September 26, 2011 – State of New Mexico v. Shirley Redhouse, No. 30,386

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number

Filing Date: September 26, 2011

NO. 30,386

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

SHIRLEY REDHOUSE,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
Thomas J. Hynes, District J udge

Gary K. King, Attomey General
Santa Fe, NM
Francine A. Chavez, Assistant Attomey General

Albuquerque, NM

for Appellee

Jacqueline L.. Cooper, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
GARCIA, Judge.
{1} 	The underlying issue in this case is whether Defendant Shirley Redhouse’s
uncounseled 1972 misdemeanor conviction for driving while intoxicated (DWI) could
be used to enhance Defendant’s current DWI conviction when she was not sentenced
to any incarceration for the 1972 offense. 	The State asked the district court to
reconsider its ruling on this issue as a legal error six days after Defendant’s judgment
and sentence was filed. 	We recognize that “[s]entencing may violate concepts of
double jeopardy if not within objectively reasonable expectations of finality.” March
v. State, 109 N.M. 110, 111, 782 P.2d 82, 83 (1989). This case requires us to address
and distinguish our decision in State v. Diaz, 2007-NMCA-026, 141 N.M. 223, 153
P.3d 57. Upon reconsideration, the district court amended Defendant’s sentence based
upon legal error regarding the 1972 conviction. 	Under the facts in this case,
Defendant did not have a reasonable expectation of finality in her sentence because
the State moved for reconsideration of the district court’s ruling on the validity of the
prior 1972 DWI conviction within thirty days of the district court’s entry of a
judgment and sentence. We hold that the district court did not violate Defendant’s
right to be free from double jeopardy when it re-examined the validity of Defendant’s
1972 DWI conviction and amended Defendant’s sentence which had been based upon

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a legal error regarding the prior 1972 conviction. We also hold that the district court
did not err in determining that the 1972 conviction was valid for purposes of sentence
enhancement. We affirm.
BACKGROUND
{2} 	On November 30, 2009, Defendant pleaded guilty to aggravated DWI, contrary
to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). 	Sentencing
occurred the same day. The State submitted four prior DWI convictions in order to
enhance Defendant’s current DWI conviction to a fifth and make the current offense
a felony conviction. Defendant contested two of the prior DWI convictions, one from
1972 and one from 1973. The district court initially determined that neither of these
two prior convictions could be used for enhancement purposes because neither
showed that Defendant had been represented by counsel, yet the court determined that
Defendant had been punished by imprisonment for both prior convictions. 	At the
sentencing hearing, the district court asked the State if it wanted further time to contest
its ruling regarding prior convictions, and the State declined. Based upon the district
court’s determination that Defendant had two prior DWI convictions, Defendant was
sentenced to 364 days of incarceration. The district court gave Defendant credit for
the 109 days served prior to sentencing, suspended the remaining 255 days of the
sentence, and placed Defendant on unsupervised probation for 255 days. 	The
judgment and sentence order was filed on December 3, 2009.

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{3} 	On December 9, 2009, the State filed a motion for reconsideration arguing that
the district court made a mistake of law when it concluded that the DWI convictions
from 1972 and 1973 could not be used for enhancement purposes. 	Four hearings
scheduled followed: January 20, 2010; February 22, 2010; March 10, 2010; and April
19, 2010. The State consequently argued that the district court had erred as a matter
of law regarding the use of Defendant’s 1972 and 1973 convictions as prior DWI
convictions for sentencing purposes. The State did not present any new evidence or
attempt to supplement the prior evidence regarding Defendant’s 1972 and 1973
convictions. After the first hearing on January 20, 2010, the district court ruled that
it had erred as a matter of law concerning the 1972 conviction. Under this ruling, the
1972 conviction counted as a prior DWI conviction even though there was no waiver
of counsel because Defendant had not been sentenced to jail for the conviction. Upon
Defendant’s oral motion for reconsideration on February 22, 2010, the district court
held two subsequent hearings and confirmed its ruling that the 1972 conviction could
be used for enhancement purposes. However, the district court remained firm that the
1973 conviction could not be used as a prior DWI conviction.
{4} 	Defendant’s judgment and sentence was amended to reflect that Defendant was
convicted of a fourth DWI, which statutorily required her to serve at least six months
in jail. Section 66-8-102(G). Thus, Defendant was required to serve an additional
seventy-one days in jail. 	Defendant appeals the amendment to her judgment and

