October 4, 2018- State of New Mexico v. Juan Trinidad Sanchez, No. A-1-CA-35904

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: OCTOBER 4, 2018
4 No. A-1-CA-35904
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 JUAN TRINIDAD SANCHEZ,
9 	Defendant-Appellant.
10 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 	Briana H. Zamora, District Judge
12 Hector H. Balderas, Attorney General
13 	Anita Carlson, Assistant Attorney General
14 Santa Fe, NM
15 	for Appellee
16 Bennett J. Baur, Chief Public Defender
17 Kathleen T. Baldridge, Assistant Appellate Defender
18 	Santa Fe, NM
19 for Appellant
Filed
Court of Appeals of New Mexico
10/4/2018 3:09 PM
Office of the Clerk
Mark Reynolds

1 	OPINION
2 VARGAS, Judge.
3 	{t} 	The opinion filed October 3, 2018, is hereby withdrawn, and this opinion is
4 filed in its stead. Defendant Juan Trinidad Sanchez appeals the district court's
5 enhancement of his sentence for felony escape from a community custody release
6 program (CCP) under NMSA 1978, Section 30-22-8.1 (1999). We conclude that
7 Defendant's sentence was not improper because: (1) the felony escape from CCP
8 statute allows for an elevated degree of offense based on a prior felony charge
9 irrespective of whether the defendant is ultimately convicted of the felony; (2) the
10 Legislature 	did 	not 	contemplate 	a 	prior 	felony 	conviction 	in 	assigning 	the
11 	punishment for felony escape from CCP, and (3) the escape from CCP statute and
12 the habitual offender enhancement statute serve different purposes. We affirm
13 	Defendant's sentence as consistent with the plain language of the statutes as well as
14 	case 	law 	recognizing 	the 	difference 	between 	enhancements 	based 	on 	pnor
15 	convictions and elevated degrees of offense based on prior charges.
16 BACKGROUND
17 	{2} 	Defendant was convicted of felony possession of a controlled substance and
18 	was subsequently committed to CCP. Two weeks after being committed to CCP
19 Defendant cut off his ankle monitor, failed to respond to messages from monitoring
20 officers, and was subsequently taken into custody. A grand jury indicted Defendant

1 for escape from CCP. The State charged Defendant with felony escape from CCP
2 because the possession charge, for which Defendant was committed to CCP, was
3 also a felony, and a jury found him guilty. The State then sought to enhance
4 Defendant's felony escape conviction by eight years pursuant to the habitual
5 offender statute, asserting that Defendant had three or more prior felony convictions,
6 one of which was his conviction for possession of a controlled substance (felony
7 possession). 1 The district court found Defendant was a habitual offender, and
8 enhanced his sentence for felony escape by eight years. This appeal followed.
9 DISCUSSION
10 {3} 	Defendant argues that his conviction for felony possession was impermissibly
11 	used twice during sentencing: first to elevate the degree of the escape charge to a
12 	felony, and then agai:n as a prior felony conviction for purposes of the habitual
13 	offender enhancement. We must therefore decide whether a felony charge that
14 	ultimately results in a conviction and gives rise to a felony escape conviction under
15 	Section 30-22-8.1 can then be used as a prior felony conviction for a habitual
16 	offender enhancement of the felony escape sentence. Much of the case law on this
17 issue contains ambiguous or vague language, including references to felonies, rather
18 	than convictions, and punishments, as opposed to sentences or increased degrees of
1Defendant does not contest the existence or use of the other prior felony
convictions, and they are not relevant to the issue on appeal.
2

