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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-048

Filing Date: November 18, 2013

Docket No. 33,571

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

ANDREW JAMAL MILLER,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Kenneth H. Martinez, District Judge

Gary K. King, Attorney General

Ralph E. Trujillo, Assistant Attorney General

Santa Fe, NM

for Petitioner

Bennett J. Baur, Acting Chief Public Defender

William A. O’Connell, Assistant Appellate Defender

Santa Fe, NM

for Respondent

OPINION

VIGIL, Justice.

{1} We issued a writ of certiorari to review the Court of Appeals’ decision that the

district court’s sentence of Defendant Andrew Miller violated the terms of a plea agreement

that the district court had accepted. We agree with the Court of Appeals that his sentence

violates the plea agreement. However, we disagree with the remedy that the Court of

Appeals ordered and clarify our case law on this account. Accordingly, we reverse the Court

of Appeals and remand to the Court of Appeals for proceedings consistent with this opinion.
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I. BACKGROUND

{2} In 2008, Defendant faced sixty-one counts consisting mostly of fraud and

embezzlement charges between two indictments against him. He entered into a plea

agreement with the State covering both indictments, which the district court accepted.

Defendant pleaded Guilty or No Contest to four second-degree felonies and two third-degree

felonies. In exchange for Defendant’s pleas, the State dropped all but six charges against

him.

{3} The plea agreement in this case contains three provisions relevant to sentencing.

First, the agreement states that the parties agree to run the sentence for each count

consecutively. Second, under the heading “SENTENCING AGREEMENT” it reads, in part:

“The parties agree that there shall be a minimum sentence of ten (10) years and a maximum

sentence of 40 years at initial sentencing.” There was also a handwritten clause below this

that stated: “The remaining two years of the 42 year exposure shall run concurrent with

parole of two years.” Finally, under the heading “POTENTIAL INCARCERATION” it

reads:

If the court accepts this agreement, the defendant will be ordered to serve a

minimum sentence of ten (10) years and a maximum sentence of 40 years in

the Department of Corrections at initial sentencing. The Defendant may be

given a period of probation. If the defendant later violates that probation or

parole, the defendant may be incarcerated for the balance of the sentence.

{4} Prior to sentencing, Defendant moved to withdraw his pleas, arguing that the State

was not fulfilling its promise regarding allowed visitations from his son. The State responded

that it would be highly prejudiced if Defendant were permitted to withdraw his pleas. The

district court denied Defendant’s motion and sentenced Defendant. The judgment and

sentence the district court ordered provided, in part:

The sentences in [the first indictment] are to [run] consecutively to the

sentences in [the second indictment] for a total incarceration of forty two

[sic] (42) years, followed by two years of parole. The court further orders that

nine (9) years is suspended for an actual sentence of imprisonment of thirty

three (33) years.

Instead of signing the judgment and sentence, Defendant wrote by the signature line that he

objected to the length of the sentence, among other things.

{5} Defendant then appealed to the Court of Appeals, arguing that the district court

imposed a longer sentence than contemplated by the plea agreement since the plea agreement

called for a maximum sentence of forty years and the court sentenced him to forty-two years.

State v. Miller, 2012-NMCA-051, ¶ 17, 278 P.3d 561. The State responded that the fortyyear maximum term in the plea agreement applied solely to “initial sentencing,” meaning
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it only applied to the cap on the initial period of incarceration. Id.

{6} Initially, the Court of Appeals determined that the forty-two-year sentence might be

a clerical error in the written judgment so it remanded the case to the district court to clarify

the sentence and enter findings or a corrected judgment. Id. ¶ 6. However, the district court

did not amend the sentence and instead entered a finding that “by its plain meaning the cap

on the term of incarceration applies only at, ‘initial sentencing.’” Such language does not

speak to the overall sentencing exposure for the required basic sentences which the court

must impose for each count.” The district court also entered several conclusions of law,

which discussed the district court’s authority to sentence and concluded that it was required

by law to impose a forty-two-year sentence in the absence of aggravating or mitigating

factors. The district court determined that Defendant had “no grounds on which to be

allowed to withdraw his plea agreement” and denied Defendant’s motion to withdraw his

plea agreement.

