February 10, 2022- State of New Mexico v. Julianna Montano, No. A-1-CA-38616

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: February 10, 2022	3
No. A-1-CA-38616	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JULIANNA MONTANO a/k/a	8
JULIANNA P. MONTANO a/k/a	9
JULIANNA PAULINE MONTANO,	10
Defendant-Appellant.	11
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	12
Daniel J. Gallegos, District Judge	13
Hector H. Balderas, Attorney General	14
Benjamin Lammons, Assistant Attorney General	15
Santa Fe, NM	16
for Appellee	17
Bennett J. Baur, Chief Public Defender	18
Santa Fe, NM	19
Steven J. Forsberg, Assistant Appellate Defender	20
Albuquerque, NM	21
for Appellant	22
Court of Appeals of New Mexico
Filed 2/10/2022 10:37 AM

OPINION	1
ATTREP, Judge.	2
{1} 	Defendant Julianna P. Montano pled guilty to second degree homicide by	3
vehicle, contrary to NMSA 1978, Section 66-8-101(C) (2016), for driving drunk and	4
causing an accident resulting in the death of another human being. As part of its	5
sentencing decision, the district court concluded that Defendant’s conviction for	6
second degree homicide by vehicle was a serious violent offense under the Earned	7
Meritorious Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2015). Defendant	8
appeals this determination. Because second degree homicide by vehicle is not an	9
enumerated “serious violent offense” under the EMDA and there is no basis to depart	10
from the plain language of the EMDA, we hold that it is a nonviolent offense. We	11
therefore reverse the district court’s determination that Defendant’s crime is a	12
serious violent offense. We affirm as to Defendant’s other claims of error on appeal.	13
BACKGROUND	14
I. 	Statutory Background	15
{2} 	The EMDA allows a prisoner confined in a facility designated by the	16
Corrections Department to earn deductions from his or her sentence for good	17
behavior and for participating in programs designed for rehabilitation (i.e., good time	18
credit). See § 33-2-34(B), (D) (describing circumstances that permit a prisoner to	19
earn meritorious deductions); § 33-2-34(F) (describing circumstances that render a	20

2
prisoner ineligible to earn meritorious deductions). As relevant to this case, the	1
amount of deductions a prisoner may earn depends on whether the crime for which	2
the prisoner is serving his or her sentence is a “serious violent offense” or a	3
“nonviolent offense.” A prisoner serving a sentence for a serious violent offense may	4
only receive up to four days per month of deductions, § 33-2-34(A)(1), whereas a	5
prisoner serving a sentence for a nonviolent offense may receive up to thirty days	6
per month of deductions, § 33-2-34(A)(2).	7
{3} 	Seventeen crimes, enumerated in fourteen statutory provisions, are, by	8
definition, serious violent offenses. Section 33-2-34(L)(4)(a)-(n). We refer to these	9
crimes as “per se serious violent offenses.” Another twenty crimes, enumerated in	10
fifteen statutory provisions, are serious violent offenses if the district court finds that	11
“the nature of the offense and the resulting harm” of the crime under a given set of	12
facts warrant the designation. Section 33-2-34(L)(4)(o); see also State v. Solano,	13
2009-NMCA-098, ¶ 10, 146 N.M. 831, 215 P.3d 769 (explaining that a district court	14
must find “that the crime was committed in a physically violent manner either with	15
an intent to do serious harm or with recklessness in the face of knowledge that one’s	16
acts are reasonably likely to result in serious harm” (internal quotation marks and	17
citation omitted)). We refer to these crimes as “discretionary serious violent	18

