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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-120

Filing Date: October 27, 2011 

Docket No. 30,000

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CARLOS GOMEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Charles W. Brown, District Judge

Gary K. King, Attorney General

Santa Fe, NM 

M. Victoria Wilson, Assistant Attorney General

Albuquerque, NM

for Appellee

McGarry Law Office

Kathleen McGarry

Glorieta, NM

for Appellant

OPINION

VIGIL, Judge.

{1} Carlos Gomez entered into three separate plea agreements. In each, the State agreed

that the total time Gomez could serve would be zero to nine years of incarceration,

supervised probation, or treatment, or a combination thereof. It was also agreed that the

sentences would be served concurrently with each other. The district court accepted the

agreements but misconstrued the plea agreements to permit a sentence of twenty-one years

in prison, with sixteen years suspended, for an actual prison term of five years, plus five
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years of supervised probation. We reverse and remand for entry of a judgment and sentence

that conforms to the plea agreements. 

BACKGROUND

{2} Over the course of several months in 2007 and 2008 Gomez was charged in six

different cases with nineteen criminal offenses. The offenses included possession of

marijuana, methamphetamine, and cocaine, trafficking in cocaine, trafficking in heroin,

tampering with evidence, bringing contraband into a jail, receiving stolen property, and

several motor vehicle violations, among others. Gomez entered into three plea agreements

with the State to resolve all six cases. 

{3} The first plea agreement was presented to Judge Brown in September 2008 and

resolved three of the six cases. Gomez agreed to plead guilty to the crimes charged in one

of the three separate indictments. These were: trafficking cocaine, possession of

methamphetamine, and receiving stolen property. In addition, Gomez agreed he was a

habitual offender. In exchange, the State agreed to dismiss all the remaining charges

contained in the indictments and not to file habitual offender proceedings. In the sentencing

agreement, the parties agreed “that [Gomez] will serve zero (0) to nine (9) years of

incarceration or supervised probation, program or combination of the both.” 

{4} At the guilty plea hearing, Judge Brown clarified that the sentencing agreement was

that the sentences were to be served concurrently with each other. Judge Brown then

advised Gomez, “[I]f you have the nine years, that’s the maximum because everything else

is smaller than that.” At the conclusion of the hearing, Judge Brown formally approved the

plea agreement. Judge Brown ordered a presentence report and set a sentencing hearing for

a later date. 

{5} The second plea agreement was presented to Judge Sheppard in January 2009 and

resolved the fourth case. Gomez agreed to plead guilty to one count of trafficking cocaine

and again admitted he is a habitual offender. The State again agreed to dismiss the

remaining charge and not file a habitual offender proceeding. The sentencing agreement was

that “[Gomez] will serve zero (0) to nine (9) years of incarceration or supervised probation,

treatment program, or a combination of both” and that the sentence would run concurrent

with the sentence to be imposed in the first case. At the plea hearing on this case, the

prosecutor stated that the parties had agreed that “[Gomez] will serve a period of zero to nine

years of incarceration or supervised probation, treatment or a combination of both[.]” Judge

Sheppard formally approved the plea agreement. Judge Sheppard noted that a presentence

report had been prepared, and he agreed with the parties’ request for Judge Brown to impose

sentence in both cases. 

{6} The third plea agreement, which resolved the remaining two cases, was presented to

Judge Butkus in February 2009. Gomez agreed to plead guilty to two charges of possession

of cocaine, and again admitted he is a habitual offender. In exchange, the State again agreed

to dismiss or not pursue any remaining charges and to not file a habitual offender

proceeding. The sentencing agreement was that “[Gomez] will serve zero (0) to nine (9)
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years of incarceration, supervised probation, in a treatment program, or some combination

thereof” and that the sentence would run concurrent with the sentence to be imposed in the

first case and in the second case. At the plea hearing, the prosecutor advised the court that

“[t]he sentencing agreement is that this case is ultimately going to be lumped into a series

of other cases that are pending before Judge Brown, as I understand it. The sentence will

be zero to nine years of incarceration, supervised probation or a treatment program or some

combination of those three.” Judge Butkus formally approved the plea agreement, and also

agreed to allow Judge Brown to impose sentences in all three cases. All three plea

agreements contained an identical provision stating “[i]f the [c]ourt finds the provisions of

[the] agreement unacceptable, after reviewing it and any pre-sentence report, the [c]ourt will

allow the withdrawal of the plea, and [the] agreement will be void.”

