October 14, 2021- State of New Mexico v. Lee Waldo Garcia, No. A-1-CA-37486

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: Court of Appeals of New Mexico
Filed 10/14/2021 11:34 AM

Filing Date: October 14, 2021 A. >
al
No. A-1-CA-37486 Mark Reynolds

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

LEE WALDO GARCIA,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
John Bennett, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
IVES, Judge.	2
{1} 	Defendant 	Lee Waldo 	Garcia appeals his 	conviction 	and sentence for	3
homicide by vehicle while under the influence of intoxicating liquor, contrary to	4
NMSA 1978, Section 66-8-101(A), (C) (2016). Defendant argues that his conviction	5
was the result of fundamental error because the jury instructions did not accurately	6
present the law of proximate causation and that it is not supported by sufficient	7
evidence of causation. Should his conviction stand, Defendant argues that his	8
sentence must be reversed because it violates his right against double jeopardy. We	9
disagree with Defendant regarding the validity of his conviction, but, because the	10
district court increased Defendant’s sentence after he had formed a reasonable	11
expectation in its finality, we reverse his sentence.	12
BACKGROUND	13
{2} 	While drunk, Defendant crashed his truck into Victim as Victim was	14
attempting to cross the street in his motorized wheelchair. After Victim had been in	15
the hospital for approximately two weeks, Victim’s family decided to remove him	16
from life support, and he died.	17
{3} 	The State prosecuted Defendant for driving while under the influence (DWI),	18
aggravated DWI, and vehicular homicide. The jury found Defendant guilty of two	19
crimes: (1) homicide by vehicle while under the influence of intoxicating liquor,	20

2
contrary to Section 66-8-101(A), (C), a second-degree felony; and (2) aggravated	1
DWI, contrary to NMSA 1978, Section 66-8-102(D)(1) (2016). The district court	2
initially sentenced Defendant to an actual prison term of ten years but twice	3
resentenced Defendant, and the ultimate sentence includes a fifteen-year term of	4
incarceration. Defendant appeals.	5
DISCUSSION	6
I. 	The 	Jury 	Instruction 	for 	Vehicular 	Homicide 	Did 	Not 	Result 	in	7
Fundamental Error	8
{4} 	Defendant argues that his conviction must be reversed because the phrase	9
“outside event,” as used in the uniform jury instruction defining proximate cause,	10
UJI 14-251 NMRA, and in the given instructions, was not defined for the jury.	11
Because Defendant did not raise the issue in the district court, we review for	12
fundamental error. State v. Cabezuela, 2015-NMSC-016, ¶ 37, 350 P.3d 1145. Our	13
analysis “begins at the same place as [the] analysis for reversible error[:]” we ask	14
whether “a reasonable juror would have been confused or misdirected by the jury	15
instruction.” State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633;	16
see State v. Grubb, 2020-NMCA-003, ¶ 7, 455 P.3d 877 (“In a fundamental error	17
analysis, 	we 	begin 	by 	considering 	whether 	reversible 	error 	exists[.]”). 	Jury	18
instructions 	cause 	confusion 	or 	misdirection 	when, 	“through 	omission 	or	19
misstatement,” they do not provide “an accurate rendition” of the essential elements	20
of a crime. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.	21

3
But if an instruction “accurately presents the law[,]” it “is proper, and nothing more	1
is required[.]” State v. Laney, 2003-NMCA-144, ¶ 38, 134 N.M. 648, 81 P.3d 591.	2
To the extent Defendant’s argument requires us to analyze whether UJI 14-251	3
accurately states the law, our review is de novo. Laney, 2003-NMCA-144, ¶ 38.	4
{5} 	Defendant contends that, by using the phrase “outside event” to refer to	5
something that could interrupt the chain of events between a defendant’s act and a	6
victim’s death, the UJI departs from conventional notions of proximate causation in	7
criminal law. We disagree.	8
{6} 	When causation is at issue in a homicide case, the jury must determine	9
whether an act of the defendant was (1) a factual cause of the victim’s death and (2)	10
the proximate cause of the victim’s death. See UJI 14-251, use note 1; State v.	11
Montoya, 2003-NMSC-004, ¶ 22 n.1, 133 N.M. 84, 61 P.3d 793. Proximate	12
causation is a question of whether the death was a “natural and probable consequence	13
of[] the accused’s conduct.” State v. Simpson, 1993-NMSC-073, ¶ 14, 116 N.M. 768,	14
867 P.2d 1150 (internal quotation marks and citation omitted). To be a proximate	15
cause, a defendant’s conduct need not “be the sole cause of the [death,]” id., and a	16
coinciding event that contributed to a victim’s death “to an insignificant extent”	17
cannot relieve a defendant of liability. Montoya, 2003-NMSC-004, ¶ 19 (internal	18
quotation marks and citation omitted). Even an event that significantly contributes	19
to a victim’s death does not relieve a defendant of liability, id., unless “it is a	20