3
offenses.” All remaining crimes, i.e., those not designated serious violent offenses,	1
are, by definition, nonviolent offenses.1 Section 33-2-34(L)(3).	2
{4} 	New Mexico defines the crime of “homicide by vehicle” as “the killing of a	3
human being in the unlawful operation of a motor vehicle.” Section 66-8-101(A).	4
Prior to 2016, a person committing homicide by vehicle—whether while under the	5
influence of intoxicating liquor or any drug (DWI) or while violating NMSA 1978,	6
Section 66-8-113 (1987) (reckless driving)—was guilty of a third degree felony and	7
subject to a basic sentence of six years’ imprisonment. Section 66-8-101(C) (2004);	8
NMSA 1978, § 31-18-15(A)(8) (2019)2 (providing a basic sentence of six years’	9
imprisonment for a defendant convicted of a “third degree felony resulting in the	10
death of a human being”). Under the EMDA, the crime of “third degree homicide	11
by vehicle,” as provided in Section 66-8-101, is a discretionary serious violent	12
offense. Section 33-2-34(L)(4)(o)(14).	13
{5} 	The Legislature amended Section 66-8-101 in 2016. The amendment elevated	14
the crime of homicide by vehicle (DWI) to a second degree felony. Section 66-8-	15
101(C). A person committing that offense is subject to a basic sentence of fifteen	16
1 Offenders serving a sentence of life imprisonment or life imprisonment
without the possibility of release or parole are an exception since they are ineligible
to receive earned meritorious deductions. Section 33-2-34(G).
2 Although 	Section 	31-18-15 	was 	amended 	in 	2007 	and 	2016, 	these
amendments did not substantively alter the provisions we cite in this opinion. We,
therefore, cite the most recent version of Section 31-18-15 throughout this opinion
for convenience.

4
years’ imprisonment. Section 31-18-15(A)(4). The amendment did not change	1
homicide by vehicle while driving recklessly—a person committing this offense is	2
still guilty of a third degree felony, subject to a basic sentence of six years’	3
imprisonment. Section 66-8-101(D); § 31-18-15(A)(8). As for the EMDA, the	4
Legislature has not amended it since 2015. As a result, the crime of “second degree	5
homicide by vehicle,” which did not exist prior to 2016, is not enumerated as either	6
a per se or discretionary serious violent offense. See § 33-2-34(L)(4).	7
II. 	Factual and Procedural Background	8
{6} 	A grand jury indicted Defendant with several crimes in connection with her	9
driving drunk on Interstate 40 in late 2017 and causing an accident resulting in the	10
death of Patricia Urban. Defendant and the State ultimately reached an agreement in	11
which Defendant pled guilty to one count of second degree homicide by vehicle in	12
exchange for the dismissal of the remaining charges. The parties agreed that the	13
district court would sentence Defendant to a term of imprisonment of between four	14
and seven years, but made no other agreement as to sentencing. At the sentencing	15
hearing, the district court, consistent with the plea agreement, imposed the basic	16
sentence of fifteen years, but suspended eight of those years—leaving Defendant	17
with an effective term of imprisonment of seven years. The district court deferred	18
ruling on whether Defendant’s crime constituted a serious violent offense for	19
purposes of the EMDA.	20

5
{7} 	Relying on the fact that the EMDA does not list second degree homicide by	1
vehicle as a serious violent offense, see § 33-2-34(L)(4), Defendant moved the	2
district court to deem her a nonviolent offender. After holding a hearing, the district	3
court entered a written order denying Defendant’s motion. Relying on principles of	4
statutory construction, the district court agreed with Defendant that, under the plain	5
meaning of the EMDA, she was convicted of a nonviolent offense. The district court	6
nonetheless thought it “absurd” that the crime of second degree homicide by vehicle	7
was a nonviolent offense, whereas the crime of third degree homicide by vehicle, a	8
less serious offense, could be designated a serious violent offense. The district court	9
thus determined, “the Legislature simply committed an oversight by not amending	10
Section 33-2-34 to categorize second degree homicide by vehicle as a serious violent	11
offense.” Finding that Defendant acted recklessly in the face of knowledge that her	12
actions were reasonably likely to result in harm, the district court ruled her crime to	13
be a serious violent offense. Defendant appeals the district court’s determination that	14
second degree homicide by vehicle is a discretionary serious violent offense under	15
the EMDA.	16
DISCUSSION	17
I. 	Second Degree Homicide by Vehicle Is Not a Serious Violent Offense	18
Under the EMDA	19
{8} 	Whether the district court erred in designating Defendant’s conviction for	20
second degree homicide by vehicle a serious violent offense presents a matter of	21