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sentence. 	Defendant argues that she had an expectation of finality in the sentence
imposed on December 3, 2009, prior to any reconsideration and subsequent
amendment by the district court resulting in a double jeopardy violation. She further
argues that a penalty of imprisonment was imposed under her 1972 DWI conviction
and thus the district court erred in determining that the 1972 conviction was valid for
the purposes of enhancement.
DISCUSSION
Standard of Review
{5} 	We review Defendant’s contention that modification of her sentence violated
her constitutional guarantee against double jeopardy under a de novo standard of
review. 	State v. Lopez, 2008-NMCA-002, ¶ 12, 143 N.M. 274, 175 P.3d 942.
Similarly, we review issues of statutory and constitutional interpretation regarding the
validity 	of 	Defendant’s 	prior 	conviction 	de 	novo. 	See 	State 	v. 	Lucero,
2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489 (stating that appellate courts
“review issues of statutory and constitutional interpretation de novo”). However, to
the extent that factual issues are intertwined with issues of constitutional and statutory
interpretation, we defer to the district court’s factual findings as long as they are
supported by substantial evidence. See State v. Rodriguez, 2006-NMSC-018, ¶ 3,139
N.M. 450, 134 P.3d 737.
Defendant’s Right to Finality in Sentencing Was Not Violated When the District

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Court Resentenced Her
{6} 	Defendant argues that the district court erred by reconsidering and resentencing
her to an increased sentence because she had already substantially completed her
sentence. Specifically, Defendant contends that the district court’s modification of her
sentence violated her right to finality in her sentence, implicating her constitutional
guarantee against double jeopardy.
{7} 	It is well established that “a [district] court generally cannot increase a valid
sentence once a defendant begins serving that sentence.” 	State v. Porras, 1999-
NMCA-016, ¶ 7, 126 N.M. 628, 973 P.2d 880. However, there is an exception to this
rule of finality when the original sentence is illegal or improper. Id. 	Our appellate
courts have determined that an original sentence is illegal if habitual offender
enhancements based on prior convictions have not been included. See, e.g., State v.
Freed, 1996-NMCA-044, ¶ 9, 121 N.M. 569, 915 P.2d 325. 	Thus, a habitual
offender’s sentence may be enhanced at any time prior to the expiration of the
underlying sentence. Porras, 1999-NMCA-016, ¶ 8. In Diaz, this Court determined
that enhancement pursuant to the DWI sentencing statute is different from habitual
offender enhancement pursuant to NMSA 1978, Section 31-18-19 (1977). 	Diaz,
2007-NMCA-026, ¶ 12-13. In Diaz this Court concluded that the prosecution had the
burden of presenting proof of prior DWI convictions for sentencing purposes at the
original sentencing hearing. 	See id. ¶¶ 3-5, 18, 21 (rejecting consideration of an

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additional prior DWI that was subsequently discovered after sentencing and presented
as a motion to correct an illegal sentence at the time the defendant only had two
months remaining on his original prison term). Once a DWI offender was sentenced
after considering the evidence of any prior DWI convictions, the prosecution could
not introduce new evidence of another “recently” discovered prior DWI conviction
and seek a post-judgment enhancement to a third degree felony with an additional six-
month term of imprisonment. Id. ¶¶ 5, 21.
{8} 	Defendant relies on Diaz in support of her argument that once she was
sentenced and began to serve her sentence, the district court could not amend and
increase her sentence with another prior conviction that it had previously determined
was invalid for purposes of enhancement. 	The factual circumstances in Diaz are,
however, significantly different than in this case. In Diaz, the state moved to modify
the defendant’s sentence when the defendant had only two months left to serve of his
one-year prison term. 	Id. ¶¶ 4-5. 	The motion was based on the state having
“‘recently’ learned of another DWI conviction” that, if factored into the defendant’s
sentence, would have resulted in an additional mandatory six months of imprisonment.
Id. ¶ 5.
{9} 	It is apparent that this case is both factually and legally distinct from Diaz in
four important ways. First, the timing of the state’s motion in Diaz was considerably
late, having been made at the end of the defendant’s prison term; whereas here, the