4
superseding cause that negates the defendant’s conduct.” Simpson, 1993-NMSC-	1
073, ¶ 14.	2
{7} 	We 	presume 	that 	our 	Supreme 	Court’s 	uniform 	instruction 	regarding	3
causation in homicide cases, UJI 14-251, is correct, see State v. Ortega, 2014-	4
NMSC-017, ¶ 32, 327 P.3d 1076, and our Supreme Court has recognized that UJI	5
14-251 encompasses both factual and proximate causation. Montoya, 2003-NMSC-	6
004, ¶ 22 n.1. Our own review of the text of UJI 14-251 confirms that the instruction	7
adequately conveys the necessary causation concepts. The instruction requires the	8
jury to determine whether an “act of the defendant was a significant cause of the	9
death . . . without which the death would not have occurred” and whether “[t]he	10
death was a foreseeable result of” that act—i.e., whether the death resulted from that	11
act “in a natural and continuous chain of events, uninterrupted by an outside event[.]”	12
Id. Defendant asserts that the phrase “outside event” is ambiguous and should have	13
been defined for the jury. We conclude that no such definition was necessary because	14
“outside event” has a common meaning, see State v. Munoz, 2006-NMSC-005, ¶ 24,	15
139 N.M. 106, 129 P.3d 142, and a reasonable jury would understand the meaning	16
of the phrase in the context of the given instruction. We therefore reject Defendant’s	17
argument that, without a definition of “outside event,” the given instructions may	18

5
have confused the jury and were thus erroneous.1 See Laney, 2003-NMCA-144,	1
¶ 38. Because it would not have been reversible error for the district court to decline	2
to instruct the jury on the meaning of “outside event” if Defendant had requested	3
such an instruction at trial, we hold that the lack of an instruction defining that phrase	4
was not fundamental error. See State v. Adamo, 2018-NMCA-013, ¶ 27, 409 P.3d	5
1002 (holding that, where “there was no reversible error” “in the instructions[,]”	6
“there was no fundamental error”).	7
II. 	The Evidence Suffices to Support Defendant’s Conviction	8
{8} 	Defendant argues that the evidence did not suffice to show that Victim’s death	9
resulted from Defendant’s act, uninterrupted by an outside event, and that it only	10
sufficed to show that he caused great bodily harm, not homicide. Defendant contends	11
that (1) the evidence demonstrates that Victim’s own negligence in attempting to	12
cross the street caused the collision, and (2) the subsequent decision to remove	13
1 Defendant urges us to apply the rule of lenity, see generally 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.”), and cites State v. Crain, 1997-NMCA-101, ¶ 20, 124 N.M. 84, 946 P.2d
1095, for the proposition that the rule of lenity applies to uniform jury instructions.
Crain does not support that proposition. Even assuming the rule of lenity is
applicable to the interpretation of jury instructions as a general matter, that rule only
comes into play when the language at issue is ambiguous, and, as we have explained,
the language of UJI 14-251 is not ambiguous.