{7} The Court of Appeals “reverse[d] the denial of Defendant’s motion to withdraw his

plea.” Id. ¶ 27. However, the Court of Appeals then also concluded “that the district court

rejected the plea agreement by sentencing Defendant to two years more than the maximum

contemplated by the agreement” and held that Defendant must be given the opportunity to

withdraw his plea or, if both parties agreed, “the district court may also re-sentence

Defendant in accordance with the plea.” Id. ¶ 28.

{8} The State petitioned for a writ of certiorari, which we granted. The State argues that

the district court sentenced Defendant in conformity with the explicit terms of the plea

agreement. We disagree with the State and agree with Defendant and the Court of Appeals

that the forty-two-year sentence violates the plea agreement. However, we reverse the Court

of Appeals’ remand order for the reasons explained below. We remand to the district court

to sentence Defendant according to his reasonable understanding of the plea agreement,

requiring that his sentence contain a total period of incarceration between ten and forty

years.

II. STANDARD OF REVIEW

{9} Since the State maintains that Defendant was sentenced according to the terms in the

plea agreement, our task is to evaluate the terms in the plea agreement. “Upon review,

[appellate courts] construe the terms of the plea agreement according to what Defendant

reasonably understood when he entered the plea.” State v. Fairbanks, 2004-NMCA-005, ¶

15, 134 N.M. 783, 82 P.3d 954 (internal quotation marks and citation omitted); accord State

v. Mares, 1994-NMSC-123, ¶ 12, 119 N.M. 48, 888 P.2d 930. “A plea agreement is a unique

form of contract whose terms must be interpreted, understood, and approved by the district

court.” State v. Gomez, 2011-NMCA-120, ¶ 9, 267 P.3d 831. If the language in the written

agreement is ambiguous, it is the district court’s task to resolve that ambiguity with the

parties. Id. If the court resolved the ambiguity, the agreement can no longer be said to be

ambiguous as to that point. Id. But if the court failed to resolve the ambiguity and there is
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no presentation of extrinsic evidence that would resolve it, then we “may rely on the rules

of construction, construing any ambiguity in favor of the defendant. Under such

circumstances, we review the terms of the plea agreement de novo.” Id. (internal quotation

marks and citation omitted).

{10} The State argues that the Court of Appeals erred in holding that the district court

abused its discretion by denying Defendant’s motion to withdraw his guilty plea. However,

the Court of Appeals ultimately evaluated the plea agreement for ambiguity using a de novo

standard. Miller, 2012-NMCA-051, ¶¶ 25-27. The abuse of discretion standard of review is

inappropriate in this case because Defendant was entitled to appeal the sentence based upon

his claim that it did not conform to the agreed upon plea agreement regardless of whether

he had ever moved to withdraw his pleas. N.M. Const. art VI, § 2 (providing that aggrieved

parties have the absolute right of one appeal); see, e.g., Gomez, 2011-NMCA-120

(addressing the defendant’s appeal of the district court’s sentence, which he argued violated

the terms of his plea agreement).

III. DISCUSSION

{11} As in this case, the interplay between our sentencing statutes is often the source of

confusion in disputes over whether a sentence complies with a plea agreement. The

Legislature has imposed basic sentencing requirements, but it has also granted courts broad

discretion over certain sentencing elements. NMSA 1978, Section 31-18-15(B) (2007)

requires that “[t]he appropriate basic sentence of imprisonment shall be imposed . . . unless

the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.”

(Emphasis added.) The Criminal Sentencing Act provides the guidelines for altering the

basic sentence, permitting the court to consider mitigating and aggravating factors to reduce

or increase the basic sentence by up to one-third. See NMSA 1978, § 31-18-15.1(A), (G)

(1993, amended 2009), held unconstitutional by State v. Frawley, 2007-NMSC-057, ¶ 29,

143 N.M. 7, 172 P.3d 144 (unconstitutionality abrogated by the 2009 amendment—the court

now must find that aggravating factors exist beyond a reasonable doubt). A sentencing court

also has authority to defer the sentence or suspend the execution of a sentence. See NMSA

1978, § 31-20-3(A), (B) (1985). Also, “whether multiple sentences for multiple offenses run

concurrently or consecutively is a matter resting in the sound discretion of the trial court.”