6
statutory construction, which we review de novo. See State v. Bennett, 2003-NMCA-	1
147, ¶ 4, 134 N.M. 705, 82 P.3d 72 (“The district court’s authority to classify [the	2
d]efendant as a serious violent offender derives from Section 33-2-34, and our	3
construction of this statute for the district court’s authority in this case is an issue we	4
analyze de novo as a matter of law.”). “The primary goal in interpreting a statute is	5
to give effect to the Legislature’s intent; we first look at the words chosen by the	6
Legislature and the plain meaning of those words.” State v. Hubble, 2009-NMSC-	7
014, ¶ 10, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation	8
omitted). Typically, “[i]f the meaning of the statutory language is clear and without	9
ambiguity, we apply the statute as it is written.” Bennett, 2003-NMCA-147, ¶ 6; see	10
also State v. Maestas, 2007-NMSC-001, ¶ 14, 140 N.M. 836, 149 P.3d 933 (“Our	11
role is to construe statutes as written and we should not second guess the	12
[L]egislature’s policy decisions.”). Further, “[w]e will not read into a statute any	13
words that are not there, particularly when the statute is complete and makes sense	14
as written.” State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125.	15
{9} 	Before turning to the matter at hand, we observe that this Court and our	16
Supreme Court have addressed challenges similar to the one presented today, in	17
which a district court has designated a crime a serious violent offense even though	18
it was not so enumerated in the EMDA. See State v. McDonald, 2004-NMSC-033,	19
¶¶ 19-23, 136 N.M. 417, 99 P.3d 667; Bennett, 2003-NMCA-147, ¶¶ 4-13. In this	20

7
area in particular, our courts have emphasized that the Legislature has carefully	1
structured the EMDA. See McDonald, 2004-NMSC-033, ¶ 20; Bennett, 2003-	2
NMCA-147, ¶ 13. In turn, our courts have rejected the idea that a particular crime’s	3
nondesignation as a serious violent offense was a legislative mistake and have	4
rejected the idea that judicial rectification of such an omission is necessary to	5
effectuate 	the legislative purpose of 	the EMDA or 	avoid 	an 	absurdity. 	See	6
McDonald, 2004-NMSC-033, ¶¶ 21-23; 	Bennett, 2003-NMCA-147, ¶¶ 10-13.	7
Instead, our courts have uniformly given effect to the plain language of the EMDA	8
and left it to the Legislature to amend the EMDA if its plain terms do not in fact	9
reflect the Legislature’s will. See McDonald, 2004-NMSC-033, ¶¶ 19-23 (rejecting	10
the claim that conspiracy to commit any crime enumerated in the EMDA should be	11
a serious violent offense when the EMDA contains no such language); Bennett,	12
2003-NMCA-147, ¶¶ 4-13 (rejecting the claim that the Legislature made a mistake	13
when it classified third degree aggravated battery as a per se serious violent offense	14
but did not classify third degree aggravated battery on a household member as such	15
an offense); see also State v. Loretto, 2006-NMCA-142, ¶¶ 9, 22, 140 N.M. 705, 147	16
P.3d 1138 (reversing the district court’s determination that attempted first degree	17
criminal sexual penetration was a serious violent offense when attempt was not	18
enumerated in the EMDA).	19

8
{10} 	With this authority in mind, we turn to the matter at hand. Second degree	1
homicide by vehicle is not enumerated in the EMDA as either a per se or	2
discretionary serious violent offense. See § 33-2-34(L). Consequently, as the district	3
court recognized, and as the parties on appeal do not dispute, the plain meaning of	4
the EMDA designates second degree homicide by vehicle a nonviolent offense. See	5
§ 33-2-34(L)(3) (defining “nonviolent offense” as “any offense other than a serious	6
violent offense”); see also McDonald, 2004-NMSC-033, ¶ 23 (providing that a	7
crime not enumerated as a serious violent offense in the EMDA is a nonviolent	8
offense). We thus must give effect to this clear and unambiguous language, unless	9
there is some basis to depart from it. Bennett, 2003-NMCA-147, ¶ 6; see also	10
Maestas, 2007-NMSC-001, ¶ 14.	11
{11} 	To avoid application of the plain language of the EMDA, the State asserts that	12
“[w]hen the homicide by vehicle statute was amended, the Legislature forgot to	13
amend the EMDA to reflect the elevation of homicide by vehicle (DWI) to a second-	14
degree felony” and, in essence, asks us to do so through judicial intervention. As	15
proof of this purported legislative mistake, the State points to what it contends is an	16
absurd 	result—i.e., 	the Legislature’s 	inconsistent 	treatment 	of 	second 	degree	17
homicide by vehicle by, on the one hand, increasing the basic sentence for this	18
offense but, on the other hand, permitting more good time credit for this offense than	19
for some third degree homicide by vehicle offenders.	20

