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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 32,910 4 RAYMOND CERVANTES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Charles W. Brown, District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Law Office of Meredith Baker LLC 13 Meredith M. Baker 14 Albuquerque, NM 15 L. Helen Bennett 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 192 WECHSLER, Judge. 1 {1} Defendant Raymond Cervantes appeals from the district court’s judgment, 2 sentence, partially suspended senten ce, and commitment to the New Mexico 3 Corrections Department. The district c ourt sentenced Defendant pursuant to an 4 habitual offender enhancement for failure to abide by conditions of release adopted 5 under a plea agreement. Defendant argues on appeal that: (1) the district court erred 6 by taking new evidence of additional guilt ba sed on probable cause contrary to the 7 plea agreement; (2) the charges against him must be dismissed based on his 8 intellectual disability and mental incompeten cy; and (3) the State is estopped to deny 9 his mental incompetence as a result of the State’s stipulation to dismissals of other 10 criminal actions against him. We remand tothe district court for a determination as 11 to Defendant’s competency to stand trial in this case. Should the district court 12 determine that Defendant was competent to stand trial, we affirm the district court’s 13 sentencing for the reasons discussed herein. 14 BACKGROUND 15 {2} Defendant pleaded guilty to trafficking cocaine, entering into a repeat offender 16 plea and disposition agreement. Before he was sentenced, Defendant filed a motion 17 to withdraw his plea. The district court denied the motion, finding that Defendant 18 “knowingly and voluntarily” entered the plea. Defendant filed a motion for 193 reconsideration, which the district court also denied. Defendant sought an 1 interlocutory appeal of the denial of the motion, and this Court denied the request. 2 {3} After this case was resolved by plea ag reement, Defendant was charged with 3 additional crimes in another case assigned toanother district judge. In the proceedings 4 resulting from the new charges, the other j udge held a hearing concerning Defendant’s 5 mental competence. At that hearing, an expert witness te stified that Defendant had an 6 IQ of 70 and was not competent to stand trial. That judge ordere d that Defendant was 7 not competent to stand trial. Thereafter, in two other consolidated cases, relying on 8 this order of lack of competence, a third district judge ordered that Defendant was not 9 competent to stand trial. 10 COMPETENCY 11 {4} Defendant contends in this appealthat, even though the determination 12 concerning his competency was made in another, subsequent proceeding, because of 13 his incapacity, he was not able to understand the proceedings or have the ability to 14 make a rational defense in this case. Defendant thus contends that he should not be 15 subject to incarceration. Defendant request s that the charges be dismissed, or, 16 alternatively, that this proceeding be remanded to the district court to determine 17 Defendant’s competency as a factual matter. 184 {5} The State agrees with Defendant that this case should be remanded for a factual 1 determination of Defendant’s competency. We also agree. SeeNMSA 1978, § 31-9-1 2 (1993) (“Whenever it appears that there is a question as to the defendant’s competency 3 to proceed in a criminal cas e, any further proceeding in the cause shall be suspended 4 until the issue is determined.”). In light of the previous determination of lack of 5 competency by the district judge in the subs equent case, and because the district judge 6 in this case is not bound by that determination, we remand so that a factual record can 7 be made in this case for a competency determination. 8 SENTENCING 9 {6} Should Defendant’s competency evaluation result in a ruling that Defendant 10 was competent to stand trial, we affirm the district court’s sentencing for the reasons 11 discussed herein. The plea and dispositi on agreement limited Defendant’s habitual 12 offender enhancement to four years. The St ate filed a supplemental motion to increase 13 Defendant’s habitual offender incarceration because Defendant failed to abide by the 14 conditions of release. 15 {7} The plea and disposition agreement provides in part that 16 if [D]efendant violates any law after entering this plea and before 17 completing the sentence in this cas e, [D]efendant will be subject to 18 habitual offender proceedings[.] . . . The State may bring habitual 19 offender proceedings if the violati on is admitted or proven, even if 20 probation or parole is not revoked or . . . [D]efendant is not convicted of 21 the new crime. 225 Defendant argues on appeal, on th e basis of this provision, that there was not adequate 1 proof to support the enhanced sentence becau se the district court found that Defendant 2 possessed stolen property, a violation of law and conditions of release based only on 3 the probable cause provided to the district court for the issuance of the warrants for 4 Defendant’s arrests. Defendant points to the language of the plea and disposition 5 agreement that permits the State to “bri ng habitual offender proceedings if the 6 violation is admitted or proven[.]” 7 {8} Defendant’s argument, however, focuses only upon the aspect of the plea and 8 disposition agreement that allows habitual offender enhancement for a violation of law 9 without addressing the aspect that allows enhancement for a violation of the condition 10 of release, even without a violation of law. The plea and disposition agreement also 11 provides: 12 I agree that the State may void any sentencing agreement, 13 including any cap on incarceration, OR the [S]tate may withdraw this 14 plea agreement if I: 15 1) violate any laws while pending sentencing; OR 16 2) violate any condition of release; OR 17

. . . . 18 3) fail to appear for a scheduled court hearing, including but 19 not limited to a sentencing hearing[.] 206 {9} In his motion for reconsideration, Defendant raised arguments concerning the 1 level of proof required for a violation of the plea and disposition agreement; and the 2 prosecutor and the district court addressed the arguments at the hearing on the motion 3 for reconsideration. As conditions of rel ease, Defendant was prohibited from leaving 4 Bernalillo County “without prior written permi ssion” from the district court and was 5 required to appear at all scheduled court hearings, including sentencing hearings. At 6 the hearing on the motion for reconsideration, notwithstanding any argument 7 concerning the burden of proof as to a finding of a violation of law, the district court 8 found that the court records indicated that Defendant was arrestedin Santa Fe County 9 and that Defendant admitted th at he was in Santa Fe County when he was arrested. In 10 addition, the State argued that Defendant “failed to appear, multiple times, at his 11 sentencing hearing.” The district court found that Defendant “[f]ailed to appear for a 12 scheduled [c]ourt hearing” and that such a failure was a violation that allowed the 13 State to “nullify the agreement.” Defendant’s arguments on appeal concerning the 14 adequacy of proof do not pertain to these findings. 15 CONCLUSION 16 {10} We remand to the district court fo r a determination as to Defendant’s 17 competency to stand trial in this case as well as any other necessary proceedings 187 consistent with that determination. Should the district court determine that Defendant 1 was competent to stand trial in this cas e, we affirm Defendant’s sentencing. 2 {11} IT IS SO ORDERED. 3

__________ ______________________ 4 JAMES J. WECHSLER, Judge 5

WE CONCUR: 6

________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

________________________________ 9 M. MONICA ZAMORA, Judge 10