6
Victim from life support relieves Defendant of liability for Victim’s death. We	1
disagree with both contentions.	2
{9} 	In reviewing the sufficiency of the evidence, we first “view the evidence in	3
the light most favorable to the guilty verdict, indulging all reasonable inferences and	4
resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,	5
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then consider “whether	6
the evidence, so viewed, supports the verdict beyond a reasonable doubt.” State v.	7
Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. “We do not reweigh the evidence or	8
substitute our judgment for that of the fact[-]finder as long as there is sufficient	9
evidence to support the verdict.” State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M.	10
202, 207 P.3d 1179.	11
{10} 	“We will affirm a conviction if supported by a fair inference from the evidence	12
regardless of whether a contrary inference might support a contrary result.” State v.	13
Barrera, 2002-NMCA-098, ¶ 10, 132 N.M. 707, 54 P.3d 548. A fair inference “is a	14
conclusion arrived at by a process of reasoning which is a rational and logical	15
deduction from facts admitted or established by the evidence.” State v. Slade, 2014-	16
NMCA-088, ¶ 14, 331 P.3d 930 (alterations, internal quotation marks, and citation	17
omitted). Inferences and evidence contrary to the verdict “[do] not provide a basis	18
for reversal because the jury is free to reject [the d]efendant’s version of the facts.”	19
State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “[I]n the	20

7
determination of proximate cause[,] common sense is not to be eliminated.” State v.	1
Landgraf, 1996-NMCA-024, ¶ 31, 121 N.M. 445, 913 P.2d 252 (internal quotation	2
marks and citation omitted).	3
{11} 	The State presented sufficient evidence for the jury to conclude, under the	4
given instructions, that Defendant’s act of “operat[ing] a motor vehicle while under	5
the influence of intoxicating liquor” caused Victim’s death “in a natural and	6
continuous chain of events, uninterrupted by an outside event[.]” See UJI 14-240B	7
NMRA; UJI 14-251; see generally State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d	8
409 (“The jury instructions become the law of the case against which the sufficiency	9
of the evidence is to be measured.” (alterations, internal quotation marks, and	10
citation omitted)). We reject the first of Defendant’s two arguments to the contrary	11
because the State presented sufficient evidence that Defendant was responsible for	12
the collision. One of the State’s eyewitnesses, Melissa Jacobsen, testified that she	13
was driving approximately one car length behind Defendant, who had been swerving	14
and driving at inconsistent speeds, when she noticed Victim begin to cross the street.	15
Recognizing that it was dangerous for Victim to cross when Defendant had been	16
driving so erratically, Ms. Jacobsen screamed out her car window and honked the	17
horn repeatedly. And, in the time that Ms. Jacobsen was screaming and honking her	18
car horn, Defendant did not change his speed, apply his brakes, or take any other	19
action to avoid colliding with Victim. Based on Ms. Jacobsen’s testimony regarding	20

8
everything she did to warn of the danger she perceived, it was reasonable for the jury	1
to conclude that Defendant had enough time to avoid the collision and indeed could	2
have avoided the collision had he not been drunk. Cf. State v. Munoz, 1998-NMSC-	3
041, ¶¶ 19-22, 126 N.M. 371, 970 P.2d 143 (explaining that “a jury’s guilty verdict	4
in a vehicular homicide case is its determination that the defendant had the power to	5
prevent the victim’s death by driving lawfully”).	6
{12} 	We reject Defendant’s second argument because the State also presented	7
sufficient evidence that Victim’s injuries from the collision caused his death. This	8
evidence consisted of the testimony of two experts: Dr. Jasmeet Singh Paul, the	9
attending surgeon when Victim arrived at the University of New Mexico Hospital	10
(UNMH), and Dr. Hannah Kastenbaum, the medical investigator who declared the	11
cause of Victim’s death. Dr. Paul testified that, upon Victim’s arrival at UNMH,	12
hospital staff determined that Victim was likely to die of his injuries within two to	13
three weeks. Acknowledging that Victim died after he was taken off life support at	14
the direction of Victim’s family, Dr. Paul explained that, from the collision, Victim	15
suffered “multisystem trauma” including thirteen rib fractures, which in turn caused	16
pneumonia, and a severe brain injury and that the combination of Victim’s injuries	17
and resulting complications was what “really” “led to his death.” In addition, Dr.	18
Kastenbaum testified that “blunt trauma” from “being struck by a vehicle” was the	19
cause of Victim’s death. Dr. Kastenbaum elaborated that there was no reason to	20