{7} The sentencing hearing for all three consolidated cases was held before Judge Brown

in February 2009. The parties informed Judge Brown that Gomez had been accepted into

an in-patient treatment program in Fort Stanton and that they agreed to Gomez being

sentenced to the program with the remainder of the sentence suspended. Defense counsel

also noted that the presentence report recommended that Gomez be ordered to drug court and

that the entire sentence be suspended. In response to questions from Judge Brown, counsel

stated that Gomez preferred the drug court alternative with a deferred sentence. Judge

Brown ruled, “I’m going to defer sentencing in this matter.” Addressing Gomez, Judge

Brown said:

I’m going to give you the benefit of the doubt here and sentence you.

One of your conditions of release while sentencing is pending is to sign

up for, enter, and successfully complete the Drug Court program. At

your successful completion of that program, you come back, and I will

suspend any balance of the time you have. That’s the big benefit to it.

The downside is, since I’m not sentencing you today, if you go

three years and then you blow it, I still got the full nine years hanging

over your head. You don’t get the credit while you’re pending

sentencing. 

Here’s the deal: If I sentence you and put you on probation for

nine years, if you go through Drug Court for three, or whatever, and then

you go crazy and start doing drugs and blow it and . . . violate your

probation, I can only sentence you to six more years in jail, because you

had already served three on probation. But since I’m not sentencing you

today, I’m not imposing any sentence. It’s just being held out there. And

if you go three years or whatever length of time, then you blow it, I’ve

got that full nine years I can still impose.

Orders were entered directing Gomez’s release with the condition that Gomez report to, and

complete, drug court.
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{8} However, one month later, drug court reported a violation by Gomez, and a bench

warrant was issued for Gomez’s arrest. Gomez appeared before Judge Brown in May 2009,

a second time for sentencing. Judge Brown announced Gomez would be sentenced to

twenty-one years imprisonment, with sixteen years suspended, resulting in an actual term

of imprisonment of five years. In addition, Judge Brown said Gomez would be ordered to

serve five years of probation upon his release. Gomez filed a motion to modify the sentence

to bring it in conformity with the plea agreements. At the hearing on Gomez’s motion, Judge

Brown refused to reconsider the sentence because he interpreted the plea agreements to

permit a sentence of five years of actual incarceration and five years of probation, as each

was less than the nine-year cap. Gomez’s counsel requested that the judge limit Gomez’s

post-incarceration probation to four years to comply with the plea agreements rather than

leaving open the possibility that Gomez could “keep coming back on probation violations

for [twenty-one] years.” Judge Brown said that if Gomez wanted to avoid this result, he

should not violate probation. The judgment and sentence was filed incorporating Judge

Brown’s oral sentence. Gomez appeals.

DISCUSSION

Standard of Review

{9} A plea agreement is a unique form of contract whose terms must be interpreted,

understood, and approved by the district court. State v. Mares, 119 N.M. 48, 51, 888 P.2d

930, 933 (1994). When there is any ambiguity in a plea agreement and the district court

resolves the ambiguity with the parties at the time of the plea, the agreement is no longer

ambiguous on that point. Id. However, if an ambiguity is not resolved by the district court

and no extrinsic evidence is introduced that would resolve it, “the reviewing court may rely

on the rules of construction, construing any ambiguity in favor of the defendant.” State v.

Fairbanks, 2004-NMCA-005, ¶ 15, 134 N.M. 783, 82 P.3d 954. Under such circumstances,

we review the terms of the plea agreement de novo. Id. In reviewing and interpreting plea

agreements, our task is to construe their terms according to what a defendant reasonably

understood when he entered the plea. Mares, 119 N.M. at 51, 888 P.2d at 933; Fairbanks,

2004-NMCA-005, ¶ 15 .

The Agreements Are That Gomez’s Sentence Will Not Exceed Nine Years

{10} Gomez asserts that the sentence imposed in this case exceeds the terms set by his

agreements. We agree. Gomez’s plea agreements are unambiguous in stating that the total

time he will serve pursuant to each agreement is zero to nine years of some combination of

incarceration, supervised probation, or treatment. The agreements are also clear that the

zero- to nine-year periods to be served pursuant to the second and third agreements are to

be served concurrently with the sentence imposed under the first agreement. Therefore, the

sentence requiring Gomez to serve a five-year period of incarceration, followed by a fiveyear period of supervised probation is not within the terms of the agreements. Nine years
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of any combination of incarceration, supervised probation, and treatment was the maximum

that the district court could order Gomez to serve. 