State v. Allen, 2000-NMSC-002, ¶ 91, 128 N.M. 482, 994 P.2d 728 (internal quotation marks

and citation omitted). Finally, the court has control over whether the maximum period of

incarceration applies solely to initial sentencing or to post-sentencing aspects as well, such

as probation revocation consequences. See NMSA 1978, § 31-21-15(B) (1989) (giving the

court broad discretion when a probation violation is established to “continue the original

probation, revoke the probation and either order a new probation with any condition

provided for in Section 31-20-5 or 31-20-6 NMSA 1978, or require the probationer to serve

the balance of the sentence imposed or any lesser sentence” or for deferred sentences, “the

court may impose any sentence which might originally have been imposed”).

{12} Parties have discretion in negotiating these sentencing and incarceration terms when
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forming a plea agreement. See Mares, 1994-NMSC-123, ¶ 11 (“[T]he parties should be able

to negotiate the terms of a plea agreement to the full extent allowed by law.”). A defendant

can negotiate for the actual sentence ordered at initial sentencing—within the limits of

Section 31-18-15.1—by negotiating for the consideration of mitigating factors or for the

State not to consider aggravating factors, as well as the amount of that sentence that the court

actually executes either through suspension or deferment, and even whether any of that

suspended time can be executed in post-sentencing procedures. See id. (rejecting the state’s

argument that a plea agreement promising a maximum period of incarceration deprives the

court from incarcerating a defendant for a probation violation and holding that this Court

will enforce such an agreed-upon provision). However, Rule 5-304(A)(1) NMRA commands

that the district court judge not be a participant in any plea negotiations between the state and

a defendant. “The judge’s role is explicitly limited to acceptance or rejection of the bargain

agreed to by counsel for the state, defense counsel, and defendant.” Rule 5-304, comm.

commentary.

{13} Consequently, it is vital that the language in a plea agreement unambiguously explain

which sentencing element has been bargained-for in order to avoid any misunderstandings

between the parties or between the parties and the court over whether a term applies to the

sentence to be ordered, the term of years that must be suspended, the initial period of

incarceration, or the maximum period of incarceration. If the language in a plea agreement

is unclear as to which sentencing element it contemplates, it is the court’s responsibility to

clarify the ambiguity so that the parties are truly in agreement and the court understands

exactly what sentence it is agreeing to order if it chooses to ratify the agreement. See Gomez,

2011-NMCA-120, ¶ 9.

A. Defendant’s Plea Agreement Is Ambiguous

{14} In this case, since the parties agreed to run the sentences for each count

consecutively, the court and the State are correct that the required starting point was a basic

sentence of forty-two years since Defendant pleaded to four second-degree felonies and two

third-degree felonies. See § 31-18-15(A)(6), (9) (stating the basic sentence for a second

degree felony is nine years imprisonment and the basic sentence for a third degree felony is

three years imprisonment). However, the district court was not bound by that figure. The

court could have reduced the basic sentence for mitigating factors per Section 31-18-

15.1(A)(1) by up to one-third, or fourteen years in this case. Further, the court also had

discretion to determine what part of the ordered sentence must actually be served in prison.

{15} The State and the district court disagreed with Defendant over whether the ten-year

minimum and forty-year maximum required by the plea agreement applied to the initial

period of incarceration that the court would order Defendant to serve in prison or to the total

incarceration time to which Defendant was agreeing to be exposed. Defendant maintains

that, as he understood it, he would face no more than forty years of incarceration under any

circumstance, while the State maintains that the agreement made clear he was exposing

himself to forty-two years of total incarceration if he violated probation conditions after
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serving the initial executed sentence.

{16} We examine the language in the plea agreement to evaluate the reasonableness of

Defendant’s understanding. We first note that the “maximum sentence of 40 years” language

in the plea agreement indicates that the actual sentence imposed by the court could be no

more than forty years. We agree with the Court of Appeals that the “at initial sentencing”

language does not transform the forty-year maximum sentence into a forty-year cap for the

initial period of incarceration. See Miller, 2012-NMCA-051, ¶¶ 21-22. The language simply

does not reflect the State’s intent for the period to apply to the initial period of incarceration.

{17} The State argues that other portions of the agreement made it clear to Defendant that

the court would be imposing a sentence of forty-two years, all of which he could potentially

serve. We observe that nowhere in the agreement does it state that the court was required to

or that it would be imposing a basic sentence of forty-two years. Under the heading

“PENALTIES” the plea agreement states, “[t]he maximum penalty for these charges are” and

then provides the basic sentence for each count to which Defendant pleaded guilty or no

contest. (Emphasis added). The “maximum” language indicates that the sentence could total

forty-two years if one did the math, not that it must.

