August 4, 2016 – State v. Kenneth Eugene Gray, No. 33,940

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: August 4, 2016
NO. 33,940
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
KENNETH EUGENE GRAY,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Kenneth H. Stalter, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	This appeal involves Defendant Kenneth Gray’s criminal liability under NMSA
1978, Section 66-8-101(C) (2004, amended 2016) (current version at Section 66-8-
101(E)), for a third degree felony of driving while intoxicated (DWI) causing great
bodily harm to a human being. The human being was Defendant. The appeal also
involves a sixteen-year enhancement to a three-year basic sentence. The enhancement
was based on four prior DWI convictions. Defendant questions the applicability of the
liability and sentencing provisions of Section 66-8-101, and the failures of his counsel
and the district court to advise him at the plea stage of the enhancement.
{2} 	We hold that Section 66-8-101(C) does not apply to Defendant, the perpetrator,
where the great bodily injury resulting from his unlawful conduct was to himself and
not to others. Although this holding requires reversal and vacation of the judgment
and sentence associated with Defendant’s plea, we choose also to discuss the
sentencing statute, Section 66-8-101(D) (current version at Section 66-8-101(F)),
under which Defendant was sentenced, and we hold that Defendant was improperly
sentenced. Further, we take this opportunity to once again remind lower courts and
defense counsel of their obligations in plea circumstances.

1 In a plea-related hearing, the district court noted that the original charge
against Defendant stated that two named victims had suffered great bodily harm. The
prosecution told the court that those victims’ injuries did not rise to the level of great
bodily harm. The original charge was amended to reflect that it was Defendant’s
injuries that amounted to great bodily harm.
2 During the plea hearing, the district court asked Defendant for his plea to
Count 1, “great bodily harm by vehicle, driving while under the influence of
intoxicating liquor or any drug,” as described in Section 66-8-101(C). At this hearing,
Defendant initially pleaded no contest. The State noted that the plea and disposition
agreement called for Defendant to plead guilty. The court asked Defendant again for
his plea to Counts 1 and 4, and Defendant pleaded guilty. The court’s judgment
marked the “no contest” box.
BACKGROUND
{3} 	When the arresting officer responded to a report of a possible drunk driver, he
found Defendant sitting in the right front seat of a truck that had collided with another
vehicle. Defendant was bleeding from his face and head, holding his chest and head,
and appeared to be in great pain, and the steering wheel was severely bent inward.
Two persons in the other vehicle were also injured, but the injuries to these victims
were not the subject of the charge under Section 66-8-101(C) to which Defendant
pleaded guilty.1 Based on clear evidence of DWI, Defendant was charged with
violating Section 66-8-101(B) and (D) and, in a written plea and disposition
agreement, pleaded guilty to Section 66-8-101(B) based on having committed great
bodily harm to himself in the collision.2 Defendant was also charged with DWI fourth
or subsequent offense, a fourth degree felony, contrary to NMSA 1978, Section 66-8-

102(D)(2), (G) (2010, amended 2016). Defendant’s plea agreement recites that a DWI
charge under Section 66-8-102(A), a special fourth degree felony, “will be dismissed.”
{4} 	Section 66-8-101(C), the provision to which Defendant pleaded guilty during
his plea hearing, reads:
A person who commits . . . great bodily harm by vehicle while under the
influence of intoxicating liquor . . . is guilty of a third degree felony and
shall be sentenced pursuant to the provisions of [NMSA 1978,] Section
31-18-15 [(2007, amended 2016).]
“Great bodily harm by vehicle” is defined in Section 66-8-101(B) as “the injuring of
a human being, to the extent defined in [NMSA 1978,] Section 30-1-12 [(1963)], in
the unlawful operation of a motor vehicle.” Section 30-1-12(A) defines “great bodily
harm” as “an injury to the person which creates a high probability of death; or which
causes serious disfigurement; or which results in permanent or protracted loss or
impairment of the function of any member or organ of the body[.]”
{5} 	For a Section 66-8-101(C) third degree felony, the basic sentence as set out in
Section 31-18-15(A)(9) (current version at Section 31-18-15(A)(11)) is three years
imprisonment. Section 66-8-101(D) provides enhancements to the basic sentence as
follows:
A person who commits . . . great bodily harm by vehicle while under the
influence of intoxicating liquor . . . as provided in Subsection C of this
section, and who has incurred a prior DWI conviction within ten years
of the occurrence for which he is being sentenced under this section shall
have his basic sentence increased by four years for each prior DWI
conviction.