{11} We reject the State’s argument that the use of the term “serve” in the first agreement

indicates an intent to allow for an actual sentence of something greater than nine years, so

long as any period above the nine-year cap is suspended or deferred. When a suspended

sentence is imposed, the court sentences the defendant and enters an order “suspending in

whole or in part the execution of the sentence[.]” NMSA 1978, § 31-20-3(B) (1985). Thus,

a defendant is ordered to “serve” a period of imprisonment, but actual imprisonment is

delayed unless, and until, the court orders otherwise. See Mask v. State, 829 N.E.2d 932,

936 (Ind. 2005) (“A suspended sentence differs from an executed sentence only in that the

period of incarceration is delayed unless, and until, a court orders the time served in

prison.”). This is reflected in the judgment and sentence actually filed in this case, wherein

Judge Brown sentenced Gomez “to the custody of the Corrections Department of the State

of New Mexico to be imprisoned for the term [of] twenty-one (21) years for the basic

sentence.” (Emphasis added.) Thus, Gomez was clearly ordered by the judgment and

sentence to “serve” a prison term greater than nine years. Suspending execution of sixteen

years of actual incarceration unless, and until, Judge Brown orders otherwise, does not

change the fact that Gomez was sentenced to a prison term of twenty-one years. 

{12} The twenty-one year sentence of incarceration was not in accordance with the plea

agreements, despite the fact that sixteen years were suspended. In the event that Gomez

violates probation, he will be required to serve the full sentence (minus credit for time served

on probation), which is clearly in excess of the nine-year cap set forth in the plea

agreements.

{13} The second and third agreements contain a provision that “[a]ny ‘cap’ or other

limitation on incarceration shall be a limitation on imprisonment only at initial sentencing”

and state that if Gomez violates probation, the district court may sentence him without

considering the limitation. However, the first agreement does not. Because the basic

sentences for the offenses in the second and third agreements were nine and three years,

respectively, the district court had no authority to impose a sentence higher than nine years

under either the second or third agreements. The State suggests that this means that the

possible nine-year sentence under the second plea agreement and the possible three-year

sentence under the third agreement could be run consecutively to each other for a total of

twelve years. The State cites no authority to support this proposition, and where both the

second and third agreements state that the sentence in each is to run concurrently with the

one imposed under the first agreement, the most reasonable reading is that the sentences

imposed under all three agreements will begin to run at the same time—at the time that the

sentence in the first agreement begins. As it is only the first agreement that involves crimes

for which the basic sentences totaled more than nine years, we look only at that agreement

for any intent that the nine-year cap would be limited to the initial sentencing. 
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{14} We conclude that Gomez reasonably understood that the limit on the entire sentence

he could potentially be ordered to serve was nine years, in any combination of prison,

supervised probation, or treatment program. This understanding was reasonable in light of

the plain language of the plea agreements and as a result of the hearing held before the three

judges who accepted the plea agreements. Further, a suspended sentence, which allows for

the possibility that he could actually serve more than nine years in prison, violates the plea

agreements. Construing any ambiguity in the agreements in the light most favorable to

Gomez, we come to the same conclusion. 

On Remand, the District Court Must Enforce the Agreements

{15} Since Gomez’s sentence was not in conformity with the plea agreements, the

question is what remedy is appropriate. Gomez does not want to withdraw his plea, and he

asserts that he should be permitted to enforce the agreements as written. We agree.

{16} New Mexico jurisprudence is clear that when a defendant pleads guilty or no contest

in exchange for a specific, guaranteed sentence, he is entitled to specific performance of the

plea agreement or be given the opportunity to withdraw the plea. State v. Pieri, 2009-

NMSC-019, ¶¶ 5, 30, 33, 146 N.M. 155, 207 P.3d 1132. Once the plea is accepted, the court

is bound by the dictates of due process to honor the agreement and is barred from imposing

a sentence that is outside the parameters set by the plea agreement. State v. Sisneros, 98