9
{12} 	We acknowledge that “in construing a statute, we may depart from its plain	1
language if necessary to correct a mistake or an absurdity that the [L]egislature could	2
not have intended.” Bennett, 2003-NMCA-147, ¶ 10 (internal quotation marks and	3
citation omitted); see also Maestas, 2007-NMSC-001, ¶ 15 (“We may only add	4
words to a statute where it is necessary to make the statute conform to the	5
[L]egislature’s clear intent, or to prevent the statute from being absurd.”). We,	6
however, cannot agree with the State that this case presents such a circumstance.	7
{13} 	As an initial matter, the State’s argument runs afoul of at least one basic canon	8
of statutory construction. In construing statutes to effectuate legislative intent, we	9
operate pursuant to a presumption that the Legislature is well informed of existing	10
statutory and common law. See Maestas, 2007-NMSC-001, ¶ 21; Jicarilla Apache	11
Nation v. Rodarte, 2004-NMSC-035, ¶ 15, 136 N.M. 630, 103 P.3d 554. The State’s	12
argument not only ignores this presumption but seems to invite us to draw the	13
opposite presumption—that unless there is some affirmative proof the Legislature	14
acted with full knowledge of existing law, we should presume it did not. The State’s	15
suggestion is made without citation to legal authority and we are unaware of any	16
authority that would have us presume the Legislature is prone to mistake or	17
forgetfulness, or lack of awareness for that matter. What is more, an intolerable	18
amount of ambiguity and uncertainty would be inserted into our construction of New	19

10
Mexico statutes were we to presume the Legislature lacks a basic understanding of	1
the law. We decline to employ such a presumption.	2
{14} 	Instead, to ascertain whether a departure from the plain meaning of the EMDA	3
is necessary to correct a mistake or avoid an absurdity that the Legislature could not	4
have intended, as the State suggests, we turn to legislative history. See Maestas,	5
2007-NMSC-001, ¶ 17 (examining legislative history to determine whether the	6
Legislature intended the plain reading of a statute); see also id. ¶ 15 (“[A]ny	7
divergence from the plain meaning of a statute must be done in conformity with clear	8
legislative intent.”). The State contends this history supports the idea that legislative	9
oversight led to second degree homicide by vehicle being erroneously categorized	10
as a nonviolent offense in the EMDA. In particular, the State cites the title of the	11
Senate bill that amended Section 66-8-101, which reads in relevant part, “Increasing	12
the Penalty for Homicide by Vehicle While Under the Influence of Intoxicating	13
Liquor 	or 	Drugs.” 	S.B. 	118, 	52nd 	Leg., 	2nd 	Sess. 	(N.M. 	2016),	14
https://www.nmlegis.gov/Sessions/16%20Regular/final/SB0118.pdf. From this, the	15
State contends that the legislative intent at the time was to increase penalties for this	16
offense and that treating this offense as a nonviolent offense would be contrary to	17

11
such intent and thereby absurd.3 So the reasoning seems to go, the Legislature must	1
have forgotten to amend the EMDA.	2
{15} 	A more fulsome review of the relevant legislative history undermines the	3
State’s position. As discussed, in 2016, the Legislature passed amendments to	4
Section 66-8-101, which, in relevant part, elevated the crime of homicide by vehicle	5
(DWI) to a second degree felony but retained homicide by vehicle while reckless	6
driving as a third degree felony. Compare § 66-8-101 (2004), with § 66-8-101	7
(2016). 	During 	the 	same 	legislative 	session, 	contemporaneous 	documents	8
considered along with the bill amending Section 66-8-101 and other proposed	9
legislation reveal the Legislature was aware of the potential need to amend the	10
EMDA but ultimately did not take action.	11
3 On its face, the State’s argument—that the designation of second degree
homicide by vehicle as a nonviolent offense under the EMDA would be contrary to
a legislative intent to increase the penalty for that offense—is doubtful for a couple
reasons. First, the EMDA does not in fact alter the penalty for a crime or change a
defendant’s sentence. See, e.g., State v. Ayala, 2006-NMCA-088, ¶ 6, 140 N.M. 126,
140 P.3d 547 (“[W]e have held that the EMDA does not change the defendant’s
sentence.”). Second, while it is true that designating homicide by vehicle (DWI) a
nonviolent offense permits offenders convicted of this crime to earn good time credit
at a higher rate than before the 2016 amendment, such offenders still may serve
significantly more prison time than they would have prior to 2016. Compare § 66-
8-101(C) (2004) (third degree felony), with § 66-8-101(C) (2016) (second degree
felony); compare § 31-18-15(A)(8) (six years’ imprisonment for third degree felony
resulting in death), with § 31-18-15(A)(4) (fifteen years’ imprisonment for second
degree felony resulting in death).