9
conclude that Victim “would have died when he did” “but for [those] injuries[.]”	1
And Dr. Kastenbaum testified that, while Victim’s preexisting health problems	2
contributed to his death and that it was impossible to determine the extent to which	3
each underlying factor caused Victim to die when he did, his injuries from the	4
collision were a “tipping point” in bringing about his death.	5
{13} 	Contrary to Defendant’s arguments on appeal, the evidence at trial gave the	6
jury a reasonable basis for concluding that no outside event—whether it be Victim’s	7
own negligence or his family’s decision to remove him from life support—	8
interrupted the natural and continuous chain of events that foreseeably resulted from	9
Defendant’s act of drunk driving. See Montoya, 2003-NMSC-004, ¶ 19 (explaining	10
that a defendant’s act “may be a legal cause of death” even when there are “other	11
significant causes” of the death); Rojo, 1999-NMSC-001, ¶ 19 (explaining that the	12
jury is free to reject a defendant’s portrayal of the facts). Put simply, the evidence	13
was sufficient for the jury to find that (1) Defendant would have been able to avoid	14
the collision if he had not been drunk; (2) Victim would not have died when he did	15
but for the injuries he suffered as a result of Defendant’s drunk driving; and (3) the	16
manner of Victim’s death was a foreseeable consequence of Defendant’s actions.	17
Accordingly, we hold that the evidence suffices to sustain Defendant’s conviction.	18

10
III. 	Defendant’s Sentence Violates His Right Against Double Jeopardy	1
{14} 	We now turn to Defendant’s double jeopardy challenge to his sentence. We	2
begin by describing the relevant procedural background, then explain our analysis.	3
A. 	Procedural Background	4
{15} 	At sentencing on April 3, 2018, Defendant admitted that this was his fourth	5
conviction for DWI, and the State offered proof, for the purposes of the habitual-	6
offender statute, NMSA 1978, § 31-18-17(A), (D)(1) (2003), that Defendant had a	7
2011 felony conviction for selling or giving alcoholic beverages to minors. See	8
generally NMSA 1978, § 60-7B-1(A), (F) (2004, amended 2013). The district court	9
orally sentenced Defendant, at the highest end of its jurisdiction, to a total of	10
seventeen-and-a-half years: eighteen months for aggravated DWI, see § 66-8-102(G)	11
(mandating an eighteen-month sentence upon a fourth conviction for DWI), to be	12
served consecutively to a sixteen-year sentence for vehicular homicide, which	13
included a one-year habitual offender enhancement. See NMSA 1978, § 31-18-	14
15(A)(4) (2016) (setting the basic sentence for a second-degree felony “resulting in	15
the death of a human being” at fifteen years); § 31-18-17(A), (D)(1) (increasing the	16
basic sentence for a noncapital felony by one year when the person convicted is	17
deemed a habitual offender based on one prior conviction or conditional discharge	18
for a felony that was part of a separate transaction or occurrence and less than ten	19
years has passed since the person completed the sentence for the prior felony). The	20

11
court suspended seven-and-a-half years of the sentence for an actual term of ten	1
years. Nothing in the district court’s oral pronouncement of sentence indicated that	2
the sentence was tentative. Thereafter, the court entered an order remanding	3
Defendant “to the custody of the Metropolitan Detention Center” (MDC) because he	4
had been “[s]entenced to the custody of the [New Mexico Corrections Department	5
(NMCD)]” “to serve a term of [ten years].” The district court memorialized its	6
sentence in a letter to counsel sent two days later.	7
{16} 	Before entry of judgment and sentence—which the district court delayed	8
because the parties’ proposed judgment and sentence did not reflect the sentence of	9
actual incarceration corresponding to each of Defendant’s convictions—Defendant	10
moved to reconsider his sentence and vacate the aggravated DWI conviction.	11
Defendant argued that his conviction for both crimes subjected him to double	12
jeopardy. The district court agreed and, at a hearing on April 11, vacated the	13
aggravated DWI conviction and resentenced Defendant on the vehicular homicide	14
conviction, as a habitual offender, to sixteen years with six years suspended for an	15
actual term of ten years. The court also, for the first time, designated Defendant’s	16
crime a serious violent offense at the April 11 sentencing. See generally NMSA	17
1978, § 31-18-15(F) (2016, amended 2019) (directing the sentencing court to	18
determine whether any felony for which it has imposed a sentence of imprisonment	19

