1997 -NMSC- 10, State v. Anaya, s. 22889

Citation933 P.2d 223, 123 N.M. 14, 1997 NMSC 10
Case DateDecember 06, 1996
CourtSupreme Court of New Mexico


¶1 On motion by Defendants for rehearing or such other relief as the Court deems proper and just, the opinion filed on May 31, 1996, is withdrawn, and the following opinion is substituted in its place.

¶2 The legislature recently amended the basic statute criminalizing driving while intoxicated (DWI). See NMSA 1978, § 66-8-102 (Repl.Pamp.1994). The legislature provided, among other changes, that a person found guilty of a fourth offense of DWI "is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months which shall not be suspended or deferred or taken under advisement." Section 66-8-102(G).

¶3 We consolidated several appeals which raise two central questions about the recent amendment: (1) whether the State must prove three prior DWI convictions as an essential element of the offense of felony DWI; and (2) what, if any, formal notice must the State provide to the defendant in order to enhance misdemeanor DWI to felony DWI. Some of the appeals raise the additional question whether a conviction under Section 66-8-102(G) may be enhanced pursuant to the habitual offender statute. See NMSA 1978, § 31-18-17 (Repl.Pamp.1994). We hold that the most recent amendment to the DWI statutes did not alter the elements required to establish the offense of DWI and thus that proof of prior convictions is not an element of felony DWI. Moreover, we conclude that the legislature did not intend that defendants convicted of a fourth or subsequent DWI offense should be subject to enhancement under both the felony DWI provision and the habitual offender statute. Two of the defendants raised issues regarding their convictions and sentences other than those we address. Therefore, we reverse the sentences in four appeals, and remand two appeals to the Court of Appeals for review of other issues raised on appeal as explained below for each defendant.


¶4 Defendant Anaya was charged by information with DWI and bound over for trial following a preliminary hearing. He was convicted by a jury instructed solely on the elements of misdemeanor DWI. At sentencing the trial court made a finding that Anaya had three prior DWI convictions and sentenced him to 18 months in jail. The court suspended 12 of the 18 months. This resulted in a 6-month jail term, the minimum sentence permitted by Section 66-8-102(G). The State then filed a supplemental information alleging that Anaya had three prior felony convictions wholly unrelated to the charge of DWI--manslaughter in 1962, possession of marijuana in 1968, and possession of a firearm in 1979. The trial court sentenced Anaya to an additional 8 years as a habitual offender for a total of 8 1/2 years.

¶5 The facts of Defendant Gonzales's case are similar to those of Anaya's. The State charged Gonzales by information with felony DWI and the misdemeanor offense of driving with a revoked license. At trial the court instructed the jury solely on the elements of misdemeanor DWI. While the jury was deliberating, the court heard evidence of five prior DWI convictions over Gonzales's objections that the conviction documents were unattested. The court found that the State had proof of four prior DWI convictions in sequence within the meaning of State v. Linam, 93 N.M. 307, 309, 600 P.2d 253, 255, cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979), and Gonzales admitted these prior convictions. After the jury returned a guilty verdict, the court arraigned Gonzales on a supplemental information, which alleged that he was a habitual offender. Gonzales admitted that he had four prior felony convictions: burglary (1977), escape from jail (1983 and 1988), and possession of cocaine (1993). The trial court sentenced Gonzales to a total of 9 1/2 years: 1 1/2 years for felony DWI; 364 days for driving on a revoked license, to be served concurrently with the DWI sentence; and 8 years as a habitual offender.

¶6 Defendants Kilgore and Irish were both convicted of felony DWI and sentenced to 18 months, 9 of which were suspended in both cases. Neither Kilgore nor Irish was subject to a sentence enhancement as a habitual offender.

¶7 Anaya, Gonzales, Kilgore, and Irish all appealed to the Court of Appeals, which certified these cases to this Court for resolution of the common issue "whether the existence of three prior ... DWI convictions is an element of the new crime of felony DWI, or a sentencing matter to be considered at the enhancement stage of a felony DWI case." In addition to the common issue certified, Anaya and Gonzales allege that the sentencing courts erred by enhancing their sentences pursuant to the habitual offender statute. Section 31-18-17. Anaya further asserts that the State failed to prove in sequence three prior DWI convictions in order to enhance the charges to a felony. See Linam, 93 N.M. at 310, 600 P.2d at 256; Koonsman v. State, 116 N.M. 112, 114, 860 P.2d 754, 756 (1993).

¶8 The procedural postures of the remaining two appeals are somewhat different. After being charged with felony DWI, Defendant Nakai entered into an alternative plea agreement with the State in which he agreed to plead guilty to felony DWI if the State was able to prove any prior DWI convictions. In the event the State was unable to prove prior convictions, he would plead guilty to misdemeanor DWI. Following execution of this plea agreement, the State filed a supplemental information alleging that Nakai previously had been convicted of escape from jail and that he was a habitual offender. At a sentencing hearing the trial court heard evidence regarding Nakai's prior DWI convictions and found that the State had proven three such convictions. At that same hearing Nakai admitted the prior felony conviction. The court sentenced Nakai to 18 months for felony DWI. The court also adjudged Nakai a habitual offender and enhanced his sentence by 1 year for a total sentence of 2 1/2 years.

¶9 Nakai appealed to the Court of Appeals, which affirmed his sentence by a memorandum opinion filed September 21, 1995. Nakai concedes that by pleading guilty he has waived his right to appeal on the ground raised by the other defendants--that proof of prior DWI offenses is an element of felony DWI. We granted certiorari in his case to address two other issues: (1) whether the State adequately notified him of the particular prior DWI offenses that it intended to use against him, and (2) whether the trial court properly enhanced his sentence pursuant to the habitual offender statute.

¶10 The sixth and final defendant, Martinez, pleaded guilty to DWI in 1994. At sentencing the trial court found that he had three prior DWI convictions under Section 66-8-102(G) and imposed an 18-month sentence. Martinez admitted to two prior felony convictions--battery on a peace officer (1988) and great bodily injury by vehicle (1986). The trial court suspended 1 year of the 18-month sentence and enhanced it by 4 years, resulting in a sentence of 4 1/2 years. Martinez did not file an appeal. He did, however, file a pro se habeas corpus petition in district court. This petition raised, inter alia, the same issue raised by Anaya, Gonzales, and Nakai--that a sentence resulting from a felony DWI conviction cannot be enhanced under the habitual offender statute. The district court granted Martinez partial relief but denied him relief on this ground. We issued a writ of certiorari and consolidated his case with the other appeals.

I. Element of a Crime or Status for Enhancement; Procedural Consequences

¶11 The issue before us is whether the legislature, in designating a fourth or subsequent DWI conviction as a fourth degree felony, contemplated a crime different from a first, second, and third DWI conviction--each charged and treated as a misdemeanor--or whether the fourth-degree-felony designation was intended only to enhance the punishment for repeat DWI offenders. If the legislature intended to establish a separate crime of felony DWI, then proof beyond a reasonable doubt of a defendant's three prior DWI convictions would necessarily constitute an element of the offense. Anaya, Gonzales, Kilgore, and Irish argue that the State was required to present proof of prior convictions at the preliminary hearing stage as well as at trial.

¶12 This issue has arisen before on petition for writ of prohibition or superintending control. See State ex rel. Whitehead v. Eastburn, S.Ct. Order No. 21,910 (Feb. 23, 1994). In that matter Judge Eastburn dismissed a charge of felony DWI because the State had failed to present proof of at least three prior DWI convictions at the preliminary hearing. Judge Eastburn's order noted that the issue presented needed to be resolved promptly because it was an issue ...

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