{18} The State further argues that Defendant also knew he was exposing himself to a total

of forty-two years of potential incarceration based on the handwritten “42 year exposure”

clause in the agreement. However, according to Defendant, the State was not aware that the

sentences totaled forty-two years rather than forty and that he “did the math” himself. When

he discovered that the basic sentences could total forty-two years instead of forty, he insisted

that the district attorney “do something with that two years before [he] went in front of the

judge” because he “would not take” the additional two years. He told the State to “make [the

sentence] equal 40,” and the State responded by offering to “run it two years with parole.”

The confusing handwritten “42 year exposure” clause in the plea agreement was thus the

result of Defendant’s insistence to make the maximum time he could ever serve in prison be

forty years. Therefore, at least from Defendant’s perspective, the handwritten clause

certainly could not have been intended to represent his agreement to face up to forty-two

years incarceration total if he were to ever violate probation.

{19} The State claimed at oral argument that the “42 year exposure” clause was only

intended to indicate that at least two years of the forty-two year sentence would be

suspended, and that Defendant got an even better deal by getting nine years suspended.

However, even if that was the State’s intent, the language does not reflect that intent, as it

refers to concurrence, not suspension.

{20} It is unclear to us exactly what the handwritten clause explicitly required the court

to do, since the court does not have the authority to run a sentence concurrently with parole.

See § 31-18-15(D) (requiring that when a court suspends or defers a sentence, “the period

of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978

for the degree of felony for the basic sentence for which the inmate was convicted”); NMSA
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1978, § 31-21-10(D) (2009) (requiring a two-year period of parole for second and thirddegree felony convictions).

{21} This confusing handwritten clause that contains a promise that could not be fulfilled,

coupled with the promise of a ten- to forty-year “sentence,” render the language in the plea

agreement ambiguous. Defendant’s understanding that the language promised he would

receive a sentence between ten and forty years is not unreasonable since he cannot be

expected to understand the sentencing laws unless their repercussions were clear in the

agreement. Both the ten- to forty-year maximum “sentence” and the handwritten clause

demanded clarification that did not occur anywhere in the language of the plea agreement.

Thus, we next turn to whether the district court clarified these issues prior to sentencing

Defendant.

B. Since the District Court Failed to Resolve the Ambiguity Prior to Sentencing,

We Construe the Plea Agreement in Favor of Defendant’s Reasonable

Interpretation

{22} The State concedes that the plea agreement was not “artfully crafted.” However, it

argues that even if the plea agreement was ambiguous, the district court resolved the

ambiguity prior to sentencing by making its interpretation known to Defendant. The State

compares this case to our decision in Mares to support its conclusion that the district court

in this case resolved any ambiguity in the sentencing terms of the plea agreement. Mares

involved a similar dispute over a plea agreement that contained a sentencing provision of

nine years’ imprisonment with the requirement that the sentence “be suspended such that

there shall be no more than 24 months of potential actual incarceration ordered.” 1994-

NMSC-123, ¶ 2. This Court determined that the language in the agreement was ambiguous

as to whether the maximum of twenty-four months’ incarceration was limited to the initial

sentencing or if it covered post-sentencing procedures as well. Id. ¶ 13. However, this Court

observed that the district court resolved this facial ambiguity several times when it expressly

warned Mares that the cap applied only to the initial period of incarceration and that he

would face nine years’ incarceration total if he ever violated any conditions of probation. Id.

Mares appealed his sentence when the court subsequently sentenced him to the full nine-year

term of incarceration for violating his probation, arguing that his sentence should have been

capped at twenty-four months. This Court rejected his argument since the district court’s

warnings rendered Mares’ understanding unreasonable. Id. ¶ 19.

{23} The State’s reliance on Mares is misplaced. In this case, Defendant’s plea agreement

contained similarly ambiguous language as in Mares regarding the period of incarceration.

However, unlike in Mares, here the district court never clarified the actual number of years

Defendant faced if he violated probation. The State argues that the agreement’s warning that

Defendant could be incarcerated for the balance of the sentence if he ever violated probation

and the court’s warning that he could “face additional consequences in the future” resolved

the ambiguity. We disagree. These warnings lack the specificity that was present in Mares.

They did not resolve the ambiguity regarding whether the sentence cap was forty or forty-
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two years. Since Defendant reasonably understood that he faced no more than forty years

even if he violated probation, to him the “additional consequences” were limited to the

amount of time suspended between ten and forty years.

