P.2d 747, it is “well-settled” that “a defendant may be ordered to pay 4 restitution for only the specific offense underl ying the conviction.” To the extent that 5 Defendants’ argument is that, under Ellis , the district court was required to limit its 6 restitution order to $2500 each to accord with the larceny charges to which they 7 pleaded guilty, Defendants’ view rests on a misunderstanding of Ellis

. 8 {18} In Ellis , the defendant, an undercover narcotics officer, pleaded guilty to 9 tampering with evidence and embezzlement as a result of having stolen drugs obtained 10 for undercover purchases. Id. ¶¶ 1-2. The defendant appealedthe district court’s order 11 requiring him to pay restitution to his former employer, the Clovis Police Department, 12 in the amount of $7640.22. Id. ¶¶ 1, 3. That sum include d $2114 paid to the defendant 13 as salary, $1766.22 paid to the defendant as expens e money, and $3770 for drug 14 purchases. Id. ¶ 3. The defendant argued that re stitution should be limited to $211, a 15 sum that represented the actual amount he embezzled from his employer. Id. 16 {19} While this Court agreed with the defendant that, “restitution pursuant to Section 17 31-17-1 is limited by, and directly related to, . . . [the] crime for which there is a plea 18 of guilty or verdict of guilty,” we explai ned that the pertinent question in assessing 1911 restitution is, “[w]hat damages could the [vic tim] recover in a civil action against [the 1 d]efendant arising from the . . . criminalcharges” to which he pleaded guilty. Ellis , 2 1995-NMCA-124, ¶¶ 10, 15 (internal quotati on marks and citation omitted). Pursuant 3 to that analysis, we affirmed the district court’s order of restitution against the 4 defendant in Ellis

. Id. ¶ 21. Applying the rationale of Ellisto the facts in the present 5 case, supports our decision to affirm the district court’s restitution order because 6 evidence presented at the restitution hearing es tablished that the district court ordered 7 restitution in an amount that accorded with th e value of the items that Defendants stole 8 from Victim. 9 {20} In their final argument, Defendants arguethat as to each of them, a $2500 limit 10 on restitution was set at the time they entered into their plea agreements, therefore, 11 “the law of the case” doctrine precluded the district court from ordering restitution in 12 an amount that exceeded the limit. Because, as we have already set forth in the 13 preceding discussion, the record reflects that the matter of restituti on was not set at the 14 time Defendants entered their pleas, we do not consider this argument further. 1512 CONCLUSION 1 {21} We affirm. 2 {22} IT IS SO ORDERED. 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5

WE CONCUR: 6

_______________________________ 7 MICHAEL E. VIGIL, Chief Judge 8

_______________________________ 9 M. MONICA ZAMORA, Judge 10