3 Interestingly, at the plea hearing, the district court appeared somewhat
skeptical as to whether the statute meant great bodily harm to Defendant. The
discussion was:
Court: 	Who had the great bodily harm, him?
{6} 	Defendant does not dispute that he admitted in his plea agreement and at the
plea hearing that he drove under the influence of alcohol causing the collision.
Further, in pleading to a violation of Section 66-8-101(C), he necessarily admitted that
his injuries rose to the level of great bodily harm under Section 66-8-101(B) and (C).
And he admitted that he had four prior DWI convictions dated in 1987, 1996, 2006,
and 2008. At sentencing, the prosecution argued that under Section 66-8-101(D) and
(E) the four prior DWI convictions should add four four-year enhancements to
Defendant’s basic three-year sentence, totaling nineteen years. The district court
agreed.
{7} 	The circumstances underlying the plea and sentencing concerns are telling.
After first using the injuries of others to charge Defendant in magistrate court, in
district court, the State switched to Defendant’s own injuries—a ruptured aorta valve
and a dislocated hip—as the factual basis to support the charge and the plea. The
crime required that “a human being” suffer great bodily harm. See § 66-8-101(B).
Although not made a point of error on appeal, throughout the proceedings defense
counsel did not argue and Defendant was unaware that the statute’s wording, “the
injuring of a human being,” could be viewed as unclear. 3 Defendant contends on

State: 	It was actually, him, Your Honor.
Court: 	Even if it’s your own self, huh?
State: 	I didn’t find anything to indicate that I could not charge it
that way.
appeal that the statute is, indeed, unclear and must be interpreted to exclude the
perpetrator within the intended coverage of “human being,” and therefore, the crime
to which Defendant pleaded guilty was nonexistent, requiring vacation of his
conviction.
{8} 	Further, it is undisputed that Defendant was not informed by his counsel, the
prosecution, or the district court that his having admitted in his plea and disposition
agreement to the existence of four prior DWI convictions would trigger enhancement
of his basic three-year sentence and how much additional prison time he would face.
The plea and disposition agreement stated only that the maximum penalties for the
charge were “[third] degree felony—3 years/$5,000 fine[.]” At the plea point in time,
Defendant had been informed only that he would receive a three-year basic sentence
for the DWI offense. Before he was sentenced, a pre-sentence report recommended
that Defendant’s total prison time for the DWI third degree felony be three years
followed by two years parole.
{9} 	At sentencing, the prosecution argued for enhancement of Defendant’s basic
three-year sentence by sixteen additional years. It was clear that two of the four prior

convictions occurred outside of the ten-year limitation in Section 66-8-101(D). While
defense counsel argued that only two of the four prior DWI convictions should be
considered in sentencing, that the statute was ambiguous, and that the rule of lenity
should apply, there is no indication that defense counsel or the district court discussed
with Defendant whether he might want to consider withdrawing his plea, when the
district court interpreted the statute to include all four of the prior convictions and
sentenced Defendant to nineteen years.
{10} 	Finally, along the same lines, at sentencing the prosecution argued that two
persons, in addition to Defendant, were severely injured in the collision. The district
court believed that to be so, and as a result, designated the crime as a serious violent
offense under the Earned Meritorious Deductions Act, NMSA 1978, § 33-2-34 (2006,
amended 2015), thereby substantially limiting Defendant’s good time credit. Defense
counsel did not argue against that determination.
{11} 	Based on the underlying circumstances, Defendant asserts the following six
points on appeal: (1) Defendant should be allowed to withdraw his plea because the
plea was based on a nonexistent crime; (2) this Court should reverse and remand to
enforce the plea agreement pursuant to Defendant’s reasonable understanding of that
agreement; (3) alternatively, the district court’s failure to inform Defendant of the
possible sentencing enhancements he faced by pleading guilty renders the plea
involuntary; (4) as a second alternative, because the record establishes a prima facie