12
is a serious violent offense that, under NMSA 1978, Section 33-2-34 (2015), is	1
eligible for fewer merit-based sentence reductions than are nonviolent offenses).	2
{17} 	The district court orally resentenced Defendant a second time on April 19,	3
2018. In a later order clarifying its judgment and sentence, the district court	4
explained that it held the April 19 hearing because the parties had not submitted a	5
proposed judgment and sentence following the April 11 sentencing. At the April 19	6
hearing, the district court determined that it had lacked the discretion to designate	7
Defendant’s conviction for second-degree vehicular homicide a serious violent	8
offense due to what it perceived as a legislative oversight. See §§ 31-18-15(F), 33-	9
2-34(L)(4)(o)(14) (granting trial courts discretion to determine that a person	10
convicted 	of 	third-degree—but 	not 	second-degree—homicide 	by 	vehicle 	has	11
committed a serious violent offense). Attempting to compensate for this perceived	12
error, the court resentenced Defendant to fifteen years, which included a one-year	13
habitual offender enhancement. The district court did not suspend any part of the	14
sentence and did not designate the crime a serious violent offense. The net result was	15
to change the actual term of imprisonment from ten to fifteen years.	16
{18} 	Defendant argues that his current sentence violates principles of double	17
jeopardy because, after his original sentencing, he began serving the original	18
sentence with a reasonable expectation in its finality. Specifically, Defendant	19
contends that the second resentencing subjected him to double jeopardy because the	20

13
sentence imposed at that time and currently in place is fifteen years, whereas his	1
prison term had been ten years under the previous two sentences. Reviewing this	2
claim of error de novo, State v. Soutar, 2012 NMCA-024, ¶ 11, 272 P.3d 154; State	3
v. Yazzie, 2018-NMCA-001, ¶ 9, 410 P.3d 220, we agree.	4
B. 	Resentencing Defendant Violated a Double Jeopardy Principle Because	5
He Had a Reasonable Expectation That His Original Sentence Would Not	6
Be Increased	7
{19} 	The 	double 	jeopardy 	clauses 	of 	the 	United 	States 	and 	New 	Mexico	8
Constitutions protect a criminal defendant’s “reasonable expectation of finality” in	9
a sentence. State v. Porras, 1999-NMCA-016, ¶¶ 1, 13-14, 126 N.M. 628, 973 P.2d	10
880. That protection is the basis of a “well-established principle of New Mexico law	11
that a trial court generally cannot increase a valid sentence once a defendant begins	12
serving that sentence.” Id. ¶ 7 (citing, among other cases, State v. Cheadle, 1987-	13
NMSC-100, ¶¶ 10-16, 106 N.M. 391, 744 P.2d 166); see also 6 Wayne R. LaFave	14
et al., Criminal Procedure § 26.7(c) (4th ed. 2020) (recognizing that, under the	15
double jeopardy clause of the United States Constitution, “a defendant’s legitimate	16
expectation of finality in an imposed sentence” may “stand as a bar to resentencing”	17
(internal quotation marks and citation omitted)). This principle protects against an	18
increase in the actual term of incarceration in which a defendant has a reasonable	19
expectation of finality. See Porras, 1999-NMCA-016, ¶¶ 3-5, 12-13 (holding that	20
the defendant had a “reasonable expectation in the finality of the length and	21

14
structure” of his sentence that was violated when the district court modified his	1
sentence to suspend less imprisonment than it had originally suspended).	2
{20} 	Straightforward application of these principles leads to the conclusion that	3
upon remand to custody for the purpose of serving the originally-imposed sentence,	4
Defendant began serving his sentence, with a reasonable expectation in its finality,	5
before his resentencings on April 11 and April 19. See id. ¶ 14 (holding that the	6
defendant had a reasonable expectation of finality in an oral sentence from the	7
moment “the trial court remanded him to the custody of the sheriff” and he began	8
serving the sentence). Seeking to avoid this conclusion, the State makes three	9
arguments. We address each in turn.	10
C. 	The State’s Arguments Are Unavailing	11
{21} 	First, the State argues that Defendant could not have had a reasonable	12
expectation of finality in his sentence because it had not yet been incorporated into	13
a final judgment. This argument is contrary to New Mexico precedent. Under New	14
Mexico law, a defendant can form a reasonable expectation of finality in an	15
otherwise 	interlocutory 	sentence 	such 	as 	an 	oral 	sentence. 	Id. 	An 	oral	16
pronouncement of sentence does not always give rise to a reasonable expectation of	17
finality. See, e.g., Soutar, 2012-NMCA-024, ¶¶ 13-15. Our courts have instead	18
drawn a bright line at the commencement of service of sentence; a defendant can	19
reasonably rely on the finality of a sentence—oral or written—once the defendant	20