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State acted expeditiously. Second, in Diaz this Court held that the sentence was legal
when it was imposed; whereas here, we have an illegal sentence. 	Third, 	Diaz
implicated fairness and due process concerns, see id. ¶¶ 19-21, to an extent that are not
present in this case. The defendant in Diaz had completed a year-long prison term and
had already started to serve probation when he was faced with the prospect of
returning to prison for six additional months. 	And fourth, unlike Diaz where the
prosecution introduced proof of a “recently” discovered prior conviction, in the
present case, the State moved for reconsideration of whether the prior convictions
introduced at the original sentencing hearing could be used to enhance Defendant’s
sentence as a matter of law and did not introduce any new evidence. See id. ¶¶ 5, 21.
As a result, we are not persuaded that Diaz controls the outcome in this case.
{10} 	Increasing a defendant’s sentence after a defendant begins serving the sentence
implicates 	double 	jeopardy 	concerns 	if 	a 	defendant’s 	objectively 	reasonable
expectations of finality in the original sentencing proceedings are violated. 	See
March, 109 N.M. at 111, 782 P.2d at 83 (reasoning that sentencing implicates double
jeopardy concerns if a defendant’s objectively reasonable expectations of finality are
violated); see also State v. Gaddy, 110 N.M. 120, 122-23, 792 P.2d 1163, 1165-66
(Ct. App. 1990) (concluding that the defendant’s objectively reasonable expectations
of finality were violated by the initiation of habitual offender proceedings after the
defendant had completely served the underlying sentence). 	The question here is

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whether Defendant had an objectively reasonable expectation of finality that would
prevent further legal consideration of the evidence presented at her original sentencing
hearing on November 30, 2009. 	We conclude that Defendant had no reasonable
expectation of finality under these circumstances and that double jeopardy did not
preclude the modification of Defendant’s sentence based upon a legal error.
{11} 	The State has a constitutional right to appeal from a disposition that is contrary
to law. 	State v. Horton, 2008-NMCA-061, ¶ 1, 144 N.M. 71, 183 P.3d 956. 	This
right includes appeal of the district court’s legal determinations regarding whether a
prior conviction can be used for enhancement purposes. 	See State v. Tave, 2007-
NMCA-059, ¶¶ 1, 8-10, 141 N.M. 571, 158 P.3d 1014 (concluding that the state was
entitled to raise the issue of whether the district court erred in refusing to enhance the
defendant’s sentence as a matter of law for the first time on appeal). Where the state’s
time to exercise its constitutional right to appeal has not expired, a defendant has no
reasonable expectation of finality in his or her sentence. 	See State v. Abril, 2003-
NMCA-111, ¶¶ 21-23, 134 N.M. 326, 76 P.3d 644 (reasoning that a defendant has no
reasonable expectation of finality where the prosecution’s time to exercise its
constitutional right of appeal has not expired).
{12} 	Here, the State had a right to appeal the decision of the district court that the
1972 DWI conviction could not be used to enhance the sentence for the current
conviction as a matter of law. 	Concomitant with that right is the right to ask the

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district court to reconsider its decision. See NMSA 1978, § 39-1-1 (1917) (stating that
final judgments and decrees remain under the control of the district court for thirty
days and for additional time as necessary to allow the court to rule upon any motion
directed against the judgment that is filed in that period). 	Because the State
expeditiously sought to have the district court correct its legal determination that the
1972 DWI conviction could not be used to enhance the current DWI, Defendant had
no reasonable expectation of finality in the sentence entered on December 3, 2009.
Thus, Defendant’s constitutional guarantee against double jeopardy was not violated
when the State expeditiously filed a motion for reconsideration of Defendant’s
sentence on December 9, 2009.
The District Court Did Not Err in Determining That the 1972 Conviction Was
Valid for Purposes of Enhancement
{13} 	The law is clear in New Mexico “that the use of a prior uncounseled
misdemeanor DWI conviction not resulting in a sentence of imprisonment to enhance
a subsequent misdemeanor DWI conviction does not violate the New Mexico
Constitution.” 	State v. Woodruff, 1997-NMSC-061, ¶ 37, 124 N.M. 388, 951 P.2d
605. It is undisputed that Defendant’s 1972 DWI conviction was uncounseled. The
issue is whether Defendant served a sentence of imprisonment on that conviction.
{14} 	The district court conducted four hearings on the matter, taking testimony from
Defendant’s witnesses, examining documents related to the convictions, and hearing

