810 P.2d 1223 (N.M. 1991), 18974, Swafford v. State

Docket Nº:18974.
Citation:810 P.2d 1223, 112 N.M. 3, 1991 -NMSC- 043
Opinion Judge:[10] Ransom
Party Name:Ron SWAFFORD, Petitioner, v. STATE of New Mexico, Respondent.
Attorney:Robert Jacobs, Taos, for petitioner., Tom Udall, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for respondent. [7] Robert Jacobs, Taos, New Mexico, for Petitioner. [8] Tom Udall, Attorney General, Anthony Tupler, Assistant Attorney General, Santa Fe, New Mexico, for Respondent.
Case Date:May 01, 1991
Court:Supreme Court of New Mexico
 
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Page 1223

810 P.2d 1223 (N.M. 1991)

112 N.M. 3, 1991 -NMSC- 043

Ron SWAFFORD, Petitioner,

v.

STATE of New Mexico, Respondent.

No. 18974.

Supreme Court of New Mexico.

May 1, 1991

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[112 N.M. 6] Robert Jacobs, Taos, for petitioner.

Tom Udall, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

RANSOM, Justice.

Ron Swafford was convicted in the district court on one count of third-degree criminal sexual penetration, NMSA 1978, Section 30-9-11(C) (Repl.Pamp.1984), one count of incest, NMSA 1978, Section 30-10-3 (Repl.Pamp.1984), one count of aggravated assault with intent to commit a felony, NMSA 1978, Section 30-3-3 (Repl.Pamp.1984), and one count of false imprisonment. NMSA 1978, Section 30-4-3 (Repl.Pamp.1984). Following an unsuccessful appeal, Swafford v. State, 109 N.M. 132, 782 P.2d 385 (Ct.App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989), Swafford filed a pro se petition for post-conviction relief pursuant to SCRA 1986, 5-802. The motion was summarily dismissed by the district court. We granted certiorari under SCRA 1986, 12-501 to address important constitutional questions. 1

Swafford argues that (1) his conviction and sentence for assault with intent to commit a felony merged with criminal sexual penetration, and (2) it was error for the trial court to aggravate sentences based on Swafford's blood relationship to the victim and on lack of remorse. He also asks us to revisit whether separate consecutive sentences for incest and criminal sexual penetration violate the double jeopardy prohibition against multiple punishments. The central question we address today is under what circumstances a criminal defendant can be charged, tried, and convicted of multiple statutory offenses in a single trial without running afoul of the double jeopardy clause. 2

Essential Facts. On June 5, 1987, the half sister of Ron Swafford arrived for a short visit in Clovis, New Mexico. She stayed with Swafford's parents, and on June 7 she and Swafford spent the evening at home drinking. She went to bed at approximately 3:30 a.m. and was awakened by Swafford pulling on a rope he had tied around her wrist. Frightened and confused, she asked Swafford what he was doing. He responded violently, striking and choking her several times as she attempted to repel his attack. He succeeded in subduing her and then tied her arms and legs to the bed. According to the victim, Swafford then threatened her, stating "he would do everything to her that he always wanted to do to a girl that was tied up." He was charged with having inserted a candle, and then his penis, into her vagina.

On August 2, 1988, the jury acquitted Swafford on one count of third-degree criminal sexual penetration, relating to penetration with the candle, but found him guilty on all other counts as above described. He was sentenced to terms of four years each on the third-degree criminal sexual penetration, incest, and aggravated assault charges, and to two years on the false imprisonment charge. The court ordered the terms to run consecutively, for a total sentence of fourteen years.

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[112 N.M. 7] Swafford first contends that separate, consecutive sentences for third-degree criminal sexual penetration and incest are violative of the double jeopardy protection against multiple punishments for the same offense. In particular, Swafford urges that because the rape and incest arose out of the same act of sexual intercourse each offense necessarily includes the other and his convictions must merge for sentencing. We disagree, and we take this opportunity to make clear the applicable fifth amendment test for analyzing claims of multiple punishments.

Multiple punishments. The double jeopardy clause of the fifth amendment, made applicable to the states by the fourteenth amendment due process clause, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. 3 In an oft-repeated passage, the Supreme Court stated a tripartite model of the double jeopardy clause:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the Court recently differentiated the analysis applicable to multiple punishment cases from that applicable to successive prosecutions. Successive prosecutions, whether following acquittal or conviction, implicate double jeopardy values beyond those inherent in multiple punishment cases:

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity...." Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the same offenses charged.

Id. at 518, 110 S.Ct. at 2091-92 (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). These concerns in the multiple prosecution context led the Court to adopt a heightened inquiry. Id. at 515-524, 110 S.Ct. at 2090-95.

On the other hand, the criminal defendant facing multiple convictions and punishments in the same trial possesses limited expectations. According to the Court, his sole concern is the possibility of an enhanced sentence. Id. at 518, 110 S.Ct. at 2091. The Court stated, "[I]n [the multiple punishment] context, 'the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.' " Id. at 516-517, 110 S.Ct. at 2091 (quoting Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). In that context, the Court has employed as a "rule of statutory construction" the traditional Blockburger test for legislative intent, as articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), focusing upon the elements of the statutes at issue. Corbin, 495 U.S. at 516, 110 S.Ct. at 2091.

--Federal multiple punishment doctrine. The pivotal question in multiple punishment cases is whether the defendant

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[112 N.M. 8] is being punished twice for the same offense. That question, however, has different facets. First are the unit of prosecution cases. In those cases the defendant has been charged with multiple violations of a single statute based on a single course of conduct. The relevant inquiry in those cases is whether the legislature intended punishment for the entire course of conduct or for each discrete act. See, e.g., Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915) (upholding six convictions of defendant based upon defendant's cutting into six mail bags in a single transaction because Congress intended punishment for each act of damage to a mail bag). Later cases have established a presumption of lenity that, absent an express indication to the contrary, the legislature did not intend to fragment a course of conduct into separate offenses. See Bell v. United States, 349 U.S. 81, 82-83, 75 S.Ct. 620, 621-22, 99 L.Ed. 905 (1955) ("When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity."). New Mexico courts have followed that approach. See Herron v. State, 111 N.M. 357, 805 P.2d 624 (1991) (criminal sexual penetration); State v. Edwards, 102 N.M. 413, 696 P.2d 1006 (Ct.App.1984) (practicing law without a license).

Second are the double-description cases with which we are concerned today. In those cases, the defendant is charged with violations of multiple statutes that may or may not be deemed the same offense for double jeopardy purposes. The Supreme Court has fashioned a double jeopardy analysis in which the polestar guiding courts is the legislature's intent to authorize multiple punishments for the same offense. Much of the uncertainty concerning the Supreme Court's analysis of multiple punishment questions concerns the relative importance the component parts of the analysis enjoy and in some instances the proper subject of each component part.

--The Blockburger inquiry. The Blockburger test, or the elements test, formulated most clearly in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), provides that:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.

While there was at first some uncertainty about the proper scope of the Blockburger inquiry, later cases clearly have stated that the proper inquiry focuses upon the elements of the statutes in question--the evidence and proof offered at trial are immaterial. See, e.g., Corbin, 495 U.S. at 521 n. 12, 110 S.Ct. at 2093 n. 12 (Blockburger test has nothing to do with the evidence presented at trial). 4

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--[112 N.M. 9] The role of legislative intent. While early manifestations of the Blockburger test indicated that the test...

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