August 22, 2019- State of New Mexico v. Jeffery Eeric Stoesser, No. A-1-CA-36538

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-36538
5 JEFFERY EERIC STOESSER
6 a/k/a JEFFERY EERIE STOESSER,
7 	Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
9 Freddie J. Romero, District Judge
10 Hector H. Balderas, Attorney General
11 	Santa Fe, NM
12 John Kloss, Assistant Attorney General
13 	Albuquerque, NM
14 for Appellee
15 	L. Helen Bennett, P.C.
16 L. Helen Bennett
17 Albuquerque, NM
18 	for Appellant
19 	MEMORANDUM OPINION
20 	M. ZAMORA, Chief Judge.
21 	{1} 	Defendant Jeffrey Stoesser appeals his order of conditional discharge for
22 aggravated DWI, contrary to NMSA 1978, Section 66-8-102(D)(l) (2010, amended
Court of Appeals of New Mexico
Filed 8/22/2019 11:15 AM

1 2016). 1 Defendant raises a single issue-whether the district court erred in entering
2 a conditional discharge order listing the crime charged as aggravated driving while
3 under the influence ofliquor (DWI), when the jury was only instructed on and found
4 him guilty of DWI under the impaired to the slightest degree standard. Additionally,
5 we asked the parties to brief whether the district court may correct a purportedly
6 illegal sentence when such issue has been raised by the State post-sentencing. We
7 reverse Defendant's order 	of conditional discharge 	identifying his 	offense as
8 aggravated DWI, and we remand with instructions to enter a judgment convicting
9 Defendant of DWI under the impaired to the slightest degree standard and to enter a
10 	sentence in confonnity with the applicable statutes.
11 	BACKGROUND
12 	{2} 	On June 24, 2015, Deputy Michael Shannon of the Chaves County Sheriffs	. 	.
13 	Office pulled Defendant over for speeding. Upon approaching Defendant's vehicle,
14 Deputy Shannon smelled liquor inside the car and noticed Defendant had bloodshot,
15 	watery eyes and slurred speech. Defendant admitted to drinking a few beers and
16 failed field sobriety tests. After being read the Implied Consent Act, Defendant
1
Defendant was also convicted of battery upon a peace officer, contrary to
NMSA 1978, Section 30-22-24 (1971), and speeding, contrary to NMSA 1978,
Section 66-7-301 (2002, amended 2015). Because Defendant does not challenge
either of these convictions in this appeal, we do not address them further.
2

I refused to submit to chemical testing; Defendant was arrested and charged with
2 aggravated DWI.
3 {3} 	At Defendant's trial, the jury was instructed on DWI under the impaired to
4 the slightest degree standard only. See UJI 14-4501 NMRA; § 66-8-102(A) ("It is
5 unlawful for a person who is under the influence. of intoxicating liquor to drive a
6 vehicle within this state."). The jury found Defendant guilty of the same. However,
7 the order of conditional discharge entered by the district court indicated that
8 Defendant was found guilty of aggravated DWI. This appeal followed.
9 {4} 	Because this is a memorandum opinion and the parties are familiar with the
10 	facts and procedural history of the case, we reserve further discussion of pertinent
11 	facts for our analysis.
12 DISCUSSION
13 	I.
14 	{5}
The Jury's Verdict
Defendant argues, and the State concedes, that this Court should reverse and
15 	remand "with instructions to enter an amended judgment and sentence, vacating
16 	[Defendant's] aggravated DWI conviction and replacing it with a recordation of the
17 jury's conviction for DWI [under the impaired to the slightest degree standard]."
18 	Although we are not bound by the state's concession, State v. Tapia, 2015-NMCA-
19 	048,, 31, 347 P.3d 738, we accept it under the facts of this case.
20
21
The 	Fourteenth 	Amendment 	requires 	due 	process 	in 	criminal
proceedings 	involving 	state 	statutes, 	and together with the 	Sixth
3

1
2
3
Amendment right to a trial by jury, entitles a criminal defendant to a
jury determination that he is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt.
4 State v. Carpenter, 2016-NMCA-058, 119, 374 P.3d 744 (internal quotation marks
5 and citation omitted). Here, the jury only received instruction on and verdict forms
6 for DWI under the impaired to the slightest degree standard. Therefore, the jury
7 could not have found all of the elements of aggravated DWI beyond a reasonable
8 doubt. 	Accordingly, 	we 	reverse 	Defendant's 	order 	of 	conditional 	discharge
9 identifying his offense as aggravated DWI, and we remand with instructions to enter
10 a judgment convicting Defendant of DWI under the impaired to the slightest degree
11 	standard.
12 II. 	The Conditional Discharge
13 	{6} 	The State contends that Defendant's sentence of a conditional discharge for
14 DWI was illegal and suggests we should "reverse and remand for imposition of a
15 	statutorily compliant sentence." Without conceding that the sentence was illegal,
16 Defendant contends that "there is no provision in the rules or common law to correct
17 any allegedly illegal sentence as sought by the State under the circumstances of this
18 	case." We review the legality of a sentence de novo. See State v. Lopez, 2006-
19 NMCA-079, 14, 140 N.M. 1, 138 P.3d 534 ("We subject the legality of a sentence
20 to de novo review.").
4