15
has begun serving the sentence. See Porras, 1999-NMCA-016, ¶ 14; Cheadle, 1987-	1
NMSC-100, ¶ 16 (“[I]t is . . . improper for a trial court in New Mexico to set aside a	2
valid sentence after a defendant has been committed thereunder[] and impose a new	3
or different sentence increasing the punishment.” (internal quotation marks and	4
citation omitted)).2
5
{22} 	We also reject the State’s second argument—that Defendant did not have a	6
reasonable expectation of finality in his sentence because he filed a motion labelled	7
2 We 	recognize 	that 	some 	New 	Mexico 	precedent 	invokes 	the
“well[-]established” rule that “the trial court can change [an oral sentence] at any
time before the entry of written judgment.” State v. Diaz, 1983-NMSC-090, ¶ 4, 100
N.M. 524, 673 P.2d 501. But cf. 6 LaFave, supra, § 26.4(d) (“Unfortunately, it is not
unusual for a trial judge to announce one sentence and enter another. Jurisdictions
have taken various approaches to resolving this inconsistency, with the majority
noting that the oral pronouncement controls, based in part on the defendant’s right
to be present at sentencing.”); State v. Stejskal, 2018-NMCA-045, ¶ 14, 421 P.3d
856 (discussing Rule 5-113(B) NMRA, which permits courts to correct clerical
mistakes 	in 	written 	sentencing 	orders, 	and 	recognizing 	a 	defendant’s 	“a
constitutional right to be present when [the defendant] is sentenced”). But those
precedents recognize that the rule applies only up to the point at which a defendant
begins serving that sentence. See Diaz, 1983-NMSC-090, ¶¶ 5-6 (holding that the
district court had the authority to resentence the defendant because the defendant
had not yet served any portion of the original, oral sentence); Soutar, 2012-NMCA-
024, ¶¶ 13-15 (holding that the defendant did not have a reasonable expectation of
finality in an oral sentence where the district court’s revocation of the defendant’s
plea agreement was justified by the defendant’s failure to abide by its terms and the
defendant’s appellate argument that he had begun serving his sentence was
baseless); State v. Rushing, 1985-NMCA-091, ¶¶ 5, 10, 103 N.M. 333, 706 P.2d 875
(holding that double jeopardy principles did not prevent resentencing in part because
the defendant had made misrepresentations at the original sentencing and in part
because the defendant had not commenced serving the original, oral sentence).

16
a motion for reconsideration of his sentence after the April 3 sentencing3—because	1
it relies on the dubious premise that when defendants ask trial courts to decrease	2
their sentences, they must reasonably expect that the courts might increase their	3
sentences. This defies common sense and, as we will explain, is inconsistent with	4
New Mexico law.	5
{23} 	The only avenue available for a discretionary reconsideration of sentence	6
following the April 3 sentencing was Rule 5-801,4 regarding motions for reduction	7
3 We note that, although Defendant’s motion was styled a motion to reconsider
sentence, the contents of the motion pertain only to the question of whether the
double jeopardy bar against multiple convictions and punishments for the same
offense precluded convicting Defendant of both vehicular homicide and aggravated
DWI and sentencing him for both offenses. Based on its substance, we believe the
motion is best understood exclusively as a request to vacate Defendant’s conviction
for aggravated DWI and his sentence for that crime. See State v. Roybal, 2006-
NMCA-043, ¶ 17, 139 N.M. 341, 132 P.3d 598 (“[I]t is the substance of the motion,
and not its form or label, that controls.”).
Insofar as the State’s argument is that the filing of the motion signals that the
sentence was interlocutory, see State v. Romero, 2014-NMCA-063, ¶¶ 5, 8, 327 P.3d
525 (explaining that a defendant’s timely postjudgment motion for reconsideration
of sentence under Rule 5-801 NMRA suspends the finality of the judgment for the
purposes of appeal), we reiterate that the reasonableness of a defendant’s expectation
of finality in a sentence is not dependent on the entry of a written final judgment.
Porras, 1999-NMCA-016, ¶ 14. As we will explain, it is perfectly reasonable for a
defendant who has begun serving a prison sentence and who moves under Rule
5-801 for a purely discretionary reduction of that sentence to expect the district court
to take one of only two actions on the motion: (1) grant the motion and reduce the
sentence, or (2) deny the motion, leaving the original sentence in place.
4 We are aware of one circumstance under which a district court must modify
its sentence regardless of the defendant’s expectations: where the habitual offender
statutes require an increase to the sentence. See NMSA 1978, §§ 31-18-19 (1977),
31-18-20 (1983); State v. Diaz, 2007-NMCA-026, ¶ 11, 141 N.M. 223, 153 P.3d 57.
But that circumstance is not present here because the district court imposed the