{24} The State also implies that the district court made Defendant aware he faced a fortytwo-year basic sentence when it advised Defendant of the basic sentences for each count,

arguing that the district court advised Defendant “of all the direct sentencing consequences.”

However, the record reflects that when the court discussed the sentence for each count, it

stated that for the second-degree felony offenses: “each of those counts carry with them a

basic sentence of up to [9] years in prison” and that “the third-degree felony offenses carry

basic sentences of up to three years in prison.” (Emphasis added). Informing Defendant that

he could face “up to” the basic sentence does not equate to informing him that he would be

receiving the basic sentence.

{25} Similarly, the district court never clarified the forty-two-year exposure language.

Defendant thought that the language was assuring that he would not be sentenced to the basic

sentence. The court never explained its contrary interpretation of this language; it merely

read it aloud. Later, at the presentment hearing on February 10, 2010, the district court

ultimately determined after reviewing the plea agreement that it contemplated that Defendant

would be sentenced to “40 years and two years parole” but that the court actually had given

Defendant a better deal by suspending nine years. However, since the court never explained

these contrary interpretations of this facially ambiguous clause prior to sentencing

Defendant, the court failed to resolve the ambiguity in the agreement.

{26} It remains unclear to us exactly what the parties intended the ambiguous handwritten

language in the plea agreement to require. After all, the parties and the court were still in

disagreement over the intended meaning of the language even at the February 10th

presentment hearing ordered by the Court of Appeals. It is clear, however, that the parties’

conflicting interpretations were not resolved before Defendant was sentenced. The State

asserted at oral argument that the “at initial sentencing” language in the plea agreement is

“a term of art” and “everyone basically agrees” that it refers to the initial period of

incarceration that would be ordered on an imposed sentence. However, Defendant clearly

was not in agreement with this purported understanding, and we will not impute this

understanding onto Defendant unless it was explained to him. Having never received a

contrary explanation, it was reasonable for him to conclude that the maximum forty-year

“sentence” indicated that the most time he could ever spend incarcerated for the pleaded

charges was forty years. Consequently, we resolve the ambiguity in favor of Defendant’s

reasonable interpretation.

{27} As the sentence stands, the court suspended nine years of a forty-two-year sentence.

The suspended years are conditioned on Defendant not violating any part of the judgment.

Although it is speculative whether he will violate any conditions, it is conceivable that a

court could impose the entire nine years suspended portion of his sentence, resulting in a

total prison term of forty-two years. This is two years more than Defendant reasonably
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believed he was accepting. Accordingly, we affirm the Court of Appeals’ decision that this

sentence must be vacated.

C. The Appropriate Remedy in This Case Is for Defendant to Be Resentenced by

the District Court According to His Understanding of the Plea Agreement

{28} Having determined that Defendant’s sentence was not in conformity with the plea

agreement, we now determine the appropriate remedy. “[T]he type of plea agreement

dictates whether the court is bound to impose the sentence disposition contained in the plea.”

State v. Pieri, 2009-NMSC-019, ¶ 30, 146 N.M. 155, 207 P.3d 1132. When a district court

accepts a plea agreement that merely contains a recommended sentence, “the court is not

bound by the sentencing recommendations or requests of the parties” and it is the court’s

responsibility to determine and impose the proper sentence. Id. If, however, the district court

has accepted a plea agreement for a guaranteed specific sentence, “the court is bound to

impose the sentence disposition contained in the plea.” Id. These principles are codified in

our Rule 5-304(C) NMRA, which provides that:

If the court accepts a plea agreement that was made in exchange for a

guaranteed, specific sentence, the court shall inform the defendant that it will

embody in the judgment and sentence the disposition provided for in the plea

agreement. If the court accepts a plea agreement that was not made in

exchange for a guaranteed, specific sentence, the court may inform the

defendant that it will embody in the judgment and sentence the disposition

recommended or requested in the plea agreement or that the court's judgment

and sentence will embody a different disposition as authorized by law.