1 an offense. We are nonetheless able to discern two distinct lines of case law: those
2 analyzing statutes, which require proof of a prior felony conviction or proof of a
3 defendant's status as a felon, and those analyzing statutes that do not. For the reasons
4 that follow, we believe this case belongs in the latter category.
5 A. 	Sentencing Framework
6 	{4} 	"In New Mexico, the court's sentencing authority is limited by statute[, and
7 t]he [L]egislature must give express authorization for a sentence to be imposed."
8 State v. Lacey, 2002-NMCA-032,, 5, 131 N.M. 684, 41 P.3d 952 (citation omitted).
9 "We review issues of statutory interpretation de novo." State v. 	Strauch, 2015-
10 NMSC-009,, 13,345 P.3d 317. When interpreting a statute, we seek to give effect
11 	to the Legislature's intent, and do so by looking first to the plain meaning of the
12 	statute's language. State v. 	Nieto, 2013-NMCA-065, , 	4, 303 P.3d 855. If the
13 	language of the statute "is clear and unambiguous, we must give ~ffect to that
14 	language and refrain from further statutory interpretation." State v. Johnson, 2001-
15 	NMSC-001,, 6, 130 N.M. 6, 15 P.3d 1233.
16 {5} 	The Criminal Sentencing Act, NMSA 1978 Section 31-18-12 to -26 (1977, as
17 amended through 	2016), 	grants 	courts the 	authority to 	sentence 	"all persons
18 	convicted of a crime under the laws of New Mexico." Section 3 l-18-13(A). Pursuant
19 to the habitual offender statute contained within the Criminal Sentencing Act, the
20 extent to which a defendant's sentence can be enhanced depends on the number of
3

1 the defendant's prior felony convictions. See§ 31-18-l 7(C) (providing that a person
2 convicted of a felony within the Criminal Code who has incurred three or more
3 qualifying prior felony convictions may be characterized as a habitual offender "and
4 his basic sentence shall be increased by eight years"). Despite the habitual offender
5 statute's statement of broad applicability to "all persons convicted of a crime," our
6 courts have recognized certain exceptions to its broad application. State v. Peppers,
7 1990-NMCA-057,, 28, 110 N.M. 393, 796 P.2d 614.
8 	{6} 	The case law recognizing these exceptions all involve the improper use of a
9 prior conviction, either to support an element of a subsequent conviction and an
10 	enhancement under the habitual offender statute or to stand as the basis for two
11 	separate enhancements. For example, in State v. Keith, 1985-NMCA-012, ,, 3, 11,
12 	102 N.M. 462, 697 P.2d 145, we held that a prior armed robbery conviction could
13 	not be used to elevate a defendant's subsequent armed robbery conviction from a
14 	second degree to a first degree felony and then further enhance the defendant's
15 	sentence under the habitual offender statute. Then, in State v. Haddenham, 1990-
16 NMCA-048, , 	21, 	110 N.M. 	149, 793 	P.2d 279, we held that a prior felony
17 conviction could not be used to satisfy an element of a felon in possession of a
18 	firearm conviction, and also be used to enhance the defendant's sentence under the
19 habitual offender statute. Finally, in Lacey, 2002-NMCA-032, ,, 15-16, this Court
20 held that a prior felony trafficking conviction could not be used to elevate a
4

1 subsequent trafficking conviction from a second to first degree felony, and then be
2 used to enhance the defendant's sentence for conspiracy to commit a first degree
3 felony.
4 {7} 	Each of these cases follow the analytical framework set out in Keith, where
5 this Court began with the language 	of the statutes and, perceiving a general
6 "reluctance to allow stacking of enhancements directed at similar purposes[,]"
7 concluded that where a general 	statute-in these cases, the habitual offender
8 enhancement statute-is in conflict with a more specific one, "the specific [statute]
9 is construed as an exception to the general statute." 1985-NMCA-012, ,r,r 6, 9. Keith
10 referred to our policy of strictly construing highly penal statutes and the rule oflenity
11 	in reaching its holding. 	Id. 	,r,r 	10-11. Haddenham 	largely followed the same
12 	approach, again finding a common purpose between the statutes at issue and
13 	referencing the rule of lenity. 1990-NMCA-048, ,r,r 14, 20. Haddenham also refined
14 the analysis by emphasizing the importance of legislative intent in considering prior
15 	convictions as part of a subsequent conviction: "Where the legislative intent is to
16 permit the use of the same facts to impose an enhanced sentence, the legislation must
17 clearly so indicate." Id. ,r 20. It is Lacey, however, that truly solidified the importance
18 	of gleaning legislative intent from the language of the statute by drawing a clear
19 	distinction between crimes that require a prior felony conviction, either as a basis
20 for enhancement or factual element, and those that do not. 2002-NMCA-032, ,r 14.
5

