STATE OF NEW MEXICO v. EDWARD HUMPHREY

Defendant advances two arguments. First, he contends that sentence imposed5

by the district court exceeds the maximum allowable sentence. [MIO 5-9] He suggests6

that the sentence is illegal insofar as it fails to award him pre-sentence confinement7

credit, specifically contending that the nearly six-month period between the time of8

his arrest and the time of sentencing was not properly accounted for. [MIO 3, 7]9

However, Defendant further contends that even an adjustment for this claimed error10

would not provide full relief for the magnitude of the “miscalculation” that Defendant11

perceives. [MIO 6-7]12

{3} “This court has held that a convicted defendant may challenge the legality of13

his sentence for the first time on appeal, because the trial court has no jurisdiction to14

impose an illegal sentence. However, there must be some solid basis for challenging15

the sentence in order for an appellate court to take action.” State v. Graham,16

2003-NMCA-127, ¶ 5, 134 N.M. 613, 81 P.3d 556, (internal quotation marks and17

citations omitted), rev’d on other grounds, 2005-NMSC-004, 137 N.M. 197, 109 P.3d18

3

285. In this case, the specificity of the sentence suggests that the district court1

undertook to calculate with precision. Unfortunately, the record before us does not2

indicate how the district court arrived at the six-year, one hundred sixty-seven day3

figure. 4

{4} Defendant’s argument appears to be premised on the assumption that the district5

court did not contemplate further diminution of the stated six-year, 167 day term to6

reflect time served on probation. See State v. Baca, 2005-NMCA-001, ¶ 21, 136 N.M.7

667, 104 P.3d 533 (“A probationer whose sentence has been suspended is entitled to8

credit against his or her sentence for the time served on probation.”). However, it is9

not at all clear that this is the case. As we observed in the notice of proposed summary10

disposition, [CN 4] the district court’s order may fairly be read to reflect the six-year,11

167 day sentence is to be further reduced based on Defendant’s entitlement to credit12

for all time served on the original probation, (less 145 days of absconding). [RP 157]13

See, e.g., State v. Ruiz, 1989-NMCA-109, ¶¶ 5-7, 109 N.M. 437, 786 P.2d 51 (taking14

a similar approach relative to crediting for presenting confinement, and noting our15

expectation that the Legislature used the word “sentence” consistently throughout the16

sentencing statutes to refer “to the term of incarceration imposed by the court before17

credit” is applied (emphasis added)), superseded in statute by 1999-NMSC-004, 12618

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N.M. 642, 974 P.2d 136. Such crediting would eliminate the claimed overage, and1

then some. 2

{5} To the extent that Defendant may believe the Department of Corrections will3

disregard the district court’s directive to credit him for time served on probation, as4

we previously observed Defendant’s concern is speculative and premature. However,5

to the extent that Defendant perceives a need for greater clarity, we suggest that6

habeas proceedings would be the appropriate avenue. See Rule 5-802 NMRA; see also7

Graham, 2003-NMCA-127, ¶ 8 (suggesting that post-conviction proceedings should8

be pursued in order to obtain relief from a problematic sentence, where the record is9

insufficient on appeal); cf. State v. Torres, 2012-NMCA-026, ¶ 27, 272 P.3d 68910

(concluding that “the current version of Rule 5-801(A) reflects a clear intent to strictly11

limit the district court’s jurisdiction to habeas corpus proceedings to correct an illegal12

sentence”).13

{6} By his second argument, Defendant continues to assert that the prosecutor14

should have been disqualified by virtue of her prior representation of him. [MIO 10-15

15] We remain unpersuaded. As we observed at greater length in the notice of16

proposed summary disposition, [CN 3-4] applying the analytical framework supplied17

by State v. Barnett, 1998-NMCA-105, 125 N.M. 739, 965 P.2d 323, to pertinent18

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historical facts as previously described in the docketing statement, [DS 4; MIO 3] the1

prior representation supplies no basis for relief. Although Defendant now suggests2

a different version of the facts, [MIO 3-4] as Defendant frankly acknowledges, “this3

issue regards facts that were not made part of the district court record.” [MIO 10]4

Under such circumstances, we simply observe that habeas proceedings would supply5

the appropriate avenue if Defendant wishes to pursue the matter further. See State v.6

Crocco, 2014-NMSC-016, ¶ 24, 327 P.3d 1068 (noting that “[i]f facts beyond those7

in the record on appeal could establish a legitimate claim of ineffective assistance of8

counsel, [a d]efendant may assert it in a habeas corpus proceeding where an adequate9

factual record can be developed for a court to make a reasoned determination of the10

issues”).

The judgment of the district court is affirmed.