N.M. 279, 281, 648 P.2d 318, 320 (Ct. App. 1981), aff’d in part, rev’d in part on other

grounds, 98 N.M. 201, 202, 647 P.2d 403, 404 (1982). Our Supreme Court has expressly

recognized that such is the case when a plea agreement contains a maximum incarceration

potential after a probation violation, such as the case now before us. In Mares, 119 N.M. at

51, 888 P.2d at 933, the Court said:

[T]he parties should be able to negotiate the terms of a plea agreement to the

full extent allowed by law. If the prosecution wishes to offer a maximum

potential incarceration provision in exchange for a guilty plea, it should be

allowed to do so. The fact that such a plea may prevent the trial court from

ordering that a defendant be incarcerated after a probation violation is

something that the prosecution must weigh before it decides to offer the plea

agreement. When all parties agree, however, that a plea agreement will

include a maximum potential incarceration provision that governs both

sentencing and post-sentencing procedures, and the trial court approves the

agreement, this Court will enforce that provision and require the trial court

to suspend the agreed-upon period of incarceration.

Id.

{17} We do not hesitate to conclude that each district court judge approved the plea

agreement presented him. At Gomez’s three plea hearings, the judges orally approved the

agreements and signed them, indicating that the agreements were accepted. Although each
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judge postponed sentencing and each agreement provided that “[i]f the [c]ourt finds the

provisions of this agreement unacceptable, after reviewing it and any pre-sentence report,

the [c]ourt will allow the withdrawal of the plea, and this agreement will be void,” no judge

stated he intended to reserve his decision to accept or reject the plea until he was able to

review the presentence report. Importantly, even after the presentence report was prepared

and presented to Judge Brown, he did not reject the plea agreements. In fact, all the

indications are that Judge Brown accepted the plea agreements and intended to comply with

them. Most telling is Judge Brown’s statement at the hearing on Gomez’s motion to

reconsider, in which Judge Brown stated he believed that the sentence complied with the

terms of the agreements. We therefore conclude that the plea agreements were approved and

accepted. However, this record reflects that Judge Brown also misunderstood the terms of

the plea agreements. 

{18} The question before us is whether, notwithstanding the misunderstanding, the plea

agreements must be enforced under Pieri, Sisneros, and Mares. Our conclusion is in the

affirmative. See Elmore v. Commonwealth, 236 S.W.3d 623, 628-29 (Ky. Ct. App. 2007)

(holding that where the district court misconstrued the plea agreement, on remand the

defendant should be permitted to choose whether to enforce the agreement as written or

withdraw his guilty plea); State v. Reaves, 2008 SD 105, ¶ 11, 757 N.W.2d 580 (holding that

where the district court misconstrued the plea agreement to permit it to sentence the

defendant to any legal sentence, so long as it suspended any portion above the fifteen-year

cap, enforcement of the agreement as written was the proper remedy). A defendant who has

pled guilty in exchange for a specific sentence is entitled to have the agreement enforced as

a matter of due process. Sisneros, 98 N.M. at 281, 648 P.2d at 320. Similarly, when the

prosecution has acted in reliance on the agreement by dismissing charges or allowing

potential witnesses to be excused from testifying, it too has an interest in having the

agreement enforced. When an agreement is capable of different interpretations, the district

court has authority to clear up any ambiguity before it approves and accepts the plea

agreement, and the agreement is no longer ambiguous as to that matter. However, when the

district court imposes a sentence that does not conform to the agreement, the interests of

justice are better served by enforcing the agreement instead of forcing a defendant to either

accept a sentence that does not conform to the agreement, or alternatively, by forcing the

defendant to withdraw the guilty plea. 

CONCLUSION

{19} The judgment and sentence is vacated and the case is remanded to the district court

to enter a judgment and sentence that conforms to the plea agreements. 

{20} IT IS SO ORDERED.

____________________________________

MICHAEL E. VIGIL, Judge
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WE CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge

____________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for State v. Gomez, No. 30,000

AE APPEAL AND ERROR

AE-SR Standard of Review 

CT CONSTITUTIONAL LAW

CT-DP Due Process

CN CONTRACTS

CN-AM Ambiguous Contracts

CN-SP Specific Performance

CL CRIMINAL LAW

CL-CL Controlled Substances

CA CRIMINAL PROCEDURE

CA-AS Alteration of Sentence

CA-DU Due Process

CA-GP Guilty Plea

CA-PP Plea and Plea Bargaining