{29} In Pieri we adopted the approach taken by the United States Supreme Court in

Santobello v. New York, 404 U.S. 257 (1971), when an accepted plea agreement has been

violated. 2009-NMSC-019, ¶¶ 14-18. In Santobello, the state and the defendant entered into

a plea agreement that required the state to refrain from recommending a sentence. 404 U.S.

at 258. The state subsequently recommended the maximum sentence at the sentencing

hearing. Id. at 259. Over the defendant’s objection to the state’s violation, the court

sentenced the defendant to the maximum sentence. Id. at 259-60. In doing so, the court stated

that it was uninfluenced by the state’s recommendation. Id. at 259. The Supreme Court

nonetheless reversed the sentence due to the state’s violation. Id. at 263. While Santobello’s

requested relief was the withdrawal of his guilty plea, the Court determined that the state

district court was “in a better position to decide whether the circumstances” of the case

required specific performance of the plea, which would require the defendant to be sentenced

by a different judge, or whether the defendant should be given the opportunity to withdraw

his plea. Id.

{30} In Pieri, the state and Pieri entered into a plea agreement in which the state promised

not to oppose Pieri’s request for a suspended sentence. 2009-NMSC-019, ¶ 2. The state then

subsequently opposed such a request at the sentencing hearing. Id. ¶ 3. This Court held “that
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under Santobello Defendant should have been given the opportunity to withdraw her plea

or receive specific performance of the plea agreement” and “remand[ed] to the district court

to afford Defendant this opportunity.” Id. ¶ 5.

{31} The primary distinction between those cases and this case is that they involved

recommended sentences, whereas in this case, the sentence was specific and guaranteed.

Moreover, the ambiguity in the instant plea agreement, which we resolve in favor of

Defendant’s reasonable understanding, led the district court to incorrectly impose a sentence

that it mistakenly believed had been agreed to by the parties. In fact, it was actually

sentencing beyond the forty year maximum period of incarceration that the Defendant

understood he bargained for. We hold that because the district court thought it was imposing

a guaranteed, specific sentence, when in fact the plea agreement was ambiguous on that

point, specific performance of the now unambiguous agreement is the appropriate remedy.

Accordingly, we reverse the Court of Appeals’ remand order that gives Defendant the option

to either withdraw his guilty and no contest pleas or to be sentenced according to his

understanding of the terms if the State agrees. See Miller, 2012-NMCA-051, ¶ 28. We

remand to the district court and order that it shall inform Defendant that it will embody in

the judgment and sentence the disposition provided for in the now unambiguous plea

agreement.

D. We Disavow Any Language in Pieri That Is Inconsistent With This Opinion

{32} At oral argument, Defendant argued that denying him the opportunity to withdraw

his pleas would conflict with our holding in Pieri. The State also conceded that under its

understanding of Pieri Defendant had that right unless this Court changed the law. The Court

of Appeals likewise interpreted Pieri to entitle Defendant to withdraw his pleas. Miller,

2012-NMCA-051, ¶ 28. Thus, we now explain why Pieri does not afford Defendant the

automatic right to withdraw his pleas.

{33} In Pieri, we held “that a court is not required to afford a defendant the opportunity

to withdraw his or her plea when it rejects a sentencing recommendation or a defendant’s

unopposed sentencing request, so long as the defendant has been informed that the

sentencing recommendation or request is not binding upon the court.” 2009-NMSC-019, ¶

1, overruling Eller v. State, 1978-NMSC-064, 92 N.M. 52, 582 P.2d 824. 

{34} Defendant’s argument that he is entitled to withdraw his guilty plea because the

district court did not impose the sentence contained in the plea agreement relies on dicta in

Pieri that we hereby disavow. In Pieri, we intended to compare our holding regarding when

a defendant does not get to withdraw his or her plea to when a defendant does get the

opportunity to withdraw a plea under Rule 5-304(D). See Pieri, 2009-NMSC-019, ¶ 33 (“We

adhere to the requirement of Rule 5-304(D) that if the court accepts a defendant’s plea in

exchange for a guaranteed, specific sentence and that sentence is not imposed, the court must

give the defendant an opportunity to withdraw his or her plea.”). However, since it was

unnecessary to explain when a defendant does have the automatic right to withdraw a plea,
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the reference to Rule 5-304(D) is dicta and cannot therefore be presently relied upon by

Defendant. As we have explained, once a court has accepted a plea agreement, it is bound

by the dictates of due process to enforce the agreement. It has no authority to later reject the

agreement. Because the misstatement regarding Rule 5-304(D) is an inaccurate reflection

of the requirement in the rule, it should not be relied upon in this or any future case.