1 In 	addition to 	considering the 	common purpose 	of the 	statutes at issue and
2 acknowledging the rule of lenity, the Lacey court analyzed the issue that is the crux
3 	of an analysis under Keith and its progeny: "if a prior felony conviction is already
4 taken 	into 	account 	in 	determining 	the 	punishment 	for 	a 	specific 	crime, 	the
5 [L]egislature, unless it clearly expresses otherwise, do'es not intend that [the prior
6 felony conviction] also be used to enhance the conviction under the habitual offender
7 statute." Lacey, 2002-NMCA-032, ,, 6, 7, 9 (citing Peppers, 1990-NMCA-057,
8 , 30, for the proposition that Keith and Haddenham "both derive from a reasonable
9 assumption about legislative intent").
10 {8} 	While Keith, Haddenham, and Lacey, analyze statutes where the Legislature
11 	specifically contemplated the existence of a prior felony conviction in setting the
12 punishment for the offense, Peppers involved a statute that based the punishment for
13 	the offense on a prior felony charge. 1990-NMCA-057,, 25 (citing NMSA 1978,
14 	Section 31-3-9 (1999)). Peppers used the Legislature's language requiring a charge,
15 	rather than conviction, to distinguish the case from Keith and its progeny in two
16 ways. First, this Court noted that the failure to appear statute applies not only to
17 persons who had been convicted, but also those whose trial is still pending. Peppers,
18 	1990-NMCA-057,, 32 ("To prove the offense of failure to appear, the state need
19 not establish that the defendant was convicted of or committed the offense for which
20 the defendant was on trial."). As such, the Peppers court reasoned that, unlike in
6

1 Keith and Haddenham, the Legislature could not have considered a prior felony
2 conviction in determining the punishment for failure to appear, because a prior
3 felony conviction was not required under the failure to appear statute:
4
5
6
7
8
9
10
When the [L]egislature set the penalty for failure to appear at trial, it
could not have assumed that the person who had failed to appear would
be convicted at the trial. On the contrary, the [L]egislature should have
presumed the innocence of an individual facing trial. ... In trying to
discern legislative intent, we should not presume that the [L]egislature
set the penalty for failure to appear on the assumption that a person
accused of a crime has actually committed the crime.
11 	Peppers, 1990-NMCA-057, ,, 31-33. Second, the Peppers court pointed out that
12 	because the statute required proof of a charge and not a conviction, the defendant's
13 	prior felony conviction was not used to prove the offense of failure to appear. Id.
14 , 32. Based on the language of the statute requiring a charge, and not a conviction,
15 	in determining the degree of offense, Peppers allowed the defendant's failure to
16 appear sentence to be enhanced under the habitual offender statute.
17 B.
18 	{9}
Escape From CCP Under Section 30-22-8.1
Keeping in mind the distinction between prior felony charge and prior felony
19 conviction set forth in Peppers and Lacey, we look to the language of the statute at
20 issue here. Section 30-22-8. l(A) defines escape from CCP as "a person, excluding
21 	a person on probation or parole, who has been lawfully committed to a judicially
22 	approved 	[CCP], including a day reporting program, an electronic mot;1itoring
23 	program, a day detention program or a community tracking program, escaping or
7

