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Swindler’s Sentence Reversed

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A court has reversed the 42-year sentence of a con man who ran a scam from behind bars while awaiting trial on a $600,000 swindle.

The court said the sentence imposed violated his plea agreement with prosecutors, which called for a maximum of 40 years.

The New Mexico Court of Appeals, in an opinion filed this week, reversed the district court’s denial of Andrew Miller’s request to withdraw his plea. The case now goes back to the Second Judicial District Court for a second time.

Miller, 41, is at the Penitentiary of New Mexico for racketeering, forgery, fraud, and conspiracy to commit racketeering.

He was indicted in two cases in 2006 and 2007 on 61 charges of embezzlement and forgery that together carried a potential sentence of 250 years. In one case, he was accused of posing as a lawyer to obtain power of attorney over a 68-year-old woman who was hospitalized. He was charged with withdrawing over $600,000 from a savings account and using it to buy seven cars.

Miller was serving time on bad check charges and awaiting trial on the fraud case when police investigators discovered he was using Metropolitan Detention Center phones to arrange for bad checks to pay expenses for a rap convention.

A travel agency had arranged air travel for musicians and record company representatives attending the convention but found itself holding an $18,000 worthless check. An Albuquerque judge later revoked Miller’s phone privileges.

Miller entered a plea agreement in which all but six of the 61 pending counts were dismissed. The plea agreement called for a minimum of 10 years and maximum of 40 years at initial sentencing.

At the sentencing hearing, the prosecution asked for 42 years, saying it was appropriate because he admitted to operating a business called “Leisure Entertainment” from jail despite his agreement that he would not.

The judge entered a sentence of 42 years with nine years suspended.

The appeals court sent the case back to Judge Kenneth Martinez earlier to clarify the sentence, and after a February 2010 hearing, he filed more documents making it clear he understood the plea agreement to require 42 years.

On appeal, the state argued that the 42-year sentence was consistent with the plea deal.

But the opinion by Judge Michael Bustamante, joined by Judges James Wechsler and Miles Hanisee, concludes that the state made a specific, enforceable promise.

No defendant, the opinion says, would reasonably understand that 40 years didn’t really mean that.

“Under the state and district court’s reading of the sentence cap, a 1,000 year sentence, with 960 years suspended, would have complied with the 40-year cap,” the opinion says.

The district court said the language used in the plea agreement was “custom and practice in the Second Judicial District.”

“We now hold that practice is inadequate,” the opinion says. “The meaning of the agreement is determined not by the understanding of prosecutors and judges but by what the defendant understood when entering the plea.”
— This article appeared on page C1 of the Albuquerque Journal

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