Presentence Confinement Credit for House Arrest

In State v. Fellhauer, we noted that our analysis of the law of presentence confinement credit is guided by a desire to "simplify the sentencing court's inquiry to the extent possible" by providing a clear guide that does not require fact intensive inquiries into whether specific conditions of release subject a defendant to jail-type confinement. 1997 NMCA 64, PP15-16. As such, we must decide, as a matter of law, whether house arrest under a community custody release program entitles a defendant to presentence credit for time spent in the program. We review issues involving the interpretation and application of law de novo. See State v. Roman, 1998 NMCA 132, P8, 125 N.M. 688, 964 P.2d 852. In Fellhauer, 1997 NMCA 64, P17, 123 N.M. 476, 943 P.2d 123, we held that time spent outside of jail may qualify as "official confinement" for the purposes of receiving presentence confinement credit under Section 31-20-12, when: (1) a court has entered an order releasing the defendant from a facility but has imposed limitations on the defendant's freedom of movement, OR the defendant is in the actual or constructive custody of state or local law enforcement or correctional officers; (2) the defendant is punishable for a crime of escape if there is an unauthorized departure from the place of confinement or other non-compliance with the court's order. In Fellhauer, we noted that the "conditions included in a release order modeled after Rules 9-302 and 9-303 . . . as they exist today would normally not be sufficient to earn the credit." 1997 NMCA 64, P18, 123 N.M. 476. These rules have not been amended since Fellhauer was decided. With respect to limitations on freedom of movement, Rules 9-302 and 9-303 provide the following standard condition: "I will not leave my residence between the hours of __ (p.m.) and __ (a.m.) without prior permission of the court." We agree that a curfew, without more, is an insufficient restriction on movement to entitle a defendant to presentence credit. However, house arrest is substantially more onerous than a curfew. In Fellhauer the defendant was not allowed to leave home except for specified events. In addition, Defendant compliance with the conditions of release were monitored by correctional officers through the electronic monitoring program. See Fellhauer, 1997 NMCA 64, P16, 123 N.M. 476, 943 P.2d 123 (noting that the identity of a custodian is an important factor to consider in determining whether a person is in official confinement). Given this level of monitoring, the conditions of Defendant's house arrest are in many ways similar to the conditions of constructive custody under the inmate release program.