1 attempting 	to 	escape 	from 	the 	[CCP]." 	Escape 	from 	CCP 	can 	either 	be 	a
2 misdemeanor or felony, depending on_ whether the person was committed to the
3 program pursuant to a misdemeanor charge or a felony charge. Section 3 0-22-8 .1 ( C)
4 ("Whoever commits escape from [CCP], when the person was committed to the
5 program for a felony charge, is guilty of a felony."). Commitment to CCP is not
6 reserved for defendants who have already been convicted; an individual can be
7 placed in CCP prior to having been convicted of the crime for which he or she is·
8 charged. Cf State v. Duhon, 2005..,NMCA-120, if 11, 138 N.M. 466, 122 P.3d 50
9 (concluding that the defendant, placed on house arrest pending trial, was subject to
10 prosecution for escape from CCP under Section 30-22-8.1); State v. Guillen, 2001-
11 	NMCA-079, ,r 11, 130 N.M. 803, 32 P.3d 812 (same).
12 	{t O} 	The exceptions to application of the habitual offender statute set forth in Keith,
13 	Haddenham, 	and Lacey, do not apply here, as there is no dual use of a prior
14 	conviction or factual predicate. Much like the failure to appear statute in Peppers,
15 	the plain language of the escape statute makes it clear that the Legislature requires
16 proof of different facts for an escape from CCP conviction than it does for a habitual
17 offender enhancement. See 1990-NMCA-057, ,r 32. For a defendant to be found
18 	guilty of felony escape from CCP the state must show that a felony charge led to the
19 defendant's commitment to the program, Section 30-22-8.l(C), while a habitual
20 offender enhancement requires that the state show that the defendant had three or
8

1 more prior felony convictions. Section 31-18-17(C). Defendant's status as a felon,
2 particularly his conviction for felony possession, is not an element of his conviction
3 for escape from CCP, see§ 30-22-8.1 (requiring felony charge), and merely served
4 to place him in the CCP from which he subsequently escaped. As such, his prior
5 felony possession conviction is sufficiently removed from his felony escape sentence
6 as to allow for a habitual enhancement under our double-enhancement analysis. See
7 State v. Najar, 1994-NMCA-098, ,r 4, 118 N.M. 230, 880 P.2d 327 (affirming the
8 habitual offender enhancement of escape from an inmate-release program as based
9 on separate facts from the conviction itself).
10 	{11} 	By basing the degree of the escape on the degree of the prior charge, the plain
11 	language of Section 30-22-8.1 is clear that whether the accused is convicted of the
12 prior 	felony 	is 	immaterial. 	See 	Peppers, 	1990-NMCA-057, 	,r 	33. 	Although
13 	Defendant here was convicted of the felony possession charge that gave rise to his
14 commitment to the CCP, that fact does not alter our analysis under the plain language
15 	of Section 30-22-8 .1. Whether a defendant is convicted of a charge or not, does not
16 alter the statutory language establishing the degree of the charge, regardless of the
17 conviction. See State v. Almanzar, 2014-NMSC-001, ,r 14, 316 P.3d 183 ("Where
18 	the language of a statute is clear and unambiguous, we must give effect to that
19 	language and refrain from further statutory interpretation." (internal quotation marks
20 and citation omitted)); State v. Young, 2004-NMSC-015, ,r 27, 135 N.M. 458, 90
9.

I P.3d 477 (declining "to hobble statutory interpretation with an artificial and unduly
2 narrow construction of the statute" (internal quotation marks and citation omitted)).
3 It would be improper for us to read the Legislature's use of the term "charge" as
4 "conviction" in the absence of ambiguity. See Peppers, 1990-NMCA-057, 1131-33
5 (discussing the impact that presumption of innocence has on interpretation of
6 legislative intent: "In trying to discern legislative intent, we should not presume that
7 the [L ]egislature set the penalty for failure to appear on the assumption that a person
8 accused of a crime has actually committed the crime."); see also State v. Hubble,
9 2009-NMSC-014, 110, 146 N.M. 70,206 P.3d 579 ("[W]hen a statute's language
10 	is clear and unambiguous, we will give effect to the language and refrain from further
11 	statutory interpretation. We will not read into a statute language which is not there,
12 	especially when it makes sense as it is written." (internal quotation marks and
13 	citation omitted)).
14 	{12} 	We also note that the escape from CCP statute serves a different purpose than
15 	the habitual offender statute. While the habitual offender statute serves the purpose
16 	of deterring criminal conduct "by placing convicted felons on notice that they win·
17 be subjected to enhanced sentences for the commission of subsequent offenses[,]"
18 Haddenham, 1990-NMCA-048, 114, the escape from CCP statute "was designed to
19 	create incentives for complying with the conditions of restrictive [CCP.]" Duhon,
20 2005-NMCA-120, 112. In addition, Section 30-22-8.1 can hardly serve the same
10