12
{16} 	First, a document considered contemporaneously with the bill amending	1
Section 66-8-101 reveals that the Legislature was alerted to the potential need to	2
examine the EMDA in light of the proposed amendments to homicide by vehicle	3
(DWI) in Section 66-8-101. The bill analysis by the Legislative Finance Committee	4
provided, in its discussion of the fiscal cost of increasing penalties for homicide by	5
vehicle, that “[t]he cost takes into consideration earned meritorious deductions.”	6
Fiscal Impact Report for S.B. 118, Fiscal Implications, at 2 (February 17, 2016),	7
https://www.nmlegis.gov/Sessions/16%20Regular/firs/SB0118.PDF (emphasis added). 	See	8
State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶¶ 33, 35, 117 N.M. 346, 871	9
P.2d 1352 (providing that contemporaneous documents, including analyses from the	10
Legislative Finance Committee, presented to and presumably considered by the	11
Legislature during the course of enacting a statute, may be considered by a court to	12
glean 	legislative 	intent). 	“Earned 	meritorious 	deductions” 	or 	“meritorious	13
deductions” are terms appearing only in the EMDA and related statutory provisions.	14
See NMSA 1978, §§ 33-2-36 (2006), -37 (2006); § 31-18-15(G) (requiring certain	15
reporting by the New Mexico Sentencing Commission on earned meritorious	16
deductions made pursuant to the EMDA). Its use apprised the Legislature that	17
offenders convicted of second degree homicide by vehicle would, under the	18
amended version of Section 66-8-101, be eligible to receive good time credit under	19

13
the EMDA and presumably alerted the Legislature of the potential need to examine	1
the EMDA’s treatment of this offense.	2
{17} 	Second, and significantly, the Legislature, in the same session in which	3
Section 66-8-101 was amended, considered amending the EMDA in a way that	4
would have accounted for the elevation of homicide by vehicle (DWI) to a second	5
degree 	felony. 4 See 	H.B. 	305, 	52nd 	Leg., 	2nd 	Sess. 	(N.M. 	2016),	6
https://www.nmlegis.gov/Sessions/16%20Regular/bills/house/HB0305.pdf. 	House	7
Bill 305 would have, among other things, made homicide by vehicle (DWI), as	8
provided in Section 66-8-101, a per se serious violent offense under the EMDA. See	9
H.B. 305, 52nd Leg., 2nd Sess. (N.M. 2016), at 8. The bill also would have removed	10
third degree homicide by vehicle, as provided in Section 66-8-101, from the list of	11
discretionary serious violent offenses, making it a nonviolent offense. See H.B. 305,	12
52nd Leg., 2nd Sess. (N.M. 2016), at 10. Had House Bill 305 been enacted, those	13
convicted of second degree homicide by vehicle, like Defendant, would have been	14
designated per se serious violent offenders under the EMDA and, as a result, would	15
have been eligible to receive only a limited amount of good time credit. Although	16
4 While the use of draft or proposed legislation has been criticized as an
unsuitable tool for interpreting legislative intent, we cite this proposed legislation
not to glean meaning from the words actually used by the Legislature, but for the
limited purpose of showing the Legislature did not simply forget to amend the
EMDA, as the State contends. See State v. Vest, 2021-NMSC-020, ¶ 33, 488 P.3d
626 (cautioning “against relying on draft versions of bills or proposed statutory
language in interpreting legislative intent”).