case of ineffective assistance of counsel, this Court should reverse to allow Defendant
to withdraw his plea; (5) the sixteen-year enhancement was erroneous; and (6) the
district court’s misunderstanding of the factual basis of the plea led to sentencing
errors requiring reversal. Defendant asks this Court to “vacate his conviction[ to]
allow him to withdraw his plea[] or grant him a new sentencing.”
DISCUSSION
The Dispositive Issue of Application of “Human Being” to the Perpetrator
{12} 	Defendant asserts that Section 66-8-101(C) is inapplicable to his conduct, and
as such, he was charged with and convicted of a “nonexistent crime.” Pursuant to
statutory construction, we review de novo whether a statute is correctly applied to a
person’s conduct. See State v. Office of the Pub. Def. ex rel. Muqqddin, 2012-NMSC-
029, ¶ 13, 285 P.3d 622.
{13} 	The State sets out various arguments to persuade us that the Legislature
intended “a human being” in Section 66-8-101(C) to include the perpetrator. First, is
the State’s plain-language argument that nothing in the text of the statute limits the
crime to injuries inflicted on others and that we are not to read new language into a
statute. Along the same lines, the State argues that the Legislature knows how to limit
the scope of a crime when it means to, has not limited the scope here, and has enacted
statutes that explicitly apply only when the perpetrator harms another person. See
NMSA 1978, § 66-8-101.1(A) (1985) (regarding injury to a pregnant woman by

vehicle); NMSA 1978, § 30-3-5(A) (1969) (“Aggravated battery consists of the
unlawful touching or application of force to the person of another[.]”); NMSA 1978,
§ 30-15-1 (1963) (“Criminal damage to property consists of intentionally damaging
. . . property of another[.]”); NMSA 1978, § 30-9-12(A) (1993) (“Criminal sexual
contact is the unlawful and intentional touching of or application of force . . . to the
. . . intimate parts of another[.]”); NMSA 1978, § 30-17-5(A)(3) (2006) (“Arson
consists of a person maliciously or willfully starting a fire . . . with the purpose of
destroying or damaging . . . the property of another[.]”). The State’s point is that the
Legislature deliberately chose not to use the word “another” in Section 66-8-101(B).
{14} 	Section 66-8-101.1(A) relates specifically to injury by vehicle that criminalizes
injury to a pregnant woman. Section 66-8-101.1(A) states that “[i]njury to pregnant
woman by vehicle is injury to a pregnant woman by a person other than the woman
in the unlawful operation of a motor vehicle causing her to suffer a miscarriage or
stillbirth as a result of that injury.” Under Section 66-8-101.1(C), a perpetrator who
causes such injury while under the influence of intoxicating liquor is guilty of a third
degree felony. As highlighted by the State, Section 66-8-101.1(A) does not
criminalize the act of an intoxicated driver who is pregnant and who causes herself to
suffer a miscarriage or stillbirth.
{15} 	Second, is a policy argument. The State argues that the Legislature could
rationally have concluded that it was appropriate to punish the creation of the severe

risk because the harm “imposes costs on society greater than the run-of-the-mill
DWI.” And third, the State argues that the statute is not ambiguous, and therefore,
lenity does not demand a result in Defendant’s favor.
{16} 	The State’s arguments, while reasonable, are not persuasive. We see no unstated
or implicit intention under the Criminal and Motor Vehicle Codes that a DWI driver
is to be considered the victim and imprisoned for having committed great bodily harm
to himself.
{17} 	The social evil of DWI is rationally related to the monstrous consequences that
occur when the perpetrator kills or harms others, whether they are pedestrians,
passengers, or persons in other vehicles. See State v. Roper, 1996-NMCA-073, ¶ 17,
122 N.M. 126, 921 P.2d 322 (stating that DWI has a “great potential for serious injury
or death” and that the act of DWI “represents a reckless and inexcusable disregard for
the rights of other members of the [traveling] public” (internal quotation marks and
citation omitted)); see also § 66-8-101.1(A) (indicating an intent that the pregnant
driver is not considered a victim or to be imprisoned for having injured herself).
Extending our social policy as embodied in criminal law to persons who harm
themselves while driving while intoxicated should be made clear through carefully
worded statutory language. We do not agree that monetary costs and possible traffic
delays or closures support a social policy that in turn supports the interpretation that
Section 66-8-101(B) embodies our Legislature’s intent to imprison a DWI perpetrator