17
of sentence, and its availability did not prevent Defendant from forming a reasonable	1
expectation of finality because the Rule’s plain language and history demonstrate	2
that it only permits sentencing courts to reduce a defendant’s sentence. In construing	3
a rule of criminal procedure, our appellate courts employ “the same rules of	4
construction [as those] applicable to the interpretation of statutes.” State v. Aslin,	5
2020-NMSC-004, ¶ 9, 457 P.3d 249 (internal quotation marks and citation omitted).	6
We examine “the plain language of the rule as well as the context in which it was	7
promulgated, including the history of the rule and [its] object and purpose.” Id.	8
(internal quotation marks and citation omitted). The plain language of Rule 5-801 is	9
clear as to the scope of authority it confers. The applicable part of the Rule,	10
Subsection A, discusses only “[a] motion to reduce a sentence” and, fittingly, is	11
entitled “[r]eduction of sentence.” We see nothing in the Rule stating or implying	12
that a district court has the authority to increase a sentence upon the filing of a motion	13
to reduce the sentence.	14
{24} 	The history of Rule 5-801 confirms that its plain language means what it says.	15
This Court discussed that history in State v. Torres, 2012-NMCA-026, 272 P.3d 689,	16
which involved a prior version of the rule, Rule 5-801(A) (1989). Torres, 2012-	17
habitual-offender enhancement at Defendant’s original sentencing. And, in any
event, it is clear under our precedent that a defendant may have a reasonable
expectation of finality in an underlying sentence regardless of the possibility of later
habitual-offender enhancement. Porras, 1999-NMCA-016, ¶ 13.

18
NMCA-026, ¶ 13. In Torres, this Court recognized that, with the 1989 amendment	1
to Rule 5-801, New Mexico abolished a common-law principle that gave sentencing	2
courts inherent authority to correct illegal sentences. Torres, 2012-NMCA-026,	3
¶¶ 13-15, 17, 37-38.5 This Court explained that the evolution of Rule 5-801 has	4
“closely tracked” that of Federal Rule of Criminal Procedure 35, which, in the	5
interest of “mak[ing] prisoner release dates more certain and sentences imposed in	6
the public forum more final,” Congress amended it in 1984 specifically “to remove	7
any historical common law jurisdiction the federal district courts once enjoyed with	8
respect to correction of illegal sentences.” Torres, 2012-NMCA-026, ¶¶ 17-27. New	9
Mexico has “[f]ollow[ed] the federal lead,” id. ¶ 20, by “continually narrow[ing] the	10
scope of Rule 5-801.” Torres, 2012-NMCA-026, ¶ 27.	11
{25} 	The narrowing has continued since Torres. Our Supreme Court amended the	12
Rule again in 2014, upon the recommendations of a committee it had appointed to	13
review various rules of criminal procedure. See Supreme Court Order No. 14-8300-	14
014 (Nov. 1, 2014). See generally Max Minzner, Habeas Corpus in New Mexico, 46	15
N.M. L. Rev. 43 (2016). The amendment to Rule 5-801 further narrowed the scope	16
of the rule to “motions where the defendant seeks a discretionary reduction in	17
5 This case does not present a question about the district court’s authority to
correct an illegal sentence. The State does not argue, and we are aware of no basis
for concluding, that the district court increased Defendant’s original sentence to
correct any illegality.