1 purpose as the habitual offender statute by giving notice of harsher penalties to
2 convicted felons when it applies to those who may not yet be convicted of a felony.
3 The analysis used in Keith and its progeny, in which conflicting statutes with the
4 same purpose are applied with deference to more specific statutes, therefore does not
5 apply here. See Lacey, 2002-NMCA-032, 19.
6 	{13} 	Peppers, in dicta, acknowledged that "if the sentence being enhanced had
7 been imposed for the offense of escape by a convicted felon[,]" the analysis would
8 likely be different. 1990-NMCA-057, 132 (citing State v. Cox, 344 So. 2d 1024 (La.
9 	1977). Because this remark has no bearing on the holding in Peppers, it is dicta and
10 	is therefore not binding on the application of Peppers in this case. See Ruggles v.
11 	Ruggles, 1993-NMSC-043, 122 n.8, 116 N.M. 52,860 P.2d 182 (defining "dictum"
12 	as unnecessary to the decision of issues, or a comment concerning a rule of law not
13 	necessary to the determination of the case at hand, which therefore lacks the force
14 	of an adjudication). Nonetheless, because Defendant cites to Cox as support for his
15 	position on appeal, we address it briefly.
16 	{14} 	Cox falls somewhere between our reasoning in Peppers and the reasoning set
17 forth in Keith and its progeny. While the escape statute at issue in Cox elevates the
18 	degree of offense much like Section 30-22-8.1, it differs from our statute in that it
19 bases the elevated degree of offense not on a prior charge, but on a prior conviction:
20 "The escape statute itself causes an enhancement of penalty by requiring consecutive
11

I 	sentences because of a defendant's previous felony conviction." Cox, 344 So. 2d at
2 	I 026. By referencing Cox in conjunction with the offense of escape by a convicted
3 felon, the Peppers court appears to have been alluding to the impact that a prior
4 felony conviction would have on a subsequent escape conviction if a prior conviction
5 were an element of the offense. Such a case would be similar to Haddenham, where
6 the defendant's status as a felon was impermissibly used both to prove an element
7 of the crime of felon in possession of a firearm and to enhance his sentence under
8 the habitual offender statute. 1990-NMCA-048,, 3. We also note that Section 30-
9 22-8.1 had not been promulgated when Peppers was issued, and as such could not
IO 	have been contemplated by the Peppers court's remarks on the legality of a sentence
11 	for escape. See§ 30-22-8.1.
12 	{15} 	Defendant also urges this Court to apply the rule of lenity, but "lenity is
13 	reserved for those situations in which a reasonable doubt persists about a statute's
14 intended scope even after resort to the language and structure, legislative history,
15 	and motivating policies of the statute." State v. Johnson, 2009-NMSC-049,, 18, 147
16 N.M. 177,218 P.3d 863 (emphasis, internal quotation marks, and citation omitted).
17 Because we do not find an insurmountable ambiguity regarding the scope of the
18 	statutes in this case, the rule of lenity is inapplicable. See id. ("The rule of lenity
19 	counsels that criminal statutes should be interpreted in the defendant's favor when
12

1 insurmountable ambiguity persists regarding the 	intended scope 	of a criminal
2 	statute." (internal quotation marks and citation omitted)).
3 {16} 	Defendant's degree of escape from CCP was based upon the felony possession
4 	charge, while the enhancement of his felony escape sentence was based upon his
5 three prior felony convictions. We conclude that it was permissible for the State to
6 use Defendant's felony possession charge to determine whether to charge Defendant
7 for misdemeanor or felony escape from CCP and to subsequently use Defendant's
8 felony possession conviction to enhance ·his sentence for escape from CCP.
9 CONCLUSION
10 {17} 	For the foregoing reasons, we affirm the district court's finding that Defendant
11 	was a habitual offender _and its enhancement of his sentence for felony escape.
12 	{18} 	IT IS SO ORDERED.
13
14
15 	WE CONCUR:
18
19
13