who causes harm to himself. We construe Section 66-8-101(C) as applying only when
a driver while under the influence of an intoxicant has caused great bodily harm to
another human being.
Validity of Sixteen-Year Enhancement Issue
{18} 	Because 	the 	issue 	of 	whether, 	under 	Section 	66-8-101(D), 	prior 	DWI
convictions outside of the ten-year period will enhance a defendant’s basic sentence
for a Section 66-8-101(C) conviction will likely arise in a future case, we will address
the issue here. Defendant asserts that, as a matter of law, the district court lacked
statutory authority to enhance his sentence by sixteen years. Defendant shows and the
State does not dispute that only two of the four prior convictions occurred within the
ten-year period preceding his present conviction. Defendant argues that the district
court could lawfully impose only two four-year enhancements. Defendant adds that,
at the very least, we should determine that Section 66-8-101(D) is ambiguous and hold
that the rule of lenity requires resolution of the issue in his favor. Our review is de
novo when we engage in statutory construction. See, e.g., State v. Telles, 1999-
NMCA-013, ¶ 21, 126 N.M. 593, 973 P.2d 845.
{19} 	We agree with Defendant. The language of the statute at issue is that the
perpetrator “who has incurred a prior DWI conviction within ten years of the
occurrence for which he is being sentenced . . . shall have his basic sentence increased
by four years for each prior DWI conviction.” Section 66-8-101(D) (2004) (emphasis

added). We interpret the existence of “a prior DWI conviction within ten years” to
allow an enhancement for each such conviction within that ten-year period. Thus, the
enhancement can be added only for those prior convictions occurring within the ten-
year period. To read the statute to need only one conviction within the ten-year period
in order to include one or more convictions outside the period is absurd. If the statute
were construed to trigger inclusion of all prior convictions when only one comes
within the ten-year period, there would be little, if any, reason for the “within ten
years” language. Further, accepting the State’s argument would result in a much more
harsh enhancement regime than is allowed by the felony habitual offender provisions
of NMSA 1978, Section 31-18-17 (2003). To the extent the statute can possibly be
read as interpreted by both the State and Defendant, the statute is ambiguous and the
doctrine of lenity demands that we construe the statute in Defendant’s favor. State v.
Ogden, 1994-NMSC-029, ¶ 25, 118 N.M. 234, 880 P.2d 845 (“The rule of lenity
counsels that criminal statutes should be interpreted in the defendant’s favor when
insurmountable ambiguity persists regarding the intended scope of a criminal
statute.”).
{20} 	The State attempts to defeat Defendant’s view of the enhancement statute by
discussing the “triggers” for enhancement in various other statutes, namely, NMSA
1978, Section 31-18-16(A) (1993) (firearm used in commission of a noncapital
felony), and Section 31-18-17(A)-(C) (habitual offender enhancements). What is

critical here is solely the interpretation of the language in Section 66-8-101(D). The
attempted comparison of triggers is neither logically nor rationally helpful. We
disagree with the State’s unsupported interpretation of Section 66-8-101(D) and
conclude that its interpretation is neither required by the text of the statute nor
supported by an overall purpose of increasing penalties for recidivist offenders.
The Plea Issues
{21} 	The plea issues involve the district court’s and defense counsel’s failures to
advise Defendant of critical information in relation to Defendant’s plea. Because we
reverse Defendant’s conviction and allow Defendant’s plea withdrawal, we do not
need to decide whether to reverse on Defendant’s Points 3 and 4 relating to ineffective
assistance of counsel and court error with respect to their failures to advise him of the
consequences of his plea. We address these issues only to reiterate embedded law on
the duties and responsibilities of defense counsel and the district court in plea
circumstances.
{22} 	As indicated earlier in this Opinion, the State concedes that defense counsel and
the district court failed to advise Defendant of the Section 66-8-101(D) sentencing
consequence of pleading guilty with admission of prior DWIs. Defendant admitted
four prior DWI convictions but nothing in the plea process or in the express language
of the plea agreement indicated any consequences flowing from that admission. The

