1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 30,655

10 RONALD LUSK,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

13 Robert M. Schwartz, District Judge

14 Gary K. King, Attorney General

15 Margaret E. McLean, Assistant Attorney General

16 Joel Jacobsen, Assistant Attorney General

17 Santa Fe, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender

20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION
2

1 CASTILLO, Judge.

2 Defendant is appealing from a district court judgment and sentence filed after

3 he entered a plea of no contest to sexual exploitation of children (manufacturing). We

4 issued a calendar notice proposing to reverse. The State has filed a motion to dismiss

5 the appeal and, alternatively, a memorandum in opposition. We hereby deny the

6 State’s motion to dismiss. See State v. Fairbanks, 2004-NMCA-005, ¶ 17, 134 N.M.

7 783, 82 P.3d 954 (rejecting the state’s argument because it is “asking this Court to

8 read language into the plea to find that the [d]efendant agreed to an illegal sentence”

9 (emphasis omitted)). We reverse the district court and remand for re-sentencing.

10 Defendant’s sole issue is that he should have received presentence confinement

11 credit back to the date of his original arrest, instead of from the date of the indictment.

12 The pertinent statute provides, “A person held in official confinement on suspicion or

13 charges of the commission of a felony shall, upon conviction of that or a lesser

14 included offense, be given credit for the period spent in presentence confinement

15 against any sentence finally imposed for that offense.” NMSA 1978, § 31-20-12

16 (1977). This provision has been interpreted to allow for presentence confinement

17 credit only if the confinement was a direct result of the felony for which credit is

18 sought. See State v. Facteau, 109 N.M. 748, 750, 790 P.2d 1029, 1031 (1990)

19 (discussing precedent for the proposition that credit may properly be awarded only if
3

1 the confinement was a direct result of the offense). We consider three factors: (1)

2 whether defendant was originally confined, (2) whether the charges related to the

3 sentence triggered the confinement, and (3) whether bond was set in the case related

4 to the sentence. Id.

5 Here, Defendant was arrested on May 12, 2008, for allegedly violating his

6 parole in three ways: committing the crime that is the basis of the current judgment

7 and sentence, possessing a knife, and failing to report. [MIO 6; DS 2] The parole

8 board revoked Defendant’s parole on these grounds, and Defendant completed his

9 remaining parole period in prison. [DS 2] In sentencing Defendant in the present

10 case, the district court determined that, although the parole violation revocation related

11 to this case, Defendant was not entitled to presentence confinement credit because

12 there were two other violations related to parole revocation. [DS 3].

13 Under these circumstances, our calendar notice proposed to hold that the district

14 court improperly denied Defendant presentence confinement credit. See generally

15 State v. Miranda, 108 N.M. 789, 794, 779 P.2d 976, 981 (Ct. App. 1989) (“The

16 determinative issue for presentence confinement credit is whether the basis for the

17 confinement was actually related to the charge upon which the final conviction and

18 sentence are based.” (emphasis added)). A defendant may be entitled to presentence

19 confinement credit even if the confinement is not exclusively related to the charges for
4

1 which the defendant is ultimately sentenced. See State v. Ruiz, 120 N.M. 420, 420,

2 902 P.2d 575, 575 (Ct. App. 1995) (“[A]s long as the confinement is related to the

3 charges for which the defendant is ultimately sentenced, credit must be given, even

4 if the confinement is not exclusively related to those charges.”). There must be some

5 relationship between the confinement and those charges. See Miranda, 108 N.M. at

6 792, 779 P.2d at 979 (“[I]f the confinement is not related to the charges for which

7 [the] defendant seeks credit, he is not entitled to credit.”); cf. State v. Romero,

8 2002-NMCA-106, ¶ 13, 132 N.M. 745, 55 P.3d 441 (noting that the Facteau three9 part test is applicable where there are separate sentencing proceedings).

10 In its memorandum in opposition, the State argues that, because Defendant was

11 on parole at the time the criminal sexual exploitation and other violations occurred,

12 the revocation was merely an increase in the onerousness of his custody. The State

13 relies on Ruiz, 120 N.M. at 421, 902 P.2d at 576. [MIO 6-7] However, the defendant

14 in Ruiz was already incarcerated, and a change in the conditions of his incarceration

15 was the only thing related to the subsequent offense. Id. We disagree with the State’s

16 argument that parole is the equivalent of incarceration. We also disagree with the

17 State’s contention that defendants who commit crimes while on parole will receive a

18 windfall through double credit. As discussed above, it is true that some defendants

19 in varying circumstances will receive double credit. The result in some cases,
5

1 however, does not change the express language of the presentence confinement statute

2 and our well-established case law.

3 For the reasons stated above, we reverse and remand for re-sentencing.

4 IT IS SO ORDERED.

5 ________________________________

6 CELIA FOY CASTILLO, Judge

7 WE CONCUR:

8 __________________________________

9 MICHAEL D. BUSTAMANTE, Judge

10 __________________________________

11 TIMOTHY L. GARCIA, Judge