E. Sentences Must Comply With Both Our Sentencing Laws and an Accepted Plea

Agreement

{35} Finally, the State argues that the Court of Appeals erred in declining to consider

whether the court that approves a plea agreement must honor the plea agreement even if it

contains an illegal sentence. The Court of Appeals refused to decide “whether the district

court erred in determining that our sentencing laws require the imposition of a basic sentence

of forty two years” because the parties did not raise the issue. Miller, 2012-NMCA-051, ¶

16. Rather, it determined that “it was the plea agreement, not the sentencing statutes, which

the district court was bound to enforce.” Id. We agree with the State that a sentencing court

must ensure that a sentence complies with both the terms of an accepted plea agreement and

our sentencing laws.

{36} The Court of Appeals correctly considered the ruling in Gomez that “[o]nce 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.”

See id. (quoting Gomez, 2011-NMCA-120, ¶ 16). However, as the State argues, the court

must also be mindful of our sentencing statutes and cannot impose an illegal sentence. See

§ 31-18-15(B) (“The appropriate basic sentence of imprisonment shall be imposed . . . unless

the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.”

(emphasis added)); Mares, 1994-NMSC-123, ¶ 10 (holding that a district court can only

impose sentences authorized by law); see also Sneed v. Cox, 1964-NMSC-250, ¶ 8, 74 N.M.

659, 397 P.2d 308 (“[S]entences which are unauthorized by law are null and void.”); State

v. Lucero, 1944-NMSC-036, ¶¶ 17-18, 48 N.M. 294, 150 P.2d 119 (determining that legal

sentences must be supported by statutory authority; illegal sentences are void). If the

sentence in an accepted plea agreement is illegal, and therefore cannot be imposed by a

court, then the court must give the defendant the opportunity to withdraw the plea. Sisneros,

1982-NMSC-068, ¶ 8 (reversing the Court of Appeals’ reinstatement of an illegal sentence

and ordering that the correct remedy was to permit the defendant to withdraw his plea).

{37} Thus, when Defendant is re-sentenced upon remand, the sentence must honor both

Defendant’s understanding of the plea agreement and our sentencing laws. Although

Defendant’s understanding that two years of the forty-two-year sentence be run concurrent

with parole cannot be honored, there are several ways to ensure that the sentence adheres to

his understanding that he would face no more than forty years of incarceration for the

pleaded charges. Accordingly, we offer two sentencing options to the district court.

{38} First, the court can consider running concurrently any one of the sentences it must
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impose. We recognize that the plea agreement dictates that the sentences be run

consecutively, but this requirement conflicts with the handwritten language that

contemplates running part of the sentence concurrent with parole. Since we are presented

with two conflicting provisions, we conclude that to harmonize both provisions, the fortyyear cap must be seen as a cap on what can be run consecutively. Alternatively, the court

could adjust the statutorily required basic sentence by up to one-third upon the finding of

mitigating factors justifying the reduction—perhaps Defendant’s willingness to plead guilty.

IV. CONCLUSION

{39} This case demonstrates why it is essential that a district court clarify any ambiguity

in a plea agreement, including those related to sentencing provisions, before it decides

whether to accept or reject the plea agreement. If the district court does not resolve the

ambiguity, the language in the plea agreement will be construed in favor of a defendant’s

reasonable understanding. Once a court has accepted a plea agreement, it must ensure that

the promises contained in the agreement are fulfilled. If the agreement contains a guaranteed,

specific sentence, the court is bound by the dictates of due process to impose that sentence.

{40} Since the district court in this case failed to resolve the ambiguity in the plea

agreement that it accepted, we construe the agreement in favor of Defendant’s reasonable

understanding that he would spend no more than forty years incarcerated. We therefore

affirm the Court of Appeals’ conclusion that Defendant’s sentence violates his plea

agreement, but we reverse its remand order and remand this matter to the Court of Appeals

for resolution of Defendant’s remaining issues.

{41} IT IS SO ORDERED.

____________________________________

BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

CHARLES W. DANIELS, Justice
13

Topic Index for State v. Miller, No. 33,571

APPEAL AND ERROR

Remand

Standard of Review

State’s Right to Appeal

CONTRACTS

Ambiguous Contracts

CRIMINAL LAW

Fraud

CRIMNAL PROCEDURE

Aggravating or Mitigating Circumstances

Plea and Plea Bargaining

Sentencing

JUDGES

Abuse of Discretion