14
this 	bill 	passed 	the 	House 	of 	Representatives, 	it 	was 	never 	enacted. 	See	1
https://www.nmlegis.gov/Legislation/Legislation?Chamber=H&LegType=B&Leg	2
No=305&year=16 (last visited Jan. 30, 2022) (showing that action on House Bill	3
305 was postponed indefinitely).	4
{18} 	From this legislative history, we do not perceive, as the State surmises, a	5
neglectful Legislature unable to track how an amendment to one statute (Section 66-	6
8-101) might impact another statute (Section 33-2-24). The Legislature instead	7
presumably was aware of the interplay between Section 66-8-101 and the EMDA	8
and introduced legislation to address how homicide by vehicle (DWI) was treated in	9
the EMDA. That the Legislature did not pass this (or similar) legislation does not	10
appear to be a legislative mistake or oversight, but instead appears to be a product	11
of legislative inaction or choice, which, as far as we are aware, provides no basis for	12
departing from clear and unambiguous statutory language. See generally Clark v.	13
Lovelace Health Sys., Inc., 2004-NMCA-119, ¶ 14, 136 N.M. 411, 99 P.3d 232	14
(“When language in a statute enacted by the [L]egislature is unambiguous, we apply	15
it as written, and any alteration of that language is a matter for the [L]egislature, not	16
for this Court. The decision to extend the scope of an existing statute is a matter for	17
the Legislature[.]” (omission, internal quotation marks, and citations omitted)),	18
overruled on other grounds by Est. of Brice v. Toyota Motor Corp., 2016-NMSC-	19
018, ¶ 42, 373 P.3d 977. Indeed, for the judicial branch to amend a statute by edict,	20

15
when the legislative branch simply chose not to do so through legislation, plainly	1
would offend basic principles of separation of powers. See State ex rel. Taylor v.	2
Johnson, 	1998-NMSC-015, 	¶ 	21, 	125 	N.M. 	343, 	961 	P.2d 	768 	(noting,	3
parenthetically, that 	“the Legislature makes, the executive executes, and the	4
judiciary construes the laws” and “the Legislature possesses the sole power of	5
creating law” (alteration, internal quotation marks, and citation omitted)).	6
{19} 	Accordingly, we are in no position to depart from the plain meaning of the	7
EMDA and override what the State might consider to be an absurd policy choice by	8
the Legislature. See McDonald, 2004-NMSC-033, ¶ 22 (“We take no position on the	9
[s]tate’s policy arguments. It is profoundly a matter for the [L]egislature to	10
determine whether [an offense should be treated as a serious violent offense under	11
the EMDA].”); see also Bybee v. City of Albuquerque, 1995-NMCA-061, ¶ 11, 120	12
N.M. 17, 896 P.2d 1164 (stating that even though a result may seem contradictory,	13
courts presume that the Legislature knows the law and acts rationally). We instead	14
give effect to the plain language of the EMDA and the legislative choice inherent in	15
that language. If second degree homicide by vehicle should be defined as a per se or	16
discretionary serious violent offense under the EMDA, it is the Legislature that must	17
make it so. See McDonald, 2004-NMSC-033, ¶ 23. Until then, second degree	18
homicide by vehicle, under Section 66-8-101, is not so defined, and those convicted	19

16
of this offense shall be deemed nonviolent offenders under the EMDA. 	See	1
McDonald, 2004-NMSC-033, ¶ 23.	2
II. 	Defendant’s Remaining Claims Lack Support	3
{20} 	Defendant additionally appeals the district court’s denial of her motion to	4
withdraw her guilty plea and the district court’s decision to grant her less presentence	5
confinement credit than she requested. Defendant, however, acknowledges that the	6
existing record lacks key facts necessary to resolve these claims. We agree that the	7
record is insufficient to resolve these remaining claims and, accordingly, do not	8
address them. Defendant, however, is not precluded from raising her claims in a	9
habeas or other post-conviction proceeding. See State v. Arrendondo, 2012-NMSC-	10
013, ¶ 44, 278 P.3d 517 (affirming that a defendant is not precluded from pursuing	11
a claim in habeas where the record is insufficient on appeal); Martinez v. State, 1990-	12
NMCA-033, ¶ 2, 110 N.M. 357, 796 P.2d 250 (explaining that a claim the defendant	13
was denied mandatory credits is within the scope of Rule 5-802 NMRA).	14
CONCLUSION	15
{21} 	We reverse Defendant’s sentence to the extent that it classifies her conviction	16
for second degree homicide by vehicle as a serious violent offense under the EMDA.	17
We remand for the district court to correct Defendant’s sentence in accordance with	18
this opinion. We otherwise affirm.	19

17
{22} 	IT IS SO ORDERED.	1
_____________________________	2
JENNIFER L. ATTREP, Judge	3
WE CONCUR:	4
__________________________________	5
J. MILES HANISEE, Chief Judge	6
________________________________	7
JACQUELINE R. MEDINA, Judge	8