19
sentence from the district court judge.” Minzner, supra, at 65. Prior to the 2014	1
amendment, Rule 5-801(A) (2009) permitted sentencing courts to “correct a	2
sentence imposed in an illegal manner” within ninety days of the imposition of	3
sentence. The current version, as amended, only permits motions “to reduce a	4
sentence.” Rule 5-801(A). The change reflects a deliberate effort to remove any	5
ambiguity 	regarding 	whether 	Rule 	5-801 	permits 	motions 	to 	correct 	illegal	6
sentences, Minzner, supra, at 64-65, which, since 1989, it has not. Torres, 2012-	7
NMCA-026, ¶¶ 13, 17. The Rule’s plain language and history thus demonstrate that	8
Rule 5-801 does not authorize a sentencing court to increase a sentence on a	9
defendant’s 	motion 	to 	reconsider 	sentence. 	Therefore, 	Defendant’s 	motion	10
requesting his aggravated DWI conviction be vacated on double jeopardy grounds	11
had no bearing on whether he had a reasonable expectation that his actual prison	12
term would be no longer than the ten years imposed at his original sentencing.	13
{26} 	The State’s third argument is that Defendant had not begun serving his	14
sentence because he was incarcerated at the local jail rather than the prison facility	15
where he could expect to serve the greater part of his sentence. We are not persuaded.	16
In our view, Defendant’s expectation of finality in his sentence was no less	17
reasonable than that of the defendant in Porras—where this Court held that the	18
defendant began serving a ninety-day jail sentence when he was remanded to the	19
local jail, 1999-NMCA-016, ¶ 14—simply because Defendant, though incarcerated	20

20
pursuant to the original sentence the district court imposed, had not yet been	1
transported from the jail to an NMCD facility.	2
{27} 	To accept the State’s position, we would have to draw two distinctions that	3
we perceive as untethered from the purpose of the double jeopardy principle at issue	4
here. The first distinction is between two defendants who are remanded to the	5
custody of the local jail but who will serve their sentences in different types of	6
facilities. See generally NMSA 1978, § 31-20-2(A), (D), (E) (1993) (identifying the	7
circumstances under which a sentence must be served in a facility under NMCD	8
jurisdiction). Under the rule the State proposes, the defendant who is sentenced to	9
serve time in the local jail would have a reasonable expectation of finality upon	10
remand to the local jail, but the defendant who is sentenced to a prison term would	11
not. The second distinction is between two defendants who are remanded to the	12
custody of the local jail and have received sentences that will be served in NMCD	13
facilities but who arrive at those facilities at different times. Under the State’s	14
proposed rule, the defendant who is transported to an NMCD facility first would	15
obtain a reasonable expectation of finality upon transport, but the defendant who	16
remains in the local jail awaiting transport to an NMCD facility would have no such	17
expectation. We are aware of no basis in New Mexico law for such distinctions. And	18
we think those distinctions are arbitrary; they are driven not by the reasons for the	19
double jeopardy rule but instead by happenstance. Where a particular defendant	20

21
happens to be incarcerated when a trial court decides to increase the sentence it has	1
imposed bears no meaningful relationship to whether it is reasonable for that	2
defendant to expect that the sentence is final and will not be increased.	3
{28} 	We conclude that defendants who have heard the district court impose	4
sentence in open court, in no uncertain terms, and who are then remanded into	5
custody for the purpose of beginning to serve that sentence have a reasonable	6
expectation that their sentences will not be increased, regardless of whether they	7
subsequently request a discretionary reduction to their sentences and regardless of	8
whether they are incarcerated in an institution operating under the authority of	9
NMCD or under the authority of a county or local government. We therefore hold	10
that Defendant began serving the sentence originally imposed by the district court	11
when he was remanded to the custody of the MDC and that, from then on, he had a	12
reasonable expectation that his sentence would not be increased. Because the	13
subsequent imposition of an actual term of imprisonment greater than ten years	14
violated Defendant’s right to be free from double jeopardy, Defendant’s sentence	15
cannot stand.	16
CONCLUSION	17
{29} 	We affirm Defendant’s conviction but reverse the judgment and sentence and	18
remand for entry of a judgment and sentence consistent with this opinion.	19
{30} 	IT IS SO ORDERED.	20

Ne

HN

WE CONCUR:

= f = L. ATTREP, Judge

MEGAN P. DUFFY, Yudge

22

ZACHA®Y A. IVES, Judge