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argument of counsel. The evidence established that when Defendant was arrested in
1972 for DWI, she spent some time in jail after her arrest but prior to her conviction
on the charge. It is not clear how much time she spent in jail after her arrest, before
she was convicted and sentenced. 	The documentation related to the charge was
reviewed by the district court but the actual documents were not made a part of the
record. However, the district court’s review indicated that based on the 1972 DWI
conviction Defendant was sentenced to pay a fine and attend DWI classes. The record
showed that she paid some of the fine, but not all of it. When she failed to pay the
fine, a warrant was issued. She was then arrested on a second DWI. She was ordered
to pay a fine on the second DWI, plus the remaining fine owing from the 1972
conviction. She was also jailed for thirty days for the second DWI.
{15} 	Defendant makes two arguments on her claim that she was imprisoned on the
1972 DWI conviction. First, she contends that the jail sentence after the second DWI
conviction was imposed because she failed to pay the fine on the 1972 DWI
conviction. It is not clear from the record that the incarceration ordered at the time of
the second conviction was related to the 1972 DWI conviction. There was a great deal
of discussion about what the judge might have been thinking at the time of sentencing
on Defendant’s second DWI. However, there is nothing in the record indicating that
the jail sentence for the second DWI was because Defendant failed to pay the fine on
the 1972 DWI conviction. The record simply shows that Defendant was fined for the

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1972 DWI conviction, and she was incarcerated for the second DWI. 	As a result,
substantial evidence supports the district court’s determination that Defendant was not
sentenced to a term of incarceration as a result of her 1972 DWI conviction.
{16} 	Second, Defendant argues that she was in jail before her conviction on the
1972 DWI conviction and that she is entitled to receive pre-sentence confinement
credit against any sentence that is imposed. Therefore, she argues that any sentence
imposed as a result of the 1972 DWI conviction would take into consideration that
pre-sentence jail time. As a result of this pre-sentence jail time and any credit allowed
thereunder, Defendant argues that she was required to receive the advice of counsel
prior to being sentenced for the 1972 DWI conviction. 	We disagree. 	Defendant
appears to assume that the sentence she actually received for the 1972 DWI conviction
did not contain any jail time because she had already served some pre-sentence jail
time and was thereby given credit for time served. There is nothing in the written
record of the 1972 DWI conviction suggesting that Defendant was given any credit
for time served in jail. 	The only record available reflects that Defendant was not
incarcerated under the 1972 DWI conviction and was only fined. Thus, the premise
of this argument is based on speculation and must fail because it is not supported by
the record herein.
{17} 	Defendant also appears to be arguing that using a misdemeanor DWI to enhance
a crime to a felony DWI does not satisfy the constitution. Defendant does not cite any

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authority in support of this argument or explain why using a misdemeanor DWI to
enhance to a felony DWI should be treated differently from using a misdemeanor
DWI to enhance another misdemeanor DWI. Therefore, we do not address the issue.
See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). 	We
conclude that the district court did not err in determining that the 1972 DWI
conviction could properly be used to enhance Defendant’s current DWI conviction
because the 1972 DWI conviction resulted in the imposition of a fine and Defendant
was not subjected to jail time for this prior conviction.
CONCLUSION
{18} 	We conclude that Defendant did not have a reasonable expectation that the
sentence she received on December 3, 2009, was final. Therefore, the district court
could have properly reconsidered her sentence and increase this sentence due to a
legal error made by the district court at the original sentencing hearing. Further, the
district court did not err in determining that Defendant’s 1972 DWI conviction could
be used to enhance her current DWI to a fourth DWI conviction. 	We affirm the
amended judgment and sentence imposed by the district court.
{19} 	IT IS SO ORDERED.
______________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:

JONATHANB. SUTIN, Judge

MICHAEL E. VIGIL, Judge

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