question is not whether error occurred but whether Defendant is entitled to relief based
on the error.
{23} 	The rules are set and clear. “A plea is not knowing, intelligent, and voluntary
unless the defendant understands his guilty plea and its consequences.” State v.
Ramirez, 2011-NMSC-025, ¶ 9, 149 N.M. 698, 254 P.3d 649 (alteration, internal
quotation marks, and citation omitted). The court is not to accept a plea of guilty or
no contest without first “informing the defendant of and determining that the
defendant understands the . . . mandatory minimum penalty . . . and the maximum
possible penalty . . ., including any possible sentence enhancements.” Id. (alteration,
internal quotation marks, and citation omitted); see also Marquez v. Hatch, 2009-
NMSC-040, ¶ 13, 146 N.M. 556, 212 P.3d 1110 (recognizing the district court’s
“obligation to adequately inform the defendant of sentencing enhancements based on
prior convictions”). Our Supreme Court has held “that the [district] court’s failure to
advise the defendant regarding the range of possible sentences associated with his plea
constituted error.” Ramirez, 2011-NMSC-025, ¶ 19. “Failure to advise a defendant of
the potential penalties presumptively affects [the] defendant’s substantial rights and
renders the plea unknowing and involuntary.” State v. Garcia, 1996-NMSC-013, ¶ 23,
121 N.M. 544, 915 P.2d 300.
{24} 	Were we not to reverse because Defendant was improperly convicted under a
crime that did not cover his conduct, the circumstances of this case would make it a

good candidate for allowing Defendant to withdraw his plea. No evidence exists to
indicate any understanding on Defendant’s part of the sentencing consequences or to
support a voluntary plea.
The District Court’s Misapprehension of Fact and Classification of Crime as
Serious Violent Offense
{25} 	Defendant asserts that, in sentencing him, the district court relied on the State’s
misrepresentation that the two people in the other car in the collision suffered great
bodily injury, and based on that reliance, the court exercised its discretion in running
Defendant’s basic sentence and all four enhancement terms consecutively. Defendant
considers the district court’s error to be of constitutional due process magnitude, citing
United States v. Tucker, 404 U.S. 443, 447 (1972), which indicates, according to
Defendant, that “a defendant’s constitutional right to due process is violated when the
sentence 	is 	‘founded 	at 	least 	in 	part 	upon 	misinformation 	of 	constitutional
magnitude.’ ”
{26} 	With respect to the same asserted mistaken belief that great bodily harm was
inflicted on two people in the collision, Defendant contends that the district court’s
findings in regard to the application of the Earned Meritorious Deductions Act
(EMDA), Section 33-2-34, were “an inaccurate representation of [the] factual basis
for [his] plea[,]” insufficient because the findings “relied entirely on the elements of
[the] crime[,]” and insufficient to inform Defendant how his actions “constituted
recklessness in the face of knowledge that the acts were reasonably likely to result in

serious harm.” State v. Loretto, 2006-NMCA-142, ¶¶ 14-19, 140 N.M. 705, 147 P.3d
1138 (indicating that the district court should be descriptive in regard to harm and how
the defendant’s acts amounted to a serious violent offense under the EMDA).
Therefore, according to Defendant, the court’s determination of serious violent
offense was erroneous as insufficient to support a serious violent offense designation
under the EMDA, requiring reversal of that determination. Under the EMDA, those
convicted of a serious violent offense may earn a maximum of four days per month
of good time for participating in various programs, while those convicted of a non-
violent offense may earn a maximum of thirty days per month. Section 33-2-34(A).
{27} 	We see no reason to address these issues as important for future cases and given
our reversal of Defendant’s conviction as set out earlier in this Opinion.
The 	Issue 	of 	Enforcing 	the 	Plea 	Agreement 	Pursuant 	to 	Defendant’s
Understanding of It
{28} 	Defendant contends that he understood the plea agreement to impose only a
maximum exposure of three years and ninety days and that the agreement must be
enforced as he understood it. See State v. Fairbanks, 2004-NMCA-005, ¶ 15, 134
N.M. 783, 82 P.3d 954 (“Upon review, we construe the terms of the plea agreement
according to what [the d]efendant reasonably understood when he entered the plea.”
(internal quotation marks and citation omitted)). He asserts that the sentence imposed
must be reversed, and he asks this Court to reverse and remand with instructions to the
district court to enforce the “maximum three-year and ninety-day exposure” and

nothing more. Because we are reversing Defendant’s Section 66-8-101 conviction and
sentence entered pursuant to that agreement, we see no basis on which to address this
issue.
CONCLUSION
{29} 	Defendant was wrongfully convicted under Section 66-8-101(B) and (C),
statutory subsections that do not criminalize his actions. We therefore reverse
Defendant’s judgment and sentence based on the plea agreement. We remand with
instructions to the district court to vacate the conviction and sentence imposed based
on that conviction. Defendant is permitted to withdraw his plea.
{30} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
J. MILES HANISEE, Judge