This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 30,655 9 RONALD LUSK, 10 Defendant-Appellant. 11
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Robert M. Schwartz, District Judge 13 Gary K. King, Attorney General 14 Margaret E. McLean, Assistant Attorney General 15 Joel Jacobsen, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 222 CASTILLO, Judge. 1 Defendant is appealing from a district court judgment and sentence filed after 2 he entered a plea of no contes t to sexual exploitation of children (manufacturing). We 3 issued a calendar notice proposing to reverse. The State has filed a motion to dismiss 4 the appeal and, alternatively, a memorandum in opposition. We hereby deny the 5 State’s motion to dismiss. See State v. Fairbanks , 2004-NMCA-005, ¶ 17, 134 N.M. 6 783, 82 P.3d 954 (rejecting the state’s argument because it is “asking this Court to 7 read language into the plea to find that th e [d]efendant agreed to an illegal sentence” 8 (emphasis omitted)). We reverse the district court and remand for re-sentencing. 9 Defendant’s sole issue is that he shoul d have received presentence confinement 10 credit back to the date of his original arrest , instead of from the date of the indictment. 11 The pertinent statute provides, “A person he ld in official confinement on suspicion or 12 charges of the commission of a felony shall, upon conviction of that or a lesser 13 included offense, be given credit for the period spent in presentence confinement 14 against any sentence finally imposed for that offense.” NMSA 1978, § 31-20-12 15 (1977). This provision has been interpreted to allow for presentence confinement 16 credit only if the confinement was a directresult of the felony for which credit is 17 sought. See State v. Facteau , 109 N.M. 748, 750, 790 P.2d 1029, 1031 (1990) 18 (discussing precedent for the proposition that credit may properly be awarded only if 193 the confinement was a direct result of the o ffense). We consider three factors: (1) 1 whether defendant was originally confined , (2) whether the charges related to the 2 sentence triggered the confinement, and (3 ) whether bond was set in the case related 3 to the sentence. Id. 4 Here, Defendant was arre sted on May 12, 2008, for allegedly violating his 5 parole in three ways: committing the crime th at is the basis of the current judgment 6 and sentence, possessing a knife, and failing toreport. [MIO 6; DS 2] The parole 7 board revoked Defendant’s parole on thes e grounds, and Defendant completed his 8 remaining parole period in prison. [DS 2] In sentencing Defendant in the present 9 case, the district court determined that, although the parole violation revocation related 10 to this case, Defendant was not entitled to presentence confinement credit because 11 there were two other violations related to parole revocation. [DS 3]. 12 Under these circumstances, our calendar no tice proposed to hold that the district 13 court improperly denied Defendant presentence confinement credit. See generally 14 State v. Miranda , 108 N.M. 789, 794, 779 P.2d 976, 981 (Ct. App. 1989) (“The 15 determinative issue for presentence confin ement credit is whether the basis for the 16 confinement was actually related to the charge upon which the final conviction and 17 sentence are based.” (emphasi s added)). A defendant may be entitled to presentence 18 confinement credit even if the confinement is not exclusivelyrelated to the charges for 194 which the defendant is ultimately sentenced. See State v. Ruiz , 120 N.M. 420, 420, 1 902 P.2d 575, 575 (Ct. App. 1995) (“[A]s long as the confinement is related to the 2 charges for which the defendant is ultimately sentenced, credit must be given, even 3 if the confinement is not exclusively related to those charges.”). There must be some 4 relationship between the confinement and those charges. See Miranda , 108 N.M. at 5 792, 779 P.2d at 979 (“[I]f the confinement is not related to the charges for which 6 [the] defendant seeks credit, he is not entitled to credit.”); cf. State v. Romero , 7 2002-NMCA-106, ¶ 13, 132 N.M. 745, 55 P.3d 441 (noting that the Facteauthree8 part test is applicable where there are separate sentencing proceedings). 9 In its memorandum in opposition, the State argues that, because Defendant was 10 on parole at the time the criminal sexual exploitation and other violations occurred, 11 the revocation was merely an increase in the onerousness of his custody. The State 12 relies on Ruiz , 120 N.M. at 421, 902 P.2d at 576. [M IO 6-7] However, the defendant 13 in Ruizwas already incarcerated, and a change in the conditions of his incarceration 14 was the only thing related to the subsequent offense. Id. We disagree with the State’s 15 argument that parole is the equivalent of incarceration. We also disagree with the 16 State’s contention that defendants who commit crimes while on parole will receive a 17 windfall through double credit. As discussed above, it is true that some defendants 18 in varying circumstances will receive double credit. The result in some cases, 195 however, does not change the express languageof the presentence confinement statute 1 and our well-established case law. 2 For the reasons stated above, we re verse and remand for re-sentencing. 3 IT IS SO ORDERED. 4

________________________________ 5 CELIA FOY CASTILLO, Judge 6 WE CONCUR: 7

__________________________________ 8 MICHAEL D. BUSTAMANTE, Judge 9

__________________________________ 10 TIMOTHY L. GARCIA, Judge 11