1 {7} 	As a threshold inatter, however, Defendant argues the State was required to
2 file a cross-appeal to comply with Rule 12-202 NMRA. "While the [s]tate may
3 challenge an illegal sentence for the first time on appeal, the [s]tate must comply
4 with the requirements of Rule 12-202 ... in filing a cross-appeal under Rule 12-201
5 NMRA." State v. 	Cook, 2006-NMCA-110, 124, 140 N.M. 356, 142 P.3d 944.
6 Nevertheless, we address the State's argument to promote judicial economy. See
7 State v. Bachicha, 1991-NMCA-014, 118, 111 N.M. 601,808 P.2d 51 (explaining
8 that although the state must comply with Rule 12-202 and file a cross-appeal, this
9 Court would address the state's challenge to the legality of a sentence "[f]or the
10 purpose of judicial economy and to avoid the necessity for an additional appeal").
11 •We therefore proceed to our discussion regarding the legality of Defendant's
12 	sentence.
13 	{8} 	"A [district] court does not have jurisdiction to impose an illegal sentence on
14 a defendant and, therefore, any party may challenge an illegal sentence for the first
15 	time on appeal." State v. Paiz, 2011-NMSC-008, 133, 149 N.M. 412,249 P.3d 1235.
16 The State argues the district court did not have the authority to enter a conditional
17 discharge 	order, 	and that Defendant's 	sentence 	conflicted with the 	statutory
18 	mandates. We agree.
19 {9} 	Conditional discharge orders are governed by NMSA 1978, Section 31-20-13
20 (1994), which provides in relevant part that "[t]he court shall not enter a conditional
5

1 discharge order for a person found guilty of driving a motor vehicle while under the
2 influence of intoxicating liquor or drugs, pursuant to the provisions of Section 66-8-
3 	102 [. ]" Section 31-20-13 (C). As Defendant was convicted under Section 66-8-102,
4 the district court was prohibited from entering a conditional discharge order.
5 Therefore, Defendant's sentence was illegal. See State v. Harris, 1984-NMCA-003,
6 17, 101 N.M. 12, 677 P.2d 625 ("A sentence that is not authorized is an illegal
7 sentence.").
8 	{10} 	Furthermore, 	Defendant's 	sentence 	was 	governed 	by 	the 	sentencing
'
9 provisions found in Section 66-8-102. Because this was his third DWI conviction,
10 Defendant's sentence was required to include "a jail term of not less than thirty
11 	consecutive days, not less than ninety-six hours of community service and a fine of
12 	seven hundred fifty dollars ($750)[;]" participation in and completion of a substance
13 	abuse treatment or drug court program approved by the court; obtaining an ignition
14 	interlock device license; and having an ignition interlock device installed and
15 	operating on all motor vehicles he drives for a period of three years. Section 66-8-
16 	102(F)(2), (M), (0). However, Defendant's sentence did not include the requisite
17 jail term, fine, or community service. Further, the district court required Defendant
18 to have an ignition interlock device for only one year. Thus, Defendant's sentence
19 was also illegal because it was. in conflict with the sentencing provisions under
20 Section 66-8-102. See State v. Torres, 2012-NMCA-026, 117-8, 10, 272 P.3d 689
6

1 (concluding a sentence was illegal when the district court erred in its application of
2 the applicable sentencing statutes and sentenced the defendant "in direct conflict
3 with" the mandate 	of one 	of the statutes); Harris, 	1984-NMCA-003, 1.7 ("A
4 sentence that is not authorized is an illegal sentence."); see also State v. Chadwick-
5 McNally, 2018-NMSC-018, 124, 414 P.3d 326 ("A [district] court's power to
6 sentence is derived exclusively from statute." (internal quotation marks and citation
7 omitted)).
8 	{11} 	While Defendant appears to argue the district court lacks authority to correct
9 his sentence, this case presents a different question: whether this Court has the
10 authority on appeal to correct an illegal sentence. Compare Torres, 2012-NMCA-
11 	026, 1127, 37 (holding that the current version of Rule 5-801(A) NMRA "abrogated
12 the common law principle that a district court has inherent and unlimited jurisdiction
13 	to correct illegal sentences[,]" and "reflects a clear intent to strictly limit the district
14 court's jurisdiction to habeas corpus proceedings to correct an illegal sentence"),
15 	with State v. 	Serna, 2013-NMSC-033, 134, 305 P.3d 936 (recognizing that "a
16 	[district] court does not have jurisdiction to impose an illegal sentence on a defendant
17 and, therefore, any party may challenge an illegal sentence for the first time on
18 	appeal"). As discussed above, we do have that authority.
7

1 CONCLUSION
'
2 	{12} 	We reverse Defendant's order of conditional discharge identifying his offense
3 as aggravated DWI, and we remand with instructions to enter a judgment convicting
4 Defendant of DWI under the impaired to the slightest degree standard and to enter a
5 sentence in conformity with the applicable statutes.
6 {t3} 	IT IS SO ORDERED.
7
8
9 WE CONCUR:
8